THE COVENANT
OF THE
LEAGUE OF NATIONS.[[1]]
THE HIGH CONTRACTING PARTIES,
In order to promote international co-operation and to achieve international peace and security
by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations between nations,
by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and
by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another,
Agree to this Covenant of the League of Nations.
ARTICLE 1.
The original Members of the League of Nations shall be those of the Signatories which are named in the Annex to this Covenant and also such of those other States named in the Annex as shall accede without reservation to this Covenant. Such accession shall be effected by a Declaration deposited with the Secretariat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League.
Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments.
Any Member of the League may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.
ARTICLE 2.
The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat.
ARTICLE 3.
The Assembly shall consist of Representatives of the Members of the League.
The Assembly shall meet at stated intervals and from time to time as occasion may require at the Seat of the League or at such other place as may be decided upon.
The Assembly may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.
At meetings of the Assembly each Member of the League shall have one vote, and may have not more than three Representatives.
ARTICLE 4.
The Council shall consist of Representatives of the Principal Allied and Associated Powers, together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Spain and Greece shall be members of the Council.
With the approval of the majority of the Assembly, the Council may name additional Members of the League whose Representatives shall always be members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council.
The Council shall meet from time to time as occasion may require, and at least once a year, at the Seat of the League, or at such other place as may be decided upon.
The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.
Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League.
At meetings of the Council, each Member of the League represented on the Council shall have one vote, and may have not more than one Representative.
ARTICLE 5.
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.
All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting.
The first meeting of the Assembly and the first meeting of the Council shall be summoned by the President of the United States of America.
ARTICLE 6.
The permanent Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary General and such secretaries and staff as may be required.
The first Secretary General shall be the person named in the Annex; thereafter the Secretary General shall be appointed by the Council with the approval of the majority of the Assembly.
The secretaries and staff of the Secretariat shall be appointed by the Secretary General with the approval of the Council.
The Secretary General shall act in that capacity at all meetings of the Assembly and of the Council.
The expenses of the League shall be borne by the Members of the League in the proportion decided by the Assembly.
ARTICLE 7.
The Seat of the League is established at Geneva.
The Council may at any time decide that the Seat of the League shall be established elsewhere.
All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women.
Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities.
The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable.
ARTICLE 8.
The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations.
The Council, taking account of the geographical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments.
Such plans shall be subject to reconsideration and revision at least every ten years.
After these plans shall have been adopted by the several Governments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council.
The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety.
The Members of the League undertake to interchange full and frank information as to the scale of their armaments, their military, naval and air programmes and the condition of such of their industries as are adaptable to war-like purposes.
ARTICLE 9.
A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Articles 1 and 8 and on military, naval and air questions generally.
ARTICLE 10.
The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.
ARTICLE 11.
Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General shall on the request of any Member of the League forthwith summon a meeting of the Council.
It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.
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 by the Council.
In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.
ARTICLE 13.
The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement.
Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement.
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 award or decision that may be rendered and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.
ARTICLE 14.
The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.
ARTICLE 15.
If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary General, who will make all necessary arrangements for a full investigation and consideration thereof.
For this purpose the parties to the dispute will communicate to the Secretary General, as promptly as possible, statements of their case with all the relevant facts and papers, and the Council may forthwith direct the publication thereof.
The Council shall endeavour to effect a settlement of the dispute, and if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate.
If the dispute is not thus settled, the Council either unanimously or by a majority vote shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto.
Any Member of the League represented on the Council may make public a statement of the facts of the dispute and of its conclusions regarding the same.
If a report by the Council is unanimously agreed to by the members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report.
If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice.
If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.
The Council may in any case under this Article refer the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, provided that such request be made within fourteen days after the submission of the dispute to the Council.
In any case referred to the Assembly, all the provisions of this Article and of Article 12 relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the Assembly, if concurred in by the Representatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute, shall have the same force as a report by the Council concurred in by all the members thereof other than the Representatives of one or more of the parties to the dispute.
ARTICLE 16.
Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not.
It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League.
The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which are taken under this Article, in order to minimise the loss and inconvenience resulting from the above measures, and that they will mutually support one another in resisting any special measures aimed at one of their number by the covenant-breaking State, and that they will take the necessary steps to afford passage through their territory to the forces of any of the Members of the League which are co-operating to protect the covenants of the League.
Any Member of the League which has violated any covenant of the League may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon.
ARTICLE 17.
In the event of a dispute between a Member of the League and a State which is not a Member of the League, or between States not Members of the League, the State or States not Members of the League shall be invited to accept the obligations of membership in the League for the purposes of such dispute, upon such conditions as the Council may deem just. If such invitation is accepted, the provisions of Articles 12 to 16 inclusive shall be applied with such modifications as may be deemed necessary by the Council.
Upon such invitation being given the Council shall immediately institute an inquiry into the circumstances of the dispute and recommend such action as may seem best and most effectual in the circumstances.
If a State so invited shall refuse to accept the obligations of membership in the League for the purposes of such dispute, and shall resort to war against a Member of the League, the provisions of Article 16 shall be applicable as against the State taking such action.
If both parties to the dispute when so invited refuse to accept the obligations of membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute.
ARTICLE 18.
Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.
ARTICLE 19.
The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world.
ARTICLE 20.
The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof.
In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.
ARTICLE 21.
Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace.
ARTICLE 22.
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.
The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.
The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.
Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.
Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.
There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.
In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.
The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council.
A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.
ARTICLE 23.
Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League:
(a) will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations;
(b) undertake to secure just treatment of the native inhabitants of territories under their control;
(c) will entrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;
(d) will entrust the League with the general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest;
(e) will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League. In this connection, the special necessities of the regions devastated during the war of 1914-1918 shall be borne in mind;
(f) will endeavour to take steps in matters of international concern for the prevention and control of disease.
ARTICLE 24.
There shall be placed under the direction of the League all international bureaux already established by general treaties if the parties to such treaties consent. All such international bureaux and all commissions for the regulation of matters of international interest hereafter constituted shall be placed under the direction of the League.
In all matters of international interest which are regulated by general convention but which are not placed under the control of international bureaux or commissions, the Secretariat of the League shall, subject to the consent of the Council and if desired by the parties, collect and distribute all relevant information and shall render any other assistance which may be necessary or desirable.
The Council may include as part of the expenses of the Secretariat the expenses of any bureau or commission which is placed under the direction of the League.
ARTICLE 25.
The Members of the League agree to encourage and promote the establishment and co-operation of duly authorised voluntary national Red Cross organisations having as purposes the improvement of health, the prevention of disease and the mitigation of suffering throughout the world.
ARTICLE 26.
Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly.
No such amendments shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League.
[[1]] Including Amendments adopted to December, 1924.
The text of the Protocol of Geneva,
which follows as Annex B, is printed
in French and English on opposite pages.
[Transcriber's note: In the source book, the French and English texts were on facing pages, French on the even/left-hand pages, English on the odd/right-hand pages. The same page order has been preserved in this etext, occasionally resulting split paragraphs.]
ANNEX B.
PROTOCOLE POUR LE REGLEMENT PACIFIQUE DES DIFFERENDS INTERNATIONAUX.
Animés de la ferme volonté d'assurer le maintien de la paix générale et la sécurité des peuples dont l'existence, l'indépendance ou les territoires pourraient être menacés;
Reconnaissant la solidarité qui unit les membres de la communauté internationale;
Affirmant que la guerre d'agression constitue une infraction à cette solidarité et un crime international;
Désireux de faciliter la complète application du système prévu au Pacte de la Société des Nations pour le règlement pacifique des différends entre les Etats et d'assurer la répression des crimes internationaux; et
Afin de réaliser, comme l'envisage l'article 8 du Pacte, la réduction des armements nationaux au minimum compatible avec la sécurité nationale et avec l'exécution des obligations internationales imposées par une action commune,
Les Soussignés, dûment autorisés à cet effet, sont convenus des dispositions suivantes:
ARTICLE PREMIER.
Les Etats signataires s'engagent à faire tous efforts en leur pouvoir pour l'introduction dans le Pacte d'amendements conformes au sens des dispositions contenues dans les articles suivants.
Ils conviennent que ces dispositions deviendront obligatoires dans leurs rapports respectifs à la date de la mise en vigueur du présent Protocole et que, vis-à-vis d'eux, l'Assemblée et le Conseil de la Société des Nations seront, dès lors, autorisés à exercer tous les droits et devoirs qui leur sont conférés par ce Protocole.
ARTICLE 2.
Les Etats signataires conviennent qu'en aucun cas ils ne
ANNEX B.
PROTOCOL FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.
Animated by the firm desire to ensure the maintenance of general peace and the security of nations whose existence, independence or territories may be threatened;
Recognising the solidarity of the members of the international community;
Asserting that a war of aggression constitutes a violation of this solidarity and an international crime;
Desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between States and of ensuring the repression of international crimes; and
For the purpose of realising, as contemplated by Article 8 of the Covenant, the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations;
The Undersigned, duly authorised to that effect, agree as follows:
ARTICLE 1.
The signatory States undertake to make every effort in their power to secure the introduction into the Covenant of amendments on the lines of the provisions contained in the following articles.
They agree that, as between themselves, these provisions shall be binding as from the coming into force of the present Protocol and that, so far as they are concerned, the Assembly and the Council of the League of Nations shall thenceforth have power to exercise all the rights and perform all the duties conferred upon them by the Protocol.
ARTICLE 2.
The signatory States agree in no case to resort to war either
doivent recourir à la guerre, ni entre eux ni contre tout Etat qui, le cas échéant, accepterait toutes les obligations ci-après définies, excepté dans le cas de résistance à des actes d'agression ou quand ils agissent en accord avec le Conseil ou l'Assemblée de la Société des Nations, selon les dispositions du Pacte et du présent Protocole.
ARTICLE 3.
Les Etats signataires s'engagent à reconnaître comme obligatoire, de plein droit et sans convention spéciale, la juridiction de la Cour permanente de Justice internationale dans les cas visés au paragraphe 2 de l'Article 36 du Statut de la Cour, mais sans préjudice de la faculté pour un Etat quelconque, lorsqu'il adhérera au protocole special ouvert le 16 décembre 1920, prévu par ledit article, de formuler les réserves compatibles avec ladite clause.
L'adhésion à ce protocole spécial ouvert le 16 décembre 1920 devra être faite dans le délai d'un mois qui suivra la mise en vigueur du présent Protocole.
Les Etats qui adhéreront au présent Protocole après sa mise en vigueur devront s'acquitter de l'obligation ci-dessus dans le mois qui suivra leur adhésion.
ARTICLE 4.
En vue de compléter les dispositions des alinéas 4, 5, 6 et 7 de l'article 15 du Pacte, les Etats signataires conviennent de se conformer à la procedure suivante:
1. Si le différend soumis au Conseil n'a pu être réglé par lui ainsi qu'il est prévu au paragraphe 3 dudit article 15, le Conseil engagera les Parties à soumettre le différend à un règlement judiciaire ou arbitral.
2. a) Si les Parties s'y refusent, il est procédé, à la demande d'au moins l'une des Parties, à la constitution d'un Comité d'arbitres. Le Comité sera constitué, autant que possible, par l'accord des Parties.
with one another or against a State which, if the occasion arises accepts all the obligations hereinafter set out, except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly of the League of Nations in accordance with the provisions of the Covenant and of the present Protocol.
ARTICLE 3.
The signatory States undertake to recognise as compulsory, ipso facto and without special agreement, the jurisdiction of the Permanent Court of International Justice in the cases covered by paragraph 2 of Article 36 of the Statute of the Court, but without prejudice to the right of any State, when acceding to the special protocol provided for in the said Article and opened for signature on December 16th, 1920, to make reservations compatible with the said clause.
Accession to this special protocol, opened for signature on December 16th, 1920, must be given within the month following the coming into force of the present Protocol.
States which accede to the present Protocol, after its coming into force, must carry out the above obligation, within the month following their accession.
ARTICLE 4.
With a view to render more complete the provisions of paragraphs 4, 5, 6, and 7 of Article 15 of the Covenant, the signatory States agree to comply with the following procedure:
1. If the dispute submitted to the Council is not settled by it as provided in paragraph 3 of the said Article 15, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.
2. (a) If the parties cannot agree to do so, there shall, at the request of at least one of the parties, be constituted a Committee of Arbitrators. The Committee shall so far as possible be constituted by agreement between the parties.
b) Si, dans le délai que le Conseil aura fixé, elles ne se sont pas entendues en tout ou en partie sur le nombre, le nom et les pouvoirs des arbitres, ainsi que sur la procedure, le Conseil réglera les points en suspens. Il choisira d'urgence—en consultant les Parties—les arbitres et leur président, parmi les personnes qui, par leur nationalité, leur caractère et leur expérience, lui paraîtront donner les plus hautes garanties de compétence et d'impartialité.
c) Après que les conclusions des Parties auront été formulées, le Comité d'arbitres, à la demande de toute Partie, sollicitera, par l'entremise du Conseil, sur les points de droit contestés, l'avis consultatif de la Cour permanente de Justice Internationale qui, dans ce cas, se réunira d'urgence.
3. Si aucune des Parties ne demande l'arbitrage, le Conseil reprendra l'examen du différend. Au cas où le Conseil établit un rapport voté à l'unanimité de ses membres autres que les représentants de toute Partie au différend, les Etats signataires conviennent de se conformer aux solutions recommandées par lui.
4. Au cas où le Conseil ne peut établir un rapport accepté par tous ses membres autres que les représentants de toute Partie au différend, il soumettra le différend a l'arbitrage. Il réglera lui-même la composition, les pouvoirs et la procedure du Comité d'arbitres et aura égard, dans le choix des arbitres, aux garanties de compétence et d'impartialité visées au No. 2b ci-dessus.
5. En aucun cas ne pourront être remises en question les solutions ayant déjà fait l'objet d'une recommandation unanime du Conseil acceptée par l'une des Parties interéssées.
6. Les Etats signataires s'engagent à éxecuter de bonne foi les sentences judiciaires ou arbitrales et à se conformer, comme il a été dit a l'alinéa 3 ci-dessus, aux solutions recommandées par le Conseil. Dans le cas où un Etat manquerait à ces engagements, le Conseil exercera toute son influence pour en assurer le respect. S'il ne peut y réussir, il proposera les mesures qui doivent en assurer
(b) If within the period fixed by the Council the parties have failed to agree, in whole or in part, upon the number, the names and the powers of the arbitrators and upon the procedure, the Council shall settle the points remaining in suspense. It shall with the utmost possible despatch select in consultation with the parties the arbitrators and their President from among persons who by their nationality, their personal character and their experience, appear to it to furnish the highest guarantees of competence and impartiality.
(c) After the claims of the parties have been formulated, the Committee of Arbitrators, on the request of any party, shall through the medium of the Council request an advisory opinion upon any points of law in dispute from the Permanent Court of International Justice, which in such case shall meet with the utmost possible despatch.
3. If none of the parties asks for arbitration, the Council shall again take the dispute under consideration. If the Council reaches a report which is unanimously agreed to by the members thereof other than the representatives of any of the parties to the dispute, the signatory States agree to comply with the recommendations therein.
4. If the Council fails to reach a report which is concurred in by all its members, other than the representatives of any of the parties to the dispute, it shall submit the dispute to arbitration. It shall itself determine the composition, the powers and the procedure of the Committee of Arbitrators and, in the choice of the arbitrators, shall bear in mind the guarantees of competence and impartiality referred to in paragraph 2 (b) above.
5. In no case may a solution, upon which there has already been a unanimous recommendation of the Council accepted by one of the parties concerned, be again called in question.
6. The signatory States undertake that they will carry out in full good faith any judicial sentence or arbitral award that may be rendered and that they will comply, as provided in paragraph 3 above, with the solutions recommended by the Council. In the event of a State failing to carry out the above undertakings, the Council shall exert all its influence to secure compliance
l'effet, ainsi qu'il est dit à la fin de l'article 13 du Pacte. Dans le cas où un Etat, manquant à ces engagements, recourrait à la guerre, les sanctions prévues à l'article 16 du Pacte, interpretées de la manière indiquée au présent Protocole, lui deviendraient immédiatement applicables.
7. Les dispositions du présent article ne s'appliquent pas au règlement des différends qui pourraient s'élever à la suite des mesures de guerre prises par un ou plusieurs Etats signataires en accord avec le Conseil ou l'Assemblée.
ARTICLE 5.
La disposition de l'alinéa 8 de l'article 15 du Pacte demeure applicable devant le Conseil.
Si, pendant le cours d'une des procédures d'arbitrage prévues à l'article 4 ci-dessus, l'une des Parties prétend que le différend, ou une partie du différend, porte sur une question que le droit international laisse à la compétence exclusive de cette Partie, les arbitres consulteront sur ce point la Cour permanente de Justice internationale par l'entremise du Conseil. L'avis de la Cour liera les arbitres qui se borneront, si cet avis est affirmatif, à le constater dans leur sentence.
Si la question est reconnue par la Cour permanente ou par le Conseil comme étant de la compétence exclusive d'un Etat, la décision intervenue n'empêchera pas que la situation soit examinée par le Conseil ou par l'Assemblée, conformément à l'article 11 du Pacte.
ARTICLE 6.
Si, conformément à l'alinéa 9 de l'article 15 du Pacte, le différend est porté devant l'Assemblée, celle-ci aura, pour le règlement du différend, tous les pouvoirs dévolus au Conseil en ce qui concerne l'essai de conciliation des Parties, tel qu'il est prévu aux alinéas 1, 2 ct 3 de l'article 15 du Pacte et au No. 1 de l'article 4 ci-dessus.
A défaut de reglement amiable obténu par l'Assemblée:
therewith. If it failstherein, it shall propose what steps should be taken to give effect thereto, in accordance with the provision contained at the end of Article 13 of the Covenant. Should a State in disregard of the above undertakings resort to war, the sanctions provided for by Article 16 of the Covenant, interpreted in the manner indicated in the present Protocol, shall immediately become applicable to it.
7. The provisions of the present article do not apply to the settlement of disputes which arise as the result of measures of war taken by one or more signatory States in agreement with the Council or the Assembly.
ARTICLE 5.
The provisions of paragraph 8 of Article 15 of the Covenant shall continue to apply in proceedings before the Council.
If in the course of an arbitration, such as is contemplated in Article 4 above, one of the parties claims that the dispute, or part thereof, arises out of a matter which by international law is solely within the domestic jurisdiction of that party, the arbitrators shall on this point take the advice of the Permanent Court of International Justice through the medium of the Council. The opinion of the Court shall be binding upon the arbitrators, who, if the opinion is affirmative, shall confine themselves to so declaring in their award.
If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11 of the Covenant.
ARTICLE 6.
If in accordance with paragraph 9 of Article 15 of the Covenant a dispute is referred to the Assembly, that body shall have for the settlement of the dispute all the powers conferred upon the Council as to endeavouring to reconcile the parties in the manner laid down in paragraphs 1, 2 and 3 of Article 15 of the Covenant and in paragraph 1 of Article 4 above.
Should the Assembly fail to achieve an amicable settlement:
Si l'une des Parties demande l'arbitrage, il est procédé par le Conseil à la constitution du Comité d'arbitres, dans les conditions prevues au No. 2 de l'article 4 ci-dessus, lettres a, b et c;
Si aucune des Parties ne demande l'arbitrage, l'Assemblée reprend, avec les mêmes pouvoirs que le Conseil, l'examen du différend. Les solutions recommandées par le Rapport de l'Assemblée, dans les conditions d'approbation prévues à la fin de l'alinéa 10 de l'article 15 du Pacte, ont la même valeur et produiront les mêmes effets, en tout ce qui concerne le présent Protocole, que celles recommandées par le Rapport du Conseil dans les conditions prévues au No. 3 de l'article 4 ci-dessus.
Si la majorité nécessaire ne peut être obtenue, le différend sera soumis a l'arbitrage et le Conseil réglera lui-même la composition, les pouvoirs et la procédure du Comité d'arbitres, comme il est dit au No. 4 dudit article 4.
ARTICLE 7.
Dans le cas d'un différend s'elevant entre deux ou plusieurs Etats signataires, ceux-ci conviennent que, soit avant que le differénd ait été soumis à une procédure de règlement pacifique, soit au cours d'une telle procédure, ils ne procéderont à aucune augmentation d'armements ou d'effectifs qui pourrait modifier la situation fixée par la Conférence pour la réduction des armements prévue à l'article 17 du présent Protocole; ils ne procederont non plus à aucune mesure de mobilisation militaire, navale, aerienne, industrielle ou économique, ni en géneral à aucun acte de nature à aggraver ou à étendre le différend.
Conformément aux dispositions de l'article 11 du Pacte, il est du devoir du Conseil d'examiner toute plainte en violation des engagements ci-dessus, qui pourrait lui être adressée par un ou plusieurs des Etats parties au différend. Si le Conseil considère que la plainte est recevable, il doit, s'il l'estime convenable, organiser des enquêtes et des investigations dans un ou plusieurs des pays intéressés. Ces enquêtes et ces investigations doivent être faites dans les délais les plus brefs, et les Etats signataires s'engagent à donner toutes facilités pour leur exécution.
If one of the parties asks for arbitration, the Council shall proceed to constitute the Committee of Arbitrators in the manner provided in sub-paragraphs (a), (b) and (c) of paragraph 2 of Article 4 above.
If no party asks for arbitration, the Assembly shall again take the dispute under consideration and shall have in this connection the same powers as the Council. Recommendations embodied in a report of the Assembly, provided that it secures the measure of support stipulated at the end of paragraph 10 of Article 15 of the Covenant, shall have the same value and effect, as regards all matters dealt with in the present Protocol, as recommendations embodied in a report of the Council adopted as provided in paragraph 3 of Article 4 above.
If the necessary majority cannot be obtained, the dispute shall be submitted to arbitration and the Council shall determine the composition, the powers and the procedure of the Committee of Arbitrators as laid down in paragraph 4 of Article 4.
ARTICLE 7.
In the event of a dispute arising between two or more signatory States, these States agree that they will not, either before the dispute is submitted to proceedings for pacific settlement or during such proceedings, make any increase of their armaments or effectives which might modify the position established by the Conference for the Reduction of Armaments provided for by Article 17 of the present Protocol, nor will they take any measure of military, naval, air, industrial or economic mobilisation, nor, in general, any action of a nature likely to extend the dispute or render it more acute.
It shall be the duty of the Council, in accordance with the provisions of Article 11 of the Covenant, to take under consideration any complaint as to infraction of the above undertakings which is made to it by one or more of the States parties to the dispute. Should the Council be of opinion that the complaint requires investigation, it shall, if it deems it expedient, arrange for enquiries and investigations in one or more of the countries concerned. Such enquiries and investigations shall be carried
Les mesures ainsi prises par li Conseil sont destinées uniquement à faciliter li règlement pacifique des différends et ne doivent préjuger en rien du règlement lui-même.
Si, à la suite de ces enquêtes et investigations, une infraction quelconque aux dispositions du premier alinéa du présent article est établie, il est du devoir du Conseil de sommer l'Etat ou les Etats coupables de l'infraction de la faire disparaître. Si l'Etat ou les Etats en question ne se conforment pas à cette sommation, le Conseil déclare lesdits Etats coupables d'une violation du Pacte ou du présent Protocole et doit décider les mesures à prendre en vue de faire cesser au plus tôt une situation de nature à menacer la paix du monde.
Pour l'application du présent article, le Conseil prendra sa décision à la majorite des deux tiers.
ARTICLE 8.
Les Etats signataires s'engagent à s'abstenir de toute action qui pourrait constituer une menace d'agression contre un autre Etat.
Dans li cas où un des Etats signataires estime qu'un autre Etat procédé à des préparatifs de guerre, il a le droit d'en saisir le Conseil.
