International law applied to the Treaty of peace

Front matter

INTERNATIONAL LAW

APPLIED TO THE

TREATY OF PEACE

Part 1. The Covenant of the League of Nations

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 honorable 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 organized peoples with one another,

Agree to this Covenant of this League of Nations.

THE LAW.

Not only does the Covenant fail to provide any means for the "firm establishment of the understandings of international law," but the treaty itself appears to discard many vital principles of the customary as well as of the conventional law of nations. (See Comment opposite Articles 232-287.)

Article 1. Members of the League shall be those signatories named in the Annex and also such of these named (as invited) as shall accede without reservation by a declaration deposited with the secretariat within two months of the coming into force of the treaty.

Thirty-two States, dominions, and colonies mentioned in the Annex as signatories are declared members (though China, one of the states mentioned, refused to sign) and thirteen others are named as those invited to become members, making forty-five in all.

In 1910, Oppenheim, the eminent English successor to Westlake as Whewell Professor at Cambridge, asserted (Vol. I, Int. Law, pp. 162-64) that there were then in Europe seventy-four states possessing international personality and therefore members of the Family of Nations. He included the twenty-four German states and free towns. He cites twenty-one states in the Americas, one in Africa and one in Asia. As to China, Siam, Afghanistan and Thibet he denied to them the status, asserting that they possess international personality only for some purpose. His list embraced ninety-seven. None of the British dominions or colonies is mentioned as possessing the essential attributes of an international person qualified for association in the Family of Nations. (See W. Allison Phillips, The Peace Settlements, 1815 and 1919. Edinburgh Review, July, 1919, as to exclusion of German states from the Holy Alliance.)

Any fully self-governing state, dominion or colony may become a member if its admission is agreed to by two-thirds of the Assembly, provided that it shall give

This paragraph confounds all previously accepted principles with respect to International personality and sovereignty. If it connotes the assumption ipso facto by such doeffective guarantees of its sincere intention to observe its international obligations and shall accept such regulations as may be prescribed by the League as to its military and naval forces and armaments.

minion or colony of a bona fide free and independent status, there is nothing inconsistent, but then it would cease to be a dominion or colony. Thus the British empire would be broken up.

Half and part-sovereign states says Oppcnheim (Vol. I, pp. 529-530) may be parties to international negotiation, but so-called Colonial states, as the Dominion of Canada, can never be parties to International negotiation. Thus viewed from the standpoint of the Law of Nations, the Dominion of Canada, the Commonwealth of Australia, New Zealand and the Union of South Africa are British territory. (Ibid Vol. I, p, 231.)

No genuine League of Nations can be founded upon such basic inequalities. These inequalities appear not only in the organic structure from the outset but they appear with respect to the treatment of subsequently admitted members.

Any member 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 withdrawal.

The effect of notice of intended withdrawal would be immediately to transfer to the League the power of inquiry into and decision upon the whole body of international relations of the notifying state. Nor does it appear that time would bar any case.

In a particular case a state may, of its own free will, submit to an outside authority for decision the quection c? its fulfillment or nonfulfillment of certain obligations, without derogating in any way from its sovereignty; but to transfer the right of final decision over the whole of its foreign relations is to yield the very essence of external sovereignty. Such state would occupy the position of ward to the outside authority. (See 1 Halleck, Ch. Ill, Sec. 1; Blumtschli, Sec. 64; Vattcl, Ch. 1; Manning, p. 93; Hall, Sec. 1; 1 Westlake, Ch. 3.)

Article 2. The action of the League shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat.

Article 3. The Assembly shall consist of representatives of members of the League. It shall meet at stated intervals and from time to time as occasion may require, and at its meetings may deal 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 not more than three representatives.

Article 4. The Council shall consist of representatives of the Principal Allied and Associated Powers (the United, States, Great Britain, Italy, France and Japan), together with four other members to be selected by the Assembly from time to

It will be observed that the Assembly, which is a representative body, in principle at least, is not required to meet within any definite period as is the Council (infra Article 4). Although apparently clothed with concurrent power, it is in vital respects subordinate to the smaller Council. The basis of legal equality in any League of Nations necessarily requires equality in voting. (See Scott, The Hague Peace Conferences, Vol. 1, p. 37.)

