[1] Article 15, paragraph 8.
[2] Missouriv.Holland, 252 U. S., 416.
[3] See Moore's Digest, Vol. IV, p. 67,et seq., also p. 151,et seq.
[4] Act of May 26, 1924.
[5] As in the case of the Tunis and Morocco nationality decrees, Advisory Opinion No. 4, February 7, 1923.
[6] This is one part of the so-called Japanese Amendment, as to which seeinfra, p. 64,et seq.
[7] of the Covenant.
[8] Foreign Relations (U. S.), 1898, pp. 740-741.
[9] Seeinfra, p. 50 and p. 54. Also "The Japanese Amendment," p. 64.
Under the Protocol, the agreement of the parties thereto (Article 2) not to resort to war with one another is, if the terms of the Protocol are carried out, absolute. The only stated exceptions in Article 2 of the Protocol are (1) in case of resistance to acts of aggression and (2) when acting in agreement with the Council or the Assembly under the Covenant or the Protocol.
The first exception relates to defence and, if there be no aggression, as there would not be if the Protocol is lived up to, there would never be any need of defence against aggression.
The second exception, so far as it relates to a Party to the Protocol against whom force might be used, relates primarily to an aggressor, as defined in the Protocol. Of course this second exception in this regard goes beyond the question of defence, strictly speaking, because it would permit a State, not attacked, to go to the defence of another State attacked if and when the application of the Sanctions of the Protocol is called for by the Council[1]; but if the Parties to the Protocol carry out their agreements as therein expressed, there could never be any war between two or more of them.
There appears to be another possibility of the use of force within the language of this second exception; this is the case where a State, against which has gone a decision of the Court or an arbitral award, fails to carry out the decision or award.
The provision of the Covenant regarding such a situation is contained in Article 13, where it is said that the Council shall "propose what steps should be taken to give effect" to such decision or award. Obviously such proposals by the Council would not have any binding effect upon the Members of the League.
However, under the Covenant, the State in whose favor the decision or award had gonemightlawfully have resorted to war against the State refusing to carry out the decision or award,provided merely that it delayed resort to war for three months thereafter, under the language of Article 12 of the Covenant. In other words, if an award or decision was made and a State refused to carry it out, the successful party, under the Covenant agreed merely to refrain from war against the defeated party for a period of three months.
The Protocol (Article 4(6)), as interpreted by the Report to the Assembly, still permits the successful party to use force in such a case but only when the Council authorizes the use of force, such authorization being brought within the terms of Article 13 of the Covenant.
It is true that the Council is first to exert its influence to secure compliance with the decision or award and that, if the use of this influence fails, the Council may then propose measures short of force before authorizing the use of force itself.
Indeed, the Report[2] says that the Council may "institute[3] against the recalcitrant party collective sanctions of an economic or financial order." If this means that the Signatories to the Protocol are obligated to employ such sanctions in such a case when called on by the Council, I can only say that, in my opinion, the statement is not warranted by any language of the Protocol or of the Covenant.
However, the final effect of these provisions is that with the authorization of the Council the successful partymayuse force to execute a judicial decree or arbitral award.
Furthermore, the Report to the Assembly says that in such a case the defeated party could not resist, and that, if it did resist, it would become an aggressor against whom all the Sanctions of the Protocol might be brought into play.
To see how this would work out, let us suppose that in an arbitration between State A and State B, State A obtained an award to the effect that State B should pay to it the sum of twenty million dollars. Thereupon State B refuses to pay the award and, notwithstanding the efforts of the Council, maintains thatrefusal, thereby violating its agreement in the Protocol (and in the Covenant also) to carry out any such award.
Thereupon the Council authorizes State A to use force to collect the money. It is no answer to this to say that the Council would not authorize the use of force, for we are considering what may be done, not what would be done. State A then begins to use force and, if State B resists at all, the entire machinery of the Sanctions of the Protocol can be brought into play and these include military and naval Sanctions.
