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The Search for World Peace |
119. Report of the Committee on Security Questions: Statement by M. Politis, Chairman of the Committee, as to the Position of the Work.
M. POLITIS (Greece), Chairman of the Committee on Security Questions, submitted to the General Commission the first two parts of the report of the Committee. |1| The Committee had been given three tasks. It had, first of all, to study the proposal of the Soviet delegation concerning the definition of the aggressor. Secondly, it had to deal with the Belgian delegation's proposals for determining the aggressor, and, lastly, under a recent decision of the General Commission, it had to study the European Security Pact proposed by the French delegation.
The two sections now communicated to the Commission covered the first two subjects, and for the moment M. Politis would confine himself to explaining the structure of the Act relating to the definition of the aggressor. Some such explanation was required, as it would enable the General Commission, which had only just received the report, to form an adequate idea of the work done by the Committee.
The Act relating to the definition of the aggressor, the text of which formed the first annex to the present report, had been intended, and still was intended by those who had proposed it, and also by the members of the Committee who had approved it, to constitute the foundation-stone of the security system which the General Commission was at present considering.
Its effect and its practical advantage would be that it warned States of the acts they must not commit if they did not wish to run the risk of being declared aggressors. Thanks to it, public opinion would be able, when a grave incident occurred in international relations, to form a judgment as to which State was responsible. Lastly, and above all, it would facilitate the work of the international organ called upon to determine the aggressor. Furthermore, when that organ had before it sufficiently definite rules to facilitate its task, it would be less tempted to incur the danger of excusing, on political grounds, the act of aggression which it was called upon to judge.
So much for the purpose and utility of this Act.
What was its sphere of action ? According to the Soviet proposal, which had been accepted by the majority of the Committee, the Act was conceived as of universal application. It was designed to become a general law for all States. Nevertheless, it went without saying that, should it fail to command the acceptance of all States, it would only be compulsory and its rules would only apply in relations between the States which had accepted it. The system embodied in the Act was marked by a certain strictness and that was its principal merit in the view of the Committee which had drawn it up. Its strictness resided in the fact that the cases which the contracting parties undertook to regard as acts of aggression were determined in a restrictive manner. This system had been criticised by certain members of the Committee, who regarded as a drawback what had appeared to the majority as an advantage. The former would have preferred the system to be more elastic, because circumstances might be very complex and the very rigidity of the system might hamper the action of the body responsible for determining the aggressor. The majority had considered that, between a rigid system and an elastic system which ran the risk of being marked by the drawbacks that experience, and particularly the studies made at the League, had only too clearly revealed, the preference must go to the rigid system embodied in the Act defining the aggressor, for its drawbacks were largely outweighed by the advantages which it was calculated to offer. Moreover, whatever might be the drawbacks of this system, it had appeared to the Committee that, in the interests of peace and as a guarantee of security, it had undoubted advantages over the more flexible system. As a matter of fact, the possible rigidity of the system embodied in the Act was likely to be mitigated to a certain extent by the fact that the Act was to be taken in combination with the 1931 Convention on the means of preventing war and also with the League Covenant itself.
It had indeed been found during the Committee's enquiry—although this conclusion had not met with unanimous support—that the operation of these different Acts would enable the body responsible for determining the aggressor—and hence for applying the rules laid down in the Act—to take into account the powers which it held under Article 11 if it were the League of Nations and, in the case of the application of the 1931 Convention, the special rules laid down in that Convention, which, taken as a whole, did after all permit of a certain elasticity in the application of the strict rules laid down in the Act.
Before entering upon an analysis of the provisions of the Act, three observations of a general character were required.
First, the rules laid down were subject to a reservation as to the agreements in force between the parties. This reservation had been made for two reasons : (a) to safeguard the special stipulations existing in agreements in force between the parties which might, in certain cases, permit of recourse to one of the acts considered in this document as acts of aggression. The most striking and general example was in the League Covenant itself, which contained a clause whereby the States Members of the League could, in certain specified cases, take steps which in themselves might be regarded as acts of aggression according to the definitions given in the Act, but which nevertheless had not this character, because they were legalised by the agreement binding the parties concerned; (b) to make it possible to reconcile the present Act with the Convention of September 26th, 1931, on the means of preventing war. The Committee had thought it necessary to make a reservation as to the application of the Convention concurrently with the present Act, because the combination of these two texts might lead to a certain flexibility, thus lessening the rigid character of the system proposed.
Secondly, in the enumeration of the acts of aggression which M. Politis would describe later, the State which first committed one of the acts mentioned was declared the aggressor. Emphasis should be laid on the word "first". It might very well be that, in the complicated circumstances of an international dispute, there might at one time or another have been committed by either party certain acts coming within the scope of the definition in the Act. The only way of having a clear view in so complicated a situation and so being able to apportion the responsibilities and finally to determine the aggressor was to observe the chronological order of events—namely, to ascertain who had been the first to begin to commit one of the forbidden acts—since, once it was proved that one of the parties had been the first to commit one of those acts, the attitude of the other party would immediately be seen to be that of legitimate defence and, by that fact alone, should be excluded from the conception of aggression.
The third general observation related to the position of third parties, which at first sight might appear somewhat doubtful. When a dispute arose between two countries and one of them was the first to commit one of the forbidden acts, and when it was, on that account, regarded as the aggressor, were third parties free, in respect of the aggressor, from the obligation in the Act whereby they were bound not to commit the acts described as acts of aggression ? The reply which was given to this question was very simple. It was linked up to the Pact of Paris, which laid down that, when one of the contracting parties had broken the Pact, the others were immediately released from the obligations they had assumed towards the party which had committed the first breach. The position in the present case was exactly the same, and the result was that third parties which had resorted to force and violent measures against the aggressor with the object of assisting the victim of the aggression were assured by this rule that they would not be regarded as aggressors.
The list of facts constituting aggression gave a restrictive enumeration of five cases of aggression.
The first was the declaration of war. It had been thought necessary to mention this case, although in itself it might not be a definite act of aggression, because, in fact, the declaration of war would be immediately followed by hostilities and it was manifest that the party which should bear the responsibility therefor was the party which had issued the declaration. But, in accordance with the observations which he had made previously, if the declaration were made after the commission of one of the forbidden acts had been established, it could not be held to be an act of aggression, because the responsibility would fall upon the party which had first committed one of the forbidden acts.
The second fact agreed to was the invasion of the territory of a State, even without a declaration of war, by the armed forces of another State. That was obviously the most characteristic case of all, and the Committee had carefully made clear in its report that by the term "territory" was meant the area of land over which a country actually exercised its authority. When a territory answering to that description was invaded by the armed forces of another country, the latter was committing a forbidden act; it would be declared the aggressor and the invaded State would be the victim of the aggression.
The third fact was attack by land, naval or air forces of the territory of another State or of its vessels or of its aircraft. No comment was required on this point.
The fourth fact was the establishment of a naval blockade of the coasts or ports of another State. In this connection, certain objections had been raised in the Committee, but the latter had held that, if a naval blockade did not necessarily lead to war, it was nevertheless an act implying material force, in a limited but real manner, against another State and that, in most cases, only the weakness of the country subjected to the blockade prevented the blockade from being the initial act in the final rupture of peace and resort to hostilities. For that reason, the Committee had thought it right to include this case among the acts of aggression.
Lastly, there was a case which was in some ways a novelty, because it had never so far been recognised in studies on the subject. It was the case in which a country supported armed bands which set out from its own territory and invaded that of another country.
Such was the restrictive enumeration in Article 1 of the draft Act.
Article 2 laid down an extremely important rule which brought out the true character of the system. Article 2 said that no consideration of whatever kind, whether political, economic or financial, or other, could be advanced as excusing or justifying an illegitimate act if committed. A State which, having committed such an act, advanced an argument of that nature could not avoid condemnation as the aggressor.