Celui-ci, après avoir vérifié les faits, opère comme il est dit à l'article 7, alinéas 2, 4 et 5.
ARTICLE 9.
L'existence de zones demilitarisées étant de nature à prévenir les agressions et à en faciliter la détermination sans équivoque conformément à l'article 10 ci-dessous, l'établissement de pareilles zones est recommandé entre les Etats qui y seraient également consentants, comme un moyen d'éviter une violation du présent Protocole.
Les zones démilitarisées déjà existantes en vertu de certains Traités ou Conventions, ou qui seraient établies à l'avenir entre Etats également consentants, pourront faire l'objet d'un contrôle temporaire ou permanent, organisé par le Conseil, à la demande et aux frais d'un ou de plusieurs Etats limitrophes.
out with the utmost possible despatch, and the signatory States undertake to afford every facility for carrying them out.
The sole object of measures taken by the Council as above provided is to facilitate the pacific settlement of disputes and they shall in no way prejudge the actual settlement.
If the result of such enquiries and investigations is to establish an infraction of the provisions of the first paragraph of the present Article, it shall be the duty of the Council to summon the State or States guilty of the infraction to put an end thereto. Should the State or States in question fail to comply with such summons, the Council shall declare them to be guilty of a violation of the Covenant or of the present Protocol, and shall decide upon the measures to be taken with a view to end as soon as possible a situation of a nature to threaten the peace of the world.
For the purposes of the present Article decisions of the Council may be taken by a two-thirds majority.
ARTICLE 8.
The signatory States undertake to abstain from any act which might constitute a threat of aggression against another State.
If one of the signatory States is of opinion that another State is making preparations for war, it shall have the right to bring the matter to the notice of the Council.
The Council, if it ascertains that the facts are as alleged, shall proceed as provided in paragraphs 2, 4, and 5 of Article 7.
ARTICLE 9.
The existence of demilitarised zones being calculated to prevent aggression and to facilitate a definite finding of the nature provided for in Article 10 below, the establishment of such zones between States mutually consenting thereto is recommended as a means of avoiding violations of the present Protocol.
The demilitarised zones already existing under the terms of certain treaties or conventions, or which may be established in future between States mutually consenting thereto, may at the request and at the expense of one or more of the conterminous States, be placed under a temporary or permanent system of supervision to be organized by the Council.
ARTICLE 10.
Est agresseur tout Etat qui recourt à la guerre en violation des engagements prévus au Pacte ou au présent Protocole. Est assimilée au recours à la guerre la violation du statut d'une zone démilitarisée.
Dans le cas d'hostilités engagées, est présumé agresseur, sauf décision contraire du Conseil prise à l'unanimité:
1. Tout Etat qui aura refusé de soumettre le différend à la procédure pour règlement pacifique prévue aux articles 13 et 15 du Pacte, complétés par le présent Protocole—ou qui aura refusé de se conformer, soit à une décision judiciaire ou arbitrale, soit à une recommandation unanime du Conseil—ou qui aura passé outre à un rapport unanime du Conseil, à une décision judiciaire ou arbitrale reconnaissant que le différend qui s'est élevé entre lui et l'autre Etat belligérant porte sur une question que le Droit international laisse à la compétence exclusive de cet Etat; toutefois, dans ce dernier cas, l'Etat ne sera présumé agresseur que s'il n'a pas soumis auparavant la question au Conseil ou à l'Assemblée, conformément à l'article 11 du Pacte.
2. Tout Etat qui aura violé une des mesures provisoires prescrites par le Conseil pendant la période de procédure, visées à l'article 7 du présent Protocole.
Hors les hypothèses visées aux numéros 1 et 2 du présent article, si le Conseil n'a pu déterminer dans le plus bref délai l'agresseur, il aura l'obligation de prescrire aux belligérants un armistice dont il fixera les conditions à la majorité des deux tiers et dont il surveillera l'observation.
Tout belligérant ayant refusé l'armistice ou en ayant violé les conditions, sera réputé agresseur.
Le Conseil enjoindra aux Etats signataires d'appliquer sans retard contre l'agresseur les sanctions visées à l'article 11 du présent Protocole, et tout Etat signataire, ainsi requis, sera dès lors fondé à exercer les droits d'un belligérant.
ARTICLE 10.
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 demilitarised zone shall be held equivalent to resort to war.
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:
1. If it has refused to submit the dispute to the procedure of pacific settlement provided by Articles 13 and 15 of the Covenant as amplified by the present Protocol, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognising 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.
2. If it has violated provisional measures enjoined by the Council for the period while the proceedings are in progress as contemplated by Article 7 of the present Protocol.
Apart from the cases dealt with in paragraphs 1 and 2 of the present Article, 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.
Any belligerent which has refused to accept the armistice or has violated its terms shall be deemed an aggressor.
The Council shall call upon the signatory States to apply forthwith against the aggressor the sanctions provided by Article 11 of the present Protocol, and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent.
ARTICLE 11.
Dès que le Conseil a fait aux Etats signataires l'injonction prévue au dernier alinéa de l'article 10 du présent Protocole, les obligations desdits Etats en ce qui concerne les sanctions de toute nature visées aux alinéas 1 et 2 de l'article 16 du Pacte, deviennent immédiatement opérantes afin que ces sanctions puissent porter leurs effets contre l'agresseur sans aucun retard.
Ces obligations doivent être interprétées en ce sens que chacun des Etats signataires est tenu de collaborer loyalement et effectivement pour faire respecter le Pacte de la Société des Nations et pour s'opposer à tout acte d'agression dans la mésure que lui permettent sa situation géographique et les conditions spéciales de ses armements.
Conformément à l'alinéa 3 de l'article 16 du Pacte, les Etats signataires prennent l'engagement, individuel et collectif, de venir à l'aide de l'Etat attaqué ou menacé, et de se prêter un mutuel appui, grâce à des facilités et à des échanges réciproques en ce qui concerne le ravitaillement en matières premières et denrées de toute nature, les ouvertures de crédit, les transports et le transit et, à cet effet, de prendre toutes mesures en leur pouvoir pour maintenir la sécurité des communications terrestres et maritimes de l'Etat attaqué ou menacé.
Si les deux Parties au différend sont agresseurs au sens de l'article 10, les sanctions économiques et financières s'appliquent a l'une et à l'autre.
ARTICLE 12.
En raison de la complexité des conditions dans lesquelles le Conseil pourrait être appelé à remplir les fonctions visées à l'article 11 ci-dessus concernant les sanctions économiques et financières et pour préciser les garanties qui sont offertes par le présent Protocole aux Etats signataires, le Conseil invitera immédiatement les organisations économiques et financières de la Société des Nations à procéder à une étude et à
ARTICLE 11.
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.
In accordance with paragraph 3 of Article 16 of the Covenant the signatory States give a joint and several undertaking to come to the assistance of the State attacked or threatened, and to give each other mutual support by means of facilities and reciprocal exchanges as regards the provision of raw materials and supplies of every kind, openings of credits, transport and transit, and for this purpose to take all measures in their power to preserve the safety of communications by land and by sea of the attacked or threatened State.
If both parties to the dispute are aggressors within the meaning of Article 10, the economic and financial sanctions shall be applied to both of them.
ARTICLE 12.
In view of the complexity of the conditions in which the Council may be called upon to exercise the functions mentioned in Article 11 of the present Protocol concerning economic and financial sanctions, and in order to determine more exactly the guarantees afforded by the present Protocol to the signatory States, the Council shall forthwith invite the economic and financial organisations of the League of Nations to consider and report
soumettre un rapport sur la nature des dispositions à prendre pour mettre en vigueur les sanctions et mesures de coopération économique et financière, visées à l'article 16 du Pacte et à l'article 11 du present Protocole.
En possession de ces informations, le Conseil établira par ses organismes compétents:
1. les plans d'action destinés à faire jouer les sanctions economiques et financières contre un Etat agresseur;
2. les plans de coopération économique et financière entre un Etat attaqué et les divers Etats lui portant assistance,
et il communiquera ces plans aux Membres de la Société et aux autres Etats signataires.
ARTICLE 13.
Eu égard aux sanctions militaires, navales et aériennes dont l'application éventuelle est prévue à l'article 16 du Pacte et à l'article 11 du présent Protocole, le Conseil aura qualité pour recevoir les engagements d'Etats déterminant par avance les forces militaires, navales et aériennes que ces Etats pourraient faire intervenir immédiatement afin d'assurer l'exécution des obligations dérivant à ce sujet du Pacte et du présent Protocole.
Dès que le Conseil a fait aux Etats signataires l'injonction prévue au dernier alinéa de l'article 10 ci-dessus, ces Etats peuvent en outre faire entrer en ligne, suivant les accords antérieurement faits, leurs forces militaires, navales et aériennes au secours d'un Etat particulier, victime de l'agression.
Les accords visés au précédent alinéa sont enregistrés et publiés par le Secrétariat de la Société des Nations; ils restent ouverts à tout Etat Membre de la Société, qui voudrait y accéder.
ARTICLE 14.
Le Conseil a seul qualité pour déclarer qui'l y a lieu de faire cesser l'application des sanctions et de rétablir les conditions normales.
as to the nature of the steps to be taken to give effect to the financial and economic sanctions and measures of co-operation contemplated in Article 16 of the Covenant and in Article 11 of this Protocol.
When in possession of this information, the Council shall draw up through its competent organs:
1. Plans of action for the application of the economic and financial sanctions against an aggressor State;
2. Plans of economic and financial co-operation between a State attacked and the different States assisting it;
and shall communicate these plans to the Members of the League and to the other signatory States.
ARTICLE 13.
In view of the contingent military, naval and air sanctions provided for by Article 16 of the Covenant and by Article 11 of the present Protocol, the Council shall be entitled to receive undertakings from States determining in advance the military, naval and air forces which they would be able to bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.
Furthermore, as soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 above, the said States may, in accordance with any agreements which they may previously have concluded, bring to the assistance of a particular State, which is the victim of aggression, their military, naval and air forces.
The agreements mentioned in the preceding paragraph shall be registered and published by the Secretariat of the League of Nations. They shall remain open to all States Members of the League which may desire to accede thereto.
ARTICLE 14.
The Council shall alone be competent to declare that the application of sanctions shall cease and normal conditions be re-established.
ARTICLE 15.
Pour répondre à l'esprit du présent Protocole, les Etats signataires conviennent que la totalité des frais de toute opération d'ordre militaire, naval ou aérien, entreprise pour la répréssion d'une agression, conformément aux termes de ce Protocole, ainsi que la réparation de tous dommages subis par les personnes civiles ou militaires, et de tous dommages matériels occasionnés par les opérations de part et d'autre, seront supportés par l'Etat agresseur jusqu'à l'extréme limite de sa capacité.
Toutefois, vu l'article 10 du Pacte, il ne pourra, comme suite à l'application des sanctions visées au présent Protocole, être porté atteinte en aucun cas à l'intégrité territoriale ou à l'indépendance politique de l'Etat agresseur.
ARTICLE 16.
Les Etats signataires conviennent qu'en cas de différend entre un ou plusieurs parmi eux et un ou plusieurs Etats non signataires du présent Protocole értangers à la Société des Nations, ces Etats étrangers seront invités, aux conditions prévues à l'article 17 du Pacte, à se soumettre aux obligations acceptées par les signataires du présent Protocole aux fins de règlement pacifique.
Si l'Etat invité, refusant d'accepter les dites conditions et obligations, recourt à la guerre centre un Etat signataire, les dispositions de l'article 16 du Pacte, telles qu'elles sont précisées par le présent Protocole, lui sont applicables.
ARTICLE 17.
Les Etats signataires s'engagent à prendre part à une Conférence internationale pour la réduction des armements qui devra être convoquée par le Conseil et qui se réunira à Geneve le lundi 15 juin 1925. Tous autres Etats, Membres ou non de la Société, seront invités à cette Conférence.
En vue de la convocation de la Conférence, le Conseil
ARTICLE 15.
In conformity with the spirit of the present Protocol the signatory States agree that the whole cost of any military, naval or air operations undertaken for the repression of an aggression under the terms of the Protocol, and reparation for all losses suffered by individuals, whether civilians or combatants, and for all material damage caused by the operations of both sides, shall be borne by the aggressor State up to the extreme limit of its capacity.
Nevertheless, in view of Article 10 of the Covenant, neither the territorial integrity nor the political independence of the aggressor State shall in any case be affected as the result of the application of the sanctions mentioned in the present Protocol.
ARTICLE 16.
The signatory States agree that in the event of a dispute between one or more of them and one or more States which have not signed the present Protocol and are not Members of the League of Nations, such non-Member States shall be invited, on the conditions contemplated in Article 17 of the Covenant, to submit, for the purpose of a pacific settlement, to the obligations accepted by the States signatories of the present Protocol.
If the State so invited, having refused to accept the said conditions and obligations, resorts to war against a signatory State, the provisions of Article 16 of the Covenant, as defined by the present Protocol, shall be applicable against it.
ARTICLE 17.
The signatory States undertake to participate in an International Conference for the Reduction of Armaments which shall be convened by the Council and shall meet at Geneva on Monday, June 15th, 1925. All other States, whether Members of the League or not, shall be invited to this Conference.
In preparation for the convening of the Conference, the
préparera, en tenant compte des engagements prévus aux articles 11 et 13 du présent Protocole, un programme général pour la reduction et la limitation des armements qui sera mis à la disposition de cette Conférence et communiqué aux gouvernements le plus tôt possible, et au plus tard trois mois avant la réunion.
Si au moins la majorité des Membres représentés en permanence au Conseil et dix autres Membres de la Société n'ont pas déposé leur ratification pour le 1er mai 1925, le Sécretaire général de la Société devra prendre immédiatement l'avis du Conseil pour savoir s'il doit annuler les invitations ou simplement ajourner la Conférence à une date ultérieure, qui sera fixée par le Conseil pour permettre la réunion du nombre necessaire de ratifications.
ARTICLE 18.
Toutes les fois que, dans l'article 10 ou dans toutes autres dispositions du présent Protocole, il est fait mention d'une décision du Conseil, elle s'entend dans le sens de l'article 15 du Pacte, à savoir que le vote des représentants des Parties au différend ne compte pas dans le calcul de l'unanimité ou de la majorité requise.
ARTICLE 19.
A défaut de stipulations expresses, le présent Protocole n'affecte pas les droits et les obligations des Membres de la Société des Nations, tels qu'ils résultent du Pacte.
ARTICLE 20.
Tout différend relatif à l'interpretation du présent Protocole sera soumis à la Cour permanente de Justice Internationale.
ARTICLE 2l.
Le présent Protocole, dont les textes français et anglais feront foi, sera ratifié.
Council shall draw up with due regard to the undertakings contained in Articles 11 and 13 of the present Protocol a general programme for the reduction and limitation of armaments, which shall be laid before the Conference and which shall be communicated to the Governments at the earliest possible date, and at the latest three months before the Conference meets.
If by May 1st, 1925, ratifications have not been deposited by at least a majority of the permanent Members of the Council and ten other Members of the League, the Secretary-General of the League shall immediately consult the Council as to whether he shall cancel the invitations or merely adjourn the Conference to a subsequent date to be fixed by the Council so as to permit the necessary number of ratifications to be obtained.
ARTICLE 18.
Wherever mention is made in Article 10, or in any other provision of the present Protocol, of a decision of the Council, this shall be understood in the sense of Article 15 of the Covenant, namely that the votes of the representatives of the parties to the dispute shall not be counted when reckoning unanimity or the necessary majority.
ARTICLE 19.
Except as expressly provided by its terms, the present Protocol shall not affect in any way the rights and obligations of Members of the League as determined by the Covenant.
ARTICLE 20.
Any dispute as to the interpretation of the present Protocol shall be submitted to the Permanent Court of International Justice.
ARTICLE 21.
The present Protocol, of which the French and English texts are both authentic, shall be ratified.
Le dépôt des ratifications sera effectué au Secrétariat de la Société des Nations le plus tôt qu'il sera possible.
Les Etats dont le gouvernement a son siège hors d'Europe auront la faculté de se borner à faire connaître au Secrétariat de la Societe des Nations que leur ratification a été donnée et, dans ce cas, ils devront en transmettre l'instrument aussitôt que faire se pourra.
Dès que la majorité des Membres représentés en permanence au Conseil et dix autres Membres de la Société auront déposé ou effectué leur ratification, un procès-verbal sera dressé par le Secrétariat pour le constater.
La mise en vigueur du Protocole aura lieu après que ce procès-verbal aura été dressé et dès que le plan de réduction des armements aura été adopté par la Conférence prevue à l'article 17.
Si, dans un délai, à fixer par ladite Conférence après l'adoption du plan de réduction des armements, ce plan n'a pas été exécuté, il appartiendra au Conseil de le constater; par l'effet de cette constatation le présent Protocole deviendra caduc.
Les conditions en vertu desquelles le Conseil pourra constater que le plan établi par la Conférence internationale pour la réduction des armements n'a pas été exécuté et que, par conséquent, le présent Protocole est devenu caduc, seront définies par la Conférence elle-même.
Tout Etat signataire qui ne se conformerait pas, après l'expiration du délai fixé par la Conférence, au plan adopté par elle, ne pourra bénéficier des dispositions du présent Protocole.
En foi de quoi les Soussignés, dûment autorisés à cet effet, ont signé le présent Protocole.
Fait à Genève, le deux octobre, mil neuf cent vingt-quatre, en un seul
Fait à Genève, le deux octobre, mil neuf cent vingt-quatre, en un seul exemplaire qui restera déposé dans les archives du Secretariat de la Société des Nations et qui sera enregistré par lui à la date de son entrée en vigueur.
The deposit of ratifications shall be made at the Secretariat of the League of Nations as soon as possible.
States of which the seat of government is outside Europe will be entitled merely to inform the Secretariat of the League of Nations that their ratification has been given; in that case, they must transmit the instrument of ratification as soon as possible.
So soon as the majority of the permanent Members of the Council and ten other Members of the League have deposited or have effected their ratifications, a procès-verbal to that effect shall be drawn up by the Secretariat.
After the said procès-verbal has been drawn up, the Protocol shall come into force as soon as the plan for the reduction of armaments has been adopted by the Conference provided for in Article 17.
If within such period after the adoption of the plan for the reduction of armaments as shall be fixed by the said Conference, the plan has not been carried out, the Council shall make a declaration to that effect; this declaration shall render the present Protocol null and void.
The grounds on which the Council may declare that the plan drawn up by the International Conference for the Reduction of Armaments has not been carried out, and that in consequence the present Protocol has been rendered null and void, shall be laid down by the Conference itself.
A signatory State which, after the expiration of the period fixed by the Conference, fails to comply with the plan adopted by the Conference, shall not be admitted to benefit by the provisions of the present Protocol.
In faith whereof the Undersigned, duly authorised for this purpose, have signed the present Protocol.
DONE at Geneva, on the second day of October, nineteen hundred and twenty-four, in a single copy, which will be kept in the archives of the Secretariat of the League and registered by it on the date of its coming into force.
ANNEX C.
GENERAL REPORT SUBMITTED TO THE FIFTH ASSEMBLY
ON BEHALF OF THE FIRST AND THIRD COMMITTEES
BY M. POLITIS (GREECE) AND M. BENES
(CZECHOSLOVAKIA).
I
INTRODUCTION.
After being examined for several years by the Third Committee, the problem of the reduction of armaments has this year suddenly assumed a different, a wider and even an unexpected form.
Last year a draft Treaty of Mutual Assistance was prepared, which the Assembly sent to the Members of the League for their consideration. The replies from the Governments were to be examined by the Fifth Assembly.
At the very beginning of its work, however, after a memorable debate, the Assembly indicated to the Third Committee a new path. On September 6th, 1924, on the proposal of the Prime Ministers of France and Great Britain, M. Edouard Herriot and Mr. Ramsay MacDonald, the Assembly adopted the following resolution:
"The Assembly,
"Noting the declarations of the Governments represented, observes with satisfaction that they contain the basis of an understanding tending to establish a secure peace,
"Decides as follows:
"With a view to reconciling in the new proposals the divergences between certain points of view which have been expressed and, when agreement has been reached, to enable an international conference upon armaments to be summoned by the League of Nations at the earliest possible moment:
"(1) The Third Committee is requested to consider the material dealing with security and the reduction of armaments, particularly the observations of the Governments on the draft Treaty of Mutual Assistance, prepared in pursuance of Resolution XIV of the Third Assembly and other plans prepared and presented to the Secretary-General since the publication of the draft Treaty, and to examine the obligations contained in the Covenant of the League in relation to the guarantees of security which a resort to arbitration and a reduction of armaments may require:
"(2) The First Committee is requested:
"(a) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;
"(b) To examine within what limits the terms of Article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice might be rendered more precise and thereby facilitate the more general acceptance of the clause;
and thus strengthen the solidarity and the security of the nations of the world by settling by pacific means all disputes which may arise between States."
This resolution had two merits, first, that of briefly summarising all the investigations made in the last four years by the different organisations of the League in their efforts to establish peace and bring about the reduction of armaments, and, secondly, that of indicating the programme of work of the Committees in the hope that, with the aid of past experience, they would at last attain the end in view.
The Assembly had assigned to each Committee a distinct and separate task; to the First Committee, the examination of the pacific settlement of disputes by methods capable of being applied in every case; to the Third Committee, the question of the security of nations considered as a necessary preliminary condition for the reduction of their armaments.
Each Committee, after a general discussion which served to detach the essential elements from the rest of the problem, referred the examination of its programme to a Sub-Committee, which devoted a large number of meetings to this purpose.
The proposals of the Sub-Committees then led to very full debates by the Committees, which terminated in the texts analysed below.
As, however, the questions submitted respectively to the two Committees form part of an indivisible whole, contact and collaboration had to be established between the Committees by means of a Mixed Committee of nine members and finally by a joint Drafting Committee of four members.
For the same reason, the work of the Committees has resulted in a single draft protocol accompanied by two draft resolutions for which the Committees are jointly responsible.
Upon these various texts, separate reports were submitted, which, being approved by the Committees respectively responsible for them, may be considered as an official commentary by the Committees.
These separate reports have here been combined in order to present as a whole the work accomplished by the two Committees and to facilitate explanation.
Before entering upon an analysis of the proposed texts, it is expedient to recall, in a brief historical summary, the efforts of the last four years, of which the texts are the logical conclusion.
HISTORICAL STATEMENT.
The problem of the reduction of armaments is presented in Article 8 of the Covenant in terms which reveal at the outset the complexity of the question and which explain the tentative manner in which the subject has been treated by the League of Nations in the last few years.
"The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations."
Here we see clearly expressed the need of reducing the burden which armaments imposed upon the nations immediately after the war and of putting a stop to the competition in armaments which was, in itself, a threat to the peace of the world. But, at the same time, there is recognised the duty of safeguarding the national security of the Members of the League and of safeguarding it, not only by the maintenance of a necessary minimum of troops, but also by the co-operation of all the nations, by a vast organisation for peace.
Such is the meaning of the Covenant, which, while providing for reduction of armaments properly so called, recognises at the same time the need of common action, by all the Members of the League, with a view to compelling a possible disturber of the peace to respect his international obligations.
Thus, in this first paragraph of Article 8, which is so short but so pregnant, mention is made of all the problems which have engaged the attention of our predecessors and ourselves and which the present Assembly has specially instructed us to solve, the problems of collective security and the reduction of armaments.
Taking up Article 8 of the Covenant, the First Assembly had already outlined a programme. At its head it placed a pronouncement of the Supreme Council:
"In order to diminish the economic difficulties of Europe, armies should everywhere be reduced to a peace footing. Armaments should be limited to the lowest possible figure compatible with national security."
The Assembly also called attention to a resolution of the International Financial Conference of Brussels held a short time before:
"Recommending to the Council of the League of Nations the desirability of conferring at once with the several Governments concerned with a view to securing a general reduction of the crushing burdens which, on their existing scale, armaments still impose on the impoverished peoples of the world, sapping their resources and imperilling their recovery from the ravages of war."
