[Transcriber's note: Extensive research found no evidence that the U.S. copyright on this publication was renewed.]



The Geneva Protocol

by

DAVID HUNTER MILLER



New York

THE MACMILLAN COMPANY

1925

All Rights Reserved



PRINTED IN THE UNITED STATES OF AMERICA.

COPYRIGHT, 1925,

By THE MACMILLAN COMPANY.

Set up and printed. Published March, 1925.



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FOREWORD

The sources and history of the Protocol of Geneva of course go far back of its date, October 2, 1924. I have not attempted to trace them except in so far as they have a direct bearing on my legal study of the Document itself.

The form of the Protocol of Geneva is certainly not yet finally written; consideration of its legal aspects is perhaps therefore all the more desirable at this time.

The Protocol of Geneva is one chapter in the history of the League of Nations, the history of international relations of our time.

D. H. M.

New York City, December, 1924.



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CONTENTS.

CHAPTER

I. THE PROTOCOL OF GENEVA .................................... 1 II. POINTS OF APPROACH ........................................ 3 III. THE COMING INTO FORCE OF THE PROTOCOL ..................... 5 IV. PARTIES TO THE PROTOCOL ................................... 10 V. RELATIONS INTER SE OF THE SIGNATORIES TO THE PROTOCOL ..... 13 VI. INTERNATIONAL DISPUTES .................................... 18 VII. THE STATUS QUO ............................................ 28 VIII. DOMESTIC QUESTIONS ........................................ 46 IX. COVENANTS AGAINST WAR ..................................... 50 X. AGGRESSION ................................................ 54 XI. THE JAPANESE AMENDMENT .................................... 64 XII. SANCTIONS ................................................. 72 XIII. SEPARATE DEFENSIVE AGREEMENTS ............................. 82 XIV. THE PROTOCOL AND ARTICLE TEN OF THE COVENANT .............. 84 XV. THE PROTOCOL AS TO NON-SIGNATORIES ........................ 86 XVI. THE DISARMAMENT CONFERENCE ................................ 87 XVII. DEMILITARIZED ZONES ....................................... 101 XVIII. SECURITY AND THE PROTOCOL ................................. 103 XIX. INTERPRETATION OF THE PROTOCOL ............................ 104 XX. THE "AMENDED" COVENANT .................................... 106

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ANNEXES.

A. THE COVENANT OF THE LEAGUE OF NATIONS .......................... 117

B. THE PROTOCOL OF GENEVA ......................................... 132

C. THE REPORT TO THE FIFTH ASSEMBLY ............................... 156

D. RESOLUTIONS .................................................... 210

E. REPORT OF THE BRITISH DELEGATES ................................ 217

F. THE AMERICAN PLAN .............................................. 263

G. THE "AMENDED" COVENANT ......................................... 271



{1}

The Geneva Protocol

CHAPTER I.

THE PROTOCOL OF GENEVA.

The Covenant of the League of Nations[1] lays down the principle that national armaments should be reduced to the lowest point consistent with national safety and the enforcement by common action of international obligations.

Thus, in the Covenant, the problem of disarmament[2] and the problem of security are viewed as correlative problems. Their study has gone on in the League of Nations since its organization. During this same period there has been widespread and increasing public interest in the matter.

The theory of the Treaties of Peace was that the disarmament of Germany and her allies was preliminary to a general reduction of armaments the world over.[3] Except as the result of the Washington Conference, and by that to only a very limited extent, there has been almost no reduction or limitation of armaments by {2} international agreement since the war.[4] Such lessening of armaments as has taken place has been by voluntary national action.

The study of these questions during the last few years has brought about a much clearer understanding of them, both in the minds of statesmen and generally; and the various proposals that have been made have been the subject of detailed and elaborate criticism from all sides.

The latest of these proposals is the paper which is called The Protocol of Geneva.[5] The Protocol of Geneva is, however, much more than a proposal. It has the active support of a considerable number of Governments.[6] It was unanimously recommended for acceptance by the Fifth Assembly of the League of Nations. It deserves the serious attention of all thoughtful minds.

The object of the Protocol of Geneva cannot be better stated than in the words of its authors:[7]

"to facilitate the reduction and limitation of armaments provided for in Article 8 of the Covenant of the League of Nations by guaranteeing the security of States through the development of methods for the pacific settlement of all international disputes and the effective condemnation of aggressive war."

While this Protocol is, and doubtless always will be, called "The Protocol of Geneva," its official name is "Protocol for the Pacific Settlement of International Disputes."[8]



[1] Article 8. The text of the Covenant is Annex A, p. 117.

[2] Those who criticize the use of the word "disarmament" as meaning a reduction or limitation of armaments, should consult the dictionaries. The Standard Dictionary gives the following definition:

"The act of disarming; especially, the reduction of a military or naval establishment to a peace footing."

The Century Dictionary gives this:

"The act of disarming; the reduction of military and naval forces from a war to a peace footing; as 'a general disarmament is much to be desired.'"

The Century Dictionary also gives the following quotation as an instance from Lowe's Life of Bismarck:

"He (Napoleon) in a fit of irresolution broached in Berlin the question of mutual disarmament."

[3] See, for example, the preamble to the Military, Naval and Air Clauses of the Treaty of Versailles: "In order to render possible the initiation of a general limitation of the armaments of all nations, Germany undertakes strictly to observe the military, naval and air clauses which follow."

[4] The Treaty of Lausanne (A. J. I. L., Vol. XVIII, Supp., pp. 58, 64) with its provisions for demilitarized zones, etc., and the Convention for the Limitation of Armaments in Central America of February 7, 1923 (A. J. I. L., Vol. XVII, Supp. 1923, pp. 114, et seq.), are to be noted in this regard.

[5] For the text in French and English, see Annex B, p. 132.

[6] Sixteen States have signed the Protocol and it has been ratified by Czechoslovakia.

[7] See Report to the Fifth Assembly, Annex C, p. 156, at p. 164. This Report of MM. Benes and Politis is a notable document, worthy of the ability and learning of the two Rapporteurs.

[8] It is herein generally called "the Protocol."



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CHAPTER II.

POINTS OF APPROACH.

There are various possible points of approach to the consideration of the Protocol of Geneva. In view of the importance of the document, doubtless all such methods are useful. Indeed, in the discussion of such a paper, it is perhaps hardly possible exclusively to adopt only one angle of view, such as the historical, the political, etc. My own consideration of the paper, however, is to be primarily from the legal viewpoint; without attempting wholly to avoid other points of view I shall seek not to stress them.

The Protocol is an elaborate and technical international document; and even in attempting to consider it primarily from the legal viewpoint there are various methods or arrangements of such a discussion. The general starting point which seems to me to be most desirable is that of the legal effect of the Protocol upon the international relations of the States which become parties to it, both as among themselves and as to States not parties.

It will of course in this connection be necessary to consider the obligations fixed by the Protocol in the event of its breach, as well as those which are imposed by its acceptance and performance. These latter may, however, very properly be first considered.

Accordingly, the first discussion will relate to the obligations of the States which become parties to the Protocol as among themselves, particularly in connection with the due performance of these obligations by those parties.

Before coming to this first discussion, however, there are certain general observations which may be made.

In the first place the paper is called a Protocol. The precise reason for the use of this term does not appear; but it is probably due to the fact that the Protocol of Geneva is in a sense supplementary to other international agreements such as the Covenant of the League of Nations and the Statute of the Permanent Court of International Justice; and perhaps because the {4} Protocol is intended to be preliminary to amendments to the Covenant (Article I, paragraph 1, of the Protocol).

