Under the Protocol, the agreement of the parties thereto (Article 2) not to resort to war with one another is, if the terms of the Protocol are carried out, absolute. The only stated exceptions in Article 2 of the Protocol are (1) in case of resistance to acts of aggression and (2) when acting in agreement with the Council or the a.s.sembly under the Covenant or the Protocol.

The first exception relates to defence and, if there be no aggression, as there would not be if the Protocol is lived up to, there would never be any need of defence against aggression.

The second exception, so far as it relates to a Party to the Protocol against whom force might be used, relates primarily to an aggressor, as defined in the Protocol. Of course this second exception in this regard goes beyond the question of defence, strictly speaking, because it would permit a State, not attacked, to go to the defence of another State attacked if and when the application of the Sanctions of the Protocol is called for by the Council[1]; but if the Parties to the Protocol carry out their agreements as therein expressed, there could never be any war between two or more of them.

There appears to be another possibility of the use of force within the language of this second exception; this is the case where a State, against which has gone a decision of the Court or an arbitral award, fails to carry out the decision or award.

The provision of the Covenant regarding such a situation is contained in Article 13, where it is said that the Council shall "propose what steps should be taken to give effect" to such decision or award.

Obviously such proposals by the Council would not have any binding effect upon the Members of the League.

However, under the Covenant, the State in whose favor the decision or award had gone _might_ lawfully have resorted to war against the State refusing to carry out the decision or award, {51} provided merely that it delayed resort to war for three months thereafter, under the language of Article 12 of the Covenant. In other words, if an award or decision was made and a State refused to carry it out, the successful party, under the Covenant agreed merely to refrain from war against the defeated party for a period of three months.

The Protocol (Article 4(6)), as interpreted by the Report to the a.s.sembly, still permits the successful party to use force in such a case but only when the Council authorizes the use of force, such authorization being brought within the terms of Article 13 of the Covenant.

It is true that the Council is first to exert its influence to secure compliance with the decision or award and that, if the use of this influence fails, the Council may then propose measures short of force before authorizing the use of force itself.

Indeed, the Report[2] says that the Council may "inst.i.tute[3] against the recalcitrant party collective sanctions of an economic or financial order." If this means that the Signatories to the Protocol are obligated to employ such sanctions in such a case when called on by the Council, I can only say that, in my opinion, the statement is not warranted by any language of the Protocol or of the Covenant.

However, the final effect of these provisions is that with the authorization of the Council the successful party _may_ use force to execute a judicial decree or arbitral award.

Furthermore, the Report to the a.s.sembly says that in such a case the defeated party could not resist, and that, if it did resist, it would become an aggressor against whom all the Sanctions of the Protocol might be brought into play.

To see how this would work out, let us suppose that in an arbitration between State A and State B, State A obtained an award to the effect that State B should pay to it the sum of twenty million dollars.

Thereupon State B refuses to pay the award and, notwithstanding the efforts of the Council, maintains that {52} refusal, thereby violating its agreement in the Protocol (and in the Covenant also) to carry out any such award.

Thereupon the Council authorizes State A to use force to collect the money. It is no answer to this to say that the Council would not authorize the use of force, for we are considering what may be done, not what would be done. State A then begins to use force and, if State B resists at all, the entire machinery of the Sanctions of the Protocol can be brought into play and these include military and naval Sanctions.

Of course, such a result would be highly improbable, but I submit that it ought to be legally impossible. The provisions of the Protocol in this regard go very much farther than they ought to go, and very much farther, in my opinion, than the States of the world are now willing to go.

The case which I have supposed is one of a money judgment. A more difficult case would be one where the award was for the recovery by State A of certain territory in the possession of State B which State B thereupon refused to give up. In such a case there is more to be said for the use of force than in the other.

In any case, the refusal of a State to carry out the judicial decision or the arbitral award after solemnly agreeing to do so is a very serious breach of a treaty; but the idea of the authorization of force to execute such a decision seems to me to present a question of the very gravest character. My own view is against it. I am inclined to think that the penalty of expulsion from the League under the fourth paragraph of Article 16 of the Covenant should be the utmost permissible.

Whether this view of mine be correct or not, certainly the countries of the world are not going to accept any provision by which they will be obligated in advance to join in measures to enforce the result of an arbitration or of a litigation before the Permanent Court. Whether they will agree to a provision permitting the successful party, so to speak, to execute the decision or award on its own account is perhaps doubtful; but certainly they will go no farther, if as far; and this is one of the provisions {53} of the Protocol which will have to be changed before the doc.u.ment becomes a reality.

