{236}

43. As regards the filling of the gap in article 15 of the Covenant, little progress was made. On the 19th September, therefore, the British representative submitted a scheme to the sub-committee, in which he had endeavoured to meet the differences of opinion which had been expressed. This scheme provided for the acceptance as compulsory of the jurisdiction of the Permanent Court in the cases covered by article 36, paragraph 2, of the Statute of the Court, with such reserves as may be consistent therewith. Its main object was, however, the amendment of the Covenant on the lines of the following text:—

"The undersigned will support the introduction of amendments to article 15 of the Covenant for the purpose of amplifying paragraphs 4, 5, 6 and 7 of that article on the following lines:—

"If the dispute submitted to the Council is not settled by it as provided in paragraph 3, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.

"If the parties cannot agree to do so, the Council shall again take the dispute under consideration, and, if it reaches a report which is unanimously agreed to by the Members thereof other than the representatives of the parties to the dispute, the Members of the League agree to accept the recommendations contained in the report.

"If the Council fails to reach a report which is concurred in by all the members other than the representatives of the parties to the dispute, and if the parties are still unable to agree to refer the dispute to arbitration, the Council is empowered to refer the dispute to arbitration on their behalf. One-half of the members of the tribunal, excluding the president, shall be appointed by the Council, after consultation with one party to the dispute, and the other half after consultation with the other party to the dispute. The president shall be appointed by the Council after consultation with the Permanent Court of International Justice if in session, or, if not in session, with the members of its chamber of summary jurisdiction.

"The Members of the League agree that they will comply with the {237} recommendations contained in any award of the Arbitration Tribunal set up by the Council as above.

"In the event of any failure to comply with the recommendations of a report concurred in by all the Members of the Council other than the parties to the dispute or in any award of an arbitration tribunal set up by the Council as above, the Council shall exert all its influence to secure compliance therewith. If such failure to carry out the recommendations is accompanied by any resort to war, the sanctions provided for in article 16, interpreted as provided in this Protocol, shall be applied."

44. The British Delegate explained that the willingness of Governments to amend the Covenant must be clearly expressed in the Protocol. In no other way could the danger of creating within the League an inner ring of Powers, bound towards each other by ties and obligations more close than those binding the ordinary members of the League, be avoided. The drafting of amendments to the Covenant was, however, a technical matter, and time was short. He therefore suggested that the Council should be asked to set up a committee of experts to draft the amendments to the Covenant contemplated by the Protocol.

45. These proposals provided the bases of articles 1, 3 and 4 of the Protocol and of paragraph 3 of the Assembly Resolution of the 2nd October. The bases of articles 2 and 5 had already been established. Article 10 was beginning to take shape in new drafts in substitution for Dr. Benes's definition of an aggressor. On the 21st September these articles were provisionally adopted by the joint drafting committee of the First and Third Committees. At this stage, therefore, for the first time, the substance of a workable text on the subjects referred to the First Committee began to emerge from the shadow of discussion.

46. Throughout this period, however, the negotiations had been carried on entirely in the sub-committee in secret sessions. Although the closest possible touch had been kept by the British Delegation with the Dominion and Indian Delegations, the British representative felt himself to be in a position {238} of great responsibility in carrying on the work in the sub-committee. He felt that a stage had been reached where a wider consultation was necessary, as, with the exception of the Attorney-General of the Irish Free State, who was unfortunately obliged to return to Ireland about this date, he was the only British member. He proposed, therefore, that the work of the sub-committee should be reported to the full Committee on which all the Dominion and Indian Delegations were represented. The full Committee thereupon met on the 24th September, and then and at further meetings held on the 25th, 26th, 27th and 28th September, the articles of the Protocol were fully discussed in public sessions. The articles of the Protocol under consideration thus took their shape in the sub-committee, they were then submitted to the Joint Drafting Committee representing the First and Third Committees, and were then finally approved after public discussions in Committee No. 1. Here, then, it will be convenient to deal with the purpose and evolution of each article separately.

The Preamble.

47. The draft of the Preamble, as revised by the Joint Drafting Committee of the First and Third Committees, was adopted at a plenary session of the First Committee on the 27th September. The Lithuanian Delegate made a reservation that the reference to territorial security in no way prejudiced existing disputes between States signing the Protocol. The Portuguese Delegate proposed an amendment to substitute for the word "territories" in the first sentence, the phrase "territories under the sovereignty of States." The object was to make it clear that oversea territories under the sovereignty of a State were not excluded, but the British representative reminded the committee of the nature of the varied character of the territories of the British Empire, and said that if one class of oversea territories were mentioned, all must be mentioned. The amendment was rejected.

{239}

Article 1.

48. Article 1 was designed to ensure that the universality of the League should be maintained even if the Protocol comes into force. For a while there must no doubt be a dual rgime. States signatory to the Protocol will be bound by its terms, and the rgime of the Covenant will continue to exist and to be binding upon States members of the League. This will, however, not last, as the principal provisions of the Protocol will be transformed into amendments to the Covenant.

Article 2.

49. Article 2 was intended to make all aggressive war illegal. Exceptions were, however, made to safeguard (1) the right of a State to fight in self-defence, and (2) the position of a State acting in accordance with the provisions of the Covenant or the Protocol. A proposal, strongly urged, to substitute the words "resort to force" for the words "resort to war" was rejected.

Article 3.

50. Article 3 provides for the compulsory recognition of the jurisdiction of the Permanent Court. The Joint Drafting Committee proposed to remove this article from the Protocol, as certain Delegations felt it went beyond the Assembly Resolution. The British Empire Delegation feared that this might result in the separation of the three principles—arbitration, security and disarmament. At the suggestion of the British representative, therefore, the article was retained. As a result of the discussions on this matter, it was generally agreed that the power to make reservations to article 36 of the Permanent Court Statute was much wider than had been at first believed. It was understood that the proposed British reservation was within the limits admissible.

Article 4.

51. Article 4 was designed to extend the system of {240} arbitration contained in the Covenant and to fill the existing gap in article 15 of the Covenant, by which the parties to a dispute recover their liberty of action and are entitled to resort to war if the Members of the Council are unable to agree upon a unanimous report. In the sub-committee a strong feeling manifested itself against unanimous decisions of the Council being binding in cases where one party to a dispute, but not both, desired arbitration. Certain of the smaller States, in particular, felt that such a system gave too much power to the Council, which was already regarded as a body which expressed only the will of the great Powers.

52. Paragraphs 2 (a) and (b) of article 4 were drafted to avoid this difficulty. Arbitration is to be compulsory at the request of one of the parties, and the Council is given power to appoint the arbitral body if the parties cannot agree as to its constitution. A unanimous decision of the Council is only to be binding where none of the parties ask for arbitration. If, therefore, any party wishes to avoid a decision by the Council, it has only to ask for arbitration. For similar reasons, the words "accepted by one of the parties" were added after the words "decision of the Council" in paragraph 5.

53. Discussions in the sub-committee revealed a divergence of view as to whether or not sanctions should be applied in the event of passive resistance to the award of the Arbitral Commission. It was finally agreed that the provision contained at the end of article 13 of the Covenant would be sufficient to meet a case of passive resistance and that the sanctions of article 16 should only be applied when such resistance was accompanied by a resort to war (vide paragraph 6 of article 4).

54. At the request of the British representative, paragraph 7 was added to ensure that reservations, similar to that which the British Delegation considered that it would be obliged to make if the British Empire accepted article 36 of the Statute of the Permanent Court, would also exist in the case of the new system of compulsory arbitration.