Allusion is made to this provisional character of the Protocol of Geneva in the Report[1] made by the First and Third Committees to the Fifth Assembly of the League of Nations, where it is said:

"When the Covenant has been amended in this way some parts of the Protocol will lose their value as between the said States: some of them will have enriched the Covenant, while others, being temporary in character, will have lost their object.

The whole Protocol will remain applicable to relations between signatory States which are Members of the League of Nations and signatory States outside the League,[2] or between States coming within the latter category.

It should be added that, as the League realizes its aim of universality, the amended Covenant will take the place, as regards all States, of the separate rgime of the Protocol."

Of course, as is pointed out in some detail by Satow (Diplomatic Practice, Second Edition, Vol. II, pages 270 et seq.), the word "protocol" is used with quite a number of different meanings. In the present case the meaning of the word is nothing more nor less than treaty or convention.

It is naturally impossible to consider or discuss the effect of the Protocol of Geneva without constant reference to the text of the Covenant, to which the Protocol refers throughout. It is also necessary to consider to some extent the Statute of the Permanent Court of International Justice and even certain of the provisions of the Treaties of Peace, other than the Covenant.

Moreover, as any consideration of the legal situation created by the Protocol must assume that the document has come into force, it will be interesting to sum up the provisions of the Protocol in that regard, particularly as they are somewhat unusual.



[1] The English text of this Report is Annex C, p. 156.

[2] From the theory that the Protocol may properly be signed by non-Members of the League, I dissent. See infra, p. 10., et seq.



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CHAPTER III.

THE COMING INTO FORCE OF THE PROTOCOL.

The Protocol is dated at Geneva on October 2nd, 1924. It is drawn up in both French and English and the text of both languages is authentic. It is written in a single original. It was recommended to the Members of the League for acceptance by a resolution[1] unanimously passed in the Assembly by the affirmative vote of 48 Members of the League, and it has been signed by the representatives of various countries.

This recommendation by the Assembly, however, and these signatures, do not, as to any signatories, bring into force the Protocol, which, by its terms, must be ratified, the ratifications to be deposited at the Secretariat of the League at Geneva.

The first preliminary to the coming into force of the Protocol is its formal ratification by at least 13 Members of the League; and these ratifications must include those of at least three of the four Great Powers which are Members—Great Britain, France, Italy and Japan. But even these ratifications do not bring the Protocol into force. The absence of such ratifications by May 1st, 1925, may result in the postponement of the Disarmament Conference from the date provisionally fixed, June 15th, 1925. But this is a matter which I shall discuss later.[2]

If and when the ratifications above mentioned are deposited, a procs-verbal to that effect is drawn up; but this procs-verbal does not, as is usual when a procs-verbal of the deposit of ratifications is drafted, bring into force the Protocol. The date of the coming into force of the Protocol is stated as follows (Article 21):

"as soon as the plan for the reduction of armaments has been adopted by the Conference provided for in Article 17."

In other words, the Protocol will not bind any State that {6} ratifies it unless and until the Conference for the Reduction of Armaments adopts a Plan for such reduction. If such Conference is held and if such Plan is adopted, the Protocol will, on the date of the adoption of the Plan, come into force as among the States which have then ratified it. Such is the effect of the provisions of Article 21 of the Protocol.

Other States, which have not at the date mentioned ratified the Protocol, may thereafter accede to it, as is provided by the third paragraph of Article 3, and of course the obligations of these States will commence with the date of such accession.

Furthermore, provision is made[3] by which the Protocol, even after coming into force, may become, as it says, "null and void." It might well be argued that the becoming "null and void" of the Protocol related back to the date when it came into force.

However this may be, it is important to notice here the provisions in this regard. The Conference for the Reduction of Armaments has, under the hypothesis, adopted a Plan for such reduction. That Conference has also to fix the time within which that Plan is to be carried out. The Council of the League is then to consider whether the Plan for the Reduction of Armaments adopted by the Conference has or has not been carried out within that fixed period. Presumably such consideration by the Council of the League would be had immediately after the expiration of the period fixed by the Conference; the Council, if it then considers that the Plan for the Reduction of Armaments has not been carried out, being limited, however, in such consideration to "the grounds" (French text—"conditions") laid down by the Conference in that respect, then declares that the Plan has not been carried out and the Protocol becomes "null and void."

Accordingly, the Protocol can come into force as a legal obligation only on the date of the adoption by the Conference of the Plan for the Reduction of Armaments; and from that date till the date when the Council of the League of Nations declares that the Plan has or has not been carried out, it may be said {7} that the Protocol is only provisionally in force; it is subject to avoidance.

The question here arises as to what is meant by the language of the Protocol when it speaks of the Plan for the Reduction of Armaments being "carried out," or, in the French text, "execute." This is a question rather difficult of answer. Certainly the expression can hardly refer to the actual physical carrying out of such a Plan; for that might require a very long period. It seems to me that the expression envisages the formalities requisite for such a Plan. The Conference for the Reduction of Armaments which is to draw up a Plan for such reduction is to draw up, in other words, a Treaty or Treaties between the parties to bring about such reduction. Such Treaty, or such Treaties, will of course be voluntary agreements and will of course require ratification subsequent to the holding of the Conference itself. Accordingly, it is my view that the "carrying out" of the Plan for the Reduction of Armaments adopted by the Conference means in the Protocol the ratification of such Plan, that is to say, the transformation of the Plan into a binding agreement. Of course, the precise terms as to ratification, the number of ratifications required, the time of the deposit of ratifications and all such other formalities are for the Conference to decide; the reference here, however, is to those provisions as they may be drafted.

Accordingly, the "grounds" to be laid down by the Conference for the Reduction of Armaments, on which it may be declared by the Council that the Plan for the Reduction of Armaments has not been carried out, will mean, I take it, the laying down of some requirement that the Plan for the Reduction of Armaments be formally ratified within a time stated by a certain number of States, including certain named States; in default whereof, the Council may and will declare the Plan for the Reduction of Armaments not to have been carried out.

It is to be observed that the Protocol in the last paragraph of Article 21 speaks of the possibility of a Signatory failing to "comply" with the reduction of armaments Plan "after the expiration of the period fixed by the Conference."

{8}

This refers, I think, to a failure by a particular Signatory to ratify the Plan for the Reduction of Armaments, the effect being, so far as Article 21 is concerned, that such Signatory would be bound by the terms of the Protocol but could not benefit by them.

The language of this last paragraph of Article 21 is, however, broad enough to include the case of a State which had ratified the Treaty containing the Plan for the Reduction of Armaments and had then failed to carry out its agreement regarding such reduction.

It will thus be seen that the Protocol of Geneva is wholly dependent upon the success of the Conference for the Reduction of Armaments; and the success of that Conference depends wholly upon the voluntary agreement then made. There is nothing in the Protocol which requires the States represented at the Conference to agree to any particular plan for the reduction of armaments; the assent which they may give to such plan must be voluntary.

The question of the proceedings of the Disarmament Conference will be discussed hereafter.[4]

However, there is one point that may be mentioned here. The Plan for the Reduction of Armaments drawn up by the Conference or, in other words, the Treaty or Treaties drawn up by that Conference, will not be perpetual in their operation. No plan for disarmament, no treaty regarding reduction of armaments could possibly be perpetual in its detailed provisions. Not only does this follow from the nature of such an agreement, but it is explicitly laid down in Article 8 of the Covenant that any such Plan is to be subject to reconsideration and revision at least every ten years. Accordingly, the Treaty or Treaties for the Reduction of Armaments to be drawn up by the Conference will be in this sense temporary, that they will have a fixed limit of time for their operation, precisely as the Treaty Limiting Naval Armament drawn up at the Washington Conference may be terminated in 1936.[5]

{9}

There is no provision made in the Protocol of Geneva for the withdrawal of any State from its obligations, assuming that those obligations come finally into force. On its face the Protocol is therefore perpetual; but it is not really so. The obligations of the Protocol are so intertwined with the obligations of the Covenant that there is no doubt in my mind that the withdrawal from the League by a Member thereof (when bound by the Protocol) would release that State from the obligations of the Protocol as well as from the obligations of the Covenant.

