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The Search for World Peace |
Annex 5
General Scheme of the Provisions of the Draft Treaty of Mutual Assistance as compared with the Replies of the Governments (Annex 3) and the Draft by an American Group (Annex 4)
I. THE DRAFT AND THE COVENANT. 1. Connection between the Draft Treaty and the Covenant (Analysis).
Attention must be drawn at the outset to the close connection between the Draft Treaty and the Covenant.
In a certain sense it may be said that the entire scheme is implicitly contained in paragraphs 2 to 4 of Article 8 of the Covenant.
From this point of view the Draft Treaty might be considered as the practical method which the Temporary Mixed Commission would recommend to the Council for the purpose of carrying out the task entrusted to it in the paragraphs of Article 8 of the Covenant cited above.
The logical connection between this Article of the Covenant and the Treaty is clearly seen in Resolution XIV.
The Commission called upon to draw up a plan for the reduction of armaments begins by stating the fact that a certain number of States cannot contemplate such a reduction unless they receive in exchange a guarantee of security.
Hence the necessity of strengthening the feeling of international confidence by developing those stipulations in the Covenant which may be considered as an effort towards a mutual guarantee of security.
Hence also the general rule upon which the draft Treaty is based: that the guarantee and disarmanent are interdependent.
It should, however, be emphasised that this rule is only the outcome of practical experience and is in no way the expression of a principle in law.
Accordingly, the Treaty of Guarantee would appear as the measure recommended by the Commission for the purpose of adapting to the present situation the obligations contained in Article 7 of the Covenant.
Finally, with regard to adherence, the Draft Treaty might not include certain States signatories to the Covenant, while on the other hand it allows of the adherence, under certain conditions, of States which are not at present Members of the League of Nations. The draft scheme includes, moreover, an article contemplating partial adherence or adherence conditional upon reciprocity.
2. Objections made by Governments.
One of the criticisms most frequently levelled against the Draft Treaty is that the guarantees provided do not imply with sufficient clearness a reduction of armaments.
The Draft Treaty has been drawn up in order to give effect to Article 8 of the Covenant, which requires the Council to draw up plans for the reduction of armaments.
In the view of certain countries, the additional idea of guarantee upon which this reduction is made to depend is not contained in Article 8 of the Covenant.
Other Governments have maintained that the undertaking in Article 8, entered upon when signing the Covenant of the League of Nations, implied an unconditional reduction of armaments as being in itself an adequate means of ensuring the peace of the world. The idea of mutual assistance in exchange for the reduction of armaments is not, in their opinion, contained in the Covenant.
In addition, a certain number of special criticisms have been formulated. One country, for instance, maintained that it did not come within the scope of Article 8 of the Covenant, being a new country in process of devleopment, and not having as yet acquired the minimum of armaments compatible with its national security.
It has also been observed that the proposed system could not be brought into full operation until the League of Nations had become a universal organisation, and that the Covenant itself could secure this condition more easily than could the Treaty of Mutual Assistance.
Finally, attention should be drawn to the attitude adopted by certain members of the Commission, who held that if the Draft provided exclusively for the extension of the Covenant in the matter of material guarantees, this would represent a one-sided development of the League of Nations. In the opinion of these delegations, concurrently with this development of material guarantees, there should be a development of the legal and moral elements in the Covenant. They specially insisted on the importance of asking those States which would in practice enjoy the guarantee offered them by the draft treaty for guarantees of a "wise" policy (respect for the stipulations of the Covenant providing for the registration and publication of international treaties and adherence to the optional clause in the Statute of the Court of International Justice).
3. Suggestions and Proposals.
The treaties of assistance should provide for assistance from one continent to another, not only in the economic and financial sphere but also, wherever possible, in the naval, air and even military sphere.
The undertakings to be entered upon by the different States might be adapted to their particular circumstances. The Council should acquaint itself with the nature of the coercive forces which these States could place at its disposal, the limit of possible reductions in their armaments, and the extent and nature of the assistance which they expect. The Council would then be in a position to determine the rights and obligations of each State.
A scheme for the reduction of armaments should be incorporated in the Treaty of Mutual Assistance.
Any Treaty of Mutual Assistance should provide for the settlement of disputes and should confer upon the Council powers to negotiate peace as decisive and extensive as its powers for regulating assistance.
