The Geneva Protocol
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Title: The Geneva Protocol
Author: David Hunter Miller
Release date: May 24, 2009 [eBook #28950]
Most recently updated: January 5, 2021
Language: English
Other information and formats: www.gutenberg.org/ebooks/28950
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*** START OF THE PROJECT GUTENBERG EBOOK THE GENEVA PROTOCOL ***
Produced by Al Haines
[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.
{v}
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.
{vii}
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
{viii}
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."
{3}
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 régime 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._
{5}
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
procès-verbal to that effect is drawn up; but this procès-verbal does
not, as is usual when a procès-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._
{10}
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.
{13}
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.
{14}
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.
{18}
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._
{28}
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.
{36}
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.
But in time of peace, the "control of raw materials" in the last
analysis means that the owners of those materials can do only two
things with them, use them or to sell them. This is perhaps most
obvious in the case of such raw materials as are perishable, but it is
true of all.
Take such a product as copper, for example. Some countries have copper
mines, others have none. But the ownership of a copper mine is of no
possible advantage unless the copper produced from that mine is
manufactured into something else or is sold. Of course temporarily a
mine owner may leave his ore in the ground or may store a supply of
copper above ground; but these are expedients to be resorted to only in
some time of over-production and impossible of continuance. If the
product of the mine is not either used or sold, its advantage is purely
a theoretical possibility of the future. It has no more value in
present reality than a bank note on a desert island.
The really important factor, as to raw materials, is _access to the
market_ on an _equal footing_.
{42}
In practice there are only two ways in which a State or its citizens
can be discriminated against, in time of peace, so far as the State's
access to supplies of raw materials is concerned. They are as follows:
(1) By discriminatory export duties, or similar duties. In practice
these are _not_ important.
(2) By discrimination in respect of prices, or similar matters, by
_monopolistic_ producers. To achieve this result it is necessary not
merely that one _State_ should have a "monopoly" of the supply of some
raw materials, but also that _within_ that State, the production and
sales of the raw materials should be in the hands of monopoly.
Further, the domestic monopolistic organization, must, in order that
discrimination should be an outcome of the situation, find it
_profitable_ (not merely "patriotic") to discriminate in favor of the
domestic market. There is _no_ important instance of such
discrimination.
Such conjunction of circumstances is one which is exceedingly unlikely
to occur. There is more chance that there will be discrimination _in
favor of_ the foreign buyer. In short, the matter is not one of great
practical importance, for
(1) a raw material supplied only by one State
and (2) controlled, _within_ the State, by a monopoly, which
also (3) finds it profitable to discriminate against foreign
buyers
is something to be found only in imagination.
I venture to say that there has never been a time in modern
civilization when the people of any country have been prevented by the
international situation from obtaining any raw material whatever for
which they had the capacity to pay. The only possible exception to
this statement has been in time of war[15]; and the only possible
change in the situation in time of peace would, as I have suggested,
amount to some form of compulsory international charity.
{43}
If we look generally at this question of the _status quo_ from the
international point of view during the past two centuries, we find two
divergent and irreconcilable lines of treatment.
The jurists and the writers have generally considered that the _status
quo_ is or ought to be sacred from the point of view of outside
attack.[16] In most of the books the question is treated under the
heading of "Intervention" and, perhaps with some qualifications, the
writers do not admit the legality of intervention. They make
exceptions on the ground of self preservation of the intervening State,
sometimes on the ground of protection of human life and so on. But, at
least with these exceptions, they generally maintain that the State
against which the intervention is directed may legally object to
it--that is, may legally insist upon the maintenance of the _status
quo_ (or of its right, in a proper case, to change the _status
quo_[17]) and furthermore that such a State might justly, if able (as
it usually is not), resort to war against the intervention.
On the other hand, the history of international affairs during this
period is quite to the contrary.[18] Over and over again States,
sometimes individually, sometimes some of them collectively, have
interfered with the affairs of another State with which they Had
strictly no legal concern, on many different occasions and on all sorts
of pretexts. They have defended such intervention at times on the
vague grounds of the rights of humanity, the interests of commerce, the
restoration of order and so on.
Any one who is familiar, even in a cursory way, with the history of
Europe will be able to recall numerous such instances; and it must in
fairness be admitted that in some of them the result has seemed
beneficent.[19]
And it must not be forgotten that it is not only the wicked powers of
Europe that have acted along these lines. In reference {44} to the
affairs of other countries, though not its own, the United States has
maintained this privilege of paternal intervention by force. We
maintained it, for example, in Cuba in 1898, chiefly on the ground of
the sake of humanity.[20] In connection with the Panama Canal, Mr.
Root set up the famous proposition[21] that the sovereignty of Columbia
over the Isthmus was limited and qualified by the general right of
mankind to have a canal between the Atlantic and the Pacific, and to
have that canal kept open for the commerce of all.
Many other instances might be cited. It is, however, worth while to
recall in connection with this alleged limited right of sovereignty of
Columbia over part of its territory that the United States subsequently
paid $25,000,000 to the owner of the qualified fee.
It is perhaps unnecessary to add that this alleged right of
intervention, as between great powers, was recognized by another name
as a method of changing the _status quo_, namely, the method of war.
The effect of the Protocol is unquestionably to consecrate the
international _status quo_ with a definite position of legality, not to
be disturbed by force.[22] The views of the writers, as opposed to the
practice of Great Powers, have been adopted.
Article 2 of the Protocol forbids a resort to war[23] as against any
{45} other State, a party to the Protocol, "except in case of
resistance to acts of aggression."[24]
Under Article 8, every Signatory agrees to abstain from any act which
might constitute a threat of aggression.
Under these provisions and the provisions of the Protocol for the
settlement of international disputes, intervention to upset the _status
quo_ (or to prevent a state from changing it where it legally may)
becomes aggression and is an international crime.
[1] Such as discovery, occupation of _terra nullius_, etc. See the
Treaty of Spitzbergen, A. J. I. L., Vol. XVIII, p. 109.
[2] A. J. I. L., Vol. XI, at p. 626.
[3] A.J. I. L, Vol. XI, Supp. 1917, p. 53.
[4] Some regions of Asia may be exceptions.
[5] See the Franco-Swiss Free Zones, by Louis Schulthess, in Foreign
Affairs, Vol. 3, No. 2, p. 331, with map.
[6] "Et il faut bien remarquer, que la Guerre ne décide pas la
question; la Victoire contraint seulement le vaincu à donner les mains
au Traité qui termine le différend. C'est une erreur non moins absurde
que funeste, de dire, que la Guerre doit décider les Controverses entre
ceux qui, comme les Nations, ne reconnoissent point de Juge." Vattel,
Book III, Section 38.
[7] In general, this is the theory of Article Ten of the Covenant.
[8] See the Genesis of the War, Asquith, pp. 97, 98.
[9] Article 15.
[10] President Wilson's so-called first draft of the Covenant contained
a provision along these lines in Article III. See Woodrow Wilson and
World Settlement, Baker, Vol. III, p. 89.
[11] The statistics of language, etc., even when accurate, do not
always forecast the popular wish. Upper Silesia is an instance of this
fact. The statistics, as stated in the note of Clemenceau of June 16,
1919, showed 1,250,000 Poles and 650,000 Germans. The vote was 717,122
for Germany and 483,514 for Poland.
[12] The Convention between Germany and Poland relating to the régime
of Upper Silesia is a document of some 300 pages.
[13] I am greatly indebted to Professor A. A. Young for some of my
economic information; but he is in no way responsible for any of my
conclusions.
[14] Of course this is an over-statement. Germany produces about
one-tenth of her consumption of copper.
[15] Or a period due to war, such as 1919-1920.
[16] See Hall, International Law (Seventh Edition), Chapter VIII, for
an illuminating discussion.
[17] Such as the right of State A to cede territory to State B,
notwithstanding the objection of State C to such a cession.
[18] See Moore's Digest, Vol. VI, pp. 2-367.
[19] Such as the intervention in Greece in 1827 by Great Britain,
France and Russia. See Hertslet's Map of Europe by Treaty, Vol. I, p.
769.
[20] See the Message of President McKinley, April 11, 1898, Foreign
Relations, 1898, p. 750 at p. 757.
[21] The Ethics of the Panama Question, Sen. Doc. 471, 63rd Congress,
2nd Session, p. 39.
[22] There is a reference to the _status quo_ in the General Report
(Annex C, p. 181), which uses this language:
"There is a third class of disputes to which the new system of
pacific settlement can also not be applied. These are disputes
which aim at revising treaties and international acts in force,
or which seek to jeopardise the existing territorial integrity
of signatory States. The proposal was made to include these
exceptions in the Protocol, but the two Committees were unanimous
in considering that, both from the legal and from the political
point of view, the impossibility of applying compulsory
arbitration to such cases was so obvious that it was quite
superfluous to make them the subject of a special provision.
It was thought sufficient to mention them in this report."
[23] For the view that this includes acts of force, even in the absence
of a state of war, see _infra_, p. 55.
[24] The other exception "when acting in agreement with the Council,"
etc., is not here material. It is discussed _infra_, p. 50.
{46}
CHAPTER VIII.
DOMESTIC QUESTIONS.
The treatment in the Protocol of so-called domestic questions aroused a
great deal of discussion not only at the Assembly, last September, but
since the adoption there of the text.
It may be remembered that there was a similar public discussion at the
time of the drafting of the Covenant; in that document[1] a domestic
question is defined as "a matter which by international law is solely
within the domestic jurisdiction" of a State.
Among instances of domestic questions which have been mentioned from
time to time, perhaps the two most commonly referred to in this country
are the tariff and immigration. Of course it has been pointed out very
often that even such questions as these, however inherently domestic,
may become international as soon as they are made the subject of a
treaty, as they so frequently are. It should be added that almost any
question, no matter how "domestic" in its nature originally, _may_
become the subject of international cognizance by virtue of a treaty.
There are many treaties of the United States which have related to such
questions as the inheritance of land, the right to administer the
estates of decedents, etc.; a very recent instance is a treaty between
this country and Canada regarding the protection of migratory birds, a
treaty which has been upheld as valid by the Supreme Court.[2]
None the less, the absolute right of a country to regulate these
matters in its own discretion must be recognized as a matter of strict
law. Any country, in the absence of treaty, may, at its pleasure,
exclude foreigners from entering into its territory, for example. I
think no one questions this.[3]
However, as a matter of fact and as a result of the development of the
world's commerce, there is hardly any such question which remains
exclusively domestic. For example, even in our {47} drastic
Immigration Law of 1924,[4] there are various treaty rights of entry
into the country for the purposes of commerce and so on which are
expressly and in terms saved by the statute. Furthermore, there is, I
suppose, hardly a country in the world which does not have various
most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international
discussions and agreements to matters previously undreamed of; the
erection of wireless stations near frontiers is a very practical
instance; there must be some kind of agreement to prevent jamming in
the air. The negotiations about the opium traffic have gone to the
length of discussions as to what areas in certain regions should be
planted with the poppy; a more essentially domestic question than the
crops to be grown within a country could hardly be imagined.