The obligations of the Covenant are terminable by any Member of the League, as to itself, on two years notice. The obligations of the Protocol go much farther than the obligations of the Covenant. The obligations of the Protocol are, by its terms, later to be merged in the Covenant itself, without in any way impairing the withdrawal clause of the latter document.

So clearly it is not to be supposed that the obligations of the Protocol of Geneva, as to a Member of the League, are eternal. If the lesser obligations of the Covenant end as to a particular Member of the League upon withdrawal, surely the greater obligations of the Protocol, as to that League Member, end also.

The foregoing shows the fallacy, as a matter of logic, of the idea that a non-Member of the League may be bound by the Protocol and yet not be a party to the Covenant; for it would mean that a Signatory might be forever bound to a subsidiary instrument (the Protocol) although the primary instrument (the Covenant) was terminable; but I discuss this more at length later.[6]

Furthermore, it should be repeated that the Protocol is intended to be only a temporary document in the sense that, if it comes finally into force, it is contemplated that the Covenant will be amended substantially in accordance with the provisions of the Protocol.



[1] Annex D, p. 210 at p. 211, et seq.

[2] p. 97, et seq. It is settled that that Conference will be postponed.

[3] Article 21.

[4] Infra, p. 97, et seq.

[5] Article XXIII. See Conference on the Limitation of Armament, Government Printing Office, 1922, p. 1603.

[6] p. 10, et seq.



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CHAPTER IV.

PARTIES TO THE PROTOCOL.

The theory of the framers of the Protocol of Geneva is that it may be signed and ratified by non-Members of the League of Nations as well as by Members of the League.

Various words of the Protocol (e. g., Article 12) indicate this, the Report to the Assembly so states,[1] and the Resolution[2] of the Assembly recommending the Protocol for acceptance by the Members of the League of Nations specifically says that the Protocol shall be "open for signature by all other States" as well as by Members of the League.

Now of course all this is conclusive as to the technical question as to whether a non-Member of the League of Nations may in fact sign the Protocol. Such a State may legally sign, because the other Parties to the Protocol invite such signature. And if any such State should sign, and ratify, it becomes a Party to the Protocol, regardless of logic.

Nevertheless I submit that the whole idea of the possibility of Signatories to the Protocol who are non-Members of the League, is fundamentally contrary to the whole principle, spirit and terms of the Protocol itself.

In the first place, the Protocol is intended as a development of the Covenant; the Protocol is meant to be a temporary paper; its provisions are to be merged in the Covenant itself by amendment of that Document. How then can a State become a party to this temporary and provisional paper if it is not a party to the permanent and definitive document?

If we examine the detailed provisions of the Protocol, the logical conclusion is equally certain. Surely a non-Member of the League cannot really "make every effort" to secure "introduction into the Covenant of amendments" (Article 1). Is this a matter for non-Members of the League?

{11}

Article 3 of the Protocol contemplates that the Signatories thereto shall accede to the special protocol regarding the second paragraph of Article 36 of the Statute of the Permanent Court. But if we turn to the provisions regarding the Permanent Court we find that such States as Russia and Mexico and Egypt are not entitled to accede to that special protocol at all, before entering the League.[3] Accordingly, if any one of these three States, non-Members of the League, should sign and ratify the Protocol of Geneva, it could not legally carry out the engagements of Article 3 thereof.

All the provisions of Articles 4 to 6 inclusive of the Protocol of Geneva relate to disputes between the Signatories and contemplate the possible submission of any such dispute to the Council or Assembly of the League of Nations. But such submission can take place only under the provisions of the Covenant; and under Article 17 of the Covenant a non-Member of the League may not come within the provisions of the Covenant except upon invitation by the Council and upon terms stated.

Without going into further detail, I repeat that the obligations contemplated by the Protocol are, in theory, no more than interpretations, or future elaborations, of the obligations of the Covenant. It seems to me logically impossible to suppose that such interpretations or amplifications may be made applicable to States which are free from the obligations in their primary form.

If this matter is looked at realistically and concretely we find that there is hardly any possibility of the Protocol of Geneva being signed by any State which is a non-Member of the League. The United States and Russia will certainly not sign; the admission of Germany and Turkey to the League is contemplated. The only other States[4] of any international consequence outside the {12} League are Mexico and Egypt; and the likelihood of either of these two States becoming a party to the Protocol of Geneva is too remote for serious consideration.

Accordingly, in the subsequent discussion, I shall assume that, whatever may be the legal possibilities, there is no real possibility of any State which is not a Member of the League of Nations becoming a party to the Protocol of Geneva.



[1] Annex C, p. 156 at p. 167.

[2] Annex D, p. 210 at p. 212.

[3] Under the Resolution of the Council of May 17, 1922, any State may accept the jurisdiction of the Permanent Court by filing a declaration to that effect; but this is not the same thing as acceding to the Protocol of December 16, 1920.

[4] See Membership in the League of Nations, by Manley O. Hudson, A. J. I. L., July, 1924.



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CHAPTER V.

RELATIONS INTER SE OF THE SIGNATORIES TO THE PROTOCOL.

It is here assumed that only Members of the League of Nations may become parties to the Protocol of Geneva[1]; the Protocol is a development of the Covenant and it would, in any view, be logically impossible for any State, not a Member of the League, to become a Signatory to the Protocol; on the other hand, Members of the League are, of course, not obligated to sign or to ratify the Protocol of Geneva.

Accordingly, if the Protocol shall come into force, the Powers of the world, from the point of view of the Protocol, will, at least theoretically, be divided into three classes:

1. Members of the League of Nations who are parties to the Protocol.

2. Members of the League of Nations who are not parties to the Protocol.

3. Non-Members of the League of Nations who are not parties to the Protocol.

From this it follows, again looking at the matter from the point of view of the Protocol of Geneva, that the international relations of the various countries of the world would fall into the following six classes:

1. Relations inter se of the Signatories to the Protocol.

2. Relations inter se of the Members of the League not Signatories to the Protocol.

3. Relations inter se of non-Members of the League.

4. Relations of the Signatories to the Protocol with the Members of the League not Signatories thereto.

5. Relations of Members of the League not Signatories to the Protocol with States non-Members of the League.

6. Relations of the Members of the League Signatories to the Protocol with States non-Members of the League.

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It is proposed in this discussion first to consider the first of the above six classes, namely, the relations of the Signatories to the Protocol, inter se; and this discussion will proceed primarily on the assumption that the obligations of the Protocol are carried out.

In numerous places the Protocol speaks of the parties thereto as "the signatory States," e. g., Articles 1, 2, 3, 8, 11, etc. It is curious this is so in view of the meticulous insistence by the British Dominions at the Peace Conference, on the use, throughout the text of the Covenant generally, of the expression "Members of the League" instead of "States Members of the League."[2]

Certainly it is contemplated that ratification of the Protocol may be made on behalf of the British Dominions. Accordingly, I think that the use in the Protocol of the expression "signatory States" is probably an inadvertence, as in no proper international sense of the word are the British Dominions States, despite the fact that they have an international status under the League of Nations and even otherwise.[3]

The first point to be noticed is that under Article 2 of the Protocol there is a very general and a very sweeping obligation on the part of the Signatories not to resort to war. This is a point of the utmost importance. The obligation goes very much farther than anything in the Covenant; the language of this obligation will be examined in detail hereafter.