Of course, such a result would be highly improbable, but I submit that it ought to be legally impossible. The provisions of the Protocol in this regard go very much farther than they ought to go, and very much farther, in my opinion, than the States of the world are now willing to go.
The case which I have supposed is one of a money judgment. A more difficult case would be one where the award was for the recovery by State A of certain territory in the possession of State B which State B thereupon refused to give up. In such a case there is more to be said for the use of force than in the other.
In any case, the refusal of a State to carry out the judicial decision or the arbitral award after solemnly agreeing to do so is a very serious breach of a treaty; but the idea of the authorization of force to execute such a decision seems to me to present a question of the very gravest character. My own view is against it. I am inclined to think that the penalty of expulsion from the League under the fourth paragraph of Article 16 of the Covenant should be the utmost permissible.
Whether this view of mine be correct or not, certainly the countries of the world are not going to accept any provision by which they will be obligated in advance to join in measures to enforce the result of an arbitration or of a litigation before the Permanent Court. Whether they will agree to a provision permitting the successful party, so to speak, to execute the decision or award on its own account is perhaps doubtful; but certainly they will go no farther, if as far; and this is one of the provisionsof the Protocol which will have to be changed before the document becomes a reality.
Subject to the foregoing exceptions, the general covenant under Article 2 of the Protocol not to go to war is, in my opinion all inclusive. It obviously includes all cases where there is a dispute of international cognizance, for in such cases all parties agree upon a final and binding method of decision and agree to carry out the decision. It also includes, as pointed out previously,[4] all cases in which one State would seek to change by force thestatus quo, or to prevent by force a lawful change in thestatus quo.[5] Neither the lawful maintenance of thestatus quonor its lawful change would come within the general exceptions of Article 2.
Furthermore, the covenant against war in Article 2 would also exclude the going to war about domestic questions. All that any Signatory agrees to do regarding such a question, if, when raised internationally, it is not settled by negotiation, is to discuss it before the Council or the Assembly.[6] A State which did that would have fulfilled all its obligations regardless of any action or inaction as to the domestic question itself; and an attack made on it by any other State would then be aggression under the terms of the Protocol. There is no exception. As the Report to the Fifth Assembly says,[7] "Our purpose was to make war impossible, to kill it, to annihilate it." This, if lived up to by the Parties, the paper does, as among them.
The detailed provisions of Articles 7 to 10 inclusive of the Protocol confirm the views above expressed. The provisions of these Articles will be more specially considered in connection with the question of Aggression.[8]
[1] See the discussion on this point,infra, p. 72,et seq.
[2] Annex C, p. 180; see also pp. 168, 169.
[3] The word in the French text of the Report is "déclencher."
[4] p. 45.
[5] An instance of this would be if States A and B agreed on a cession of territory from one to the other, to which State C objected.
[6] Under Article 11 of the Covenant.
[7] p. 208,infra.
[8] p. 54,et seq.
The preamble to the Protocol asserts that a war of aggression is an international crime. I have discussed above[1] the agreement of the parties to the Protocol not to resort to war except in defence against aggression or in aid of defence against aggression or perhaps in execution of a judicial decision or arbitral award. This is the general covenant of Article 2 of the Protocol. It is this resort to war, contrary to the terms of the Protocol, which is the chief breach of the Protocol against which its chief Sanctions are ordered.
By Article 10 of the Protocol[2] every State which resorts to war in violation of the undertakings either in the Covenant or in the Protocol, is an aggressor.
It will be necessary to consider only the provisions of the Protocol forbidding a resort to war, for it would be impossible to have a resort to war contrary to the Covenant which would not also be a resort to war contrary to the Protocol. The provisions of the Protocol go farther than those of the Covenant in this regard.
It is true that there are in the Covenant certain engagements by Members of the League not to resort to war. These are found in Articles 12, 13 and 15; but it is unnecessary to consider them in detail, for any resort to war contrary to the provisions of those Articles of the Covenant would clearly also be contrary to the general engagements of Article 2 of the Protocol.
