We must bear in mind that by the second paragraph of Article 5, any Committee of Arbitrators, in its consideration of a dispute is subject to the same limitations concerning a dispute about a domestic question as are provided for the Council. The method of so limiting the Committee of Arbitrators is that the question of law is decided by the Permanent Court of International Justice, and if that Court decides that the question is domestic, the Committee of Arbitrators simply so declares and proceeds no farther.
What the paragraph of Article 5 above quoted says is that although neither the Council nor a Committee of Arbitrators may consider a dispute regarding a domestic question if the point is raised, still none the less the Council or the Assembly, under Article 11 of the Covenant, may consider the situation in its bearing upon the peace of the world. Now such consideration under Article 11 of the Covenant would have been possible without this statement, so that, to my mind, this portion of the Japanese amendment makes no change in that regard. The paragraph does not change the legal situation at all, but simply makes explicit what was otherwise implied.
The other portion of the Japanese Amendment is the clause which is added to sub-head 1 of the second paragraph of Article 10, beginning with the word "nevertheless."
In order to see just what this other portion of the Japanese Amendment is, I cite here the second paragraph of Article 10 (omitting certain phrases not here material) with the words of the Japanese Amendment italicised:
"In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare:
1. If it * * * has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognizing that the dispute between it and the other belligerent State arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State;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."
The language of Article 10 of the Protocol is quite involved, I have already discussed it at some length,[5] endeavoring to show that its real effect differs greatly from the theory of its framers, a theory borne out, perhaps, by the language of Article 10 considered as language only. I sum upthat theoryas follows:
Laying down the general principle that a State which resorts to war contrary to the Covenant or to the Protocol is an aggressor, and prescribing a general procedure by which it is for the Council to decide, unanimously of course, whether such a violation has taken place (and in the absence of such unanimous decision to declare an armistice) none the less Article 10 limits or qualifies this general procedure by enumerating certain classes of cases in which the facts wouldsupposedlybe so open, so notorious, so impossible to question, that they would create a presumption as to the State which was the aggressor; and such presumption could be upset only by unanimous vote of the Council against it.
I repeat that this is the theory of MM. Benes and Politis; it is not mine.
My own view, heretofore expressed, is that in no case could the supposedly notorious facts create a presumption because there would always be a difference of opinion as to those very facts themselves.
But proceeding on the other theory, and looking only at the language, the presumptions are important; here it is necessary to refer to only one of them.
This presumption arises when a State has "disregarded" a decision by the Council, by the Court or by the Arbitrators following the Court, that a dispute arises out of a domestic questionand has also not submitted[6] the question to the Council or the Assembly for discussion, under Article 11 of the Covenant.
Before the Japanese amendment, the text was that the presumption arose when a State "disregarded" such a decision to the effect that the dispute arose out of a domestic question.
Now let us see what the difference between the two is, that is to say, the difference between the textpriorto the Japanese amendment and the textwiththe Japanese amendment.
In either case the decision on the question of law has gone against the complaining State. The proper tribunal has decided that the question is a domestic question and that decision in either case is and remains conclusive.
In either case, the State "disregarding" that decision and going to war is an aggressor. We may see that this is so by supposing that the entire original text as well as the text of this portion of the Japanese amendment was stricken out.[7] Then, clearly, the State would be an aggressor under Article 2 of the Protocol and under the first paragraph of Article 10; and there is nothing either in the original text that we are considering or in the Japanese addition thereto which changes that conclusion.[8]
The difference then between the original text and the text with the amendment is this: in the original text, a complaining State disregarding such a binding decision as to the domestic character of the question waspresumedan aggressor if it wentto wareither before or afterthe consideration of the matter by the Council or the Assembly under Article 11 of the Covenant. Under the text as amended, such a State ispresumedto be an aggressor only if it resorts to warbeforesuch consideration under that Article 11.
In other words, the difference between the original and amended texts would arise only in the following circumstances: State A brings a dispute against State B before a tribunal (Council, Committee of Arbitrators, etc.). The tribunal renders a binding decision that the dispute arises out of a domestic question. The complaining State, bound by that decision, then brings the matter before the Council or the Assembly under Article 11 of the Covenant and no adjustment results; thereupon the complaining State resorts to war.
Under those circumstances, in the original text, the State resorting to war would bepresumedan aggressor, a presumption to be upset only by the unanimous vote of the Council against it. Under the amended text, the complaining State would be an aggressor, but there would be no presumption; and the determination that it was an aggressor would come on to be made by the Council, which would either have to vote unanimously that the complaining State was an aggressor, or else proclaim an armistice.
