Annex E. — Report of the British Delegates Relating to the Protocol… — The Geneva Protocol by David Hunter Miller

Annex E.

Report of the British Delegates Relating to the Protocol for the Peaceful Settlement of International Disputes

London, November 1, 1924.

Sir,

We have the honour to submit herewith a report on the proceedings at the Fifth Assembly of the League of Nations at Geneva this year in connection with the Draft Protocol for the Pacific Settlement of International Disputes.

I — Introduction

The First Assembly of the League of Nations in 1920 prepared to give effect to article 8 of the Covenant, the first two paragraphs of which read: “The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of International obligations. The Council.......... shall formulate plans for such reduction for the consideration and action of the several Governments.” That Assembly decided “to instruct a Temporary Commission to prepare reports and proposals for the reduction of armaments as provided for by article 8 of the Covenant.” In the following year the Second Assembly defined the task more clearly in a resolution instructing the Temporary Mixed Commission to make proposals for the reduction of armaments which, in order to secure precision, “should be in the form of a draft Treaty or other equally defined plan, to be presented to the Council, if possible, before the Assembly next year” (1922). In the course of the ensuing year the Temporary Mixed Commission was able to formulate certain principles which, in its opinion, might serve as a basis for the draft Treaty which it had been instructed to draw up. After discussion of these principles the Third Assembly passed a resolution—the famous Resolution 14—recognising that in existing circumstances many Governments would be unable to accept responsibility for a serious reduction of armaments unless they received in exchange a satisfactory guarantee of the safety of their country, and suggesting that such guarantee could be found in a defensive agreement binding them to provide immediate and effective assistance, in accordance with a pre-arranged plan, in the event of one of them being attacked. The Temporary Mixed Commission were instructed to prepare a draft Treaty on these lines. The result of their labours was submitted to the Fourth Assembly last year in the form of the Draft Treaty of Mutual Assistance, which was referred by the Assembly to the Governments for their observations.

2. Certain Governments accepted the draft Treaty in principle: very few intimated their readiness to adhere to its actual terms. His Majesty’s Government, in a note which has already been made public,1 explained the reasons which would render it impossible for them to subscribe to the Treaty.

3. When, therefore, the Fifth Assembly met on the 1st September of this year, the labours of four years, which had been devoted to the preparation of a scheme for giving effect to the obligation undertaken by all signatories in article 8 of the Covenant, had not succeeded in establishing agreement, and there seemed no prospect of making any further advance along the path which had hitherto been followed.

4. Some new direction would have to be given, and the presence in Geneva of the British and French Prime Ministers gave a special importance to the meeting.

5. It was realised that the problem was not merely to find a general scheme of disarmament and security, but that the particular question of French security was of immediate political importance, and would shortly require a solution. The question of “security” had already been raised in conversations between Mr. MacDonald and M. Herriot in July last, at Chequers and in Paris. During the latter meeting, the subject was discussed at some length, and the position as it was then left by the two Prime Ministers was set out in the Franco-British memorandum of the 9th July concerning the application of the Dawes plan. The relevant paragraph read as follows: “The two Governments have likewise proceeded to a preliminary exchange of views on the question of security. They are aware that public opinion requires pacification: they agree to co-operate in devising through the League of Nations or otherwise, as opportunity presents itself, means of securing this, and to continue the consideration of the question until the problem of general security can be finally solved.” In a declaration made in the Chamber on the 21st August, reporting on the results of the London Conference, M. Herriot said “security must be the object of another Conference. He did not see why France should not take the initiative.......... For the rest, the security question would be dealt with at Geneva.”

6. The debate in the League Assembly was opened by the British Prime Minister on the 4th September. Mr. Ramsay MacDonald began by explaining that it was not because they were indifferent to the problem of national security that His Majesty’s Government had given an adverse opinion on the Draft Treaty of Mutual Assistance. They believed that security could not be based on military alliances, and they hesitated to become involved in any agreements which committed them to vague and indefinite obligations. In this respect the Treaty of Mutual Assistance was open to criticism, especially in its article 3 and in its definition of aggression. Mr. Ramsay MacDonald emphasised that the main problem was the problem of national security in relation to national armaments, and the initial difficulty was encountered in the definition of such terms as “security” and “aggression.” In regard to the latter, he said, “the one method by which we can approximate to an accurate attribution of responsibility for aggression is arbitration,” and he proposed that the article of the Statute of the Permanent Court dealing with arbitration should be carefully examined by a Commission, with a view to its being placed before the Assembly in a somewhat more precise, expanded and definite form than it now had. Such a step would be necessary as a preliminary to the discussion of disarmament, which could produce no good result unless an atmosphere of confidence were previously created. To summon a Conference on disarmament without such a preparation of the ground would be to court immediate and disastrous failure. Such a Conference must be the ultimate aim, and it must include all the nations and must be held in Europe. In his view the Covenant already contained ample provisions for starting arbitration, for the sanctions that were necessary and for all other eventualities that might arise: what was now required was that the Covenant should be elaborated. “The British Government thinks that the matter should now be explored, beginning with the Covenant, applying the Covenant to our present circumstances, and, in the spirit of the League of Nations, developing a policy that will give security and reduce armaments. The British Government stands by the Covenant. The British Government has no wish to reduce the authority of the Council. It rather wishes to extend the authority of the Council consistently with the continued existence and prosperity of the League. Articles 10, 12, 13, 15 and 16 of the Covenant might well form themselves into a charter of peace if we would only apply them and fill them out.”

7. Speaking on the following day, the French Prime Minister expressed a similar view: “It is in the development and the fullest possible application of the articles of this solemn instrument (the Covenant) that France seeks for the rules which are to guide her future action and her foreign policy.” M. Herriot welcomed Mr. Ramsay MacDonald’s suggestion that arbitration should be the test of aggression, and he expressed the hope that the Fifth Assembly would be able to accept the principle of arbitration, which would solve the difficulties, as henceforth the aggressor would be the party which refused arbitration. M. Herriot added: “Arbitration is essential, but it is not sufficient. It is a means, but not an end. It does not entirely fulfil the intentions of article 8 of the Covenant, which are security and disarmament. We in France regard three terms—arbitration, security and disarmament—as inseparable.” A nation which accepted arbitration had a right to security. “Justice without might is impotent. Might without justice is tyranny.” In conclusion: “We stand by the Covenant, but we wish to make it a living Covenant. We simply claim for each nation the rights conferred upon it by the Covenant, no more and no less.”

8. It is unnecessary to indicate in detail the views expressed by other speakers who participated in this opening debate, from which it was evident that there was general agreement on a number of points:—

(a.) That as a preliminary to disarmament there must be provided an inclusive scheme for the pacific settlement of international disputes of all kinds.

(b.) That the Covenant of the League itself provided the basis of such a scheme, but that it required elaboration, precision and extension in certain directions.

(c.) That to give effect to such a scheme States should develop the principle of compulsory arbitration.

(d.) That a State, having accepted this principle, would, if it resorted to force in disregard of its obligation to submit to arbitration, be automatically declared an aggressor, and outlawed.

(e.) That some form of co-operation must be devised for effective resistance to aggression, both as a deterrent to any possible aggressor and as a guarantee of security to all States enabling them to contemplate a reduction of their own armed forces, which at present constituted their sole guarantee of safety.

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

“The Assembly,

“Noting the declarations of the Governments represented, observes with satisfaction that they contain the basis of an understanding tending to establish a secure peace,

“Decides as follows:—

“With a view to reconciling in the new proposals the divergencies between certain points of view which have been expressed, and when agreement has been reached, to enable an international conference upon armaments to be summoned by the League of Nations at the earliest possible moment—

“(1.) The Third Committee is requested to consider the material dealing with security and reduction of armaments, particularly the observations of the Governments on the draft Treaty of Mutual Assistance prepared in pursuance of Resolution 14 of the Third Assembly, and other plans prepared and presented to the Secretary-General since the publication of the draft Treaty, and to examine the obligations contained in the Covenant of the League in relation to the guarantees of security which a resort to arbitration and a reduction of armaments may require;

“(2.) The First Committee is requested—

“(a.) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;

“(b.) To examine within what limits the terms of article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice might be rendered more precise, and thereby facilitate the more general acceptance of the clause;

“And thus strengthen the solidarity and the security of the nations of the world by settling, by pacific means, all disputes which may arise between States.”

10. This resolution was carried unanimously by the Assembly, which thus deputed the preparatory work to its First Committee (dealing with legal and constitutional questions) and its Third Committee (dealing with reduction of armaments).

