"It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective naval, military or air force the Members of the League shall severally {77} contribute to the armed forces to be used to protect the covenants of the League."
Article 11, paragraphs 1 and 2 of the Protocol read as follows:
"As soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 of the present Protocol, the obligations of the said States, in regard to the sanctions of all kinds mentioned in paragraphs 1 and 2 of Article 16 of the Covenant, will immediately become operative in order that such sanctions may forthwith be employed against the aggressor.
"Those obligations shall be interpreted as obliging each of the signatory States to co-operate loyally and effectively in support of the Covenant of the League of Nations, and in resistance to any act of aggression, in the degree which its geographical position and its particular situation as regards armaments allow."
On its face, paragraph 2 of Article 11 of the Protocol merely interprets paragraph 2 of Article 16 of the Covenant; but unquestionably it greatly changes it. Under the provisions mentioned of the Covenant, the Council had merely the duty of recommendation as to forces to be contributed by Members of the League. Undoubtedly under Article 16 of the Covenant, paragraph 1, any Member of the League had the right, if it chose, to consider itself at war with an aggressor, but equally under that paragraph any Member of the League had the right, if it chose, not to consider itself at war with an aggressor. Consequently there was no duty whatever under that Article 16, not even a moral duty, in my judgment, on the part of any Member of the League to contribute any armed forces whatever. The Council had the duty (under Article 16, Paragraph 2, of the Covenant) of making a recommendation; but it was merely a recommendation, and there was no obligation of the Member of the League to which the recommendation applied; there was merely a possible privilege to the Member of the League to which the recommendation applied—and that is a very different thing.
Now, let us look at paragraph 2 of Article 11 of the Protocol, quoted above. Each signatory State is "to cooperate loyally and effectively" not only "in support of the Covenant," but "in resistance to any act of aggression." Well, certainly resistance to an act of aggression means force and this fact is not qualified but emphasized by the words: "in the degree which its geographical position and its situation as regards armaments allow." I grant that these words have a qualifying effect in some cases. They would mean, for example, that if Denmark had no army, she could not be under any obligation to use infantry. But they also refer to the other side of that picture, that the British do have a navy, that is their particular situation as regards armaments, a very particular situation; and under this Article, as I read it, the British would be bound "loyally and effectively" to cooperate in resistance to an act of aggression in the degree which their particular naval situation allowed.
Furthermore, paragraph 1 of Article 11 of the Protocol says that the "obligations * * * in regard to the sanctions of all kinds mentioned" not only in paragraph 1 but also in paragraph 2 of Article 16 of the Covenant "will immediately become operative." This indicates that there are military, naval and air sanctions to be employed and that the parties to the Protocol are under obligations to employ them.
Now, it is no answer to this to say that as to the extent of the armed forces to be used, the signatory State has its own discretion; and it is true that there would be no international command, there would be no turning over of the forces of one country to the General Staff of another or to an international Staff of all; however, even that did not take place during the first three years of the World War, except with specific detachments. So, for example, the British could say that they would send five destroyers or ten cruisers under their own Admiral, or the Grand Fleet if they chose; but clearly it would be bad faith for them to say with this commitment that they would not send even a gunboat.
I am entirely satisfied that these provisions greatly extend the provisions of the Covenant; for the first time[[6]] there is introduced in the League system a definite military commitment—definite in the sense that it is obligatory, and not in the sense that it is defined as to extent of force.[[7]]
It may be argued that the first paragraph of Article 13 of the Protocol looks somewhat the other way, but I do not think that it does. That paragraph merely provides that the parties to the Protocol, if they see fit, may give to the Council "undertakings"[[8]] as to the military forces which they would use in applying the sanctions of the document. There is no obligation to give any such undertaking; it is purely optional with each State. Doubtless if such an undertaking was given and accepted by the Council, the State giving it would at least not have to do anything more in the way of military action than provided in the undertaking; but as the giving of the undertaking is optional, the fact of its not having been given would not, in my opinion, limit or qualify the obligation "interpreted" in the second paragraph of Article 11 of the Protocol.