Part 29 (1/2)
To this solution the parties are compelled to submit. They must put it into execution or comply with it in good faith.
If they do not do so, they are breaking an engagement entered into towards the other signatories of the Protocol, and this breach involves consequences and sanctions according to the degree of gravity of the case.
If the recalcitrant party confines itself to offering pa.s.sive resistance to the solution arrived at, it will first be the object of pacific pressure from the Council, which must exercise all its influence to persuade it to respect its engagements. If the Council is unsuccessful, it must propose measures calculated to ensure effect being given to the decision.
On this point the Protocol has been guided solely by the regulation contained at the end of Article 13 of the Covenant. The {180} Council may thus inst.i.tute against the recalcitrant party collective sanctions of an economic and financial order. It is to be supposed that such sanctions will prove sufficient. It has not appeared possible to go further and to employ force against a State which is not itself resorting to force. The party in favour of which the decision has been given might, however, employ force against the recalcitrant party if authorised to do so by the Council.
But if the State against which the decision has been given takes up arms in resistance thereto, thereby becoming an aggressor against the combined signatories, it deserves even the severe sanctions provided in Article 16 of the Covenant, interpreted in the manner indicated in the present Protocol.
_Sphere of Application of Methods of Pacific Procedure_.--Necessary as the system which we have laid down is for the purpose of ensuring settlement of all disputes, in applying it, the pacific aim which underlies it must be the only guide. It must not be diverted to other purposes and used as an occasion for chicanery and tendencious proceedings by which the cause of peace would lose rather than gain.
A few exceptions to the rule have also had to be made in order to preserve the elasticity of the system. These are cases in which the claimant must be nonsuited, the claim being one which has to be rejected _in limine_ by the Council, the Permanent Court of International Justice or the arbitrators, as the case may be.
The disputes to which the system will not apply are of three kinds:
_Article 4, paragraph 5._
1. The first concerns disputes relating to questions which, at some time prior to the entry into force of the Protocol have been the subject of a unanimous recommendation by the Council accepted by one of the parties concerned. It is essential to {181} international order and to the prestige of the Council that its unanimous recommendations, which confer a right upon the State accepting them, shall not be called into question again by means of a procedure based upon compulsory arbitration. Failing a friendly arrangement, the only way which lies open for the settlement of disputes to which these recommendations may give rise is recourse to the Council in accordance with the procedure at present laid down in the Covenant.
_Article 4, paragraph 7._
2. The same applies to disputes which arise as the result of measures of war taken by one or more signatory States in agreement with the Council or the a.s.sembly of the League of Nations. It would certainly not be admissible that compulsory arbitration should become a weapon in the hands of an enemy to the community to be used against the freedom of action of those who, in the general interest, seek to impose upon that enemy respect for his engagements.
In order to avoid all difficulty of interpretation, these first two cla.s.ses of exceptions have been formally stated in the Protocol.
3. There is a third cla.s.s of disputes to which the new system of pacific settlement can also not be applied. These are disputes which aim at revising treaties and international acts in force, or which seek to jeopardise the existing territorial integrity of signatory States.
The proposal was made to include these exceptions in the Protocol, but the two Committees were unanimous in considering that, both from the legal and from the political point of view, the impossibility of applying compulsory arbitration to such cases was so obvious that it was quite superfluous to make them the subject of a special provision.
It was thought sufficient to mention them in this report.
{182}
6.--ROLE OF THE a.s.sEMBLY UNDER THE SYSTEM SET UP BY THE PROTOCOL.
_Article 6._
The new procedure should be adapted to the old one, which gave the a.s.sembly the same powers as the Council when a dispute is brought before it, either by the Council itself or at the request of one of the parties.
The question has arisen whether the system of maintaining in the new procedure this equality of powers between the two organs of the League of Nations is a practical one. Some were of opinion that it would be better to exclude intervention by the a.s.sembly. Finally, however, the opposite opinion prevailed; an appeal to the a.s.sembly may, indeed, have an important influence from the point of view of public opinion.
Without going so far as to a.s.sign to the a.s.sembly the same role as to the Council, it has been decided to adopt a mixed system by which the a.s.sembly is, in principle, subst.i.tuted for the Council in order that, when a dispute is referred to it in conformity with paragraph 9 of Article 15 of the Covenant, it may undertake, in the place of the Council, the various duties provided for in Article 4 of the present Protocol with the exception of purely executive acts which will always devolve upon the Council. For example, the organisation and management of compulsory arbitration, or the transmission of a question to the Permanent Court of International Justice, must always be entrusted to the Council, because, in practice, the latter is the only body qualified for such purposes.
The possible intervention of the a.s.sembly does not affect in any way the final result of the new procedure. If the a.s.sembly does not succeed in conciliating the parties and if one of them so requests, compulsory arbitration will be arranged by the Council in accordance with the rules laid down beforehand.
If none of the parties asks for arbitration, the matter is referred back to the a.s.sembly, and if the solution recommended {183} by the a.s.sembly obtains the majority required under paragraph 10 of Article 15 of the Covenant, it has the same value as a unanimous decision of the Council.
Lastly, if the necessary majority is not obtained, the dispute is submitted to a compulsory arbitration organised by the Council.
In any event, as in the case where the Council alone intervenes, a definitive and binding solution of the dispute is reached.