The Soviet delegation had proposed that this article should be followed by a somewhat lengthy clause giving, by way of illustration, a number of the most probable cases in which considerations of any kind, if advanced in justification of the aggression, might be held to be invalid. The Committee had felt that to insert so long a list in the body of the clause itself would make the text too heavy. In a spirit of conciliation, however, it had agreed that there should be a special Protocol annexed to Article 2 giving a certain number of illustrations. That was the object of the Special Protocol in Annex II of the Committee's report.
Lastly there was a third article, which stated that it was the Committee's intention that the Act concerning the definition of the aggressor should be made an integral part of the Convention. The only point held over was that of the duration of the Act, because it was possible and natural that an Act of this nature, which was intended to establish a permanent international law, should be given a duration other than that of the General Convention for the Reduction and Limitation of Armaments, which was designed, by its very nature, to represent only the first stage and consequently was, in certain respects, of a provisional character and might have a limited duration.
Such was the general structure of the Act on the definition of the aggressor.
In conclusion, M. Politis, speaking at least on his own behalf—for he did not know whether he expressed the opinion of all his colleagues on the Committee—desired to add that he regarded this Act on the definition of the aggressor as an advance, and a very notable advance, in the long chain of work undertaken at Geneva for many years past. For ten years at least, a vain attempt had been made to devise suitable formulae for crystallising this somewhat evasive idea of aggression. Success had not been achieved, apparently for two reasons. The first was that, hitherto, the determination of aggression had been closely bound up with the idea of sanctions and the application of Article 16 of the Covenant. In the present case, that consideration had been entirely dropped. The aggressor was defined and it was reserved for other instruments and other authorities entrusted with defining and applying the sanctions to decide whether all the cases indicated in the present document as acts of aggression should be taken into consideration for the purposes of the application of sanctions. The second factor which had hitherto blocked the success of the work for the definition of the aggressor was that, until the Conference had set to work, all arguments in connection with the term "aggressor" had referred solely to the definite case of war, and that was another difficulty, since the term "war" itself was difficult to define.
Since the Pact of Paris had come into force, since the virtues inherent in it had become more apparent and since it had become gradually more manifest that to-day it was no longer possible, in the conscience of civilised man, to make a really practical distinction between what had previously been regarded as war and what modern men regarded as resort to force or the use of violence—ever since that time it had been seen that it was easier to arrive at a definition of the aggressor, because one of the difficulties which had prevented the elaboration of that definition had been jettisoned. The idea that a distinction should no longer be made between war in the strict sense of the term and resort to force had gained a striking success during the present Conference, and the unanimous adoption in March 1933 by the Political Commission of its resolution in which resort to force was henceforth an act forbidden to all States constituted, in M. Politis' view, the greatest success which the Conference had hitherto achieved.
It was true that the resolution then taken applied to Europe only, but M. Politis did not think that he was mistaken in saying that, in the intention of the vast majority of the Conference, it had been voted in the sense of a general law applying to civilised mankind, which now desired that the use of force should give way to the application of pacific methods.
From the standpoint of the League's work, therefore, that was a very great success, and it was a point of some interest that the Conference owed it to one of the non-member States, the Union of Soviet Socialist Republics, whose delegation had courageously and with deep conviction submitted a text which had exercised an extraordinary attraction over those who had studied it, with the result that, finally, the Committee on Security Questions had succeeded in coming to a conclusion, notwithstanding all the difficulties it had encountered.
It was M. Politis' most agreeable duty to congratulate the Soviet delegation on the initiative it had taken, on the part it had played in the Security Committee and on the success it had finally achieved. It was with special pleasure that he paid this tribute to the Soviet delegation, since it demonstrated beyond all doubt that, when men rose above the contingencies of day-to-day politics and allowed themselves to be guided by the more general ideas which should lead the civilised world, it was found that, whether a country was a Member of the League or not, there was a community of ideals which was capable, with a little goodwill, of bringing to fruition the noblest and most difficult enterprises.
The PRESIDENT felt sure that the Commission would like him to express its very sincere thanks to M. Politis, Chairman of the Security Committee, for the report which he had presented and for the explanatory statement he had been good enough to make. Both the report and the explanatory statement would certainly assist the Commission very much when it began the discussion on the articles in Annex I.
SIXTY-NINTH MEETING Held on Monday, May 29th, 1933, at 3.30 p.m.
President : The Right Honourable A. HENDERSON.
125. Report of the Committee on Security Questions |2|: Definition of the Aggressor (continuation).
M. DE MADARIAGA (Spain) said that a few days previously |3| the Commission had heard the Vice-President's statement on the problem of the definition of the aggressor, in the course of which M. Politis had referred to the two theses which, in that matter as in all matters relating to the League, brought face to face the Anglo-Saxon mentality and the so-called Latin mentality. M. de Madariaga thought that there was clear evidence of this parallelism in the past history of the question, because, the first time an attempt was made to define aggression—in a subcommittee of the Temporary Mixed Commission, if he were not mistaken—the idea which had occurred to all was that embodied in the most recent document on the question—the declaration of the President of the United States of America. |4| It had been suggested that the party crossing his own frontier was the aggressor. That idea of defining aggression as invasion had been at once sharply rejected by all the military experts then assisting in the work of disarmament, as, in their view, it was quite conceivable that there might be countries whose frontiers were so unfavourably drawn that, even though they followed a fundamentally pacific policy and had a fundamentally defensive military organisation, they might find themselves obliged to take a military initiative in order not to be crushed by an essentially aggressive country which was preparing an overwhelming attack. In view of the respective forces engaged, the operations, once begun, would rapidly become disastrous for the first country. It was that idea which had led, in the Temporary Mixed Commission, to an intervention by two members who then represented, not Spain, but at all events Spanish thought, for, on that Commission, the members did not represent their Governments. These two Spanish members had put forward a proposal in which an endeavour was made, even at that time, to find a more elastic, more fluid system for defining aggression. A purely automatic criterion was avoided ; but an attempt was nevertheless made to give the system a certain degree of precision by the adoption of preliminary undertakings, one of which was of a legal character: provision was made for compulsory recourse to arbitration in any dispute, failing which there was a presumption of aggression. Another undertaking was of a conservatory character: provision was made for the adoption, by the Council, of conservatory measures and, should either of the parties not accept those measures, there was again a presumption of aggression.
It was from this first idea that eventually, after the stage represented by the Treaty of Mutual Assistance, there was born the idea of an automatic criterion which had been crystallised in the Protocol, in which, as the General Commission would remember, the method of arbitration was so ingeniously devised that it led, as it were, mechanically to the definition of the aggressor. But, for reasons that everyone knew, the Protocol had been dropped. Then, thanks mainly to an extremely important proposal by the German delegation on the Preparatory Commission, the Convention for strengthening the Means of preventing War had been drawn up. In M. de Madariaga's opinion, that Convention had not received sufficient attention ; it constituted, he thought, a fundamental idea, one of the most concrete, precise and useful proposals that had ever been made in the course of the work in question.
The Spanish delegation on the Committee over which M. Politis had presided with such conspicuous ability had taken up, with regard to the definition of the aggressor, an attitude which M. de Madariaga would like to define more closely. It did not agree with the automatic method advocated by the Soviet delegation, not because it was not in sympathy with that method, but because it thought that it involved an excessive national individualism.
The automatic method had the very considerable advantage of eliminating the individual responsibility of States in naming the aggressor. Everyone knew from experience how difficult it was for one State to judge the conduct of another. Consequently, it was in every way desirable that the decisions to be taken in the matter should be based on facts and not taken by persons who, as far as they could, would always avoid the necessity of giving a decision in this matter.
He must point out, however, that the automatic method would certainly, by a process which was not difficult to foresee, and several instances of which had already occurred in the brief history of the League, give rise to all kinds of political artifices which would in many cases make it possible to elude automatic criteria, however ingenious and rigid they might be, and would enable States which were bent on doing so to commit certain acts contrary to international law without being caught, if that expression might be used. Moreover, it had the advantage that, if it compelled States to employ such artifices, that in itself was already a result. Possibly, in some cases, States might commit certain international acts which were not strictly to be commended, while at the same time avoiding being caught by the automatic method; in most cases, however, that would probably prove impossible.