11. It will be more convenient at once to consider the final results of the labours of the two Committees, leaving for the moment any detailed account of the progress of their work, in order to see how the draft Protocol which they submitted to the Full Assembly on the 1st October gave effect to the ideas which had been proclaimed in the course of the earlier debate.

12. In the first place it was necessary to complete the scheme of arbitration and conciliation provided in the Covenant. The Covenant itself did not provide for every eventuality, and by failing to offer pacific means of settlement of all disputes, it left open, or seemed to leave open, in certain circumstances resort to force. Especially was this so in article 12 of the Covenant, whereby the Members of the League agreed “in no case to resort to war until three months after the award by the arbitrators or the report by the Council.” Further, paragraph 7 of article 15 of the Covenant laid down that “if the Council fails to reach a report which is unanimously agreed to by the Members thereof, other than the representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice.” Under article 2 of the Protocol “the signatory States agree in no case to resort to war either with one another or against a State which, if the occasion arises, accepts all the obligations hereinafter set out, except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly of the League of Nations in accordance with the provisions of the Covenant and of the present Protocol.” The signatory States having agreed in no case to resort to war, the Protocol proceeds to prohibit the arbitrament of force and to provide a complete system for the pacific settlement of disputes. As regards cases covered by paragraph 2 of article 36 of the statute of the Permanent Court of International Justice, the signatory States bind themselves to recognize as obligatory the jurisdiction of that Court, “but without prejudice to the right of any State, when acceding to the special Protocol provided for in the said article and opened for signature on the 16th December, 1920, to make reservations compatible with the said clause” (article 3). As regards other subjects of dispute, the Protocol provides a procedure (article 4) which supplements and completes that defined in article 15 of the Covenant. Briefly, under this procedure, if the Council is at the outset unable to effect a settlement, it persuades the parties to submit to arbitration. If neither party should be willing to go to arbitration, the Council again takes the matter into consideration: If it reaches a unanimous decision, the parties are bound to accept that decision: if it fails to achieve unanimity, the Council itself refers to arbitrators, whose award is final and binding on the parties to the dispute.

13. Thus for every dispute that may arise there is a procedure of pacific settlement, and provision has been made in the Protocol for meeting points (a), (b) and (c) in paragraph 8 above.

14. The establishment of a complete and comprehensive system for the pacific settlement of all disputes that might arise rendered it easier to approach the problem of the definition of “aggression.” As the Prime Minister had said, “the one method by which we can approximate to an accurate attribution of responsibility for aggression is arbitration.” In other words, any State which refused to avail itself of the means at hand for a peaceful settlement of a dispute, or which refused to accept the award given by the arbitral body or bodies now provided, and proceeded to an act of war, would brand itself as the aggressor. This principle is embodied in article 10 of the Protocol, which thus gives effect to the idea indicated in paragraph 8 (d) above. The definition of aggression is extended by articles 7 and 8 of the Protocol to apply to military measures taken before or during proceedings for a pacific settlement, and to acts constituting a threat of aggression against another State.

15. The point raised in paragraph 8 (e) above is dealt with in article 11 of the Protocol. Directly aggression takes place, the Council calls upon the signatory States to apply sanctions against the aggressor (article 10). As soon as the Council has thus called upon the signatory States, “the obligations of the said States, in regard to the sanctions of all kinds mentioned in paragraphs 1 and 2 of article 16 of the Covenant, will immediately become operative in order that such sanctions may forthwith be employed against the aggressor. Those obligations shall be interpreted as obliging each of the signatory States to co-operate loyally and effectively in support of the Covenant of the League of Nations, and in resistance to any act of aggression, in the degree which its geographical position and its particular situation as regards armaments allow.” Article 12 of the Protocol provides for the establishment of plans for putting into effect economic and financial sanctions, and article 13, “in view of the contingent military, naval and air sanctions provided for by article 16 of the Covenant,” empowers the Council “to receive undertakings from States determining in advance the military, naval and air forces which they would be able to bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.”

16. Article 11—the “sanctions” article—has been more closely scrutinized and has been the subject of more criticism than any other article of the draft Protocol, and a hasty examination of it by some critics has led them to object that it goes beyond article 16 of the Covenant and imposes fresh obligations on the signatory States. In reply to such critics, it may be best to quote the words used by the British delegate in his speech to the Third Committee on the 22nd September:—

“It cannot be too strongly emphasized that everything in this article is already stated or implied in article 16 of the Covenant. We are remaining within the terms of the Covenant and we are undertaking no new obligations.......... Surely loyal and effective co-operation in support of the Covenant is what may confidently be expected from every Member of the League of Nations.......... The extent of the co-operation must depend on the actual circumstances not only as regards the aggression but also as regards the geographical position and the resources of all kinds of individual States. It would be no use to bind oneself to do a variety of things which may not be required. We must and we can rely on the good faith of the Members of the League to decide themselves how their effective co-operation can best be given if and when the necessity arises.”

17. In order to complete the fulfilment of the task assigned to the committees by the Assembly’s resolution of the 6th September, the Protocol finally provides (article 17) for the summoning in June next year of an International Conference for the reduction of armaments, to meet in Geneva and to include representatives of all states whether Members of the League or not. M. Herriot first, and other speakers after him, had emphasised the interdependence of the three great problems of arbitration, security and disarmament, and the framers of the Protocol, bearing this in mind, have been careful to preserve this interdependence in the document itself. Thus if sufficient ratifications of the Protocol have not been received by a certain date, the Conference on Disarmament is to be postponed. In any case, the Protocol does not come into force until that Conference shall have adopted a plan for the reduction of armaments. And if within a further period, that plan has not been carried out, the Protocol becomes null and void.

18. The above brief summary indicates how in the Protocol the committees of the Assembly have sought to embody, in concrete form, the proposals made to the Assembly itself by the British and French Prime Ministers. The Protocol is an attempt to complete the Covenant, to facilitate and develop the procedure of pacific settlement provided therein, and to define more clearly the obligations imposed by it on States Members of the League. The Protocol is based on the Covenant and keeps within its terms except in so far that it extends the Covenant procedure to give an alternative procedure by peaceful settlement, even in those cases for which the framers of the Covenant in 1919 were unable to find a remedy. So far as it contains anything new, it is to be found in the definition of aggression which follows as a necessary corollary to the limitations inserted in the establishment of a universal system of peaceful settlement. But even here the principle is not new. Article 16 of the Covenant decreed that sanctions should be applied against any Member of the League that might “resort to war in disregard of its Covenants under articles 12, 13 or 15.” Article 10 of the Protocol decrees sanctions against any State resorting to war without availing itself or in defiance of, the procedure of pacific settlement provided in the Covenant as amplified by the Protocol itself. The amplification of that procedure to cover all cases, so as to remove all excuse for resort to war, has enabled the framers of the Protocol to give a more exact definition of aggression, and to make that definition more certain and more automatic. The Protocol is thus free from the reproach that had been levelled against the Draft Treaty of Mutual Assistance, which left a wide and dangerous discretion to the Council in determining which party to a dispute was the aggressor. It further discards the system proposed in the draft Treaty, whereby power was given to the Council to decide on and to direct the military sanctions required. The draft Treaty tended towards the realisation of the idea of the League as a “super-State”: the Protocol respects the principle of national sovereignty. Every State retains its own liberty of action: it is still free to choose what it will do. The Protocol has stated in clearer terms what is expected of those who signed the Covenant in 1919, and it is to be hoped that this more explicit declaration may serve to deter those who would contemplate a violation of the spirit of the Covenant, whilst reassuring those who have hitherto sought safety in their own armed strength, by giving them confidence in the solidarity of the civilised nations and in their determination to resist all unscrupulous attempts to plunge the world again into the disaster of war.

19. It remains only to say a few words as to the actual procedure adopted by the Assembly for putting into effect the scheme thus elaborated. It was generally agreed that mere resolutions of the Assembly would not give sufficient assurance of progress. The famous Resolution 14 of the Third Assembly had been discussed and debated and had seemed to lead to an impasse with the rejection of the Treaty of Mutual Assistance. The Prime Minister, in his speech to the Assembly, had said: “Let us see to it that even before we rise, before the Assembly breaks up, some substantial progress shall be made in co-ordinating these ideas and in producing from their apparent diversities some measure of agreement and consent.” It was therefore decided that the scheme should be embodied in the form of a Protocol, ready for signature, and that the Assembly should pass a resolution endorsing the principles contained therein, recommending the Protocol to the Governments for their acceptance, and directing that it should be opened immediately for signature. The terms of this Resolution, which was carried unanimously, have already been published.

