The Geneva Protocol Part 14

It may be suggested that in the foregoing discussion I have omitted any thought of the possibility of war between the United States and j.a.pan; but I have kept that possibility in mind. Its theoretical possibilities, so far as they might exist by reason of the United States attacking j.a.pan have been considered above.

Let us consider the opposite possibility, an attack by j.a.pan on the United States.

Suppose, then, that j.a.pan attempted to raise before the League the question of the treatment of her nationals by the United States; there is no way in which such a question could be considered by the League except under the vague general clauses of Article 11 of the Covenant; all that the League could do, even in theory, would be to ask if the United States cared to discuss the matter; and the United States would presumably decline to take part in any such discussion. Further, it may be supposed that the United States would not have the slightest desire to commence a war in the matter as the United States is satisfied with the situation as it is--it is j.a.pan which is dissatisfied. The United States would merely refuse to discuss a question which it deemed domestic.

Suppose then that j.a.pan went to the length of declaring war on the United States for this cause. While immaterial from the point of view of the United States, I cannot see that such a war would violate the Covenant in its letter; of course it would {95} violate its spirit of peace; but I do not think there is any specific provision of the Covenant which, in terms, forbids it.

The Protocol in this regard goes farther in its language. The general covenant not to resort to war in Article 2 includes such a resort to war, not only against a signatory, but also against a State which "accepts all the obligations hereinafter set out"; in other words, against a sort of _ad hoc_ adherent to the Protocol (Article 16), but we may a.s.sume that these last words would not include the United States.

The preamble a.s.serts that a war of aggression const.i.tutes a violation of the solidarity of the members of the international community, and also an international crime. Article 10 of the Protocol says that every State which resorts to war in violation of the undertakings contained in the present Protocol is an aggressor; and in Article 8 the doc.u.ment goes to its greatest length, so far as non-Signatories are concerned, by saying that the signatory States undertake to abstain from any act which might const.i.tute a threat of aggression against another State. These last words "against another State" are the important words, because they include every State in the world, not only a Signatory. Furthermore, in that same Article 8 any Signatory can bring to the notice of the Council its view that "another State" is making preparations for war, which of course would include another Signatory.

So it is perhaps arguable that under the Protocol an attack by a Signatory against a State which is not a Signatory might be an aggression and that the sanctions of the Protocol might be brought into play in favor of the non-Signatory. If that view be correct, then, in the case supposed, namely, an attack by j.a.pan upon the United States, it would seem that, if the matter were brought before the Council by _any_ Signatory (as it undoubtedly would be) the Council _might_ declare j.a.pan to be an aggressor under the Protocol; and it would then become the duty of the other Signatories to apply against j.a.pan all the sanctions of the Protocol, at least unless the United States objected to such a course and preferred to go it alone.

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However, there is at least grave doubt as to all this. The provisions of Article 16 of the Protocol and of Article 17 of the Covenant rather indicate that a State which pays no attention to an invitation to become an _ad hoc_ Member or Signatory takes its chances as they exist _dehors_ the Covenant or the Protocol. I think myself that this is the better view. To suppose otherwise would be to suppose that States outside the League (or the Protocol) had all the advantages of States within, and none of the burdens or obligations, a difficult thing to envisage.

So, on the whole, I conclude that an attack by j.a.pan upon the United States because of a "domestic" or other question would permit the Members of the League, both under the Covenant and under the Protocol, to be interested onlookers and nothing more.

[1] _Supra_, p. 13.

[2] Longmans, Green & Co., 1917.

[3] A subsequent treaty between Denmark and the Princ.i.p.al Allied Powers confirmed the cession. A. J. I. L. Supplement 1923, Vol. XVII, p. 42.

[4] Article 16.

[5] The discussions in the a.s.sembly of Article 16 of the Covenant show that the word "nationals" is to be read as "residents."

[6] See Moore's Digest, Vol. VII, pp. 135-142.

[7] That is, in the sense that there would to some extent be known and applicable rules of conduct for all States.

[8] Innumerable questions of difficulty as to private contracts might be suggested; but I am thinking here of relations between States.

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CHAPTER XVI.

THE DISARMAMENT CONFERENCE.

Under Article 17 of the Protocol, a Disarmament Conference to which all States of the world are to be invited is to meet at Geneva on June 15th, 1925. It is made the duty of the Council to draw up a general programme for reduction and limitation of armaments to be laid before the Conference and to be communicated to the various Governments not later than March 15th, 1925. The provision to this effect says that the Council shall give due regard to the undertakings of the Protocol regarding sanctions, but the preparation of this general programme is in substantial accord with Article 8 of the Covenant.

The a.s.sembly adopted a quite elaborate resolution[1] regarding this Conference. This resolution makes seven or eight suggestions in general terms for the agenda of the Disarmament Conference. While the resolution was adopted, it was pointed out in the discussion that the Council has a perfectly free hand in the matter and that the requests of the a.s.sembly regarding the agenda were nothing more than requests.

There is perhaps no occasion to go over them in detail, but one or two points may be mentioned.