Before coming to that, however, it is well to look at the provisions of the Protocol regarding the settlement of international disputes. War is one method for the settlement of such disputes, and, in order to make effective the obligation of the Signatories not to resort to war, substitute methods of settlement are provided.

It is very natural and proper that this should be done. A mere obligation not to resort to war, without more, would almost imply that disputes between the parties to the obligation should {15} find some other method of settlement. For if some other method could not be found, feelings due to the continuance of the dispute might well arouse such passions in one country or another as to sweep away the obligation for peace. The two questions of the ending of war and the settlement of disputes between States are not only logically but realistically very closely related.

Disputes between States are often regarded as comprising those that relate to international questions and those that relate to domestic questions, the former being divided into justiciable and non-justiciable disputes.

I prefer, however, for this discussion, to classify possible international disputes in three kinds, namely:

1. Disputes as to international questions.

2. Disputes as to domestic questions.

3. Disputes as to status quo.

I am aware of the fact that such classification as the foregoing is overlapping. Disputes as to the status quo will to some extent fall within the two classes first mentioned; they may relate therefore to questions which are international or which are domestic in their nature. However, I think the classification is justified, at least for reasons of convenience, and also, in my opinion, for reasons which go very much deeper.

Let me illustrate this by reference to questions arising from frontiers. The existence and the location of a frontier are essentially questions of international import. The location of a frontier may, in a given case, not only be an international question in the sense that it should be settled internationally, but also in the sense that it is justiciable, according to the usual idea of justiciable questions. This would be so in a case where the location of the frontier depended wholly upon the interpretation of a treaty between the two neighboring States.

But it is quite possible to imagine an international question regarding a frontier which is not in any way justiciable; such, {16} for example, was the question as to where the frontier between Poland and Russia should be drawn after the World War.[4] That some frontier had to be drawn was obvious; but there was no possible legal basis for determining where it should be drawn. The question was one of judgment, to be settled by agreement between the parties, if possible; or otherwise, if it was to be peacefully settled, by reference to some sort of tribunal which would decide according to principles[5] of equity, impossible to express in any precise legal formula. In other words, the question was an international political one.

Again, suppose that the frontier between the two States has been settled by agreement and that there is no doubt whatever where it is. One of the two States desires to have that frontier changed; in other words, desires that there shall be a cession of territory. Here is a question of the status quo. In a sense it may be called international, because it relates to an international frontier; but it not only falls wholly outside any idea of justiciable questions in the international sense, but also outside any idea of being a political question which any tribunal whatever could decide on any basis. In other words, it is within that class of cases of an international nature in regard to which two States may, if they choose, negotiate, but in regard to which either one of them may at its pleasure refuse even to consider negotiations.

In any condition of international affairs which it is possible to visualize under the present State system, this must continue to be so. The State system presupposes necessarily the existence of States. One of the inherent conditions of the existence of a State is its right to the possession of its own undisputed territory as against any other State,[6] which does not mean, I mention in passing, as against a revolutionary movement within the State; that is another story. The putting in question of this undisputed {17} right of one State to hold its own territory as against another State would mean the putting in question of the existing State order as a whole.

Further, while I have included domestic questions as a separate class of questions in the above list, I think that logically many of them fall within the thought of questions which concern the status quo. I do not dispute that these domestic questions may at times have an international aspect; but they are questions which each State has an absolute right under law to regulate according to its own pleasure, and it is for this reason that they fall within the class of cases which are, in theory, not to be questioned internationally. Of course a State may, if it chooses, negotiate regarding them, just as it may, if it chooses, negotiate about the cession of part of its territory. But it may also, if it chooses, so to speak end the negotiations by refusing to commence them at all.

However, it is proper, none the less, to consider these domestic questions as a separate group, for the reason that there is a possibility of development toward their international consideration within the present State system. I shall pursue that thought further a little later.



[1] Those who framed the Protocol have a different opinion. See the discussion, supra, p. 10, et seq.

[2] cf. the expression in Article 34 of the Court Statute "States or Members of the League of Nations."

[3] The exact position of the British Dominions within the League is not yet wholly settled. See the recent British and Irish notes regarding the Irish Treaty, London Times, December 16 and 24, 1924.

[4] See Treaty of Versailles, Article 87, third paragraph.

[5] Such as, perhaps, the idea of self determination, the economic situation of the inhabitants, etc.

[6] See the Declaration of the Rights and Duties of Nations adopted by the American Institute of International Law, specially Paragraph IV, A. J. I. L., Vol. X, pp. 212, 213.



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CHAPTER VI.

INTERNATIONAL DISPUTES.

So far as concerns disputes of an international nature, the Protocol, taken in connection with the Covenant, provides for a final and binding settlement of such disputes between Signatories to the Protocol in every case whatsoever.

In order to determine the precise effect of the Protocol in this regard, it is necessary first to examine the provisions of the Covenant.

The provisions of the Covenant which particularly cover this matter are those of Articles 12, 13 and 15. Let us therefore consider the text of these Articles,[1] looking in the first place at the text of Articles 12 and 13 and the first paragraph of Article 15, which follow:

ARTICLE 12. "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 enquiry by the Council and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report of 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 {19} 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.

"For the consideration of any such dispute, the Court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, 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 decision or award 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 15 (first paragraph). "If there should arise between the 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."

Looking at these provisions in their entirety, it will be seen that the engagements taken by the Members of the League relate to "any dispute likely to lead to a rupture." This is the language of both Articles 12 and 15. We may say that this means any dispute whatever, any serious dispute from the point of view of international peace. We may lay aside trifling disputes which cannot lead to serious differences between States, whether or not they drag on through years of diplomatic negotiation. Accordingly, we may say that the Covenant in these provisions covers any international dispute whatever as to international questions in the sense above mentioned.

Further examining the provisions above quoted, we see that {20} the Members of the League agree in every such possible case to do one of three things: they agree to submit all disputes either (a) to arbitration or (b) to judicial settlement or (c) to the Council. They do not agree to submit any particular case or any particular class of cases to arbitration; they do not agree to submit any particular case or any particular class of cases to judicial settlement; but they do specifically agree that all cases that are not submitted to the one or to the other, go to the Council. The effect of such submission to the Council will be discussed hereafter; at the moment it is only necessary to point out that under these provisions the submission to the Council is obligatory. That submission must, under Article 15, take place, in the absence of submission to arbitration or to the Court. But the submission to arbitrators or to the Court is voluntary.

The first change made in this scheme of the Covenant is that Parties to the Protocol agree to accept the so-called "compulsory" jurisdiction of the Permanent Court of International Justice in the cases mentioned in paragraph 2 of Article 36 of the Statute of the Court. Thus, in such cases the dispute between the Parties would go, as a matter of right, at the demand of either one of them, to the Court, where it would be finally determined. To that extent the jurisdiction of the Council is lessened.

Under the Protocol, this acceptance of the so-called compulsory jurisdiction of the Permanent Court of International Justice is to take place by the signatory States within a month after the coming into force of the Protocol, which, as we have seen, would mean within a month after the adoption by the Conference on Reduction of Armaments of the plan for such reduction.

The Parties to the Protocol thus agree to accept this so-called compulsory jurisdiction of the Permanent Court; but it is provided that they may do so with appropriate reservations.

Accordingly, it is desirable to consider summarily just what this so-called compulsory jurisdiction of the Permanent Court of International Justice is.

All that the word "compulsory" in this connection means is "agreed to in advance." The general provisions of the Court {21} Statute[2] describe the jurisdiction of the Court as extending to any case which the Parties, either after it has arisen or by "treaties and conventions in force,"[3] choose to submit. The so-called optional clause relating to the so-called compulsory jurisdiction in effect provides that as to certain defined classes of cases the parties agree, now, in advance of any dispute, that disputes of those particular characters will be submitted to the Court.