The Report to the Assembly[3] seems to infer that a violation of the obligation of Article 10 of the Covenant on the part of all Members of the League to respect the territorial integrity and political independence of other Members might be a resort to war not included in the language of the Protocol; but I think thatany such forcible violation would be within the terms of the Protocol also.
It is against the aggressor that the Sanctions of the Protocol are set up and accordingly the provisions of the Protocol defining an aggressor and the procedure for determining what State is an aggressor are of the utmost consequence.
The definitions of an aggressor under the Protocol are complex in their language though not in their fundamental idea, which is that aggression is a resort to war instead of to arbitration.[4] The language of the definitions is obscured by certain presumptions (Article 10) and by the procedure laid down for the determination of an aggressor.
The general definition of an aggressor in the first paragraph of Article 10 of the Protocol I have mentioned above. It is well, however, to quote it in full:
"Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarized zone shall be held equivalent to resort to war."
This is the general definition of principle. It relates back in its meaning to Article 2 of the Protocol, the general engagement not to resort to war. Beyond that, it makes the violation of the rules for an agreed demilitarized zone the equivalent of a resort to war, the two are assimilated.
The first question that arises regarding this general definition is whether the words "resort to war" mean necessarily an actual and technical state of war only, or whether they include all acts of violence and force, even if such acts did not in a particular case result in an actual state of war, because, for example, not resisted.
The view of the Report to the Assembly[5] in this matter is that such acts of violence are included in the expression. I aminclined to agree with this view, though as a mere matter of language an argument to the contrary is possible.
Suppose, however, that there is an actual state of war; how is it to be determined which one of the two[6] belligerents is the aggressor?
The Protocol attempts to meet this difficulty by laying down two different methods of determining the aggressor. One is by creating certain presumptions, which I shall discuss later; the other is for the case in which none of the presumptions is applicable.
In this case, that is to say, in the absence of the presumptions, it is for the Council to determine the aggressor and, in order to come to such a determination, the Council must act unanimously under the general rule of Article 5 of the Covenant.
I have no doubt of this conclusion, which is the conclusion of the Report to the Assembly. It is true that the language of Article 10 of the Protocol is not as clear as it might be, since the duty and power of the Council to determine the aggressor are not directly stated, but rather to be inferred from the language.
What Article 10 of the Protocol says as to this in its last paragraph but two[7] is that, apart from the cases when there is a presumption,
"if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution."
So that in those cases where the presumptions hereafter considered do not arise, it is the duty of the Council to determine the aggressor; it must act unanimously in coming to such a determination; as the Report to the Assembly says,
"Where there is no presumption, the Council has to declare the fact of aggression; a decision is necessary and must be taken unanimously";
and, if the Council is not unanimous, itmustenjoin an armistice upon the belligerents.
Before coming to the procedure before the Council, I now enumerate those cases in which, because of the existence of certain facts, a State is "presumed" to be an aggressor; any such presumption can be upset only by theunanimousdecision of the Council to the contrary. These cases are as follows:
1. If hostilities have broken out and a State has refused to submit the dispute to the procedure for pacific settlement contemplated by the Protocol.
2. If hostilities have broken out and a State has refused to comply with a decision, award, etc.
3. If hostilities have broken out and a State has disregarded a determination that the matter in dispute is a domestic matterandhas not submitted the question for discussion by the Council or Assembly under Article 11 of the Covenant.
4. If hostilities have broken out and a State has violated the provisional measures against mobilization, etc., contemplated by Article 7 of the Protocol (and which will be mentioned later).
Certainly the theory of the first three of the four instances above mentioned is the theory stated by Herriot in his speech before the Assembly that the State that refuses arbitration is an aggressor.[8] In other words, law is substituted for force.