20. The Protocol itself was signed in Geneva by Delegates of the Governments of Albania, Bulgaria, Esthonia, France, Greece, Latvia, Poland, Portugal, the Serb-Croat-Slovene State and Czechoslovakia. The Delegate of France at the same time signed on behalf of his Government the special Protocol opened for signature in virtue of article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, making the following declaration:—

“I hereby declare that, subject to ratification, the French Government gives its adhesion to the optional clause of article 36, paragraph 2, of the Statute of the Court, on the condition of reciprocity, for a period of fifteen years, with power of denunciation, should the Protocol of Arbitration, Security and the Reduction of Armaments, signed this day, lapse, and further, subject to the observations made at the First Committee of the Fifth Assembly, according to the terms of which ‘one of the parties to the dispute may bring the said dispute before the Council of the League of Nations for the purposes of the pacific settlement laid down in paragraph 3 of article 15 of the Covenant, and during such proceedings neither party may take proceedings against the other in the Court.’”

21. Having briefly summarized the discussion which gave rise to the elaboration of the draft Protocol, and having examined in what way that instrument embodies the ideas expressed in that discussion, it may be of interest to review summarily the progress of the work of the two Committees of the Assembly that were charged with the drafting of the scheme, and to show how the various articles were evolved.

22. It will be seen from the terms of the resolution of the 6th September that the scheme of “arbitration, security and disarmament,” though forming one indivisible whole, would require the deliberation of two of the regular Committees of the Assembly. The First Committee, dealing with the legal questions, would have to develop the principle of arbitration, while the Third Committee, dealing with the reduction of armaments, would have to consider the problems of security and disarmament.

23. It was realised that the work would overlap at many points, and the two Committees kept in constant touch throughout, the result of their labours being finally co-ordinated by a joint drafting sub-Committee.

24. During the whole period of discussion the British Delegation kept in close touch with the Dominion and Indian Delegations, who were consulted on all points of difficulty, and who were given every opportunity of expressing their views. This was done, not only by means of private consultation, but also at fourteen formal meetings of the Delegations.

25. In the following sections an attempt is made to trace the evolution of the Protocol through its various stages in the First and Third Committees.

II — Work of the First Committee

26. The first plenary meeting of the First Committee was held on the 2nd September, when Sir Littleton Groom (Australia) was elected Chairman, and M. Limburg (Netherlands) Vice-Chairman. Sir C. Hurst represented the British Empire.

27. On the 9th September the Committee began its deliberations on the Assembly resolution of the 6th September regarding arbitration, security and disarmament. The Assembly, by this resolution, instructed the First Committee:—

“(a.) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;

“and thus strengthen the solidarity and security of the nations of the world by settling by pacific means all disputes which may arise between States.”

28. The British Delegation commenced their labours by considering the second of these two tasks, as it was a British suggestion emanating from the Prime Minister himself. The question of the acceptance by His Majesty’s Government of the principle of compulsory arbitration for legal disputes, as provided in the optional clause referred to in article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice, had been examined in London before the meeting of the Assembly. This examination had shown so clearly the difficulties which might arise in connection with disputes with neutral Powers arising out of British naval action in time of war, that the limitation of the acceptance by his Majesty’s Government of the optional clause by the exclusion of disputes arising out of British belligerent action at sea was suggested. To achieve this it was proposed that His Majesty’s Government should make a reservation as to disputes arising out of action taken in conformity with the Covenant, or at the request, or with the approval, of the Council of the League.

29. The suggestion was accepted by the British Delegation. As however, the question was clearly one which affected the Empire as a whole, the Dominion and Indian Delegations were especially consulted in regard to it. The position as it appeared to the British Delegation was fully explained to them, and it was understood that they would telegraph to their respective Governments, making clear the nature of the reservation proposed.

30. The general discussion by the First Committee of the subject of the acceptance of the compulsory jurisdiction of the Permanent Court of International Justice took place at the third plenary meeting on the 11th September. The British Delegate reminded the Committee that the views of His Majesty’s Government had already been explained in the Assembly in regard to the optional clause. The Prime Minister had then stated that the British Government wished to sign a clause of this kind, subject to its being clearly drafted. The British Delegate proceeded to discuss the position of the British Empire supposing that it accepted the compulsory jurisdiction of the Court, and was then forced, in support of the Covenant, to go to war at sea. Sea warfare, he said, inevitably brought a belligerent into sharp conflict with the nationals of foreign Powers carrying on trade with the enemy State. The British Empire might therefore find itself forced to support before the International Court the legality of action taken at the request of the League itself. The British Delegation therefore asked the Committee to consider whether it would be possible, either by amendment of article 36, paragraph 2, of the Statute of the Court or by the admission of a reservation acceptable to other Members of the League, to exclude from the acceptance of that clause disputes which arose out of action taken, either in accordance with the Covenant, or at the request, or with the sanction, of the Council of the League.

31. The French Delegation were content with the idea of such a reservation, and both the Belgian and Brazilian Delegations stated that they had no objection to it. The delegate of Brazil, however, said he would prefer to proceed by way of a reservation rather than by any modification of the text. Though the representatives of the Netherlands and of Sweden were slightly more critical, it became apparent that no real objection would be raised to the British reservation.

32. The Belgian Delegate suggested even going further still and excluding, when accepting the optional clause, the whole of sub-heading (b), which relates to questions of international law. The effect of this would be to exclude all questions of international law where that law has not yet been codified, as where it has been codified the dispute becomes one of the interpretation of a Treaty. This, the British Delegation thought, would be going too far. It would deprive the International Court of the power to build up a case law in the international field. It would, moreover, have gone further than the Delegation felt necessary, because it was only in the field of established international law, where there are two distinct schools of thought—the continental and the Anglo-Saxon—that the difficulties referred to by the British Delegate would arise.

33. As regards the question of amendments to the Covenant, the French representative did not, during the general discussion in a plenary meeting of the First Committee, specify the nature of the amendments suggested by the French Delegation. He contented himself with drawing attention to three points. The first was the last sentence of article 13 of the Covenant, which provides that in the event of any failure to carry out an arbitration award, the Council shall propose what steps shall be taken to give effect thereto. This the French Delegation regarded as inadequate. The second was the provision of article 15 by which, if the Council cannot reach a unanimous decision, the parties to a dispute which is submitted to the Council recover their liberty of action. Here, he said, was a gap in the Covenant which must be filled. Was the position to be perpetuated, he asked, by which any one member of the Council could completely prevent a peaceful settlement of a dispute? The third was paragraph 8 of article 15, which provides that in matters within the domestic jurisdiction of a State the Council can make no recommendation. The French Delegation asked the Committee to consider whether it would not be possible to discover a method of friendly conciliation over matters relating to domestic jurisdiction.

34. After the general discussion had been declared closed, the First Committee adjourned for a week and entrusted to a sub-committee, known as the Fifth Sub-Committee, the task of formulating concrete proposals. The work done by this sub-committee was of such importance that it is considered desirable to indicate its composition, which was as follows:

Mr. Adatci (Japan).
Count Albert Apponyi (Hungary).
M. Loucheur (France).
Mr. John O’Byrne (Irish Free State).
M. Erich (Finland).
M. Raul Fernandez (Brazil).
Sir Cecil Hurst (British Empire).
M. Nicolas Politis (Greece).
M. Rolin (Belgium).
M. Vittorio Scialoja (Italy).
M. Nicolas Titulesco (Roumania).
M. Torriente (Cuba).
M. Limburg (Netherlands).
M. Unden (Sweden).

35. The discussion was taken up on the 12th September in the sub-committee on the lines of the general debate in the full Committee. The meetings were not open to the public. As regards the proposed British reservation to the acceptance of the obligatory jurisdiction of the Permanent Court of International Justice, by signing the optional clause in the Statute of the Court, some opposition developed at first from two quarters. Subsequently, however, it waned and did not reappear.

36. As regards the extension of the principle of arbitration by amendments to the Covenant, it at once became clear that there were many conflicting views as to the best system to adopt. The days were spent mainly in ascertaining, inside and outside the sub-committee, the extent and the nature of the different points of view.