{241}

Article 5.

55. Article 5 was inserted as the result of a unanimous decision of the sub-committee to leave untouched paragraph 8 of article 15 of the Covenant, which safeguards the rights of States Members in regard to matters of domestic jurisdiction. The whole British Empire Delegation held the view that when the Arbitration Commissions were faced with such questions, they should be bound to refer them to the Permanent Court, and that the opinion of the Court should be binding. As the Permanent Court itself is bound to apply international law, and paragraph 8 of article 15 refers to questions which by international law are solely within the domestic jurisdiction of the State concerned, this provision ensures that a uniform rule will be applied by the Council, the Permanent Court and the arbitral bodies to be set up under the new system.

56. The last sentence of article 5 was added to meet certain difficulties raised by the Japanese Delegation. They pointed out that the second gap in the Covenant, referred to by the French Delegation during the general discussion, had not been filled. On the 24th September, they accordingly proposed an amendment to article 5, which appeared to have the effect of giving the Council power, in cases relating to domestic jurisdiction, to recommend the parties to adopt some solution which would ensure a pacific settlement of the dispute. After the discussion in the sub-committee, the Japanese Delegation modified this proposal and suggested that the following words be added as the final paragraph of article 5:—

"The above provisions do not prejudice the duty of the Council to endeavour to bring the parties to an agreement so as to ensure the maintenance of peace and a good understanding between nations."

This proposal came up before the plenary session of the First Committee on the 25th September. The British Delegation asked for a postponement of the discussion. Immediate steps were {242} taken to consult the Dominion and Indian Delegations, and in the subsequent negotiations the closest co-operation with them was maintained.

57. It transpired that the Japanese Delegation, if they failed to secure acceptance of this amendment to article 5, intended to press for the exclusion from article 10 of the sentence at the end of paragraph 2 (1), which included in the definition of an "aggressor" a State which resorted to war and disregarded a unanimous report of the Council or a judicial sentence or an arbitral award recognising that the dispute arose out of a matter within the domestic jurisdiction of the other State concerned. They pointed out that it was unjust that in such cases the League, while refusing pacific means of settlement to an injured State, should denounce that State as an aggressor if it took steps to defend its legitimate interests by force.

58. The possible effect of this alternative amendment was regarded by many Delegations with great concern. It would have suggested the legitimacy of a resort to war in connection with a dispute arising out of some domestic matter as to which the Council could give no help and make no recommendation for its solution.

59. In these circumstances the British Empire Delegation was agreed that the best course was to endeavour to find a solution by enlarging article 19 of the Protocol, so as to make it clear that the existing power of the Council, under article 11 of the Covenant, of endeavouring to achieve a pacific settlement in any case where the peace of the world was endangered, was not prejudiced by the provisions of the Protocol. Though the discussions of the matter remained very friendly in tone this proposal did not prove acceptable to the Japanese Delegation. Accordingly, when the amendment came before the plenary meeting of the First Committee on the 28th September, the Japanese Delegation withdrew their amendment to article 5 and proposed the amendment to article 10. At the suggestion of the French Delegate the question was referred back to the sub-committee.

{243}

60. Late on the 29th September the basis of solution was found. It was immediately submitted to the representatives of the Dominions and India, and was fully considered by them at two further meetings on the following day. After slight modifications the text of two amendments proved acceptable to the British Empire Delegation, and after being accepted by the Japanese and French Delegations, these amendments were adopted by the First Committee. They involved the addition to the last sentence of article 5 of the words "this decision shall not prevent consideration of the situation by the Council or the Assembly under article 11 of the Covenant," and the addition at the end of paragraph 2 (1) of article 10 of the words "nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant."

61. In the opinion of the British Empire Delegation these amendments conferred no new powers or functions on either the Council or the Assembly. They merely served to make clear the relationship between paragraph 8 of article 15 and article 11 of the Covenant. Article 11 of the Covenant only operates in time of war or threat of war, and it confers no right on the Council or the Assembly to impose a solution of a dispute without the consent of the parties. The Council or the Assembly may mediate and conciliate, but they cannot make recommendations which are binding under paragraph 6 of article 15 of the Covenant. When these amendments were adopted at the final plenary meeting of the First Committee on the 30th September, the British representative made a statement on the above lines. This interpretation proved generally acceptable, and it was agreed to incorporate it in the report to be submitted to the Assembly.

62. At the final plenary meeting of the First Committee the British representative drew attention to the difficulty in which many Delegations were placed, in that they had had no {244} opportunity to consult their Governments in regard to these amendments. The Delegations of Australia and several other countries thereupon stated that, though they accepted the texts, they could not commit their Governments in any way.

Article 6.

63. Article 6. When the system of compulsory arbitration, contained in article 4, had been established, the British representative pointed out that under paragraphs 9 and 10 of article 15 of the Covenant a dispute might still be referred to the Assembly. Article 6 was therefore drafted to ensure that the provisions referring to the actions and powers of the Council should apply to the Assembly under the new system. After considerable discussion it was decided to reserve questions of procedure to the Council as being a more suitable body.

Article 10.

64. Article 10, which contains the definition of an aggressor, provided one of the most difficult tasks of the First Committee. By the 23rd September a number of drafts had been considered but no satisfactory text had been found. The original idea was that it should be the duty of the Council to determine the aggressor, but the question then arose as to whether, in making this decision, the Council should act unanimously or by majority vote. Adherence to the unanimity rule would have made it possible for one State to prevent a decision being reached. Procedure by a majority vote might have resulted in a State being obliged to apply sanctions against its own judgment. The only way out of this difficulty was to avoid a decision by the Council at all, and to make the test of aggression automatic, when once certain conditions had been found to obtain. This is achieved by establishing a presumption which is to hold good until the Council has made a unanimous decision to the contrary. If the presumption stands it is considered sufficient to justify the application of sanctions. Even then it was thought that there would have to be something in the nature of a {245} "declaration of aggression" in order to initiate the enforcement of sanctions, and that this declaration would have to be made by unanimity. Objections were raised to this, but these objections were finally satisfied by the insertion of paragraph 3, according to which the Council, if it cannot at once determine the aggressor is bound, as a matter of course, to enjoin an armistice upon the belligerents.

65. The Japanese Delegation were opposed to any presumption of aggression arising against a state which was involved in a dispute covered by paragraph 8 of article 15 of the Covenant, and found as the result that, though it had submitted the dispute to the Council, the Council were unable to make any recommendations on the subject. To meet this view, the amendment previously referred to was made to article 5, and the words "nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant" were added to paragraph 2 (1) of article 10. In the opinion of the British Delegation, this amendment does not affect paragraph 3 of article 10. If a resort to war occurs, and the Council cannot determine the aggressor, it is still bound to impose an armistice upon the belligerents.

66. To the final paragraph of article 10 the words "and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent" were added at the suggestion of the British representative. This addition was made to safeguard the position of a State which, though no party to the dispute, joined in coercive measures to uphold the Covenant of the League and in so doing took forcible measures against the persons or the property of nationals of another State.

Article 16.

67. The relations between States signatory to the Protocol and States non-signatory and non-members of the League presented a problem the solution of which required great care. {246} The various aspects of the question were thoroughly examined, and it was finally agreed that it would be sufficient to bring the principle contained in article 17 of the Covenant into harmony with the provisions of the Protocol. Sanctions can only be imposed on a State which is not a Member of the League if it refuses to accept the conditions and obligations of the Protocol when invited to do so, and resorts to war against a signatory State.

