Emphasis is laid by the Protocol on the creation and maintenance of demilitarized zones along frontiers. Article 9 of the Protocol treats of such zones, and their violation is, by Article 10 made the equivalent of a resort to war.
Any question of the real value, in the strict military sense, of agreements for demilitarized zones, may be left at one side. Undoubtedly, expert opinions differ in this matter. At least it may be said that such agreements have a value in the realm of feeling, which is as much a reality in international affairs as is a fleet of battleships.
If countries feel more secure because of the creation of such zones, certainly agreements regarding them are worth while on each side of a frontier.
As mentioned above, the question of demilitarized zones will certainly be one of the items of the agenda of the Conference on Disarmament. There are quite a number of precedents for the creation of such zones in recent international agreements. For example, the Treaty of Versailles[1] creates a demilitarized zone for fifty kilometres east of the Rhine. The Aaland Islands were demilitarized by the Treaty[2] which attributed them to Finland; and the Treaty of Lausanne[3] creates certain demilitarized zones, not only on each side of the Straits, but also in Western Thrace.
It is such agreements as these that are referred to in Article 9 of the Protocol as those "already existing under the terms of certain treaties." It is these zones, and others which may be established by consent of the neighboring States, which, according to Article 9, may be placed under a system of supervision by the League, either temporary or permanent. Obviously, any such supervision would come about by means of the voluntary agreement of the States concerned; and, in view of the fact that the Protocol makes a violation of a demilitarized zone theequivalent of a resort to war (Article 10), supervision by the League of the carrying out of these essential agreements would seem to be highly desirable.
Indeed, it may be said here that it will almost certainly be found that a system of international inspection will inevitably be a part of agreements for the reduction and limitation of armaments. A system of general international inspection was suggested as one of the parts of the so-called American Plan,[4] and the proposal for a system of supervision of demilitarized zones under the League of Nations is a part of that general idea.
I do not think it should be lost sight of that the thought of certain places where violence is forbidden has roots which go far back in human history. The idea of "sanctuary" is as old as any records that we have; and, if it be thought that I am going very far afield in speaking of sanctuary, I mention that the legal development of this general notion is a very early development. At least as long ago as Anglo-Saxon law in England, it was a peculiarly heinous offence to commit a crime on the King's Highway. It was a much more serious matter to break the peace there than elsewhere, because it was a breach of the King's peace; and this notion of the King's peace is said by high authority to be as old as the Salic Law.
We have heard much in the past of strategic frontiers. A great deal of ability and learning have been devoted toward the problem of making frontiers available for attack or for defence. It is perhaps true, as some critics appear to think, that the development of war in the air and of chemical warfare has made questions of strategic frontiers in general less important than heretofore. Perhaps that is so. I suggest, however, that even if it is so, that same ability and learning may be able to find in a combination of the ideas of demilitarized zones and international supervision a real solution of the problems arising from these new methods and discoveries; and, as I have pointed out, there is a very ancient human feeling behind this whole idea of peaceful places, on which popular support for such a programme may be based.
[1] Articles 42 to 44.
[2] A. J. I. L. Supplement 1923, Vol. XVII, p. 1.
[3] A. J. I. L., Vol. XVIII, January, 1924, pp. 58, 63.
[4] Annex F, p. 263.
For me to discuss the bearing of the Protocol of Geneva upon the security of States means that I go outside my brief.
No technical juristic reasoning is applicable to a feeling which lies at the heart of national sentiments, sentiments of patriotism and of devotion to country, which are as deep rooted in the souls of millions as are the love of family and the belief in religion.
This matter of security is in verity a matter of national feeling, a state of mind in the truest sense. For no human agency, no belief, no will, outside of the country concerned, can alter or affect it. Ourselves alone must say, we and our rulers, whether or not we are in fact secure—if we say yes, that is enough; but if we say no, it is not for any one else to question, much less for any one else to seek to argue the matter.
So I shall merely seek to state the theory of the Protocol in regard to this matter of security. That theory is this: if the nations of the world will agree to outlaw war, if they will agree to substitute law for force, to settle by pacific means all disputes among them, if they will agree to unite against any people which so agrees but then betrays humanity by tearing up its own agreement, then we may develop intra-nationally a belief in security, a confidence in a settled order, a hope for the future, which will slowly but inevitably disarm the forces for war and lift the curtain on a new day.