Now it is to be observed that in each of the four foregoingcaseshostilities must have broken outand in each one of them at least one additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the aggressor; but who is to say, how it is to be determined, whether or not at any particular moment these facts exist? It is not sufficient to say that the facts will be open and notorious, for they might not be. Indeed, if we look critically at each one of what I may call the required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to arise; this fact is that hostilities shall have broken out. One's first impression might be that this could never be a matter of doubt; but this is not so. Take the case of Corfu, for example. Italian officers had been murdered in Greece by somebody; various individuals had been killed at Corfu by a bombardment of the Italian fleet. Had or had not hostilities broken out within the meaning of Article 10 of the Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a dispute to the procedure for pacific settlement. It is very easy to suppose cases where there would be a difference of view as to this. A State might claim, for example, that the matter was a domestic question which it did not have to submit to the procedure for pacific settlement. There might be a difference of opinion as to whether or not the matter had been actually decided by the tribunal. It is not at all uncommon in municipal law for parties to disagree as to whether a particular question is or is notres judicata; there have been many litigations over this very point; and there have been international arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a State had disregarded a determination that the matter in dispute was domestic or as to whether or not a State hadsubmitted a question for discussion under Article 11 of the Covenant. Such differences of opinion could easily arise because of the non-formulation in precise terms of just what the dispute was. Parties do not always agree as to what it is they are differing about and they may in fact be at the same time differing as to more than one question. As to whether or not a State had violated the provisional measures against mobilization contemplated by Article 7 of the Protocol, that document itself recognizes that such a question would require investigation, and in such case and in such case only the Protocol gives the Council the power to determine the question of fact, acting by a two-thirds majority.
So we come back to the situation that a presumption as to the aggressor can exist only if certain facts exist; and that the existence of one or more of these facts may very likely be in doubt or dispute and that, with one exception, there is no procedure for determining such questions of fact so as to be able to say with certainty that the presumptiondoesexist.
What is the answer to this difficulty? If we look at the matter technically, we must conclude that none of the presumptions created by Article 10 of the Protocol can ever arise unless the facts[10] were admitted by the two[11] disputants. Such an admission would mean, in other words, that one of the parties openly admitted that it was an aggressor.
If the facts were in dispute or, in other words, if the existence of the presumption was in dispute, the Council could not determine the aggressor on the basis of a presumption requiring the unanimous vote of the Council to upset it; but would be required to determine the aggressor under the general provision which was first mentioned, under which no presumption exists and when the Council is required by affirmative unanimous vote to determine the aggressor.
Here again, however, there would unquestionably be disputed facts; that is to say, unless one of the parties said that it was the aggressor, it would require an elaborate investigation todetermine under the language of Article 10 of the Protocol whether a Statehadresorted to war in violation of its undertaking, orhadviolated the rules laid down for a demilitarized zone. It is utterly impossible to suppose that the Council could ever immediately determine the aggressor under such circumstances by unanimous vote; and such determinationmustbe immediate. The language of the text is: "at once"; and in the French: "dans le plus bref délai."
Let us look at the matter concretely and take up the question of procedure, supposing an actual case before the Council. There is a crisis; hostilities have or are supposed to have broken out; there are two States which either are or are thought to be at war; the Council meets. Not only under the realities of the situation, but under the express language of the Protocol, the Council must act instantly; the peace of the world is at stake.
Now, under those circumstances, there could be only two situations. One would be when some Great Power, either by open and announced defiance or by its refusal even to meet with the Council, proclaimed itself an aggressor. In that case of course neither the language of Article 10 nor any other language would make any difference. The other situation would be that the two States were there before the Council, each claiming that the other was in the wrong, each disputing the allegations of fact made by the other's representative. In such case clearly no presumption could arise and in such case the Council could not ever immediately determine the aggressor by unanimous vote. The mere fact that it would require time to examine into the truth of the respective allegations would prevent this. So the Council, by the compelling facts of the situation and indeed in accordance with the strictest construction of the Protocol, would be constrained to declare and would declare an armistice.
Any dispute as to what State was guilty of aggression prior to that time would be put over for subsequent adjustment; the armistice would be laid down and would be obeyed. Of course, in theory, it could be violated and the violator of the armisticewould become the aggressor; but a State that was going to refuse or violate the armistice, knowing the procedure, would doubtless not go to the Council at all.
So, to my mind, the vital part of the procedure laid down by Article 10 for determining an aggressor is found in the provision giving the Council the power immediately to declare an armistice; and, under the procedure, this, in my judgment, is the only power that the Council would ever exercise, except in the case suggested, in which a State itself denounced itself as an aggressor.
I am aware that the framers of the Protocol are not in accord with these views. In their opinion, the presumptions of Article 10 establish "an automatic procedure which would not necessarily be based on a decision of the Council." They say that where a presumption has arisen and is not unanimously rejected by the Council, "the facts themselves decide who is an aggressor" and otherwise that "the Council has to declare the fact of aggression."
I can only say that their conclusions, while perhaps admissible as a mere matter of language and nothing but language, take no account of the inevitable certainty that there will always be at least two views of what the facts are; to put it from a legalistic viewpoint, tribunals do not deal with facts; they deal with what lawyers call facts, but which are merely conclusions based on such evidence as is available. This sort of a "fact" is arrived at only after a hearing or a trial of some kind; and to suppose that the Council could ever conduct such a hearing, and at the same time come to a unanimous and immediate conclusion is to suppose a contradiction in terms.[12]
So while from the language of Article 10 of the Protocol difficulty may arise in determining an aggressor under its provisions (for there might in any case be a disputed or doubtful question of fact; and the Council under the provisions of the Covenant would in general have to act unanimously) the Protocol provides a solution of any such difficulty by saying that if the Council does not immediately determine the aggressor, itmust(the language is mandatory) proceed to enjoin an armistice, to fix its terms and to supervise its execution, acting for these purposes by two-thirds majority. Then the Protocol provides that any belligerent which refuses the armistice or violates it shall be the aggressor.
These provisions regarding an armistice seem to me to meet any possible objection that might be raised to the absence of a more complete and detailed system of determining in fact and in law what State is an aggressor.
No matter what the presumptions were or even what procedure was laid down, it is clear that, after hostilities in any given case had actually commenced, there would be enormous difficulty for any tribunal whatever in laying down conclusively which State was the aggressor. After all, the vital thing is to prevent war; and the opening of hostilities, to be immediately followed by an armistice, would not be very much of a war. So I regard these provisions as to an armistice as the most ingenious [Transcriber's note: ingenuous?] and, except its statements of principle, the most important of all the provisions of Article 10 of the Protocol.
The power given to the Council to formulate an armistice would be the power exercised if hostilities broke out rather than the power of adjudging the aggressor; unless the aggression was openly admitted, which would mean that one of the parties to the Protocol really defied the others; and, in that case, of course, it would defy the terms of an armistice as well as any other terms. But in any other case a new consideration would immediately arise. The Council would formulate an armistice and in the absence of an open defiance by one State, or possibly by a group of States, of all the others, the armistice would introduce a new situation, a situation in which hostilities werenotgoing on; and human experience shows that, given an armistice, the recommencement of hostilities on the old grounds is a real impossibility.
In the view that I take, the Sanctions of the Protocol become less important in the light of its provisions as to the determination of an aggressor, for it is only against an aggressor that themain Sanctions of the Protocol can be brought into play; and these provisions for determining the aggressor really mean that an aggressor is a State or a combination of States which has finally and deliberately determined to begin war and to carry it on regardless of its most solemn engagements to the contrary. In other words, there could be no war as between the parties to the Protocol without a wilful, wanton and wicked disregard of its provisions.
[1] p. 50,et seq.
[2] First paragraph.
[3] Annex C, p. 156 at p. 186.
[4] I use the word here in its largest sense.
[5] Annex C, p. 156 at p. 187.
[6] Of course there may be more than two.