68. The question was raised of the relationship between States Members of the League signatory to the Protocol and non-signatory States Members. After careful examination, it was generally agreed that no special arrangement was necessary. The Members of the League are bound inter se by the Covenant and non-signatory Members are entitled, if they wish, to prefer the procedure laid down in the Covenant to the new procedure of the Protocol.

Article 18.

69. Article 18 was inserted to satisfy apprehensions which had been expressed in certain quarters. The British Delegation were not convinced of its necessity, but saw no reason to object to it.

Article 19.

70. Article 19 was inserted as a saving clause. It emphasises the intention to preserve the Covenant as the principal document governing the relations between States Members of the League. The relations between signatories and non-signatories to the Protocol are still to be governed by the Covenant. The Covenant is to stand, but it is to be enriched by the principal provisions of the Protocol. The amended Covenant is intended ultimately to take the place of the separate rgime of the Protocol.

Resolution No. 1.

71. It had been originally suggested that the provisions of {247} the Protocol should be embodied in the form of resolutions to be submitted for adoption by the Assembly. In view, however, of the fact that adoption of such resolutions by the Assembly might be held to commit the Governments there represented to the acceptance of its provisions, and in view of the difficulty which Delegations found in consulting their Governments, this proposal was found to be impracticable. It was thereupon decided that the Protocol should be drawn up as a separate instrument, and that its acceptance should be recommended by the Assembly to all States Members of the League.

72. The draft of a resolution on these lines, which had been drawn up by the British representative, was discussed by the First Committee on the 27th September. Paragraph 1 recommends the acceptance of the Protocol. Paragraph 2 provides that the Protocol shall be open immediately for signature for those representatives who were already in a position to sign. This was added in view of the fact that the French and several other Delegations had announced their intention to sign the Protocol before leaving Geneva. Paragraph 3 was inserted because it was felt that the drafting of amendments to the Covenant was too technical a matter to be done hastily.

73. The remaining paragraphs of the resolution relate to the proposed Disarmament Conference which was dealt with by the Third Committee. The resolution was unanimously adopted by the Assembly on the 2nd October.

Resolution No. 2.

74. This resolution recommends the acceptance of the obligatory jurisdiction of the Permanent Court of International Justice at The Hague by all Members of the League. The discussions regarding the special Protocol opened for signature in virtue of article 36, paragraph 2, of the Statute of the Permanent Court, had revealed that the power to make reservations was wider than had been at first thought. It was therefore decided that no new Protocol was required, but that the power to make {248} reservations should be clearly recognised in the resolution of the Assembly.

M. Politis's Report.

75. M. Politis's draft report on the work of the First Committee was presented to the Committee on the 28th September, and the discussion upon it lasted all day. This draft, which was very ably drawn up, gave a remarkably clear and adequate account of the achievement of the First Committee.

76. Some criticism was made by the representative of Hungary and others of a tendency in the report to give peace a secondary position to that of justice in the predominating idea of arbitration. As a result, the offending passages were redrafted.

77. In its final form M. Politis's report was incorporated in the general report submitted to the Fifth Assembly by the First and Third Committees. This general report[2] was adopted unanimously by the Assembly on the 2nd October, and it can thus be regarded as the official document containing the views of the Members of the League in regard to the interpretation of the Protocol.



III.—WORK OF THE THIRD COMMITTEE.

78. The Third Committee began its deliberations on the Assembly resolution on arbitration, security and disarmament on the 9th September, under the presidency of M. Duca (Roumania) (subsequently replaced by M. Politis [Greece]), and the proceedings opened with a general discussion, which was continued until the 13th. Lord Parmoor and Mr. Henderson represented the British Empire.

79. After the method of procedure had been settled, a statement was made expressing the standpoint of the British Delegation on the questions of arbitration under the three heads of arbitration, court decisions and conciliation, and the views then expressed were maintained at the subsequent meetings. A short {249} reference was made to the question of sanctions, but any detail was avoided in order to leave room for free discussion with the members of the French Delegation. The note of the British Government on the Draft Treaty of Mutual Assistance was referred to as expressing the final view and not requiring any further comment.

80. Most of the speakers devoted some time to a statement of the views of their Governments on the Draft Treaty of Mutual Assistance, against which the main objections urged were the uncertainty in regard to the definition of aggression, the too wide discretion and powers conferred upon the Council and the evils attendant on the system of "complementary agreements" sanctioned by the Treaty. The first defect might now be remedied by the extension of the system of arbitration, which would simplify the definition of aggression. As regards the "complementary agreements," even those who recognized their harmful possibilities were compelled to admit that they could not be abolished or prevented, and that their power for evil might be lessened if they were controlled and brought within a general scheme of mutual assistance under the League.

81. All the speakers were in substance agreed that the Covenant itself afforded the best basis for any scheme of mutual assistance; that it needed only to be developed and carried to its logical conclusion in order that it might provide an adequate basis of security.

82. In summing up the debate the President observed that there appeared to be general agreement on the interdependence of the three problems of arbitration, security and disarmament, and on the point that a complete system could be evolved from the Covenant itself. Everyone was prepared to accept the principle of economic and financial sanctions, though some difference might exist on the subject of military sanctions. Little had been said about disarmament, which could only follow as a consequence of the solution of the twin problems of arbitration and security.

{250}

83. It was then agreed, on the morning of the 13th September, to appoint a sub-committee of representatives of twelve Delegations to formulate concrete proposals.

84. The sub-committee, known as the Fourth Sub-Committee of the Third Committee, was composed as follows:—

Lord Parmoor or Mr. Henderson (British Empire). M. Paul-Boncour (France). M. Schanzer (Italy). M. Branting (Sweden). M. Benes (Czechoslovakia). M. Villegas (Chile). M. Kalfov (Bulgaria). M. Poullet (Belgium). M. Titulesco (Roumania). Mr. Matsuda (Japan). M. Lange (Norway). M. Skrzynski (Poland).

85. The sub-committee met for the first time on the afternoon of the 13th September, under the presidency of Dr. Benes. The first meeting was occupied by a discussion on procedure. In the first instance, it was proposed to appoint a drafting committee of three members to draw up proposals, keeping in close touch with a similar committee to be appointed by the First Committee, but this idea was subsequently abandoned, and the President was requested to draw up the outline of a scheme, to be submitted to the sub-committee, if possible, on the 15th September. This the President undertook to do, but he was only able to submit his proposals for the first time on the 16th September. The delay was due mainly to the necessity of consulting with representatives of the First Committee and with certain Delegations. In particular, meetings were held on the 15th September between representatives of the French and British Delegations who went carefully through the scheme and reached a preliminary agreement on a number of points of principle. This agreement greatly facilitated the eventual completion of the work.

{251}

86. These proposals were in the form of a draft Protocol, of which articles 1, 2, 3 and 5 concerned the First Committee, and have already been dealt with in the preceding section of this report. The remaining articles, as originally proposed, may be summarised as follows:—

87. Article 4.—The Council or the Permanent Court may appoint International Control Commissions, composed of civilian and military experts, to ensure that during the course of the arbitral procedure none of the parties makes preparations for economic or military mobilisation.

88. Article 6 recommends the establishment of demilitarised zones and their control, if desired, by the League of Nations.

89. Article 7.—As soon as the declaration of aggression has been made, the obligations of the signatories in regard to the sanctions of all kinds in article 16, paragraphs 1 and 2, of the Covenant will immediately become operative against the aggressor. These obligations to be interpreted as obliging each of the Members of the League to co-operate loyally and effectively in support of the Covenant of the League and in resistance to any act of aggression.