It also requested its two Advisory Commissions to set to work at once to collect the necessary information regarding the problem referred to in Article 8 of the Covenant.
From the beginning the work of the Temporary Mixed Commission and of the Permanent Advisory Commission revealed the infinite complexity of the question.
The Second Assembly limited its resolutions to the important, but none the less (if one may say so) secondary, questions of traffic in arms and their manufacture by private enterprise. It only touched upon the questions of military expenditure and budgets in the form of recommendations and, as regards the main question of reduction of armaments, it confined itself to asking the Temporary Mixed Commission to formulate a definite scheme.
It was between the Second and Third Assemblies that the latter Commission, which was beginning to get to grips with the various problems, revealed their constituent elements. In its report it placed on record that:
"The memory of the world war was still maintaining in many countries a feeling of insecurity, which was represented in the candid statements in which, at the request of the Assembly, several of them had put forward the requirements of their national security, and the geographical and political considerations which contributed to shape their policy in the matter of armaments."
At the same time, however, the Commission stated:
"Consideration of these statements as a whole has clearly revealed not only the sincere desire of the Governments to reduce national armaments and the corresponding {161} expenditure to a minimum, but also the importance of the results achieved. These facts"—according to the Commission—"are indisputable, and are confirmed moreover, by the replies received from Governments to the Recommendation of the Assembly regarding the limitation of military expenditure."
That is the point we had reached two years ago; there was a unanimous desire to reduce armaments. Reductions, though as yet inadequate, had been begun, and there was a still stronger desire to ensure the security of the world by a stable and permanent organisation for peace.
That was the position which, after long discussions, gave rise at the Third Assembly to the famous Resolution XIV and at the Fourth Assembly to the draft Treaty of Mutual Assistance, for which we are now substituting the Protocol submitted to the Fifth Assembly.
What progress has been made during these four years?
Although the Treaty of Mutual Assistance was approved in principle by eighteen Governments, it gave rise to certain misgivings. We need only recall the most important of these, hoping that a comparison between them and an analysis of the new scheme will demonstrate that the First and Third Committees have endeavoured, with a large measure of success, to dispose of the objections raised and that the present scheme consequently represents an immense advance on anything that has hitherto been done.
In the first place, a number of Governments or delegates to the Assembly argued that the guarantees provided by the draft Treaty of Mutual Assistance did not imply with sufficient definiteness the reduction of armaments which is the ultimate object of our work.
The idea of the Treaty was to give effect to Article 8 of the Covenant, but many persons considered that it did not, in fact, secure the automatic execution of that article. Even if a reduction of armaments was achieved by its means, the amount of the reduction was left, so the opponents of the Treaty urged, to the estimation of each Government, and there was nothing to show that it would be considerable.
With equal force many States complained that no provision had been made for the development of the juridicial and moral elements of the Covenant by the side of material guarantees. The novel character of the charter given to the nations in 1919 lay essentially in the advent of a moral solidarity which foreshadowed the coming of a new era. That principle ought to have, as its natural consequence, the extension of arbitration and international jurisdiction, without which no human society can be solidly grounded. A considerable portion of the Assembly asked that efforts should also be made in this direction. The draft Treaty seemed from this point of view to be insufficient and ill-balanced.
Finally, the articles relating to partial treaties gave rise, as you are aware, to certain objections. Several Governments considered that they would lead to the establishment of groups of Powers animated by hostility towards other Powers or groups of Powers and that they would cause political tension. The absence of the barriers of compulsory arbitration and judicial intervention was evident here as everywhere else.
Thus, by a logical and gradual process, there was elaborated the system at which we have now arrived.
The reduction of armaments required by the Covenant and demanded by the general situation of the world to-day led us to consider the question of security as a necessary complement to disarmament.
The support demanded from different States by other States less favourably situated had placed the former under the obligation of asking for a sort of moral and legal guarantee that the States which have to be supported would act in perfect good faith and would always endeavor to settle their disputes by pacific means.
It became evident, however, with greater clearness and force than ever before, that if the security and effective assistance demanded in the event of aggression was the condition sine quâ non of the reduction of armaments, it was at the same time the necessary complement of the pacific settlement of international disputes, since the non-execution of a sentence obtained by pacific methods of settlement would necessarily drive the world back to the system of armed force. Sentences imperatively required sanctions or the whole system would fall to the ground.
Arbitration was therefore considered by the Fifth Assembly to be the necessary third factor, the complement of the two others with which it must be combined in order to build up the new system set forth in the Protocol.
Thus, after five years' hard work, we have decided to propose to the Members of the League the present system of arbitration, security and reduction of armaments—a system which we regard as being complete and sound.
That is the position with which the Fifth Assembly has to deal to-day. The desire to arrive at a successful issue is unanimous. A great number of the decisions adopted in the past years have met with general approval. There has arisen a thoroughly clear appreciation of the undoubted gaps which have to be filled and of the reasonable apprehensions which have to be dissipated. Conditions have therefore become favourable for arriving at an agreement.
An agreement has been arrived at on the basis of the draft Protocol which is now submitted to you for consideration.
II
ANALYSIS OF THE SCHEME.
1.—WORK OF THE FIRST COMMITTEE.
(Rapporteur: M. Politis)
DRAFT PROTOCOL FOR THE PACIFIC SETTLEMENT
OF INTERNATIONAL DISPUTES.
Preamble.
The object of the Protocol, which is based upon the resolution of September 6th, 1924, is 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.
These general ideas are summarised in the preamble of the Protocol.
COMPULSORY ARBITRATION.
(Articles 1 to 6, 10, 16, 18 and 19 of the Protocol)
1.—INTRODUCTION.
Compulsory arbitration is the fundamental basis of the proposed system. It has seemed to be the only means of attaining the ultimate aim pursued by the League of Nations, viz. the establishment of a pacific and legal order in the relations between peoples.
The realisation of this great ideal, to which humanity aspires with a will which has never been more strongly affirmed, presupposes, as an indispensable condition, the elimination of war, the extension of the rule of law and the strengthening of the sentiment of justice.
The Covenant of the League of Nations erected a wall of protection around the peace of the world, but it was a first attempt at international organisation and it did not succeed in closing the circle sufficiently thoroughly to leave no opening for war. It reduced the number of possible wars. It did not condemn them all. There were some which it was forced to tolerate. Consequently, there remained, in the system which it established, numerous fissures, which constituted a grave danger to peace.
The new system of the Protocol goes further. It closes the circle drawn by the Covenant; it prohibits all wars of aggression. Henceforth no purely private war between nations will be tolerated.
This result is obtained by strengthening the pacific methods of procedure laid down in the Covenant. The Protocol completes them and extends them to all international disputes without exception, by making arbitration compulsory.
In reality, the word "arbitration" is used here in a somewhat different sense from that which it has generally had up to now. It does not exactly correspond with the definition given by the Hague Conferences which, codifying a century-old custom, saw in it "the settlement of disputes between States by judges of their own choice and on the basis of respect for law" (Article 37 of the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes).
The arbitration which is now contemplated differs from this classic arbitration in various respects:
(a) It is only part of a great machinery of pacific settlement. It is set up under the auspices and direction of the Council of the League of Nations.
(b) It is not only an instrument for the administration of justice. It is, in addition and above all, an instrument of peace. The arbitrators must no doubt seek in the first place to apply the rules and principles of international law. This is the reason why, as will be seen below, they are bound to consult the Permanent Court of International Justice if one of the parties so requests. But if international law furnishes no rule or principle applicable to the particular {166} case, they cannot, like ordinary arbitrators, refuse to give a decision. They are bound to proceed on grounds of equity, for in our system arbitration is always of necessity to lead to a definitive solution of the dispute. This is not to be regretted, for to ensure the respect of law by nations it is necessary first that they should be assured of peace,
(c) It does not rest solely upon the loyalty and good faith of the parties. To the moral and legal force of an ordinary arbitration is added the actual force derived from the international organisation of which the kind of arbitration in question forms one of the principal elements; the absence of a sanction which has impeded the development of compulsory arbitration is done away with under our system.
In the system of the Protocol, the obligation to submit disputes to arbitration is sound and practical because it has always a sanction. Its application is automatically ensured, by means of the intervention of the Council; in no case can it be thrown on one side through the ill-will of one of the disputant States. The awards to which it leads are always accompanied by a sanction, adapted to the circumstances of the case and more or less severe according to the degree of resistance offered to the execution of the sentence.
2.—NATURE OF THE RULES OP THE PROTOCOL.
Article 1.
The rules laid down in the Protocol do not all have the same scope or value for the future.
As soon as the Protocol comes into force, its provisions will become compulsory as between the signatory States, and in its dealings with them the Council of the League of Nations will at once be able to exercise all the rights and fulfil all the duties conferred upon it.
As between the States Members of the League of Nations, the Protocol may in the first instance create a dual régime, for, if it is not immediately accepted by them all, the relations between signatories and non-signatories will still be governed by the Covenant alone while the relations between signatories will be governed by the Protocol as well.
But this situation cannot last. Apart from the fact that it may be hoped that all Members of the League will adhere to it, the Protocol is in no sense designed to create among the States which accept it a restricted League capable of competing with or opposing in any way the existing League. On the contrary, such of its provisions as relate to articles of the Covenant will, as soon as possible, be made part of the general law by amendment of the Covenant effected in accordance with the procedure for revision laid down in Article 26 thereof. The signatory States which are Members of the League of Nations undertake to make every effort to this end.
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, or between States coming within the latter category.
It should be added that, as the League realises its aim of universality, the amended Covenant will take the place, as regards all States, of the separate régime of the Protocol.
3.—CONDEMNATION OF AGGRESSIVE WAR.
Article 2.
The general principle of the Protocol is the prohibition of aggressive war.
Under the Covenant, while the old unlimited right of States to make war is restricted, it is not abolished. There are cases in which the exercise of this right is tolerated; some wars are prohibited and others are legitimate.
In future the position will be different. In no case is any State signatory of the Protocol entitled to undertake on its own sole initiative an offensive war against another signatory State or against any non-signatory State which accepts all the obligations assumed by the signatories under the Protocol.
The prohibition affects only aggressive war. It does not, of course, extend to defensive war. The right of legitimate self-defence continues, as it must, to be respected. The State attacked retains complete liberty to resist by all means in its power any acts of aggression of which it may be the victim. Without waiting for the assistance which it is entitled to receive from the international community, it may and should at once defend itself with its own force. Its interests are identified with the general interest. This is a point on which there can be no doubt.
The same applies when a country employs force with the consent of the Council or the Assembly of the League of Nations under the provisions of the Covenant and the Protocol. This eventuality may arise in two classes of cases: either a State may take part in the collective measures of force decided upon by the League of Nations in aid of one of its Members which is the victim of aggression; or a State may employ force with the authorisation of the Council or the Assembly in order to enforce a decision given in its favour. In the former case, the assistance given to the victim of aggression is indirectly an act of legitimate self-defence. In the latter, force is used in the service of the general interest, which would be threatened if decisions reached by a pacific procedure could be violated with impunity. In all these cases the country resorting to war is not acting on its private initiative but is in a sense the agent and the organ of the community.
It is for this reason that we have not hesitated to speak of the exceptional authorisation of war. It has been proposed that the word "force" should be used in order to avoid any mention of "war"—in order to spare the public that disappointment which it might feel when it found that, notwithstanding the solemn condemnation of war, war was still authorised in exceptional cases. We preferred, however, to recognise the position frankly by retaining the expression "resort to war" which is used in the Covenant. If we said "force" instead of "war," we should not be altering the facts in any way. Moreover, the confession that war is still possible in specific cases has a certain value, because the term describes a definite and well-understood situation, whereas the expression "resort to force" would be liable to be misunderstood, and also because it emphasises the value of the sanctions at the disposal of the community of States bound by the Protocol.
4.—COMPULSORY JURISDICTION OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.
Article 3.
The general principle of the Protocol could not be accepted unless the pacific settlement of all international disputes without distinction were made possible.
This solution has been found, in the first place, in the extension of the compulsory jurisdiction of the Permanent Court of International Justice.
According to its Statute, the jurisdiction of the Court is, in principle, optional. On the other hand, Article 36, paragraph 2, of the Statute, offers States the opportunity of making the jurisdiction compulsory in respect of all or any of the classes of legal disputes affecting: (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. States have only to declare their intention through the special Protocol annexed to the Statute. The undertaking then holds good in respect of any other State which assumes the same obligation. It may be given either unconditionally or on condition of reciprocity on the part of several or certain other States; either permanently or for a fixed period.
So far such compulsory jurisdiction has only been accepted by a small number of countries. The majority of States have abstained because they did not see their way to accept compulsory jurisdiction by the Court in certain cases falling within one or another of the classes of dispute enumerated above, and because they were not sure whether, in accepting, they could make reservations to that effect.
It was for this reason that the Assembly in its resolution of September 6th, requested the First Committee to render more precise the terms of Article 36, paragraph 2, in order to facilitate its acceptance.
Careful consideration of the article has shown that it is sufficiently elastic to allow of all kinds of reservations. Since it is open to the States to accept compulsory jurisdiction by the Court in respect of certain of the classes of dispute mentioned and not to accept it in respect of the rest, it is also open to them only to accept it in respect of a portion of one of those classes; rights need not be exercised in their full extent. In giving the undertaking in question, therefore, States are free to declare that it will not be regarded as operative in those cases in which they consider it to be inadmissible.
We can imagine possible and therefore legitimate, reservations either in connection with a certain class of dispute or, generally speaking, in regard to the precise stage at which the dispute may be laid before the Court. While we cannot here enumerate all the conceivable reservations, it may be worth while to mention merely as examples those to which we referred in the course of our discussions.
From the class of disputes relating to "the interpretation of a treaty" there may be excluded, for example, disputes as to the interpretation of certain specified classes of treaty such as political treaties, peace treaties, etc.
From the class of disputes relating to "any point of international law" there may be excluded, for example, disputes as to the application of a political treaty, a peace treaty, etc., or as to any specified question or disputes which might arise as the outcome of hostilities initiated by one of the signatory States in agreement with the Council or the Assembly of the League of Nations.
Again, there are many possible reservations as to the precise stage at which a dispute may be laid before the Court. The most far-reaching of these would be to make the resort to the Court in connection with every dispute in respect of which its compulsory jurisdiction is recognised contingent upon the establishment of an agreement for submission of the case which, failing agreement between the parties, would be drawn up by the Court itself, the analogy of the provisions of the Hague Convention of 1907 dealing with the Permanent Court of Arbitration being thus followed.
It might also be stated that the recognition of the compulsory jurisdiction of the Court does not prevent the parties to the dispute from agreeing to resort to a preliminary conciliation procedure before the Council of the League of Nations or any other body selected by them, or to submit their disputes to arbitration in preference to going before the Court.
A State might also, while accepting compulsory jurisdiction by the Court, reserve the right of laying disputes before the Council of the League with a view to conciliation in accordance with paragraphs 1-3 of Article 15 of the Covenant, with the proviso that neither party might, during the proceedings before the Council, take proceedings against the other in the Court.
It will be seen, therefore, that there is a very wide range of reservations which may be made in connection with the undertaking referred to in Article 36, paragraph 2. It is possible that apprehensions may arise lest the right to make reservations should destroy the practical value of the undertaking. There seems, however, to be no justification for such misgivings. In the first place, it is to be hoped that every Government will confine its reservations to what is absolutely essential. Secondly, it must be recognised that, however restrictive the scope of the undertaking may be, it will always be better than no undertaking at all.
The fact that the signatory States undertake to accede, even though it be with reservations, to paragraph 2 of Article 36 may therefore be held to constitute a great advance.
Such accession must take place at latest within the month following upon the coming into force or subsequent acceptance of the Protocol.
It goes without saying that such accession in no way restricts the liberty which States possess, under the ordinary law, of concluding special agreements for arbitration. It is entirely open to any two countries signatory of the Protocol which have acceded to paragraph 2 of Article 36 to extend still further, as between themselves, the compulsory jurisdiction of the Court, or to stipulate that before having recourse to its jurisdiction they will submit their disputes to a special procedure of conciliation or even to stipulate, either before or after a dispute has arisen, that it shall be brought before a special tribunal of arbitrators or before the Council of the League of Nations rather than to the Court.
It is also certain that up to the time of the coming into force or acceptance of the Protocol accession to paragraph 2 of Article 36 which will thenceforth become compulsory, will remain optional, and that if such accession has already taken place it will continue to be valid in accordance with the terms under which it was made.
The only point which may cause difficulty is the question what is the effect of accessions given to the Protocol if the latter becomes null and void. It may be asked whether such accessions are to be regarded as so intimately bound up with the Protocol that they must disappear with it. The reply must be in the negative. The sound rule of interpretation of international treaties is that, unless there is express provision to the contrary, effects already produced survive the act from which they sprang.
The natural corollary is that any State which wishes to make the duration of its accession to Article 36 dependent on the duration of the Protocol must make an express stipulation to this effect. As Article 36 permits acceptance of the engagement in question for a specified term only, a State may, when acceding, stipulate that it only undertakes to be bound during such time as the Protocol shall remain in force.
5.—STRENGTHENING OF PACIFIC METHODS OF PROCEDURE.
Article 4.
We have, in the second place, succeeded in making possible the pacific settlement of all disputes by strengthening the procedure laid down in the Covenant.
Article 4, paragraph 1.
Action by the Council with a view to reconciliation.—If a dispute does not come within the compulsory jurisdiction of the Permanent Court of International Justice and if the Parties have been unable to come to an agreement to refer it to the Court or to submit it to arbitration, it should, under the terms of Article 15 of the Covenant, be submitted to the Council, which will endeavour to secure a settlement by reconciling the parties. If the Council's efforts are successful, it must, so far as it considers it advisable, make public a statement giving such facts and explanations regarding the dispute and the terms of settlement thereof as it may deem appropriate.
In this connection no change has been made in the procedure laid down by the Covenant. It appeared unnecessary to specify what particular procedure should be followed. The Council is given the utmost latitude in choosing the means most appropriate for the reconciliation of the parties. It may take advice in various quarters; it may hear expert opinions; it may proceed to investigations or expert enquiries, whether by itself or through the intermediary of experts chosen by it; it may even, upon application by one of the parties, constitute a special conciliation committee. The essential point is to secure, if possible, a friendly settlement of the dispute; the actual methods to be employed are of small importance. It is imperative that nothing should in any way hamper the Council's work in the interests of peace. It is for the Council to examine the question whether it would be expedient to draw up for its own use and bring to the notice of the Governments of the signatory States general regulations of procedure applicable to cases brought before it and designed to test the good-will of the parties with a view to persuading them more easily to reach a settlement under its auspices.
Experience alone can show whether it will be necessary to develop the rules laid down in the first three paragraphs of Article 15 of the Covenant.
For the moment it would appear to be expedient to make no addition and to have full confidence in the wisdom of the Council, it being understood that, whether at the moment in question or at any other stage of the procedure, it will be open to the parties to come to an agreement for some different method of settlement: by way of direct understanding, constitution of a special committee of mediators or conciliators, appeal to arbitration or to the Permanent Court of International Justice.
The new procedure set up by the Protocol will be applicable only in the event of the Council's failing in its efforts at reconciliation and of the parties failing to come to an understanding in regard to the method of settlement to be adopted.
In such case, before going further, the Council must call upon the parties to submit their dispute to judicial settlement or to arbitration.
It is only in the case where this appeal—which the Council will make in the manner which appears to it most likely to secure a favourable hearing—is not listened to that the procedure will acquire the compulsory character which is necessary to make certain the final settlement of all disputes. There are three alternatives:
(a) Compulsory arbitration at the request of one of the parties;
(b) A unanimous decision by the Council;
(c) Compulsory arbitration enjoined by the Council.
Appropriate methods are laid down for all three cases.
Article 4, paragraph 2.
First case of Compulsory Arbitration.—If the parties, being called upon by the Council to submit their dispute to a judicial or arbitral settlement, do not succeed in coming to an agreement on the subject, there is no question of optional arbitration, but if a single party desires arbitration, arbitration immediately becomes compulsory.
The dispute is then ipso facto referred to a Committee of Arbitrators, which must be constituted within such time limit as the Council shall fix.
Full liberty is left to the parties themselves to constitute this Committee of Arbitrators. They may agree between themselves in regard to the number, names and powers of the arbitrators and the procedure. It is to be understood that the word "powers" is to be taken in the widest sense, including, inter alia, the questions to be put.
It was not considered desirable to develop this idea further. It appeared to be sufficient to state that any result which could be obtained by means of an agreement between the parties was preferable to any other solution.
It also appeared inexpedient to define precisely the powers which should be conferred upon the arbitrators. This is a matter which depends upon the circumstances of each particular case. According to the case, the arbitrators, as is said above, may fill the rôle of judges giving decisions of pure law or may have the function of arranging an amicable settlement with power to take account of considerations of equity.
It has not been thought necessary to lay this down in the form of a rule. It has appeared preferable to leave it in each case to the parties to agree between themselves to decide the matter according to the circumstances of the case.
Nevertheless, consideration has been given to the possibility that the arbitrators need not necessarily be jurists. It has therefore been decided that, when called upon to deal with points of law, they shall, if one of the parties so desires, request, through the medium of the Council, the advisory opinion of the Permanent Court of International Justice, which must, in such a case, meet with the utmost possible despatch. The opinion of the Court is obtained for the assistance of the arbitrators; it is not legally binding upon them, although its scientific authority must, in all cases, exercise a strong influence upon their judgment. With a view to preventing abusively frequent consultations of this kind, it is understood that the opinion of the Court in regard to disputed points of law can only be asked on a single occasion in the course of each case.
The extension which, in the new system of pacific settlement of disputes, has been given to the advisory procedure of the Court has suggested the idea that it might be desirable to examine whether, even in such cases, it might not be well to adopt the system of adding national judges which at present only obtains in litigious proceedings, and also that of applying to the advisory procedure the provisions of Article 24 of the Statute of the Court relating to withdrawal of judges.
If the parties have not been able to come to an understanding on all or on some of the points necessary to enable the arbitration to be carried out, it lies with the Council to settle the unsettled points, with the exception of the formulation of the questions to be answered, which the arbitrators must seek in the claims set out by the parties or by one of them if the others make default.
In cases where the selection of arbitrators thus falls upon the Council, it has appeared necessary—however much confidence may be felt in the Council's wisdom—to lay down for the selection of the arbitrators certain rules calculated to give the arbitration the necessary moral authority to ensure that it will in practice be respected.
The first rule is that the Council shall, before proceeding to the selection of arbitrators, have regard to the wishes of the parties. It was suggested that this idea should be developed by conferring on the parties the right to indicate their preferences and to challenge a certain number of the arbitrators proposed by the Council.
This proposal was set aside on account of the difficulty of laying down detailed regulations for the exercise of this double right. But it is understood that the Council will have no motive for failing to accept candidates proposed to it by the different parties nor for imposing upon them arbitrators whom they might wish to reject, nor, finally, for failing to take into account any other suggestion which the parties might wish to make. It is indeed evident that the Council will always be desirous of acting in the manner best calculated to increase to the utmost degree the confidence which the Committee of Arbitrators should inspire in the parties.
The second rule is based on the same point of view. It lays down the right of the Council to select the arbitrators and their president from among persons who, by their nationality, their personal character and their experience, appear to furnish the highest guarantees of competence and impartiality.
Here, too, experience will show whether it would be well for the Council to draw up general regulations for the composition and functioning of the compulsory arbitration now in question and of that above referred to, and for the conciliation procedure in the Council itself. Such regulations would be made for the Council's own use but would be communicated to the Governments of the signatory States.
Article 4, paragraph 3.