In my opinion, the Protocol follows the Covenant in its treatment of
these domestic questions and goes no farther. The Covenant provides
that if, upon reference to the Council, it is found that a dispute
arises "out of a matter which by international law is solely within the
domestic jurisdiction," the Council shall report to that effect and
shall not even make a recommendation as to its settlement (Article 15,
paragraph 8). In practice the Council will doubtless refer this
question of law to the Permanent Court for an advisory opinion.[5]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision
and applies it also to any arbitration which takes place by its terms.
It is provided that if one of the parties to the dispute claims that
the dispute "or part thereof" arises out of a domestic question, the
arbitrators must take the advice of the Permanent Court on the point.
The opinion of the Permanent Court is binding on the arbitrators and if
the Court holds that the matter is "domestic," the power of the
arbitrators to decide {48} the question is at an end and they are
confined merely to recording the Court's opinion.
The further provision of Article 5 on this question is the last
paragraph of that Article, which reads as follows:[6]
"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 of the Covenant."
So far as this provision goes, I do not think that it adds anything to
the effect of Article 11 of the Covenant. The matter would stand
precisely where it does now, even if this last paragraph of Article 5
of the Protocol had been omitted.
Under Article 11 of the Covenant, both the Council and the Assembly
have the right to consider any circumstance which threatens to disturb
international peace. This does not mean any right of decision or even
recommendation in any binding sense. What it does is to give to the
Council or to the Assembly the privilege of attempting, by friendly
offices, to avert war.
To my mind there is nothing very new in this; indeed, it is rather
inherent in the idea of any international association for the
prevention of war. After all, there is no doubt that these so-called
domestic questions have their international repercussions. The case
that was put by way of argument at Geneva was the control of the
quinine of the world by the Dutch, which is said to be practically
absolute. What would happen if the Dutch put an embargo upon the
exportation of this drug? It would be idle to say that such an act,
legal as it would be in the strict sense, would not have a profound
effect upon civilization generally. Under Article 11,[7] such an act
could be discussed before the Council with a representative of the
Dutch Government present, in an effort to obtain some adjustment, some
change in what had been done; but that would be all.
In 1898, the United States went to war with Spain over what {49} was,
technically at least, from the point of view of Spain, a domestic
question, namely, the internal situation in Cuba. Shortly before
hostilities broke out, the six then Great Powers of Europe addressed to
the United States a friendly note in the matter, to which this
Government replied.[8] In principle, I cannot see any difference
between such diplomatic correspondence and the discussion of the matter
by the Council of the League, a discussion to which presumably Spain
and not the United States would have been the party to object, for the
question was a Spanish domestic question of which we were complaining.
There are other aspects of the treatment by the Protocol of domestic
questions, in connection with the Covenants against War, and with
Aggression, under which headings it will be discussed.[9]
[1] Article 15, paragraph 8.
[2] Missouri _v._ Holland, 252 U. S., 416.
[3] See Moore's Digest, Vol. IV, p. 67, _et seq._, also p. 151, _et
seq._
[4] Act of May 26, 1924.
[5] As in the case of the Tunis and Morocco nationality decrees,
Advisory Opinion No. 4, February 7, 1923.
[6] This is one part of the so-called Japanese Amendment, as to which
see _infra_, p. 64, _et seq._
[7] of the Covenant.
[8] Foreign Relations (U. S.), 1898, pp. 740-741.
[9] See _infra_, p. 50 and p. 54. Also "The Japanese Amendment," p. 64.
{50}
CHAPTER IX.
COVENANTS AGAINST WAR.
Under the Protocol, the agreement of the parties thereto (Article 2)
not to resort to war with one another is, if the terms of the Protocol
are carried out, absolute. The only stated exceptions in Article 2 of
the Protocol are (1) in case of resistance to acts of aggression and
(2) when acting in agreement with the Council or the Assembly under the
Covenant or the Protocol.
The first exception relates to defence and, if there be no aggression,
as there would not be if the Protocol is lived up to, there would never
be any need of defence against aggression.
The second exception, so far as it relates to a Party to the Protocol
against whom force might be used, relates primarily to an aggressor, as
defined in the Protocol. Of course this second exception in this
regard goes beyond the question of defence, strictly speaking, because
it would permit a State, not attacked, to go to the defence of another
State attacked if and when the application of the Sanctions of the
Protocol is called for by the Council[1]; but if the Parties to the
Protocol carry out their agreements as therein expressed, there could
never be any war between two or more of them.
There appears to be another possibility of the use of force within the
language of this second exception; this is the case where a State,
against which has gone a decision of the Court or an arbitral award,
fails to carry out the decision or award.
The provision of the Covenant regarding such a situation is contained
in Article 13, where it is said that the Council shall "propose what
steps should be taken to give effect" to such decision or award.
Obviously such proposals by the Council would not have any binding
effect upon the Members of the League.
However, under the Covenant, the State in whose favor the decision or
award had gone _might_ lawfully have resorted to war against the State
refusing to carry out the decision or award, {51} provided merely that
it delayed resort to war for three months thereafter, under the
language of Article 12 of the Covenant. In other words, if an award or
decision was made and a State refused to carry it out, the successful
party, under the Covenant agreed merely to refrain from war against the
defeated party for a period of three months.
The Protocol (Article 4(6)), as interpreted by the Report to the
Assembly, still permits the successful party to use force in such a
case but only when the Council authorizes the use of force, such
authorization being brought within the terms of Article 13 of the
Covenant.
It is true that the Council is first to exert its influence to secure
compliance with the decision or award and that, if the use of this
influence fails, the Council may then propose measures short of force
before authorizing the use of force itself.
Indeed, the Report[2] says that the Council may "institute[3] against
the recalcitrant party collective sanctions of an economic or financial
order." If this means that the Signatories to the Protocol are
obligated to employ such sanctions in such a case when called on by the
Council, I can only say that, in my opinion, the statement is not
warranted by any language of the Protocol or of the Covenant.
However, the final effect of these provisions is that with the
authorization of the Council the successful party _may_ use force to
execute a judicial decree or arbitral award.
Furthermore, the Report to the Assembly says that in such a case the
defeated party could not resist, and that, if it did resist, it would
become an aggressor against whom all the Sanctions of the Protocol
might be brought into play.
To see how this would work out, let us suppose that in an arbitration
between State A and State B, State A obtained an award to the effect
that State B should pay to it the sum of twenty million dollars.
Thereupon State B refuses to pay the award and, notwithstanding the
efforts of the Council, maintains that {52} refusal, thereby violating
its agreement in the Protocol (and in the Covenant also) to carry out
any such award.
Thereupon the Council authorizes State A to use force to collect the
money. It is no answer to this to say that the Council would not
authorize the use of force, for we are considering what may be done,
not what would be done. State A then begins to use force and, if State
B resists at all, the entire machinery of the Sanctions of the Protocol
can be brought into play and these include military and naval Sanctions.
Of course, such a result would be highly improbable, but I submit that
it ought to be legally impossible. The provisions of the Protocol in
this regard go very much farther than they ought to go, and very much
farther, in my opinion, than the States of the world are now willing to
go.
The case which I have supposed is one of a money judgment. A more
difficult case would be one where the award was for the recovery by
State A of certain territory in the possession of State B which State B
thereupon refused to give up. In such a case there is more to be said
for the use of force than in the other.
In any case, the refusal of a State to carry out the judicial decision
or the arbitral award after solemnly agreeing to do so is a very
serious breach of a treaty; but the idea of the authorization of force
to execute such a decision seems to me to present a question of the
very gravest character. My own view is against it. I am inclined to
think that the penalty of expulsion from the League under the fourth
paragraph of Article 16 of the Covenant should be the utmost
permissible.
Whether this view of mine be correct or not, certainly the countries of
the world are not going to accept any provision by which they will be
obligated in advance to join in measures to enforce the result of an
arbitration or of a litigation before the Permanent Court. Whether
they will agree to a provision permitting the successful party, so to
speak, to execute the decision or award on its own account is perhaps
doubtful; but certainly they will go no farther, if as far; and this is
one of the provisions {53} of the Protocol which will have to be
changed before the document becomes a reality.
Subject to the foregoing exceptions, the general covenant under Article
2 of the Protocol not to go to war is, in my opinion all inclusive. It
obviously includes all cases where there is a dispute of international
cognizance, for in such cases all parties agree upon a final and
binding method of decision and agree to carry out the decision. It
also includes, as pointed out previously,[4] all cases in which one
State would seek to change by force the _status quo_, or to prevent by
force a lawful change in the _status quo_.[5] Neither the lawful
maintenance of the _status quo_ nor its lawful change would come within
the general exceptions of Article 2.
Furthermore, the covenant against war in Article 2 would also exclude
the going to war about domestic questions. All that any Signatory
agrees to do regarding such a question, if, when raised
internationally, it is not settled by negotiation, is to discuss it
before the Council or the Assembly.[6] A State which did that would
have fulfilled all its obligations regardless of any action or inaction
as to the domestic question itself; and an attack made on it by any
other State would then be aggression under the terms of the Protocol.
There is no exception. As the Report to the Fifth Assembly says,[7]
"Our purpose was to make war impossible, to kill it, to annihilate it."
This, if lived up to by the Parties, the paper does, as among them.
The detailed provisions of Articles 7 to 10 inclusive of the Protocol
confirm the views above expressed. The provisions of these Articles
will be more specially considered in connection with the question of
Aggression.[8]
[1] See the discussion on this point, _infra_, p. 72, _et seq._
[2] Annex C, p. 180; see also pp. 168, 169.
[3] The word in the French text of the Report is "déclencher."
[4] p. 45.
[5] An instance of this would be if States A and B agreed on a cession
of territory from one to the other, to which State C objected.
[6] Under Article 11 of the Covenant.
[7] p. 208, _infra._
[8] p. 54, _et seq._
{54}
CHAPTER X.
AGGRESSION.
The preamble to the Protocol asserts that a war of aggression is an
international crime. I have discussed above[1] the agreement of the
parties to the Protocol not to resort to war except in defence against
aggression or in aid of defence against aggression or perhaps in
execution of a judicial decision or arbitral award. This is the
general covenant of Article 2 of the Protocol. It is this resort to
war, contrary to the terms of the Protocol, which is the chief breach
of the Protocol against which its chief Sanctions are ordered.
By Article 10 of the Protocol[2] every State which resorts to war in
violation of the undertakings either in the Covenant or in the
Protocol, is an aggressor.
It will be necessary to consider only the provisions of the Protocol
forbidding a resort to war, for it would be impossible to have a resort
to war contrary to the Covenant which would not also be a resort to war
contrary to the Protocol. The provisions of the Protocol go farther
than those of the Covenant in this regard.
It is true that there are in the Covenant certain engagements by
Members of the League not to resort to war. These are found in
Articles 12, 13 and 15; but it is unnecessary to consider them in
detail, for any resort to war contrary to the provisions of those
Articles of the Covenant would clearly also be contrary to the general
engagements of Article 2 of the Protocol.
The Report to the Assembly[3] seems to infer that a violation of the
obligation of Article 10 of the Covenant on the part of all Members of
the League to respect the territorial integrity and political
independence of other Members might be a resort to war not included in
the language of the Protocol; but I think that {55} any such forcible
violation would be within the terms of the Protocol also.