The definition of these classes of disputes is found in Article 36 of the Statute of the Court, and in this regard follows generally in its language the provisions of the second paragraph of Article 13 of the Covenant, which declares that these particular classes of disputes are "among those which are generally suitable for submission to arbitration or judicial settlement."

By the so-called optional clause relating to the Court Statute, it is these classes of disputes as to any or all of which the jurisdiction of the Court may be accepted as "compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation."

The classes of "legal disputes" mentioned in Article 36 of the Court Statute are as follows:

"legal disputes concerning:

(a) The interpretation of a treaty;

(b) Any question of international law;

(c) The existence of any fact which, if established, would constitute a breach of an international obligation;

(d) The nature or extent of the reparation to be made for the breach of an international obligation."

In regard to these definitions of classes of disputes, it is necessary to make some general observations. No matter what definition may be made in advance as to the classes of disputes which are to be submitted to the Court, a difference of opinion {22} may exist in any given case as to whether the particular dispute which has arisen is or is not within one of the defined classes.

It follows that the mere definition of classes of disputes which, by agreement in advance, are to be submitted to a particular tribunal, is not in itself sufficient; any such definition must be accompanied by a provision for a case when one of the parties to a dispute claims that the particular dispute is within the defined class and the other party to the dispute does not admit that the dispute is within the defined class; some method must be provided for determining that preliminary question of jurisdiction.

Let me put this concretely: let me suppose that two Members of the League have agreed to the optional clause and that a dispute arises between them. One party to the dispute says that the question involved concerns the interpretation of a treaty and accordingly submits the question to the Permanent Court of International Justice in accordance with the procedure under the Statute of that Court. The other party to the dispute says that the dispute does not in any way concern the interpretation of the treaty and submits the matter to the Council of the League under Article 15 of the Covenant.

Clearly there would be here for decision a preliminary point of jurisdiction and, in so far as the optional clause is concerned, the matter is covered by the Statute of the Court in the final paragraph of Article 36, reading as follows:

"In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."

In other words, by the Court Statute, it is for the Court to say whether or not it has jurisdiction in any such case; so that in the particular case above supposed, where one party was seeking to go to the Court and the other party was seeking to go to the Council, it would be for the Court in the first instance to decide as to the jurisdiction. If the Court decided that it had jurisdiction, the dispute would come on for decision by the {23} Court; if the Court decided that it had not jurisdiction, consideration of the dispute would come on before the Council.

The provision in the last paragraph of Article 36 of the Court Statute is a wise and necessary one. It avoids conflicts of jurisdiction and it permits a preliminary and easily realizable method of determining the question of jurisdiction.

It is unnecessary to consider in further detail the described classes of legal disputes mentioned in Article 36 of the Court Statute. Any party to the Protocol may make reservations in acceding to this optional clause and, as the Report of the First and Third Committees to the Assembly points out,[4] these reservations may be of a very extensive character; but the fact that the Signatories to the Protocol agree to accede, even to some extent, to this so-called compulsory jurisdiction of the Permanent Court is of great importance.

However, the most important change which the Protocol makes in regard to the settlement of international disputes concerns the functions of the Council in the case of a dispute submitted to it.

The only respect in which the functions of the Council in such a case under the Protocol are precisely the same as the functions of the Council under the Covenant is that the Council must begin along the lines of mediation and conciliation.[5]

This, we may observe, comes directly from the third paragraph of Article 15 of the Covenant, which provides that "the Council shall endeavour to effect a settlement of the dispute." Such language relates to the mediatory and conciliatory functions of friendly governments. The Council is composed of representatives of governments, of governments friendly to the parties to the dispute, because the governments which are Members {24} of the Council as well as the governments which are parties to the dispute have joined in a Covenant of Peace.

Accordingly, the first duty of the Council, in the event of any submission of a dispute, is to mediate and conciliate. These are very valuable functions. They permit of delay. The governments which compose the Council may prolong the consideration of the point at issue.[6] The parties to the dispute have come to the Council for a settlement; and the Council may deliberate during a reasonable period so as to permit passions to cool and reason to resume her sway.

Now, as I remarked, these mediatory functions of the Council remain precisely the same under the Protocol as under the Covenant.

Suppose, however, the mediation fails, what is the next duty of the Council? Under the Covenant,[7] the next duty of the Council would be this, to consider the dispute; but under the Protocol (Article 4(1)), the next duty of the Council is to "endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration." This obviously is a very different thing from consideration of the dispute by the Council itself. Instead of considering the dispute, the Council says to the parties: Is there not some kind of a tribunal to which you are willing to refer it?

Still more striking is the fact that, even if this endeavour fail, it does not even then necessarily become the duty of the Council to consider the dispute on its merits. Either one of the parties may demand the setting up of a Committee of Arbitrators. The difference between such a provision as this and the provisions of the Covenant is remarkably great. Under the Covenant, when, as the outcome of the mediation of the Council, the parties do not themselves agree upon a settlement, the Council is inevitably required to consider the merits of the case. Under the Protocol, if the parties do not agree, the dispute goes to the Court or to a tribunal of some kind, if such a reference is agreed on; it next goes to a Committee of Arbitrators if only {25} one of the parties demands it; this means that the Council never gets to consideration of the dispute on the merits, unless the parties to the dispute at the time are unanimous in wishing that this shall happen.

It is obvious that when we have a situation where any party to a dispute may demand the appointment of an arbitral committee, the Council of the League can only consider cases of dispute which all parties thereto, after the dispute has arisen, unanimously agree should be considered by the Council.

The reason why I attach the utmost significance to this change, in connection with some other changes which are to be noticed, is that it is a total departure in theory from the idea of the Covenant that political disputes should be settled by a political body such as the Council of the League of Nations. After all, that was the fundamental idea of Article 15 of the Covenant, that the Council of the League should lay hold of the dispute, at least to the extent of preventing war from arising out of it. The theory of the Protocol is that every kind of international dispute should be settled either by a Court or by arbitration, that the functions of the Council are those of mediation and conciliation and that the Council is never to consider the merits of the dispute unless the parties thereto at the time of the dispute unanimously wish such consideration. Even then, as we shall see, a single dissent in the Council regarding the merits is sufficient to render its consideration of no effect, and arbitration again comes into play.

It should be pointed out here that if the dispute goes to a Committee of Arbitrators at the request of one of the parties, any point of law in dispute must be sent by the Committee of Arbitrators to the Permanent Court of International Justice for an opinion.[8]

Now, let us proceed with the duties of the Council. If the dispute has gone to arbitration, the functions of the Council are at an end; but if no party "asks for arbitration,"[9] then and only {26} then the Council takes up the consideration of the dispute. In this case, the Council in fact becomes an arbitral board, provided it can reach a unanimous conclusion; but its deliberations and recommendations have no effect whatever if it cannot reach a unanimous conclusion.

Under the present composition of the Council the arbitral tribunal which it would become in such circumstances would be composed of from eight to ten members. The Council itself would be a body of at least ten members, possibly eleven, possibly twelve (if the dispute were between two outside parties), but the votes of the disputants would not be counted.

It is clear that unanimity would be somewhat difficult to reach in a tribunal of that size. It must be remembered that under the Protocol no dispute can reach the Council for such an arbitral decision unless (a) the mediatory efforts of the Council have failed and (b) the parties have refused to agree upon any form of arbitration and (c) neither party wishes arbitration.[10] Clearly a dispute which had reached that stage would be one upon which unanimous agreement by an arbitral tribunal of representatives of from eight to ten governments would be improbable.