37. The work on which the sub-committee was engaged was intimately related to the questions of security and disarmament with which the Third Committee was dealing. On the 16th September, Dr. Benes, chairman of the sub-committee of the Third Committee, who had been in close touch with the British and French Delegations, produced a draft Protocol covering the whole ground, in which he had attempted to reconcile opposing points of view and which was intended to serve as a basis for discussion. Articles 1, 2, 3 and 5 of this draft Protocol concerned the First Committee and were referred to the sub-committee. They may be summarised as follows:—

38. Article 1.—The signatories recognise the jurisdiction of the Permanent Court of International Justice as compulsory, “subject to the following reserves”:—

39. Article 2.—The signatories undertake to submit all disputes, not covered by articles 12, 13 and 15 of the Covenant, to the Council of the League, subject to an express reserve as to the right given exclusively to the Assembly in article 19 of the Covenant, whereby the Assembly alone is entitled to advise the reconsideration of existing treaties. The Council in such cases to act as an arbitration tribunal and to decide by a majority vote. Pending an examination of the dispute the Council may, by a majority, define measures to be taken by the parties to avert or put an end to armed conflict. Similarly, the Council may, in case of imminent danger, call upon the parties to discontinue any measure likely to cause the dispute to become more acute.

40. Article 3.—The procedure laid down in article 2 to apply to the Permanent Court in cases concerning the competence of that Court.

41. Article 5.—Any signatory which does not submit its disputes to the methods of pacific settlement indicated above, or which does not comply with the provisional measures referred to in article 2, or which does not carry out an award of a duly qualified arbitral body, shall, if these acts of non-compliance are likely to disturb the peace of the world, be declared to be an aggressor and outlawed, the declaration to be made by the Permanent Court or by the Council acting, if need be, by a majority. When this declaration has been made, the Council is to call on Members of the League to put into operation the sanctions contained in article 7.

42. Consideration of these proposals and of those contained in two other schemes submitted led to long discussions in the Committee. These discussions served mainly to bring into relief the different schools of thought. One favoured the widest possible extension of the jurisdiction of the Permanent Court, even into the field of disputes of a political nature; the other held that the Court’s jurisdiction should be rigidly limited to disputes of a legal character, while a far-reaching system of arbitration should be established to deal with political disputes. Strong disinclination was shown towards any increase in the existing powers of the Council. On the other hand, it was made clear that no decrease of those powers would be tolerated. On one side it was urged that the Council, when acting as an arbitral body, should make its decisions by a majority vote; on the other, strong exception was taken to any departure from the unanimity rule. As regards the application of sanctions, one group held that mere refusal to arbitrate or failure to carry out an award should justify their application. Another contended equally strongly that sanctions should only be applied when such refusal or failure was accompanied by a resort to war. The extent to which war was legitimate under the Covenant in cases relating to domestic jurisdiction was very fully discussed. The net result was a unanimous agreement to leave paragraph 8 of article 15 untouched.

43. As regards the filling of the gap in article 15 of the Covenant, little progress was made. On the 19th September, therefore, the British representative submitted a scheme to the sub-committee, in which he had endeavoured to meet the differences of opinion which had been expressed. This scheme provided for the acceptance as compulsory of the jurisdiction of the Permanent Court in the cases covered by article 36, paragraph 2, of the Statute of the Court, with such reserves as may be consistent therewith. Its main object was, however, the amendment of the Covenant on the lines of the following text:—

“The undersigned will support the introduction of amendments to article 15 of the Covenant for the purpose of amplifying paragraphs 4, 5, 6 and 7 of that article on the following lines:—

“If the dispute submitted to the Council is not settled by it as provided in paragraph 3, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.

“If the parties cannot agree to do so, the Council shall again take the dispute under consideration, and, if it reaches a report which is unanimously agreed to by the Members thereof other than the representatives of the parties to the dispute, the Members of the League agree to accept the recommendations contained in the report.

“If the Council fails to reach a report which is concurred in by all the members other than the representatives of the parties to the dispute, and if the parties are still unable to agree to refer the dispute to arbitration, the Council is empowered to refer the dispute to arbitration on their behalf. One-half of the members of the tribunal, excluding the president, shall be appointed by the Council, after consultation with one party to the dispute, and the other half after consultation with the other party to the dispute. The president shall be appointed by the Council after consultation with the Permanent Court of International Justice if in session, or, if not in session, with the members of its chamber of summary jurisdiction.

“The Members of the League agree that they will comply with the recommendations contained in any award of the Arbitration Tribunal set up by the Council as above.

“In the event of any failure to comply with the recommendations of a report concurred in by all the Members of the Council other than the parties to the dispute or in any award of an arbitration tribunal set up by the Council as above, the Council shall exert all its influence to secure compliance therewith. If such failure to carry out the recommendations is accompanied by any resort to war, the sanctions provided for in article 16, interpreted as provided in this Protocol, shall be applied.”

44. The British Delegate explained that the willingness of Governments to amend the Covenant must be clearly expressed in the Protocol. In no other way could the danger of creating within the League an inner ring of Powers, bound towards each other by ties and obligations more close than those binding the ordinary members of the League, be avoided. The drafting of amendments to the Covenant was, however, a technical matter, and time was short. He therefore suggested that the Council should be asked to set up a committee of experts to draft the amendments to the Covenant contemplated by the Protocol.

45. These proposals provided the bases of articles 1, 3 and 4 of the Protocol and of paragraph 3 of the Assembly Resolution of the 2nd October. The bases of articles 2 and 5 had already been established. Article 10 was beginning to take shape in new drafts in substitution for Dr. Benes’s definition of an aggressor. On the 21st September these articles were provisionally adopted by the joint drafting committee of the First and Third Committees. At this stage, therefore, for the first time, the substance of a workable text on the subjects referred to the First Committee began to emerge from the shadow of discussion.

46. Throughout this period, however, the negotiations had been carried on entirely in the sub-committee in secret sessions. Although the closest possible touch had been kept by the British Delegation with the Dominion and Indian Delegations, the British representative felt himself to be in a position of great responsibility in carrying on the work in the sub-committee. He felt that a stage had been reached where a wider consultation was necessary, as, with the exception of the Attorney-General of the Irish Free State, who was unfortunately obliged to return to Ireland about this date, he was the only British member. He proposed, therefore, that the work of the sub-committee should be reported to the full Committee on which all the Dominion and Indian Delegations were represented. The full Committee thereupon met on the 24th September, and then and at further meetings held on the 25th, 26th, 27th and 28th September, the articles of the Protocol were fully discussed in public sessions. The articles of the Protocol under consideration thus took their shape in the sub-committee, they were then submitted to the Joint Drafting Committee representing the First and Third Committees, and were then finally approved after public discussions in Committee No. 1. Here, then, it will be convenient to deal with the purpose and evolution of each article separately.

The Preamble.

47. The draft of the Preamble, as revised by the Joint Drafting Committee of the First and Third Committees, was adopted at a plenary session of the First Committee on the 27th September. The Lithuanian Delegate made a reservation that the reference to territorial security in no way prejudiced existing disputes between States signing the Protocol. The Portuguese Delegate proposed an amendment to substitute for the word “territories” in the first sentence, the phrase “territories under the sovereignty of States.” The object was to make it clear that oversea territories under the sovereignty of a State were not excluded, but the British representative reminded the committee of the nature of the varied character of the territories of the British Empire, and said that if one class of oversea territories were mentioned, all must be mentioned. The amendment was rejected.

Article 1.

48. Article 1 was designed to ensure that the universality of the League should be maintained even if the Protocol comes into force. For a while there must no doubt be a dual régime. States signatory to the Protocol will be bound by its terms, and the régime of the Covenant will continue to exist and to be binding upon States members of the League. This will, however, not last, as the principal provisions of the Protocol will be transformed into amendments to the Covenant.

Article 2.

49. Article 2 was intended to make all aggressive war illegal. Exceptions were, however, made to safeguard (1) the right of a State to fight in self-defence, and (2) the position of a State acting in accordance with the provisions of the Covenant or the Protocol. A proposal, strongly urged, to substitute the words “resort to force” for the words “resort to war” was rejected.

Article 3.

50. Article 3 provides for the compulsory recognition of the jurisdiction of the Permanent Court. The Joint Drafting Committee proposed to remove this article from the Protocol, as certain Delegations felt it went beyond the Assembly Resolution. The British Empire Delegation feared that this might result in the separation of the three principles—arbitration, security and disarmament. At the suggestion of the British representative, therefore, the article was retained. As a result of the discussions on this matter, it was generally agreed that the power to make reservations to article 36 of the Permanent Court Statute was much wider than had been at first believed. It was understood that the proposed British reservation was within the limits admissible.

