Part 11 (1/2)

[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.

{72}

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.

{74}

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]