II. AGGRESSIVE WAR. 1. Analysis of the Draft.
The Third Committee of the Fourth Assembly adopted the view of the Temporary Mixed Commission as to the advantage to be gained by causing the draft Treaty of Mutual Assistance, with a view to the reduction of armaments, to open with a solemn declaration condemning all aggressive war. This is the idea of Article 1 of the Draft Treaty.
It would no doubt have been preferable for this article to retain the clear and concise form given it by the Temporary Mixed Commission. The Third Committee felt itself obliged, however, to add to the text a precise definition of a case of legitimate war, that is to say, that of a State a party to a dispute having accepted the unanimous recommendation of the Council, the verdict of the Permanent Court of International Justice, or an arbitral award declaring war against another Contracting Party which had not accepted the decision of one of the international institutions.
Thus, even with this exception clearly and honestly recognised and admitted, Article 1 still remains a solemn pact of non-aggression, the spirit of which should rule the application of the draft Treaty of Mutual Assistance.
2. Objections made by Governments.
The criticism most frequently formulated on this point has emphasised the difficulty of defining an act of aggression. This difficulty has re-appeared in the replies of several Governments.
It has further been pointed out that, even if the States Members of the League of Nations recognised an act prohibited by the Covenant as an act of aggression, States non-members of the League were under no obligation to take the same view.
3. Suggestions and Proposals.
A large number of countries propose that arbitration should be made compulsory and that its field of application should be enlarged.
One country proposes the creation, side by side with the International Court, of a special organisation for the settlement of political disputes.
It is also proposed that a regular procedure should be established for frontier rectifications.
4. Analysis of the American Group Draft (Articles 1, 2, 3, 10 and 11).
Article 1 has been taken over from the draft Treaty of the Temporary Mixed Commission. It acquires, however, a new character; it is no longer a mere declaration and statement of intention, but a contract with a sanction attached.
Article 2 is a further step of definition. It is kept in very general terms. The systematic and detailed definition of aggression will be established later by the organisation created by the Powers (Permanent Court of International Justice and Permanent Advisory Conference).
Articles 10 and 11 form the conclusion to the part of the treaty concerning the outlawry of aggressive war, and contain the stipulations which establish the distinction being made between police measures and measures of aggression. These two articles constitute a further safeguard against the possible bad faith of an aggressor.
III. THE GUARANTEE - DISARMAMENT. 1. Analysis of the Draft.
The close practical connection which exists between guarantees and disarmament for States adhering to the Treaty finds expression in Articles 2, 3, 4 and 5 of the Draft. This question has already received due consideration in our study of the connection between the Draft and the Covenant. It will here be sufficient to note that the pledge of guarantees in exchange for the reduction of armaments is clearly expressed in Article 2, Articles 3, 4 and 5 being no more than provisions for the application of Article 2.
The operation of the guarantee and of the reduction of armaments, according to these articles of the draft, would be as follows:
1. The general guarantee is established in principle and defined by the Treaty — first stage.
2. In the case of certain States the guarantee is supplemented by special treaties.
3. Each State estimates what reduction in armaments it can effect in consequence of this single or double operation of guarantees — second stage.
4. The Council, upon examination of these estimates, works out the scheme of reduction in accordance with Article 8 of the Covenant — third stage.
5. The States, having given their adherence to the plan, undertake to apply it as regards themselves within a period of time fixed by the Treaty — fourth stage.
6. Once this undertaking has been given, the guarantee is put into effect — the provisions of Article 8 of the Covenant regarding disarmament are on the way to practical realisation.2. Objections made by Governments.
The chief criticism has been that by the terms of the Treaty each State estimates for itself what reduction in armaments it can effect in consequence of the operation of the guarantees, and that there is therefore no certainty that the Treaty will lead to any appreciable reduction of armaments.
Some States indeed have maintained that the Treaty might compel them to increase their military preparations.
It has also been observed that the synchronism in the entering into force of the guarantees provided and the execution of the scheme for reducing armaments is not sufficiently emphasised, and would meet with many difficulties in application.
3. Suggestions and Proposals.
It is proposed that the measures which the Council may recommend in application of Article 16 of the Covenant should be taken by a two-thirds majority. It is also proposed that the decision to put into execution the measures of mutual assistance might be likewise given by a two-thirds majority of the Council.
