[1] _Supra_, p. 18, _et seq._

[2] or the a.s.sembly.

[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 pa.s.se outre a 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 j.a.panese 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 j.a.panese proposed.

[9] pp. 61, 67.

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CHAPTER XII.

SANCTIONS.

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, a.s.suming 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; _certainly_ there 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 the {73} language 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 are _in theory_ merely 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 a.s.sembly 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.

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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 war _was_ a violation of those other Articles of the Covenant was not solved, particularly as the Covenant does not preclude a resort to war in _every_ case. 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 ent.i.ty 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 the {75} treaty 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 to _agree_ upon 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 a.s.sembly then adopted various interpretative resolutions regarding Article 16 which, with the proposed amendments (one of which was textually modified in 1924), are _provisionally_ in 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 inst.i.tute a complete economic and financial boycott of an aggressor.

This first paragraph of Article 16 of the Covenant says also that the aggressor shall _ipso facto_ be 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.

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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 a.s.sembly 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 unquestionably _it 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, _not_ to 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 and {78} effectively" 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 the _extent_ of 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 is {79} introduced 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 doc.u.ment.

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 a.s.sembly, 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 cite {80} the respective paragraphs of the two doc.u.ments in parallel columns:

_Paragraph 3 of Article 16 of _Paragraph 3 of Article 11 of the Covenant._ the Protocol._