90. In accordance with article 16 of the Covenant the signatories undertake, individually or collectively, to come to the assistance of the State attacked or threatened, and to give each other mutual support by means of facilities and reciprocal exchanges as regards supplies of raw materials and food-stuffs of every kind, openings of credits, transports, transit, and for this purpose to ensure the safety of the land and sea communications of the attacked or threatened State.

91. If both parties to the dispute are declared aggressors according to the above provisions, the economic sanctions to be applied to both of them.

92. Article 7A.—The Council of the League of Nations to instruct the Economic and Financial Committees, Temporary Mixed Commission and Permanent Advisory Commission to draw up (1) plans of action for establishing the blockade of {252} the aggressor State, and (2) plans of economic and financial co-operation between the State attacked and the different States assisting it.

93. Article 8.—The Council to be entitled to accept individual or collective undertakings entered into by States, determining in advance the military forces which they would immediately place at the Council's disposal in order to carry out the measures decided upon, in accordance with the preceding articles.

94. When the aggressor has been designated, the signatories may, in accordance with undertakings previously entered into, place in the field the whole, or such proportion as they may consider necessary, of their military forces against the aggressor.

95. Article 8A.—In view of article 10 of the Covenant, the above sanctions must not include the violation of the political or territorial independence of the aggressor.

96. Article 9.—The signatories to take part as soon as possible in an International Conference for the Reduction of Armaments under the auspices of the League. The Council to draw up the programme for this Conference.

97. If, within a time limit of (Transcriber's note: blank space in source) after the coming into force of the Protocol, the Conference has not met, or the scheme for the reduction of armaments drawn up by it has not been adopted and carried out, the Council may record the fact, and each signatory shall regain its freedom of action.

98. If, during the time limit specified above, a dispute arises, the provisions in the Protocol to be applicable in full.

99. Supplementary Clause (to be inserted in article 9).—The conditions in which the Council may declare that the scheme of the International Conference has not been carried out, shall be defined by the Conference itself.

100. Article 10.—Differences relating to the carrying out or interpretation of the Protocol to be submitted to the Permanent Court of International Justice.

101. Article 11.—The Protocol to be open for signature by {253} all States, to be ratified, and the ratifications to be deposited with the League. The Protocol to come into force between the signatories ratifying it, as from the date of ratification.

102. The sub-committee held eight meetings in all, finishing its work on the 22nd September. The articles were not discussed in their numerical order, and a discussion of one article was often adjourned while the examination of another article was begun. As it is not attempted here to give a full summary of the discussions, it will perhaps be convenient to take the articles in order and show what modifications were introduced.

103. Article 4.—Objection was raised to this article, mainly on the ground that it gave the Council or the Permanent Court too wide powers of interference, and introduced the idea of a "super-State." After consultation with other Delegations, the British Delegation produced an alternative draft which was adopted, and which was substantially embodied in the eventual Protocol itself (becoming article 7). The only essential difference between this draft and the eventual text was that the former provided, in paragraph 2, that the investigations should be carried out "by the organisation set up by the Conference for the Reduction of Armaments to ensure respect for the decisions of that Conference.

104. Article 6.—Words were inserted to the effect that demilitarised zones were recommended "as a means of avoiding violations of the present Protocol." They were to be placed under the supervision of the Council at the request "and at the expense" of one or more of the conterminous States.

105. Article 7.—There was considerable discussion on the first paragraph, and some demand for a distinction to be drawn, as in the Covenant, between economic and financial sanctions on the one hand, and military sanctions on the other. It was, however, explained that the proposed definition of the aggressor had produced a clearer situation, in which there was no reason why the application of sanctions of all kinds under article 16 of the Covenant should not be justified. It was pointed out that the {254} wording of this first paragraph was illogical. The "obligations" could not "become operative against an aggressor." Accordingly, it was agreed to substitute the words "the obligations will immediately come into force in order that the sanctions provided may immediately become operative." The paragraph was then passed with the above amendment.

106. Exception was taken to the words in the third paragraph "undertake individually or collectively to come to the assistance." It might prove difficult to evolve collective plans, and it was agreed, on the proposal of the British Delegate, to substitute the words "give a joint and several undertaking to."

107. In the same paragraph the use of the expression "to ensure the safety of the land and sea communications of the attacked or threatened State" was questioned in the first place, because it seemed that it might imply naval or military operations. In reply, it was pointed out that the words in the same sentence "for this purpose" showed that this paragraph related solely to economic and financial sanctions. In the second place the word "ensure" was objected to, on the score that to undertake to ensure communications might be to undertake an impossibility. Finally, the words "take measures to preserve the safety of communications" were substituted. It was further pointed out that these provisions were to be applied to protect an attacked or threatened State and that a similar distinction was expressly contained in the Covenant.

108. Article 7A.—The British Delegation desired a redraft of this article, taking exception in particular to sub-paragraph (1), in which the word "blockade" seemed to suggest belligerent naval action. They at first suggested omitting all words after "Council of the League of Nations" and substituting "shall, as soon as possible after the Protocol has been ratified, take steps to ascertain from each of the signatories what organisation or legislation is necessary to give effect to the economic and financial sanctions." An alternative suggestion from another quarter was to substitute the words "putting into force the economic and {255} financial sanctions against" for the words "establishing the blockade of" in sub-paragraph (1). It was agreed to combine both amendments—to adopt the British text above, and to begin a second paragraph with the words "When in possession of this information the Council shall draw up, through its competent organs: (1) plans of action for the application of the economic and financial sanctions of article 16 of the Covenant against an aggressor State," &c.

109. Later, the British Delegation proposed to redraft the first paragraph in the form in which it finally appears in the Protocol (having become article 12), to delete the remainder, and to substitute "It shall communicate this report to the members of the League and to the other signatories." The redraft of the first paragraph was accepted, but it was decided to allow the second paragraph to stand, as amended above.

110. Article 8.—The British Delegation had objections to raise against both paragraphs of this article. In the first paragraph they objected to the words "place at the Council's disposal," and the second paragraph they regarded as an attempt to revert to what was the operative principle of the Draft Treaty of Mutual Assistance.

111. They suggested as an alternative text:—

"Having regard to the fact that military sanctions are foreseen in article 16 of the Covenant, the Council may receive undertakings from States fixing in advance the military forces which they would be willing to employ against a Member of the League which was declared to be an aggressor.

"In view of the right of Members of the League to enter into such arrangements with the Council, no agreement shall in future be concluded between States Members of the League, providing for military action to be taken by them."

112. It became evident that the sub-committee could not be induced to accept the second paragraph of this alternative text, and it was accordingly withdrawn. Exception was also taken {256} to the words in the first paragraph, "against a Member of the League," &c., and it was agreed to substitute the words, "to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol."

113. The French Delegation then proposed that the article should read:—

"In view of the contingent military, naval and air sanctions provided for in article 16 of the Covenant, and article 7 of the present Protocol, the Council shall be entitled to receive undertakings entered into by States determining in advance the military, naval and air forces which they would bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.

"When the aggressor is designated, the signatory States may, moreover, place in the field, in accordance with agreements previously entered into, the whole or such part of their military, naval and air forces as they may consider necessary for the assistance of a State which shall have been the victim of aggression.

"The obligations of the second paragraph shall be duly registered and published by the League of Nations, and shall remain open for adherence by any State Member of the League which so desires."