It was not, therefore, on account of definite opposition to the automatic method that the Spanish delegation had not been able to adopt a final attitude in this matter on the Security Committee ; it was rather because it saw in that method a tendency to weaken the organs of the League. M. de Madariaga had just said that the States, which, after all, constituted the self-working machinery of the League, avoided giving a definite decision ; but it was only inasmuch as States failed to assume their responsibilities that the organs of which they were members were enfeebled. He thought there was a serious danger of weakening the League's organs through the very fact that the States Members were enabled to avoid assuming their responsibilities.
In the method advocated by the Soviet delegation, M. de Madariaga thought he could perceive—and he asked that delegation's pardon for making the observation—a certain inconsistency between the spirit of Soviet policy in international affairs and that of Soviet policy in home affairs. Unless he was inadequately informed regarding it, Soviet national policy was not remarkable for an excess of individualism, whereas in its international policy, as instanced by this definition of the aggressor, there was a kind of exaltation of national liberty within the international community, since, whatever the faults of which that nation might be guilty, there was no possibility of bringing influence to bear upon it to discharge its responsibilities. True, in M. Politis's report there was a paragraph reserving the question for the international authorities, but M. de Madariaga agreed with the Soviet delegation that it would be desirable to strengthen very considerably the idea of opposing attempts by a State to take justice into its own hands when another country committed acts which were unjustifiable or caused it dissatisfaction. The Spanish delegation was opposed to such an anarchistic method. At the same time it wanted to strengthen the idea that the international authority must always intervene at the request of a State or even on the direct initiative of these collective organs ; for it was quite inadmissible that acts which, from the international point of view, were unjustifiable before the community of nations should go unpunished on account of a kind of exaltation of the individual liberty of the nations constituting the international society.
It must be realised, moreover, that, in applying the definition of aggression, whatever the method employed—elastic or rigid—the great difficulty was that the number of armaments was much too large, that these armaments were much too powerful and that it was much more difficult to approach a strongly armed nation than an unarmed one. That was the first great difficulty which would be experienced and which perhaps had already been experienced. The fact that a country was strongly armed did not warrant the hope that it would have the courage to pronounce against another strongly armed State if the latter were guilty of wrongful acts. Consequently, armaments were much less likely to protect the Covenant than to jeopardise it. That was the essential point, the theoretical truth of which was clear in itself but which experience was making clearer still. Moreover, despite the Covenant, there were still far too many cases of national policy insufficiently co-ordinated with the principles of the international policy of co-operation. Consequently, so long as this two-fold evolution towards disarmament and towards the co-ordination of national policy with an international policy of co-operation failed to make any great progress—whatever definition, rigid or elastic, were adopted—that definition would be in peril whenever serious and more or less automatic decisions had to be taken in regard to strongly armed countries.
In conclusion, M. de Madariaga would ask M. Politis to be good enough to explain a discrepancy between two documents, each of which represented his report. In the first, which had been distributed without a number, there was the following sentence :
"The act of invasion constitutes essentially an act of aggression apart from any declaration of war."
Then in document Conf.D./C.G.108 the same sentence was followed by the words:
"By territory is here meant territory over which a State actually exercises authority".
M. de Madariaga felt serious doubts as regards that last sentence, which, according to the interpretation given to it, might be harmless but might also be extremely dangerous.
He would also like to ask M. Politis whether, in the draft Protocol attached to the same document (Annex II), he would agree to add at the end of the last paragraph the words:
"in regard to which the victims could always appeal to the international courts".
Lastly, M. de Madariaga stated that, if the majority of the Commission was in favour of the automatic definition, the Spanish delegation, subject to the reservations it had just indicated, would have no objection to accepting it.
M. NADOLNY (Germany) had followed with the greatest interest the discussion on the Act relating to the definition of the aggressor. It was a problem which had uccupied the League's organs for some years, but for which no solution acceptable to all bad been found. Mr. Eden had already mentioned the report of the Mixed Commission drawn up in 1923. M. Nadolny would also refer to the Geneva Protocol of 1924, which had just been mentioned by M. de Madariaga. Opinions as to the best way of solving the problem were therefore divided, although it was generally recognised as highly desirable, in the interest of peace, that the problem of the definition of the aggressor should be settled by common agreement."
In his very interesting statement, M. Politis had already pointed out the two opposing tendencies towards rigidity and elasticity. In the Act now before the Commission, the system prescribed was of the fixed kind ; indeed, it might even be termed automatic. The fundamental objections which had been raised against rigidity in an international system for the definition of the aggressor were well known. Mr. Eden had explained them anew very clearly, so that it was almost impossible to throw any new light on that aspect of the problem.
M. Nadolny himself, desirous of elucidating the problem as a whole, might add a further consideration in regard to an aspect to which the German delegation had always attached great importance. In its opinion, the establishment of rules for the definition of the aggressor would be of great preventive value. M. de Madariaga had rightly emphasised that aspect of the problem.
As the report said, States would then be definitely informed in advance of what they could not do witlout being regarded as aggressors. Moreover, if no strict or rigid criteria were set up, the Council, or the international organ dealing with the question, would not be under the necessity of proceeding to establish the fact of an aggression, even in cases where it might be preferable to apply means of conciliation, which might prove ineffective from the moment when one of the parties to the conflict had been stigmatised as the aggressor.
The report already contained a certain element of elasticity, since it provided that acceptance of the Act, as drafted by the Committee, would not preclude the application of the Convention for developing the means of preventing war, which Convention provided preventive measures even if a State had committed acts regarded as determinant factors of aggression according to the draft relating to the definition of the aggressor. M. Nadolny thought that idea, which was very clearly set forth in the report, was not yet adequately expressed in the Act itself. It would have to be seen, therefore, whether the element of elasticity could not be strengthened and incorporated clearly and precisely in the actual text of the Act.
Further, he would like to add another consideration of a technical nature, which might be of particular interest to jurists. The Security Committee had submitted another draft—the European Pact of Security |5|—with a new text intended to replace Article 6 of the United Kingdom plan. That draft also contained a definition of the aggressor. In that case the aggressor was referred to as "the State which had resort to war", but the facts constituting the aggression were the same in both Acts. There was one exception, however—namely, that the wrongful acts did not include blockade. A State which established a blockade would therefore not be violating the Covenant; and, according to the draft, that decision must be recognised, not only by the signatories of the European Pact, but by all the States represented at the Conference. But such a State, through having established a blockade, would have to be recognised as the aggressor under the other Act.
In addition to the two Acts to which he had just referred there were other proposals. There was the new text of Articles a to 3, submitted by the United Kingdom delegation and accompanied by the important statement of Mr. Norman Davis. |6| In Article 2 of that text it was stated that the object of the consultation provided for, in the event of a breach of the Paris Pact, between the League of Nations and States which were not Members of the League would be to determine which party or parties to the dispute "are to be held responsible". Here, therefore, there was no mention of an aggressor or of a State having resort to war, but of the State responsible.
Then there were the proposals set forth in President Roosevelt's message, which referred to a general Convention of non-aggression combined with an undertaking by States not to allow their armed forces to cross their frontiers.
M. Nadolny therefore ventured to put the following question : Would it not be desirable and necessary to co-ordinate and reduce to a common denominator all the different projects and proposals among which the experts had the greatest difficulty in finding their way ? It would undoubtedly be of capital importance to lay down rules in such a way as to be intelligible to other people besides the legal advisers of delegations.
M. DI SORAGNA (Italy), realising the importance of the arguments submitted by a number of delegations which had met to discuss the definition of the aggressor, felt bound to indicate briefly the Italian delegation's position in the matter. That delegation largely shared the ideas, the preoccupations, the arguments and also the misgivings of the United Kingdom delegation, which had been so fully and exactly described by Mr. Eden at the meeting on May 25th. M. Dovgalevsky, who had spoken on the same day, had classed the various attitudes of his colleagues on the Committee in two categories. He had said that he could thank some of them for having helped him by their support and the others for having equally helped him by their objections. M. di Soragna had himself been present, and he wondered whether the Italian delegation could be classed in either of those categories, or whether it should not be included in a third class which had helped M. Dovgalevsky by remaining silent. Such an attitude could not surprise anyone who knew the position as regards Italian legal doctrine on the subject.