Article 4.

51. Article 4 was designed to extend the system of arbitration contained in the Covenant and to fill the existing gap in article 15 of the Covenant, by which the parties to a dispute recover their liberty of action and are entitled to resort to war if the Members of the Council are unable to agree upon a unanimous report. In the sub-committee a strong feeling manifested itself against unanimous decisions of the Council being binding in cases where one party to a dispute, but not both, desired arbitration. Certain of the smaller States, in particular, felt that such a system gave too much power to the Council, which was already regarded as a body which expressed only the will of the great Powers.

52. Paragraphs 2 (a) and (b) of article 4 were drafted to avoid this difficulty. Arbitration is to be compulsory at the request of one of the parties, and the Council is given power to appoint the arbitral body if the parties cannot agree as to its constitution. A unanimous decision of the Council is only to be binding where none of the parties ask for arbitration. If, therefore, any party wishes to avoid a decision by the Council, it has only to ask for arbitration. For similar reasons, the words “accepted by one of the parties” were added after the words “decision of the Council” in paragraph 5.

53. Discussions in the sub-committee revealed a divergence of view as to whether or not sanctions should be applied in the event of passive resistance to the award of the Arbitral Commission. It was finally agreed that the provision contained at the end of article 13 of the Covenant would be sufficient to meet a case of passive resistance and that the sanctions of article 16 should only be applied when such resistance was accompanied by a resort to war (vide paragraph 6 of article 4).

54. At the request of the British representative, paragraph 7 was added to ensure that reservations, similar to that which the British Delegation considered that it would be obliged to make if the British Empire accepted article 36 of the Statute of the Permanent Court, would also exist in the case of the new system of compulsory arbitration.

Article 5.

55. Article 5 was inserted as the result of a unanimous decision of the sub-committee to leave untouched paragraph 8 of article 15 of the Covenant, which safeguards the rights of States Members in regard to matters of domestic jurisdiction. The whole British Empire Delegation held the view that when the Arbitration Commissions were faced with such questions, they should be bound to refer them to the Permanent Court, and that the opinion of the Court should be binding. As the Permanent Court itself is bound to apply international law, and paragraph 8 of article 15 refers to questions which by international law are solely within the domestic jurisdiction of the State concerned, this provision ensures that a uniform rule will be applied by the Council, the Permanent Court and the arbitral bodies to be set up under the new system.

56. The last sentence of article 5 was added to meet certain difficulties raised by the Japanese Delegation. They pointed out that the second gap in the Covenant, referred to by the French Delegation during the general discussion, had not been filled. On the 24th September, they accordingly proposed an amendment to article 5, which appeared to have the effect of giving the Council power, in cases relating to domestic jurisdiction, to recommend the parties to adopt some solution which would ensure a pacific settlement of the dispute. After the discussion in the sub-committee, the Japanese Delegation modified this proposal and suggested that the following words be added as the final paragraph of article 5:—

“The above provisions do not prejudice the duty of the Council to endeavour to bring the parties to an agreement so as to ensure the maintenance of peace and a good understanding between nations.”

This proposal came up before the plenary session of the First Committee on the 25th September. The British Delegation asked for a postponement of the discussion. Immediate steps were taken to consult the Dominion and Indian Delegations, and in the subsequent negotiations the closest co-operation with them was maintained.

57. It transpired that the Japanese Delegation, if they failed to secure acceptance of this amendment to article 5, intended to press for the exclusion from article 10 of the sentence at the end of paragraph 2 (1), which included in the definition of an “aggressor” a State which resorted to war and disregarded a unanimous report of the Council or a judicial sentence or an arbitral award recognising that the dispute arose out of a matter within the domestic jurisdiction of the other State concerned. They pointed out that it was unjust that in such cases the League, while refusing pacific means of settlement to an injured State, should denounce that State as an aggressor if it took steps to defend its legitimate interests by force.

58. The possible effect of this alternative amendment was regarded by many Delegations with great concern. It would have suggested the legitimacy of a resort to war in connection with a dispute arising out of some domestic matter as to which the Council could give no help and make no recommendation for its solution.

59. In these circumstances the British Empire Delegation was agreed that the best course was to endeavour to find a solution by enlarging article 19 of the Protocol, so as to make it clear that the existing power of the Council, under article 11 of the Covenant, of endeavouring to achieve a pacific settlement in any case where the peace of the world was endangered, was not prejudiced by the provisions of the Protocol. Though the discussions of the matter remained very friendly in tone this proposal did not prove acceptable to the Japanese Delegation. Accordingly, when the amendment came before the plenary meeting of the First Committee on the 28th September, the Japanese Delegation withdrew their amendment to article 5 and proposed the amendment to article 10. At the suggestion of the French Delegate the question was referred back to the sub-committee.

60. Late on the 29th September the basis of solution was found. It was immediately submitted to the representatives of the Dominions and India, and was fully considered by them at two further meetings on the following day. After slight modifications the text of two amendments proved acceptable to the British Empire Delegation, and after being accepted by the Japanese and French Delegations, these amendments were adopted by the First Committee. They involved the addition to the last sentence of article 5 of the words “this decision shall not prevent consideration of the situation by the Council or the Assembly under article 11 of the Covenant,” and the addition at the end of paragraph 2 (1) of article 10 of the words “nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant.”

61. In the opinion of the British Empire Delegation these amendments conferred no new powers or functions on either the Council or the Assembly. They merely served to make clear the relationship between paragraph 8 of article 15 and article 11 of the Covenant. Article 11 of the Covenant only operates in time of war or threat of war, and it confers no right on the Council or the Assembly to impose a solution of a dispute without the consent of the parties. The Council or the Assembly may mediate and conciliate, but they cannot make recommendations which are binding under paragraph 6 of article 15 of the Covenant. When these amendments were adopted at the final plenary meeting of the First Committee on the 30th September, the British representative made a statement on the above lines. This interpretation proved generally acceptable, and it was agreed to incorporate it in the report to be submitted to the Assembly.

62. At the final plenary meeting of the First Committee the British representative drew attention to the difficulty in which many Delegations were placed, in that they had had no opportunity to consult their Governments in regard to these amendments. The Delegations of Australia and several other countries thereupon stated that, though they accepted the texts, they could not commit their Governments in any way.

Article 6.

63. Article 6. When the system of compulsory arbitration, contained in article 4, had been established, the British representative pointed out that under paragraphs 9 and 10 of article 15 of the Covenant a dispute might still be referred to the Assembly. Article 6 was therefore drafted to ensure that the provisions referring to the actions and powers of the Council should apply to the Assembly under the new system. After considerable discussion it was decided to reserve questions of procedure to the Council as being a more suitable body.

Article 10.

64. Article 10, which contains the definition of an aggressor, provided one of the most difficult tasks of the First Committee. By the 23rd September a number of drafts had been considered but no satisfactory text had been found. The original idea was that it should be the duty of the Council to determine the aggressor, but the question then arose as to whether, in making this decision, the Council should act unanimously or by majority vote. Adherence to the unanimity rule would have made it possible for one State to prevent a decision being reached. Procedure by a majority vote might have resulted in a State being obliged to apply sanctions against its own judgment. The only way out of this difficulty was to avoid a decision by the Council at all, and to make the test of aggression automatic, when once certain conditions had been found to obtain. This is achieved by establishing a presumption which is to hold good until the Council has made a unanimous decision to the contrary. If the presumption stands it is considered sufficient to justify the application of sanctions. Even then it was thought that there would have to be something in the nature of a “declaration of aggression” in order to initiate the enforcement of sanctions, and that this declaration would have to be made by unanimity. Objections were raised to this, but these objections were finally satisfied by the insertion of paragraph 3, according to which the Council, if it cannot at once determine the aggressor is bound, as a matter of course, to enjoin an armistice upon the belligerents.

65. The Japanese Delegation were opposed to any presumption of aggression arising against a state which was involved in a dispute covered by paragraph 8 of article 15 of the Covenant, and found as the result that, though it had submitted the dispute to the Council, the Council were unable to make any recommendations on the subject. To meet this view, the amendment previously referred to was made to article 5, and the words “nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant” were added to paragraph 2 (1) of article 10. In the opinion of the British Delegation, this amendment does not affect paragraph 3 of article 10. If a resort to war occurs, and the Council cannot determine the aggressor, it is still bound to impose an armistice upon the belligerents.