It will be noted that the principle of equality disappears at this point, the five Great Powers constituting themselves an indefeasible majority. Yet every attempt at organizing a League of Nations must start from and keep intact the independence and equality of time in its discretion. Belgium, Brazil, Spain and Greece are named provisional members.

all civilized states. (Oppenheim (1919), The League of Nations, p. 33.)

With the approval of a majority of the Assembly, the Council may name additional members whose representatives shall have fixed places in the Council.

The Council shall meet from time to time as occasion may require and at least once a year, and it may deal with any matter within the sphere of action of the League or affecting the peace of the world.

The enlargement of the Council can take place only by unanimous consent of the Council, with the approval of a majority of the Assembly. Self-interest will always adjust and readjust the balance in the Council.

Any member not represented on the Council shall be invited to send a representative to sit as a member at any meeting during the consideration of matters specially affecting the interests of such member.

At meetings of the Council each member represented shall have one vote and not more than one representative.

Article 5. Except where otherwise provided, decisions of the Assembly and the Council shall require agreement of all members represented at the meeting.

Matters of procedure, including appointment of committees to investigate particular matters, may be decided by a majority present.

Although a state whose affairs are under consideration by the Council may have a representative thereon, the rule of unanimity excludes the vote of this added representative. (Infra Article 5.) Such representative is therefore not an equal in fact.

While there is equality in the vote of the Council, the principle is nullified by inequality of representation.

That is to say, there must be agreement as to such representatives present.

The first meeting of the Assembly and the first meeting of the Council shall be summoned by the President of the United States.

This would constitute the President of the United States the presiding officer of both bodies temporarily, at least.

article 6. The permanent secretariat shall be established at the seat of the League. The secretariat shall comprise a Secretary General and such other secretaries and staff as may be required.

The first Secretary General shall be the person named in the Annex; thereafter he shall be appointed by the Council with the approval of a majority of the Assembly.

Secretaries and Staff 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.

As to the possible magnitude of the personnel, see infra Comment opposite Article 282.

The expenses of the Secretariat shall be borne by members in accordance with the apportionment of expenses of the International Bureau of the Universal Postal Union.

rticle 7. The seat of the League is established at Geneva. The Council may decide at any time to establish the seat elsewhere.

All positions under or in connection with the League including the secretariat, shall be open equally to men and women.

Representatives of members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities-

Diplomatic privileges and immunities include extra-territoriality, that is, immunity from local law, civil and criminal, in foreign countries, such immunities extending to the agent's residence and to those in his suite. Owing to the inviolability attaching by the law of nations to the person of a diplomatic agent, a crime committed against him is punished with exceptional severity by the laws of all states. (U. S. vs. Hand, 2 Wash. 435.)

The diplomatic immunities extended to all officials of the League must be considered as deriving from the respect due to the sovereignty of the League as a distinct political entity, as the immunities of an ambassador flow from the respect due to the person of the sovereign v/hom he represents.

Yet Article 7 appears to extend the principle far beyond its application ,even in the case of ambassadors in clothing these officials with the status apparently anywhere "when engaged on the business of the League." Diplomatic immunities do not attach under the law of nations to ambassadors passing through third countries. They can claim no more than courteous treatment. (1 Westlake, pp. 273-275; 1 Oppenheim, pp. 469-470; 1 Twiss, Sec. 222; 1 Wharton, Sec. 97; 4 Moore, Sec. 643.)

By the Treaty of Berlin, 1878, and the Treaty of London, 1883, instituting the Danube Commission, the principle of inviolability was recognized as between the signatories as attaching to the respective representatives, their archives, etc. But it was not contemplated as of universal application, as in the present instance where League officials will be sent into the territories of non-members.

The buildings and other property occupied by the League or its officials or by representatives attending its meetings shall be inviolable.

Article 8. The members of the League recognize that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common motion of international obligations.

The Council, taking into account the geographical situation and circumstances of each state, shall formulate plans for such reduction for 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 adopt-

The deduction is a fair one that "the geographical situation and circumstances" to be taken into account in reduction of armaments create an exception in favor of the Great Powers, whose far-flung empires may be thought to require large military and naval establishments. And the Great Powers, constituting a dominant force in the Council, will formulate plans for themselves as well as for other states.

The hegemony of the Great Powers in the League is silently recognized throughout the Covenant. Yet historically a Great Power of today is not necessarily a Great Power of tomorrow. Spain, Portugal and Sweden were Great Powers in 1815. Germany, Austrias — ed by the several governments the limits of armaments fixed therein shall not be exceeded without the concurrence of the Council.