I confess that it is difficult to see why such a refined and subtle and technical distinction about the presumption of aggression should be made. If there is a binding decision by a tribunal that a dispute arises out of a domestic question, surely a complaining State, under the principles of the Protocol, is bound not to go to war, because it is legally wrong in its claim and has been so adjudged. Just why a State going to war under such circumstances should bepresumedto be and be an aggressor if it goes to warbeforea discussion of the matter subsequent to the decision and not bepresumedto be an aggressor but merely be an aggressor, if it goes to waraftersuch discussion, is not logically to be explained.
However, the foregoing discussion resulting in such anobscure and technical distinction is, as I intimated, based solely on the language of the Article and on the legalistic theory of its framers as to its meaning and result. Earlier in my discussion,[9] I pointed out that I do not agree with the conclusions of MM. Benes and Politis, for I do not think that the presumptions laid down in Article 10 of the Protocol would ever have any material bearing on the decision reached by the Council. In other words, repeating in substance what I said before, I believe that the power to declare an armistice is the only power under Article 10 of the Protocol which the Council would ever exercise, except in a case where a State itself denounced itself as an aggressor.
Furthermore, it seems to me that the very intricacies of the language of Article 10 of the Protocol are themselves a very real indication that my conclusion is correct.
As a matter of reality, I cannot see that the Japanese amendment in any conceivable case would cause any difference in what would happen. We must suppose that war has commenced, for unless there is a resort to war, Article 10 of the Protocol is out of the picture entirely. Assuming then a resort to war, there are, under Article 10, with all its provisions and exceptions and presumptions, only two real possibilities:
a. There is an open and admitted and defiant aggression.
b. There is a difference as to the facts and it follows that it is not possible for the Councilat onceto reach a unanimous conclusion in the case; accordingly the Council declares an armistice which each belligerent must accept or become an aggressor.
What these two cases come to is obviously one of two alternatives, namely, either some State is going on with its fighting, with its war, regardless of the Council and regardless of the Protocol, or else there is an armistice and the fighting stops. Under the first circumstance, the provisions as to presumptions and as to the decisions of the Council are alike of noconsequence; and, in the second case, the war ends with an armistice as soon as it commences.
The drafting of Article 10 of the Protocol is unfortunately obscure; but when the language of the whole Japanese amendment is carefully looked at, it seems to me that it certainly adds nothing to the powers of either the Council or the Assembly in considering disputes arising from domestic questions, and that the legal right of any State to determine and control its own domestic matters remains unquestioned; indeed, it may be said to remain more unquestioned than it is now; for, under the Protocol, that right cannot be questioned by the League, either in Council or in Assembly; it cannot be questioned by the Permanent Court or by Arbitrators; and it cannot be questioned by war. All that is possible is friendly discussion and consideration under Article 11 of the Covenant and that, so far as Members of the League are concerned, is possible now.
Of course it might be argued that the various possible decisions and presumptions under Article 10 of the Protocol might make some difference as to the charging of the costs of the aggression under Article 15 of the Protocol; but the possibilities involved are too remote to be worthy of discussion.
[1]Supra, p. 18,et seq.
[2] or the Assembly.
[3]Supra, p. 50,et seq.
[4]Supra, p. 23,et seq.
[5] pp. 54-63.
[6] The text says "previously." Presumably this means before hostilities broke out. It might mean before the "disregard" of the decision that the dispute was domestic. Precisely how a State could "disregard" such a decision, except by resort to war, is not very clear. The French is "qui aura passé outre à un rapport," etc.
[7] That is, all the text above quoted as part of sub-head 1 of the second paragraph of Article 10, beginning "has disregarded a unanimous report of the Council."
[8] The Japanese proposal regarding this Article as it first stood, was to strike out all the words referring to the "domestic jurisdiction," etc.; the addition of the clause commencing "nevertheless" was a compromise; it would have been a much simpler result and a better one, I think, to have omitted the whole clause, as the Japanese proposed.
[9] pp. 61, 67.
The Protocol of Geneva provides for sanctions or penalties for its breach by a Signatory.
Before considering the main sanctions which are set up by the Protocol, it may be mentioned that there are certain provisional measures which may be taken which fall short of the chief sanctions.