114. It was the right of States, as the matter then stood, to enter into special agreements with one another for determining in advance the military, naval and air forces which they would bring to the assistance of one another under the conditions indicated. Under the Protocol, these special agreements would only come into force when the Council had decided which State is the aggressor: they would simply provide means for applying rapidly the sanctions prescribed in the Covenant and the Protocol.

115. Before, however, agreeing to this text a statement was made on behalf of the British Delegation, expressing regret that the sub-committee had not seen its way to make the Protocol an instrument whereby the League would only act as a whole. It was, however, recognised that the last paragraph introduced {257} an improvement, as, if separate agreements must exist, it would be better that they should be registered with the League. "But that does not alter the fact that you are making provision on the face of a new document for that which has been turned down in connection with the Draft Treaty of Mutual Assistance." Further opposition to the draft article was not pressed, but the British Delegation made known their desire that words should be recorded expressing regret that the League was not to act as a whole, and to set its face "like flint against anything like the old balance of power by allowing these regional pacts to go on under this new instrument." The above text was then adopted.

116. Article 8A.—The British Delegation proposed that the article should read: "Shall not affect the territorial integrity or political independence of the aggressor State." This was agreed to, and it was also decided to prefix a paragraph relating to the costs of military, naval or air operations, similar to article 10 of the Draft Treaty of Mutual Assistance.

117. Article 9.—Objection was raised by the British Delegation to the last paragraph of article 9, and they moved that the following be substituted:—

"The provisions of the present Protocol in regard to arbitration and sanctions shall come into force when the scheme for the reduction of armaments, drawn up by the International Conference, has been effectively carried out in accordance with the conditions fixed by the Conference itself."

118. The French Delegation maintained strongly that the Protocol must be brought into operation before the International Conference could meet. The British Delegation offered a compromise with the suggestion that their Government might sign the Protocol, and ask Parliament to approve it before the Conference met. But preparatory arrangements for the Conference should go on concurrently. Directly agreement was reached by the Conference, ratifications could 'be deposited. As this failed to meet the views of the French Delegation, the British {258} Delegation made a final proposal whereby endeavours should be made to secure ratification and deposit of ratifications before the Conference met, provided the Protocol itself contained a provision to the effect that it should only become operative when the International Conference reached a conclusion. The French Delegation indicated their willingness in principle to accept this, but wished to consider an actual text.

119. At the next meeting the Chairman submitted the following version:—

"The undersigned Members of the League of Nations undertake to participate in an International Conference for the Reduction of Armaments which shall be convened by the Council of the League and shall meet at Geneva on Monday, the 15th June, 1925. States not Members of the League of Nations shall be invited to this Conference.

"The ratifications of the present Protocol shall be deposited with the Secretariat of the League of Nations at the latest by the 1st May, 1925. If at least fifteen Members of the League, of which four are permanently represented on the Council, have not deposited their ratification by the 1st, May 1925, the Secretary-General of the League shall cancel the invitations.

"The entry into force of the present Protocol shall be suspended until a plan for the reduction of armaments has been adopted by the Conference.

"With a view to the summoning of the latter, the Council, taking into account the undertakings contained in articles 7 and 8 of the present Protocol, will prepare a general programme for the reduction of armaments which will be placed at the disposal of the Conference.

"If, within a period of (Transcriber's note: blank space in source) after the adoption of the plan for the reduction of armaments, that plan has not been carried out, the Council shall make a declaration to that effect; this declaration shall under the present Protocol be null and void.

"The grounds on which the Council may declare that the plan drawn up by the International Conference for the Reduction of Armaments has not been carried out, and that in consequence the present {259} rendered null and void, shall be laid down by the Conference itself.

"A signatory State which, after the expiration of the period fixed above, fails to comply with the plan adopted by the Conference, shall not be admitted to benefit by the application of sanctions provided in the present Protocol."

120. The sub-committee adopted a proposal to add to the third paragraph "and communicated to Governments two months previously." In view of representations made by the Japanese Delegation, this was subsequently altered to "and communicated to Governments at the earliest possible date, and at the latest three months before the Conference meets."

121. The Swedish Delegation proposed that a clause should be added to the effect that "the present Protocol in no way effects obligations arising out of the Covenant." It was agreed that a clause to this effect could be either added or inserted as a separate article. The latter alternative was eventually adopted (see article 19 of the final Protocol).

122. After some discussion, the number of ratifications required in paragraph 2 of this article was finally fixed as now provided in the Protocol (see paragraph 4 of article 21 of the final Protocol).

(N. B.—The Joint Drafting Committee of the First and Third Committees made a final revise of the whole text, with a view to checking the wording of the various articles, their logical arrangement, &c. In the course of this work they removed paragraphs 3, 5, 6 and 7 of this article and incorporated them in the "ratification" article of the final Protocol—No. 21.)

123. Article 10.—The British Delegation proposed the suppression of the words "carrying out." It was decided to consult the First Committee on this point. (The words are omitted in the final Protocol.)

124. Article 11.—In view of the new text of article 9, it was decided to omit the second paragraph of this article.

125. This concluded the work of the sub-committee, and {260} the text of the above articles of the Protocol were submitted to the Third Committee on the 22nd September.

Dr. Benes, as chairman and rapporteur of the sub-committee, made a general report on the sub-committee's work, and it was then agreed to discuss the articles seriatim.

126. On Article 4 a debate ensued on an objection raised by the Italian Delegation to the proposal that investigations should be carried out by the organisation to be set up by the International Conference. In the first place, they disliked the idea of a permanent organ of investigation—they considered that, if an investigation were necessary, this should be carried out by a special body appointed for the purpose if and when the occasion arose. In the second place, they suggested that it would be improper to anticipate, in the Protocol, any decision that the International Conference might take. The British Delegation explained that this proposal had been inserted in their draft merely as a matter of convenience: thinking that it would be necessary for the Conference to appoint some body to ensure that the decisions of the Conference were carried out, it had seemed to them that it would be only duplicating labour for any other body to be set up by the Council to carry out these special investigations. The Italian Delegation finally suggested that the text should run, "such enquiries and investigations shall be carried out with the utmost possible despatch, and the signatory States undertake to afford every facility for carrying them out." This was accepted, with the consequential amendment to the fourth paragraph, which should now begin: "If, as a result of these enquiries and investigations, any infraction," &c. The article thus adopted became article 7 of the final Protocol.

127. Articles 5 and 6 were adopted without modification, becoming articles 10 and 9 respectively of the final Protocol.

128. Article 7.—Owing to a change introduced by the First Committee in the text of article 5, in consequence of which it was no longer incumbent on the Council to make a declaration of aggression, it became necessary to alter the wording of the beginning of article 7. It was decided that this should run, "As {261} soon as the Council has called upon the signatory States to apply sanctions against the aggressor State, in accordance with article 6, the obligations," &c.