Members agree that the manufacture byprivate enterprise of munitions of war is open to grave objections. The Council shall advise how the evil effects can be prevented.

Members undertake to interchange full and frank information as to the scale of their armament, their programs and of their industries adaptable to warlike purposes.

Hungary and Russia were Great Powers in 1914.

And, it may be asked, who will keep in order those who are to keep the world in order?

Article 9. A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Articles I and 8 relating to military and naval questions.

Article 1 0. 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.

This would undoubtedly be a military commission whose functions would include superintending disarmament of states newly admitted as well as directing the forces necessary to vindicate international obligations.

This Article embraces two distinct obligations in the first sentence: viz., "To respect" the territorial integrity and existing political independence of member states, and to "preserve" the same as against external aggression.

A state undertaking to respect the territorial integrity of another contracts to refrain from doing anything that shall in any way impair or impeach that territorial integrity, including its possessions, dependencies, colonies, protectorates, leased territories, spheres of influence and hinterlands. AH of these terms express degrees of territorial rights. (1 Westlake Ch. 6.)

Under existing principles of the law of Nations states are under a general duty to respect the territory and independence of all other states. This duty connotes the right of all states to complete immunity from interference by others. But there are exceptions to this general rule recognized by the law. A state may lawfully decline to respect the territory and independence of another (1) in self-defense, (2) in accordance with treaty stipulations, (3) on grounds of humanity, and (4) in behalf of an oppressed population. (Davis 4 ed. p. 104, Woolsey Sec. 43; Wheaton Sec. 36; Snow p. 57; Hall Sec. 88; Lawrence Sec. 74-89; 1 Moore p. 73.)

The acceptance of the obligation "to respect" the territorial integrity and existing political independence of member states means therefore a mutual engagement not to interfere on grounds of humanity or to assist an oppressed people or otherwise, within the territorial limits of member states. This obligation would probably forbid extending a recognition of belligerency to revolting peoples within the territories of member states.

The second obligation in the first sentence of Article 10 is that to preserve as against external aggression the territorial integrity and existing political independence of member states; so that there is not only the duty to abstain from giving any recognition or assistance to a revolting portion of a member state, but there exists the duty to aid in putting down such revolt should some other stato assist the revolting portion.

It is plainly a renewal of the proposition of the Holy Allies at the Congress of Aix-Ia- Chapelle, 1818, to stereotype the state possession, which was promptly rejected by Lord Castlereagh as impossible of achievement until existing wrongs had been righted. (Allison's Life of Castlereagh, Vol. 5, p. 66.)

Article II. Any war or threat of war, whether immediately affecting members or not, is hereby declared a matter of concern of the League, and the League shall take any action deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General shall on the request of any member forthwith summon a meeting of the Council.

What, it is pertinent to ask, constitutes a threat of war? The extent and variety of acts and situations embodying a threat of war defy enumeration. It is impossible even to catalogue acts and causes cf war. One instance of a threat of war, in that it is a hostile act, may be cited: namely, any premature recognition of belligerency or of independence extended to a people struggling to be free. (Hall, pp. 39-42; Woolsey, Sec. 180; Davis, 4th ed. pp. 277-278).

The term "threat of war" is absolutely undefined in the terminology of the law of nations. It may be construed to embrace any degree of friction in international negotiation and authorize intervention by the League.

It is the friendly right of each member to bring to the attention of the Assembly or Council any circumstance whatever affecting international relations which threatens to disturb international peace or good understanding.

It is presumed that the right of the Assembly or Council to obtrude itself into the ordinary diplomatic negotiations between states would not be needlessly exercised, yet the right is apparently contemplated if the negotiations do not move smoothly. The possession of the untrammeled right of negotiation is the test of independence. (Manning pp. 93-100; Westlake, Chap. VII; 1 Halleck, Ch. IV., Sec. 1.)

Article 12. Members agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by arbitrators or the report by the Council. In any case the award by arbitrators shall be made within a reasonable time and the report of the Council shall be made within six months after submission.

The obligation embodied in this Article has been assumed generally by the civilized states or the world in bilateral treaties; and since 1899 the Permanent Court of Arbitration at The Hague has been successfully occupied with a great variety of disputes. It is true that in a great majority of these bilateral treaties, "questions of honor and vital interest," that is, political questions, are excepted and reserved. There are certain political questions that are admittedly not arbitrable, as, for example, with us, one involving the validity of the Monroe Doctrine.