Such is the theory of the Protocol of Geneva.
Article 20 of the Protocol provides that any dispute as to its interpretation shall be submitted to the Permanent Court of International Justice. No provision similar to this is to be found in the Covenant.
The importance of this provision does not consist chiefly in its application to the Protocol. Even if and when the Protocol comes into effect the provision in itself will not be very important, because the Protocol is only a temporary document to be transformed into amendments to the Covenant. If these amendments include the incorporation into the Covenant of a similar provision to the effect that any dispute as to its interpretation shall be submitted to the Permanent Court of International Justice, such an amendment will be of supreme importance. With the Protocol embodied in the Covenant, the latter document will be by far the most important international treaty in existence. If all questions of its interpretation are to be submitted to the Permanent Court, that tribunal will have judicial powers of the most far-reaching character.
It is true that the extension of the powers of the Court so that they would include the interpretation of the Covenant is logical in so far as it relates to the settlement of disputes between Members of the League or other States; but the Covenant contains many other provisions bearing only indirectly upon such disputes. The Covenant provides for the Council and the Assembly and for their meetings, their powers and procedure, powers which under Articles 11 and 19 of the Covenant, for example, are expressed in the most general terms. The Covenant provides for the mandate system for certain territories and for the supervision by the League of numerous international agreements and bureaus of all sorts. Now, in most of these matters the method of interpreting the Covenant has been by consent. Members of the Council or, as the case may be, of the Assembly agree on whatthey may do and proceed accordingly. If differences of view as to the interpretation of the Covenant in this regard are to be submitted to the Permanent Court, that tribunal would have in some respects a power superior to that of either the Council or the Assembly.
Let me give an instance. The fifth paragraph of Article 4 of the Covenant provides as follows:
"Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a Member at any meeting of the Council during the consideration of matters specially affecting the interest of that Member of the League."
This paragraph gave rise to a difference of opinion as to what States are entitled to sit on the Council when it considered questions arising under Article 213 of the Treaty of Versailles and similar Articles in the other Peace Treaties relating to the investigations by the Council of the armaments of Germany and other countries. When the question came up, the Council took the opinion of Jurists on it and reached a common sense result.[1] Under a general clause giving jurisdiction to the Court in all matters of interpretation,[2] it would seem that any Member of the League could require a question as to the composition of the Council on a particular occasion to be decided by the Court before the Council could meet. It is obvious that any such method of regulating procedure would give rise to impossibilities which should be avoided.
[1] See League of Nations Official Journal, July, 1924, p. 922 and Cmd. 2287 (Miscellaneous No. 20, 1924), p. 16.
[2] Many people suppose that the Supreme Court of the United States has such general powers regarding our Constitution, but this is not so. Read, for example, Article I, Section 5 of the Constitution; and see Massachusettsv.Melton, 262 U. S., 447.
I trust that no one appreciates better than myself that examination of a document bit by bit and piece by piece tends to blind the vision. One sees the trees and not the forest. Worse than that, one gets a false vision, a picture, if I may change the metaphor, of the buttons on the coat but not of the man wearing the coat and still less of the soul within the man.
A critical examination of an international legal document leads to a discussion of trivialities and to hypotheses of almost impossible possibilities. Of course it is true that the carrying out of a great international agreement in the light of the facts and conditions of international life as they arise does not proceed along the technical lines that I have followed, but rather along those lines of policy which really control international action. I do not mean necessarily selfish policy, but policy in the larger sense of decisions based upon the best judgment of those in power for the time being.
What really ought to be done in studying any proposal such as the Protocol of Geneva, is to realize, if possible, the ultimate purpose of the document and to visualize, so far as we can, what would happen if it came into force, not so much whatmighthappen under a particular phrase, but how the international relations of the world would proceed if the whole agreement were a reality.
I have mentioned more than once that the Protocol of Geneva contemplates that its provisions shall form part of the Covenant; in other words, that the two documents shall be amalgamated, forming an amended Covenant. With the hope of facilitating a general view, I have endeavored to put the two documents together in the form of an "amended" Covenant, and the result of this effort is set out below.[1]
Looking at the text of this "amended" Covenant, one may observe that while twenty of the present twenty-six Articlesremain unchanged in form, Articles 12 to 17, inclusive, are expanded and somewhat rewritten; and eight Articles are added; and I do not think that the text of the "amended" Covenant could be phrased in much less language than it appears below.