It is against the aggressor that the Sanctions of the Protocol are set
up and accordingly the provisions of the Protocol defining an aggressor
and the procedure for determining what State is an aggressor are of the
utmost consequence.
The definitions of an aggressor under the Protocol are complex in their
language though not in their fundamental idea, which is that aggression
is a resort to war instead of to arbitration.[4] The language of the
definitions is obscured by certain presumptions (Article 10) and by the
procedure laid down for the determination of an aggressor.
The general definition of an aggressor in the first paragraph of
Article 10 of the Protocol I have mentioned above. It is well,
however, to quote it in full:
"Every State which resorts to war in violation of the undertakings
contained in the Covenant or in the present Protocol is an
aggressor. Violation of the rules laid down for a demilitarized
zone shall be held equivalent to resort to war."
This is the general definition of principle. It relates back in its
meaning to Article 2 of the Protocol, the general engagement not to
resort to war. Beyond that, it makes the violation of the rules for an
agreed demilitarized zone the equivalent of a resort to war, the two
are assimilated.
The first question that arises regarding this general definition is
whether the words "resort to war" mean necessarily an actual and
technical state of war only, or whether they include all acts of
violence and force, even if such acts did not in a particular case
result in an actual state of war, because, for example, not resisted.
The view of the Report to the Assembly[5] in this matter is that such
acts of violence are included in the expression. I am {56} inclined to
agree with this view, though as a mere matter of language an argument
to the contrary is possible.
Suppose, however, that there is an actual state of war; how is it to be
determined which one of the two[6] belligerents is the aggressor?
The Protocol attempts to meet this difficulty by laying down two
different methods of determining the aggressor. One is by creating
certain presumptions, which I shall discuss later; the other is for the
case in which none of the presumptions is applicable.
In this case, that is to say, in the absence of the presumptions, it is
for the Council to determine the aggressor and, in order to come to
such a determination, the Council must act unanimously under the
general rule of Article 5 of the Covenant.
I have no doubt of this conclusion, which is the conclusion of the
Report to the Assembly. It is true that the language of Article 10 of
the Protocol is not as clear as it might be, since the duty and power
of the Council to determine the aggressor are not directly stated, but
rather to be inferred from the language.
What Article 10 of the Protocol says as to this in its last paragraph
but two[7] is that, apart from the cases when there is a presumption,
"if the Council does not at once succeed in determining the
aggressor, it shall be bound to enjoin upon the belligerents an
armistice, and shall fix the terms, acting, if need be, by a
two-thirds majority and shall supervise its execution."
{57}
So that in those cases where the presumptions hereafter considered do
not arise, it is the duty of the Council to determine the aggressor; it
must act unanimously in coming to such a determination; as the Report
to the Assembly says,
"Where there is no presumption, the Council has to declare the
fact of aggression; a decision is necessary and must be taken
unanimously";
and, if the Council is not unanimous, it _must_ enjoin an armistice
upon the belligerents.
Before coming to the procedure before the Council, I now enumerate
those cases in which, because of the existence of certain facts, a
State is "presumed" to be an aggressor; any such presumption can be
upset only by the _unanimous_ decision of the Council to the contrary.
These cases are as follows:
1. If hostilities have broken out and a State has refused to
submit the dispute to the procedure for pacific settlement
contemplated by the Protocol.
2. If hostilities have broken out and a State has refused to
comply with a decision, award, etc.
3. If hostilities have broken out and a State has disregarded a
determination that the matter in dispute is a domestic matter
_and_ has not submitted the question for discussion by the
Council or Assembly under Article 11 of the Covenant.
4. If hostilities have broken out and a State has violated the
provisional measures against mobilization, etc., contemplated
by Article 7 of the Protocol (and which will be mentioned
later).
Certainly the theory of the first three of the four instances above
mentioned is the theory stated by Herriot in his speech before the
Assembly that the State that refuses arbitration is an aggressor.[8]
In other words, law is substituted for force.
Now it is to be observed that in each of the four foregoing {58} cases
_hostilities must have broken out_ and in each one of them at least one
additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the
aggressor; but who is to say, how it is to be determined, whether or
not at any particular moment these facts exist? It is not sufficient
to say that the facts will be open and notorious, for they might not
be. Indeed, if we look critically at each one of what I may call the
required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to
arise; this fact is that hostilities shall have broken out. One's
first impression might be that this could never be a matter of doubt;
but this is not so. Take the case of Corfu, for example. Italian
officers had been murdered in Greece by somebody; various individuals
had been killed at Corfu by a bombardment of the Italian fleet. Had or
had not hostilities broken out within the meaning of Article 10 of the
Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a
dispute to the procedure for pacific settlement. It is very easy to
suppose cases where there would be a difference of view as to this. A
State might claim, for example, that the matter was a domestic question
which it did not have to submit to the procedure for pacific
settlement. There might be a difference of opinion as to whether or
not the matter had been actually decided by the tribunal. It is not at
all uncommon in municipal law for parties to disagree as to whether a
particular question is or is not _res judicata_; there have been many
litigations over this very point; and there have been international
arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a
State had disregarded a determination that the matter in dispute was
domestic or as to whether or not a State had {59} submitted a question
for discussion under Article 11 of the Covenant. Such differences of
opinion could easily arise because of the non-formulation in precise
terms of just what the dispute was. Parties do not always agree as to
what it is they are differing about and they may in fact be at the same
time differing as to more than one question. As to whether or not a
State had violated the provisional measures against mobilization
contemplated by Article 7 of the Protocol, that document itself
recognizes that such a question would require investigation, and in
such case and in such case only the Protocol gives the Council the
power to determine the question of fact, acting by a two-thirds
majority.
So we come back to the situation that a presumption as to the aggressor
can exist only if certain facts exist; and that the existence of one or
more of these facts may very likely be in doubt or dispute and that,
with one exception, there is no procedure for determining such
questions of fact so as to be able to say with certainty that the
presumption _does_ exist.
What is the answer to this difficulty? If we look at the matter
technically, we must conclude that none of the presumptions created by
Article 10 of the Protocol can ever arise unless the facts[10] were
admitted by the two[11] disputants. Such an admission would mean, in
other words, that one of the parties openly admitted that it was an
aggressor.
If the facts were in dispute or, in other words, if the existence of
the presumption was in dispute, the Council could not determine the
aggressor on the basis of a presumption requiring the unanimous vote of
the Council to upset it; but would be required to determine the
aggressor under the general provision which was first mentioned, under
which no presumption exists and when the Council is required by
affirmative unanimous vote to determine the aggressor.
Here again, however, there would unquestionably be disputed facts; that
is to say, unless one of the parties said that it was the aggressor, it
would require an elaborate investigation to {60} determine under the
language of Article 10 of the Protocol whether a State _had_ resorted
to war in violation of its undertaking, or _had_ violated the rules
laid down for a demilitarized zone. It is utterly impossible to
suppose that the Council could ever immediately determine the aggressor
under such circumstances by unanimous vote; and such determination
_must_ be immediate. The language of the text is: "at once"; and in
the French: "dans le plus bref délai."
Let us look at the matter concretely and take up the question of
procedure, supposing an actual case before the Council. There is a
crisis; hostilities have or are supposed to have broken out; there are
two States which either are or are thought to be at war; the Council
meets. Not only under the realities of the situation, but under the
express language of the Protocol, the Council must act instantly; the
peace of the world is at stake.
Now, under those circumstances, there could be only two situations.
One would be when some Great Power, either by open and announced
defiance or by its refusal even to meet with the Council, proclaimed
itself an aggressor. In that case of course neither the language of
Article 10 nor any other language would make any difference. The other
situation would be that the two States were there before the Council,
each claiming that the other was in the wrong, each disputing the
allegations of fact made by the other's representative. In such case
clearly no presumption could arise and in such case the Council could
not ever immediately determine the aggressor by unanimous vote. The
mere fact that it would require time to examine into the truth of the
respective allegations would prevent this. So the Council, by the
compelling facts of the situation and indeed in accordance with the
strictest construction of the Protocol, would be constrained to declare
and would declare an armistice.
Any dispute as to what State was guilty of aggression prior to that
time would be put over for subsequent adjustment; the armistice would
be laid down and would be obeyed. Of course, in theory, it could be
violated and the violator of the armistice {61} would become the
aggressor; but a State that was going to refuse or violate the
armistice, knowing the procedure, would doubtless not go to the Council
at all.
So, to my mind, the vital part of the procedure laid down by Article 10
for determining an aggressor is found in the provision giving the
Council the power immediately to declare an armistice; and, under the
procedure, this, in my judgment, is the only power that the Council
would ever exercise, except in the case suggested, in which a State
itself denounced itself as an aggressor.
I am aware that the framers of the Protocol are not in accord with
these views. In their opinion, the presumptions of Article 10
establish "an automatic procedure which would not necessarily be based
on a decision of the Council." They say that where a presumption has
arisen and is not unanimously rejected by the Council, "the facts
themselves decide who is an aggressor" and otherwise that "the Council
has to declare the fact of aggression."
I can only say that their conclusions, while perhaps admissible as a
mere matter of language and nothing but language, take no account of
the inevitable certainty that there will always be at least two views
of what the facts are; to put it from a legalistic viewpoint, tribunals
do not deal with facts; they deal with what lawyers call facts, but
which are merely conclusions based on such evidence as is available.
This sort of a "fact" is arrived at only after a hearing or a trial of
some kind; and to suppose that the Council could ever conduct such a
hearing, and at the same time come to a unanimous and immediate
conclusion is to suppose a contradiction in terms.[12]
So while from the language of Article 10 of the Protocol difficulty may
arise in determining an aggressor under its provisions (for there might
in any case be a disputed or doubtful question of fact; and the Council
under the provisions of the Covenant would in general have to act
unanimously) the Protocol provides a solution of any such difficulty by
saying that if the Council does not immediately determine the
aggressor, it _must_ {62} (the language is mandatory) proceed to enjoin
an armistice, to fix its terms and to supervise its execution, acting
for these purposes by two-thirds majority. Then the Protocol provides
that any belligerent which refuses the armistice or violates it shall
be the aggressor.
These provisions regarding an armistice seem to me to meet any possible
objection that might be raised to the absence of a more complete and
detailed system of determining in fact and in law what State is an
aggressor.
No matter what the presumptions were or even what procedure was laid
down, it is clear that, after hostilities in any given case had
actually commenced, there would be enormous difficulty for any tribunal
whatever in laying down conclusively which State was the aggressor.
After all, the vital thing is to prevent war; and the opening of
hostilities, to be immediately followed by an armistice, would not be
very much of a war. So I regard these provisions as to an armistice as
the most ingenious [Transcriber's note: ingenuous?] and, except its
statements of principle, the most important of all the provisions of
Article 10 of the Protocol.
The power given to the Council to formulate an armistice would be the
power exercised if hostilities broke out rather than the power of
adjudging the aggressor; unless the aggression was openly admitted,
which would mean that one of the parties to the Protocol really defied
the others; and, in that case, of course, it would defy the terms of an
armistice as well as any other terms. But in any other case a new
consideration would immediately arise. The Council would formulate an
armistice and in the absence of an open defiance by one State, or
possibly by a group of States, of all the others, the armistice would
introduce a new situation, a situation in which hostilities were _not_
going on; and human experience shows that, given an armistice, the
recommencement of hostilities on the old grounds is a real
impossibility.