One country proposes that the organisation of mutual assistance should start with economic and financial help to the country attacked, this being the counterpart of the economic and financial sanctions against the aggressor provided for in Article 16.
One country observes that it would be expedient to prepare in advance the plans for financial co-operation.
Another proposal is that, should the aggressor be financially incapable of paying reparations, the outstanding sums might be shared between the High Contracting Parties in a certain proportion.
As regards military sanctions, one proposal aims at providing the Council with a permanent military organisation.With regard to the reduction of armaments, it is proposed that this reduction should be investigated in all countries by a commission of members belonging to all the Signatory States. Refusal to submit to investigation would be primâ facie evidence of guilt.
One reply is to the effect that the reduction of armaments should be examined as a single question, no distinction being drawn between the different forms of armament.4. Analysis of the Anerican Group Draft.
(Articles 8 and 9). Article 8 is the heart of the whole Treaty. For the first time a method has been found which leaves the High Contracting Parties free to apply the enforcement of the Treaty or not, as they see fit, and which yet secures an enforcement that is real and adequate. This article does not imply any surrender of national sovereignty.
The sanctions are divided into economic and military. In the latter case, the Article expressly stipulates that each Signatory shall be entirely free. Naturally, the other articles of the Treaty prevent it transforming this military action into aggression.
In the economic sanction, the High Contracting Parties do not bind themselves to take any acts contrary to their own interests. But they are free to do all manner of things as against an aggressor with reference to his property rights on the high seas or within their own frontiers. In a word, the aggressor is outlawed and deprived of any security for his property in other lands. Automatically he loses his own security throughout the whole world.
Article 9 applies the principle of reparation. This is a normal consequence of the recognition of aggressive war as a crime.
(Articles 12 and 13). Article 12 has been drafted in very general terms. The Treaty calls for a continuous study of the problem and provides the means for it.
In principle, however, the Treaty relies more upon the measures described in Part I for securing a lessening of armaments than upon the mutual agreements for disarming.
Article 13 is an incomplete statement of an important measure. More should be done both to develop this article and to secure its application in special instances.
(Articles 12, 14, 15, 16 and 17). The necessity of having a Conference on Disarmament is recognised on all hands. But this Conference must be periodic. If a Conference recurs automatically, the questions in dispute can be brought up without involving the national honour of any of the Parties to it.
The organisation must be permanent in order to deal with the technical questions which are involved in measures of disarmament in their relation to new discoveries in chemistry and mechanics.
(Articles 8, 19, 20, 21 and 22). This part embodies not only a provision of the Covenant of the League of Nations but a device which has been frequently recommended in the interests of the pacification of Europe. The institution of a Commission entrusted with the duty of investigating how the various High Contracting Parties were carrying out the terms of the present Treaty could hardly be objected to by a Power which entered into its obligations in good faith.
(Articles 23, 24 and 25). This part of the Treaty overcomes one of the principal criticisms directed against the Covenant and the Draft Treaty of Mutual Assistance. It limits the prerogatives of the Council so that the latter would be hardly more than an advisory body.
Under the terms ot the present Treaty, the Council would tend more and more to become an instrument of conciliation, and its administrative functions would become inoperative.
But the Council's sphere of action would remain a large and important one. Its competence in the political sphere would remain unaffected.
This limitation of the Council's competence, in comparison with the Treaty of Mutual Assistance, must not be regarded as lessening its validity; on the contrary, it would in reality strengthen the Council's position in the sphere in which its influence is necessary and legitimate.
IV. DEFINITION OF AGGRESSION. 1. Analysis of the Draft.
Article 4 defines the conditions of intervention by the Council of the League of Nations, and, if necessary, that of all the States Signatories, in case of aggression.
All the Commissions which have collaborated directly or indirectly in the Draft have realised the extreme difficulty of defining a case of aggression.
The Draft Treaty is accompanied by a "Commentary on the Definition of a Case of Aggression" drawn up by a special Committee of the Temporary Mixed Commission, with the co-operation of certain technical experts of the Permanent Advisory Commission, and following upon the study of the question by the latter Commission. The Third Committee recommended that this commentary should be forwarded to the respective Governments for information.
2. Objections by the Governments.
The Draft Treaty is — it has been said — an infringement of the sovereign rights of the States, in that it requires the Signatories to abdicate part of their sovereignty in favour of the Council and to bind themselves to accept its decision, both in regard to the determination of cases of aggression and in regard to the despatch of military forces.