Mr. Eden had very rightly referred to the principle laid down by that great friend of peace, Lord Cecil. The Italian delegation could only refer to the teaching, the principles and the speeches of another distinguished statesman, one of the survivors of the great founders of the Covenant, M. Scialoja. He need only read a few sentences from a speech delivered by M. Scialoja at the eighth Assembly (ninth meeting, September 9th, 1927):
"...when we speak of aggression, we are perfectly aware of what it means. We now that it means nothing at all. We realise the difficulty of formulating a definition of aggression, and the joint efforts of jurists, diplomats and politicians have so far failed to arrive at any acceptable definition of the term. Furthermore, a State which is resolved to coerce its neighbours by armed force will never be the apparent aggressor, for, however unskilled its diplomacy, it will always manage to make its neighbour begin the attack.
"Therefore, in our attempt to fix the responsibility for the aggression, we must not dwell too much on appearances. We must subject to a close scrutiny all those relations between the States concerned which have in the past given rise to differences. That is far from easy."
There was no need to explain this opinion further. Moreover, the United Kingdom delegation had told the Commission all that was necessary on the subject.
M. di Soragna added that he would have said no more if Mr. Eden's speech had not been followed by that of M. Politis. That distinguished jurist's remarks had been, as always, most noteworthy, but M. di Soragna felt bound to say that he had been entranced rather than persuaded, charmed rather than convinced. In M. Politis's statement he had noted the three or four points which formed its framework.
The first argument to consider was that of a reconciliation between two systems. M. Politis had already explained that, ever since the Covenant came into existence, two principles had confronted one another : the continental—or, as M. de Madariaga termed it, Latin—principle and the Anglo-Saxon principle. The spirit of logical synthesis on the one hand, and the spirit of empiricism on the other. On the one hand, codification, automatic action and, on the other, freedom, the enforcement of verdicts as a matter of judgment and not as absolute measures. M. Politis had said that the Committee felt it had done something to reconcile the two theories, and that the texts before the Commission might help to fuse them together. M. di Soragna must confess that he was not convinced.
The texts submitted contained a list which, to his mind, was as rigid and automatic as it could be. Such a list of cases of aggression left no room for appraising the circumstances accompanying the actions specified or the responsibility of those who committed them. That was already very far from the system formerly advocated and which was based on the idea of presumption, a fact which made the whole system more conciliatory in character. In this matter, M. di Soragna did not see that any headway had been made; he would even say that the rigidity of the system was proved by the fact that it did not allow for provocation.
The judges were bound hand and foot. On the one hand, five quite specific cases were laid down. If any one of them occurred, even on a very small scale, full international action would immediately come into operation. On the other hand, no provision was made for a large number of other cases. They might be extremely serious cases. The injured party would be powerless and would have to rely on pacific procedure, which was not always very speedy. There was no need to quote examples. On the one hand, international action might be taken because a cottage had been burnt down ; on the other hand, one State might massacre the nationals of another for several days without the latter being able to do anything other than resort to pacific procedure. Those were, doubtless, exceptional cases, but the Commission would agree that a State might well ask with some anxiety whether it should subscribe to such onerous and rigorous undertakings, whether it could take the risk, by simply appending its signature to a document, of compromising so gravely what might be the primary interests of its nationals.
This procedure went far beyond the point reached in the establishment of rules of procedure in international and private law. The latter contained a conception of the responsibility of a party giving provocation. That conception was immensely important, so much so that provocation might completely cover the party which resented an insult. The present procedure might mean completely reversing the rôles. It was on the banks of the Tiber that the following sentence, which seemed to be one of the most divine of human judgments, had been uttered—summum jus, sumna injuria" (the rigour of the law is the height of oppression).
The Rapporteur had pointed out that the States concerned could sign the Act or not. He had said that, if States did not wish to sign, they should at least allow the others to enjoy the assurance of security given by the Act before them. A glance at the text was sufficient. Article 3 read:
"The present Act shall form an integral part of the General Convention for the Reduction and Limitation of Armaments."
M. di Soragna did not see how an integral part of the Convention could be excepted from the signature of a party to the General Convention. Furthermore, the Preamble said that the Act had been drawn up because it was deemed "expedient to establish the rules that are to be followed by the international bodies responsible for determining the aggressor" Nor did he see how it could be said that this Act would not bind States which did not sign it. They would even be bound to a very large extent. That was, in fact, the difficulty.
Of course, it might be said that States which did not sign bore no responsibility, either for the verdict or for the action to be taken. But that was absolutely impossible, since there would be an advisory body consisting of two kinds of members—those who proposed to apply the principle of the free hand, who would consider things as they were, take all details and circumstances into account in determining the consequences of the acts committed, and those who, on the contrary, had in their pockets the definition of the aggressor and had a ready-made decision in their minds. How could two such opposing conceptions be reconciled ?
M. Politis had remarked that the subject was not a new one. There already existed many international instruments, concluded between several countries, which were based on special rules of law arising out of special agreements between those countries and were not open to others. Possibly. In some cases the Council might take such instruments into account, but the case before the Commission was quite a different one. The Act submitted to it contained no rules on special questions affecting only certain specific States. It contained rules relating to a problem of quite general character : the determination of the aggressor. A State could hardly risk having to accept a system under which it might, as a member of an international organisation, have to help in determining the party responsible for a dispute and to determine that responsibility, not on the basis of special rules, but on the basis of a general rule which it had not accepted.
In conclusion, the Italian delegation, which had already accepted the general plan of the United Kingdom, though, of course, without contemplating the possibility of the addition of an Act of this character and tenor, considered that this second factor was calculated to alter very substantially the structure of the plan which it had accepted in its original shape. It could not hide its feeling that this addition to the plan might arouse very serious anxiety and misgivings.
M. DE BARCZA (Hungary) supported the view of the delegations which had questioned the advisability of laying down beforehand too strict criteria for the determination of the aggressor and which had also emphasised the various drawbacks of a specific and absolute enumeration of the acts of aggression.
He wished to recall that, Hungary having been a member of the Committee on Security Questions which had drawn up the draft Act now before the General Commission, he had not omitted to tell that Committee that, in principle, his delegation preferred a general formula, one that was as elastic as possible, for the purposes of the definition required—if, of course, it was at all possible to find such a formula.
In explanation of his delegation's attitude, M. Barcza would merely refer to the arguments previously adduced in this connection by several delegations at the Political Commission's meeting on March 10th. |7| He therefore need only associate himself fully with the views on this matter expressed by the delegates of the United Kingdom, Germany and Italy at the General Commission's meetings on May 25th and to-day.
M. Wellington KOO (China) wished, on behalf of the Chinese delegation, to support the draft Act relating to the definition of the aggressor recommended by the Committee on Security Questions, to thank the Committee for the valuable fruits of its work as crystallised in its report and the two annexes, and to express his appreciation to its Chairman, M. Politis, for his brilliant explanatory statement.
In the Chinese delegation's opinion, the proposed Act provided a useful set of criteria for determining the aggressor. The lack at present of any agreed set of rules for the definition of the aggressor inevitably led to delay in arriving at an agreement. In the case of aggression, time was an important element, and delay usually worked in favour of the aggressor and to the detriment of the victim of aggression.
In the second place, an agreed definition of aggression served to increase the sense of security in that it might tend to deter and discourage aggression. It might be argued, as it, indeed, had been in the Commission, that the enumeration of certain acts as constituting aggression would not be very helpful or do much good, because human ingenuity, especially on the part of the more designing among the nations, would manoeuvre its actions and so regulate its conduct as to be able to commit real acts of aggression without exposing itself to be considered as an aggressor by any of the tests proposed. In such a case, the ends of international justice as well as the purposes of world peace would be defeated, rather than promoted, by an explicit definition.