The matter of demilitarized zones figures in this a.s.sembly list. As such zones are specifically mentioned in Articles 9 and 10 of the Protocol there is no doubt that this is one of the questions that would be on the agenda. Another suggestion of the a.s.sembly for the agenda of the Conference is "the control and investigation of armaments in the contracting States." Such control and investigation were a part of the so-called American Plan,[2] and in view of the fact that the control and investigation of the armaments of the former enemy States are now before the League, there can be no doubt that this matter also would be on the agenda of the Disarmament Conference prepared by the Council.

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It was pointed out previously[3] that the date of the Disarmament Conference may be postponed. It now seems very likely that it will be.[4] Indeed, I feel that there was a little too much optimism at Geneva in fixing the date as early as June 15th, 1925, involving the completion of a programme by March 15th.

Of course, in getting up a programme of general disarmament, and an agenda for the Conference on Disarmament, it is true that the Council would have available the advice of the Permanent Military Commission and of the different bureaus of the Secretariat. Even so, the task of finishing these preparations in three or four months, getting them approved by the Council and also by at least the chief of the interested Governments, is one that seems to me to be very doubtful of accomplishment.

It is perhaps not generally understood what an amount of work and how great a number of questions are involved in such discussions as are proposed. There are something like twenty European Governments that are vitally interested. Some of these Governments have quite different points of view and all of them have their military, naval, air and chemical programmes in force and subject to the control of their own Parliaments.[4] The idea of a general reduction of armaments involves, at least provisionally, the recasting of the entire military system of Europe. It is complicated by numerous possibilities of regional agreements which in themselves would create new problems of complexity.

Furthermore, it is not generally recognized that a great deal of the work of such a Conference as this has to be done in advance. Doubtless no Conference in plenary session ever drew up a paper; no Legislature ever wrote a law. The utmost that any such body can do is to consider concrete proposals drawn up often by one individual, but certainly always by very small groups. I venture to say that ten lawyers could hardly draw a {99} deed without appointing a sub-committee. The success or failure of the Disarmament Conference will very largely depend on the care and judgment used in the preparations for its meeting.

We can look back on the Washington Conference and see the truth of some of these observations there. That Conference dealt with only a portion of the field of naval armaments, among only five powers, only three of which had any substantial naval force. The naval staffs of the countries particularly interested had to prepare in advance elaborate studies, and yet with all this the Conference lasted nearly three months. Certainly the task of a general conference on disarmament is very much greater than that of the Washington Conference was.

It took nearly four months to draw up the Treaty of Versailles, which is by far the most elaborate and complex international agreement ever written. In the circ.u.mstances this was a remarkably short time. The most serious detailed criticism that I have seen of the time involved suggests that it might have been two or three weeks less. It is to be remembered, however, that the Peace Conference worked at that time under a perfectly enormous pressure from all sides to complete its task, which, as a matter of fact, would never have been completed within anything like the time taken if the decisions had not finally been left to three or four men to take.

I need not dwell further on the difficulties of the details. Any one who reads the Disarmament Treaty drawn up at the Washington Conference will appreciate something of their nature; but, looking at the matter from the larger point of view, there is a question of real statesmanship involved. The possible field to be covered by a general conference on disarmament cannot perhaps be limited; but the extent to which the first discussion shall go will determine its success or failure. If it attempts to go too far, that will be fatal; if, on the other hand, the attempt is only to go a short distance now and to continue on the road further later on, the Conference may be a success, despite the fact that it will meet with the criticisms of those who want to do everything at once.

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The question of a permanent, or rather of a recurrent, Conference on Disarmament, as proposed by the so-called American Plan,[6] is one that is inevitably bound to come up at any such Conference, for whatever the Conference does or whatever it tries to do, it will have to leave much undone. Many questions will remain open, many changes of the future will not be foreseen, and those who meet in the Conference will see when they end their work that they have only begun it.

It is also to be noted again that the Conference is to fix the period within which the plan of reduction which it adopts is to be carried out. If within that time the plan is not carried out, the Council is to make a declaration rendering the Protocol null and void. The Conference is also to lay down the grounds on which the Council may make such a declaration.

In other words, the Protocol itself is to depend wholly upon the work of the Conference; it is to the Conference that the whole responsibility is transferred. If the Conference does not adopt the plan, and then if that plan is not carried out[7] within the time and on the conditions that the Conference declares, the Protocol falls.

Never, I venture to say, has any important treaty ever been drawn up depending upon a more impressive condition subsequent.

[1] See Annex D, p. 210 at p. 213, _et seq._

[2] Annex F, p. 263.

[3] p. 5.

[4] This was written before the meeting of the Council in Rome in December, 1924. The Disarmament Conference certainly cannot meet before 1926. The present situation of the preliminaries is stated in a note to the Resolution of the Council of October 3, 1924, _infra_, p.

215.

[5] For a statement of existing European armaments, see note to page 100.

[6] Annex F, p. 263.

[7] See the discussion as to this, _supra_, p. 7, showing that the "plan" will be another Treaty or Treaties and that the "carrying out"

probably means ratification thereof.

NOTE.--A statement of existing European Forces was made to Parliament on June 18, 1924 (Hansard, Parliamentary Debates [Commons], N. S., Vol.

174, page 2151). It gave the following figures: