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 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.
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.
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 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; 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.
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 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 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 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.
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.