Unanimous decision by the Council.—If arbitration is refused by both parties the case will be referred back to the Council, but this time it will acquire a special character. Refusal of arbitration implies the consent of both parties to a final settlement of the dispute by the Council. It implies recognition of an exceptional jurisdiction of the Council. It denotes that the parties prefer the Council's decision to an arbitral award.
Resuming the examination of the question, the Council has not only the latitude which it customarily possesses. It is armed with full powers to settle the question finally and irrevocably if it is unanimous. Its decision, given unanimously by all the members other than those representing parties to the dispute, is imposed upon the parties with the same weight and the same force as the arbitration award which it replaces.
Article 4, paragraph 4.
Second case of Compulsory Arbitration.—If the Council does not arrive at a unanimous decision, it has to submit the dispute to the judgment of a Committee of Arbitrators, but this time, owing to the parties being deemed to have handed their case over to the Council, the organisation of the arbitration procedure is taken entirely out of their hands. It will be for the Council to settle all the details, the composition, the powers and the procedure of the Committee of Arbitrators. The Council is of course at liberty to hear the parties and even to invite suggestions from them, but it is under no obligation to do so. The only regulation with which it must comply is that, in the choice of arbitrators, it must bear in mind the guarantees of competence and impartiality which, by their nationality, their personal character and their experience, these arbitrators must always furnish.
Article 4. paragraph 6.
Effect of, and Sanction enforcing, Decisions.—Failing a friendly arrangement, we are, thanks to the system adopted, in all cases certain of arriving at a final solution of a dispute, whether in the form of a decree of the Permanent Court of International Justice or in the form of an arbitral award or, lastly, in the form of a unanimous decision of the Council.
To this solution the parties are compelled to submit. They must put it into execution or comply with it in good faith.
If they do not do so, they are breaking an engagement entered into towards the other signatories of the Protocol, and this breach involves consequences and sanctions according to the degree of gravity of the case.
If the recalcitrant party confines itself to offering passive resistance to the solution arrived at, it will first be the object of pacific pressure from the Council, which must exercise all its influence to persuade it to respect its engagements. If the Council is unsuccessful, it must propose measures calculated to ensure effect being given to the decision.
On this point the Protocol has been guided solely by the regulation contained at the end of Article 13 of the Covenant. The Council may thus institute against the recalcitrant party collective sanctions of an economic and financial order. It is to be supposed that such sanctions will prove sufficient. It has not appeared possible to go further and to employ force against a State which is not itself resorting to force. The party in favour of which the decision has been given might, however, employ force against the recalcitrant party if authorised to do so by the Council.
But if the State against which the decision has been given takes up arms in resistance thereto, thereby becoming an aggressor against the combined signatories, it deserves even the severe sanctions provided in Article 16 of the Covenant, interpreted in the manner indicated in the present Protocol.
Sphere of Application of Methods of Pacific Procedure.—Necessary as the system which we have laid down is for the purpose of ensuring settlement of all disputes, in applying it, the pacific aim which underlies it must be the only guide. It must not be diverted to other purposes and used as an occasion for chicanery and tendencious proceedings by which the cause of peace would lose rather than gain.
A few exceptions to the rule have also had to be made in order to preserve the elasticity of the system. These are cases in which the claimant must be nonsuited, the claim being one which has to be rejected in limine by the Council, the Permanent Court of International Justice or the arbitrators, as the case may be.
The disputes to which the system will not apply are of three kinds:
Article 4, paragraph 5.
1. The first concerns disputes relating to questions which, at some time prior to the entry into force of the Protocol have been the subject of a unanimous recommendation by the Council accepted by one of the parties concerned. It is essential to international order and to the prestige of the Council that its unanimous recommendations, which confer a right upon the State accepting them, shall not be called into question again by means of a procedure based upon compulsory arbitration. Failing a friendly arrangement, the only way which lies open for the settlement of disputes to which these recommendations may give rise is recourse to the Council in accordance with the procedure at present laid down in the Covenant.
Article 4, paragraph 7.
2. The same applies to disputes which arise as the result of measures of war taken by one or more signatory States in agreement with the Council or the Assembly of the League of Nations. It would certainly not be admissible that compulsory arbitration should become a weapon in the hands of an enemy to the community to be used against the freedom of action of those who, in the general interest, seek to impose upon that enemy respect for his engagements.
In order to avoid all difficulty of interpretation, these first two classes of exceptions have been formally stated in the Protocol.
3. 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.
6.—ROLE OF THE ASSEMBLY UNDER THE SYSTEM
SET UP BY THE PROTOCOL.
Article 6.
The new procedure should be adapted to the old one, which gave the Assembly the same powers as the Council when a dispute is brought before it, either by the Council itself or at the request of one of the parties.
The question has arisen whether the system of maintaining in the new procedure this equality of powers between the two organs of the League of Nations is a practical one. Some were of opinion that it would be better to exclude intervention by the Assembly. Finally, however, the opposite opinion prevailed; an appeal to the Assembly may, indeed, have an important influence from the point of view of public opinion. Without going so far as to assign to the Assembly the same rôle as to the Council, it has been decided to adopt a mixed system by which the Assembly is, in principle, substituted for the Council in order that, when a dispute is referred to it in conformity with paragraph 9 of Article 15 of the Covenant, it may undertake, in the place of the Council, the various duties provided for in Article 4 of the present Protocol with the exception of purely executive acts which will always devolve upon the Council. For example, the organisation and management of compulsory arbitration, or the transmission of a question to the Permanent Court of International Justice, must always be entrusted to the Council, because, in practice, the latter is the only body qualified for such purposes.
The possible intervention of the Assembly does not affect in any way the final result of the new procedure. If the Assembly does not succeed in conciliating the parties and if one of them so requests, compulsory arbitration will be arranged by the Council in accordance with the rules laid down beforehand.
If none of the parties asks for arbitration, the matter is referred back to the Assembly, and if the solution recommended by the Assembly obtains the majority required under paragraph 10 of Article 15 of the Covenant, it has the same value as a unanimous decision of the Council.
Lastly, if the necessary majority is not obtained, the dispute is submitted to a compulsory arbitration organised by the Council.
In any event, as in the case where the Council alone intervenes, a definitive and binding solution of the dispute is reached.
7.—DOMESTIC JURISDICTION OF STATES.
Article 5.
The present Protocol in no way derogates from the rule of Article 15, paragraph 8, of the Covenant, which protects national sovereignty.
In order that there might be no doubt on this point, it appeared advisable to say so expressly.
Before the Council, whatever be the stage in the procedure set up by the Protocol at which the Council intervenes, the provision referred to applies without any modification.
The rule is applied also to both cases of compulsory arbitration. If one of the States parties to the dispute claims that the dispute or part thereof arises out of a matter which by international law is solely within its jurisdiction, the arbitrators must on this point take the advice of the Permanent Court of International Justice through the medium of the Council, for the question thus put in issue is a legal question upon which a judicial opinion should be obtained.
The Court will thus have to give a decision as to whether the question in dispute is governed by international law or whether it falls within the domestic jurisdiction of the State concerned. Its functions will be limited to this point and the question will in any event be referred back to the arbitrators. But, unlike other opinions requested of the Court in the course of a compulsory arbitration—opinions which for the arbitrators are purely advisory—in the present case the opinion of the Court is compulsory in the sense that, if the Court has recognised that the question in dispute falls entirely within the domestic jurisdiction of the State concerned, the arbitrators will simply have to register this conclusion in their award. It is only if the Court holds that the question in dispute is governed by international law that the arbitrators will again take the case under consideration in order to give a decision upon its substance.
The compulsory character of the Court's opinion, in this case, increases the importance of the double question referred to above, in connection with Article 4, relating to the calling-in of national judges, and the application of Article 24 of the Statute of the Court in matters of advisory procedure.
While the principle of Article 15, paragraph 8, of the Covenant is maintained, it has been necessary, in order to make its application more flexible, to call in aid the rule contained in Article 11 of the Covenant, which makes it the duty of the League of Nations, in the event of war or a threat of war, to "take any action that may be deemed wise and effective to safeguard the peace of nations," and obliges the Secretary-General to summon forthwith a meeting of the Council on the request of any Member of the League. It is in this way understood that when it has been recognised that a dispute arises out of a matter which is solely within the domestic jurisdiction of one of the parties, that party or its opponent will be fully entitled to call upon the Council or the Assembly to act.
There is nothing new in this simple reference to Article 11. It leaves unimpaired the right of the Council to take such action as it may deem wise and effectual to safeguard the peace of nations. It does not confer new powers of functions on either the Council or the Assembly. Both these organs of the League simply retain the powers now conferred upon them by the Covenant.
In order to dispel any doubt which may arise from the parallel which has been drawn between Article 15, paragraph 8, and Article 11 of the Covenant, a very clear explanation was given in the course of the discussion in the First Committee. Where a dispute is submitted to the Council under Article 15 and it is claimed by one party that the dispute arises out of a matter left exclusively within its domestic jurisdiction by international law, paragraph 8 prevents the Council from making any recommendations upon the subject if it holds that the contention raised by the party is correct and that the dispute does in fact arise out of a matter exclusively within that State's jurisdiction.
The effect of this paragraph is that the Council cannot make any recommendation in the technical sense in which that term is used in Article 15, that is to say, it cannot make, even by unanimous report, recommendations which become binding on the parties in virtue of paragraph G.
Unanimity for the purpose of Article 15 implies a report concurred in by all the members of the Council other than the parties to the dispute. Only a report so concurred in is one which the parties to the dispute are bound to observe, in the sense that, if they resort to war with any party which complies with the recommendations, it will constitute a breach of Article 16 of the Covenant and will set in play the sanctions which are there referred to.
On the other hand, Article 11 is of different scope: first, it operates only in time of war or threat of war; secondly, it confers no right on the Council or on the Assembly to impose any solution of a dispute without the consent of the parties. Action taken by the Council or the Assembly under this article cannot become binding on the parties to the dispute in the sense in which recommendations under Article 15 become binding, unless they have themselves concurred in it.
One last point should be made clear. The reference which is made to Article 11 of the Covenant holds good only in the eventuality contemplated in Article 15, paragraph 8, of the Covenant. It is obvious that when a unanimous decision of the Council or an arbitral award has been given upon the substance of a dispute, that dispute is finally settled and cannot again be brought either directly or indirectly under discussion. Article 11 of the Covenant does not deal with situations which are covered by rules of law capable of application by a judge. It applies only to cases which are not yet regulated by international law. In fact, it demonstrates the existence of loop-holes in the law.
The reference to Article 11 in two of the articles of the Protocol (Articles 5 and 10) has advantages beyond those to which attention is drawn in the commentary on the text of those articles. It will be an incitement to science to clear the ground for the work which the League of Nations will one day have to undertake with a view to bringing about, through the development of the rules of international law, a closer reconciliation between the individual interests of its Members and the universal interests which it is designed to serve.
8.—DETERMINATION OF THE AGGRESSOR.
Article 10.
In order that the procedure of pacific settlement may be accompanied by the necessary sanctions, it has been necessary to provide for determining exactly the State guilty of aggression to which sanctions are to be applied.
This question is a very complex one, and in the earlier work of the League the military experts and jurists who had had to deal with it found it extremely difficult.
There are two aspects to the problem: first, aggression has to be defined, and, secondly, its existence has to be ascertained.
The definition of aggression is a relatively easy matter, for it is sufficient to say that any State is the aggressor which resorts in any shape or form to force in violation of the engagements contracted by it either under the Covenant (if, for instance, being a Member of the League of Nations, it has not respected the territorial integrity or political independence of another Member of the League) or under the present Protocol (if, for instance, being a signatory of the Protocol, it has refused to conform to an arbitral award or to a unanimous decision of the Council). This is the effect of Article 10, which also adds that the violation of the rules laid down for a demilitarised zone is to be regarded as equivalent to resort to war. The text refers to resort to war, but it was understood during the discussion that, while mention was made of the most serious and striking instance, it was in accordance with the spirit of the Protocol that acts of violence and force, which possibly may not constitute an actual state of war, should nevertheless be taken into consideration by the Council.
On the contrary, to ascertain the existence of aggression is a very difficult matter, for although the first of the two elements which together constitute aggression, namely, the violation of an engagement, is easy to verify, the second, namely, resort to force, is not an easy matter to ascertain. When one country attacks another, the latter necessarily defends itself, and when hostilities are in progress on both sides, the question arises which party began them.
This is a question of fact concerning which opinions may differ.
The first idea which occurs to the mind is to make it the duty of the Council to determine who is the aggressor. But, immediately, the question arises whether the Council must decide this question unanimously, or whether a majority vote would suffice. There are serious disadvantages in both solutions and they are therefore unacceptable.
To insist upon a unanimous decision of the Council exposes the State attacked to the loss of those definite guarantees to which it is entitled, if one single Member of the Council—be it in good faith or otherwise—insists on adhering to an interpretation of the facts different from that of all his colleagues. It is impossible to admit that the very existence of a nation should be subject to such a hazard. It is not sufficient to point out that the Council would be bound to declare the existence of aggression in an obvious case and that it could not fail to carry out its duty. The duty would be a duty without a sanction and if by any chance the Council were not to do its duty, the State attacked would be deprived of all guarantees.
But it would also be dangerous to rely on a majority vote of the Council. In that case, the danger would be incurred by the State called upon to furnish assistance and to support the heavy burden of common action, if it still entertained some doubt as to the guilt of the country against which it had to take action. Such a country would run the risk of having to conform to a decision with which it did not agree.
The only escape from this dilemma appeared to lie in some automatic procedure which would not necessarily be based on a decision of the Council. After examining the difficulty and discussing it in all its aspects, the First Committee believes that it has found the solution in the idea of a presumption which shall hold good until the contrary has been established by a unanimous decision of the Council.
The Committee is of opinion that this presumption arises in three cases, namely, when a resort to war is accompanied:
By a refusal to accept the procedure of pacific settlement or to submit to the decision resulting therefrom;
By violation of provisional measures enjoined by the Council as contemplated by Article 7 of the Protocol;
Or by disregard of a decision recognising that the dispute arises out of a matter which lies exclusively within the domestic jurisdiction of the other party and by failure or by refusal to submit the question first to the Council or the Assembly.
In these cases, even if there is not absolute certainty, there exists at any rate a very strong presumption which should suffice for the application of sanctions unless proof to the contrary has been furnished by a unanimous decision of the Council.
It will be noticed that there is a characteristic difference between the first two cases and the third.
In the first two cases the presumption exists when, in addition to a state of war, the special condition referred to is also fulfilled.
In the third case, however, the presumption is dependent upon three conditions: disobedience to a decision, wilful failure to take advantage of the remedy provided in Article 11 of the Covenant, and the existence of a state of war.
This difference is due to the necessity of taking into account the provisions of Article 5 analysed above, which, by its reference to Article 11 of the Covenant, renders the application of paragraph 8 of Article 15 of the Covenant more flexible. After very careful consideration it appeared that it would be unreasonable and unjust to regard as ipso facto an aggressor a State which, being prevented through the operation of paragraph 8 of Article 15 from urging its claims by pacific methods and being thus left to its own resources, is in despair driven to war.
It was considered to be more in harmony with the requirements of justice and peace to give such a State which has been non-suited on the preliminary question of the domestic jurisdiction of its adversary, a last chance of arriving at an amicable agreement by offering it the final method of conciliation prescribed in Article 11 of the Covenant. It is only if, after rejecting this method, it has recourse to war that it will be presumed to be an aggressor.
This mitigation of the rigid character of paragraph 8 of Article 15 has been accepted, not only because it is just, but also because it opens no breach in the barrier set up by the Protocol against aggressive war: it in no way infringes the principle—which remains unshaken—that a war undertaken against a State whose exclusive jurisdiction has been formally recognised is an international crime to be avenged collectively by the signatories of the Protocol.
When a State whose demands have been met with the plea of the domestic jurisdiction of its adversary has employed the resource provided for in Article 11 of the Covenant, the presumption of aggression falls to the ground. The aggression itself remains. It will be for the Council to decide who is responsible for the aggression in accordance with the procedure which will be described below.
Apart from the above cases, there exists no presumption which can make it possible automatically to determine who is the aggressor. But this fact must be determined, and, if no other solution can be found, the decision must be left to the Council. The same principle applies where one of the parties is a State which is not a signatory of the Protocol and not a Member of the League.
If the Council is unanimous, no difficulty arises. If, however, the Council is not unanimous, the difficulty is to be overcome by directing that the Council must enjoin upon the belligerents an armistice the terms of which it will fix if need be by a two-thirds majority and the party which rejects the armistice or violates it is to be held to be an aggressor.
The system is therefore complete and is as automatic as it can be made.
Where a presumption has arisen and is not rejected by a unanimous decision of the Council, the facts themselves decide who is an aggressor; no further decision by the Council is needed and the question of unanimity or majority does not present itself; the facts once established, the Council is bound to act accordingly.
Where there is no presumption, the Council has to declare the fact of aggression; a decision is necessary and must be taken unanimously. If unanimity is not obtained, the Council is bound to enjoin an armistice, and for this purpose no decision properly speaking has to be taken: there exists an obligation which the Council must fulfil; it is only the fixing of the terms of the armistice which necessitates a decision, and for this purpose a two-thirds majority suffices.
It was proposed to declare that, in cases of extreme urgency, the Council might determine the aggressor, or fix the conditions of an armistice, without waiting for the arrival of the representative which a party not represented among its members has been invited to send under the terms of paragraph 5 of Article 4 of the Covenant.
It seemed preferable, however, not to lay down any rule on this matter at present but to ask the special Committee which the Council is to appoint for the drafting of amendments to the Covenant on the lines of the Protocol, to consider whether such a rule is really necessary.
It may in fact be thought that the Council already possesses all the necessary powers in this matter and that, in cases of extreme urgency, if the State invited to send a representative is too far distant from the seat of the Council, that body may decide that the representative shall be chosen from persons near at hand and shall attend the meeting within a prescribed period, on the expiry of which the matter may be considered in his absence.
The fact of aggression having been established by presumption or by unanimous decision of the Council or by refusal to accept or violation of the armistice, it will only remain to apply the sanctions and bring into play the obligations of the guarantor States. The Council will merely call upon them to fulfil their duty; here, again, there is no decision to be taken but an obligation to be fulfilled, and the question of majority or unanimous vote does not arise.
It is not, indeed, a matter of voting at all.
In order to leave no room for doubt, it has been formally laid down that a State which, at the invitation of the Council, engages in acts of violence against an aggressor is in the legal position of a belligerent and may consequently exercise the rights inherent in that character.
It was pointed out in the course of the discussion that such a State does not possess entire freedom of action. The force employed by it must be proportionate to the object in view and must be exercised within the limits and under the conditions recommended by the Council.
Article 18.
Likewise, in order to avoid any misunderstanding, it has been stipulated, in a special Article, that unanimity or the necessary majority in the Council is always calculated according to the rule referred to on several occasions in Article 15 of the Covenant and repeated in Article 16 of the Covenant for the case of expulsion of a Member from the League, viz., without counting the votes of the representatives of the parties to the dispute.
9.—DISPUTES BETWEEN STATES SIGNATORY AND
STATES NON-SIGNATORY OF THE PROTOCOL.
Article 16.
As regards the settlement of disputes arising between a State signatory and one or more States non-signatory and non-Members of the League of Nations, the new system has had to be adapted to the former system.
In order that States signatory might enjoy the essential advantages offered by the Protocol, which forbids all wars of aggression, it has been necessary to bring the rule laid down in Article 17 of the Covenant into harmony with the provisions of the Protocol. It has therefore been decided that States non-signatory and non-Members of the League of Nations in conflict with a State signatory shall be invited to conform to the new procedure of pacific settlement and that, if they refuse to do so and resort to war against a State signatory, they shall be amenable to the sanctions provided by Article 16 of the Covenant as defined by the Protocol.
There is no change in the arrangements laid down in the Covenant for the settlement of disputes arising between States Members of the League of Nations of which one is a signatory of the Protocol and the other is not. The legal nexus established by the Covenant between two such parties does not allow the signatory States to apply as of right the new procedure of pacific settlement to non-signatory but Member States. All that signatory States are entitled to expect as regards such other States is that the Council should provide the latter with an opportunity to follow this procedure and it is to be hoped that they will do so. But such States can only be offered an opportunity to follow the new procedure; they cannot be obliged to follow it. If they refuse, preferring to adhere to the procedure laid down in the Covenant, no sanctions could possibly be applied to them.
The above indicated solution of the case of States non-signatory but Members of the League of Nations appears to be so obvious as to require no special mention in the Protocol. A proposal to make a special mention of the matter was made, but after explanations had been given, the authors withdrew their suggestion, declaring that they would be satisfied with the above reference to the subject.
At first sight the difference in the way it is proposed to treat non-signatories non-Members of the League of Nations and non-signatories Members of the League may cause some surprise, for it would seem that the signatory States impose greater obligations on the first category than on the second. This, however, is only an appearance. In reality, the signatory States impose no obligations on either category. They cannot do so because the present Protocol is res inter alias acta for all non-signatory States, whether they are Members of the League of Nations or not. The signatories merely undertake obligations as between themselves as to the manner in which they will behave if one of them becomes involved in a conflict with a third State. But whereas, in possible conflicts with a State non-signatory and non-Member of the League, they are entirely free to take such action as they choose, in conflicts which may arise between them and States non-signatory but Members, like themselves, of the League of Nations, their freedom of action is to some extent circumscribed because both parties are bound by legal obligations arising under the Covenant.
2.—WORK OF THE THIRD COMMITTEE.
(Rapporteur: M. BENES)
SECURITY AND REDUCTION OF ARMAMENTS.
(Articles 7 to 9, 11 to 15, 17 and 21 of the Protocol)
1.—INTRODUCTION.
The special work of the Third Committee was to deal with the problem of security (sanctions) and the reduction of armaments.
The work required, above all, important political negotiations. While the question of arbitration only required one political decision of principle, namely, the acceptance of compulsory arbitration, and the remainder was principally a matter of drafting—without question an extremely difficult task—of a scheme for the application of such arbitration, the questions of security and disarmament necessitated long and laborious political negotiations; for they involved fundamental interests, questions of vital importance to the States, engagements so far-reaching as radically to change the general situation of the various countries.
Although in the work of the First Committee the Assembly had distinctly indicated in its resolution of September 6th that there was a likelihood—indeed, a necessity—of amending the Covenant, the work of the Third Committee as regards questions of security and reduction of armaments had, in conformity with the debates of the Assembly, to remain within the framework of the Covenant. Above all, it was a question of developing and rendering more precise what is already laid down in the Covenant. All our discussions, all our labours, were guided by these principles, and a delicate task was thus imposed upon us. But the spirit of conciliation which pervaded all the discussions has permitted us to resolve the two problems which were placed before us. This is, indeed, an important result, and if the solution of the problem of arbitration which has been so happily arrived at by the First Committee be also taken into consideration, we are in the presence of a system the adoption of which may entirely modify our present political life.
This is the real import of the articles of the Protocol concerning the questions of security and reduction of armaments.
2.—THREAT OF AGGRESSION: PREVENTIVE MEASURES.
Article 7.
The pacific settlement of disputes being provided for in the present Protocol, the signatory States undertake, should any conflict arise between them, not to resort to preparations for the settlement of such dispute by war and, in general, to abstain from any act calculated to aggravate or extend the said dispute. This principle applies both to the period preceding the submission of the dispute to arbitration or conciliation and to the period in which the case is pending.
This provision is not unaccompanied by sanctions. Any appeal against the violation of the aforesaid undertakings may, in conformity with Article 11 of the Covenant, be brought before the Council. One might say that, in addition to such primary dispute as is or might be submitted to the Council or to some other competent organ, a second dispute arises, caused by the violation of the undertakings provided for in the first paragraph.