129. In paragraph 2 the words "signatory States" were substituted for "Members of the League."

130. The article as a whole came in for some criticism, mainly from the Netherlands and Scandinavian Delegations. Certain remarks made by Dr. Benes in introducing the text to the Third Committee had caused misgivings to those Delegations, who wished to be assured that the obligations in this article did not go beyond those of article 16 of the Covenant. They observed, as had members of the sub-committee, that the distinction drawn in the Covenant between economic and financial sanctions on the one hand, and military, naval and aerial sanctions on the other, had disappeared from the present text, and they sought a clear declaration that no fresh obligations were incurred in regard to the latter category, and that each Member of the League retained the right to decide its own course of action. In the course of his reply Dr. Benes said, "the real application of the sanctions will always be within the province of the Government themselves, and true co-operation will always take place by direct contract between the Governments." The Danish Delegation were not entirely satisfied, and moved to alter the second paragraph so as to make it read, "co-operate loyally and effectively in the carrying out of the obligations provided for in article 16 of the Covenant." After consultation with the rapporteur, they abandoned this amendment, and declared themselves satisfied with the addition to paragraph 2 of the words, "in the degree which its geographical position and its particular situation as regards armaments allow." As thus amended, the article was adopted, and became article 11 of the final Protocol.

131. Article 7A was adopted without amendment, becoming article 12 of the final Protocol.

132. Article 8.—The change, referred to above, in the text of article 5, rendered necessary an alteration in the wording of the second paragraph of this article, which it was agreed should {262} begin: "Furthermore, as soon as the Council has called upon the signatory States to apply sanctions, as provided," &c.

133. In the same paragraph it was decided to omit the words, "the whole or such part of," and make it read, "bring to the assistance of a particular State, which is the victim of aggression, their military, naval and air forces." With these modifications, the article was adopted, and became article 13 of the final Protocol.

134. Article 8A was adopted, and figures as article 15 in the final Protocol. It was suggested that an addition should be made to this article to the effect that "the Council shall alone be competent to declare that the application of sanctions shall cease and normal conditions be re-established." The Committee decided that this should be inserted as a separate article, and it appears in the final Protocol as article 14.

135. Articles 9 and 10 were adopted without modification, article 9 being embodied, as explained, in articles 17 and 21 of the final Protocol, and article 10 becoming article 20.

136. The text of an additional article (which became article 19 of the final Protocol) was also approved.

After the work of the First and Third Committees had been concluded, the reports of these Committees were submitted as a whole to the Assembly. The Assembly unanimously, with the assent of every Delegation represented at that time in the Assembly, approved the reports so presented them, and passed the resolutions, the text of which has already been published.[3]

We are, Sir,

Your obedient servants, ARTHUR HENDERSON. PARMOOR. GILBERT MURRAY. CECIL J. B. HURST.

The Right. Hon. J. RAMSAY MACDONALD, M. P., &c. &c. &c.



[1] Miscellaneous No. 13 (1924), Cmd. 2200.

[2] See Annex C, p. 156.

[3] See Annex D, p. 210.



{263}

ANNEX F.

PROPOSALS OF THE AMERICAN GROUP.[1]

DECLARATION OUTLAWING AGGRESSIVE WAR.

CHAPTER I.

OUTLAWRY OF AGGRESSIVE WAR.

ARTICLE 1.—The High Contracting Parties solemnly declare that aggressive war is an international crime. They severally undertake not to be guilty of its commission.

ARTICLE 2.—A State engaging in war for other than purposes of defense commits the international crime described in Article 1.

ARTICLE 3.—The Permanent Court of International Justice shall have jurisdiction, on the complaint of any signatory, to make a judgment to the effect that the international crime described in Article 1 has or has not in any given case been committed.

CHAPTER II.

ACTS OF AGGRESSION.

ARTICLE 4.—The High Contracting Parties solemnly declare that acts of aggression, even when not amounting to a state of war, and preparations for such acts of aggression, are hereafter to be deemed forbidden by international law.

{264}

ARTICLE 5.—In the absence of a state of war, measures of force by land, by sea or in the air taken by one State against another and not taken for the purpose of defense against aggression or for the protection of human life shall be deemed to be acts of aggression.

General or partial mobilisation may be deemed to be preparation for an act of aggression.

Any signatory which claims that another signatory has violated any of the terms of this Declaration shall submit its case to the Permanent Court of International Justice.

A signatory refusing to accept the jurisdiction of the Court in any such case shall be deemed an aggressor within the terms of this Declaration.

Failure to accept the jurisdiction of the Court within four days after notification of submission of a claim of violation of this Declaration shall be deemed a refusal to accept the jurisdiction.

ARTICLE 6.—The Court shall also have jurisdiction on the complaint of any signatory to make a judgment to the effect that there has or has not in any given case been committed a violation of international law within the terms of Article 4.

ARTICLE 7.—The Court shall, in any case, have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either party.

Pending the final decision, notice of the measures suggested shall forthwith be given to the parties.

CHAPTER III.

SANCTIONS.

ARTICLE 8.—In the event of any H.C.P. having been adjudged an aggressor pursuant to this Declaration, all commercial, trade, financial and property interests of the aggressor shall cease to be entitled, either in the territory of the other signatories or on {265} the high seas, to any privileges, protection, rights or immunities accorded by either international law, national law or treaty.

Any H.C.P. may in such case take such steps towards the severence of trade, financial, commercial and personal intercourse with the aggressor and its nationals as it may deem proper and the H.C.P. may also consult together in this regard.

The period during which any such economic sanction may be continued shall be fixed at any time by the Court at the request of any signatory.

In the matter of measures of force to be taken, each signatory shall consult its own interests and obligations.

ARTICLE 9.—If any H.C.P. shall be adjudged an aggressor by the Permanent Court of International Justice, such Power shall be liable for all damage to all other H.C.P. resulting from its aggression.

CHAPTER IV.

DECREES OF THE PERMANENT COURT.

ARTICLE 10.—The H.C.P. agree to accept the judgment of the Permanent Court of International Justice as to the fulfilment of violation of the contracts of this Declaration.

Any question arising under this Declaration is ipso facto within the jurisdiction of the Court.

ARTICLE 11.—If a dispute arising under this Declaration shall be submitted to the Permanent Court of International Justice, it is for the Court to decide as to its jurisdiction and also whether or not its decree has been complied with.

ARTICLE 12.—The High Contracting Parties, recognising that excessive armaments constitute a menace of war, agree to participate in the Permanent Advisory Conference on Disarmament decided upon by the Fifth Assembly of the League of Nations.

ARTICLE 13.—The present Declaration shall be ratified. The ratifications shall be deposited as soon as possible with the Secretary General of the League of Nations.

{266}

Any signatory to this Declaration desiring to withdraw therefrom may give notice thereof to the Secretary-General of the League of Nations. Such notice shall take effect one year from the date of deposit thereof and only as to the signatory so withdrawing.

Notice of each ratification and of each withdrawal shall be communicated by the Secretary-General of the League of Nations to each signatory hereto.



RESOLUTION CONCERNING THE DECLARATION OUTLAWING AGGRESSIVE WAR.

1. The Assembly unanimously declares its approval of the Declaration Outlawing Aggressive War which was prepared by the Third Committee of the Assembly and submitted to the Assembly for its approval.

2. The said Declaration shall be submitted within the shortest possible time to the Members of the League of Nations for adoption in the form of a protocol duly ratified and declaring their recognition of this Declaration. It shall be the duty of the Council to submit the Declaration to the Members.

The said protocol shall likewise remain open for signature by States not Members of the League of Nations.

3. As soon as this protocol has been ratified by the majority of the Members of the League the said Declaration shall go into force.



DISARMAMENT RESOLUTION "A."

1. The Assembly, having considered the Report of the Temporary Mixed Commission and having also considered the replies of the various Governments commenting on the proposed Treaty of Mutual Assistance, reaffirms the principles set forth in Resolution 14 of the Third Assembly,

2. Furthermore, the Assembly is of the opinion that all the {267} Nations of the world, whether or not Members of the League of Nations, should agree

a. to limit or reduce their armaments to the basis necessary for the maintenance of peace and national security.

b. to study the ways and means for future reduction of armaments either as between all Nations or as between any two of them.