66. To the final paragraph of article 10 the words “and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent” were added at the suggestion of the British representative. This addition was made to safeguard the position of a State which, though no party to the dispute, joined in coercive measures to uphold the Covenant of the League and in so doing took forcible measures against the persons or the property of nationals of another State.

Article 16.

67. The relations between States signatory to the Protocol and States non-signatory and non-members of the League presented a problem the solution of which required great care. The various aspects of the question were thoroughly examined, and it was finally agreed that it would be sufficient to bring the principle contained in article 17 of the Covenant into harmony with the provisions of the Protocol. Sanctions can only be imposed on a State which is not a Member of the League if it refuses to accept the conditions and obligations of the Protocol when invited to do so, and resorts to war against a signatory State.

68. The question was raised of the relationship between States Members of the League signatory to the Protocol and non-signatory States Members. After careful examination, it was generally agreed that no special arrangement was necessary. The Members of the League are bound inter se by the Covenant and non-signatory Members are entitled, if they wish, to prefer the procedure laid down in the Covenant to the new procedure of the Protocol.

Article 18.

69. Article 18 was inserted to satisfy apprehensions which had been expressed in certain quarters. The British Delegation were not convinced of its necessity, but saw no reason to object to it.

Article 19.

70. Article 19 was inserted as a saving clause. It emphasises the intention to preserve the Covenant as the principal document governing the relations between States Members of the League. The relations between signatories and non-signatories to the Protocol are still to be governed by the Covenant. The Covenant is to stand, but it is to be enriched by the principal provisions of the Protocol. The amended Covenant is intended ultimately to take the place of the separate régime of the Protocol.

Resolution No. 1.

71. It had been originally suggested that the provisions of the Protocol should be embodied in the form of resolutions to be submitted for adoption by the Assembly. In view, however, of the fact that adoption of such resolutions by the Assembly might be held to commit the Governments there represented to the acceptance of its provisions, and in view of the difficulty which Delegations found in consulting their Governments, this proposal was found to be impracticable. It was thereupon decided that the Protocol should be drawn up as a separate instrument, and that its acceptance should be recommended by the Assembly to all States Members of the League.

72. The draft of a resolution on these lines, which had been drawn up by the British representative, was discussed by the First Committee on the 27th September. Paragraph 1 recommends the acceptance of the Protocol. Paragraph 2 provides that the Protocol shall be open immediately for signature for those representatives who were already in a position to sign. This was added in view of the fact that the French and several other Delegations had announced their intention to sign the Protocol before leaving Geneva. Paragraph 3 was inserted because it was felt that the drafting of amendments to the Covenant was too technical a matter to be done hastily.

73. The remaining paragraphs of the resolution relate to the proposed Disarmament Conference which was dealt with by the Third Committee. The resolution was unanimously adopted by the Assembly on the 2nd October.

Resolution No. 2.

74. This resolution recommends the acceptance of the obligatory jurisdiction of the Permanent Court of International Justice at The Hague by all Members of the League. The discussions regarding the special Protocol opened for signature in virtue of article 36, paragraph 2, of the Statute of the Permanent Court, had revealed that the power to make reservations was wider than had been at first thought. It was therefore decided that no new Protocol was required, but that the power to make reservations should be clearly recognised in the resolution of the Assembly.

M. Politis’s Report.

75. M. Politis’s draft report on the work of the First Committee was presented to the Committee on the 28th September, and the discussion upon it lasted all day. This draft, which was very ably drawn up, gave a remarkably clear and adequate account of the achievement of the First Committee.

76. Some criticism was made by the representative of Hungary and others of a tendency in the report to give peace a secondary position to that of justice in the predominating idea of arbitration. As a result, the offending passages were redrafted.

77. In its final form M. Politis’s report was incorporated in the general report submitted to the Fifth Assembly by the First and Third Committees. This general report 2 was adopted unanimously by the Assembly on the 2nd October, and it can thus be regarded as the official document containing the views of the Members of the League in regard to the interpretation of the Protocol.

III — Work of the Third Committee

78. The Third Committee began its deliberations on the Assembly resolution on arbitration, security and disarmament on the 9th September, under the presidency of M. Duca (Roumania) (subsequently replaced by M. Politis [Greece]), and the proceedings opened with a general discussion, which was continued until the 13th. Lord Parmoor and Mr. Henderson represented the British Empire.

79. After the method of procedure had been settled, a statement was made expressing the standpoint of the British Delegation on the questions of arbitration under the three heads of arbitration, court decisions and conciliation, and the views then expressed were maintained at the subsequent meetings. A short reference was made to the question of sanctions, but any detail was avoided in order to leave room for free discussion with the members of the French Delegation. The note of the British Government on the Draft Treaty of Mutual Assistance was referred to as expressing the final view and not requiring any further comment.

80. Most of the speakers devoted some time to a statement of the views of their Governments on the Draft Treaty of Mutual Assistance, against which the main objections urged were the uncertainty in regard to the definition of aggression, the too wide discretion and powers conferred upon the Council and the evils attendant on the system of “complementary agreements” sanctioned by the Treaty. The first defect might now be remedied by the extension of the system of arbitration, which would simplify the definition of aggression. As regards the “complementary agreements,” even those who recognized their harmful possibilities were compelled to admit that they could not be abolished or prevented, and that their power for evil might be lessened if they were controlled and brought within a general scheme of mutual assistance under the League.

81. All the speakers were in substance agreed that the Covenant itself afforded the best basis for any scheme of mutual assistance; that it needed only to be developed and carried to its logical conclusion in order that it might provide an adequate basis of security.

82. In summing up the debate the President observed that there appeared to be general agreement on the interdependence of the three problems of arbitration, security and disarmament, and on the point that a complete system could be evolved from the Covenant itself. Everyone was prepared to accept the principle of economic and financial sanctions, though some difference might exist on the subject of military sanctions. Little had been said about disarmament, which could only follow as a consequence of the solution of the twin problems of arbitration and security.

83. It was then agreed, on the morning of the 13th September, to appoint a sub-committee of representatives of twelve Delegations to formulate concrete proposals.

84. The sub-committee, known as the Fourth Sub-Committee of the Third Committee, was composed as follows:—

Lord Parmoor or Mr. Henderson (British Empire).
M. Paul-Boncour (France).
M. Schanzer (Italy).
M. Branting (Sweden).
M. Benes (Czechoslovakia).
M. Villegas (Chile).
M. Kalfov (Bulgaria).
M. Poullet (Belgium).
M. Titulesco (Roumania).
Mr. Matsuda (Japan).
M. Lange (Norway).
M. Skrzynski (Poland).

85. The sub-committee met for the first time on the afternoon of the 13th September, under the presidency of Dr. Benes. The first meeting was occupied by a discussion on procedure. In the first instance, it was proposed to appoint a drafting committee of three members to draw up proposals, keeping in close touch with a similar committee to be appointed by the First Committee, but this idea was subsequently abandoned, and the President was requested to draw up the outline of a scheme, to be submitted to the sub-committee, if possible, on the 15th September. This the President undertook to do, but he was only able to submit his proposals for the first time on the 16th September. The delay was due mainly to the necessity of consulting with representatives of the First Committee and with certain Delegations. In particular, meetings were held on the 15th September between representatives of the French and British Delegations who went carefully through the scheme and reached a preliminary agreement on a number of points of principle. This agreement greatly facilitated the eventual completion of the work.

86. These proposals were in the form of a draft Protocol, of which articles 1, 2, 3 and 5 concerned the First Committee, and have already been dealt with in the preceding section of this report. The remaining articles, as originally proposed, may be summarised as follows:—

87. Article 4.—The Council or the Permanent Court may appoint International Control Commissions, composed of civilian and military experts, to ensure that during the course of the arbitral procedure none of the parties makes preparations for economic or military mobilisation.

88. Article 6 recommends the establishment of demilitarised zones and their control, if desired, by the League of Nations.

89. Article 7.—As soon as the declaration of aggression has been made, the obligations of the signatories in regard to the sanctions of all kinds in article 16, paragraphs 1 and 2, of the Covenant will immediately become operative against the aggressor. These obligations to be interpreted as obliging each of the Members of the League to co-operate loyally and effectively in support of the Covenant of the League and in resistance to any act of aggression.

90. In accordance with article 16 of the Covenant the signatories undertake, individually or collectively, to come to the assistance of the State attacked or threatened, and to give each other mutual support by means of facilities and reciprocal exchanges as regards supplies of raw materials and food-stuffs of every kind, openings of credits, transports, transit, and for this purpose to ensure the safety of the land and sea communications of the attacked or threatened State.