The Council, unless it be of opinion that the appeal is not worthy of consideration, will proceed with the necessary enquiries and investigations. Should it be established that an offence has been committed against the provisions of the first paragraph, it will be the duty of the Council, in the light of the results of such enquiries and investigations, to call upon any State guilty of the offence to put an end thereto. Any such State failing to comply will be declared by the Council to be guilty of violation of the Covenant (Article 11) or the Protocol.
The Council must, further, take the necessary measures to put an end, as soon as possible, to a situation calculated to threaten the peace of the world. The text does not define the nature of these preventive measures. Its elasticity permits the Council to take such measures as may be appropriate in each concrete case, as, for example, the evacuation of territories.
Any decisions which may be taken by the Council in virtue of this Article may be taken by a two-thirds majority, except in the case of decisions dealing with questions of procedure which still come under the general rule of Article 5, paragraph 2, of the Covenant. The following decisions, therefore, can be taken by a two-thirds majority:
The decision as to whether there has or has not been an offence against the first paragraph;
The decision calling upon the guilty State to remedy the offence;
The decision as to whether there has or has not been refusal to remedy the offence;
Lastly, the decision as to the measures calculated to put an end, as soon as possible, to a situation calculated to threaten the peace of the world.
The original text of Article 7 provided that, in the case of enquiries and investigations, the Council should avail itself of the organisation to be set up by the Conference for the Reduction of Armaments in order to ensure respect for the decisions of that Conference. There is no longer any mention of this organisation, but this omission does not prejudice any decisions which the Conference may be called upon to take regarding the matter. It will be entirely free to set up an organisation, if it judges this necessary, and the Council's right to make use of this body for the enquiries and investigations contemplated will, a fortiori, remain intact.
Article 8.
Article 8 must be considered in relation to Article 2. Article 2 establishes the obligation not to resort to war, while Article 8, giving effect to Article 10 of the Covenant, goes further. The signatories undertake to abstain from any act which might constitute a threat of aggression against any other State. Thus, every act which comes within the scope of this idea of a threat of war—and its scope is sufficiently elastic—constitutes a breach of the Protocol, and therefore a dispute with which the Council is competent to deal.
If, for example, one State alleges that another State is engaged in preparations which are nothing less than a particular form of threat of war (such as any kind of secret mobilisation, concentration of troops, formation of armed bodies with the connivance of the Government, etc.), the Council, having established that there is a case for consideration, will apply the procedure which may be defined as the procedure of preventive measures; it will arrange for suitable enquiries and investigations, and, in the event of any breach of the provisions of paragraph 1 being established, will take the steps described in Article 7, paragraph 4.
3.—SECURITY—SANCTIONS.
Article 11.
(Article 11, paragraphs 1 and 2, of the Protocol in its relation to Articles 10 and 16 of the Covenant)
According to Article 10 of the Covenant, Members of the League undertake to preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of aggression, the Council shall advise upon the means by which this obligation shall be fulfilled.
According to Article 16, should any Member of the League resort to war in disregard of its engagements under Articles 12, 13 or 15, all other Members of the League undertake immediately to apply economic sanctions; furthermore, it shall be the duty of the Council to recommend to the several Governments concerned what effective military, naval or air forces the Members of the League shall severally contribute to the armed forces to be used to protect the engagements of the League.
At the time when they were drafted at the Peace Conference in Paris in 1919, these articles gave rise to keen controversy as to the exact scope of the engagements entered into in these provisions, that is to say, as to the nature and extent of the obligations referred to in Article 10, the exact moment at which such obligations arose, and the legal consequences of the Council recommendations referred to in Article 16, paragraph 2. This controversy continued, as is well known, in the debates here in Geneva, where the question has been discussed in previous years.
Article 11 is intended to settle this controversy. The signatories of the present Protocol accept the obligation to apply against the aggressor the various sanctions laid down in the Covenant, as interpreted in Article 11 of the Protocol, when an act of aggression has been established and the Council has called upon the signatory States immediately to apply such sanctions (Article 10, last paragraph). Should they fail so to do, they will not be fulfilling their obligations.
The nature and extent of this obligation is clearly defined in paragraph 2 of Article 11. According to this paragraph, the reply to the question whether a signatory to the Protocol has or has not fulfilled its obligation depends on whether it has loyally and effectively co-operated in resisting the act of aggression to an extent consistent with its geographical position and its particular situation as regards armaments.
The State remains in control of its forces, and itself, and not the Council, directs them, but paragraph 2 of Article 11 gives us positive material upon which to form a judgment as to whether or not the obligation has been carried out in any concrete case. This criterion is supplied by the term: loyally and effectively.
In answering the question whether a State has or has not fulfilled its obligations in regard to sanctions, a certain elasticity in the obligations laid down in Article 11 allows of the possibility of taking into account, from every point of view, the position of each State which is a signatory to the present Protocol. The signatory States are not all in possession of equal facilities for acting when the time comes to apply the sanctions. This depends upon the geographical position and economic and social condition of the State, the nature of its population, internal institutions, etc.
Indeed, during the discussion as to the system of sanctions, certain delegations declared that their countries were in a special situation by reason of their geographical position or the state of their armaments. These countries desired to co-operate to the fullest extent of their resources in resistance to every act of aggression, but they drew attention to their special conditions. In order to take account of this situation, an addition has been made to paragraph 2 of Article 11 pointing out this state of affairs and laying stress on the particular situation of the countries in question. Moreover, Article 13 of the Protocol allows such countries to inform the Council of these matters beforehand.
I would further add that the obligations I refer to are imperfect obligations in the sense that no sanctions are provided for against any party which shall have failed loyally and effectively to co-operate in protecting the Covenant and resisting every act of aggression. It should, however, be emphasised that such a State would have failed in the fulfilment of its duties and would be guilty of a violation of engagements entered into.
In view of the foregoing, the gist of Article 11, paragraphs 1 and 2, might be expressed as follows: Each State is the judge of the manner in which it shall carry out its obligations but not of the existence of those obligations, that is to say, each State remains the judge of what it will do but no longer remains the judge of what it should do.
Now that the present Protocol has defined more precisely the origin, nature and extent of the obligations arising out of the Covenant, the functions of the Council, as provided in Articles 10 and 16, have become clearer and more definite.
Directly the Council has called upon the signatories to the Protocol to apply without delay the sanctions provided in Article 11, it becomes a regulating, or rather an advisory, body, but not an executive body. The nature of the acts of aggression may vary considerably; the means for their suppression will also vary. It would frequently be unnecessary to make use of all the means which, according to paragraphs 1 and 2 of Article 11, are, so to speak, available for resisting an act of aggression. It might even be dangerous if, from fear of failing in their duties, States made superfluous efforts. It will devolve upon the Council, which, under Article 13 can be put in possession of the necessary data, to give its opinion, should need occur, as to the best means of executing the obligations which arise directly it enjoins the application of sanctions, especially as to the sequence in which the sanctions must be applied.
The practical application of the sanctions would, however, always devolve upon the Governments; the real co-operation would ensue upon their getting into touch, through diplomatic channels—perhaps by conferences—and by direct relations between different General Staffs, as in the last war. The Council would, of course, be aware of all these negotiations, would be consulted and make recommendations.
The difference between the former state of affairs and the new will therefore be as follows:
According to the system laid down by the Covenant:
1. The dispute arises.
2. In cases where neither the arbitral procedure nor the judicial settlement provided for in Article 13 of the Covenant is applied, the Council meets and discusses the dispute, attempts to effect conciliation, mediation, etc.
3. If it be unsuccessful and war breaks out, the Council, if unanimous, has to express an opinion as to which party is guilty. The Members of the League then decide for themselves whether this opinion is justified and whether their obligations to apply economic sanctions become operative.
4. It then has, by a unanimous decision, to recommend military sanctions.
5. If unanimity cannot be obtained, the Council ceasing to take action, each party is practically free to act as it chooses.
According to the new system defined in the Protocol, the situation is as follows:
1. The dispute arises.
2. The system of peaceful settlement provided for by the Protocol comes into play.
3. The Council intervenes, and if, after arbitration has been refused, war is resorted to, if the provisional preventive measures are not observed, etc., the Council decides which party is the aggressor and calls upon the signatory States to apply the sanctions.
4. This decision implies that such sanctions as the case requires—economic, financial, military, naval and air—shall be applied forthwith, and without further recommendations or decisions.
We have therefore the following new elements:
(a) The obligation to apply the necessary sanctions of every kind as a direct result of the decision of the Council.
(b) The elimination of the case in which all parties would be practically free to abstain from any action. The introduction of a system of arbitration and of provisional measures which permits of the determination in every case of the aggressor.
(c) No decision is taken as to the strength of the military, naval and air forces, and no details are given as to the measures which are to be adopted in a particular case. None the less, objective criteria are supplied which define the obligation of each signatory; it is bound, in resistance to an act of aggression, to collaborate loyally and effectively in applying the sanctions in accordance with its geographical situation and its particular situation as regards armaments.
That is why I said that the great omission in the Covenant has been made good.
It is true that no burden has been imposed on States beyond the sanctions already provided for in the Covenant. But, at present, a State seeking to elude the obligations of the Covenant can reckon on two means of escape:
(1) The Council's recommendations need not be followed.
(2) The Council may fail to obtain unanimity, making impossible any declaration of aggression, so that no obligation to apply military sanctions will be imposed and everyone will remain free to act as he chooses.
We have abandoned the above system and both these loopholes are now closed.
Article 11, paragraphs 3 and 4.
Paragraph 3 of Article 11 has been drafted with a view to giving greater precision to certain provisions of Article 11, paragraph 3, of the Covenant. Article 16, paragraph 3, refers to mutual support in the application of financial and economic measures. Article 11, paragraph 3, of the present Protocol establishes real economic and financial co-operation between a State which has been attacked and the various States which come to its assistance.
As, under Article 10 of the Protocol, it may happen that both States involved in a dispute are declared to be aggressors, the question arose as to what would be the best method of settling this problem. There were three alternatives: to apply the principle contained in paragraph 1, which is practically equivalent to making a sort of police war on both parties—or to leave the matter to pursue its course, or, finally, to compel States which disturb the peace of the world to desist from acts of war by the employment of means less severe than those indicated in paragraph 1. It is the last method which has been chosen. Only economic measures will be taken against such States, and naturally they will not be entitled to receive the assistance referred to in Article 11, paragraph 3.
Article 12.
Article 16, paragraph 1, of the Covenant provides for the immediate severance of all trade or financial relations with the aggressor State, and paragraph 3 of the same Article provides, inter alia, for economic and financial co-operation between the State attacked and the various States coming to its assistance.
As has already been pointed out, these engagements have been confirmed and made more definite in Article 11 of the Protocol.
But the severance of relations and the co-operation referred to necessarily involve measures so complex that, when the moment arises, doubts may well occur as to what measures are necessary and appropriate to give effect to the obligations assumed under the above provisions. These problems require full consideration in order that States may know beforehand what their attitude should be.
Article 12 defines the conditions of such investigation.
It is not expressly stated that the problem will be examined by the Council in collaboration with the various Governments, but the Council will naturally, if it deems it necessary, invite the Governments to furnish such information as it may require for the purpose of carrying out the task entrusted to it under Article 12.
Article 13, paragraph 1.
The above explanation of Article 11, paragraphs 1 and 2, contains many references to Article 13.
As I have already pointed out, in case sanctions have to be applied, it is highly important that there should exist some organ competent to express an opinion as to the best way in which their obligations could be carried out by the signatories. As you are aware, this organ, according to the Covenant, is the Council. In order that the Council may effectively fulfil this duty, Article 13 empowers it to receive undertakings from States, determining in advance the military, naval and air forces which they would be able to bring into action immediately in order to ensure the fulfilment of the obligations in regard to sanctions arising, out of the Covenant and the present Protocol.
It is also necessary to emphasise the fact that the means which the States signatories to the present Protocol have at their disposal for the fulfilment of the obligations arising out of Article 11 vary considerably owing to the differences in the geographical, economic, financial, political and social condition of different States. Information as to the means at the disposal of each State is therefore indispensable in order that the Council may in full understanding give its opinion as to the best method by which such obligations may best be carried out.
Finally, as regards the question of the reduction of armaments, which is the final goal to which our efforts are tending, the information thus furnished to the Council may be of very great importance, as every State, knowing what forces will be available for its assistance in case it is attacked, will be able to judge to what extent it may reduce its armaments without compromising its existence as a State, and every State will thus be able to provide the International Conference for the Reduction of Armaments with very valuable data. I should add, moreover, that Article 13, paragraph 1, does not render it compulsory for States to furnish this information. It is desirable that States should furnish the Council with this information, but they are at liberty not to do so.
Article 13, paragraphs 2 and 3.
The provisions of Article 13, paragraphs 2 and 3, refer to the special agreements which were discussed at such length last year. In view of the fact that, according to paragraph 2, such agreements can only come into force when the Council has invited the signatory States to apply the sanctions, the nature of these agreements may be defined as follows:
Special agreements must be regarded as the means for the rapid application of sanctions of every kind in a particular case of aggression. They are additional guarantees which give weaker States an absolute assurance that the system of sanctions will never fail. They guarantee that there will always be States prepared immediately to carry out the obligations provided for in Article 11 of the Protocol.
In accordance with Article 18 of the Covenant, it is expressly stated that these agreements will be registered and published by the Secretariat, and it has also been decided that they will remain open for signature to any State Member of the League of Nations which may desire to accede to them.
4.—ENDING OF SANCTIONS: PUNISHMENT OF THE AGGRESSOR.
Article 14.
Article 14 is in perfect keeping with the last paragraphs of Articles 10 and 11. In the paragraphs in question, the coming into operation of the sanctions depends upon an injunction by the Council; it therefore also devolves upon the Council to declare that the object for which the sanctions were applied has been attained. Just as the application of the sanctions is a matter for the States, so it rests with them to liquidate the operations undertaken with a view to resisting the act of aggression.
Article 15.
Paragraph 1 is similar to Article 10 of the Draft Treaty of Mutual Assistance drawn up last year.
Paragraph 2 is designed to prevent the sanctions provided for in Article 11 from undergoing any change in character during the process of execution and developing into a war of annexation.
In view of the observations of various delegations regarding the punishment of the aggressor, it should be added that it would be incorrect to interpret this article as meaning that the only penalties to be apprehended by the aggressor as the result of his act shall be the burdens referred to in paragraph 1. If necessary, securities against fresh aggression, or pledges guaranteeing the fulfilment of the obligations imposed in accordance with paragraph 1, might be required. Only annexation of territory and measures involving the loss of political independence are declared inadmissible.
"Territory" is to be taken to mean the whole territory of a State, no distinction being made between the mother-country and the colonies.
5.—REDUCTION OF ARMAMENTS.
Articles 17 and 21.
Although it has not been possible to solve the problem of the reduction of armaments in the clauses of the document submitted to the Assembly for approval, our work paves the way to it and makes it possible.
The reduction of armaments will result, in the first place, from the general security created by a diminution of the dangers of war arising from the compulsory pacific settlement of all disputes.
It will also ensue from the certainty which any State attacked will have of obtaining the economic and financial support of all the signatory States, and such support would be especially important should the aggressor be a great Power, capable of carrying on a long war.
Nevertheless, for States which, owing to their geographical position, are especially liable to attack, and for States whose most important centres are adjacent to their frontiers, the dangers of a sudden attack are so great that it will not be possible for them to base any plan for the reduction of their armaments simply upon the political and economic factors referred to above, no matter what the importance of such factors may be.
It has also been repeatedly declared that many States would require to know what military support they could count on, before the convening of the Conference, if they are to submit to the Conference proposals for large reductions of armaments; this might necessitate negotiations between the Governments and with the Council before the meeting of the Conference for the reduction of armaments provided for in Article 17. The undertakings referred to in Article 13 of the Protocol should be interpreted in the light of the above.
In drawing up the general programme of the Conference, it will also be necessary, as stated in paragraph 2 of Article 17, for the Council, apart from other criteria "to take into account the undertakings mentioned."
In view of the close interdependence of the three great problems involved, namely, the pacific settlement of disputes, sanctions against those who disturb the peace of the world, and reduction of armaments, the Protocol provides for the convening by the Council of a general Conference for the Reduction of Armaments and for the preparation of the work of such a Conference. Furthermore, the application of the clauses concerning arbitration and sanctions will be conditional on the adoption by the said Conference of a plan for the reduction and limitation of armaments.
Moreover, in order to preserve the connection between the three big problems referred to above, it is provided that the whole Protocol will lapse in the event of the non-execution of the scheme adopted by the Conference. It devolves upon the Council to declare this under conditions to be determined by the Conference itself.
The last paragraph of Article 21 provides for the case of the partial lapsing of the Protocol after it has been put into force. Should the plan adopted by the Conference be regarded as having been put into effect, any State which fails to execute it, so far as it is concerned, will not benefit by the provisions of the Protocol.
6.—THE COVENANT AND THE PROTOCOL.
Article 19.
The present Protocol emphasises and defines certain obligations arising out of the Covenant. Those of which the present Protocol makes no mention are not affected in any manner. They still exist. Examples which might be quoted are those laid down in Article 16, paragraph 3, of the Covenant, namely, the obligation of the States to give one another mutual support in order to minimise the loss and inconvenience resulting from the application of the economic and financial sanctions or the obligation of the States to take the necessary steps to afford passage through their territory to forces which are co-operating to protect the covenants of the League.
Moreover, as the Swiss Delegation suggests, attention should be directed to the fact that the present Protocol does not in any way affect the special position of Switzerland arising out of the Declaration of the Council at London on February 13th, 1920. As the special position of Switzerland is in accordance with the Covenant, it will also be in accordance with the Protocol.
III.
CONCLUSION.
No further explanations need be added to these comments on the articles. The main principles of the Protocol are clear, as are the detailed provisions.
Our purpose was to make war impossible, to kill it, to annihilate it. To do this, we had to create a system for the pacific settlement of all disputes which might arise. In other words, it meant the creation of a system of arbitration from which no international dispute, whether legal or political, could escape. The plan drawn up leaves no loophole; it prohibits wars of every description and lays down that all disputes shall be settled by pacific means.
But this absolute character which has been given to the system of arbitration should also belong to the whole of the scheme, to the treatment of every question of principle. If there were one single gap in the system, if the smallest opening were left for any measure of force, the whole system would collapse.
To this end arbitration is provided for every kind of dispute, and aggression is defined in such a way as to give no cause for hesitation when the Council has to take a decision.
These reasons led us to fill in the gaps in the Covenant and to define the sanctions in such a way that no possible means could be found of evading them, and that there should be a sound and definite basis for the feeling of security.
Finally, the Conference for the Reduction of Armaments is indissolubly bound up with this whole system: there can be no arbitration or security without disarmament, nor can there be disarmament without arbitration and security.
The peace of the world is at stake.
The Fifth Assembly has undertaken a work of worldwide political importance which, if it succeeds, is destined profoundly to modify present political conditions. This year great progress in this direction has been made in our work. If we succeed, the League of Nations will have rendered an inestimable service to the whole modern world. Such success depends partly upon the Assembly itself and partly upon individual Governments. We submit to the Assembly the fruit of our labours: a work charged with the highest hopes. We beg the Assembly to examine our proposals with care, and to recommend them to the various Governments for acceptance.
In this spirit and with such hopes do we request the Assembly to vote the draft resolutions 1 and 2 that are presented with this Report.
ANNEX D.
RESOLUTIONS.
RESOLUTION OF THE ASSEMBLY, SEPTEMBER 6TH, 1924.
The Assembly,
Noting the declarations of the Governments represented, observes with satisfaction that they contain the basis of an understanding tending to establish a secure peace,
Decides as follows:
With a view to reconciling in the new proposals the divergences between certain points of view which have been expressed and, when agreements have been reached, to enable an International Conference upon Armaments to be summoned by the League of Nations at the earliest possible moment:
(1) The Third Committee is requested to consider the material dealing with security and the reduction of armaments, particularly the observations of the Governments on the draft Treaty of Mutual Assistance prepared in pursuance of Resolution XIV of the Third Assembly and other plans prepared and presented to the Secretary-General, since the publication of the draft Treaty, and to examine the obligations contained in the Covenant of the League in relation to the guarantees of security which a resort to arbitration and a reduction of armaments may require:
(2) The First Committee is requested:
(a) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;
(b) To examine within what limits the terms of Article 36, paragraph 2, of the statute establishing the Permanent Court of International Justice might be rendered more precise and thereby facilitate the more general acceptance of the clause;
and thus strengthen the solidarity and the security of the nations of the world by settling by pacific means all disputes which may arise between States.
RESOLUTION OF THE ASSEMBLY, SEPTEMBER 27TH, 1924.
Whereas the work of the League of Nations in connection with the reduction of armaments is entering this year upon a period of re-organisation which requires the direct attention of the Council,
The Assembly entrusts to the Council the question of the co-ordination of the work of its Commissions for the Reduction of Armaments.
The Assembly recommends the Council to re-organise the Temporary Mixed Commission in conformity with the following principles:
(1) The Commission shall include the representatives of a certain number of Governments;
(2) The Commission shall include qualified delegates of the Technical Organisation of the League of Nations, that is to say:
Representatives of the Economic Committee,
" " " Financial Committee,
" " " Transit Committee,
" " " Permanent Advisory Commission,
" " " Employers' and Labour
Groups of the International
Labour Office,
Experts, jurists or others elected by the Council.
(3) Delegates of States not represented on the Commission may be invited to attend whenever the Commission thinks fit.
(4) The Council may invite any States not Members of the League of Nations which may have notified their intention of taking part in the International Conference for the Reduction of Armaments to appoint representatives to participate in the work of the Commission.
RESOLUTION OF THE ASSEMBLY, OCTOBER 2ND, 1924.
I. The Assembly,
Having taken note of the reports of the First and Third Committees on the questions referred to them by the Assembly resolution of September 6th, 1924,
Welcomes warmly the draft Protocol on the Pacific Settlement of International Disputes proposed by the two Committees, of which the text is annexed to this resolution, and
Decides
(1) To recommend to the earnest attention of all the Members of the League the acceptance of the said draft Protocol;
(2) To open immediately the said Protocol in the terms proposed for signature by those representatives of Members of the League who are already in a position to sign it and to hold it open for signature by all other States;
(3) To request the Council forthwith to appoint a Committee to draft the amendments to the Covenant contemplated by the terms of the said Protocol;
(4) To request the Council to convene an International Conference for the Reduction of Armaments, which shall meet at Geneva as provided by the following stipulations of Article 17 of the draft Protocol:
"In preparation for the convening of the Conference, the Council shall draw up, with due regard to the undertakings contained in Articles 11 and 13 of the present Protocol, a general programme for the reduction and limitation of armaments which shall be laid before the Conference and be communicated to the Governments at the earliest possible date, and at the latest, three months before the Conference meets.
"If by May 1st, 1925, ratifications have not been deposited by at least a majority of the permanent Members of the Council and ten other Members of the League, the Secretary-General of the League shall immediately consult the Council as to whether he shall cancel the invitations or merely adjourn the Conference to a subsequent date to be fixed by the Council so as to permit the necessary number of ratifications to be obtained."
(5) To request the Council to put into immediate execution the provisions of Article 12 of the draft Protocol.
RECOMMENDATION OF THE ASSEMBLY, OCTOBER 2ND, 1924.
II. The Assembly,
Having taken cognisance of the report of the First Committee upon the terms of Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice;
Considering that the study of the said terms shows them to be sufficiently wide to permit States to adhere to the special Protocol, opened for signature in virtue of Article 36, paragraph 2, with the reservations which they regard as indispensable;
Convinced that it is in the interest of the progress of international justice, and consistent with the expectations of the opinion of the world, that the greatest possible number of States should, to the widest possible extent, accept as compulsory the jurisdiction of the Court.
Recommends:
States to accede at the earliest possible date to the special Protocol opened for signature in virtue of Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice.