[7] The reason why I have used in regard to Article 10 of the Protocol this uncouth language, "its last paragraph but two," is that in the English text of Article 10 there is a textual error which is extremely confusing. Article 10 really consists of five paragraphs, and the second of these five paragraphs has two sub-heads or sub-paragraphs numbered 1 and 2. The third paragraph of Article 10, in referring to these two sub-heads of the second paragraph calls them "paragraphs 1 and 2." In other words, the first words of what is here referred to as the third paragraph of Article 10 (the paragraph which I call "the last paragraph but two") read as follows: "Apart from the cases dealt with in paragraphs 1 and 2 of the present Article." They should read something like this: "Apart from the cases dealt with in sub-heads 1 and 2 of the second paragraph of the present article." Compare the French text which is perfectly clear: "Hors les hypothèses visées aux numeros 1 et 2 du présent article." See the English and French Texts of Article 10 in full,infra, pp. 144, 145.
[8] September 5, 1924.
[9]e. g., the Pious Fund case reported in the Hague Arbitration Cases, p. 1, and the Interest Case between Russia and Turkey,op. cit., p. 260. These two cases are also in Stowell and Munro's International Cases, Vol. I, p. 58,et seq.
[10] I mean the facts from which the presumption as to the aggressor would arise.
[11] I assume only two, for convenience.
[12] In the Dogger Bank case, the Commission of Inquiry sat for more than two months. Hague Court Reports, Scott, p. 403.
During the framing of the Protocol of Geneva by the Committees of the Fifth Assembly of the League of Nations, the language of the document was changed by what has been called the Japanese Amendment; and while the provisions which constitute that amendment as part of the Protocol have been generally considered in the previous discussion in connection with the application of various Articles, still that amendment attained such prominence in the discussions in the Fifth Assembly and since, that it may well be separately reviewed.
The Japanese Amendment related to domestic questions, questions within the domestic jurisdiction of a State; and before coming to its terms, it will be well to see what the situation as to these domestic questions is under the Covenant, taken by itself.
The Covenant, as we have seen,[1] provided for the submission to the Council of all disputes between Members of the League which were not otherwise adjusted by some kind of agreement or by some kind of Tribunal. In regard to those disputes submitted to the Council, the eighth paragraph of Article 15 of the Covenant said that if one of the parties claimed, and if the Council found, that the dispute related to a question which by international law was entirely within the jurisdiction of a State, the Council should so report and make not even a recommendation regarding a settlement. In other words, if the dispute related to a domestic question and one of the parties to the dispute raised the point, the Council could not proceed at all to make any recommendation which would bind the parties to the dispute or either of them to anything whatever.
At the same time, under the Covenant, by Article 11, either the Council or the Assembly might consideranycircumstance tending to threaten or disturb international peace. The language in this regard is general. It means no more than discussion andsuggestion, except perhaps publicity; but under this language of Article 11, the parties were left with their liberty of action in the matter; and indeed, under the Covenant, the Members of the League entered into no commitment against going to war in the case of a dispute about a domestic question.
So we may sum up the provisions of the Covenant as to a dispute regarding a domestic question by saying that while such a dispute might go to the Council,[2] still the Council,[2] if the point were raised, could make no recommendation about it; but the Council (or the Assembly) might take the matter into consideration as a subject of discussion when it threatened peace, with the hope and duty to preserve the peace if possible; but in regard to this the parties remained free to act as they might themselves finally determine.
The Protocol of course, as we have also seen,[3] makes a great change in this situation because it contains a general agreement by the parties not to resort to war, an agreement which is applicable to disputes about domestic questions to the same extent that it is applicable to disputes about international questions; this general agreement not to go to war includes all questions of both kinds.
Furthermore, the Protocol makes it very much more likely that disputes between Members of the League will go for a hearing to a Committee of Arbitrators than to the Council; we have seen[4] that the likelihood of any dispute going to the Council under the new régime, for consideration on the merits, is remote. The functions of the Council regarding disputes are to some extent delegated to the Permanent Court of International Justice, but even more largely to Committees of Arbitrators agreed on or appointedad hoc.
Now the Japanese amendment is not strictly a single amendment; it is in two parts. The first part is the last (third) paragraph of Article 5 of the Protocol, reading as follows:
"If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11 of the Covenant."