91. If both parties to the dispute are declared aggressors according to the above provisions, the economic sanctions to be applied to both of them.

92. Article 7A.—The Council of the League of Nations to instruct the Economic and Financial Committees, Temporary Mixed Commission and Permanent Advisory Commission to draw up (1) plans of action for establishing the blockade of the aggressor State, and (2) plans of economic and financial co-operation between the State attacked and the different States assisting it.

93. Article 8.—The Council to be entitled to accept individual or collective undertakings entered into by States, determining in advance the military forces which they would immediately place at the Council’s disposal in order to carry out the measures decided upon, in accordance with the preceding articles.

94. When the aggressor has been designated, the signatories may, in accordance with undertakings previously entered into, place in the field the whole, or such proportion as they may consider necessary, of their military forces against the aggressor.

95. Article 8A.—In view of article 10 of the Covenant, the above sanctions must not include the violation of the political or territorial independence of the aggressor.

96. Article 9.—The signatories to take part as soon as possible in an International Conference for the Reduction of Armaments under the auspices of the League. The Council to draw up the programme for this Conference.

97. If, within a time limit of (Transcriber’s note: blank space in source) after the coming into force of the Protocol, the Conference has not met, or the scheme for the reduction of armaments drawn up by it has not been adopted and carried out, the Council may record the fact, and each signatory shall regain its freedom of action.

98. If, during the time limit specified above, a dispute arises, the provisions in the Protocol to be applicable in full.

99. Supplementary Clause (to be inserted in article 9).—The conditions in which the Council may declare that the scheme of the International Conference has not been carried out, shall be defined by the Conference itself.

100. Article 10.—Differences relating to the carrying out or interpretation of the Protocol to be submitted to the Permanent Court of International Justice.

101. Article 11.—The Protocol to be open for signature by all States, to be ratified, and the ratifications to be deposited with the League. The Protocol to come into force between the signatories ratifying it, as from the date of ratification.

102. The sub-committee held eight meetings in all, finishing its work on the 22nd September. The articles were not discussed in their numerical order, and a discussion of one article was often adjourned while the examination of another article was begun. As it is not attempted here to give a full summary of the discussions, it will perhaps be convenient to take the articles in order and show what modifications were introduced.

103. Article 4.—Objection was raised to this article, mainly on the ground that it gave the Council or the Permanent Court too wide powers of interference, and introduced the idea of a “super-State.” After consultation with other Delegations, the British Delegation produced an alternative draft which was adopted, and which was substantially embodied in the eventual Protocol itself (becoming article 7). The only essential difference between this draft and the eventual text was that the former provided, in paragraph 2, that the investigations should be carried out “by the organisation set up by the Conference for the Reduction of Armaments to ensure respect for the decisions of that Conference.

104. Article 6.—Words were inserted to the effect that demilitarised zones were recommended “as a means of avoiding violations of the present Protocol.” They were to be placed under the supervision of the Council at the request “and at the expense” of one or more of the conterminous States.

105. Article 7.—There was considerable discussion on the first paragraph, and some demand for a distinction to be drawn, as in the Covenant, between economic and financial sanctions on the one hand, and military sanctions on the other. It was, however, explained that the proposed definition of the aggressor had produced a clearer situation, in which there was no reason why the application of sanctions of all kinds under article 16 of the Covenant should not be justified. It was pointed out that the wording of this first paragraph was illogical. The “obligations” could not “become operative against an aggressor.” Accordingly, it was agreed to substitute the words “the obligations will immediately come into force in order that the sanctions provided may immediately become operative.” The paragraph was then passed with the above amendment.

106. Exception was taken to the words in the third paragraph “undertake individually or collectively to come to the assistance.” It might prove difficult to evolve collective plans, and it was agreed, on the proposal of the British Delegate, to substitute the words “give a joint and several undertaking to.”

107. In the same paragraph the use of the expression “to ensure the safety of the land and sea communications of the attacked or threatened State” was questioned in the first place, because it seemed that it might imply naval or military operations. In reply, it was pointed out that the words in the same sentence “for this purpose” showed that this paragraph related solely to economic and financial sanctions. In the second place the word “ensure” was objected to, on the score that to undertake to ensure communications might be to undertake an impossibility. Finally, the words “take measures to preserve the safety of communications” were substituted. It was further pointed out that these provisions were to be applied to protect an attacked or threatened State and that a similar distinction was expressly contained in the Covenant.

108. Article 7A.—The British Delegation desired a redraft of this article, taking exception in particular to sub-paragraph (1), in which the word “blockade” seemed to suggest belligerent naval action. They at first suggested omitting all words after “Council of the League of Nations” and substituting “shall, as soon as possible after the Protocol has been ratified, take steps to ascertain from each of the signatories what organisation or legislation is necessary to give effect to the economic and financial sanctions.” An alternative suggestion from another quarter was to substitute the words “putting into force the economic and financial sanctions against” for the words “establishing the blockade of” in sub-paragraph (1). It was agreed to combine both amendments—to adopt the British text above, and to begin a second paragraph with the words “When in possession of this information the Council shall draw up, through its competent organs: (1) plans of action for the application of the economic and financial sanctions of article 16 of the Covenant against an aggressor State,” &c.

109. Later, the British Delegation proposed to redraft the first paragraph in the form in which it finally appears in the Protocol (having become article 12), to delete the remainder, and to substitute “It shall communicate this report to the members of the League and to the other signatories.” The redraft of the first paragraph was accepted, but it was decided to allow the second paragraph to stand, as amended above.

110. Article 8.—The British Delegation had objections to raise against both paragraphs of this article. In the first paragraph they objected to the words “place at the Council’s disposal,” and the second paragraph they regarded as an attempt to revert to what was the operative principle of the Draft Treaty of Mutual Assistance.

111. They suggested as an alternative text:—

“Having regard to the fact that military sanctions are foreseen in article 16 of the Covenant, the Council may receive undertakings from States fixing in advance the military forces which they would be willing to employ against a Member of the League which was declared to be an aggressor.

“In view of the right of Members of the League to enter into such arrangements with the Council, no agreement shall in future be concluded between States Members of the League, providing for military action to be taken by them.”

112. It became evident that the sub-committee could not be induced to accept the second paragraph of this alternative text, and it was accordingly withdrawn. Exception was also taken to the words in the first paragraph, “against a Member of the League,” &c., and it was agreed to substitute the words, “to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.”

113. The French Delegation then proposed that the article should read:—

“In view of the contingent military, naval and air sanctions provided for in article 16 of the Covenant, and article 7 of the present Protocol, the Council shall be entitled to receive undertakings entered into by States determining in advance the military, naval and air forces which they would bring into action immediately to ensure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol.

“When the aggressor is designated, the signatory States may, moreover, place in the field, in accordance with agreements previously entered into, the whole or such part of their military, naval and air forces as they may consider necessary for the assistance of a State which shall have been the victim of aggression.

“The obligations of the second paragraph shall be duly registered and published by the League of Nations, and shall remain open for adherence by any State Member of the League which so desires.”

114. It was the right of States, as the matter then stood, to enter into special agreements with one another for determining in advance the military, naval and air forces which they would bring to the assistance of one another under the conditions indicated. Under the Protocol, these special agreements would only come into force when the Council had decided which State is the aggressor: they would simply provide means for applying rapidly the sanctions prescribed in the Covenant and the Protocol.

115. Before, however, agreeing to this text a statement was made on behalf of the British Delegation, expressing regret that the sub-committee had not seen its way to make the Protocol an instrument whereby the League would only act as a whole. It was, however, recognised that the last paragraph introduced an improvement, as, if separate agreements must exist, it would be better that they should be registered with the League. “But that does not alter the fact that you are making provision on the face of a new document for that which has been turned down in connection with the Draft Treaty of Mutual Assistance.” Further opposition to the draft article was not pressed, but the British Delegation made known their desire that words should be recorded expressing regret that the League was not to act as a whole, and to set its face “like flint against anything like the old balance of power by allowing these regional pacts to go on under this new instrument.” The above text was then adopted.

116. Article 8A.—The British Delegation proposed that the article should read: “Shall not affect the territorial integrity or political independence of the aggressor State.” This was agreed to, and it was also decided to prefix a paragraph relating to the costs of military, naval or air operations, similar to article 10 of the Draft Treaty of Mutual Assistance.