RESOLUTION OF THE ASSEMBLY, OCTOBER 2ND, 1924.
I. The Assembly recommends the Council to place the question of Regional Agreements for the Reduction of Armaments on the agenda of the International Conference for the Reduction of Armaments.
II. Whereas the majority of the States which have replied have stated that, with certain exceptions, they have not exceeded the expenditure on armaments shown in their last budgets, and whereas the recommendation addressed to the Governments relates to the period which must elapse before the meeting of the International Conference for the Reduction of Armaments, which is to take place next year:
The Assembly does not consider it necessary to repeat the recommendation regarding the limitation of expenditure on armaments, as this question is to be placed upon the agenda of the International Conference for the Reduction of Armaments.
III. The Assembly is of the opinion:
1. That another technical conference on naval disarmament is unnecessary.
2. That the question of naval disarmament should be discussed as part of the general question of disarmament dealt with by the International Conference proposed in the resolution of September 6th, 1924, adopted by the Fifth Assembly, and that it rests with the Council to settle the programme.
IV. The Assembly requests the Council, in preparing the general programme of the Conference for the Reduction of Armaments provided for in Article 17 of the Protocol, to consider the advisability of including in that programme the following points:
1. General plan for a reduction of armaments in accordance with Article 8 of the Covenant, in particular:
(a) Basis and methods of reduction (budget, peace-time effectives, tonnage of naval and air fleets, population, configuration of frontiers, etc.);
(b) Preparation of a typical budget for expenditure on armaments.
2. Special position of certain States in relation to the reduction of armaments:
(a) Temporary reservations by countries exposed to special risks;
(b) Recommendation of regional agreements for the reduction (or limitation) of armaments,
3. Recommendation of the establishment of demilitarised zones (Article 9).
4. Control and investigation of armaments in the contracting States.
The Assembly also requests the Council to instruct the competent organisations of the League to examine the schemes relating to the above questions which have already been submitted to the Third Committee, or which may subsequently be received by the Secretariat, and to take them into consideration in preparing the programme of the Conference.
RESOLUTION OF THE COUNCIL, OCTOBER 3RD, 1924.
1. With a view to the preparation of the Conference for the Reduction of Armaments, the Council decides to form itself into a Committee. The representatives on the Council who consider that it will not be possible to attend the Committee in person will, as soon as possible, send to the Secretary-General the names of their substitutes on this Committee.
The Committee will hold its first meeting on November 17th, in order to draw up a general programme of the work connected with the application of Article 12 of the Protocol and with the reduction of armaments.
The Governments of the States represented on the Council are requested to give their representatives on the Committee the necessary instructions in order that the general lines of the programme may be laid down during its meeting of November 17th.[[1]] The Secretary-General will invite the Governments of the States Members of the League not represented on the Council to forward through him to the Committee any suggestions which they may think useful with a view to the preparation of this programme.
2. The Secretariat is requested to collect the data necessary for the economic and financial investigations relative to the application of Article 12 of the Protocol, and is authorised to distribute these data to the competent organs of the League (Economic and Financial Organisation and Transit Organisation) with a view to the work which will subsequently be required of them by the Committee.
The Secretariat will obtain information from the official documents at the disposal of the League or from documents which might, if necessary, be furnished by the Governments.
3. In conformity with the Assembly resolution, and in order to assist the Committee in co-ordinating the preparatory work for the Conference, the Temporary Mixed Commission shall be re-organised and shall take the name of the Co-ordination Commission, and be composed as follows:
(a) The Committee of the Council (ten members) assisted by:
(b) The President and one member or two members of each of the three Organisations, Economic, Financial and Transit (six members);
(c) Six members appointed by the Permanent Advisory Commission (six members);
(d) Two members of the Employers' Group and two members of the Workers' Group of the Governing Body of the International Labour Office, appointed by the latter (four members);
(e) If considered advisable, a certain number of experts—jurists and others—appointed by the Council.
The Secretary-General is requested to invite at a suitable moment the above-mentioned organisations to appoint their representatives.
[[1]] The Council, at its 31st Session at Brussels, October 28th, 1924, "decided itself to undertake at its session in Rome (December, 1924) the work of preparing for the Conference on the Reduction of Armaments," instructing the Council Committee to continue and complete this work and report to the Council at its session in March, 1925.
The work of either the Council or its Committee was dependent to a large extent upon the receipt of suggestions from Members of the League which had been requested from them in a circular letter of the Secretary-General, October 11, 1924.
Various items regarding the Protocol of Geneva were on the Agenda of the Council for its December, 1924, meeting at Rome. Preparatory work regarding "the general program" under the second paragraph of Article 17 of the Protocol was the most important. Two other relevant items were (1) the reorganization of the Temporary Mixed Commission and the Permanent Advisory Commission into a single co-ordinated Commission; and (2) the date of the meeting of the Commission of Jurists (appointed at the Brussels session of the Council in October, 1924) to draft the amendments to the Covenant contemplated by the Protocol.
A Conservative Government came into power in Great Britain early in November, 1924, Mr. Austen Chamberlain becoming Foreign Secretary. At the request of the British Government, the agenda items for the December, 1924 meeting of the Council at Rome relating to the Protocol of Geneva were postponed until the March meeting. In the meantime, the British Government has suggested to the Dominions a meeting of the Imperial Conference for the purpose of adopting a policy of the British Commonwealth of Nations regarding the Protocol of Geneva. Whether such a meeting will be held, or whether the general British policy will be decided on as a result of correspondence, is not at this writing certain.
ANNEX E.
REPORT OF THE BRITISH DELEGATES RELATING TO THE PROTOCOL
FOR THE PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES.
London, November 1, 1924.
Sir,
We have the honour to submit herewith a report on the proceedings at the Fifth Assembly of the League of Nations at Geneva this year in connection with the Draft Protocol for the Pacific Settlement of International Disputes.
I.—INTRODUCTION.
The First Assembly of the League of Nations in 1920 prepared to give effect to article 8 of the Covenant, the first two paragraphs of which read: "The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of International obligations. The Council .......... shall formulate plans for such reduction for the consideration and action of the several Governments." That Assembly decided "to instruct a Temporary Commission to prepare reports and proposals for the reduction of armaments as provided for by article 8 of the Covenant." In the following year the Second Assembly defined the task more clearly in a resolution instructing the Temporary Mixed Commission to make proposals for the reduction of armaments which, in order to secure precision, "should be in the form of a draft Treaty or other equally defined plan, to be presented to the Council, if possible, before the Assembly next year" (1922). In the course of the ensuing year the Temporary Mixed Commission was able to formulate certain principles which, in its opinion, might serve as a basis for the draft Treaty which it had been instructed to draw up. After discussion of these principles the Third Assembly passed a resolution—the famous Resolution 14—recognising that in existing circumstances many Governments would be unable to accept responsibility for a serious reduction of armaments unless they received in exchange a satisfactory guarantee of the safety of their country, and suggesting that such guarantee could be found in a defensive agreement binding them to provide immediate and effective assistance, in accordance with a pre-arranged plan, in the event of one of them being attacked. The Temporary Mixed Commission were instructed to prepare a draft Treaty on these lines. The result of their labours was submitted to the Fourth Assembly last year in the form of the Draft Treaty of Mutual Assistance, which was referred by the Assembly to the Governments for their observations.
2. Certain Governments accepted the draft Treaty in principle: very few intimated their readiness to adhere to its actual terms. His Majesty's Government, in a note which has already been made public,[[1]] explained the reasons which would render it impossible for them to subscribe to the Treaty.
3. When, therefore, the Fifth Assembly met on the 1st September of this year, the labours of four years, which had been devoted to the preparation of a scheme for giving effect to the obligation undertaken by all signatories in article 8 of the Covenant, had not succeeded in establishing agreement, and there seemed no prospect of making any further advance along the path which had hitherto been followed.
4. Some new direction would have to be given, and the presence in Geneva of the British and French Prime Ministers gave a special importance to the meeting.
5. It was realised that the problem was not merely to find a general scheme of disarmament and security, but that the particular question of French security was of immediate political importance, and would shortly require a solution. The question of "security" had already been raised in conversations between Mr. MacDonald and M. Herriot in July last, at Chequers and in Paris. During the latter meeting, the subject was discussed at some length, and the position as it was then left by the two Prime Ministers was set out in the Franco-British memorandum of the 9th July concerning the application of the Dawes plan. The relevant paragraph read as follows: "The two Governments have likewise proceeded to a preliminary exchange of views on the question of security. They are aware that public opinion requires pacification: they agree to co-operate in devising through the League of Nations or otherwise, as opportunity presents itself, means of securing this, and to continue the consideration of the question until the problem of general security can be finally solved." In a declaration made in the Chamber on the 21st August, reporting on the results of the London Conference, M. Herriot said "security must be the object of another Conference. He did not see why France should not take the initiative .......... For the rest, the security question would be dealt with at Geneva."
6. The debate in the League Assembly was opened by the British Prime Minister on the 4th September. Mr. Ramsay MacDonald began by explaining that it was not because they were indifferent to the problem of national security that His Majesty's Government had given an adverse opinion on the Draft Treaty of Mutual Assistance. They believed that security could not be based on military alliances, and they hesitated to become involved in any agreements which committed them to vague and indefinite obligations. In this respect the Treaty of Mutual Assistance was open to criticism, especially in its article 3 and in its definition of aggression. Mr. Ramsay MacDonald emphasised that the main problem was the problem of national security in relation to national armaments, and the initial difficulty was encountered in the definition of such terms as "security" and "aggression." In regard to the latter, he said, "the one method by which we can approximate to an accurate attribution of responsibility for aggression is arbitration," and he proposed that the article of the Statute of the Permanent Court dealing with arbitration should be carefully examined by a Commission, with a view to its being placed before the Assembly in a somewhat more precise, expanded and definite form than it now had. Such a step would be necessary as a preliminary to the discussion of disarmament, which could produce no good result unless an atmosphere of confidence were previously created. To summon a Conference on disarmament without such a preparation of the ground would be to court immediate and disastrous failure. Such a Conference must be the ultimate aim, and it must include all the nations and must be held in Europe. In his view the Covenant already contained ample provisions for starting arbitration, for the sanctions that were necessary and for all other eventualities that might arise: what was now required was that the Covenant should be elaborated. "The British Government thinks that the matter should now be explored, beginning with the Covenant, applying the Covenant to our present circumstances, and, in the spirit of the League of Nations, developing a policy that will give security and reduce armaments. The British Government stands by the Covenant. The British Government has no wish to reduce the authority of the Council. It rather wishes to extend the authority of the Council consistently with the continued existence and prosperity of the League. Articles 10, 12, 13, 15 and 16 of the Covenant might well form themselves into a charter of peace if we would only apply them and fill them out."
7. Speaking on the following day, the French Prime Minister expressed a similar view: "It is in the development and the fullest possible application of the articles of this solemn instrument (the Covenant) that France seeks for the rules which are to guide her future action and her foreign policy." M. Herriot welcomed Mr. Ramsay MacDonald's suggestion that arbitration should be the test of aggression, and he expressed the hope that the Fifth Assembly would be able to accept the principle of arbitration, which would solve the difficulties, as henceforth the aggressor would be the party which refused arbitration. M. Herriot added: "Arbitration is essential, but it is not sufficient. It is a means, but not an end. It does not entirely fulfil the intentions of article 8 of the Covenant, which are security and disarmament. We in France regard three terms—arbitration, security and disarmament—as inseparable." A nation which accepted arbitration had a right to security. "Justice without might is impotent. Might without justice is tyranny." In conclusion: "We stand by the Covenant, but we wish to make it a living Covenant. We simply claim for each nation the rights conferred upon it by the Covenant, no more and no less."
8. It is unnecessary to indicate in detail the views expressed by other speakers who participated in this opening debate, from which it was evident that there was general agreement on a number of points:—
(a.) That as a preliminary to disarmament there must be provided an inclusive scheme for the pacific settlement of international disputes of all kinds.
(b.) That the Covenant of the League itself provided the basis of such a scheme, but that it required elaboration, precision and extension in certain directions.
(c.) That to give effect to such a scheme States should develop the principle of compulsory arbitration.
(d.) That a State, having accepted this principle, would, if it resorted to force in disregard of its obligation to submit to arbitration, be automatically declared an aggressor, and outlawed.
(e.) That some form of co-operation must be devised for effective resistance to aggression, both as a deterrent to any possible aggressor and as a guarantee of security to all States enabling them to contemplate a reduction of their own armed forces, which at present constituted their sole guarantee of safety.
9. In order to give effect to these ideas, a resolution was submitted to the Assembly on the 6th September by the British and French delegations in the following terms:—
"The Assembly,
"Noting the declarations of the Governments represented, observes with satisfaction that they contain the basis of an understanding tending to establish a secure peace,
"Decides as follows:—
"With a view to reconciling in the new proposals the divergencies between certain points of view which have been expressed, and when agreement has been reached, to enable an international conference upon armaments to be summoned by the League of Nations at the earliest possible moment—
"(1.) The Third Committee is requested to consider the material dealing with security and reduction of armaments, particularly the observations of the Governments on the draft Treaty of Mutual Assistance prepared in pursuance of Resolution 14 of the Third Assembly, and other plans prepared and presented to the Secretary-General since the publication of the draft Treaty, and to examine the obligations contained in the Covenant of the League in relation to the guarantees of security which a resort to arbitration and a reduction of armaments may require;
"(2.) The First Committee is requested—
"(a.) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;
"(b.) To examine within what limits the terms of article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice might be rendered more precise, and thereby facilitate the more general acceptance of the clause;
"And thus strengthen the solidarity and the security of the nations of the world by settling, by pacific means, all disputes which may arise between States."
10. This resolution was carried unanimously by the Assembly, which thus deputed the preparatory work to its First Committee (dealing with legal and constitutional questions) and its Third Committee (dealing with reduction of armaments).
11. It will be more convenient at once to consider the final results of the labours of the two Committees, leaving for the moment any detailed account of the progress of their work, in order to see how the draft Protocol which they submitted to the Full Assembly on the 1st October gave effect to the ideas which had been proclaimed in the course of the earlier debate.
12. In the first place it was necessary to complete the scheme of arbitration and conciliation provided in the Covenant. The Covenant itself did not provide for every eventuality, and by failing to offer pacific means of settlement of all disputes, it left open, or seemed to leave open, in certain circumstances resort to force. Especially was this so in article 12 of the Covenant, whereby the Members of the League agreed "in no case to resort to war until three months after the award by the arbitrators or the report by the Council." Further, paragraph 7 of article 15 of the Covenant laid down that "if the Council fails to reach a report which is unanimously agreed to by the Members thereof, other than the representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice." Under article 2 of the Protocol "the signatory States agree in no case to resort to war either with one another or against a State which, if the occasion arises, accepts all the obligations hereinafter set out, except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly of the League of Nations in accordance with the provisions of the Covenant and of the present Protocol." The signatory States having agreed in no case to resort to war, the Protocol proceeds to prohibit the arbitrament of force and to provide a complete system for the pacific settlement of disputes. As regards cases covered by paragraph 2 of article 36 of the statute of the Permanent Court of International Justice, the signatory States bind themselves to recognize as obligatory the jurisdiction of that Court, "but without prejudice to the right of any State, when acceding to the special Protocol provided for in the said article and opened for signature on the 16th December, 1920, to make reservations compatible with the said clause" (article 3). As regards other subjects of dispute, the Protocol provides a procedure (article 4) which supplements and completes that defined in article 15 of the Covenant. Briefly, under this procedure, if the Council is at the outset unable to effect a settlement, it persuades the parties to submit to arbitration. If neither party should be willing to go to arbitration, the Council again takes the matter into consideration: If it reaches a unanimous decision, the parties are bound to accept that decision: if it fails to achieve unanimity, the Council itself refers to arbitrators, whose award is final and binding on the parties to the dispute.
13. Thus for every dispute that may arise there is a procedure of pacific settlement, and provision has been made in the Protocol for meeting points (a), (b) and (c) in paragraph 8 above.
14. The establishment of a complete and comprehensive system for the pacific settlement of all disputes that might arise rendered it easier to approach the problem of the definition of "aggression." As the Prime Minister had said, "the one method by which we can approximate to an accurate attribution of responsibility for aggression is arbitration." In other words, any State which refused to avail itself of the means at hand for a peaceful settlement of a dispute, or which refused to accept the award given by the arbitral body or bodies now provided, and proceeded to an act of war, would brand itself as the aggressor. This principle is embodied in article 10 of the Protocol, which thus gives effect to the idea indicated in paragraph 8 (d) above. The definition of aggression is extended by articles 7 and 8 of the Protocol to apply to military measures taken before or during proceedings for a pacific settlement, and to acts constituting a threat of aggression against another State.
15. The point raised in paragraph 8 (e) above is dealt with in article 11 of the Protocol. Directly aggression takes place, the Council calls upon the signatory States to apply sanctions against the aggressor (article 10). As soon as the Council has thus called upon the signatory States, "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." Article 12 of the Protocol provides for the establishment of plans for putting into effect economic and financial sanctions, and article 13, "in view of the contingent military, naval and air sanctions provided for by article 16 of the Covenant," empowers the Council "to receive undertakings from States determining in advance the military, naval and air forces which they would be able to bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol."
16. Article 11—the "sanctions" article—has been more closely scrutinized and has been the subject of more criticism than any other article of the draft Protocol, and a hasty examination of it by some critics has led them to object that it goes beyond article 16 of the Covenant and imposes fresh obligations on the signatory States. In reply to such critics, it may be best to quote the words used by the British delegate in his speech to the Third Committee on the 22nd September:—
"It cannot be too strongly emphasized that everything in this article is already stated or implied in article 16 of the Covenant. We are remaining within the terms of the Covenant and we are undertaking no new obligations .......... Surely loyal and effective co-operation in support of the Covenant is what may confidently be expected from every Member of the League of Nations .......... The extent of the co-operation must depend on the actual circumstances not only as regards the aggression but also as regards the geographical position and the resources of all kinds of individual States. It would be no use to bind oneself to do a variety of things which may not be required. We must and we can rely on the good faith of the Members of the League to decide themselves how their effective co-operation can best be given if and when the necessity arises."
17. In order to complete the fulfilment of the task assigned to the committees by the Assembly's resolution of the 6th September, the Protocol finally provides (article 17) for the summoning in June next year of an International Conference for the reduction of armaments, to meet in Geneva and to include representatives of all states whether Members of the League or not. M. Herriot first, and other speakers after him, had emphasised the interdependence of the three great problems of arbitration, security and disarmament, and the framers of the Protocol, bearing this in mind, have been careful to preserve this interdependence in the document itself. Thus if sufficient ratifications of the Protocol have not been received by a certain date, the Conference on Disarmament is to be postponed. In any case, the Protocol does not come into force until that Conference shall have adopted a plan for the reduction of armaments. And if within a further period, that plan has not been carried out, the Protocol becomes null and void.
18. The above brief summary indicates how in the Protocol the committees of the Assembly have sought to embody, in concrete form, the proposals made to the Assembly itself by the British and French Prime Ministers. The Protocol is an attempt to complete the Covenant, to facilitate and develop the procedure of pacific settlement provided therein, and to define more clearly the obligations imposed by it on States Members of the League. The Protocol is based on the Covenant and keeps within its terms except in so far that it extends the Covenant procedure to give an alternative procedure by peaceful settlement, even in those cases for which the framers of the Covenant in 1919 were unable to find a remedy. So far as it contains anything new, it is to be found in the definition of aggression which follows as a necessary corollary to the limitations inserted in the establishment of a universal system of peaceful settlement. But even here the principle is not new. Article 16 of the Covenant decreed that sanctions should be applied against any Member of the League that might "resort to war in disregard of its Covenants under articles 12, 13 or 15." Article 10 of the Protocol decrees sanctions against any State resorting to war without availing itself or in defiance of, the procedure of pacific settlement provided in the Covenant as amplified by the Protocol itself. The amplification of that procedure to cover all cases, so as to remove all excuse for resort to war, has enabled the framers of the Protocol to give a more exact definition of aggression, and to make that definition more certain and more automatic. The Protocol is thus free from the reproach that had been levelled against the Draft Treaty of Mutual Assistance, which left a wide and dangerous discretion to the Council in determining which party to a dispute was the aggressor. It further discards the system proposed in the draft Treaty, whereby power was given to the Council to decide on and to direct the military sanctions required. The draft Treaty tended towards the realisation of the idea of the League as a "super-State": the Protocol respects the principle of national sovereignty. Every State retains its own liberty of action: it is still free to choose what it will do. The Protocol has stated in clearer terms what is expected of those who signed the Covenant in 1919, and it is to be hoped that this more explicit declaration may serve to deter those who would contemplate a violation of the spirit of the Covenant, whilst reassuring those who have hitherto sought safety in their own armed strength, by giving them confidence in the solidarity of the civilised nations and in their determination to resist all unscrupulous attempts to plunge the world again into the disaster of war.
19. It remains only to say a few words as to the actual procedure adopted by the Assembly for putting into effect the scheme thus elaborated. It was generally agreed that mere resolutions of the Assembly would not give sufficient assurance of progress. The famous Resolution 14 of the Third Assembly had been discussed and debated and had seemed to lead to an impasse with the rejection of the Treaty of Mutual Assistance. The Prime Minister, in his speech to the Assembly, had said: "Let us see to it that even before we rise, before the Assembly breaks up, some substantial progress shall be made in co-ordinating these ideas and in producing from their apparent diversities some measure of agreement and consent." It was therefore decided that the scheme should be embodied in the form of a Protocol, ready for signature, and that the Assembly should pass a resolution endorsing the principles contained therein, recommending the Protocol to the Governments for their acceptance, and directing that it should be opened immediately for signature. The terms of this Resolution, which was carried unanimously, have already been published.
20. The Protocol itself was signed in Geneva by Delegates of the Governments of Albania, Bulgaria, Esthonia, France, Greece, Latvia, Poland, Portugal, the Serb-Croat-Slovene State and Czechoslovakia. The Delegate of France at the same time signed on behalf of his Government the special Protocol opened for signature in virtue of article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, making the following declaration:—
"I hereby declare that, subject to ratification, the French Government gives its adhesion to the optional clause of article 36, paragraph 2, of the Statute of the Court, on the condition of reciprocity, for a period of fifteen years, with power of denunciation, should the Protocol of Arbitration, Security and the Reduction of Armaments, signed this day, lapse, and further, subject to the observations made at the First Committee of the Fifth Assembly, according to the terms of which 'one of the parties to the dispute may bring the said dispute before the Council of the League of Nations for the purposes of the pacific settlement laid down in paragraph 3 of article 15 of the Covenant, and during such proceedings neither party may take proceedings against the other in the Court.'"
21. Having briefly summarized the discussion which gave rise to the elaboration of the draft Protocol, and having examined in what way that instrument embodies the ideas expressed in that discussion, it may be of interest to review summarily the progress of the work of the two Committees of the Assembly that were charged with the drafting of the scheme, and to show how the various articles were evolved.
22. It will be seen from the terms of the resolution of the 6th September that the scheme of "arbitration, security and disarmament," though forming one indivisible whole, would require the deliberation of two of the regular Committees of the Assembly. The First Committee, dealing with the legal questions, would have to develop the principle of arbitration, while the Third Committee, dealing with the reduction of armaments, would have to consider the problems of security and disarmament.
23. It was realised that the work would overlap at many points, and the two Committees kept in constant touch throughout, the result of their labours being finally co-ordinated by a joint drafting sub-Committee.
24. During the whole period of discussion the British Delegation kept in close touch with the Dominion and Indian Delegations, who were consulted on all points of difficulty, and who were given every opportunity of expressing their views. This was done, not only by means of private consultation, but also at fourteen formal meetings of the Delegations.
25. In the following sections an attempt is made to trace the evolution of the Protocol through its various stages in the First and Third Committees.
