The Geneva Protocol Part 35

(_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 a.s.sembly 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 a.s.sembly 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 a.s.sembly 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 a.s.sembly 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 a.s.sembly 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 a.s.sembly pa.s.sed a resolution--the famous {218} Resolution 14--recognising that in existing circ.u.mstances 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 a.s.sistance, 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 a.s.sembly last year in the form of the Draft Treaty of Mutual a.s.sistance, which was referred by the a.s.sembly 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 a.s.sembly 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 a.s.sembly 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 a.s.sistance. 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 a.s.sistance 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 a.s.sembly 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 circ.u.mstances, 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 a.s.sembly 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 partic.i.p.ated 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 const.i.tuted their sole guarantee of safety.

9. In order to give effect to these ideas, a resolution was submitted to the a.s.sembly on the 6th September by the British and French delegations in the following terms:--

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"The a.s.sembly,

"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 a.s.sistance prepared in pursuance of Resolution 14 of the Third a.s.sembly, 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 a.s.sembly, which thus deputed the preparatory work to its First Committee (dealing with legal and const.i.tutional 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 a.s.sembly 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 circ.u.mstances 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 a.s.sembly 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 const.i.tuting 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."