117. Article 9.—Objection was raised by the British Delegation to the last paragraph of article 9, and they moved that the following be substituted:—

“The provisions of the present Protocol in regard to arbitration and sanctions shall come into force when the scheme for the reduction of armaments, drawn up by the International Conference, has been effectively carried out in accordance with the conditions fixed by the Conference itself.”

118. The French Delegation maintained strongly that the Protocol must be brought into operation before the International Conference could meet. The British Delegation offered a compromise with the suggestion that their Government might sign the Protocol, and ask Parliament to approve it before the Conference met. But preparatory arrangements for the Conference should go on concurrently. Directly agreement was reached by the Conference, ratifications could ‘be deposited. As this failed to meet the views of the French Delegation, the British Delegation made a final proposal whereby endeavours should be made to secure ratification and deposit of ratifications before the Conference met, provided the Protocol itself contained a provision to the effect that it should only become operative when the International Conference reached a conclusion. The French Delegation indicated their willingness in principle to accept this, but wished to consider an actual text.

119. At the next meeting the Chairman submitted the following version:—

“The undersigned Members of the League of Nations undertake to participate in an International Conference for the Reduction of Armaments which shall be convened by the Council of the League and shall meet at Geneva on Monday, the 15th June, 1925. States not Members of the League of Nations shall be invited to this Conference.

“The ratifications of the present Protocol shall be deposited with the Secretariat of the League of Nations at the latest by the 1st May, 1925. If at least fifteen Members of the League, of which four are permanently represented on the Council, have not deposited their ratification by the 1st, May 1925, the Secretary-General of the League shall cancel the invitations.

“The entry into force of the present Protocol shall be suspended until a plan for the reduction of armaments has been adopted by the Conference.

“With a view to the summoning of the latter, the Council, taking into account the undertakings contained in articles 7 and 8 of the present Protocol, will prepare a general programme for the reduction of armaments which will be placed at the disposal of the Conference.

“If, within a period of (Transcriber’s note: blank space in source) after the adoption of the plan for the reduction of armaments, that plan has not been carried out, the Council shall make a declaration to that effect; this declaration shall under the present Protocol be null and void.

“The grounds on which the Council may declare that the plan drawn up by the International Conference for the Reduction of Armaments has not been carried out, and that in consequence the present rendered null and void, shall be laid down by the Conference itself.

“A signatory State which, after the expiration of the period fixed above, fails to comply with the plan adopted by the Conference, shall not be admitted to benefit by the application of sanctions provided in the present Protocol.”

120. The sub-committee adopted a proposal to add to the third paragraph “and communicated to Governments two months previously.” In view of representations made by the Japanese Delegation, this was subsequently altered to “and communicated to Governments at the earliest possible date, and at the latest three months before the Conference meets.”

121. The Swedish Delegation proposed that a clause should be added to the effect that “the present Protocol in no way effects obligations arising out of the Covenant.” It was agreed that a clause to this effect could be either added or inserted as a separate article. The latter alternative was eventually adopted (see article 19 of the final Protocol).

122. After some discussion, the number of ratifications required in paragraph 2 of this article was finally fixed as now provided in the Protocol (see paragraph 4 of article 21 of the final Protocol).

(N. B.—The Joint Drafting Committee of the First and Third Committees made a final revise of the whole text, with a view to checking the wording of the various articles, their logical arrangement, &c. In the course of this work they removed paragraphs 3, 5, 6 and 7 of this article and incorporated them in the “ratification” article of the final Protocol—No. 21.)

123. Article 10.—The British Delegation proposed the suppression of the words “carrying out.” It was decided to consult the First Committee on this point. (The words are omitted in the final Protocol.)

124. Article 11.—In view of the new text of article 9, it was decided to omit the second paragraph of this article.

125. This concluded the work of the sub-committee, and the text of the above articles of the Protocol were submitted to the Third Committee on the 22nd September.

Dr. Benes, as chairman and rapporteur of the sub-committee, made a general report on the sub-committee’s work, and it was then agreed to discuss the articles seriatim.

126. On Article 4 a debate ensued on an objection raised by the Italian Delegation to the proposal that investigations should be carried out by the organisation to be set up by the International Conference. In the first place, they disliked the idea of a permanent organ of investigation—they considered that, if an investigation were necessary, this should be carried out by a special body appointed for the purpose if and when the occasion arose. In the second place, they suggested that it would be improper to anticipate, in the Protocol, any decision that the International Conference might take. The British Delegation explained that this proposal had been inserted in their draft merely as a matter of convenience: thinking that it would be necessary for the Conference to appoint some body to ensure that the decisions of the Conference were carried out, it had seemed to them that it would be only duplicating labour for any other body to be set up by the Council to carry out these special investigations. The Italian Delegation finally suggested that the text should run, “such enquiries and investigations shall be carried out with the utmost possible despatch, and the signatory States undertake to afford every facility for carrying them out.” This was accepted, with the consequential amendment to the fourth paragraph, which should now begin: “If, as a result of these enquiries and investigations, any infraction,” &c. The article thus adopted became article 7 of the final Protocol.

127. Articles 5 and 6 were adopted without modification, becoming articles 10 and 9 respectively of the final Protocol.

128. Article 7.—Owing to a change introduced by the First Committee in the text of article 5, in consequence of which it was no longer incumbent on the Council to make a declaration of aggression, it became necessary to alter the wording of the beginning of article 7. It was decided that this should run, “As soon as the Council has called upon the signatory States to apply sanctions against the aggressor State, in accordance with article 6, the obligations,” &c.

129. In paragraph 2 the words “signatory States” were substituted for “Members of the League.”

130. The article as a whole came in for some criticism, mainly from the Netherlands and Scandinavian Delegations. Certain remarks made by Dr. Benes in introducing the text to the Third Committee had caused misgivings to those Delegations, who wished to be assured that the obligations in this article did not go beyond those of article 16 of the Covenant. They observed, as had members of the sub-committee, that the distinction drawn in the Covenant between economic and financial sanctions on the one hand, and military, naval and aerial sanctions on the other, had disappeared from the present text, and they sought a clear declaration that no fresh obligations were incurred in regard to the latter category, and that each Member of the League retained the right to decide its own course of action. In the course of his reply Dr. Benes said, “the real application of the sanctions will always be within the province of the Government themselves, and true co-operation will always take place by direct contract between the Governments.” The Danish Delegation were not entirely satisfied, and moved to alter the second paragraph so as to make it read, “co-operate loyally and effectively in the carrying out of the obligations provided for in article 16 of the Covenant.” After consultation with the rapporteur, they abandoned this amendment, and declared themselves satisfied with the addition to paragraph 2 of the words, “in the degree which its geographical position and its particular situation as regards armaments allow.” As thus amended, the article was adopted, and became article 11 of the final Protocol.

131. Article 7A was adopted without amendment, becoming article 12 of the final Protocol.

132. Article 8.—The change, referred to above, in the text of article 5, rendered necessary an alteration in the wording of the second paragraph of this article, which it was agreed should begin: “Furthermore, as soon as the Council has called upon the signatory States to apply sanctions, as provided,” &c.

133. In the same paragraph it was decided to omit the words, “the whole or such part of,” and make it read, “bring to the assistance of a particular State, which is the victim of aggression, their military, naval and air forces.” With these modifications, the article was adopted, and became article 13 of the final Protocol.

134. Article 8A was adopted, and figures as article 15 in the final Protocol. It was suggested that an addition should be made to this article to the effect that “the Council shall alone be competent to declare that the application of sanctions shall cease and normal conditions be re-established.” The Committee decided that this should be inserted as a separate article, and it appears in the final Protocol as article 14.

135. Articles 9 and 10 were adopted without modification, article 9 being embodied, as explained, in articles 17 and 21 of the final Protocol, and article 10 becoming article 20.

136. The text of an additional article (which became article 19 of the final Protocol) was also approved.

After the work of the First and Third Committees had been concluded, the reports of these Committees were submitted as a whole to the Assembly. The Assembly unanimously, with the assent of every Delegation represented at that time in the Assembly, approved the reports so presented them, and passed the resolutions, the text of which has already been published.3

We are,
Sir,

Your obedient servants,
ARTHUR HENDERSON.
PARMOOR.
GILBERT MURRAY.
CECIL J. B. HURST.

The Right. Hon.
J. RAMSAY MACDONALD, M. P.,
&c. &c. &c.

Notes

1 Miscellaneous No. 13 (1924), Cmd. 2200.

2 See Annex C, p. 156.

3 See Annex D, p. 210.

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