In the view that I take, the Sanctions of the Protocol become less
important in the light of its provisions as to the determination of an
aggressor, for it is only against an aggressor that the {63} main
Sanctions of the Protocol can be brought into play; and these
provisions for determining the aggressor really mean that an aggressor
is a State or a combination of States which has finally and
deliberately determined to begin war and to carry it on regardless of
its most solemn engagements to the contrary. In other words, there
could be no war as between the parties to the Protocol without a
wilful, wanton and wicked disregard of its provisions.
[1] p. 50, _et seq._
[2] First paragraph.
[3] Annex C, p. 156 at p. 186.
[4] I use the word here in its largest sense.
[5] Annex C, p. 156 at p. 187.
[6] Of course there may be more than two.
[7] The reason why I have used in regard to Article 10 of the Protocol
this uncouth language, "its last paragraph but two," is that in the
English text of Article 10 there is a textual error which is extremely
confusing. Article 10 really consists of five paragraphs, and the
second of these five paragraphs has two sub-heads or sub-paragraphs
numbered 1 and 2. The third paragraph of Article 10, in referring to
these two sub-heads of the second paragraph calls them "paragraphs 1
and 2." In other words, the first words of what is here referred to as
the third paragraph of Article 10 (the paragraph which I call "the last
paragraph but two") read as follows: "Apart from the cases dealt with
in paragraphs 1 and 2 of the present Article." They should read
something like this: "Apart from the cases dealt with in sub-heads 1
and 2 of the second paragraph of the present article." Compare the
French text which is perfectly clear: "Hors les hypothèses visées aux
numeros 1 et 2 du présent article." See the English and French Texts
of Article 10 in full, _infra_, pp. 144, 145.
[8] September 5, 1924.
[9] _e. g._, the Pious Fund case reported in the Hague Arbitration
Cases, p. 1, and the Interest Case between Russia and Turkey, _op.
cit._, p. 260. These two cases are also in Stowell and Munro's
International Cases, Vol. I, p. 58, _et seq._
[10] I mean the facts from which the presumption as to the aggressor
would arise.
[11] I assume only two, for convenience.
[12] In the Dogger Bank case, the Commission of Inquiry sat for more
than two months. Hague Court Reports, Scott, p. 403.
{64}
CHAPTER XI.
THE JAPANESE AMENDMENT.
During the framing of the Protocol of Geneva by the Committees of the
Fifth Assembly of the League of Nations, the language of the document
was changed by what has been called the Japanese Amendment; and while
the provisions which constitute that amendment as part of the Protocol
have been generally considered in the previous discussion in connection
with the application of various Articles, still that amendment attained
such prominence in the discussions in the Fifth Assembly and since,
that it may well be separately reviewed.
The Japanese Amendment related to domestic questions, questions within
the domestic jurisdiction of a State; and before coming to its terms,
it will be well to see what the situation as to these domestic
questions is under the Covenant, taken by itself.
The Covenant, as we have seen,[1] provided for the submission to the
Council of all disputes between Members of the League which were not
otherwise adjusted by some kind of agreement or by some kind of
Tribunal. In regard to those disputes submitted to the Council, the
eighth paragraph of Article 15 of the Covenant said that if one of the
parties claimed, and if the Council found, that the dispute related to
a question which by international law was entirely within the
jurisdiction of a State, the Council should so report and make not even
a recommendation regarding a settlement. In other words, if the
dispute related to a domestic question and one of the parties to the
dispute raised the point, the Council could not proceed at all to make
any recommendation which would bind the parties to the dispute or
either of them to anything whatever.
At the same time, under the Covenant, by Article 11, either the Council
or the Assembly might consider _any_ circumstance tending to threaten
or disturb international peace. The language in this regard is
general. It means no more than discussion and {65} suggestion, except
perhaps publicity; but under this language of Article 11, the parties
were left with their liberty of action in the matter; and indeed, under
the Covenant, the Members of the League entered into no commitment
against going to war in the case of a dispute about a domestic question.
So we may sum up the provisions of the Covenant as to a dispute
regarding a domestic question by saying that while such a dispute might
go to the Council,[2] still the Council,[2] if the point were raised,
could make no recommendation about it; but the Council (or the
Assembly) might take the matter into consideration as a subject of
discussion when it threatened peace, with the hope and duty to preserve
the peace if possible; but in regard to this the parties remained free
to act as they might themselves finally determine.
The Protocol of course, as we have also seen,[3] makes a great change
in this situation because it contains a general agreement by the
parties not to resort to war, an agreement which is applicable to
disputes about domestic questions to the same extent that it is
applicable to disputes about international questions; this general
agreement not to go to war includes all questions of both kinds.
Furthermore, the Protocol makes it very much more likely that disputes
between Members of the League will go for a hearing to a Committee of
Arbitrators than to the Council; we have seen[4] that the likelihood of
any dispute going to the Council under the new régime, for
consideration on the merits, is remote. The functions of the Council
regarding disputes are to some extent delegated to the Permanent Court
of International Justice, but even more largely to Committees of
Arbitrators agreed on or appointed _ad hoc_.
Now the Japanese amendment is not strictly a single amendment; it is in
two parts. The first part is the last (third) paragraph of Article 5
of the Protocol, reading as follows:
{66}
"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 of the Covenant."
We must bear in mind that by the second paragraph of Article 5, any
Committee of Arbitrators, in its consideration of a dispute is subject
to the same limitations concerning a dispute about a domestic question
as are provided for the Council. The method of so limiting the
Committee of Arbitrators is that the question of law is decided by the
Permanent Court of International Justice, and if that Court decides
that the question is domestic, the Committee of Arbitrators simply so
declares and proceeds no farther.
What the paragraph of Article 5 above quoted says is that although
neither the Council nor a Committee of Arbitrators may consider a
dispute regarding a domestic question if the point is raised, still
none the less the Council or the Assembly, under Article 11 of the
Covenant, may consider the situation in its bearing upon the peace of
the world. Now such consideration under Article 11 of the Covenant
would have been possible without this statement, so that, to my mind,
this portion of the Japanese amendment makes no change in that regard.
The paragraph does not change the legal situation at all, but simply
makes explicit what was otherwise implied.
The other portion of the Japanese Amendment is the clause which is
added to sub-head 1 of the second paragraph of Article 10, beginning
with the word "nevertheless."
In order to see just what this other portion of the Japanese Amendment
is, I cite here the second paragraph of Article 10 (omitting certain
phrases not here material) with the words of the Japanese Amendment
italicised:
"In the event of hostilities having broken out, any State shall
be presumed to be an aggressor, unless a decision of the Council,
which must be taken unanimously, shall otherwise declare:
{67}
1. If it * * * has disregarded a unanimous report of the Council,
a judicial sentence or an arbitral award recognizing that the
dispute between it and the other belligerent State arises out of
a matter which by international law is solely within the domestic
jurisdiction of the latter State; _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_."
The language of Article 10 of the Protocol is quite involved, I have
already discussed it at some length,[5] endeavoring to show that its
real effect differs greatly from the theory of its framers, a theory
borne out, perhaps, by the language of Article 10 considered as
language only. I sum up _that theory_ as follows:
Laying down the general principle that a State which resorts to war
contrary to the Covenant or to the Protocol is an aggressor, and
prescribing a general procedure by which it is for the Council to
decide, unanimously of course, whether such a violation has taken place
(and in the absence of such unanimous decision to declare an armistice)
none the less Article 10 limits or qualifies this general procedure by
enumerating certain classes of cases in which the facts would
_supposedly_ be so open, so notorious, so impossible to question, that
they would create a presumption as to the State which was the
aggressor; and such presumption could be upset only by unanimous vote
of the Council against it.
I repeat that this is the theory of MM. Benes and Politis; it is not
mine.
My own view, heretofore expressed, is that in no case could the
supposedly notorious facts create a presumption because there would
always be a difference of opinion as to those very facts themselves.
But proceeding on the other theory, and looking only at the language,
the presumptions are important; here it is necessary to refer to only
one of them.
{68}
This presumption arises when a State has "disregarded" a decision by
the Council, by the Court or by the Arbitrators following the Court,
that a dispute arises out of a domestic question _and has also not
submitted_[6] the question to the Council or the Assembly for
discussion, under Article 11 of the Covenant.
Before the Japanese amendment, the text was that the presumption arose
when a State "disregarded" such a decision to the effect that the
dispute arose out of a domestic question.
Now let us see what the difference between the two is, that is to say,
the difference between the text _prior_ to the Japanese amendment and
the text _with_ the Japanese amendment.
In either case the decision on the question of law has gone against the
complaining State. The proper tribunal has decided that the question
is a domestic question and that decision in either case is and remains
conclusive.
In either case, the State "disregarding" that decision and going to war
is an aggressor. We may see that this is so by supposing that the
entire original text as well as the text of this portion of the
Japanese amendment was stricken out.[7] Then, clearly, the State would
be an aggressor under Article 2 of the Protocol and under the first
paragraph of Article 10; and there is nothing either in the original
text that we are considering or in the Japanese addition thereto which
changes that conclusion.[8]
The difference then between the original text and the text with the
amendment is this: in the original text, a complaining State
disregarding such a binding decision as to the domestic character of
the question was _presumed_ an aggressor if it went {69} to war _either
before or after_ the consideration of the matter by the Council or the
Assembly under Article 11 of the Covenant. Under the text as amended,
such a State is _presumed_ to be an aggressor only if it resorts to war
_before_ such consideration under that Article 11.
In other words, the difference between the original and amended texts
would arise only in the following circumstances: State A brings a
dispute against State B before a tribunal (Council, Committee of
Arbitrators, etc.). The tribunal renders a binding decision that the
dispute arises out of a domestic question. The complaining State,
bound by that decision, then brings the matter before the Council or
the Assembly under Article 11 of the Covenant and no adjustment
results; thereupon the complaining State resorts to war.
Under those circumstances, in the original text, the State resorting to
war would be _presumed_ an aggressor, a presumption to be upset only by
the unanimous vote of the Council against it. Under the amended text,
the complaining State would be an aggressor, but there would be no
presumption; and the determination that it was an aggressor would come
on to be made by the Council, which would either have to vote
unanimously that the complaining State was an aggressor, or else
proclaim an armistice.
I confess that it is difficult to see why such a refined and subtle and
technical distinction about the presumption of aggression should be
made. If there is a binding decision by a tribunal that a dispute
arises out of a domestic question, surely a complaining State, under
the principles of the Protocol, is bound not to go to war, because it
is legally wrong in its claim and has been so adjudged. Just why a
State going to war under such circumstances should be _presumed_ to be
and be an aggressor if it goes to war _before_ a discussion of the
matter subsequent to the decision and not be _presumed_ to be an
aggressor but merely be an aggressor, if it goes to war _after_ such
discussion, is not logically to be explained.