In the Chinese delegation's view it was better to have imperfect rules than to have none at all. The particular objection of some delegations could be met by making it clear that the list of acts enumerated as constituting aggression was not exhaustive. Thus there might be added, for example, at the end of the introductory sentence, a clause to the effect that the aggressor was not only that State which was the first to commit any of the specified actions but also that State which committed any action which by the procedure of consultation provided in Article X of the Convention might be determined as constituting aggression. Such an addition would make it possible to have the advantage of elasticity to meet the countless possibilities of human ingenuity without depriving the world of the benefit of an agreed set of tests of international aggression.
For the same reasons, the Chinese delegation would support the adoption of the draft Protocol annexed to Article 2 of the Act. The Protocol gave a number of useful indications as illustrations for the guidance of international bodies that might be called upon to determine the aggressor. Thus, the grounds which it was proposed should be considered as unjustifiable grounds for aggression were just those which had heretofore given rise to interminable debates between the parties to past disputes and to divergent views among third parties, thereby causing a great deal of delay in arriving at a conclusion. The Chinese delegation believed that the proposed Protocol, if adopted, would greatly assist the interests of justice and peace and facilitate prompt decisions in any given crisis created by aggression.
In short, the Chinese delegation was of the view that it was highly desirable that the present Conference, devoted to the cause of disarmament and peace, should adopt certain rules to define aggression and to facilitate the determination of the aggressor in any given case. The very phrase "organisation of peace", which was the delegations' common object, implied that practical and concrete rules should be adopted wherever possible for the purpose of restraining and discouraging aggression between nations and promoting a general sense of security. It was only by such process that chaos in international life could be completely eliminated and a new international order firmly established.
M. MIKOFF (Bulgaria) said the Bulgarian delegation had given the Act relating to the definition of the aggressor all the attention which such an important document merited. It was, indisputably, a great contribution to the solution of the problem of the determination of aggression, a problem which was one of the corner-stones in the edifice of peace.
In the eternal controversy referred to by M. Politis between the two kinds of mentality which were divided on this question—the mentality dominated by the need for rigid and strict rules and the mentality which liked to have an elastic system of law, vague in outline and becoming definite in form only in contact with experience—the Bulgarian delegation could only side with those who supported the second view.
The Bulgarian delegation was convinced that, while the rigidity of the criteria adopted might suit simple cases—and simple cases did not demand exact definitions—it might conflict with justice and leave the door open to abuse in complicated and difficult cases. There was even a risk that the application of any one of the five criteria enumerated in Article 1 of the Act might, in view of the special conditions prevailing in a particular area, give results the opposite of what was expected and the contrary of the object in view.
For these reasons, M. Mikoff fully agreed with those members who considered that the Act relating to the definition of the aggressor should not enumerate the facts constituting aggression, all of which, moreover, were by no means covered by the five points in Article 1, and that, as regarded aggression, full liberty to form a judgment should be left to the Council.
The Bulgarian Government could not accept the criteria for the automatic designation of the aggressor contained in Article 1 of the Act in question. It would be glad, however, to support any text giving a general definition of the act of aggression.
Colonel BEAZLEY (India) said that, having regard to the distance which separated the country he represented from Geneva, it would be understood how it was that he had not received the views of the Government of India with regard to the contents of the extremely important document before the Commission. Lest, however, his silence should be interpreted as implying acceptance of the report and of the terms of the annexes thereto, he wished, on behalf of the delegation of India, to record a reservation in regard to the views which his Government might wish to express on a subsequent occasion with regard to the subject under discussion.
M. PAUL-BONCOUR (France) had wished, notwithstanding the rather pressing duties which might have kept him in Paris, to attend the present meeting in order to support the laudable efforts—which might, he thought, lead to very satisfactory results—of the Committee on Security Questions and of M. Politis, its Rapporteur. The French delegation gave its full and unreserved support to the proposals made for defining the aggressor, and would support also those regarding the determination of the fact of aggression; it had given and would give the same support to the inferences to be drawn therefrom as regarded both the Consultative Pact and a more specific Pact of Mutual Assistance. He trusted that those proposals would be accepted by the General Commission. Frankly, he felt obliged to say, even at this stage, that he feared they would not be so accepted ; he would very much regret it. It should be fully realised that this was one of the keystones, if not the chief keystone, of the edifice of mutual international security which the Conference was trying to build up.
Whether the question to be considered was the opening articles of the United Kingdom delegation proposal, as revised by it in the light of the United States declarations regarding the Consultative Pact and its enforcement, or the narrower Pact of Mutual Assistance, which would be the next problem to be discussed by the Commission, or even, it had to be said, the working of the Covenant in its present form, the definition and establishment of the fact of aggression constituted a basic principle without which nothing could be constructed. The Commission had just been reminded, it was true, of the difficulties which had for years been experienced and which had arisen in connection both with the definition of aggression and the establishment of the fact of aggression. The French delegation had never very clearly understood what difficulties could be raised.
The Italian delegate had just quoted the saying of an eminent countryman of his, with whom M. Paul-Boncour had often had the honour of sitting at the Council table or of pleading before the Permanent Court of International Justice at The Hague, and for whom he felt a very real intellectual admiration and friendship. Like all the members of the Commission, who had so often felt his charm, M. Paul-Boncour knew that M. Scialoja concealed under a kindly scepticism a very sound knowledge of the law. In the phrase quoted, M. Scialoja had said that everyone knew very well the meaning of aggression because no one could know what it meant. If M. Scialoja had meant to say that no concrete cases of aggression could be cited, that would have been going farther than seemed to be implied by many statements which M. Paul-Boncour had heard from the lips of M. Scialoja. He thought that M. Scialoja had in view that abstract definition of aggression for which so long a search had been made and which was very difficult to frame. The merit, however, of the Committee on Security Questions, the merit of the lucid spirit of its Rapporteur, was that they had substituted, for the comparative futility and uselessness of an abstract declaration, concrete cases of aggression and had substituted for the definition facts and an enumeration of those facts. War, like the devil when he was tempting St. Anthony, took the most varied and fanciful disguises. The wisdom of the proposals before the Commission was that they did not claim to be an exhaustive enumeration of the many forms which the ingenuity of anyone who wished to commit an aggression could assume. He ventured, however, to stress the fact that the problem was not whether those forms were all enumerated but whether those specified were indubitably facts of aggression.
If the list were considered, what room was there for doubt ? First fact : Declaration of war upon another State. That would doubtless be the least common occurrence; since pacific procedure had come into existence and with its gradual development declarations of war in solemn and diplomatic form would be less important. There could therefore be no possible discussion on the first fact. Was there any possibility of discussion as regards the second : "Invasion by its armed forces, with or without a declaration of war,"—and the latter would almost always be the case—"of the territory of another State". If the second fact were beyond discussion, how could there be any about the third, which only differed from the second in that the latter represented invasion properly so-called, penetration on a large scale far into the territory of another country, which was nevertheless the result of an "attack by its land, naval or air forces ... on the territory, vessels or aircraft of another State". The fifth fact, he thought, was very closely connected with the third and the second, in the sense that it covered a case which it was very necessary to cover, in view of the changes which had occurred, since the war, in the conception which could be held of armed forces—namely, the same invasion, the same kind of attack conducted not by regular forces but by armed bands which were shown to be supported by the State sending them into its neighbour's territory.
M. Paul-Boncour wished to point out that these four concrete facts were merely the expansion of a small, short but very clear sentence in President Roosevelt's message. He could not very well understand how anyone could object to the concrete proposals before the Commission and at the same time accept the message of President Roosevelt. President Roosevelt's message contained this decisive phrase: that the signatory Powers "... should individually agree that they will send no armed force of whatsoever nature across their frontiers." That was the same idea, put in another form, as appeared in the list proposed by the Committee, since, if there was to be invasion of or attack on the territory of another State, the regular or irregular troops would have to cross the frontiers of the country sending them. That was quite clear. What President Roosevelt's message lacked—and this was what the Committee had tried to do—was this : the same rules should be applied to navies and air forces. But M. Paul-Boncour considered that the list of facts proposed was the strict logical development of that essential passage in the message sent by President Roosevelt to the Heads of States.