II.—WORK OF THE FIRST COMMITTEE.
26. The first plenary meeting of the First Committee was held on the 2nd September, when Sir Littleton Groom (Australia) was elected Chairman, and M. Limburg (Netherlands) Vice-Chairman. Sir C. Hurst represented the British Empire.
27. On the 9th September the Committee began its deliberations on the Assembly resolution of the 6th September regarding arbitration, security and disarmament. The Assembly, by this resolution, instructed the First Committee:—
"(a.) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;
"(b.) To examine within what limits the terms of article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice might be rendered more precise, and thereby facilitate the more general acceptance of the clause;
"and thus strengthen the solidarity and security of the nations of the world by settling by pacific means all disputes which may arise between States."
28. The British Delegation commenced their labours by considering the second of these two tasks, as it was a British suggestion emanating from the Prime Minister himself. The question of the acceptance by His Majesty's Government of the principle of compulsory arbitration for legal disputes, as provided in the optional clause referred to in article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice, had been examined in London before the meeting of the Assembly. This examination had shown so clearly the difficulties which might arise in connection with disputes with neutral Powers arising out of British naval action in time of war, that the limitation of the acceptance by his Majesty's Government of the optional clause by the exclusion of disputes arising out of British belligerent action at sea was suggested. To achieve this it was proposed that His Majesty's Government should make a reservation as to disputes arising out of action taken in conformity with the Covenant, or at the request, or with the approval, of the Council of the League.
29. The suggestion was accepted by the British Delegation. As however, the question was clearly one which affected the Empire as a whole, the Dominion and Indian Delegations were especially consulted in regard to it. The position as it appeared to the British Delegation was fully explained to them, and it was understood that they would telegraph to their respective Governments, making clear the nature of the reservation proposed.
30. The general discussion by the First Committee of the subject of the acceptance of the compulsory jurisdiction of the Permanent Court of International Justice took place at the third plenary meeting on the 11th September. The British Delegate reminded the Committee that the views of His Majesty's Government had already been explained in the Assembly in regard to the optional clause. The Prime Minister had then stated that the British Government wished to sign a clause of this kind, subject to its being clearly drafted. The British Delegate proceeded to discuss the position of the British Empire supposing that it accepted the compulsory jurisdiction of the Court, and was then forced, in support of the Covenant, to go to war at sea. Sea warfare, he said, inevitably brought a belligerent into sharp conflict with the nationals of foreign Powers carrying on trade with the enemy State. The British Empire might therefore find itself forced to support before the International Court the legality of action taken at the request of the League itself. The British Delegation therefore asked the Committee to consider whether it would be possible, either by amendment of article 36, paragraph 2, of the Statute of the Court or by the admission of a reservation acceptable to other Members of the League, to exclude from the acceptance of that clause disputes which arose out of action taken, either in accordance with the Covenant, or at the request, or with the sanction, of the Council of the League.
31. The French Delegation were content with the idea of such a reservation, and both the Belgian and Brazilian Delegations stated that they had no objection to it. The delegate of Brazil, however, said he would prefer to proceed by way of a reservation rather than by any modification of the text. Though the representatives of the Netherlands and of Sweden were slightly more critical, it became apparent that no real objection would be raised to the British reservation.
32. The Belgian Delegate suggested even going further still and excluding, when accepting the optional clause, the whole of sub-heading (b), which relates to questions of international law. The effect of this would be to exclude all questions of international law where that law has not yet been codified, as where it has been codified the dispute becomes one of the interpretation of a Treaty. This, the British Delegation thought, would be going too far. It would deprive the International Court of the power to build up a case law in the international field. It would, moreover, have gone further than the Delegation felt necessary, because it was only in the field of established international law, where there are two distinct schools of thought—the continental and the Anglo-Saxon—that the difficulties referred to by the British Delegate would arise.
33. As regards the question of amendments to the Covenant, the French representative did not, during the general discussion in a plenary meeting of the First Committee, specify the nature of the amendments suggested by the French Delegation. He contented himself with drawing attention to three points. The first was the last sentence of article 13 of the Covenant, which provides that in the event of any failure to carry out an arbitration award, the Council shall propose what steps shall be taken to give effect thereto. This the French Delegation regarded as inadequate. The second was the provision of article 15 by which, if the Council cannot reach a unanimous decision, the parties to a dispute which is submitted to the Council recover their liberty of action. Here, he said, was a gap in the Covenant which must be filled. Was the position to be perpetuated, he asked, by which any one member of the Council could completely prevent a peaceful settlement of a dispute? The third was paragraph 8 of article 15, which provides that in matters within the domestic jurisdiction of a State the Council can make no recommendation. The French Delegation asked the Committee to consider whether it would not be possible to discover a method of friendly conciliation over matters relating to domestic jurisdiction.
34. After the general discussion had been declared closed, the First Committee adjourned for a week and entrusted to a sub-committee, known as the Fifth Sub-Committee, the task of formulating concrete proposals. The work done by this sub-committee was of such importance that it is considered desirable to indicate its composition, which was as follows:
Mr. Adatci (Japan).
Count Albert Apponyi (Hungary).
M. Loucheur (France).
Mr. John O'Byrne (Irish Free State).
M. Erich (Finland).
M. Raul Fernandez (Brazil).
Sir Cecil Hurst (British Empire).
M. Nicolas Politis (Greece).
M. Rolin (Belgium).
M. Vittorio Scialoja (Italy).
M. Nicolas Titulesco (Roumania).
M. Torriente (Cuba).
M. Limburg (Netherlands).
M. Unden (Sweden).
35. The discussion was taken up on the 12th September in the sub-committee on the lines of the general debate in the full Committee. The meetings were not open to the public. As regards the proposed British reservation to the acceptance of the obligatory jurisdiction of the Permanent Court of International Justice, by signing the optional clause in the Statute of the Court, some opposition developed at first from two quarters. Subsequently, however, it waned and did not reappear.
36. As regards the extension of the principle of arbitration by amendments to the Covenant, it at once became clear that there were many conflicting views as to the best system to adopt. The days were spent mainly in ascertaining, inside and outside the sub-committee, the extent and the nature of the different points of view.
37. The work on which the sub-committee was engaged was intimately related to the questions of security and disarmament with which the Third Committee was dealing. On the 16th September, Dr. Benes, chairman of the sub-committee of the Third Committee, who had been in close touch with the British and French Delegations, produced a draft Protocol covering the whole ground, in which he had attempted to reconcile opposing points of view and which was intended to serve as a basis for discussion. Articles 1, 2, 3 and 5 of this draft Protocol concerned the First Committee and were referred to the sub-committee. They may be summarised as follows:—
38. Article 1.—The signatories recognise the jurisdiction of the Permanent Court of International Justice as compulsory, "subject to the following reserves":—
39. Article 2.—The signatories undertake to submit all disputes, not covered by articles 12, 13 and 15 of the Covenant, to the Council of the League, subject to an express reserve as to the right given exclusively to the Assembly in article 19 of the Covenant, whereby the Assembly alone is entitled to advise the reconsideration of existing treaties. The Council in such cases to act as an arbitration tribunal and to decide by a majority vote. Pending an examination of the dispute the Council may, by a majority, define measures to be taken by the parties to avert or put an end to armed conflict. Similarly, the Council may, in case of imminent danger, call upon the parties to discontinue any measure likely to cause the dispute to become more acute.
40. Article 3.—The procedure laid down in article 2 to apply to the Permanent Court in cases concerning the competence of that Court.
41. Article 5.—Any signatory which does not submit its disputes to the methods of pacific settlement indicated above, or which does not comply with the provisional measures referred to in article 2, or which does not carry out an award of a duly qualified arbitral body, shall, if these acts of non-compliance are likely to disturb the peace of the world, be declared to be an aggressor and outlawed, the declaration to be made by the Permanent Court or by the Council acting, if need be, by a majority. When this declaration has been made, the Council is to call on Members of the League to put into operation the sanctions contained in article 7.
42. Consideration of these proposals and of those contained in two other schemes submitted led to long discussions in the Committee. These discussions served mainly to bring into relief the different schools of thought. One favoured the widest possible extension of the jurisdiction of the Permanent Court, even into the field of disputes of a political nature; the other held that the Court's jurisdiction should be rigidly limited to disputes of a legal character, while a far-reaching system of arbitration should be established to deal with political disputes. Strong disinclination was shown towards any increase in the existing powers of the Council. On the other hand, it was made clear that no decrease of those powers would be tolerated. On one side it was urged that the Council, when acting as an arbitral body, should make its decisions by a majority vote; on the other, strong exception was taken to any departure from the unanimity rule. As regards the application of sanctions, one group held that mere refusal to arbitrate or failure to carry out an award should justify their application. Another contended equally strongly that sanctions should only be applied when such refusal or failure was accompanied by a resort to war. The extent to which war was legitimate under the Covenant in cases relating to domestic jurisdiction was very fully discussed. The net result was a unanimous agreement to leave paragraph 8 of article 15 untouched.
43. As regards the filling of the gap in article 15 of the Covenant, little progress was made. On the 19th September, therefore, the British representative submitted a scheme to the sub-committee, in which he had endeavoured to meet the differences of opinion which had been expressed. This scheme provided for the acceptance as compulsory of the jurisdiction of the Permanent Court in the cases covered by article 36, paragraph 2, of the Statute of the Court, with such reserves as may be consistent therewith. Its main object was, however, the amendment of the Covenant on the lines of the following text:—
"The undersigned will support the introduction of amendments to article 15 of the Covenant for the purpose of amplifying paragraphs 4, 5, 6 and 7 of that article on the following lines:—
"If the dispute submitted to the Council is not settled by it as provided in paragraph 3, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.
"If the parties cannot agree to do so, the Council shall again take the dispute under consideration, and, if it reaches a report which is unanimously agreed to by the Members thereof other than the representatives of the parties to the dispute, the Members of the League agree to accept the recommendations contained in the report.
"If the Council fails to reach a report which is concurred in by all the members other than the representatives of the parties to the dispute, and if the parties are still unable to agree to refer the dispute to arbitration, the Council is empowered to refer the dispute to arbitration on their behalf. One-half of the members of the tribunal, excluding the president, shall be appointed by the Council, after consultation with one party to the dispute, and the other half after consultation with the other party to the dispute. The president shall be appointed by the Council after consultation with the Permanent Court of International Justice if in session, or, if not in session, with the members of its chamber of summary jurisdiction.
"The Members of the League agree that they will comply with the recommendations contained in any award of the Arbitration Tribunal set up by the Council as above.
"In the event of any failure to comply with the recommendations of a report concurred in by all the Members of the Council other than the parties to the dispute or in any award of an arbitration tribunal set up by the Council as above, the Council shall exert all its influence to secure compliance therewith. If such failure to carry out the recommendations is accompanied by any resort to war, the sanctions provided for in article 16, interpreted as provided in this Protocol, shall be applied."
44. The British Delegate explained that the willingness of Governments to amend the Covenant must be clearly expressed in the Protocol. In no other way could the danger of creating within the League an inner ring of Powers, bound towards each other by ties and obligations more close than those binding the ordinary members of the League, be avoided. The drafting of amendments to the Covenant was, however, a technical matter, and time was short. He therefore suggested that the Council should be asked to set up a committee of experts to draft the amendments to the Covenant contemplated by the Protocol.
45. These proposals provided the bases of articles 1, 3 and 4 of the Protocol and of paragraph 3 of the Assembly Resolution of the 2nd October. The bases of articles 2 and 5 had already been established. Article 10 was beginning to take shape in new drafts in substitution for Dr. Benes's definition of an aggressor. On the 21st September these articles were provisionally adopted by the joint drafting committee of the First and Third Committees. At this stage, therefore, for the first time, the substance of a workable text on the subjects referred to the First Committee began to emerge from the shadow of discussion.
46. Throughout this period, however, the negotiations had been carried on entirely in the sub-committee in secret sessions. Although the closest possible touch had been kept by the British Delegation with the Dominion and Indian Delegations, the British representative felt himself to be in a position of great responsibility in carrying on the work in the sub-committee. He felt that a stage had been reached where a wider consultation was necessary, as, with the exception of the Attorney-General of the Irish Free State, who was unfortunately obliged to return to Ireland about this date, he was the only British member. He proposed, therefore, that the work of the sub-committee should be reported to the full Committee on which all the Dominion and Indian Delegations were represented. The full Committee thereupon met on the 24th September, and then and at further meetings held on the 25th, 26th, 27th and 28th September, the articles of the Protocol were fully discussed in public sessions. The articles of the Protocol under consideration thus took their shape in the sub-committee, they were then submitted to the Joint Drafting Committee representing the First and Third Committees, and were then finally approved after public discussions in Committee No. 1. Here, then, it will be convenient to deal with the purpose and evolution of each article separately.
The Preamble.
47. The draft of the Preamble, as revised by the Joint Drafting Committee of the First and Third Committees, was adopted at a plenary session of the First Committee on the 27th September. The Lithuanian Delegate made a reservation that the reference to territorial security in no way prejudiced existing disputes between States signing the Protocol. The Portuguese Delegate proposed an amendment to substitute for the word "territories" in the first sentence, the phrase "territories under the sovereignty of States." The object was to make it clear that oversea territories under the sovereignty of a State were not excluded, but the British representative reminded the committee of the nature of the varied character of the territories of the British Empire, and said that if one class of oversea territories were mentioned, all must be mentioned. The amendment was rejected.
Article 1.
48. Article 1 was designed to ensure that the universality of the League should be maintained even if the Protocol comes into force. For a while there must no doubt be a dual régime. States signatory to the Protocol will be bound by its terms, and the régime of the Covenant will continue to exist and to be binding upon States members of the League. This will, however, not last, as the principal provisions of the Protocol will be transformed into amendments to the Covenant.
Article 2.
49. Article 2 was intended to make all aggressive war illegal. Exceptions were, however, made to safeguard (1) the right of a State to fight in self-defence, and (2) the position of a State acting in accordance with the provisions of the Covenant or the Protocol. A proposal, strongly urged, to substitute the words "resort to force" for the words "resort to war" was rejected.
Article 3.
50. Article 3 provides for the compulsory recognition of the jurisdiction of the Permanent Court. The Joint Drafting Committee proposed to remove this article from the Protocol, as certain Delegations felt it went beyond the Assembly Resolution. The British Empire Delegation feared that this might result in the separation of the three principles—arbitration, security and disarmament. At the suggestion of the British representative, therefore, the article was retained. As a result of the discussions on this matter, it was generally agreed that the power to make reservations to article 36 of the Permanent Court Statute was much wider than had been at first believed. It was understood that the proposed British reservation was within the limits admissible.
Article 4.
51. Article 4 was designed to extend the system of arbitration contained in the Covenant and to fill the existing gap in article 15 of the Covenant, by which the parties to a dispute recover their liberty of action and are entitled to resort to war if the Members of the Council are unable to agree upon a unanimous report. In the sub-committee a strong feeling manifested itself against unanimous decisions of the Council being binding in cases where one party to a dispute, but not both, desired arbitration. Certain of the smaller States, in particular, felt that such a system gave too much power to the Council, which was already regarded as a body which expressed only the will of the great Powers.
52. Paragraphs 2 (a) and (b) of article 4 were drafted to avoid this difficulty. Arbitration is to be compulsory at the request of one of the parties, and the Council is given power to appoint the arbitral body if the parties cannot agree as to its constitution. A unanimous decision of the Council is only to be binding where none of the parties ask for arbitration. If, therefore, any party wishes to avoid a decision by the Council, it has only to ask for arbitration. For similar reasons, the words "accepted by one of the parties" were added after the words "decision of the Council" in paragraph 5.
53. Discussions in the sub-committee revealed a divergence of view as to whether or not sanctions should be applied in the event of passive resistance to the award of the Arbitral Commission. It was finally agreed that the provision contained at the end of article 13 of the Covenant would be sufficient to meet a case of passive resistance and that the sanctions of article 16 should only be applied when such resistance was accompanied by a resort to war (vide paragraph 6 of article 4).
54. At the request of the British representative, paragraph 7 was added to ensure that reservations, similar to that which the British Delegation considered that it would be obliged to make if the British Empire accepted article 36 of the Statute of the Permanent Court, would also exist in the case of the new system of compulsory arbitration.
Article 5.
55. Article 5 was inserted as the result of a unanimous decision of the sub-committee to leave untouched paragraph 8 of article 15 of the Covenant, which safeguards the rights of States Members in regard to matters of domestic jurisdiction. The whole British Empire Delegation held the view that when the Arbitration Commissions were faced with such questions, they should be bound to refer them to the Permanent Court, and that the opinion of the Court should be binding. As the Permanent Court itself is bound to apply international law, and paragraph 8 of article 15 refers to questions which by international law are solely within the domestic jurisdiction of the State concerned, this provision ensures that a uniform rule will be applied by the Council, the Permanent Court and the arbitral bodies to be set up under the new system.
56. The last sentence of article 5 was added to meet certain difficulties raised by the Japanese Delegation. They pointed out that the second gap in the Covenant, referred to by the French Delegation during the general discussion, had not been filled. On the 24th September, they accordingly proposed an amendment to article 5, which appeared to have the effect of giving the Council power, in cases relating to domestic jurisdiction, to recommend the parties to adopt some solution which would ensure a pacific settlement of the dispute. After the discussion in the sub-committee, the Japanese Delegation modified this proposal and suggested that the following words be added as the final paragraph of article 5:—
"The above provisions do not prejudice the duty of the Council to endeavour to bring the parties to an agreement so as to ensure the maintenance of peace and a good understanding between nations."
This proposal came up before the plenary session of the First Committee on the 25th September. The British Delegation asked for a postponement of the discussion. Immediate steps were taken to consult the Dominion and Indian Delegations, and in the subsequent negotiations the closest co-operation with them was maintained.
57. It transpired that the Japanese Delegation, if they failed to secure acceptance of this amendment to article 5, intended to press for the exclusion from article 10 of the sentence at the end of paragraph 2 (1), which included in the definition of an "aggressor" a State which resorted to war and disregarded a unanimous report of the Council or a judicial sentence or an arbitral award recognising that the dispute arose out of a matter within the domestic jurisdiction of the other State concerned. They pointed out that it was unjust that in such cases the League, while refusing pacific means of settlement to an injured State, should denounce that State as an aggressor if it took steps to defend its legitimate interests by force.
58. The possible effect of this alternative amendment was regarded by many Delegations with great concern. It would have suggested the legitimacy of a resort to war in connection with a dispute arising out of some domestic matter as to which the Council could give no help and make no recommendation for its solution.
59. In these circumstances the British Empire Delegation was agreed that the best course was to endeavour to find a solution by enlarging article 19 of the Protocol, so as to make it clear that the existing power of the Council, under article 11 of the Covenant, of endeavouring to achieve a pacific settlement in any case where the peace of the world was endangered, was not prejudiced by the provisions of the Protocol. Though the discussions of the matter remained very friendly in tone this proposal did not prove acceptable to the Japanese Delegation. Accordingly, when the amendment came before the plenary meeting of the First Committee on the 28th September, the Japanese Delegation withdrew their amendment to article 5 and proposed the amendment to article 10. At the suggestion of the French Delegate the question was referred back to the sub-committee.
60. Late on the 29th September the basis of solution was found. It was immediately submitted to the representatives of the Dominions and India, and was fully considered by them at two further meetings on the following day. After slight modifications the text of two amendments proved acceptable to the British Empire Delegation, and after being accepted by the Japanese and French Delegations, these amendments were adopted by the First Committee. They involved the addition to the last sentence of article 5 of the words "this decision shall not prevent consideration of the situation by the Council or the Assembly under article 11 of the Covenant," and the addition at the end of paragraph 2 (1) of article 10 of the words "nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant."
61. In the opinion of the British Empire Delegation these amendments conferred no new powers or functions on either the Council or the Assembly. They merely served to make clear the relationship between paragraph 8 of article 15 and article 11 of the Covenant. Article 11 of the Covenant only operates in time of war or threat of war, and it confers no right on the Council or the Assembly to impose a solution of a dispute without the consent of the parties. The Council or the Assembly may mediate and conciliate, but they cannot make recommendations which are binding under paragraph 6 of article 15 of the Covenant. When these amendments were adopted at the final plenary meeting of the First Committee on the 30th September, the British representative made a statement on the above lines. This interpretation proved generally acceptable, and it was agreed to incorporate it in the report to be submitted to the Assembly.
62. At the final plenary meeting of the First Committee the British representative drew attention to the difficulty in which many Delegations were placed, in that they had had no opportunity to consult their Governments in regard to these amendments. The Delegations of Australia and several other countries thereupon stated that, though they accepted the texts, they could not commit their Governments in any way.
Article 6.
63. Article 6. When the system of compulsory arbitration, contained in article 4, had been established, the British representative pointed out that under paragraphs 9 and 10 of article 15 of the Covenant a dispute might still be referred to the Assembly. Article 6 was therefore drafted to ensure that the provisions referring to the actions and powers of the Council should apply to the Assembly under the new system. After considerable discussion it was decided to reserve questions of procedure to the Council as being a more suitable body.
Article 10.
64. Article 10, which contains the definition of an aggressor, provided one of the most difficult tasks of the First Committee. By the 23rd September a number of drafts had been considered but no satisfactory text had been found. The original idea was that it should be the duty of the Council to determine the aggressor, but the question then arose as to whether, in making this decision, the Council should act unanimously or by majority vote. Adherence to the unanimity rule would have made it possible for one State to prevent a decision being reached. Procedure by a majority vote might have resulted in a State being obliged to apply sanctions against its own judgment. The only way out of this difficulty was to avoid a decision by the Council at all, and to make the test of aggression automatic, when once certain conditions had been found to obtain. This is achieved by establishing a presumption which is to hold good until the Council has made a unanimous decision to the contrary. If the presumption stands it is considered sufficient to justify the application of sanctions. Even then it was thought that there would have to be something in the nature of a "declaration of aggression" in order to initiate the enforcement of sanctions, and that this declaration would have to be made by unanimity. Objections were raised to this, but these objections were finally satisfied by the insertion of paragraph 3, according to which the Council, if it cannot at once determine the aggressor is bound, as a matter of course, to enjoin an armistice upon the belligerents.
65. The Japanese Delegation were opposed to any presumption of aggression arising against a state which was involved in a dispute covered by paragraph 8 of article 15 of the Covenant, and found as the result that, though it had submitted the dispute to the Council, the Council were unable to make any recommendations on the subject. To meet this view, the amendment previously referred to was made to article 5, and the words "nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant" were added to paragraph 2 (1) of article 10. In the opinion of the British Delegation, this amendment does not affect paragraph 3 of article 10. If a resort to war occurs, and the Council cannot determine the aggressor, it is still bound to impose an armistice upon the belligerents.
66. To the final paragraph of article 10 the words "and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent" were added at the suggestion of the British representative. This addition was made to safeguard the position of a State which, though no party to the dispute, joined in coercive measures to uphold the Covenant of the League and in so doing took forcible measures against the persons or the property of nationals of another State.
Article 16.
67. The relations between States signatory to the Protocol and States non-signatory and non-members of the League presented a problem the solution of which required great care. The various aspects of the question were thoroughly examined, and it was finally agreed that it would be sufficient to bring the principle contained in article 17 of the Covenant into harmony with the provisions of the Protocol. Sanctions can only be imposed on a State which is not a Member of the League if it refuses to accept the conditions and obligations of the Protocol when invited to do so, and resorts to war against a signatory State.
68. The question was raised of the relationship between States Members of the League signatory to the Protocol and non-signatory States Members. After careful examination, it was generally agreed that no special arrangement was necessary. The Members of the League are bound inter se by the Covenant and non-signatory Members are entitled, if they wish, to prefer the procedure laid down in the Covenant to the new procedure of the Protocol.
Article 18.