Subject to the foregoing exceptions, the general covenant under Article 2 of the Protocol not to go to war is, in my opinion all inclusive. It obviously includes all cases where there is a dispute of international cognizance, for in such cases all parties agree upon a final and binding method of decision and agree to carry out the decision. It also includes, as pointed out previously,[4] all cases in which one State would seek to change by force the _status quo_, or to prevent by force a lawful change in the _status quo_.[5] Neither the lawful maintenance of the _status quo_ nor its lawful change would come within the general exceptions of Article 2.

Furthermore, the covenant against war in Article 2 would also exclude the going to war about domestic questions. All that any Signatory agrees to do regarding such a question, if, when raised internationally, it is not settled by negotiation, is to discuss it before the Council or the a.s.sembly.[6] A State which did that would have fulfilled all its obligations regardless of any action or inaction as to the domestic question itself; and an attack made on it by any other State would then be aggression under the terms of the Protocol.

There is no exception. As the Report to the Fifth a.s.sembly says,[7]

"Our purpose was to make war impossible, to kill it, to annihilate it."

This, if lived up to by the Parties, the paper does, as among them.

The detailed provisions of Articles 7 to 10 inclusive of the Protocol confirm the views above expressed. The provisions of these Articles will be more specially considered in connection with the question of Aggression.[8]

[1] See the discussion on this point, _infra_, p. 72, _et seq._

[2] Annex C, p. 180; see also pp. 168, 169.

[3] The word in the French text of the Report is "declencher."

[4] p. 45.

[5] An instance of this would be if States A and B agreed on a cession of territory from one to the other, to which State C objected.

[6] Under Article 11 of the Covenant.

[7] p. 208, _infra._

[8] p. 54, _et seq._

{54}

CHAPTER X.

AGGRESSION.

The preamble to the Protocol a.s.serts that a war of aggression is an international crime. I have discussed above[1] the agreement of the parties to the Protocol not to resort to war except in defence against aggression or in aid of defence against aggression or perhaps in execution of a judicial decision or arbitral award. This is the general covenant of Article 2 of the Protocol. It is this resort to war, contrary to the terms of the Protocol, which is the chief breach of the Protocol against which its chief Sanctions are ordered.

By Article 10 of the Protocol[2] every State which resorts to war in violation of the undertakings either in the Covenant or in the Protocol, is an aggressor.

It will be necessary to consider only the provisions of the Protocol forbidding a resort to war, for it would be impossible to have a resort to war contrary to the Covenant which would not also be a resort to war contrary to the Protocol. The provisions of the Protocol go farther than those of the Covenant in this regard.

It is true that there are in the Covenant certain engagements by Members of the League not to resort to war. These are found in Articles 12, 13 and 15; but it is unnecessary to consider them in detail, for any resort to war contrary to the provisions of those Articles of the Covenant would clearly also be contrary to the general engagements of Article 2 of the Protocol.

The Report to the a.s.sembly[3] seems to infer that a violation of the obligation of Article 10 of the Covenant on the part of all Members of the League to respect the territorial integrity and political independence of other Members might be a resort to war not included in the language of the Protocol; but I think that {55} any such forcible violation would be within the terms of the Protocol also.

It is against the aggressor that the Sanctions of the Protocol are set up and accordingly the provisions of the Protocol defining an aggressor and the procedure for determining what State is an aggressor are of the utmost consequence.

The definitions of an aggressor under the Protocol are complex in their language though not in their fundamental idea, which is that aggression is a resort to war instead of to arbitration.[4] The language of the definitions is obscured by certain presumptions (Article 10) and by the procedure laid down for the determination of an aggressor.

The general definition of an aggressor in the first paragraph of Article 10 of the Protocol I have mentioned above. It is well, however, to quote it in full:

"Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarized zone shall be held equivalent to resort to war."

This is the general definition of principle. It relates back in its meaning to Article 2 of the Protocol, the general engagement not to resort to war. Beyond that, it makes the violation of the rules for an agreed demilitarized zone the equivalent of a resort to war, the two are a.s.similated.

The first question that arises regarding this general definition is whether the words "resort to war" mean necessarily an actual and technical state of war only, or whether they include all acts of violence and force, even if such acts did not in a particular case result in an actual state of war, because, for example, not resisted.

The view of the Report to the a.s.sembly[5] in this matter is that such acts of violence are included in the expression. I am {56} inclined to agree with this view, though as a mere matter of language an argument to the contrary is possible.

Suppose, however, that there is an actual state of war; how is it to be determined which one of the two[6] belligerents is the aggressor?

The Protocol attempts to meet this difficulty by laying down two different methods of determining the aggressor. One is by creating certain presumptions, which I shall discuss later; the other is for the case in which none of the presumptions is applicable.