However, the foregoing discussion resulting in such an {70} obscure and
technical distinction is, as I intimated, based solely on the language
of the Article and on the legalistic theory of its framers as to its
meaning and result. Earlier in my discussion,[9] I pointed out that I
do not agree with the conclusions of MM. Benes and Politis, for I do
not think that the presumptions laid down in Article 10 of the Protocol
would ever have any material bearing on the decision reached by the
Council. In other words, repeating in substance what I said before, I
believe that the power to declare an armistice is the only power under
Article 10 of the Protocol which the Council would ever exercise,
except in a case where a State itself denounced itself as an aggressor.
Furthermore, it seems to me that the very intricacies of the language
of Article 10 of the Protocol are themselves a very real indication
that my conclusion is correct.
As a matter of reality, I cannot see that the Japanese amendment in any
conceivable case would cause any difference in what would happen. We
must suppose that war has commenced, for unless there is a resort to
war, Article 10 of the Protocol is out of the picture entirely.
Assuming then a resort to war, there are, under Article 10, with all
its provisions and exceptions and presumptions, only two real
possibilities:
a. There is an open and admitted and defiant aggression.
b. There is a difference as to the facts and it follows that it is
not possible for the Council _at once_ to reach a unanimous
conclusion in the case; accordingly the Council declares an
armistice which each belligerent must accept or become an
aggressor.
What these two cases come to is obviously one of two alternatives,
namely, either some State is going on with its fighting, with its war,
regardless of the Council and regardless of the Protocol, or else there
is an armistice and the fighting stops. Under the first circumstance,
the provisions as to presumptions and as to the decisions of the
Council are alike of no {71} consequence; and, in the second case, the
war ends with an armistice as soon as it commences.
The drafting of Article 10 of the Protocol is unfortunately obscure;
but when the language of the whole Japanese amendment is carefully
looked at, it seems to me that it certainly adds nothing to the powers
of either the Council or the Assembly in considering disputes arising
from domestic questions, and that the legal right of any State to
determine and control its own domestic matters remains unquestioned;
indeed, it may be said to remain more unquestioned than it is now; for,
under the Protocol, that right cannot be questioned by the League,
either in Council or in Assembly; it cannot be questioned by the
Permanent Court or by Arbitrators; and it cannot be questioned by war.
All that is possible is friendly discussion and consideration under
Article 11 of the Covenant and that, so far as Members of the League
are concerned, is possible now.
Of course it might be argued that the various possible decisions and
presumptions under Article 10 of the Protocol might make some
difference as to the charging of the costs of the aggression under
Article 15 of the Protocol; but the possibilities involved are too
remote to be worthy of discussion.
[1] _Supra_, p. 18, _et seq._
[2] or the Assembly.
[3] _Supra_, p. 50, _et seq._
[4] _Supra_, p. 23, _et seq._
[5] pp. 54-63.
[6] The text says "previously." Presumably this means before
hostilities broke out. It might mean before the "disregard" of the
decision that the dispute was domestic. Precisely how a State could
"disregard" such a decision, except by resort to war, is not very
clear. The French is "qui aura passé outre à un rapport," etc.
[7] That is, all the text above quoted as part of sub-head 1 of the
second paragraph of Article 10, beginning "has disregarded a unanimous
report of the Council."
[8] The Japanese proposal regarding this Article as it first stood, was
to strike out all the words referring to the "domestic jurisdiction,"
etc.; the addition of the clause commencing "nevertheless" was a
compromise; it would have been a much simpler result and a better one,
I think, to have omitted the whole clause, as the Japanese proposed.
[9] pp. 61, 67.
{72}
CHAPTER XII.
SANCTIONS.
The Protocol of Geneva provides for sanctions or penalties for its
breach by a Signatory.
Before considering the main sanctions which are set up by the Protocol,
it may be mentioned that there are certain provisional measures which
may be taken which fall short of the chief sanctions.
Under Article 7, in the event of a dispute between Signatories they
agree, pending its settlement, not to increase their armaments, take
mobilization measures, etc., and the Council is given the right, upon
complaint being made, to make enquiries and investigations as to the
maintenance of these agreements, and to decide upon measures in regard
thereto, so as to end a threatening situation. Similar powers are
given to the Council under Article 8 concerning threats of aggression
or preparations for war, and in all these cases, the Council may act by
a two-thirds majority.
The preventive measures which the Council may take as to such
preliminary matters are not precisely defined. It is to be pointed
out, however, that a State violating the engagements of Article 7 or
Article 8 would not be an aggressor against which the main sanctions of
the Protocol could be directed, assuming that hostilities had not
broken out. Accordingly, the measures which could be "decided upon" by
the Council would perhaps be limited to those of warning, of advice and
of publicity; certainly they could not be measures of force; and in my
opinion, they could not go as far as sanctions of any kind, economic or
otherwise; the General Report[1] speaks of "the evacuation of
territories" as a possibly appropriate measure; this indicates that the
"measures" are to be "taken" by the State guilty of violation of the
agreements mentioned; _certainly_ there would be no obligation on the
part of any Signatory to take any steps against a violation of these
agreements of Articles 7 and 8; but the {73} language is very vague and
all doubt should be set at rest by changing it particularly as the
Council may decide by a two-thirds vote.
In considering the main sanctions provided by the Protocol, the first
point to be emphasized is that they cannot come into play until a state
of war, in the real sense, exists; hostilities must have broken out, so
that the world is confronted with fighting actually taking place. It
is true that there is a theoretical exception to this in the fact that
a violation of the rules of a demilitarized zone is equivalent to a
resort to war; but this exception is more apparent than real for the
violation of a demilitarized zone would be only a brief prelude to
hostilities.
The second condition precedent to the application of the sanctions is
the determination of the aggressor.[2] And in any case the
determination by the Council as to which State is the aggressor must
have taken place before the sanctions are to be applied.
This is laid down in the last paragraph of Article 10, which provides
that the Council shall "call upon" the Signatories to apply the
sanctions.[3] As the sanctions contemplated by the Protocol are _in
theory_ merely a development of the sanctions contemplated by Article
16 of the Covenant, it is interesting to note that this preliminary
calling by the Council upon the States to apply the sanctions
introduces a new system, at least a system which develops from the view
taken by the Assembly under Article 16 of the Covenant in 1921; for in
the elaborate resolutions then adopted,[4] it was stated, among other
things, that the Council was to give merely an "opinion" as to whether
there had been a breach of the Covenant by resort to war, but that it
was for each State to decide "for itself" whether or not its duty to
apply the sanctions provided by Article 16 of the Covenant had arisen.
{74}
The reason for this development is easy to see. Even though the
sanctions of the Protocol may in theory be the same as those of Article
16 of the Covenant, _they are applicable to a very different state of
facts_. The sanctions of Article 16 of the Covenant were to be applied
to any Member of the League which resorted to war in disregard of
certain provisions of the Covenant in Articles 12, 13 and 15, and the
difficulty of determining whether or not, in a given case, a resort to
war _was_ a violation of those other Articles of the Covenant was not
solved, particularly as the Covenant does not preclude a resort to war
in _every_ case. Under the Protocol, however, every resort to war by
the parties to it is forbidden (except by way of defense or in aid of
defense or perhaps in execution of a judgment of some tribunal), and a
procedure which, in theory at least and probably in practice, would
always determine the aggressor, is provided. For if my view is
correct, an "aggressor" is a State which openly and wilfully defies the
other Signatories when summoned by the Council under Article 10 of the
Protocol. Consequently, it is now for the Council, upon the
determination of the aggressor, to call for the application of the
sanctions.
Of course, in all cases of a serious decision such as this would be,
the Council is not an outside body "calling" upon Governments to do
something. The words used lead one almost unconsciously to visualize
the Council as a sort of entity like a Court, laying down a rule of
conduct for some one; but this is a false vision; for in any such case
the Council is a group of representatives of Governments agreeing, in
the first instance, as such representatives of their own Governments,
upon a course of action to be taken by those very Governments pursuant
to a treaty obligation. We must think of any such action by the
Council as meaning primarily that the British representative and the
French representative, and so on, agree that the respective countries
which they represent will follow a certain course of action in accord.
If the Council were composed of all the Members of the League, it would
be proper to describe its action under such a provision as this as
being a conference of the parties to the {75} treaty to decide as to
what, if anything, those parties should do, and to come to such
decision unanimously, if any decision is to be reached. It is only as
to the Governments which are not represented on the Council that the
Council "calls" for action; so far as the Governments represented on
the Council are concerned, what they do is to _agree_ upon a course of
action.
In theory, as I have said, the sanctions of the Protocol are no more
than a development of those of Article 16 of the Covenant. The
language of the Protocol indeed, in Article 11, incorporates the
provisions of Article 16 of the Covenant by reference.
No provisions of the Covenant have been more debated since it was
written than those of Article 16. In 1921, various amendments to this
Article of the Covenant were proposed, none of which has gone into
force; and, as mentioned above, the Assembly then adopted various
interpretative resolutions regarding Article 16 which, with the
proposed amendments (one of which was textually modified in 1924), are
_provisionally_ in force.[5]
It is unnecessary to attempt any detailed consideration of the exact
legal effect of Article 16 of the Covenant at the present time in view
of these interpretative resolutions and proposed amendments; in general
they are intended to make the system of the economic blockade more
flexible in its application so far as may be consistent with the
purpose of the first paragraph of Article 16 of the Covenant, namely,
to institute a complete economic and financial boycott of an aggressor.
This first paragraph of Article 16 of the Covenant says also that the
aggressor shall _ipso facto_ be deemed to have committed an act of war
against the other Members of the League; this provision does not create
a state of war; it simply gives the other Members of the League the
right to consider themselves at war with the aggressor if they see fit;
this provision is supplemented by the language of Article 10 of the
Protocol which gives to any signatory State called upon to apply
sanctions the privilege of exercising the rights of a belligerent, if
it chooses.
{76}
Paragraph 2 of Article 16 of the Covenant made it the duty of the
Council to "recommend" to the various governments what armed forces
they should severally contribute for use in protecting the covenants of
the League.
Now what Article 11 of the Protocol does in its first paragraph is to
say that the obligations of all States in regard to the sanctions
mentioned in paragraphs 1 and 2 of Article 16 of the Covenant will,
when the call for the application of the sanctions is made by the
Council, immediately become operative, in order that such sanctions may
forthwith be employed against the aggressor.
So far as the first paragraph of Article 16 of the Covenant is
concerned--the economic and financial blockade--I do not see that this
first paragraph of Article 11 of the Protocol adds anything to that
first paragraph of Article 16 of the Covenant, even when the former is
read in connection with the second paragraph of Article 11 of the
Protocol.
It is true that in the resolutions about the economic weapon in the
Assembly of 1921, it was recognized that from practical points of view
the application of the economic pressure cannot be made equally by all
countries. But undoubtedly, subject to the practical difficulties
mentioned, a definite obligation exists in Article 16 of the Covenant
to impose economic sanctions against the aggressor, and, as I said, in
my judgment this obligation is not changed by the Protocol; but it can
now become an operative obligation only if and when the Council says so.
The vital question regarding sanctions under the Protocol arises under
the second paragraph of Article 16 of the Covenant in connection with
the first and second paragraphs of Article 11 of the Protocol. Indeed,
it is because of this second paragraph of Article 11 of the Protocol
that the question regarding the use of the British Fleet has been
raised in England.