Furthermore, it seems to me almost certain under the new procedure that one of the parties would demand arbitration,[10] because it would always be in the power of one member of the Council to compel such arbitration. This is a point which, so far as I have observed, has not elsewhere been noticed.

The final provision of the Protocol for the settlement of the dispute is that if the matter goes to the Council for consideration; and if the views of the Council are not unanimous (aside from the parties), there is then a "compulsory" arbitration. The Council proceeds itself to determine the composition, the powers and the procedure of the Committee of Arbitrators.

So, taking all the provisions together, the whole result is that a dispute which is past the stage of mediation either goes to arbitration outside the Council or must be unanimously decided {27} by the members of the Council; and this puts it in the power of any one member of the Council to compel an arbitral award by an outside body.

It should be added that, under the Protocol, as under the Covenant, the Assembly may be substituted for the Council in the consideration of a dispute. It would have in such case the same mediatory powers as the Council and the same arbitral powers as the Council if all the parties refused any other form of arbitration.[11]

A very summary statement of the functions of the Council under the Covenant shows what a radical change is made by the provisions of the Protocol. Under the present provisions of Article 15 of the Covenant, a dispute which passes the stage of mediation is considered by the Council. If the Council is unanimous in making recommendations, their effect is simply to prevent war, not finally to settle the dispute. If the Council is not unanimous, its recommendations may have a moral effect, but have no legal effect whatever.

So far as concerns these provisions of the Protocol, they may be summed up as follows: they provide that every possible dispute between the parties to the Protocol which is subject to international cognizance shall be finally determined by a judicial or arbitral tribunal resulting in a legally binding decision or award; and the parties to the Protocol solemnly agree that they will accept any such decision or any such award as final and that they will carry it out in full good faith.[12]



[1] As amended.

[2] Article 36, first paragraph.

[3] For a collection of such agreements, see Publications of the Permanent Court of International Justice, Series D, No. 4.

[4] see the discussion as to this in that Report, infra, p. 171.

[5] Doubtless the word "conciliation" is not a term of art in this regard. But it seems to me that the functions of the Council under Article 15 of the Covenant go somewhat beyond "mediation" in the strict sense of the writers. See Nys, Droit International, Vol. II, p. 543; also Vattel (1853 edition), p. 276. The Protocol (Article 6) calls a result from these efforts "an amicable settlement." The French speaks of such efforts as "l'essai de conciliation."

[6] The period of "six months" is mentioned in Article 12 of the Covenant.

[7] Article 15, Paragraph 4, et seq.

[8] Protocol, Article 4 (2) c.

[9] by a Committee of Arbitrators.

[10] By a Committee of Arbitrators.

[11] The powers and duties of the Assembly in such case are stated in the last two paragraphs of Article IS of the Covenant. They are continued, to the extent stated, by Article 6 of the Protocol.

[12] The question as to what may happen under the Protocol if such a decision or award is not carried out is discussed infra, p. 50, et seq.



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CHAPTER VII.

THE STATUS QUO.

In many recent discussions of international affairs these two originally innocent Latin words "status quo" have attained a really malevolent significance. They seem to be regarded as meaning the same thing as the motto "Whatever is, is wrong," and some who talk about the status quo appear to be in the same mind as Omar when he longed

"To grasp this sorry scheme of things entire ............................. —and then Re-mould it nearer to the heart's desire."

It may be well to give some critical examination to this question of the status quo and to see what, if anything, is meant by the ideas which lie back of these criticisms.

In the first place, the thought of the critics usually relates to existing international frontiers and, in some instances, to existing international conditions.

Now as to frontiers, if we look at the status quo historically, we find that it is practically universally the result of changes in a previous status quo. The cause of these changes may have been war, may possibly have been agreements and may have been something other than either of these.[1] I shall refer to them later. But here it should be observed that there is hardly any region of the globe where the status quo does not result from some one or more of these changes within times comparatively recent.

Of course there are some exceptions to this observation, the Arctic and Antarctic, for example; but in the populated regions of the globe, the status quo, so far as frontiers are concerned, is a thing comparatively new.

If we look at this existing situation, this status quo of international frontiers, we find that under modern conditions a {29} comparatively short period of time is all that is necessary to give to the status quo the sanctity of universal consent, regardless of its origin. Let me give an instance or two of this.

The Southern frontier of the United States, for part of its extent is the direct result of a war between the United States and Mexico, a war which by many, and I am among them, is considered to have been a war of aggression. Now no one but a madman would believe that there ought to be a change in the status quo of the communities now existing in New Mexico, which in 1850 was uninhabited country, by delivering them over to Mexican rule. It is true that, during the World War, Germany proposed to Mexico in the celebrated Zimmerman note[2] that this should be done; but that incident only emphasizes the truth of my remark.

One of the most recent instances of a change in the status quo, so far as the United States is concerned, is the case of the Virgin Islands, which were bought from Denmark in 1916.[3] There was a change made by agreement, made for a purchase price which was satisfactory to the ceding country and made after a plebiscite of the inhabitants, who voted almost unanimously for the change. Here, again, for reasons differing from those of the foregoing instance, no one in his senses would consider that the existing status quo was not one of justice and common sense.

Now, if we take the situation generally, we will find, in accordance with the instances that I have mentioned, that the international situation as to frontiers the world over[4] is, as to perhaps 99%, either consecrated by usage which is the equivalent of common consent or at least of common sense, or else is the result of agreement which contains in it both elements.

The fact is, as any realist will admit, that every frontier, no matter how absurd originally or even now, contains, in the very fact of its existence, elements of stability and of reason which to some extent justify its existence. The ordinary individual near a {30} frontier, as distinguished from the agitator, becomes used to it. Business transactions adjust themselves to it and in a very short time after its creation any proposed change implies inherently a certain amount of undesirability. It is impossible, perhaps, to imagine or to draw a more absurd frontier than that between Switzerland and France in the region of Geneva.[5] It is a monstrosity, geographically and economically, and yet every one is contented with it or at least more contented with it than with the idea of changing it. Naturally there are certain attendant annoyances, as in a motor ride out of Geneva which involves two or more Customs frontier examinations within a few kilometres; and there are certain absurdities involved in catching Swiss fish and French fish in different parts of Lake Leman; and one is amused in reading Customs regulations which permit cows to pasture in one country and be milked in the other without duty; but still every one has gotten used to these matters and gets along with them.

So on the whole these two maligned words represent a rather peaceful condition.

Before the World War the irritation produced in the minds of many by the then existing status quo largely related to the frontiers in Eastern Europe and the somewhat similar irritation now existing among alleged liberal thinkers is due to the frontiers created by the Peace Treaties in general which are so usually and inaccurately referred to as the Treaty of Versailles.

Here, I think it is fair to make a certain distinction regarding the causes internationally of a given status quo at any particular time and of the existing situation in particular. These causes are two, generally speaking—agreement and war. The instances in modern history of changes in frontiers reached by free agreement are innumerable. I do not see how any one who recognizes the existing state system can object to them or believe that force should be used to change them. Of course there are critics who object to the existing state system and from {31} a theoretical point of view there is something to be said for these objections. The real answer to them at this time is, that whether they are good or bad, the present state system is one that, so far as any human being can see now, is certain to exist for some more centuries at least; and accordingly, outside of dreamland, we must take this system as it is. Given that state system, agreements between states as to their frontiers should be sacred. If a state can make an agreement about its frontier, and then, because it made a bad agreement or a stupid agreement or because circumstances changed after the agreement was made, may go to war to set aside the agreement, the result would only be international anarchy—the state system and everything else would have disappeared together.