Of course the length of a document in itself is not of much consequence; but it is not unimportant to observe that the "amended" Covenant is very much longer than the Covenant as it now reads. This fact, I say, is important, because it is the visible evidence of a reality. The Protocol of Geneva is not a mere completion of the provisions of the Covenant. Advocates of the Protocol make a very serious mistake when they erroneously say that the Protocol of Geneva is merely a rounding out of incomplete and partial agreements of the Covenant.
And it must be borne in mind that new or varied phrases in one Article may change the whole; the amended Covenant is altered not only in those Articles which may be textually amended, but throughout; I attempted to show this in detail as to Article 10 of the Covenant[2]; like any other document, the entire new paper must be read together.
What the Protocol of Geneva does is to create a new and a different League of Nations. It is true that what I may call the procedural and structural functions of the League are not changed; but the system of international relations which is now set up under the League is so much changed that one may properly say that it is an entirely new and different system.
To my mind, there are three outstanding features of the "amended" Covenant. It creates a complete system of compulsory arbitration; it consecrates the legality of thestatus quo; and it is a general defensive alliance.
Now let us compare these three features of the "amended" Covenant with the ideas of the existing Covenant.
The first mentioned, the system of compulsory arbitration, is by far the most important and the one that should be the starting point for any view of the "amended" Covenant as a whole. In this arbitration system is contained the idea of outlawry ofwar which the document embodies. The arbitration of disputes under the new system is to take the place of war, which is outlawed.
All that the Covenant did was to forbid some wars, to provide for delay in every case, and otherwise to rely wholly upon voluntary arbitration and, in cases where they could be obtained, upon unanimous recommendations of the Council. The framers of the Covenant were most careful to avoid the idea of compulsory arbitration, for all that even the unanimous recommendation of the Council could do was to prevent hostilities.
Under the "amended" Covenant, the defensive alliance of the Members of the League becomes complete. It is intended to see to it that arbitral decrees are carried out; to see to it that thestatus quoremains untouched, except by voluntary agreement; and to see to it that the violator is met by the combined forces of other States.
Contrast the provisions of the Covenant, which contemplate no concerted action, unless agreed to at the time, other than economic and financial pressure; and the preservation of thestatus quoonly so far as Article 10 of the Covenant extends.
It would be unfair and untrue to call this new system a super-state, for it is nothing of the sort; but it would be in a sense untrue also to say that this new system is merely a development of the Covenant itself; it is the sort of change that one might call a development if it had taken two or three generations or a century to bring it about; but not properly to be called a development when it all comes at once.
The natural conclusion to be reached is that such a complete change cannot be realized at this time, and that is the sound conclusion. That a system of law should be built up governing the international relations of the States of the world, by which their differences should be adjusted by the orderly processes of legality, excluding as a method of adjustment the chaos of war, may be admitted. Thus far, the changes proposed by the Protocol of Geneva are desirable; the question is merely as to the length to which the countries of the world are willing to go inthis direction at this time; and I include as a part of this development, the outlawry of war, the agreement that war is not to be resorted to by any State, that it should disappear from international relations, except in so far as force must necessarily remain as defence.
It is to be hoped that this part of the Protocol may stand; and it must be admitted that there is inherently andipso factoto some extent a consecration of the legality of thestatus quoby the outlawry of war and by peaceful settlement of disputes by legal means.
On the other hand, various features of what I may call the defensive alliance portion of the Protocol seem to me to be impossible and at this time inadvisable. They are supposed to flow logically from the system of compulsory arbitration; and certainly the problem which they attempt to solve does follow logically from any system of compulsory arbitration and outlawry of war. If we assume war to be outlawed and a system by which there is to be a legal settlement of disputes in place of war, the question of course arises: Well, what is to happen in a given case if some State which has accepted this system and has agreed to it should refuse to abide by it, should not carry out an award or decision or should even take up arms against it, what then?