Article 16, paragraph 2 of the Covenant reads as follows:
"It shall be the duty of the Council in such case to recommend
to the several Governments concerned what effective naval,
military or air force the Members of the League shall severally
{77}
contribute to the armed forces to be used to protect the
covenants of the League."
Article 11, paragraphs 1 and 2 of the Protocol read as follows:
"As soon as the Council has called upon the signatory States to
apply sanctions, as provided in the last paragraph of Article
10 of the present Protocol, the obligations of the said States,
in regard to the sanctions of all kinds mentioned in paragraphs
1 and 2 of Article 16 of the Covenant, will immediately become
operative in order that such sanctions may forthwith be employed
against the aggressor.
"Those obligations shall be interpreted as obliging each of the
signatory States to co-operate loyally and effectively in support
of the Covenant of the League of Nations, and in resistance to
any act of aggression, in the degree which its geographical
position and its particular situation as regards armaments allow."
On its face, paragraph 2 of Article 11 of the Protocol merely
interprets paragraph 2 of Article 16 of the Covenant; but
unquestionably _it greatly changes it_. Under the provisions mentioned
of the Covenant, the Council had merely the duty of recommendation as
to forces to be contributed by Members of the League. Undoubtedly
under Article 16 of the Covenant, paragraph 1, any Member of the League
had the right, if it chose, to consider itself at war with an
aggressor, but equally under that paragraph any Member of the League
had the right, if it chose, _not_ to consider itself at war with an
aggressor. Consequently there was no duty whatever under that Article
16, not even a moral duty, in my judgment, on the part of any Member of
the League to contribute any armed forces whatever. The Council had
the duty (under Article 16, Paragraph 2, of the Covenant) of making a
recommendation; but it was merely a recommendation, and there was no
obligation of the Member of the League to which the recommendation
applied; there was merely a possible privilege to the Member of the
League to which the recommendation applied--and that is a very
different thing.
Now, let us look at paragraph 2 of Article 11 of the Protocol, quoted
above. Each signatory State is "to cooperate loyally and {78}
effectively" not only "in support of the Covenant," but "in resistance
to any act of aggression." Well, certainly resistance to an act of
aggression means force and this fact is not qualified but emphasized by
the words: "in the degree which its geographical position and its
situation as regards armaments allow." I grant that these words have a
qualifying effect in some cases. They would mean, for example, that if
Denmark had no army, she could not be under any obligation to use
infantry. But they also refer to the other side of that picture, that
the British do have a navy, that is their particular situation as
regards armaments, a very particular situation; and under this Article,
as I read it, the British would be bound "loyally and effectively" to
cooperate in resistance to an act of aggression in the degree which
their particular naval situation allowed.
Furthermore, paragraph 1 of Article 11 of the Protocol says that the
"obligations * * * in regard to the sanctions of all kinds mentioned"
not only in paragraph 1 but also in paragraph 2 of Article 16 of the
Covenant "will immediately become operative." This indicates that
there are military, naval and air sanctions to be employed and that the
parties to the Protocol are under obligations to employ them.
Now, it is no answer to this to say that as to the _extent_ of the
armed forces to be used, the signatory State has its own discretion;
and it is true that there would be no international command, there
would be no turning over of the forces of one country to the General
Staff of another or to an international Staff of all; however, even
that did not take place during the first three years of the World War,
except with specific detachments. So, for example, the British could
say that they would send five destroyers or ten cruisers under their
own Admiral, or the Grand Fleet if they chose; but clearly it would be
bad faith for them to say with this commitment that they would not send
even a gunboat.
I am entirely satisfied that these provisions greatly extend the
provisions of the Covenant; for the first time[6] there is {79}
introduced in the League system a definite military
commitment--definite in the sense that it is obligatory, and not in the
sense that it is defined as to extent of force.[7]
It may be argued that the first paragraph of Article 13 of the Protocol
looks somewhat the other way, but I do not think that it does. That
paragraph merely provides that the parties to the Protocol, if they see
fit, may give to the Council "undertakings"[8] as to the military
forces which they would use in applying the sanctions of the document.
There is no obligation to give any such undertaking; it is purely
optional with each State. Doubtless if such an undertaking was given
and accepted by the Council, the State giving it would at least not
have to do anything more in the way of military action than provided in
the undertaking; but as the giving of the undertaking is optional, the
fact of its not having been given would not, in my opinion, limit or
qualify the obligation "interpreted" in the second paragraph of Article
11 of the Protocol.
I point out here that the word "contingent" in the first paragraph of
Article 13 of the Protocol does not relate to the obligatory character
of the sanctions but to the necessary uncertainty as to the future
existence of the breach required for their applicability (see the
French text); and the debate in the Third Committee and more
particularly the Report unanimously adopted by the Assembly, in its
discussion of Article 11,[9] make it clear that the above
interpretation as to the military sanctions is correct; uniform in
obligation, they are flexible in application.
Consideration of the third paragraph of Article 11 of the Protocol in
connection with the third paragraph of Article 16 of the Covenant tends
to support the views already expressed. Without further elaboration, I
call particular attention to the last clause of the paragraph of the
Protocol mentioned and cite {80} the respective paragraphs of the two
documents in parallel columns:
_Paragraph 3 of Article 16 of _Paragraph 3 of Article 11 of
the Covenant._ the Protocol._
"The Members of the League "In accordance with paragraph
agree, further, that they will 3 of Article 16 of the
mutually support one another Covenant the signatory States
in the financial and economic give a joint and several
measures which are taken undertaking to come to the
under this Article, in order to assistance of the State attacked
minimize the loss and or threatened, and to give each
inconvenience resulting from the other mutual support by means
above measures, and that they of facilities and reciprocal
will mutually support one exchanges as regards the
another in resisting any special provision of raw materials and
measures aimed at one of their supplies of every kind, openings
number by the Covenant-breaking of credits, transport and transit,
State, and that they and for this purpose to take all
will take the necessary steps to measures in their power to
afford passage through their preserve the safety of
territory to the forces of any communications by land and by sea
of the Members of the League of the attacked or threatened
which are co-operating to State."
protect the covenants of the
League."
There are certain other provisions of the Protocol regarding sanctions
which should be mentioned at least for the sake of completeness.
It is the Council[10] which declares that sanctions are at an end and
that "normal conditions be re-established" (Article 14).
To the "extreme limit of its capacity," all costs of an aggression are
to be borne by the aggressor (Article 15). The language concerning the
extent of the liability involved is very sweeping, going much farther
than the categories of damage mentioned in Annex I of the Reparation
clauses of the Treaty of Versailles.
{81}
The plans to be drawn up by the council for the detailed application of
the economic and financial sanctions are to be "communicated" to the
Signatories--in other words, they are advisory, not binding (Article
12).
Here it should be said that the final words of this Article 12 mention
"the Members of the League and the other signatory States." These
words imply the possibility of States signatory to the Protocol which
are non-Members of the League. As pointed out above,[11] no such
possibility exists, in my opinion. Even if such a theoretic
possibility existed, it would be absurd to suppose that any State would
sign the Protocol, with obligations going beyond those of the Covenant,
while still being outside the privileges of the Covenant; however, the
question is of no special importance here.
The main sanctions of the Protocol, _as among the Parties to the
Protocol_, may be thus summed up: a war of aggression is an
international crime; a Signatory which either avows itself an aggressor
or refuses an armistice after hostilities have broken out, commits this
crime; and accordingly the other Signatories, upon the call of the
Council, unite in the defence of the Signatory which is not the
aggressor, according to their respective capacities; which means that
if and to the extent that they are able to do so, they contribute by
force to the defence against the aggression, as well as by economic and
financial measures.
But in view of the other agreements of the Protocol regarding pacific
settlement of disputes and its covenants against war, the chief
sanctions of the Protocol would never come into play against a
Signatory, unless that State finally decided to defy the public opinion
of the world and to make into a scrap of paper its own solemn written
pledge.
[1] Annex C, p. 156 at p. 196.
[2] If there were two parties to the conflict, either one or both might
be aggressor. See Article 11 of the Protocol.
[3] I think this means upon _all_ the Signatories. The system of the
Protocol is flexible as to the _extent_ to which the Sanctions are to
be applied by a particular signatory; but all Signatories come under
the same legal obligation.
[4] On October 4, 1921. Official Journal, October, 1921, Special
Supplement No. 6, p. 24.
[5] See League of Nations Official Journal, October, 1921, Special
Supplement No. 6, pp. 14-15, 24-26, also October, 1924, Special
Supplement No. 21, p. 9.
[6] Except as to the possibilities of Article 10 of the Covenant, as to
which see _infra_, p. 84, _et seq._
[7] The debates in the Third Committee of the Fifth Assembly are of
interest in this regard.
[8] The French is "engagements."
[9] Annex C, p. 156 at p. 197, _et seq._
[10] by unanimous vote.
[11] p. 10, _et seq._
{82}
CHAPTER XIII.
SEPARATE DEFENSIVE AGREEMENTS.
The general character of the Protocol of Geneva is such that separate
defensive agreements between the parties to it lose substantially all
of their former importance. The Protocol itself is, among other
things, a general defensive agreement; and under such an agreement,
faithfully lived up to, substantially the only part that could be
played by separate agreements would be to make more detailed and more
regional, perhaps, in their obligation and execution, the general
obligations binding all signatories.
The possibility of these separate defensive agreements is mentioned in
Article 13 of the Protocol. It is laid down that they must be public;
furthermore, action under them cannot take place until the Council "has
called upon the signatory States to apply sanctions." Finally, there
is a most significant provision which illustrates the relatively
unimportant character of such separate agreements under the
Protocol--any such agreement must remain open to all Members of the
League which desire to accede thereto.
This last mentioned provision takes away every possible idea that such
defensive agreements under the Protocol could be anything like the
former "defensive" alliances. Obviously, a defensive agreement which
is open to any Member of the League is merely a part of the general
agreement; particularly is this so when the performance of the
agreement depends and is conditioned upon the request of the Council.
Indeed, in view of the other provisions of the Protocol, it is very
difficult to see any substantial difference between these so-called
defensive agreements and the undertakings[1] which, by Article 13,
States which are signatory to the Protocol may voluntarily give to the
Council regarding the armed forces which might be used in the
application of the sanctions. I say that the {83} two things are
similar for this reason: if in a given case the Council decides that
the military sanctions are to be applied any Signatory is then
entitled, at least if it chooses, to use the whole of its armed forces
against the aggressor. This being so, the use of a specified portion
of these forces in any given case comes to just the same thing whether
it arises from the general agreement to apply sanctions or from a
particular undertaking with the Council or from a particular agreement
with another Signatory.
We may go to this length in thinking of these defensive agreements
hereafter; in view of the fact that they must be public that any Member
of the League may adhere to them and that they cannot be performed
until the Council of the League says so, there could be in such a paper
no effective provision which would go beyond the engagements under the
Protocol itself.