The other source of changes in the status quo is war or strictly speaking the treaties of peace that result from war. I pass by the legal position, which is theoretically correct, that a treaty of peace made by a vanquished Power with a victor is supposedly a free agreement. This is true enough from the technical point of view but has no bearing here. The fact is that when one side wins a war and the other loses it, the treaty of peace is made under compulsion and constraint.

The argument that is made by those who criticize the status quo of the Peace Treaties of 1919 and 1920 runs about as follows;

1. In certain respects the frontiers and arrangements created by the Peace Treaties are unjust.

2. The setting up by the Peace Treaties of an international organization against war is an attempt to sanctify the wickednesses of the status quo.

3. Both the Treaties and the international organization which they set up should at least be denounced and probably rejected. This conclusion in various minds is different and uncertain, but I think that I have stated it fairly.

Let us take these points up in their order.

As a preliminary, let me say that the Treaties of Peace in this connection cannot include the Treaty of Lausanne with Turkey. Certainly at the time that that Treaty was negotiated there was {32} no imposed peace on Turkey; as a matter of fact the Turkish negotiators had things pretty much their own way with the Allies. So that we are considering merely the Treaties with Germany, Austria, Hungary and Bulgaria.

In the first place, the question in many cases as to whether or not there is any such thing as a "just" frontier is at least a very doubtful one. I put it this way. If you have a situation where reasonable, impartial and informed minds can differ, you do not have a situation where it can be arbitrarily said by any one that any one frontier is the just frontier. Of course I am not talking of the type of mind which insists that the particular line that he would draw is the one and only line, despite the views of anybody else, because to admit such a theory would mean the admission of the existence of perhaps fifty different frontiers between the same two countries at the same time.

Now as to the Peace Treaties, we certainly have that situation to a very large extent. I do not see how any one could contend that the existence of the Polish corridor is a perfect solution, nor do I see how any one could contend that the absence of the Polish corridor would be a perfect solution. One of the Polish Delegation said to me in Paris in December, 1918, in substance, that it would be impossible to draw a frontier between Germany and Poland which would not do an injustice to one country or to the other or to both, and I believe that his observation is perfectly sound.

The same thing is true as between Roumania and Hungary, and perhaps more true.

My sympathies as to Vilna are rather with the Lithuanians than with the Poles, but no one can read the documents without seeing that the Poles have a case.

My own view has always been that the frontier between Poland and Russia is too far to the East, but none the less the Russians, after a fashion, agreed to it.

Most of those whose opinions I respect believe that it was wrong to give the Austrian Tyrol to Italy. Despite those views, I have always believed that the decision was defensible.

{33}

Different American experts of the highest qualifications, of the utmost sincerity and of complete impartiality took different views as to Fiume and the Italian-Yugo-Slav frontier generally. In such circumstances, who could say, what tribunal could decide, the "just" frontier?

I am willing to admit that this uncertainty on the question of justice may not exist in every case. I have always believed that some of the cessions of territory forced on Bulgaria were utterly indefensible from any point of view whatsoever. I refer, not to Macedonia, that impossible jumble of contradictions, but more particularly to Western Thrace.

My own view is that, on the whole and taken by and large, the existing frontiers in Europe are more near to justice than ever before in modern history.

But I am going to assume for the rest of this discussion that some of these frontiers are wrong and should be changed. What is our answer to that situation?

Let me point out in the first place that the mere fact that a frontier was imposed by force resulting in a peace treaty is not necessarily anything against it. Take the case of Alsace-Lorraine, for example; or take a still more striking case, the case of Germany and Denmark. Admittedly, in and out of Germany, the result as to Slesvig was just and should continue.

Furthermore, it is necessary to point out that the imposed origin of a situation may not continue as the cause of that situation. It may become accepted and voluntary, a full agreement. An instance here is the reparations question. The status quo as to reparations (a very uncertain one) imposed by the Treaty of Versailles upon Germany, has now, under that very Treaty, become an agreed status quo by reason of the voluntary adoption by Germany of the Dawes Report; for in reality as well as in strictness of law that plan could not have been adopted, much less be carried out, without the voluntary assent of Germany to its provisions.

However, taking the frontier status quo of the Peace Treaties at its worst, that is to say at its alleged worst, admitting, in other {34} words, that parts of it are unjust and are the result only of force, what are we to say as to the future?

The possibility of change which, under the supposition that I have made, would in itself be admittedly desirable, is along two lines, the line of agreement or the line of war. The so-called fixation or consecration of this status quo under the League of Nations in no way precludes a change by agreement, the utmost that it can do is to preclude a change by war.

Accordingly, we are confronted at the outset with the question as to whether the continuance of this status quo is, or is not, a worse evil than war. Even those who assume or who believe that war is the preferable of the two must, in order to reach that belief, hold that change by agreement is impossible. Such an assumption is contrary to the facts of history, but for the sake of this discussion it may be admitted.

In other words, I am willing to assume that a particular part of the frontier status quo is wrong, is unjust, and was brought about by force, and should be changed, and that it cannot be changed by agreement, and come directly to the question if, in these circumstances, it should or should not be changed by war. My answer to this question is: No. And I do not think it is necessary to put this answer merely on the ground of the evil of the war itself, the death, the destruction and so on. It is sufficient to support a negative answer to point out that the effect of the war could not be limited. War never is limited, it goes to lengths that have nothing to do with the supposed injustice for which it is commenced.

Let me give an instance as a concrete supposition. Take the Bulgarian-Greek frontier and suppose, as I do, that it ought to be changed, and suppose further, as the advocates of war assert, that it should be changed by war between Bulgaria and Greece; one of two things would happen in all human probability. Either Greece would be the victor and then not only would the boundary be as unjust to Bulgaria as it is now, but much more so. Or else Bulgaria would be the victor, in which case the injustice would simply be reversed; the frontier would not move to any {35} theoretical point of justice, but would move to the point dictated by the new Peace treaty.

In other words, war is not like a litigation which ends in the settlement of a particular dispute. Any war, in its settlement, goes far beyond the dispute which brought it about; every war opens up every possible ambition and desire of the victor.[6] Did the World War end merely in deciding the question about the rights of Austria and Serbia in connection with the murder of the Archduke? Where was the fate of the German colonies decided—in East Africa and in the Pacific, or on the Western Front?

This whole question is of vital importance in connection with the Protocol of Geneva. If that Protocol comes into force and is accepted by Germany, by Austria, by Hungary and by Bulgaria, it will have this effect at least; it will change what I may call the status of the status quo in regard to these countries to this extent, that in lieu of that status quo being one imposed by force, it will have become one agreed to, at least to the point that it is agreed that the status quo may not be changed by war but only by agreement.[7] As a practical example, it will mean, as we now see, that the German effort to regain some of her lost colonies under the mandate system, will again be an effort of negotiation[8] and not an effort of force.

All that the Covenant or the Protocol of Geneva attempts to do about the status quo is to say that frontiers shall not be changed as a result of aggression. Indeed, the Protocol[9] protects even an aggressor against loss of territory or of independence as a penalty for its aggression; discussion, leading up perhaps to peaceful agreement but to nothing else, is permitted by Articles 11 and 19 of the Covenant, but that is all.

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My view is that these provisions are sound and that they should not be extended.

In saying, as I did, that the possibility of change in the status quo is along only two lines, the line of agreement and the line of war, I did not lose sight of the proposals made in various forms that there should be some method under the League of Nations or otherwise by which a tribunal of some sort would be empowered to make such changes from time to time. Most of these proposals envisage plebiscites in one form or another.

These proposals by their advocates are thought to have the advantage of adaptability to changing conditions and to be more conformable to the theory of the consent of the governed as a basis of Government.[10]

Of course, changes of frontiers made by any form of tribunal would in a sense be changes of frontiers made by agreement among the parties; for there would be necessarily an agreement in advance setting up such a tribunal and engaging to conform to its conclusions.