69. Article 18 was inserted to satisfy apprehensions which had been expressed in certain quarters. The British Delegation were not convinced of its necessity, but saw no reason to object to it.
Article 19.
70. Article 19 was inserted as a saving clause. It emphasises the intention to preserve the Covenant as the principal document governing the relations between States Members of the League. The relations between signatories and non-signatories to the Protocol are still to be governed by the Covenant. The Covenant is to stand, but it is to be enriched by the principal provisions of the Protocol. The amended Covenant is intended ultimately to take the place of the separate régime of the Protocol.
Resolution No. 1.
71. It had been originally suggested that the provisions of the Protocol should be embodied in the form of resolutions to be submitted for adoption by the Assembly. In view, however, of the fact that adoption of such resolutions by the Assembly might be held to commit the Governments there represented to the acceptance of its provisions, and in view of the difficulty which Delegations found in consulting their Governments, this proposal was found to be impracticable. It was thereupon decided that the Protocol should be drawn up as a separate instrument, and that its acceptance should be recommended by the Assembly to all States Members of the League.
72. The draft of a resolution on these lines, which had been drawn up by the British representative, was discussed by the First Committee on the 27th September. Paragraph 1 recommends the acceptance of the Protocol. Paragraph 2 provides that the Protocol shall be open immediately for signature for those representatives who were already in a position to sign. This was added in view of the fact that the French and several other Delegations had announced their intention to sign the Protocol before leaving Geneva. Paragraph 3 was inserted because it was felt that the drafting of amendments to the Covenant was too technical a matter to be done hastily.
73. The remaining paragraphs of the resolution relate to the proposed Disarmament Conference which was dealt with by the Third Committee. The resolution was unanimously adopted by the Assembly on the 2nd October.
Resolution No. 2.
74. This resolution recommends the acceptance of the obligatory jurisdiction of the Permanent Court of International Justice at The Hague by all Members of the League. The discussions regarding the special Protocol opened for signature in virtue of article 36, paragraph 2, of the Statute of the Permanent Court, had revealed that the power to make reservations was wider than had been at first thought. It was therefore decided that no new Protocol was required, but that the power to make reservations should be clearly recognised in the resolution of the Assembly.
M. Politis's Report.
75. M. Politis's draft report on the work of the First Committee was presented to the Committee on the 28th September, and the discussion upon it lasted all day. This draft, which was very ably drawn up, gave a remarkably clear and adequate account of the achievement of the First Committee.
76. Some criticism was made by the representative of Hungary and others of a tendency in the report to give peace a secondary position to that of justice in the predominating idea of arbitration. As a result, the offending passages were redrafted.
77. In its final form M. Politis's report was incorporated in the general report submitted to the Fifth Assembly by the First and Third Committees. This general report[[2]] was adopted unanimously by the Assembly on the 2nd October, and it can thus be regarded as the official document containing the views of the Members of the League in regard to the interpretation of the Protocol.
III.—WORK OF THE THIRD COMMITTEE.
78. The Third Committee began its deliberations on the Assembly resolution on arbitration, security and disarmament on the 9th September, under the presidency of M. Duca (Roumania) (subsequently replaced by M. Politis [Greece]), and the proceedings opened with a general discussion, which was continued until the 13th. Lord Parmoor and Mr. Henderson represented the British Empire.
79. After the method of procedure had been settled, a statement was made expressing the standpoint of the British Delegation on the questions of arbitration under the three heads of arbitration, court decisions and conciliation, and the views then expressed were maintained at the subsequent meetings. A short reference was made to the question of sanctions, but any detail was avoided in order to leave room for free discussion with the members of the French Delegation. The note of the British Government on the Draft Treaty of Mutual Assistance was referred to as expressing the final view and not requiring any further comment.
80. Most of the speakers devoted some time to a statement of the views of their Governments on the Draft Treaty of Mutual Assistance, against which the main objections urged were the uncertainty in regard to the definition of aggression, the too wide discretion and powers conferred upon the Council and the evils attendant on the system of "complementary agreements" sanctioned by the Treaty. The first defect might now be remedied by the extension of the system of arbitration, which would simplify the definition of aggression. As regards the "complementary agreements," even those who recognized their harmful possibilities were compelled to admit that they could not be abolished or prevented, and that their power for evil might be lessened if they were controlled and brought within a general scheme of mutual assistance under the League.
81. All the speakers were in substance agreed that the Covenant itself afforded the best basis for any scheme of mutual assistance; that it needed only to be developed and carried to its logical conclusion in order that it might provide an adequate basis of security.
82. In summing up the debate the President observed that there appeared to be general agreement on the interdependence of the three problems of arbitration, security and disarmament, and on the point that a complete system could be evolved from the Covenant itself. Everyone was prepared to accept the principle of economic and financial sanctions, though some difference might exist on the subject of military sanctions. Little had been said about disarmament, which could only follow as a consequence of the solution of the twin problems of arbitration and security.
83. It was then agreed, on the morning of the 13th September, to appoint a sub-committee of representatives of twelve Delegations to formulate concrete proposals.
84. The sub-committee, known as the Fourth Sub-Committee of the Third Committee, was composed as follows:—
Lord Parmoor or Mr. Henderson (British Empire).
M. Paul-Boncour (France).
M. Schanzer (Italy).
M. Branting (Sweden).
M. Benes (Czechoslovakia).
M. Villegas (Chile).
M. Kalfov (Bulgaria).
M. Poullet (Belgium).
M. Titulesco (Roumania).
Mr. Matsuda (Japan).
M. Lange (Norway).
M. Skrzynski (Poland).
85. The sub-committee met for the first time on the afternoon of the 13th September, under the presidency of Dr. Benes. The first meeting was occupied by a discussion on procedure. In the first instance, it was proposed to appoint a drafting committee of three members to draw up proposals, keeping in close touch with a similar committee to be appointed by the First Committee, but this idea was subsequently abandoned, and the President was requested to draw up the outline of a scheme, to be submitted to the sub-committee, if possible, on the 15th September. This the President undertook to do, but he was only able to submit his proposals for the first time on the 16th September. The delay was due mainly to the necessity of consulting with representatives of the First Committee and with certain Delegations. In particular, meetings were held on the 15th September between representatives of the French and British Delegations who went carefully through the scheme and reached a preliminary agreement on a number of points of principle. This agreement greatly facilitated the eventual completion of the work.
86. These proposals were in the form of a draft Protocol, of which articles 1, 2, 3 and 5 concerned the First Committee, and have already been dealt with in the preceding section of this report. The remaining articles, as originally proposed, may be summarised as follows:—
87. Article 4.—The Council or the Permanent Court may appoint International Control Commissions, composed of civilian and military experts, to ensure that during the course of the arbitral procedure none of the parties makes preparations for economic or military mobilisation.
88. Article 6 recommends the establishment of demilitarised zones and their control, if desired, by the League of Nations.
89. Article 7.—As soon as the declaration of aggression has been made, the obligations of the signatories in regard to the sanctions of all kinds in article 16, paragraphs 1 and 2, of the Covenant will immediately become operative against the aggressor. These obligations to be interpreted as obliging each of the Members of the League to co-operate loyally and effectively in support of the Covenant of the League and in resistance to any act of aggression.
90. In accordance with article 16 of the Covenant the signatories undertake, individually or collectively, to come to the assistance of the State attacked or threatened, and to give each other mutual support by means of facilities and reciprocal exchanges as regards supplies of raw materials and food-stuffs of every kind, openings of credits, transports, transit, and for this purpose to ensure the safety of the land and sea communications of the attacked or threatened State.
91. If both parties to the dispute are declared aggressors according to the above provisions, the economic sanctions to be applied to both of them.
92. Article 7A.—The Council of the League of Nations to instruct the Economic and Financial Committees, Temporary Mixed Commission and Permanent Advisory Commission to draw up (1) plans of action for establishing the blockade of the aggressor State, and (2) plans of economic and financial co-operation between the State attacked and the different States assisting it.
93. Article 8.—The Council to be entitled to accept individual or collective undertakings entered into by States, determining in advance the military forces which they would immediately place at the Council's disposal in order to carry out the measures decided upon, in accordance with the preceding articles.
94. When the aggressor has been designated, the signatories may, in accordance with undertakings previously entered into, place in the field the whole, or such proportion as they may consider necessary, of their military forces against the aggressor.
95. Article 8A.—In view of article 10 of the Covenant, the above sanctions must not include the violation of the political or territorial independence of the aggressor.
96. Article 9.—The signatories to take part as soon as possible in an International Conference for the Reduction of Armaments under the auspices of the League. The Council to draw up the programme for this Conference.
97. If, within a time limit of (Transcriber's note: blank space in source) after the coming into force of the Protocol, the Conference has not met, or the scheme for the reduction of armaments drawn up by it has not been adopted and carried out, the Council may record the fact, and each signatory shall regain its freedom of action.
98. If, during the time limit specified above, a dispute arises, the provisions in the Protocol to be applicable in full.
99. Supplementary Clause (to be inserted in article 9).—The conditions in which the Council may declare that the scheme of the International Conference has not been carried out, shall be defined by the Conference itself.
100. Article 10.—Differences relating to the carrying out or interpretation of the Protocol to be submitted to the Permanent Court of International Justice.
101. Article 11.—The Protocol to be open for signature by all States, to be ratified, and the ratifications to be deposited with the League. The Protocol to come into force between the signatories ratifying it, as from the date of ratification.
102. The sub-committee held eight meetings in all, finishing its work on the 22nd September. The articles were not discussed in their numerical order, and a discussion of one article was often adjourned while the examination of another article was begun. As it is not attempted here to give a full summary of the discussions, it will perhaps be convenient to take the articles in order and show what modifications were introduced.
103. Article 4.—Objection was raised to this article, mainly on the ground that it gave the Council or the Permanent Court too wide powers of interference, and introduced the idea of a "super-State." After consultation with other Delegations, the British Delegation produced an alternative draft which was adopted, and which was substantially embodied in the eventual Protocol itself (becoming article 7). The only essential difference between this draft and the eventual text was that the former provided, in paragraph 2, that the investigations should be carried out "by the organisation set up by the Conference for the Reduction of Armaments to ensure respect for the decisions of that Conference.
104. Article 6.—Words were inserted to the effect that demilitarised zones were recommended "as a means of avoiding violations of the present Protocol." They were to be placed under the supervision of the Council at the request "and at the expense" of one or more of the conterminous States.
105. Article 7.—There was considerable discussion on the first paragraph, and some demand for a distinction to be drawn, as in the Covenant, between economic and financial sanctions on the one hand, and military sanctions on the other. It was, however, explained that the proposed definition of the aggressor had produced a clearer situation, in which there was no reason why the application of sanctions of all kinds under article 16 of the Covenant should not be justified. It was pointed out that the wording of this first paragraph was illogical. The "obligations" could not "become operative against an aggressor." Accordingly, it was agreed to substitute the words "the obligations will immediately come into force in order that the sanctions provided may immediately become operative." The paragraph was then passed with the above amendment.
106. Exception was taken to the words in the third paragraph "undertake individually or collectively to come to the assistance." It might prove difficult to evolve collective plans, and it was agreed, on the proposal of the British Delegate, to substitute the words "give a joint and several undertaking to."
107. In the same paragraph the use of the expression "to ensure the safety of the land and sea communications of the attacked or threatened State" was questioned in the first place, because it seemed that it might imply naval or military operations. In reply, it was pointed out that the words in the same sentence "for this purpose" showed that this paragraph related solely to economic and financial sanctions. In the second place the word "ensure" was objected to, on the score that to undertake to ensure communications might be to undertake an impossibility. Finally, the words "take measures to preserve the safety of communications" were substituted. It was further pointed out that these provisions were to be applied to protect an attacked or threatened State and that a similar distinction was expressly contained in the Covenant.
108. Article 7A.—The British Delegation desired a redraft of this article, taking exception in particular to sub-paragraph (1), in which the word "blockade" seemed to suggest belligerent naval action. They at first suggested omitting all words after "Council of the League of Nations" and substituting "shall, as soon as possible after the Protocol has been ratified, take steps to ascertain from each of the signatories what organisation or legislation is necessary to give effect to the economic and financial sanctions." An alternative suggestion from another quarter was to substitute the words "putting into force the economic and financial sanctions against" for the words "establishing the blockade of" in sub-paragraph (1). It was agreed to combine both amendments—to adopt the British text above, and to begin a second paragraph with the words "When in possession of this information the Council shall draw up, through its competent organs: (1) plans of action for the application of the economic and financial sanctions of article 16 of the Covenant against an aggressor State," &c.
109. Later, the British Delegation proposed to redraft the first paragraph in the form in which it finally appears in the Protocol (having become article 12), to delete the remainder, and to substitute "It shall communicate this report to the members of the League and to the other signatories." The redraft of the first paragraph was accepted, but it was decided to allow the second paragraph to stand, as amended above.
110. Article 8.—The British Delegation had objections to raise against both paragraphs of this article. In the first paragraph they objected to the words "place at the Council's disposal," and the second paragraph they regarded as an attempt to revert to what was the operative principle of the Draft Treaty of Mutual Assistance.
111. They suggested as an alternative text:—
"Having regard to the fact that military sanctions are foreseen in article 16 of the Covenant, the Council may receive undertakings from States fixing in advance the military forces which they would be willing to employ against a Member of the League which was declared to be an aggressor.
"In view of the right of Members of the League to enter into such arrangements with the Council, no agreement shall in future be concluded between States Members of the League, providing for military action to be taken by them."
112. It became evident that the sub-committee could not be induced to accept the second paragraph of this alternative text, and it was accordingly withdrawn. Exception was also taken to the words in the first paragraph, "against a Member of the League," &c., and it was agreed to substitute the words, "to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol."
113. The French Delegation then proposed that the article should read:—
"In view of the contingent military, naval and air sanctions provided for in article 16 of the Covenant, and article 7 of the present Protocol, the Council shall be entitled to receive undertakings entered into by States determining in advance the military, naval and air forces which they would bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.
"When the aggressor is designated, the signatory States may, moreover, place in the field, in accordance with agreements previously entered into, the whole or such part of their military, naval and air forces as they may consider necessary for the assistance of a State which shall have been the victim of aggression.
"The obligations of the second paragraph shall be duly registered and published by the League of Nations, and shall remain open for adherence by any State Member of the League which so desires."
114. It was the right of States, as the matter then stood, to enter into special agreements with one another for determining in advance the military, naval and air forces which they would bring to the assistance of one another under the conditions indicated. Under the Protocol, these special agreements would only come into force when the Council had decided which State is the aggressor: they would simply provide means for applying rapidly the sanctions prescribed in the Covenant and the Protocol.
115. Before, however, agreeing to this text a statement was made on behalf of the British Delegation, expressing regret that the sub-committee had not seen its way to make the Protocol an instrument whereby the League would only act as a whole. It was, however, recognised that the last paragraph introduced an improvement, as, if separate agreements must exist, it would be better that they should be registered with the League. "But that does not alter the fact that you are making provision on the face of a new document for that which has been turned down in connection with the Draft Treaty of Mutual Assistance." Further opposition to the draft article was not pressed, but the British Delegation made known their desire that words should be recorded expressing regret that the League was not to act as a whole, and to set its face "like flint against anything like the old balance of power by allowing these regional pacts to go on under this new instrument." The above text was then adopted.
116. Article 8A.—The British Delegation proposed that the article should read: "Shall not affect the territorial integrity or political independence of the aggressor State." This was agreed to, and it was also decided to prefix a paragraph relating to the costs of military, naval or air operations, similar to article 10 of the Draft Treaty of Mutual Assistance.
117. Article 9.—Objection was raised by the British Delegation to the last paragraph of article 9, and they moved that the following be substituted:—
"The provisions of the present Protocol in regard to arbitration and sanctions shall come into force when the scheme for the reduction of armaments, drawn up by the International Conference, has been effectively carried out in accordance with the conditions fixed by the Conference itself."
118. The French Delegation maintained strongly that the Protocol must be brought into operation before the International Conference could meet. The British Delegation offered a compromise with the suggestion that their Government might sign the Protocol, and ask Parliament to approve it before the Conference met. But preparatory arrangements for the Conference should go on concurrently. Directly agreement was reached by the Conference, ratifications could 'be deposited. As this failed to meet the views of the French Delegation, the British Delegation made a final proposal whereby endeavours should be made to secure ratification and deposit of ratifications before the Conference met, provided the Protocol itself contained a provision to the effect that it should only become operative when the International Conference reached a conclusion. The French Delegation indicated their willingness in principle to accept this, but wished to consider an actual text.
119. At the next meeting the Chairman submitted the following version:—
"The undersigned Members of the League of Nations undertake to participate in an International Conference for the Reduction of Armaments which shall be convened by the Council of the League and shall meet at Geneva on Monday, the 15th June, 1925. States not Members of the League of Nations shall be invited to this Conference.
"The ratifications of the present Protocol shall be deposited with the Secretariat of the League of Nations at the latest by the 1st May, 1925. If at least fifteen Members of the League, of which four are permanently represented on the Council, have not deposited their ratification by the 1st, May 1925, the Secretary-General of the League shall cancel the invitations.
"The entry into force of the present Protocol shall be suspended until a plan for the reduction of armaments has been adopted by the Conference.
"With a view to the summoning of the latter, the Council, taking into account the undertakings contained in articles 7 and 8 of the present Protocol, will prepare a general programme for the reduction of armaments which will be placed at the disposal of the Conference.
"If, within a period of (Transcriber's note: blank space in source) after the adoption of the plan for the reduction of armaments, that plan has not been carried out, the Council shall make a declaration to that effect; this declaration shall under the present Protocol be null and void.
"The grounds on which the Council may declare that the plan drawn up by the International Conference for the Reduction of Armaments has not been carried out, and that in consequence the present rendered null and void, shall be laid down by the Conference itself.
"A signatory State which, after the expiration of the period fixed above, fails to comply with the plan adopted by the Conference, shall not be admitted to benefit by the application of sanctions provided in the present Protocol."
120. The sub-committee adopted a proposal to add to the third paragraph "and communicated to Governments two months previously." In view of representations made by the Japanese Delegation, this was subsequently altered to "and communicated to Governments at the earliest possible date, and at the latest three months before the Conference meets."
121. The Swedish Delegation proposed that a clause should be added to the effect that "the present Protocol in no way effects obligations arising out of the Covenant." It was agreed that a clause to this effect could be either added or inserted as a separate article. The latter alternative was eventually adopted (see article 19 of the final Protocol).
122. After some discussion, the number of ratifications required in paragraph 2 of this article was finally fixed as now provided in the Protocol (see paragraph 4 of article 21 of the final Protocol).
(N. B.—The Joint Drafting Committee of the First and Third Committees made a final revise of the whole text, with a view to checking the wording of the various articles, their logical arrangement, &c. In the course of this work they removed paragraphs 3, 5, 6 and 7 of this article and incorporated them in the "ratification" article of the final Protocol—No. 21.)
123. Article 10.—The British Delegation proposed the suppression of the words "carrying out." It was decided to consult the First Committee on this point. (The words are omitted in the final Protocol.)
124. Article 11.—In view of the new text of article 9, it was decided to omit the second paragraph of this article.
125. This concluded the work of the sub-committee, and the text of the above articles of the Protocol were submitted to the Third Committee on the 22nd September.
Dr. Benes, as chairman and rapporteur of the sub-committee, made a general report on the sub-committee's work, and it was then agreed to discuss the articles seriatim.
126. On Article 4 a debate ensued on an objection raised by the Italian Delegation to the proposal that investigations should be carried out by the organisation to be set up by the International Conference. In the first place, they disliked the idea of a permanent organ of investigation—they considered that, if an investigation were necessary, this should be carried out by a special body appointed for the purpose if and when the occasion arose. In the second place, they suggested that it would be improper to anticipate, in the Protocol, any decision that the International Conference might take. The British Delegation explained that this proposal had been inserted in their draft merely as a matter of convenience: thinking that it would be necessary for the Conference to appoint some body to ensure that the decisions of the Conference were carried out, it had seemed to them that it would be only duplicating labour for any other body to be set up by the Council to carry out these special investigations. The Italian Delegation finally suggested that the text should run, "such enquiries and investigations shall be carried out with the utmost possible despatch, and the signatory States undertake to afford every facility for carrying them out." This was accepted, with the consequential amendment to the fourth paragraph, which should now begin: "If, as a result of these enquiries and investigations, any infraction," &c. The article thus adopted became article 7 of the final Protocol.
127. Articles 5 and 6 were adopted without modification, becoming articles 10 and 9 respectively of the final Protocol.
128. Article 7.—Owing to a change introduced by the First Committee in the text of article 5, in consequence of which it was no longer incumbent on the Council to make a declaration of aggression, it became necessary to alter the wording of the beginning of article 7. It was decided that this should run, "As soon as the Council has called upon the signatory States to apply sanctions against the aggressor State, in accordance with article 6, the obligations," &c.
129. In paragraph 2 the words "signatory States" were substituted for "Members of the League."
130. The article as a whole came in for some criticism, mainly from the Netherlands and Scandinavian Delegations. Certain remarks made by Dr. Benes in introducing the text to the Third Committee had caused misgivings to those Delegations, who wished to be assured that the obligations in this article did not go beyond those of article 16 of the Covenant. They observed, as had members of the sub-committee, that the distinction drawn in the Covenant between economic and financial sanctions on the one hand, and military, naval and aerial sanctions on the other, had disappeared from the present text, and they sought a clear declaration that no fresh obligations were incurred in regard to the latter category, and that each Member of the League retained the right to decide its own course of action. In the course of his reply Dr. Benes said, "the real application of the sanctions will always be within the province of the Government themselves, and true co-operation will always take place by direct contract between the Governments." The Danish Delegation were not entirely satisfied, and moved to alter the second paragraph so as to make it read, "co-operate loyally and effectively in the carrying out of the obligations provided for in article 16 of the Covenant." After consultation with the rapporteur, they abandoned this amendment, and declared themselves satisfied with the addition to paragraph 2 of the words, "in the degree which its geographical position and its particular situation as regards armaments allow." As thus amended, the article was adopted, and became article 11 of the final Protocol.
131. Article 7A was adopted without amendment, becoming article 12 of the final Protocol.
132. Article 8.—The change, referred to above, in the text of article 5, rendered necessary an alteration in the wording of the second paragraph of this article, which it was agreed should begin: "Furthermore, as soon as the Council has called upon the signatory States to apply sanctions, as provided," &c.
133. In the same paragraph it was decided to omit the words, "the whole or such part of," and make it read, "bring to the assistance of a particular State, which is the victim of aggression, their military, naval and air forces." With these modifications, the article was adopted, and became article 13 of the final Protocol.
134. Article 8A was adopted, and figures as article 15 in the final Protocol. It was suggested that an addition should be made to this article to the effect that "the Council shall alone be competent to declare that the application of sanctions shall cease and normal conditions be re-established." The Committee decided that this should be inserted as a separate article, and it appears in the final Protocol as article 14.
135. Articles 9 and 10 were adopted without modification, article 9 being embodied, as explained, in articles 17 and 21 of the final Protocol, and article 10 becoming article 20.
136. The text of an additional article (which became article 19 of the final Protocol) was also approved.
After the work of the First and Third Committees had been concluded, the reports of these Committees were submitted as a whole to the Assembly. The Assembly unanimously, with the assent of every Delegation represented at that time in the Assembly, approved the reports so presented them, and passed the resolutions, the text of which has already been published.[[3]]
We are,
Sir,
Your obedient servants,
ARTHUR HENDERSON.
PARMOOR.
GILBERT MURRAY.
CECIL J. B. HURST.
The Right. Hon.
J. RAMSAY MACDONALD, M. P.,
&c. &c. &c.
[[1]] Miscellaneous No. 13 (1924), Cmd. 2200.
[[2]] See Annex C, p. 156.
[[3]] See Annex D, p. 210.