Chapter XXVI: Conclusion (1)

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.

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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.

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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.

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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 {212} 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."

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(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:

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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.

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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] {216} 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.

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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 {218} 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 {219} 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 {220} 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 {221} 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:--

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"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).

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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 {224} 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, {225} 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
{226}
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 {227} 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.

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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
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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.

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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 {231} 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.

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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 {233} 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.

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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.

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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.

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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:--