The Italian delegate had just raised the objection that the Committee's list of facts of aggression was incomplete, that there might still be others. Undoubtedly, but that was an objection which had been anticipated by the Committee on Security Questions and M. Politis. The Committee had done the necessary additional work of stating the facts which could not be adduced as pretexts for justifying, under international law, aggression in the strict sense of the term and so defined. That had been necessary. Did that mean that such facts were themselves licit actions and that the State committing them should have no account to render to international justice because the Conference had adopted those concrete cases of aggression ? That was not so. M. Politis's report and the Protocol (Annex II) expressly said so; that there was no justification under the law of nations for acts which were thus eliminated as legitimate pretexts for aggression. To make that objection was to forget that the Conference was trying to give the international organisation of which it formed a part the possibility of ascertaining clearly, speedily and without useless discussion, the fact of aggression and that, in the case of other facts which did not constitute the brutal and obvious act of aggression, but which were nevertheless contrary to international law, it was an international instance, the League of Nations, the Council, the Assembly or the body formed, according to the first three articles of the United Kingdom plan, by adding to the Council or the Assembly States signatories to the Convention, which would have to determine them. But the essential task carried out by the Committee and embodied in M. Politis's report was to give such future judgments a definite basis. How could a preference for elastic regulations and for greater latitude in deciding as to the aggressor be set up against that system ? M. Politis had said — so clearly that M. Paul-Boncour had almost nothing to add and was even embarrassed to have to repeat it — that that did not detract from the power of appreciation possessed by the body whose duty it would be, under the Consultative Pact or the Pact of Mutual Assistance or the League Covenant, to take a decision. The task of international law in all questions, literary rights, transit, etc., was to try, as had been done in private law, to give textual bases for the judgment of the court, so that the latter need not give unlimited play to its imagination but would have positive data to corroborate its own view.
Were those who would be asked to guarantee by international measures the security of all to be deprived of this basis, the initial Act, the essential Act ? If the Commission negatived the proposals of the Committee on Security Questions, M. Paul-Boncour confessed he would feel the deepest anxiety as to the outcome of the Commission's proceedings.
Colonel LANSKORONSKIS (Lithuania) said that Lithuania had a most profound belief in the supremacy of right over force and she believed in international justice. Concerned as she was for her own security, she lent her modest help to every attempt made to strengthen the organisation of peace and thereby her own security.
When the Commission had taken up the study of the Soviet draft, Lithuania had felt gratified that a decisive step was at last going to be taken.
Though the list of facts constituting an act of aggression did not perhaps cover all conceivable cases of aggression, the Lithuanian delegation at any rate thought that those mentioned left not the slightest doubt that they would be a violation of Lithuania's security. It was not the small States that engaged in provocation. They might certainly suffer from it and would then be forced to take legal steps through the League to secure justice. It was none the less true that the facts enumerated were really cases of aggression.
Lithuania gave her full and complete support to the draft now under discussion.
M. POLITIS (Greece), Chairman of the Committee on Security Questions, said that he might have refrained from speaking again in the discussion had he not wished, first, to thank those colleagues who had kindly supported the draft under discussion, and, secondly, to reply to some observations, in particular to a certain number of objections which had been put forward.
He agreed with M. de Madariaga on almost all the points he had mentioned, and felt with him that the cardinal merit of the draft was that it might have a preventive effect. On that point, he was glad to note the view of M. Nadolny and other speakers that the Committee's report did really possess that merit. He also agreed with M. de Madariaga in the emphasis which he had laid on the fact that application of the rules proposed should be entrusted to an international organ. That idea was suggested in the actual Preamble of the draft Act and might perhaps be more clearly stipulated were it not that Article 2 of the new text proposed last week by Sir John Simon indicated what body would be responsible for applying the general code of rules directly or indirectly included in the general Convention for the Reduction and Limitation of Armaments.
Article 2 stated that this organ, which would be the Council or Assembly of the League, with the addition of contracting States not members of the League, would, in the event of a breach of the rules, have to examine the situation and ultimately fix the responsibilities.
It was a very simple matter to give the explanation asked for by M. de Madariaga, of the sentence in paragraph 23 of the report. The idea of that sentence was not to justify unlawful occupation, but solely to protect peaceful possession against any act of force, even when the legal titles on which possession was founded might accidentally be open to dispute.
Lastly, referring to M. Madariaga's final request that, at the end of the Protocol annexed to Article 2 of the draft Act, it should be specified that breaches of the law of nations which were not justified therein should give the victim the possibility of appealing to an international instance, M. Politis took that for granted. What the Committee had wished to lay down here was that, if breaches of the law could not justify aggression, they were none the less open to condemnation. Obviously, the victim of those breaches could resort to pacific procedure. It could usa all the pacific means in its power under treaty law. Was there any point in saying so? M. Politis left it to M. de Madariaga to decide. If the latter so wished, he need only submit an amendment, worded as he thought fit, which would be inserted in this final section of the Protocol annexed to Article 2.
To M. Nadolny, who had spoken of the desirability of explicit texts and the value of co-ordinating them, M. Politis replied that it would be impossible to find anyone more anxious than himself to introduce the greatest possible clarity into documents intended to govern international relations. M. Politis would nevertheless like to be quite clear as to the obscurities which, it was suggested, needed dissipating in the present case, because, though the two instruments—that now under consideration and that relating to European security—were not identical in their enumeration of acts of aggression, this was to be explained by the fact that their purpose was not precisely the same. The instrument under consideration enumerated acts of aggression in a general way without drawing any practical consequences, whereas, in the European Security Pact, such acts were enumerated with a definite practical end in view—namely, the application of such mutual assistance as would be prescribed. That being so, it was obvious that, though it had been possible to lengthen the list in the first Act because such a proceeding was without general importance and did not entail very definite practical results, in the second instrument, it had been necessary to limit the list and merely to include the most characteristic cases which, should they occur, would call for the application of mutual assistance in a more definite and more legitimate manner.
M. Nadolny had suggested that there was a further misunderstanding which had to be cleared up. The Commission, he suggested, was discussing aggression, whereas Article 2 of the new text proposed by the United Kingdom delegation spoke of responsibility. M. Politis took the view that "aggression" in the general sense of the term and "responsibility" within the meaning of Article 2 were exactly synonymous terms.
Lastly, as regards the possibility of taking into account the very interesting ideas—which M. Politis personally had welcomed with the keenest satisfaction—embodied in President Roosevelt's message and in Mr. Norman Davis's speech of May 22nd, M. Politis thought that, before an attempt could be made to co-ordinate the texts, it would be necessary to ascertain whether these ideas were intended to be given written and treaty form. Hitherto, the Committee had not been informed that such should be the case. If texts were submitted, such co-ordination would become indispensable and, as M. Politis would show at the conclusion of his remarks, he considered that such co-ordination would not present the slightest difficulty.
M. Politis now came to the objections raised by M. di Soragna. He asked to be allowed to dwell upon them at somewhat greater length, as he could not conceal the deep concern which they had caused him. In this case, it was no longer a question of different conceptions of the nature of law, but of a sharp, a radical disagreement as to the conception of the organisation of international relations, and more especially the organisation of peace. M. Politis was greatly flattered that his previous remarks had charmed M. di Soragna ; at the same time he was equally distressed at having failed to convince him. In the pacific battle being waged in the Commission, with its constant clash of arguments, the force of the latter was countered by another and, unlike other conflicts, in which success could be determined, in the Conference it was only third parties who could weigh the respective pros and cons and take a decision. For his own part, however, M. Politis was bound to say, no less frankly than M. di Soragna, that the latter had not merely failed to convince him, but, on the contrary, had strongly confirmed him in the views which he had expounded before the Commission on May 25th.