The Continental mind very logically answers this question by saying there must be a system of execution of decrees and that if you outlaw war, you must have a combination for defence. This is true from the point of view of logic; but it is not true from the point of view of life. Compulsory arbitration and outlawry of war are untried ideas, and we cannot say now, under all circumstances, what should be done in the course of their working, if they are put to work; much less can Nations now bind themselves as to a definite and complete course of action under all possible and varying future circumstances. That such a system of concerted action against aggression as is proposed by the Protocol of Geneva may perhaps in time be worked out along with the growth and development of the ideas of outlawry ofwar and of arbitration, may be admitted. That it can be done now is, to my mind, contrary to the realities of life and to the lessons of history.
There is another phase of this last discussion which should be particularly noticed. It is impossible for any such agreement for concerted action not to have a direct bearing upon countries which are not parties to the agreement; in other words, Russia and the United States. We must admit at least the theoretic possibility of a conflict between one of the Members of the League and one of these two Great Powers, insisting, if we will, that such a possibility is highly remote so far as the United States is concerned, and utterly unknowable so far as Russia is concerned; but none the less a possibility.
And certainly, in view of that possibility, any provisions of a document which looks toward force as a last resort of defence should, in my judgment, be drawn with the utmost care to avoid the idea of a possible conflict between the parties to the document on the one hand and an outside State on the other. Outlawry of war and arbitration are things to be agreed upon and not to be compelled against those who are unwilling to agree; for the breach of such an agreement is a much more serious and a very different thing than a refusal to arbitrate, or even than going to war when there is no agreement.
That the hospitality, if I may call it so, of the League of Nations should be extended to States which are unwilling to join it; that its facilities should be offered to these States for the settlement of disputes in every case where they are willing to accept them; that the covenants of the Members of the League for justice toward an outside State should be as explicit and complete as its covenants toward a Member, I quite agree; the covenants of the Members of the League should be covenants of peace among themselves, and of justice toward all. This is the road to a universal League of all Nations.
If it be said that to Finland or the Baltic States or Poland or Roumania or Turkey there is danger from their great neighbour,I cannot deny such a possibility; and if any Members of the League are willing to join with such States in protection against such danger, either in advance of its occurrence or when it happens, I would see no objection to it, if such agreements were coupled with all the offers of peaceful settlement that could be written, as well as with offers of membership in the League, either permanent orad hoc.
To a state which is contemplating the possibility of signing the Protocol of Geneva, it may well be that the provisions of that document regarding sanctions stand out as the most important, the ones having the greatest possibilities as to obligations of future action. This is a very natural point of view, and even a very proper one. And, while I myself am very deeply convinced that, from the point of view of world politics, the most far-reaching and vital provisions of this document are those which refer to arbitration and to the outlawry of war, yet perhaps for that very reason, I am equally convinced that the most serious changes which are necessary in the paper are changes in its provisions for sanctions and for enforcement.
With the principles of compulsory arbitration I am wholly in accord; with the principle that outlawry of war should follow as the necessary and natural consequence of the substitution of a reign of law for a reign of force I quite agree; and that some tribunal should determine, if need arise, that the agreement has been broken and that there is an "outlaw," is a natural consequence of those principles; and that there may be defence against aggression, if it comes, almost no one will deny. But there, I think, we must stop so far as present agreement is concerned. That any State may,if it chooses, go to the defence of another against an adjudged aggressor I would concede; but that all States can be or should be now required to sign an agreement so to go to such defence, I deny. In the present state of world opinion and when its own direct interests are not involved, any free people can well say that it will not or ought not to sign such an undertaking.
So I say that, while arbitration may be agreed to in advanceand outlawry of war may be agreed to in advance, sanctions and assistance in defence must be voluntary.
Where does all this leave the problems of disarmament and security?
I answer by saying that the solution of these problems is very difficult, because with it are involved feelings of national fear and haunting doubts of possible national disaster. The feeling of security must be a plant of slow growth, and progress toward disarmament cannot be realized except to the extent that that growth comes. All that can be done now is to make a beginning, and, if too much is attempted, less will be accomplished. The world must rely on the development of the new idea of the reign of law and reach its feeling of security as that reign succeeds and triumphs.