Article 13 of the Protocol says that these separate agreements may be
acceded to by any Member of the League of Nations. This language would
include a Member of the League which was not a signatory of the
Protocol. Under Article 13, it is only the States signatory to the
Protocol which may make separate agreements. The point is doubtless of
no real importance; but it cannot be intended that these separate
agreements, if any be made, shall be acceded to by States other than
those bound by the Protocol, for any such separate agreement would be
in reality a paper subsidiary to the Protocol.
[1] Whether these "undertakings" would have the same legal quality as a
treaty is at least doubtful.
{84}
CHAPTER XIV.
THE PROTOCOL AND ARTICLE TEN OF THE COVENANT.
It is to be remembered that in this portion of the discussion
consideration is given only to the relations _inter se_ of the
Signatories to the Protocol.
As among these States the famous Article 10 of the Covenant will have
lost all its significance.
Article 10 of the Covenant has two distinct aspects. The more
important of these is the undertaking by the Members of the League to
"preserve as against external aggression the territorial integrity and
existing political independence" of other Members. Because of these
guarantees Article 10 was objected to in this country and in Canada
chiefly for the reason that it might involve the use of armed force by
the guarantor States. The further idea that this use of armed force
would necessarily come into play upon a decision of the Council of the
League of Nations was largely fallacious and was practically removed by
the resolution of the Assembly regarding Article 10.[1]
The other side of these guarantees of Article 10, which has perhaps not
always been very well appreciated, is that the obligation of a
guarantor State under Article 10 _may_ be very limited indeed and may
even be nothing at all, even in the case of a wilful attack. Article
10 goes only to two things, territorial integrity and political
independence. If an aggressor State respects these two things it can
do otherwise what it chooses, so far as the guarantor States are
concerned. For example, under Article 10 alone _and taking nothing
else into consideration_, one State could attack another, destroy every
building in the country, blow up every mine, and lay waste every field,
and then retire, saying: The territorial integrity of the country
attacked is now preserved, and its remaining inhabitants retain their
full political independence. Under such circumstances, no guarantor
State under Article 10 of the Covenant of the League of Nations would
be obliged to do anything.
{85}
Now I say that under the Protocol any significance of Article 10, as
among the parties to the Protocol, has disappeared; clearly this is so.
Article 10, so to speak, waited, or at least might wait till the end of
the war.[2] If the aggressor State did not in the Treaty of Peace or
otherwise annex any territory and left the attacked State independent,
Article 10 did nothing at all.[3] But the Protocol commences to work
even before any war commences and certainly at its commencement; there
must be no attack.[4] It is not a question of the final result of the
attack; it is merely a question of the existence of the aggression; and
it is _then_ that all the other parties to the Protocol come to the
defence of the attacked State. The lesser Article 10 of the Covenant
is swallowed up in the greater Protocol.
The other aspect of Article 10 of the Covenant was the undertaking by
each Member of the League to _respect_ the territorial integrity and
political independence of the other Members. This, of course, is an
undertaking in regard only to the acts of the State giving it. Such a
self-denying clause would be implied in the Covenant if it were not
expressed and equally, of course, it is inherent in the Protocol.
Indeed, in the Protocol it was thought necessary to insert a provision
regarding the political independence and territorial integrity, not of
the attacked State but of the aggressor. All that is left now of
Article 10, so far as the signatories to the Protocol _inter se_ are
concerned, is to be found in the second paragraph of Article 15 of the
Protocol, which says that the territorial integrity and the political
independence of the aggressor State shall not be affected by the
application of the sanctions of the Protocol.
A development of the Covenant by which Article 10 becomes unimportant,
except as a measure of protection _for_ an aggressor, is perhaps the
most remarkable and unforeseen of all possible developments.
[1] September 25, 1923. Technically, the resolution was not adopted,
the vote not being unanimous, 29 in favor, one, Persia, opposed, and 22
absent or abstaining. League of Nations Official Journal, October,
1923, Special Supplement No. 11, p. 34.
[2] _i. e._, so far as the Guarantor States are concerned.
[3] In the debates of the First Committee of the Fourth Assembly it was
asserted that "no forcible invasion" is possible without a violation of
Article 10 of the Covenant; but in certain circumstances war is
permissible under the Covenant (Article 15, Paragraph 7); and with a
permissible war, there could be a permissible invasion. See Oppenheim,
3rd edition, Vol. 1, page 739.
[4] _i. e._, no aggression, in the sense intended by the Protocol.
{86}
CHAPTER XV.
THE PROTOCOL AS TO NON-SIGNATORIES.
At the beginning of this discussion[1] it was pointed out that upon the
coming into force of the Protocol, there would, in theory at least, and
from the point of view of its provisions, be three classes of Powers in
the world, to wit, the parties to the Protocol, the Members of the
League not parties to the Protocol and the non-Members of the League,
the last named of course being also not parties to the Protocol.
It should also be mentioned again that the possibility of this second
class of States, namely, the Members of the League not parties to the
Protocol, is a temporary possibility only. For certainly if the
Protocol comes finally into force, its provisions will in due course be
embodied in the Covenant, as indeed is contemplated by Article 1 of the
Protocol; and thereupon those Members of the League who have not
ratified the Protocol will either become parties to the amended
Covenant or will, under the provisions of Article 26 of the Covenant,
cease to be Members of the League.
However, temporarily, there will doubtless be certain Members of the
League of Nations who do not ratify the Protocol and the relation of
these States to others during this provisional period is to be
considered.
So far as concerns the relations _inter se_ of this temporary or
provisional class of States (those which remain Members of the League
without ratifying the Protocol) it may be said at once that these
relations, from this point of view, will continue to be governed by the
Covenant and by the Covenant alone. The Protocol does not make or
purport to make any change in this regard; so that, as among those
States, we might envisage during this temporary period the theoretic
possibility of a war not forbidden by the Covenant, just as we might
envisage the possibility, during that period, of a dispute among those
Powers remaining {87} unsettled. It is, I suppose, fair to add that
both of these speculations are here of juristic interest only.
Similarly, the relations of non-Members of the League _inter se_ will
continue, as they are now, to be governed neither by the Covenant nor
by the Protocol. These States would not have bound themselves by
either document and so far as concerns their relations with each other,
neither the Covenant nor the protocol attempts to regulate them.
The only provision of either document which has any bearing in this
regard is to be found in Article 17 of the Covenant, which says in
substance that in case of a dispute between States not Members of the
League, such non-Members shall be invited to become _ad hoc_ members
upon conditions laid down by the Council. If they refuse, the Council,
under the last paragraph of Article 17 of the Covenant, may take
measures toward the prevention of hostilities; but these measures would
be in the nature of good offices or mediation only and could be
accepted or rejected by the two non-Members of the League as they saw
fit; they could decline them wholly and go to war at their pleasure.
There is indeed one question which suggests itself to the mind under
Article 17 of the Covenant concerning a dispute between two non-Members
of the League. Suppose they should be both invited for the purpose of
settling the dispute to become members _ad hoc_, and one of them
accepted the invitation and the other refused, would the dispute then
be considered as being a dispute between a Member and a non-Member?
The real answer to this question probably is that on issuing the
invitation the Council would make it a condition that both parties to
the dispute should accept it. The legal answer as to the possibility
of the case supposed is a matter of some doubt. I incline to the view
that the invitation contemplated by Article 17 of the Covenant in a
case when the dispute is between two non-Members, is a joint invitation
and a joint invitation only. I do not think that it is intended that a
non-Member of the League may temporarily seek the protection and
guarantees of the Covenant against another non-Member.
{88}
However, the question is of interest only from the point of view of the
meaning of language; if the possibility should arise, it would
doubtless be taken care of by the Council.
Another and also comparatively unimportant point may be here noticed
and that is in regard to the relations between the signatories to the
Protocol and the Members of the League not signatory thereto, another
phase of the temporary situation heretofore considered. As to this, it
may be said very briefly that such relations would continue to be
governed wholly by the Covenant. The Members of the League which do
not ratify the Protocol could not during this temporary period be
regarded as being in any way affected by what, as to them, would be in
the nature of proposed amendments to the text of the Covenant itself.
These non-Signatories of the Protocol would therefore continue to look
only to the Covenant for the regulation of their relations with any
Member of the League. The Protocol does not contemplate a League
within a League; it simply contemplates, during this temporary phase, a
situation where certain Members of the League had assumed certain
obligations without any constraint or effect whatever upon such Members
as might not choose to assume them.
The really vital question is as to the effect of the Protocol and of
the Covenant upon non-Members of the League in their relations with
Signatories to the Protocol.
Even assuming that the plans now proposed for the admission of Germany
to the League are carried out, there will remain for a considerable
period two Great Powers, the United States and Russia, outside the
League; and there are two other States of occasional international
importance, the admission of which to the League is not, so far as I
know, presently contemplated, these being Mexico and Egypt.
Accordingly, the possible effect of the Covenant and the Protocol on
non-Members of the League is one of very great consequence. It is a
question which is being actively discussed in so far as it may have a
bearing on the relations between Great Britain and the United States.
{89}
It is unquestionably true that the Protocol may have a real effect on
non-Members of the League. Of course there is a legal formula which
correctly says that a treaty cannot bind States not parties thereto,
_res inter alios acta_; but even in the strictest legal sense this
formula is only part of the truth in international matters. Any one
who questions this will be convinced by reading Roxburgh's
International Conventions and Third States.[2] A treaty between State
A and State B may harm State C or it may benefit State C, as the Treaty
of Versailles benefited Denmark by the cession of Slesvig, though
Denmark was a neutral and not a party to the Treaty of Peace.[3]
Let us consider the matter first from the point of view of the
Covenant. There are sanctions which may be applied under the Covenant
and the application of these sanctions might affect a non-Member of the
League either because they were applied against that particular
non-Member or because they were applied against some other State.
It is rather curious that this question has not been very much
considered under the Covenant; interest in it has been greatly revived
by the Protocol; but the possible realities under the Covenant are, it
seems to me, _in some respects_ more important than those under the
Protocol alone.
In considering this question it is well to look at it from the concrete
point of view with a specific instance or example before us.
The sanctions of the Covenant[4] are an economic and financial
blockade. These sanctions may be applied either as against a Member of
the League which resorts to war contrary to the provisions of the
Covenant or they may be applied against a non-Member of the League
which resorts to war against a Member after refusing to settle its
dispute with that Member (Covenant, Article 17, paragraph 3).
Suppose at the time of the Corfu dispute, Italy had gone on {90} to war
against Greece, and the British had deemed it their duty to apply an
economic blockade against Italy.
Suppose another case; suppose that Russia attacked Poland and that the
British deemed it their duty to apply the economic blockade against
Russia. We are speaking here in both of these cases merely of the
provisions of the Covenant; and the question raised is what attitude
might the United States take in such a case as one of these.
I have suggested two instances for the reason that there is a slight
difference between them. That difference lies in the fact that in the
first instance supposed, Italy, as a Member of the League, would have
agreed to the application of the sanctions; they would have been
applied by the British as a result of Italy breaking her treaty. But
in the second instance, Russia never having agreed to the Covenant, the
sanctions would be applied by the British solely as a result of the
British agreement to apply them and not because of any legal breach by
Russia, however morally wrong her attack on Poland might be.