What had M. di Soragna said ? There were two points on which absolute clearness was essential. First of all, M. di Soragna had said that the fragility of the system proposed had been more especially demonstrated by the fact that it made no allowance for provocation. The latter, he maintained, played a very important part in the system of law. It played an important part in the national system, and must, in consequence, play an important part in the international system. On this point M. Politis could concur in what M. di Soragna had said, and he accepted the postulate that, in international relations, provocation should play the same part as in the relations between private individuals and between nations. M. Politis, however, hastened to add that, though he accepted this analogy, he was not prepared to agree that provocation should play a greater part in international relations than in municipal law. What precisely was the part played by provocation in municipal law ? To what extent could it absolve a crime, an infringement of the rules of conduct laid down by criminal law ? As far as he knew, there were only two possibilities.
In the first place, provocation constituted an act which placed the victim in a position of legitimate defence, in which case the act with which the victim was charged was condoned, by reason, however, not of the act of provocation itself, but of the situation which it had brought about—that was to say, the special situation known as legitimate defence. On this point, there was complete agreement. The situation was the same in international relations. M. Politis had made this clear on May 25th, |8| when he had dealt with the following problem: either provocation consisted of an act which had placed the victim in a position of legitimate defence, in which case the latter, through the very fact of being in such a position, could commit one of the prohibited acts without being considered an aggressor, or else provocation was not one of the prohibited acts, in which case aggression could not take place on any ground whatsoever, and, against such an act of provocation there remained no other remedy than the application of a pacific procedure to secure the vindication of the right infringed. There was, therefore, a complete analogy in private law ; when provocation resulted in a case of legitimate defence, the act was condoned; when it did not result in such an act of legitimate defence, there was no condonation. Provocation merely enabled the court to consider the case as an extenuating circumstance which, though reducing the penalty, could not entirely do away with it. In examining the instrument under consideration, moreover, this question of repression, this question of punishment did not arise, for, as M. Politis had frequently stated—and repeated a few moments ago in reply to M. Nadolny—the general Act defined aggression in general terms without dealing with the practical consequences. In this case, there was no question of repression, but when entering the sphere of sanctions and of assistance, within the terms of the European Pact of Assistance, provocation, interpreted as an extenuating circumstance, might then be taken into consideration with a view to delaying or modifying the award of mutual assistance. Accordingly the parallelism was complete, and it was not possible to leave open the door—against the closing of which M. di Soragna had protested in respect of cases in which pacific methods of procedure came to nought, or in which a country was faced with an obstinate refusal—and to condone in advance resort to force. M. Politis ventured, with all due respect, to point out to M. di Soragna that to accept the latter's line of argument would be tantamount to tearing up the Pact of Paris ; it would be equivalent to cancelling the extension of that Pact, which had been accepted by the General Commission in a unanimous resolution, whereby recourse to force had been assimilated to recourse to war. What was the meaning of the expressions "prohibit recourse to force" and "prohibit recourse to war" ?
They meant, as Article II of the Pact of Paris indicated, that the States undertook that in no circumstance would they employ other means than pacific forms of procedure for settling their disputes, so that, if provocation were to play any part, it could only be the part which it played in private law. If, however, it were desired to extend this idea of provocation in order to justify the use of force in international relations, that meant a very profound difference of opinion as regards the manner in which international relations were conceived. The arguments just put forward belonged, in M. Politis's opinion, to the past. He claimed that the conception which he was maintaining existed already in the texts adopted, and was in harmony with the object at which the civilised world was aiming in organising peace.
The same remarks applied to the other observation with which M. di Soragna had supported the view expressed by Mr. Eden a few days previously. M. di Soragna had said: "We are asked to accept or not to accept. Obviously, everyone is free to act as he thinks fit. We are told, however, that we have no right to prevent those who would like to sign this instrument from doing so." And M. di Soragna had gone on to observe : "But what would be the position of these third States ? What would be their position in this international organism of which they are members, when they are called upon to apply rules to which certain States only have agreed? You would be placing them in an impossible position; you would be causing them indirectly to assume the very obligations which they are not prepared to assume." On the previous occasion, M. Politis, replying to Mr. Eden's remark, had quoted the example of the Pact of Locarno and had claimed that it proved that third States might find themselves in a similar position and that that position had hitherto given rise to no objection. He now received the answer: "Yes, but the Pact of Locarno lays down special rules, whereas the rules under discussion are of a general character. The comparison therefore does not hold and consequently cannot be used as an argument."
Did that really justify so clear-cut a distinction ? It was contended that, in the present case, the rules were of a general character. In what sense ? In character they were general rules, but they remained special rules in so far as they were only accepted by certain parties. And if immediate agreement were impossible that was because there was too strong a tendency, in accordance with the time-honoured principles which had so far governed the world, to consider that international organs were composed of States exercising their sovereign rights uncontrolled and as arbitrarily as they wished. It had not yet become sufficiently the custom to take the view that, as their name indicated, international organs were actually organs—that was to say, entities entrusted with the exercise of a public function. If, therefore, two countries had concluded, within the limits authorised by general law, special Conventions which, though binding upon themselves, did not bind third parties, and if the application of the rules thus established gave rise to a discussion before the international organ, it appeared to M. Politis an anachronism to say : "How do you expect the members of the international organism, who are not contracting parties, to be able to apply these rules ?" M. Politis was aware that the evolution of law had not yet reached this stage, but it was approaching it. Think of what took place in the municipal courts when the two parties were bound by a contract which the civil code of every country in the world regarded as the law of the parties. Was the judge entitled to say that, as a third party to this contract, he had no concern in the matter ? It was more or less in the same way that the international organ and the members of which it consisted would have to act in the present case. They had to apply rules accepted by certain parties and to apply them solely in the relations between those parties. The argument that, as States—not as members of the organism, but as States—they had not accepted these rules was an objection which could not, in M. Politis's opinion, be regarded as valid, from the point of view of the application of the system proposed. The consideration raised was therefore not really relevant, and it was, M. Politis thought, for that reason that it had failed to convince him. Was it desired to re-open the question of the Pact of Locarno and say that, if the rules had a special instead of a general character, they could not be applied by the third party members of an international organism ? If that were the case, M. Politis would venture to point out that, after the conclusion of the Locarno Agreements, the 1926 Assembly had, by a unaninous vote, recommended all Members of the League to take example by these Agreements and imitate them in any other regions where their application might be possible. Tlhat was more or less what the Commission was engaged in doing, and it was fortunate in having the co-operation of States which were not members of the League.
Even from the special point of view of the relations of States Members of the League with each other, the argument did not hold and, if the votes of the League had any value, M. Politis would emphasise the fact that, in 1926, the League Assembly had recommended that the Locarno Agreements be imitated wherever possible.
In conclusion, M. Politis noted with satisfaction that the great majority of the Commission had pronounced in favour of the draft Act; on a few formal points, it might require certain amendments or additions. Any delegation which so desired was free to make suggestions in this respect, so that they could be examined in due course. It was with all the greater regret that M. Politis noted that, on the other hand, a certain number of the delegations were not prepared to accept the draft instrument, not merely in so far as they themselves were concerned, but even as regarded the others ; they were not prepared to agree to this draft instrument becoming a general law open to any country which was willing to accept it. On this point, M. Politis's views harmonised with those just expressed by M. Paul-Boncour ; he observed that President Roosevelt's message proposed a fourth measure, and M. Paul-Boncour had pointed out a few moments ago that this measure summed up the majority of the cases enumerated in the Act which the Commission was discussing. M. Politis would further remind the Commission that, in his speech on May 22nd, Mr. Norman Davis, in commenting on this fourth measure, had said that it contained the elements of a definition, and that some day it might perhaps be possible to arrive at a clear and explicit definition of aggression. He had added that the clearest and most accurate definition of an aggressor was a State the armed forces of which were found in foreign territory in violation of treaties.
It was for the General Commission, which had applauded Mr. Norman Davis's speech, which had enthusiastically supported President Roosevelt's message, to decide whether it was prepared to prove its consistency by accepting the conclusions which the Committee had drawn from these data and embodied in the Act under consideration, or whether it wished to contradict itself by refusing to accept that instrument.