Under Article 7, in the event of a dispute between Signatories they agree, pending its settlement, not to increase their armaments, take mobilization measures, etc., and the Council is given the right, upon complaint being made, to make enquiries and investigations as to the maintenance of these agreements, and to decide upon measures in regard thereto, so as to end a threatening situation. Similar powers are given to the Council under Article 8 concerning threats of aggression or preparations for war, and in all these cases, the Council may act by a two-thirds majority.
The preventive measures which the Council may take as to such preliminary matters are not precisely defined. It is to be pointed out, however, that a State violating the engagements of Article 7 or Article 8 would not be an aggressor against which the main sanctions of the Protocol could be directed, assuming that hostilities had not broken out. Accordingly, the measures which could be "decided upon" by the Council would perhaps be limited to those of warning, of advice and of publicity; certainly they could not be measures of force; and in my opinion, they could not go as far as sanctions of any kind, economic or otherwise; the General Report[1] speaks of "the evacuation of territories" as a possibly appropriate measure; this indicates that the "measures" are to be "taken" by the State guilty of violation of the agreements mentioned;certainlythere would be no obligation on the part of any Signatory to take any steps against a violation of these agreements of Articles 7 and 8; but thelanguage is very vague and all doubt should be set at rest by changing it particularly as the Council may decide by a two-thirds vote.
In considering the main sanctions provided by the Protocol, the first point to be emphasized is that they cannot come into play until a state of war, in the real sense, exists; hostilities must have broken out, so that the world is confronted with fighting actually taking place. It is true that there is a theoretical exception to this in the fact that a violation of the rules of a demilitarized zone is equivalent to a resort to war; but this exception is more apparent than real for the violation of a demilitarized zone would be only a brief prelude to hostilities.
The second condition precedent to the application of the sanctions is the determination of the aggressor.[2] And in any case the determination by the Council as to which State is the aggressor must have taken place before the sanctions are to be applied.
This is laid down in the last paragraph of Article 10, which provides that the Council shall "call upon" the Signatories to apply the sanctions.[3] As the sanctions contemplated by the Protocol arein theorymerely a development of the sanctions contemplated by Article 16 of the Covenant, it is interesting to note that this preliminary calling by the Council upon the States to apply the sanctions introduces a new system, at least a system which develops from the view taken by the Assembly under Article 16 of the Covenant in 1921; for in the elaborate resolutions then adopted,[4] it was stated, among other things, that the Council was to give merely an "opinion" as to whether there had been a breach of the Covenant by resort to war, but that it was for each State to decide "for itself" whether or not its duty to apply the sanctions provided by Article 16 of the Covenant had arisen.
The reason for this development is easy to see. Even though the sanctions of the Protocol may in theory be the same as those of Article 16 of the Covenant,they are applicable to a very different state of facts. The sanctions of Article 16 of the Covenant were to be applied to any Member of the League which resorted to war in disregard of certain provisions of the Covenant in Articles 12, 13 and 15, and the difficulty of determining whether or not, in a given case, a resort to warwasa violation of those other Articles of the Covenant was not solved, particularly as the Covenant does not preclude a resort to war ineverycase. Under the Protocol, however, every resort to war by the parties to it is forbidden (except by way of defense or in aid of defense or perhaps in execution of a judgment of some tribunal), and a procedure which, in theory at least and probably in practice, would always determine the aggressor, is provided. For if my view is correct, an "aggressor" is a State which openly and wilfully defies the other Signatories when summoned by the Council under Article 10 of the Protocol. Consequently, it is now for the Council, upon the determination of the aggressor, to call for the application of the sanctions.
Of course, in all cases of a serious decision such as this would be, the Council is not an outside body "calling" upon Governments to do something. The words used lead one almost unconsciously to visualize the Council as a sort of entity like a Court, laying down a rule of conduct for some one; but this is a false vision; for in any such case the Council is a group of representatives of Governments agreeing, in the first instance, as such representatives of their own Governments, upon a course of action to be taken by those very Governments pursuant to a treaty obligation. We must think of any such action by the Council as meaning primarily that the British representative and the French representative, and so on, agree that the respective countries which they represent will follow a certain course of action in accord. If the Council were composed of all the Members of the League, it would be proper to describe its action under such a provision as this as being a conference of the parties to thetreaty to decide as to what, if anything, those parties should do, and to come to such decision unanimously, if any decision is to be reached. It is only as to the Governments which are not represented on the Council that the Council "calls" for action; so far as the Governments represented on the Council are concerned, what they do is toagreeupon a course of action.