It may perhaps be imagined that as between two particular countries some such arrangement is possible along limited lines and relating to a particular area or areas. I doubt even this possibility; but certainly no general agreement in accord with such theories is possible and in my judgment it would be highly undesirable if it were possible.

A tribunal which was charged with the duty of determining changes in frontiers would clearly be a superstate, full-fledged, and in any sense of that much abused term. Obviously, a change of frontier, if it went far enough, might result in the substantial, or even the literal, disappearance of one state by its incorporation within the territories of another. It is inconceivable that any country would agree to such a proposition. Even if it were limited very strictly, it would present enormous difficulties and would certainly arouse fierce passions, as is well illustrated by {37} discussion regarding the tribunal which is now sitting to consider the frontier between Northern and Southern Ireland.

Nor would the matter be resolved by the suggested idea of plebiscites. Anyone who will consider this question of plebiscites will realize that the determining factor is not wholly the vote itself but to a large extent the terms in which the plebiscite paper is written. He who drafts the agreement for the plebiscite has much to do with what the plebiscite will determine.[11] The questions are: Is the area to vote as a whole or by districts, and where is the line of the voting area to be drawn? The first of these was one of the great questions in the Upper Silesia case. To apply the idea to an existing episode, let us again refer to the case of Ireland. If the plebiscite were in the whole of Ireland, it would go for Dublin; if it were in Ulster, it would go for Belfast; if it were in Tyrone or Fermanagh, the result would perhaps depend on the exact date when it was taken, as recent elections indicate.

Another difficulty about plebiscites is this: Is their effect perpetual or not, and if not how long does it last? If Tyrone votes for Dublin today, is it an eternal decision or only till another vote in 1930, or till when? There must be some time limit at least; plebiscites cannot be held every year or even every five years, a fact which illustrates the quiet advantages of some kind of a status quo.

Another question about a plebiscite is this: Let us concede that an overwhelming vote such as took place in the regions of East Prussia under the Peace Treaties is to be decisive forever. But suppose the vote is very close; how about a vote where a little over half of the population go one way and a trifle under half go the other? Is this conclusive? Does it have the same moral effect as a larger vote? Is a majority of one vote just as good as a majority of ninety per cent.?

{38}

In reality, the truth about these proposals for changing frontiers by some sort of international procedure is that those who advocate them do not believe in them as a general proposition. An Englishman who believes in this sort of thing, for example, believes in it as regards Macedonia or some such region; he does not for a moment think that such a procedure should enable the people of British Columbia, say, to become part of the United States. I do not mean to intimate that the people of British Columbia have any such idea; but how is it going to be possible to give the privilege (if it be a privilege) to people along a few selected frontiers?

Another point, a fatal objection to such a scheme, is the inevitable uncertainty which it would set up.

It may be a better thing to live in Manitoba than in North Dakota, or to live in North Dakota than in Manitoba; but worse than almost any conceivable place of residence would be a status which might change in the future, so that one could not tell say five years ahead in what country he was going to live. A frontier is not merely a line drawn on a map or demarcated on the ground; a frontier means a nexus of customs, of laws, of traditions and of innumerable other things that directly affect the daily life and conduct of every inhabitant. Any lawyer who has had any experience in the matter will realize the enormous difficulties that surround any transfer of territory merely in connection with the drafting of the necessary papers[12]; and any student who wishes to see how far-reaching the practical difficulties may be need only consider the present situation in Alsace-Lorraine in its bearing upon the relations between France and the Vatican.

The impossibility and the undesirability of setting up any system for changing frontiers, such as has been discussed, are equally evident.

There is another phase of this general question of the status {39} quo which is sometimes discussed by those who seem to have a natural antipathy to the words and that is what I may call the "raw materials" phase. There is, let us say, no coal in Switzerland, and yet Switzerland must have coal for her people to exist. There are no oil wells in Norway, and yet in Norway there must be, if civilization is to continue, automotive engines. It is obvious that there can be no physical change in such a status quo. People who live in the territory that is now Switzerland must get their coal somewhere else, and motor transport in Norway must get its gasoline from other lands.

What is the international phase of such situations as this? There are perhaps three possibilities. One is a war of conquest commenced by a country in the situation of Norway in order to obtain dominion over foreign oil lands; the second is some kind of agreement such as has been suggested in a vague way by the Italians and others for some sort of an international supervision in such matters; and the third is that the situation shall continue as it is now—a matter of bargain and sale, of supply and demand.

There is not the slightest doubt in my mind that, among these three, the first would be as impossible as it would be wicked; the second is wholly outside the realm of practical politics for centuries to come; the third is the status quo, which has not in any case of world peace resulted in any serious injustice.

Of course, if we go beyond such cases as Norway and Switzerland and take countries much less favored, it is always a mystery as to why people live in them. It is very difficult to understand, for example, why there are settlers in Labrador, or why people are fond of Greenland as a home; none the less these things are so. And under the existing system of exchange of commodities there has perhaps never been a time when even the people who live in these countries without certain particular natural resources have not generally been able to obtain sufficient of them as a result of their own efforts in the occupations which the character of those lands permits.

Of course some countries are naturally richer than others and {40} must remain so. In the Delta of the Nile, the land produces as many as four crops a year and sells for something like $3,000 an acre. Such a condition cannot be duplicated in a climate where only one crop is possible.

But the notion that any State or any combination of States, less than world-wide, could be substantially self-sufficient in respect of all raw materials is untenable. Even the United States lacks (mentioning minerals only) nickel, cobalt, platinum, tin, diamonds. Its supplies of the following are inadequate: antimony, asbestos, kaolin, chromate, corundum, garnet, manganese, emery, nitrates, potash, pumice, tungsten, vanadium, zirconium. Outside of minerals we lack jute, copra, flax fiber, raw silk, tea, coffee, spices, etc. This mere enumeration suggests the absurdity of the "raw materials" argument against the status quo.[13]

Without going into it in detail, the mere fact that there are no copper mines in Germany[14] or in England has never prevented either country from obtaining all the copper that it needed by means of the exchange of its own commodities and its own labor for the copper, say, of Spain, or of the United States, or of Chili; and from any possible point of view that is now conceivable it is only by the continuance of such a system that the deficiency of particular articles in particular countries can be supplied.

All that we can say is, in other words, that so long as the people in a particular country are able to produce enough of something that the rest of the world needs, so long will they be able to supply their own necessities. And if in any country, in Labrador, for example, the people are unable, because of the situation of the country, to produce a sufficiency of consumable and exchangeable commodities, the inevitable result will be the evacuation of that country by civilized human beings. If such a result could be changed by conquest, the change would be only temporary. To attempt to change it by agreement would be to attempt a sort of international charity by means of which {41} people would be able to live in Labrador by the use of part of the surplus production, say, of Kentucky, given to them for nothing.

There is a very exaggerated notion in the minds of some as to the effect of what is called "control of raw materials."

Of course, in time of war, control of raw materials has importance. But this does not mean "control" in the sense of ownership of foreign supplies, as, e. g., British ownership of Persian oil fields or American ownership of Bolivian tin mines. It means merely either (1) the possession of adequate domestic supplies, or (2) safe and unimpeded access to foreign sources of supply, as, e. g., German access, during the war, to Swedish iron ore. The military significance of raw materials, aside from purely domestic supplies, is related to such things as naval power, blockade, "freedom of the seas," "free transit," etc., rather than to national ownership of sources of supplies. Access to the market is the important thing, although the question of finance may be more difficult in respect of foreign supplies than of domestic.