The principle of delay has been similarly embodied in bilateral treaties, providing for commissions of inquiry in place of reference to arbitration, though it has not been extensively applied as yet, except by the United States in the so-called Bryan treaties of 1913- 1914.

Article 1 3. Members agree that whenever a dispute arises between them which they recognize as suitable for submission to arbitration, and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration.

Disputes as to interpretation of treaties, as to questions of international law, as to the existence of any fact which, if established, would constitute a breach of international obligation or as to the extent and nature of reparation to be made for such breach are declared to be suitable for arbitration. For the consideration of any such dispute the Court of Arbitration to which such case is referred shall be the court agreed on or stipulated in any convention between the parties. Members agree to carry out the award in good faith, and not to resort to war against a member complying therewith. In the event of failure to carry out such award the Council shall propose what steps should be taken to give effect thereto.

This Article puts "teeth" in the conventions of 1899 and 1907 establishing the Permanent Court of Arbitration at The Hague. This Court has heard and determined many grave controversies, but its determinations have been founded largely upon compromise and expediency rather than upon the application of the principles of law. It was due to an existing sense of the inadequacy of this Court as a means for building up a body of legal decisions that the American delegation to The Hague Conference of 1907 was able to bring about the adoption of a draft convention for the institution of a Court of Arbitral Justice. The matter of representation alone prevented it from being put into immediate operation, a difficulty easy of solution today.

The convention establishing the Permanent Court of Arbitration appears to be the only one of the dozen or more of benefacient conventions signed at The Hague in 1907 that is recognized by the Principal Allied and Associated Powers as possessing any binding force or as worthy of survival. (See Article 237.) There appears to be a distinct break with the past twenty years' development of law and judicial processes as the pre-eminently desirable means toward the establishment of P~ace, and an espousal of the doctrine of force.

Article 1 4. Council shall formulate and submit to members of the League for adoption plans for a Permanent Court of International Justice.

The convention referred to (supra, opposite Article 13) is ready at hand, having been accepted by all the civilized states of the world. (See Scott, The Hague Conferences.)

Article 1 5. Members agree that any dispute likely to lead to a rupture, not submitted in accordance with Article 1 3, will be submitted to the Council. Any party may effect submission by giving notice to the Secretary General. The parties will communicate to the Secretary General statements of their case with all revelant facts and papers, and the Council may forthwith direct the publication thereof.

The Council will endeavor to effect a settlement, and if successful a statement shall be made public, giving the facts and explanations. If the dispute is not settled the Council, either unanimously or by majority vote, shall publish a report and recommendations. Any member of the League or Council may do likewise.

If the report of the Council is unanimously agreed to by members other than the representatives of one or more parties to the dispute, such members will not go to war with any party complying with the recommendation.

If the Council fails to reach a report unanimously agreed to by members other than those in dispute, members reserve the right to take such action as they consider necessary for the maintenance of right and justice.

This Article attempts to deal with disputes other than those known as "justiciable," dealt with in Article 13. It is realized that some of these questions are beyond amicable solution. They are outside the realm of law and no principle of law or possibility of compromise can give hope of settlement. In such circumstances the League apparently sanctions a resort to war, after conciliation through the medium of the Council has failed. The principles embodied in Articles 12, 13 and 15 are sound; the objection lies in the methods of their application.

What provision is made, it may be asked, for cases of self-defense against sudden attack, as for example, a border raid? Must the state assailed submit passively until the Council has deliberated upon the question of "external aggression" or upon conciliation? The right of self-defense appears nowhere to he recognized in the sense that it has heretofore existed. (Hershey, 144-146, and notes.)

If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report and make no recommendations.

It will be observed that as to whether or not a dispute arises out of a matter "which by international law is solely within domestic jurisdiction" is for the Council to find. There is a great variety of things a state may do in pursuance of its territorial supremacy, or domestic jurisdiction, which have international effect, and which may or may not infringe the rights of other states. Thus all persons, including aliens, within the territorial limits of a state are subject to the juricdiction of that state, yet the state to which the alien owes allegiance may rightfully protect him abroad and compel a standard of treatment recognized by International Law. (See Borchard, Diplomatic Protection, etc.) So all exercises of domestic jurisdiction having international effect may be held to involve international concern. Knowing that "it is the duty of a good judge to extend his jurisdiction," it is conceivable that much exercise of domestic jurisdiction having international effect might ultimately pass under the control of the Council in the application of this Article.