In theory, as I have said, the sanctions of the Protocol are no more than a development of those of Article 16 of the Covenant. The language of the Protocol indeed, in Article 11, incorporates the provisions of Article 16 of the Covenant by reference.
No provisions of the Covenant have been more debated since it was written than those of Article 16. In 1921, various amendments to this Article of the Covenant were proposed, none of which has gone into force; and, as mentioned above, the Assembly then adopted various interpretative resolutions regarding Article 16 which, with the proposed amendments (one of which was textually modified in 1924), areprovisionallyin force.[5]
It is unnecessary to attempt any detailed consideration of the exact legal effect of Article 16 of the Covenant at the present time in view of these interpretative resolutions and proposed amendments; in general they are intended to make the system of the economic blockade more flexible in its application so far as may be consistent with the purpose of the first paragraph of Article 16 of the Covenant, namely, to institute a complete economic and financial boycott of an aggressor.
This first paragraph of Article 16 of the Covenant says also that the aggressor shallipso factobe deemed to have committed an act of war against the other Members of the League; this provision does not create a state of war; it simply gives the other Members of the League the right to consider themselves at war with the aggressor if they see fit; this provision is supplemented by the language of Article 10 of the Protocol which gives to any signatory State called upon to apply sanctions the privilege of exercising the rights of a belligerent, if it chooses.
Paragraph 2 of Article 16 of the Covenant made it the duty of the Council to "recommend" to the various governments what armed forces they should severally contribute for use in protecting the covenants of the League.
Now what Article 11 of the Protocol does in its first paragraph is to say that the obligations of all States in regard to the sanctions mentioned in paragraphs 1 and 2 of Article 16 of the Covenant will, when the call for the application of the sanctions is made by the Council, immediately become operative, in order that such sanctions may forthwith be employed against the aggressor.
So far as the first paragraph of Article 16 of the Covenant is concerned—the economic and financial blockade—I do not see that this first paragraph of Article 11 of the Protocol adds anything to that first paragraph of Article 16 of the Covenant, even when the former is read in connection with the second paragraph of Article 11 of the Protocol.
It is true that in the resolutions about the economic weapon in the Assembly of 1921, it was recognized that from practical points of view the application of the economic pressure cannot be made equally by all countries. But undoubtedly, subject to the practical difficulties mentioned, a definite obligation exists in Article 16 of the Covenant to impose economic sanctions against the aggressor, and, as I said, in my judgment this obligation is not changed by the Protocol; but it can now become an operative obligation only if and when the Council says so.
The vital question regarding sanctions under the Protocol arises under the second paragraph of Article 16 of the Covenant in connection with the first and second paragraphs of Article 11 of the Protocol. Indeed, it is because of this second paragraph of Article 11 of the Protocol that the question regarding the use of the British Fleet has been raised in England.
Article 16, paragraph 2 of the Covenant reads as follows:
"It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective naval, military or air force the Members of the League shall severally {77} contribute to the armed forces to be used to protect the covenants of the League."
Article 11, paragraphs 1 and 2 of the Protocol read as follows:
"As soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 of the present Protocol, 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."
On its face, paragraph 2 of Article 11 of the Protocol merely interprets paragraph 2 of Article 16 of the Covenant; but unquestionablyit greatly changes it. Under the provisions mentioned of the Covenant, the Council had merely the duty of recommendation as to forces to be contributed by Members of the League. Undoubtedly under Article 16 of the Covenant, paragraph 1, any Member of the League had the right, if it chose, to consider itself at war with an aggressor, but equally under that paragraph any Member of the League had the right, if it chose,notto consider itself at war with an aggressor. Consequently there was no duty whatever under that Article 16, not even a moral duty, in my judgment, on the part of any Member of the League to contribute any armed forces whatever. The Council had the duty (under Article 16, Paragraph 2, of the Covenant) of making a recommendation; but it was merely a recommendation, and there was no obligation of the Member of the League to which the recommendation applied; there was merely a possible privilege to the Member of the League to which the recommendation applied—and that is a very different thing.