The Protocol of Geneva is one of the most important of modern international documents. This is true whether it comes into force as a binding treaty or whether it does not; and it is true because the Protocol represents a development of international thought since the World War along lines of what may be called international morality, of what may almost be called international religion, which, while not novel in the realm of thought, were wholly novel in the diplomatic field of action.
The belief that international law must be strengthened, the thought that it must lay hold of international questions before the time of war and the idea that the security of a country is to be a security for peace and not simply a security in war, were the principles upon which the Covenant of the League of Nations was based; but in that document they were to some extent formulated only as hopes for the future.
These ideas which the Protocol of Geneva seeks to make complete realities have fundamentally become a part of international life. To my mind, they are certain to be carried out in some document in the near future and one of their incidents will be the realization of schemes for the reduction of armament as an incident of the development of the feeling which exists as to security.
The Protocol of Geneva will undoubtedly be much changed as a result of the consideration which is now being given to it by the various important governments of the world.[3] In various respects the Protocol goes farther than cautious public sentiment of countries like Great Britain and her Dominions is, or ought to be, willing now to proceed; but it is these very matters which can easily be changed and which will be changed.
The Conference on Disarmament and its result are the cornerstones on which the Protocol of Geneva rests. That Conference must be held and it must have a result; the public sentiment of the world demands it; and the satisfaction of that demand involves the adoption by the Members of the League of the Protocol of Geneva, not the document as it now is, but as it will be.
[1] See Annex G, p. 271.
[2]Supra, p. 84.
[3] Since this monograph was written, I have received the text of the Report of the British Delegates regarding the Protocol of Geneva (Miscellaneous No. 21, 1924, Cmd. 2289). It is reprinted as Annex E, page 217. It is a most valuable and interesting document. I have carefully considered its conclusions, some of which are not the same as my own, and despite my very high regard for its authors, I see no reason to change anything that I have written.
THE HIGH CONTRACTING PARTIES,
In order to promote international co-operation and to achieve international peace and security
by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations between nations,
by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and
by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another,
Agree to this Covenant of the League of Nations.
The original Members of the League of Nations shall be those of the Signatories which are named in the Annex to this Covenant and also such of those other States named in the Annex as shall accede without reservation to this Covenant. Such accession shall be effected by a Declaration deposited with the Secretariat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League.
Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments.
Any Member of the League may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.
The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat.
The Assembly shall consist of Representatives of the Members of the League.
The Assembly shall meet at stated intervals and from time to time as occasion may require at the Seat of the League or at such other place as may be decided upon.
The Assembly may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.
At meetings of the Assembly each Member of the League shall have one vote, and may have not more than three Representatives.
The Council shall consist of Representatives of the Principal Allied and Associated Powers, together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Spain and Greece shall be members of the Council.
With the approval of the majority of the Assembly, the Council may name additional Members of the League whose Representatives shall always be members of the Council; the Councilwith like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council.
The Council shall meet from time to time as occasion may require, and at least once a year, at the Seat of the League, or at such other place as may be decided upon.
The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.
Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League.
At meetings of the Council, each Member of the League represented on the Council shall have one vote, and may have not more than one Representative.
Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.
All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting.
The first meeting of the Assembly and the first meeting of the Council shall be summoned by the President of the United States of America.
The permanent Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary General and such secretaries and staff as may be required.
The first Secretary General shall be the person named in the Annex; thereafter the Secretary General shall be appointed by the Council with the approval of the majority of the Assembly.
The secretaries and staff of the Secretariat shall be appointed by the Secretary General with the approval of the Council.
The Secretary General shall act in that capacity at all meetings of the Assembly and of the Council.
The expenses of the League shall be borne by the Members of the League in the proportion decided by the Assembly.
The Seat of the League is established at Geneva.
The Council may at any time decide that the Seat of the League shall be established elsewhere.
All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women.
Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities.
The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable.
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, taking account of the geographical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments.
Such plans shall be subject to reconsideration and revision at least every ten years.
After these plans shall have been adopted by the severalGovernments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council.
The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety.
The Members of the League undertake to interchange full and frank information as to the scale of their armaments, their military, naval and air programmes and the condition of such of their industries as are adaptable to war-like purposes.
A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Articles 1 and 8 and on military, naval and air questions generally.
The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.