The PRESIDENT summed up the position in which the Commission found itself as the result of the two days' discussion on the question of aggression.
It was quite clear that two very distinct lines of thought had run through the discussion. There were those who did not desire to lay down any definition of a rigid character and those who wished to accept something on the lines of the report presented by the Vice-President. The President thought, further, that he had noticed in M. de Madariaga's speech something more in the nature of a centre position, and there were one or two suggestions made by the Spanish delegate which might be very carefully considered.
It had been suggested that the Commission should try to close the discussion, but the President was afraid that that was quite impossible, and he would point out that the invitation extended by the Chairman of the Committee on Security Questions towards the close of his speech should be acted upon. He suggested accordingly that Mr. Eden, who had taken a very definite position on one side, M. Dovgalevsky, who had taken a definite position on the other and who had been responsible for the first motion introduced seeking to provide a definition of aggression, and perhaps, M. de Madariaga, might consult with M. Politis ; the President could not help thinking that if that were done it might be possible, without destroying the work of the Committee, to get something through on the lines of its report, but not quite so rigid as the present wording. At any rate, the President would like to see that suggestion tried before the question of aggression was discussed a second time, as he hoped it would be not more than a few days hence.
If that were agreed, the question would arise what business should be taken at the next meeting. The part of the report at present under discussion contained a third annex which set out provisions of an optional character. There had been no criticism of this part of the report, and the President proposed that the Commission should take it as the first business for its next meeting and, in view of its optional character, dispose of it speedily. The Commission might then take Part III of the report dealing with the very important question of a European Security Pact. |9|
The President strongly hoped that the Commission would follow the plan he had suggested, as it would enable the Vice-President to have the conversations in view and, if possible, to bring forward some arrangement on which general agreement might be obtained. That procedure would, he believed, expedite the Commission's work.
M. DOVGALEVSKY (Union of Soviet Socialist Republics) observed that the President had just proposed that a further effort be made to reconcile the two conflicting trends of thought revealed at the meetings of the Committee and General Commission respectively. To be frank, M. Dovgalevsky was not optimistic as to the possibility of reaching a satisfactory result. Nevertheless, he did not wish it to be said that they had shrunk from a last attempt. It was for that reason that he would not oppose the President's proposal. He asked, however, that the General Commission should allow a period of three or four days for this attempt at reconciliation, in order that the question might immediately come up again before the Commission, which could then proceed to take a vote.
Mr. EDEN (United Kingdom) felt he need hardly say that he gladly agreed to the President's suggestion that the delegates mentioned should do their best, under the skilful chairmanship of the Vice-President, to find some method of overcoming the difficulty in which the General Commission clearly found itself. The United Kingdom delegation would be happy to do all it could to that end. He would have thought that the correct place for the proposal as to the definition of the aggressor was its present position (end of Part I) in the draft Convention. It would not, he considered, be right to take individual items from the draft Convention and give them an earlier second reading. The Commission should complete the first reading of the whole draft Convention and then have the second reading as originally arranged. He would regret to see any part of the draft given preferential treatment, since, if that were done, each delegation would be apt to have its own preferences.
M. NADOLNY (Germany) was in complete agreement with Mr. Eden. He thought that the latter's remarks might give satisfaction to M. Dovgalevsky; it would thus be possible to discuss and settle this question before the second reading.
M. DOVGALEVSKY (Union of Soviet Socialist Republics) said that when he had originally put forward his proposal, he had not thought it necessary to state the arguments in its support; now, however, he desired to do so.
The Soviet proposal relative to the definition of the aggressor had been laid before the Conference at the beginning of February, as a motion entirely independent of the draft Convention which the Conference was at present discussing. That was why the procedure applied to the definition of the aggressor had been different from that adopted in the case of the United Kingdom draft, and M. Dovgalevsky was asking that it be continued. He therefore maintained his proposal that three or four days be allotted for the negotiations. If M. Nadolny wished to have this period somewhat extended—to a week, for example—M. Dovgalevsky would not object, but he asked the General Commission to name a period, on the expiry of which the draft Act on the definition of the aggressor would again come before the Commission for general discussion.
The PRESIDENT did not think it possible to discuss the matter any further at the moment. More than one speaker had said that the Commission could not begin to give preferential treatment. He would, however, suggest a means of meeting M. Dovgalevsky. It was that there should be fewer and shorter speeches on the second part of the Convention—i.e., Parts IV and V—upon which the Commission would soon be starting. These two parts had already been through the Drafting Committee and the Bureau, and should not therefore require very much time. Part III could not be completed until it was known what the remainder of the Convention would be. That meant that, in a very few days, the Commission would begin the second reading of Part I. There were at present three articles in Part I to which there were no amendments, and the fourth article would depend upon the results of the consultations in question. It would therefore be far better if M. Dovgalevsky would accept the position suggested by the President, who could assure the Soviet delegate that everything would be done to finish Parts IV and V as soon as possible, after which the Commission would begin the second reading of Part I, when votes would have to be taken on all questions on which amendments had been submitted.
Count RACZYSKI (Poland) apologised for making suggestions after the President had done so. He nevertheless considered that, after the brilliant speeches to which they had listened, the members of the Commission would have little doubt that the question under discussion was something in the nature of a preliminary question and that it would be necessary for them to face their responsibilities and decide for or against. After the speeches to which they had listened, he considered that such a discussion would be essential and extremely valuable before the debate on Part I of the United Kingdom draft. There was also a technical reason : the Soviet proposal had been submitted as long ago as February; it had therefore preceded the United Kingdom plan. In considering that the discussion should take place, Count Raczyski was, however, actuated rather by reasons of principle than by any formal reasons.
Mr. EDEN (United Kingdom) pointed out that the Commission was working on a basis which had been generally approved by itself and that basis was the draft Convention. The Commission was discussing the subject because of the desire, with which, naturally, he did not in any way quarrel, of the Security Committee to place the definition of the aggressor in a special position in the draft Convention. He would have thought that the normal place for further discussion was in the proposed place in the draft Convention. He would regret any departure from the basis which the General Commission had accepted, since it might lead to confusion later.
The PRESIDENT noted that Mr. Eden had supported the statement which he, the President, had put forward in the interests of the work in hand, and, in view of the explanations that had been given, he hoped M. Dovgalevsky and his supporter, Count Raczyski, would not press their suggestion to a division. It would create a rather unfavourable impression if the Commission could not agree upon a little matter of procedure in the way which the President had suggested, a way which he hoped might lead to a peaceful settlement of the differences between the two parties, which had been revealed in the discussion.
M. DOVGALEVSKI (Union of Soviet Socialist Republics) acceded to the President's request, but nevertheless reserved his right to raise again the question of the immediate examination of the proposal regarding the definition of the aggressor in the course of the first reading of the United Kingdom plan if the conversations were unduly protracted.
The PRESIDENT said that if M. Dovgalevsky did not hold out too hard when the Vice-President was carrying on his negotiations, it would probably be possible to get all the sooner a settlement of the question satisfactory to the Soviet delegation. He thought, therefore, that, on that understanding, the Commission might adjourn.
Notes:
1. Cf. document Conf.D./C.G.108. [Back]
2. Document Conf.D./C.G.108. [Back]
3. See Minutes of the sixty-third meeting of the General Commission, page 499. [Back]
4. See Minutes of the fifty-ninth meeting of the General Commission, page 462. [Back]
5. Document Conf.D./C.G.108(a) [Back]
6. See Minutes of the sixty-third meeting of the General Commission, pages 494 and 495. [Back]
7. See Minutes of the eighth meeting of the Political Commission, pages 47 et seq. [Back]
8. See Minutes of the sixty-fifth meeting of the General Commission, page 516. [Back]
9. Document Conf.D./C.G.108(a). [Back]
Source: League of Nations, Records of the Conference for the Reduction and Limitation of Armaments, Minutes of the General Commission, Series B., vol. II, Geneva, Dec. 14 - June 29, 1932-1933, pp. 499-502, 547-559.
Editorial Note: This is a true copy of an extract (pp. 499-502, 547-559) 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. 13.
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