The rule concerning unanimity would, moreover, paralyse the Council in its decisions.
In the opinion of many States, moreover, it appeared difficult for the Council to come to an agreement in regard to the determination of a case of aggression within a period of four days, or
indeed, within any time-limit. Certain of those States, therefore, pointed out that the guarantee of assistance given by the Treaty could not, in these circumstances, enable them to reduce their armaments.
Finally, in the opinion of ccrtain States, the procedure provided for, even if applied in despite of the rule of unanimity, would entail delays which the aggressor might utilise for destroying the State which had been attacked. This danger would be especially great in the case of certain States in unfavourable geographical circumstances (remoteness from States which could give assistance, or specially vulnerable frontiers)
3. Suggestions and Proposals.
Many countries propose that the Council should take the decision regarding the determination of the aggressor by a majority vote.
It is proposed that the decision of the Council should be taken within a time limit of a fortnight.
One country suggests that, with a view to facilitating the task of the Council, a specific list should be drawn up of measures which might be considered to constitute an intention of aggression.
4. Analysis of the American Group Draft (Articles 4, 5, 6 and 7).
This chapter deals with acts leading to competition in armaments and even to war itself. It constitutes an effort to avert the menace of aggression. It is not, however, applicable to provocative acts of a political nature which lie outside the technical sphere of aggression. The intervention of the Court is strictly limited to the interpretation of the terms of the Treaty itself.
Article 5 is one of the principal articles of the Treaty. It contains a definition of aggression: the aggressor is the one who refuses to accept the jurisdiction of the Court.
V. COMPLEMENTARY AGREEMENTS. 1. Analysis of the Draft.
The discussions in the Third Committee of the last Assembly which resulted in Resolution XIV brought to light the difficulties of a technical character connected with the establishment of a guarantee.
Certain States which, for various reasons, believed themselves to be especially threatened insisted, without denying the great moral and political value of the general guarantee, on the impossibility of risking a reduction of their armaments in exchange for a general guarantee of assistance, of which the technical preparation, the rapidity and the efficacy would be problematical.
The technical experts not only in these countries but also in the countries represented on the Permanent Advisory Commission, decided unanimously, as may be seen from the reports of the Permanent Advisory Commission, that assistance could not be regarded as immediate and effective unless it were carried out according to a previously arranged plan.
This condition, which practical circumstances made it necessary to accept, at least in certain specific cases, made it, in the opinion of some technical experts, indispensable that there should be added to the General Treaty of Guarantee defensive agreements of a more restricted character, allowing military conventions to be concluded in view of possible threats of aggression.
The introduction of this idea into the general system of the Treaty of Guarantee provoked grave objections. The Temporary Mixed Commission and the Third Committee endeavoured to reconcile the two points of view, the one in favour of the General Treaty and the other in favour of the General Treaty supplemented by special treaties.
The majority of the Commission considered, for the political reasons referred to above and for many other reasons based on the necessities of practical every-day politics, that they should maintain in their draft the system of supplementary defensive agreements. The Third Committee thought that these agreements should be submitted to the Council for consideration. It was on this condition that certain delegations declared themselves prepared to withdraw their opposition to the principle of special treaties.
Consequently, the special treaties do not share the benefits of the general guarantee until they have been recognised by the Council as not being contrary to the spirit of the Covenant and as coming within the general framework of the General Treaty of Mutual Assistance.
They must, in consequence, be registered with and published by the League of Nations (Article 7).
2. Objections put forward by Governments.
The objections raised against the supplementary treaties all originate in the fear that the old systems of alliances which proved so dangerous to the peace of Europe may be re-established under that name.
The adversaries of the supplementary treaties have observed that the very existence of these treaties implies suspicion and mistrust of a State or group of States. The body of States signatory to the General Treaty would consequently be divided, and this division would merely be aggravated.
Source: League of Nations, General Scheme of the Provisions of the Draft Treaty of Mutual Assistance as Compared with the Replies of the Governments (Annex 3) and the Draft by an American Group (Annex 4), Records of the Fifth Assembly, Minutes of the Third Committee, League of Nations Official Journal (Special Supplement No. 26), 1924, pp. 172-176.
Editorial Note: This is a true copy of the above-referenced original document. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 3 (c).
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