The Council may in any case refer the question to the Assembly, and it shall be referred to tli2 Assembly at the request of either party, if such request be made within fourteen days after the submission of the dispute to the Council. The Assembly shall have all the powers of the Council conferred in this Article and in Article 12, provided that a report made by the Assembly be concurred in by members in the Council and a majority of other members of the League other than the parties to the dispute.

The apparent concurrent power of the Assembly will be seen by this Article to have disappeared, requiring the concurrence of the Council to effectuate its action, thus leaving the Ccuncil the preponderantly powerful authority in the scheme.

Article 1 6. Should any member resort to war in disregard of its covenants under Articles 12, 13 and 15, it shall ipso facto be deemed to have committed an act of war against all other members of the League, which hereby undertake to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the Covenant-breaking state and the nationals of any other state.

It shall be the duty of the Council in such case to recommend to the several governments concerned what effective military, naval or air force the members shall severally contribute to the armed forces to be used to protect the Covenants of the League of Nations.

Members of the League agree, further, mutually to support one another in financial and economic measures in order to minimize the loss and inconvenience resulting, and that they will afford passage of troops through their territories.

It is for the Council (or the Assembly with the consent of the Council under Article 15) to decide when the contingency arises under which the duty of invoking and applying measures of commercial warfare falls upon members.

The term "resort to war" must be held to include defensive and offensive warlike violence, as well as war legally declared and war in its material sense. (The Three Friends (1896) 166 U. S.) The obligations under this paragraph are clear and definite.

The duty of commercial boycott appears to arise ipso facto with a determination by the Council as to a "resort to war"; the duty to contribute armed forces appears to rest on a decision of the League ad referendum.

Whether or not a member contributes to the armed forces he shall contribute his share toward the financial burdens assumed by those states employing their forces against the recalcitrant state, and become a passive ally at least to the extent of permitting the passage of troops across his territory. Such assistance constitutes war quite as fully as though troops were furnished.

Any member of the League which has violated any covenant may be declared no longer a member by unanimous vote or the Council excluding the vote of the member in disfavor.

Article 1 7. This Article extends the force of Articles 12 to 16 inclusive to non-members of the League, who shall be invited to accept the obligations of membership for the purpose of the dispute.

Upon such invitation the Council shall immediately institute an inquiry.

This paragraph clothes the Council with jurisdiction over all matters affecting or held to affect international relations arising in non-member states, with or without the approval of such non-members. It necessarily involves a denial of the heretofore accepted principles of the equality and independence of states.

There is no limit to the measures that may be taken.

If both parties to the dispute be non-members and decline to accept the obligations of membership, the Council may take such measures and make such recommendations as will prevent hostilities and result in settlement.

On the whole this Article reduces those non-members desiring to retain sovereignty and independence to the same condition of wardship to the Council as is produced in the cases of members other than the Principal Allied and Associated Powers.

The power to be assumed by the Council appears to be that of unlimited intervention. Consent to the exercise of the power may be inferred as to signatories, but it can not be inferred as to non-signatory or non-member states. The principle of independence would vanish from the law of nations under this Article.

Article 1 8. Every treaty or international engagement entered into hereafter by any member shall be forthwith registered with the Secretariat and published. No such treaty shall be binding until so registered.

Article 19. The Assembly may from time to time advise the reconsideration of treaties which have become inapplicable.

Article 20. Members severally agree that the covenant abrogates all obligations and understandings inter se which are inconsistent with the terms thereof, and that they will not hereafter enter into inconsistent engagements. Any member bound by inconsistent obligations shall take immediate steps to procure release therefrom.

The execution of this Article is left to the conscience of the members; there is no provision for scrutiny into existing treaties of alliance and other conventions serving special aims, nor is there any criterion by which inconsistency may be determined to exist. Thus the Anglo-Japanese Alliance, with respect to the special interests of those two states in Asia, announces as an object the preservation of peace. It may be contended by the High Contracting Parties that no incompatibility exists; that it is in fact a "regional understanding" for securing the maintenance of peace. (See Article 21.)