I do not think that the difference between the two supposed cases would
make any difference legally in the attitude that the United States
might take in the one case or the other. The blockade would arise from
the provisions of the Covenant in either case. To that document the
United States is not a party. In each case our correct legal position
would be that our international rights were not limited by the
agreement of others.
Accordingly, let us consider the case of the blockade of Russia by the
British, recalling that, under the hypothesis, Russia has attacked
Poland and that the economic and financial blockade of the first
paragraph of Article 16 of the Covenant has come into full force. Now,
so far as that blockade cut off relations between Great Britain and
Russia, it would be none of our business. But the language of Article
16 includes
"the prevention of all financial, commercial or personal
intercourse between the nationals (residents)[5] of the
Covenant-breaking State (Russia, under the hypothesis;
{91}
see Covenant, Article 17) and the nationals (residents) of
any other State, whether a Member of the League or not."
What this would mean would be that all intercourse between Russia and
the United States would be cut off by the British Fleet so far as they
could do it. The questions suggested are: Could the United States
protest; and would we protest?
The first question is a question of law. Would the United States have
the right under international law to object to such a blockade? As a
preliminary to the answer to this question, it must be pointed out that
a blockade of Russia by the British might result in two different
situations. Russia could undoubtedly regard such a blockade as being
war, and if she did, no other country, neither the United States nor
any other country, could then object to the blockade. The reason for
that is that, without going into the much debated question as to the
"legality" of war, under present international law it can at least be
said that a neutral may not object to the belligerent status of two
countries at war with each other. Of course a neutral may object to
the manner of carrying on the war, or to particular incidents during
the fighting; a neutral may protest that a particular blockade is not
binding because not effective, and so on; but these things are not
immediately important here. The important thing here is that if the
blockade resulted in war, we could not object to the fact of war and
its incidents.
On the other hand, a blockade _might_ continue merely as a blockade,
without the technical status of war arising. This is, I suppose, not
very likely in the case of the blockade of a Great Power, but still it
is legally possible under the terms of the Covenant.
The situation created would be new under international law. It would
have to be considered as arising wholly from treaty and consequently
not a situation binding on Third States, but as to them simply a
situation in which their rights were governed by the principles of
international law. Under these rules, the nearest approach to such a
situation is the so-called pacific blockade of the past.
{92}
In my view, which is the view of the vast majority of writers on the
question, Third States do not have to respect a pacific blockade. (See
Oppenheim, 3rd edition, Vol. II, page 56.) Accordingly, it seems to me
that the United States would be entitled to regard such a blockade as
not affecting her commerce with Russia.[6]
If the United States took such a position, as probably she would, the
practical value of such a blockade would be very largely diminished,
for I do not think there is any doubt that the Members of the League
would admit that the blockade only applied to such Third States outside
the League of Nations as might acquiesce in it.
Under the Protocol, precisely the same legal situation as to the
blockade of Russia exists as under the Covenant and the same
conclusions would follow. However, the probability of such a blockade
under the Protocol, without an actual state of war resulting, is much
less than under the Covenant. The Protocol provides definitely for
military sanctions and it can hardly be doubted, as a matter of
reality, that if the sanctions of the Protocol commenced to be applied
to a State in or out of the League and that State resisted, the result
would be war as between that resisting State and at least those of the
Members of the League, like Great Britain, that were taking a real part
in the application of the sanctions.
And, as pointed out above, the legal situation is much clearer in the
case of war than in the case of this economic and financial boycott of
the Covenant. It would be much "easier"[7] to go to war than it would
be to apply the economic and financial sanctions alone. The world has
gotten more or less used, in a legal sense, to the legalities and
illegalities of war; but there are no precedents as to the
corresponding situations[8] in such a {93} blockade as has been
suggested; and it is, above all, custom and general agreement that make
international law.
I may sum up my views on this point as follows:
If under either the Covenant or the Protocol, the economic sanctions
were applied either against a Member of the League or a non-Member of
the League and the application of these sanctions did not result in
war, the United States legally could, and very likely would, contend
that any resulting blockade was not applicable to the United States and
the commerce and intercourse of her residents; and this view would be
accepted by the Members of the League as being legally sound; and the
result of course would be that the practical effect of any such
blockade would be very much weakened.
However, if the application of the sanctions either of the Covenant or
of the Protocol resulted in war between the State against which the
sanctions were applied and the States applying them, the United States
could not object to that state of war, although of course it would have
its rights as a neutral in such a war as in any other war and these
neutral rights would not be affected by any provision of either the
Covenant or the Protocol.
The next consideration is the possible application of sanctions against
the United States. From the foregoing review of the provisions of the
Covenant and of the Protocol it is evident that such action against the
United States is possible from a theoretic point of view. It is,
however, important here to repeat that there is no possible sanction in
either paper against a non-Member of the League except after war breaks
out, a war which the non-Member of the League has commenced against a
Member or against a Signatory to the Protocol as the case may be. In
other words, the sanctions of either paper could only become operative
against the United States after the United States had gone to war
against a Member of the League.
Continuing the theoretic view of the matter, it would be idle to
discuss any difference between one kind of sanction and another in such
a case. If the United States went to war with State A, a Member of the
League, and any other State undertook to {94} apply economic or any
other sanctions on behalf of State A and against the United States, it
would here be regarded simply as an act of war, creating two or more
enemies instead of one.
Perhaps from the common sense outlook, such contingencies are not
worthy of discussion, for what they would mean if they happened would
be either that there was another world war, in which case the
provisions of no document would be very important, or else there would
be some kind of a minor war such as that between the United States and
Spain, in which the other Powers of the world would find some way of
keeping their hands off, regardless of legalistic arguments based on
the Covenant or on the Protocol or on both.
It may be suggested that in the foregoing discussion I have omitted any
thought of the possibility of war between the United States and Japan;
but I have kept that possibility in mind. Its theoretical
possibilities, so far as they might exist by reason of the United
States attacking Japan have been considered above.
Let us consider the opposite possibility, an attack by Japan on the
United States.
Suppose, then, that Japan attempted to raise before the League the
question of the treatment of her nationals by the United States; there
is no way in which such a question could be considered by the League
except under the vague general clauses of Article 11 of the Covenant;
all that the League could do, even in theory, would be to ask if the
United States cared to discuss the matter; and the United States would
presumably decline to take part in any such discussion. Further, it
may be supposed that the United States would not have the slightest
desire to commence a war in the matter as the United States is
satisfied with the situation as it is--it is Japan which is
dissatisfied. The United States would merely refuse to discuss a
question which it deemed domestic.
Suppose then that Japan went to the length of declaring war on the
United States for this cause. While immaterial from the point of view
of the United States, I cannot see that such a war would violate the
Covenant in its letter; of course it would {95} violate its spirit of
peace; but I do not think there is any specific provision of the
Covenant which, in terms, forbids it.
The Protocol in this regard goes farther in its language. The general
covenant not to resort to war in Article 2 includes such a resort to
war, not only against a signatory, but also against a State which
"accepts all the obligations hereinafter set out"; in other words,
against a sort of _ad hoc_ adherent to the Protocol (Article 16), but
we may assume that these last words would not include the United States.
The preamble asserts that a war of aggression constitutes a violation
of the solidarity of the members of the international community, and
also an international crime. Article 10 of the Protocol says that
every State which resorts to war in violation of the undertakings
contained in the present Protocol is an aggressor; and in Article 8 the
document goes to its greatest length, so far as non-Signatories are
concerned, by saying that the signatory States undertake to abstain
from any act which might constitute a threat of aggression against
another State. These last words "against another State" are the
important words, because they include every State in the world, not
only a Signatory. Furthermore, in that same Article 8 any Signatory
can bring to the notice of the Council its view that "another State" is
making preparations for war, which of course would include another
Signatory.
So it is perhaps arguable that under the Protocol an attack by a
Signatory against a State which is not a Signatory might be an
aggression and that the sanctions of the Protocol might be brought into
play in favor of the non-Signatory. If that view be correct, then, in
the case supposed, namely, an attack by Japan upon the United States,
it would seem that, if the matter were brought before the Council by
_any_ Signatory (as it undoubtedly would be) the Council _might_
declare Japan to be an aggressor under the Protocol; and it would then
become the duty of the other Signatories to apply against Japan all the
sanctions of the Protocol, at least unless the United States objected
to such a course and preferred to go it alone.
{96}
However, there is at least grave doubt as to all this. The provisions
of Article 16 of the Protocol and of Article 17 of the Covenant rather
indicate that a State which pays no attention to an invitation to
become an _ad hoc_ Member or Signatory takes its chances as they exist
_dehors_ the Covenant or the Protocol. I think myself that this is the
better view. To suppose otherwise would be to suppose that States
outside the League (or the Protocol) had all the advantages of States
within, and none of the burdens or obligations, a difficult thing to
envisage.
So, on the whole, I conclude that an attack by Japan upon the United
States because of a "domestic" or other question would permit the
Members of the League, both under the Covenant and under the Protocol,
to be interested onlookers and nothing more.
[1] _Supra_, p. 13.
[2] Longmans, Green & Co., 1917.
[3] A subsequent treaty between Denmark and the Principal Allied Powers
confirmed the cession. A. J. I. L. Supplement 1923, Vol. XVII, p. 42.
[4] Article 16.
[5] The discussions in the Assembly of Article 16 of the Covenant show
that the word "nationals" is to be read as "residents."
[6] See Moore's Digest, Vol. VII, pp. 135-142.
[7] That is, in the sense that there would to some extent be known and
applicable rules of conduct for all States.
[8] Innumerable questions of difficulty as to private contracts might
be suggested; but I am thinking here of relations between States.
{97}
CHAPTER XVI.
THE DISARMAMENT CONFERENCE.
Under Article 17 of the Protocol, a Disarmament Conference to which all
States of the world are to be invited is to meet at Geneva on June
15th, 1925. It is made the duty of the Council to draw up a general
programme for reduction and limitation of armaments to be laid before
the Conference and to be communicated to the various Governments not
later than March 15th, 1925. The provision to this effect says that
the Council shall give due regard to the undertakings of the Protocol
regarding sanctions, but the preparation of this general programme is
in substantial accord with Article 8 of the Covenant.
The Assembly adopted a quite elaborate resolution[1] regarding this
Conference. This resolution makes seven or eight suggestions in
general terms for the agenda of the Disarmament Conference. While the
resolution was adopted, it was pointed out in the discussion that the
Council has a perfectly free hand in the matter and that the requests
of the Assembly regarding the agenda were nothing more than requests.
There is perhaps no occasion to go over them in detail, but one or two
points may be mentioned.
The matter of demilitarized zones figures in this Assembly list. As
such zones are specifically mentioned in Articles 9 and 10 of the
Protocol there is no doubt that this is one of the questions that would
be on the agenda. Another suggestion of the Assembly for the agenda of
the Conference is "the control and investigation of armaments in the
contracting States." Such control and investigation were a part of the
so-called American Plan,[2] and in view of the fact that the control
and investigation of the armaments of the former enemy States are now
before the League, there can be no doubt that this matter also would be
on the agenda of the Disarmament Conference prepared by the Council.
{98}
It was pointed out previously[3] that the date of the Disarmament
Conference may be postponed. It now seems very likely that it will
be.[4] Indeed, I feel that there was a li
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