3. The Assembly is further of the opinion that reciprocal agreements between two or more neighbouring countries for the establishment of demilitarised zones would facilitate the security necessary to progressive disarmament.

4. In order to facilitate the reduction and limitation of armaments, the Assembly requests the Council to call a Permanent Advisory Conference upon disarmament which shall meet periodically at intervals of not less than once every three years.

Invitations to participate in this Permanent Conference shall be sent to all Nations whether Members of the League or not.

The said Conference should from time to time consider the further codifying of the principles of international law particularly in relation to acts of aggression and preparations for such acts.

In this regard the Conference should take into account matters bearing upon the security of the Powers represented and the steps taken toward disarmament.

The recommendations of the Conference shall be submitted to the Powers for their adoption, and shall also be transmitted to the Permanent Court of International Justice.

The said Conference should publish periodical reports concerning the actual conditions of the armaments of the Powers.

The said Conference should advise the Powers concerning measures to be taken to ensure the carrying out of the principles of the present Resolution and it may prepare draft treaties for the establishment of demilitarised zones and for the further promotion of disarmament and peace.

{268}

5. The said Conference should appoint a Permanent Technical Committee.

6. The said Conference or its Permanent Technical Committee should give advice on technical questions to the Permanent Court of International Justice at the request of said Court.

7. The expenses of the said Conference and of its agencies should be borne by the Powers in the proportion of their respective budgets for defense.



DISARMAMENT RESOLUTION "B."

1. Considering that by the terms of Article 8 of the Covenant of the League of Nations

"The Members of the League undertake to interchange full and frank information as to the scale of their armaments, their military, naval and air programmes and the condition of such of their industries as are adaptable to warlike purposes,"

the Assembly, in order to facilitate the carrying out of the said engagement, requests the Council to set up a Commission charged with the duty of making the necessary official examinations and reports.

2. The said Commission shall proceed under such regulations as the Council and the Assembly shall from time to time approve.

3. Subject to such regulations the members of the Commission shall be entitled, when they deem it desirable, to proceed to any point within the territory of any Member of the League or to send sub-commissions or to authorize one or more of their members so to proceed on behalf of the Commission.

4. The Members of the League will give all necessary facilities to the said Commission in the performance of its duties.

5. All reports made by the said Commission shall be communicated to the Members of the League.



{269}

DISARMAMENT RESOLUTION "C."

The Assembly, taking account of the provisions of the Declaration Outlawing Aggressive War, is of opinion

1. Powers which have ratified the said Declaration may, subject to the following provisions, conclude, either as between two of them or as between a larger number, agreements complementary to the said Declaration, exclusively for the purpose of their mutual defense and intended solely to facilitate the carrying out of the measures prescribed in said Declaration, determining in advance the assistance which they would give to each other in the event of any act of aggression.

Such agreements may, if the H.C.P. interested so desire, be negotiated and concluded under the auspices of the Council.

2. Complementary agreements as defined in the preceding paragraph, shall, before being registered, be examined by the Council with a view to deciding whether they are in accordance with the principles of said Declaration and of the Covenant.

In particular, the Council shall consider if the cases of aggression contemplated in these agreements are of a nature to give rise to an obligation to give assistance on the part of the other H.C.P.

The Council may, if necessary, suggest changes in the texts of the agreements submitted to it.

When recognised, the agreements shall be registered in conformity with Article 16 of the Covenant. They shall be regarded as complementary to the said Declaration and shall in no way limit the general obligations of the H.C.P. nor the sanctions contemplated against an aggressor under the terms of said Declaration.

They will be open to any other H.C.P., Party to said Declaration with the consent of the Signatory States.

3. In all cases of aggression, for which provision is made in the agreement constituting a defensive group, the H.C.P. which are members of such group may undertake to put into operation {270} automatically the plan of assistance agreed upon between them; and in all other cases of aggression or menace or danger of aggression, directly aimed at them, they will consult each other before taking action, and will inform the Council of the measures which they are contemplating.

4. The Council, taking into account the reports and opinions of the Commission set up under Resolution B of this Assembly, shall at any time when requested, consider summarily whether (a) the armaments of any State are in excess of those fixed under the provisions of any agreement relating to reduction or limitation or armaments; or (b) the military or other preparations of any State are of such a nature as to cause apprehension of aggression or an eventual outbreak of hostilities.

5. If the Council shall upon such request be of the opinion that there is reasonable ground for thinking that a menace of aggression has arisen, the parties to the defensive agreements hereinbefore mentioned may put into immediate execution the plan of assistance which they have agreed upon.

6. If the Council shall, upon such request, not be of the opinion that a menace of aggression has arisen, a public report to the effect shall be made and in such case no State shall be under any obligation to put into execution any plan of assistance to which it is a party; but any Member of the League, believing itself to be threatened with a menace of aggression, notwithstanding the fact that the Council has not been of such opinion, may forthwith notify the Council to that effect, and such Member shall thereupon have full liberty of action in military or other preparations for defense, subject, however, to the limitations as to armament which are imposed by any treaty now in force.



[1] In their earlier form, as a Draft Treaty of Disarmament and Security, these proposals were circulated to the Members of the Council of the League in June, 1924. For the text, see World Peace Foundation Pamphlets, Vol. VII, No. 8. In the form here printed, the so-called "American Plan" was given out at Geneva on August 29, 1924, with the following note by General Bliss, Professor Shotwell and myself:

"It has been suggested that the proposals of the Draft Treaty of Disarmament and Security prepared by the American Group, of which we are members, might be drawn up in some form other than that of one Treaty.

"In order to facilitate the examination of this suggestion, we have prepared the four draft papers which follow. These papers are a Draft Declaration Outlawing Aggressive War (with a Draft Assembly Resolution regarding the same) and three Draft Resolutions of the Assembly regarding Disarmament.

"Aside from the necessary drafting changes required by the change of form, the text of these papers is substantially, and except in a few instances, literally the same as that of the Draft Treaty of Disarmament and Security above mentioned."



{271}

ANNEX G.

THE COVENANT

OF THE LEAGUE OF NATIONS.

INCORPORATING THE PROVISIONS OF THE

PROTOCOL OF GENEVA.[1]

[Sidenote: Two clauses added from the Preamble to the Protocol.]

Recognising the solidarity of the members of the international community, and

Asserting that a war of aggression constitutes a violation of this solidarity and an international crime,

THE HIGH CONTRACTING PARTIES,

In order to promote international co-operation and to achieve international peace and security

by the acceptance of obligations not to resort to war,

by the prescription of open, just and honourable relations between nations,

by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and

by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another,

Agree to this Covenant of the League of Nations.

Articles 1 to 11, Inclusive.

Unchanged.

Article 11a.

[Sidenote: Article 2 of the Protocol with verbal changes.]

The Members of the League agree in no case to resort to war either with one another or against a State which, if the occasion arises, accepts all the obligations of the Covenant, except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly in accordance with the provisions of the Covenant.

{272}

Article 12.

[Sidenote: Phrase agreeing not to resort to war for three months, omitted as unnecessary.]

The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to inquiry by the Council.

In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.

Article 13.

The Members of the League agree that, whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement, and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement.

Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if established, would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement.

[Sidenote: A verbal change in the third paragraph.]

For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.

The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.

Article 14.

[Sidenote: Article 14 of the Covenant, verbally changed.]