Now, let us look at paragraph 2 of Article 11 of the Protocol, quoted above. Each signatory State is "to cooperate loyally andeffectively" not only "in support of the Covenant," but "in resistance to any act of aggression." Well, certainly resistance to an act of aggression means force and this fact is not qualified but emphasized by the words: "in the degree which its geographical position and its situation as regards armaments allow." I grant that these words have a qualifying effect in some cases. They would mean, for example, that if Denmark had no army, she could not be under any obligation to use infantry. But they also refer to the other side of that picture, that the British do have a navy, that is their particular situation as regards armaments, a very particular situation; and under this Article, as I read it, the British would be bound "loyally and effectively" to cooperate in resistance to an act of aggression in the degree which their particular naval situation allowed.
Furthermore, paragraph 1 of Article 11 of the Protocol says that the "obligations * * * in regard to the sanctions of all kinds mentioned" not only in paragraph 1 but also in paragraph 2 of Article 16 of the Covenant "will immediately become operative." This indicates that there are military, naval and air sanctions to be employed and that the parties to the Protocol are under obligations to employ them.
Now, it is no answer to this to say that as to theextentof the armed forces to be used, the signatory State has its own discretion; and it is true that there would be no international command, there would be no turning over of the forces of one country to the General Staff of another or to an international Staff of all; however, even that did not take place during the first three years of the World War, except with specific detachments. So, for example, the British could say that they would send five destroyers or ten cruisers under their own Admiral, or the Grand Fleet if they chose; but clearly it would be bad faith for them to say with this commitment that they would not send even a gunboat.
I am entirely satisfied that these provisions greatly extend the provisions of the Covenant; for the first time[6] there isintroduced in the League system a definite military commitment—definite in the sense that it is obligatory, and not in the sense that it is defined as to extent of force.[7]
It may be argued that the first paragraph of Article 13 of the Protocol looks somewhat the other way, but I do not think that it does. That paragraph merely provides that the parties to the Protocol, if they see fit, may give to the Council "undertakings"[8] as to the military forces which they would use in applying the sanctions of the document. There is no obligation to give any such undertaking; it is purely optional with each State. Doubtless if such an undertaking was given and accepted by the Council, the State giving it would at least not have to do anything more in the way of military action than provided in the undertaking; but as the giving of the undertaking is optional, the fact of its not having been given would not, in my opinion, limit or qualify the obligation "interpreted" in the second paragraph of Article 11 of the Protocol.
I point out here that the word "contingent" in the first paragraph of Article 13 of the Protocol does not relate to the obligatory character of the sanctions but to the necessary uncertainty as to the future existence of the breach required for their applicability (see the French text); and the debate in the Third Committee and more particularly the Report unanimously adopted by the Assembly, in its discussion of Article 11,[9] make it clear that the above interpretation as to the military sanctions is correct; uniform in obligation, they are flexible in application.
Consideration of the third paragraph of Article 11 of the Protocol in connection with the third paragraph of Article 16 of the Covenant tends to support the views already expressed. Without further elaboration, I call particular attention to the last clause of the paragraph of the Protocol mentioned and citethe respective paragraphs of the two documents in parallel columns:
Paragraph 3 of Article 16 of Paragraph 3 of Article 11 ofthe Covenant. the Protocol."The Members of the League "In accordance with paragraphagree, further, that they will 3 of Article 16 of themutually support one another Covenant the signatory Statesin the financial and economic give a joint and severalmeasures which are taken undertaking to come to theunder this Article, in order to assistance of the State attackedminimize the loss and or threatened, and to give eachinconvenience resulting from the other mutual support by meansabove measures, and that they of facilities and reciprocalwill mutually support one exchanges as regards theanother in resisting any special provision of raw materials andmeasures aimed at one of their supplies of every kind, openingsnumber by the Covenant-breaking of credits, transport and transit,State, and that they and for this purpose to take allwill take the necessary steps to measures in their power toafford passage through their preserve the safety ofterritory to the forces of any communications by land and by seaof the Members of the League of the attacked or threatenedwhich are co-operating to State."protect the covenants of theLeague."
There are certain other provisions of the Protocol regarding sanctions which should be mentioned at least for the sake of completeness.
It is the Council[10] which declares that sanctions are at an end and that "normal conditions be re-established" (Article 14).
To the "extreme limit of its capacity," all costs of an aggression are to be borne by the aggressor (Article 15). The language concerning the extent of the liability involved is very sweeping, going much farther than the categories of damage mentioned in Annex I of the Reparation clauses of the Treaty of Versailles.
The plans to be drawn up by the council for the detailed application of the economic and financial sanctions are to be "communicated" to the Signatories—in other words, they are advisory, not binding (Article 12).