The Permanent Court of International Justice shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.

[Sidenote: Article 3 of the Protocol, with some words added.]

The Members of the League undertake to recognize as compulsory, ipso facto and without special agreement, the jurisdiction of the Permanent Court of International Justice in the cases covered by paragraph 2 of Article 36 of the Statute of the Court, but without prejudice to the right of any Member, when acceding to the special protocol provided for in the said Article and opened for signature on December 16th, 1920, to make reservations compatible with the said clause.

{273}

Accession to this special protocol, opened for signature on December 16th, 1920, must be given within a month after the coming into force hereof, and in the case of Members of the League hereafter admitted, within a month after such admission.

[Sidenote: Article 20 of the Protocol.]

Any dispute as to the interpretation of the Covenant shall be submitted to the Permanent Court of International Justice.

Article 15.

[Sidenote: The first three paragraphs of Article 15 of the Covenant, unchanged.]

If there should arise between Members of the League any dispute likely to lead to a rupture which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof.

For this purpose the parties to the dispute will communicate to the Secretary-General, as promptly as possible, statements of their case with all the relevant facts and papers, and the Council may forthwith direct the publication thereof.

The Council shall endeavour to effect a settlement of the dispute, and, if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate.

[Sidenote: Numbers 1 and 2 of Article 4 of the Protocol, very slightly changed.]

If the dispute is not thus settled, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.

If the parties cannot agree to do so, there shall, at the request of at least one of the parties, be constituted a Committee of Arbitrators. The Committee shall so far as possible be constituted by agreement between the parties.

If within the period fixed by the Council the parties have failed to agree, in whole or in part, upon the number, the names and the powers of the arbitrators and upon the procedure, the Council shall settle the points remaining in suspense. The Council shall with the utmost possible dispatch select in consultation with the parties the arbitrators and their President from among persons who by their nationality, their personal character and their experience, appear to furnish the highest guarantees of competence and impartiality.

After the claims of the parties have been formulated, the Committee of Arbitrators, on the request of any party, shall through the medium of the Council, request an advisory opinion upon any points of law in dispute from the Permanent Court of International Justice, which in such case shall meet with the utmost possible dispatch.

{274}

[Sidenote: 3 of Article 4 of the Protocol, and the fourth, fifth and sixth paragraphs of Article 15 of the Covenant]

If none of the parties asks for arbitration, the Council shall take the dispute under consideration and, either unanimously or by a majority vote, shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto.

Any Member of the League represented on the Council may make public a statement of the facts of the dispute and of its conclusions regarding the same.

If a report by the Council is unanimously agreed to by the Members thereof, other than the Representatives of any of the parties to the dispute, the Members of the League agree to comply with the recommendations of the report.

[Sidenote: 5 of Article 4 of the Protocol, with verbal changes. Eighth paragraph of Article 15 of the Covenant.]

In no case may a solution, in accordance with a unanimous recommendation of the Council accepted by one of the parties concerned, be again called in question.

If the dispute between the parties is claimed by one of them, and is found by the Council to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report and shall make no recommendation as to its settlement.

[Sidenote: Seventh paragraph of Article 15 of the Covenant, as modified by 4 of Article 4 of the Protocol.]

If the Council fails to reach a report which is unanimously agreed to by the Members thereof, other than the Representatives of any of the parties to the dispute, it shall submit the dispute to arbitration.

The Council shall itself determine the composition, the powers and the procedure of the Committee of Arbitrators and, in the choice of the arbitrators, shall bear in mind the guarantees of competence and impartiality referred to above.

[Sidenote: 6 of Article 4 of the Protocol, omitting clauses now unnecessary.]

The Members of the League undertake that they will carry out in full good faith any judicial sentence or arbitral award that may be rendered and that they will comply, as provided in paragraph ten hereof, with the solutions recommended by the Council. In the event of a Member of the League failing to carry out the above undertakings, the Council shall exert all its influence to secure compliance therewith. If the Council fails therein, it shall propose what steps should be taken to give effect thereto.

[Sidenote: Paragraphs nine and ten of Article 15 of the Covenant, and Article 6 of the Protocol.]

The Council may in any case under this Article refer the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, provided that such request be made within fourteen days after the submission of the dispute to the Council.

In any case referred to the Assembly, all the provisions of this Article and of Article 12 relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the Assembly, if concurred in by the Representatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the {275} dispute, shall have the same force as a report by the Council concurred in by all the Members thereof, other than the Representatives of any of the parties to the dispute; and provided further that in any case referred to the Assembly, the powers of the Council under paragraphs five, six, seven and fourteen hereof shall continue.

[Sidenote: 7 of Article 4 of the Protocol.]

The provisions of this article do not apply to the settlement of disputes which arise as the result of measures of war taken by one or more Members of the League in agreement with the Council or the Assembly.

Article 15a.

[Sidenote: From Article 5 of the Protocol.]

If in the course of an arbitration, such as is contemplated in Article 15, one of the parties claims that the dispute, or part thereof, arises out of a matter which by international law is solely within the domestic jurisdiction of that party, the arbitrators shall on this point take the advice of the Permanent Court of International Justice through the medium of the Council. The opinion of the Court shall be binding upon the arbitrators, who, if the opinion is affirmative, shall confine themselves to so declaring in their award.

If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11.

Article 15b.

[Sidenote: Articles 8 and 7 of the Protocol, slightly changed.]

The Members of the League undertake to abstain from any act which might constitute a threat of aggression against another State.

If a Member of the League is of opinion that another State is making preparations for war, it shall have the right to bring the matter to the notice of the Council.

In the event of a dispute arising between two or more Members of the League, they agree that they will not, either before the dispute is submitted to proceedings for pacific settlement or during such proceedings, make any increase of their armaments or effectives which might modify the position established by any agreement in force, nor will they take any measure of military, naval, air, industrial or economic mobilisation, nor, in general, any action of a nature likely to extend the dispute or render it more acute.

It shall be the duty of the Council, in accordance with the provisions of Article 11, to take under consideration any complaint as to infraction of the above undertakings which is made to it by one or more of the parties to the dispute. Should the Council be of opinion that the complaint requires investigation, it shall, if it deems it expedient, arrange for inquiries and investigations in one or more of the countries concerned. Such inquiries and investigations shall be carried out with the utmost possible dispatch and the Members of the League undertake to afford every facility for carrying them out.

{276}

The sole object of measures taken by the Council as above provided is to facilitate the pacific settlement of disputes and they shall in no way prejudge the actual settlement.

If the result of such inquiries and investigations is to establish an infraction of the above undertakings, it shall be the duty of the Council to summon the Member or Members of the League guilty of the infraction to put an end thereto. Should any Member of the League in question fail to comply with such summons, the Council shall declare it to be guilty of a violation of the Covenant, and shall recommend measures to be taken with a view to end as soon as possible a situation of a nature to threaten the peace of the world.

For the purposes of this Article decisions of the Council may be taken by a two-thirds majority.

Article 15c.

[Sidenote: Article 9 of the Protocol, slightly changed.]

The existence of demilitarised zones being calculated to prevent aggression and to facilitate a definite finding of the nature provided for in Article 15d, the establishment of such zones between States mutually consenting thereto is to recommend as a means of preserving peace.

The demilitarised zones already existing under the terms of certain treaties or conventions, or which may be established in future between States mutually consenting thereto, may at the request and at the expense of one or more of the conterminous States, be placed under a temporary or permanent system of supervision to be organised by the Council.