Here it should be said that the final words of this Article 12 mention "the Members of the League and the other signatory States." These words imply the possibility of States signatory to the Protocol which are non-Members of the League. As pointed out above,[11] no such possibility exists, in my opinion. Even if such a theoretic possibility existed, it would be absurd to suppose that any State would sign the Protocol, with obligations going beyond those of the Covenant, while still being outside the privileges of the Covenant; however, the question is of no special importance here.
The main sanctions of the Protocol,as among the Parties to the Protocol, may be thus summed up: a war of aggression is an international crime; a Signatory which either avows itself an aggressor or refuses an armistice after hostilities have broken out, commits this crime; and accordingly the other Signatories, upon the call of the Council, unite in the defence of the Signatory which is not the aggressor, according to their respective capacities; which means that if and to the extent that they are able to do so, they contribute by force to the defence against the aggression, as well as by economic and financial measures.
But in view of the other agreements of the Protocol regarding pacific settlement of disputes and its covenants against war, the chief sanctions of the Protocol would never come into play against a Signatory, unless that State finally decided to defy the public opinion of the world and to make into a scrap of paper its own solemn written pledge.
[1] Annex C, p. 156 at p. 196.
[2] If there were two parties to the conflict, either one or both might be aggressor. See Article 11 of the Protocol.
[3] I think this means uponallthe Signatories. The system of the Protocol is flexible as to theextentto which the Sanctions are to be applied by a particular signatory; but all Signatories come under the same legal obligation.
[4] On October 4, 1921. Official Journal, October, 1921, Special Supplement No. 6, p. 24.
[5] See League of Nations Official Journal, October, 1921, Special Supplement No. 6, pp. 14-15, 24-26, also October, 1924, Special Supplement No. 21, p. 9.
[6] Except as to the possibilities of Article 10 of the Covenant, as to which seeinfra, p. 84,et seq.
[7] The debates in the Third Committee of the Fifth Assembly are of interest in this regard.
[8] The French is "engagements."
[9] Annex C, p. 156 at p. 197,et seq.
[10] by unanimous vote.
[11] p. 10,et seq.
The general character of the Protocol of Geneva is such that separate defensive agreements between the parties to it lose substantially all of their former importance. The Protocol itself is, among other things, a general defensive agreement; and under such an agreement, faithfully lived up to, substantially the only part that could be played by separate agreements would be to make more detailed and more regional, perhaps, in their obligation and execution, the general obligations binding all signatories.
The possibility of these separate defensive agreements is mentioned in Article 13 of the Protocol. It is laid down that they must be public; furthermore, action under them cannot take place until the Council "has called upon the signatory States to apply sanctions." Finally, there is a most significant provision which illustrates the relatively unimportant character of such separate agreements under the Protocol—any such agreement must remain open to all Members of the League which desire to accede thereto.
This last mentioned provision takes away every possible idea that such defensive agreements under the Protocol could be anything like the former "defensive" alliances. Obviously, a defensive agreement which is open to any Member of the League is merely a part of the general agreement; particularly is this so when the performance of the agreement depends and is conditioned upon the request of the Council.
Indeed, in view of the other provisions of the Protocol, it is very difficult to see any substantial difference between these so-called defensive agreements and the undertakings[1] which, by Article 13, States which are signatory to the Protocol may voluntarily give to the Council regarding the armed forces which might be used in the application of the sanctions. I say that thetwo things are similar for this reason: if in a given case the Council decides that the military sanctions are to be applied any Signatory is then entitled, at least if it chooses, to use the whole of its armed forces against the aggressor. This being so, the use of a specified portion of these forces in any given case comes to just the same thing whether it arises from the general agreement to apply sanctions or from a particular undertaking with the Council or from a particular agreement with another Signatory.
We may go to this length in thinking of these defensive agreements hereafter; in view of the fact that they must be public that any Member of the League may adhere to them and that they cannot be performed until the Council of the League says so, there could be in such a paper no effective provision which would go beyond the engagements under the Protocol itself.
Article 13 of the Protocol says that these separate agreements may be acceded to by any Member of the League of Nations. This language would include a Member of the League which was not a signatory of the Protocol. Under Article 13, it is only the States signatory to the Protocol which may make separate agreements. The point is doubtless of no real importance; but it cannot be intended that these separate agreements, if any be made, shall be acceded to by States other than those bound by the Protocol, for any such separate agreement would be in reality a paper subsidiary to the Protocol.