Force in Peace: Force Short of War in International Relations [Reprint 2014 ed.] 9780674497801, 9780674186996

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FORCE IN PEACE

LONDON : HUMPHREY MILFORD OXFORD TINrVEHSnT PRESS

FORCE IN PEACE F O R C E S H O R T OF W A R IN INTERNATIONAL RELATIONS BY

ALBERT E. HINDMARSH ASSISTANT DEAN OF HARVARD COLLEGE INSTRUCTOR AND TUTOR, DEPARTMENT OF GOVERNMENT, HARVARD U N I V E R S I T Y

Cambridge HARVARD U N I V E R S I T Y P R E S S MCMXXXIII

COPYRIGHT, 1933 BT THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE

PRINTED AT THE HARVARD UNIVERSITY PRESS CAMBRIDGE, MASS., U . S . A .

"International law has not only the force of a pact and agreement among men, but also the force of a law; for the world as a whole, being in a way one single state, has the power to create laws that are just and fitting for all persons, as are the rules of international law. Consequently, it is clear that they who violate these international rules, whether in peace or in war, commit a mortal sin; moreover, in the gravest matters, such as the inviolability of ambassadors, it is not permissible for one country to refuse to be bound by international law, the latter having been established by the authority of the whole world." —Francisco de Vitoria, De Potestate Civili.

FOREWORD book D R . Hindmarsh shows how measures short of war have been used in international relations. This survey is not to disparage efforts made to put an end to war, but it shows that the efforts thus far made have not put an end to armed conflict among states. Measures short of war have their precedents in a remote past and were a particularly common practice in the nineteenth century. During that period such measures were frequently resorted to in support of law and order and to avoid war. While this book was in the main prepared before the events which disturbed the Far East in 1931-1932, there are many conclusions which may apply to these recent events. Even if one does not agree with the interpretation of all facts which Dr. Hindmarsh has presented, the facts themselves must be considered in the creating of any means for the abolition of the use of force. It has been disappointing to discover how little human nature has changed since the Great War of 1914-1918, but similar disappointments have followed wars in earlier history. It should be observed that nearly all the schemes for the abolition of the use of force have originated among advanced peoples and in states having strong forces. Even this fact has, however, received different interpretations. Some have seen in the plans for peace an attempt to perpetuate the status quo at the expense of the I N THIS

vili

FOREWORD

weaker but growing states. Many also ask why the great powers still maintain large armaments if they put their trust in the international agreements to which they are parties. However these and other questions may be answered in the text, there are abundant references to sources where discussions or material relating to specific aspects of such problems may be found. It is also desirable that after these experimental years of operation of the Covenant of the League of Nations, its effectiveness in the maintenance of peace should be estimated, even though the estimate may not coincide with that of the most enthusiastic of the League adherents. Considering the difficulties, much has been done, and it is a great contribution if states have been shown the direction in which lies the solution of the ageold problem of the maintenance of peace among nations without resort to war. GEORGE GRAFTON WILSON

ACKNOWLEDGMENTS THE preparation and publication of the present study have been rendered possible by the cooperation of many persons to whom the author is indebted. In particular he is grateful to Professor George Grafton Wilson of Harvard University, under whose supervision the work was originally begun and whose counsel has been constant through its completion. Professors Manley O. Hudson, Arthur N. Holcombe, James P. Baxter, and Dr. James Brown Scott have kindly read the manuscript, and have offered suggestions and criticisms which have been instrumental in encouraging the author to feel confident that the subject is opportune because of the lively differences of opinion which it elicits from those of greatest competence and experience. A large number of helpful suggestions from the above have been incorporated, to the improvement of the work but in no degree diminishing the responsibility of the author for the final result. A grant from the Bureau of International Research of Harvard University and Radcliffe College considerably advanced the preparation of the material for publication, and is gratefully acknowledged. Α. Ε. H. HARVARD UNIVERSITY

February 25, 1933

CONTENTS PART

I

INTRODUCTION I. Π.

FORCE AND INTERNATIONAL LAW NON-COEBCIVE

METHODS

OF

3

ADJUSTING

INTERNA-

TIONAL DIFFERENCES

PART

16

Π

PRIVATE A N D STATE USE OF FORCE T I M E OF

IN

PEACE

III.

PRIVATE REPRISALS

43

IV.

STATE SELF-HELP I N PRACTICE

57

V.

INTERNATIONAL L A W AND STATE SELF-HELP

PART

VII. VIII.

84

ΠΙ

COERCION A N D T H E LEAGUE OF VI.

. . . .

NATIONS

T H E POST-WAR PEACE STRUCTURE

ILL

STATE SELF-HELP AND THE LEAGUE OF NATIONS .

.

125

INTERNATIONAL ORDER AND LEAGUE SANCTIONS

.

145

CONCLUSION

.

173

xii

CONTENTS APPENDICES

I. Covenant of the League of Nations

183

Π. Draft Treaty of Mutual Assistance Submitted by the Council of the League of Nations to Member States under Resolution of the Assembly, September 29,1923 . . . . 198 III. Protocol for the Pacific Settlement of International Disputes (Geneva), Adopted by the Assembly, October 2, 1924 208 IV. Treaty of Mutual Guarantee (Locarno) V. Treaty for the Renunciation of War (Pact of Paris) .

221 226

BIBLIOGRAPHY

229

INDEX

243

ABBREVIATIONS A. J.I. L

American Journal of International Law

Br. and For. St. Papers . . British and Foreign State Papers Br. Yearbook

British Yearbook of International Law

Foreign Relations

Foreign Relations of the United States

Official Journal

League of Nations, Official Journal

Recueil des Cours

Académie de Droit International, Recueil des Cours

R. G.D.I.Ρ

Revue Générale de Droit International Public

Rev. de Droit Int

Revue de Droit International et de Législation Comparée

Stai, ai L

Statutes at Large

W. P. F. Pam

World Peace Foundation Pamphlets

PART I INTRODUCTION

CHAPTER I F O R C E AND INTERNATIONAL LAW

THE World War abounded in lessons of futility, but none was more thoroughly illustrated than the folly of entrusting world peace and order to the anarchy of unorganized " sovereign " states. Under the stimulus of recent frightful experience there was framed at Paris in 1919 a peace structure designed to give continuing vitality to the renewed spirit of peace. Statesmen and peoples alike have hailed the post-war spirit of peace and cooperation as evidence of a new era in international society. Much has been claimed for the possibilities and accomplishments of the peace machinery set up since 1919, and world public opinion is justified in expecting much from its operation. Within the past year, however, the moral and legal foundations of the Covenant of the League of Nations and of the Pact of Paris have been tested, and in the view of many this peace structure has proved inadequate. Military invasion and virtual conquest of some 200,000 square miles of foreign territory, battles, bloodshed — all have come to pass since September, 1931, but there has been no interruption of technical peace. War in everything but name has existed between two states both of which are members of the League of Nations and signatories of the Pact of Paris. Surely the post-war peace machinery must be faulty in its structure or in its operation if it cannot even be pointed out today wherein covenants of peace have been violated by

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FORCE IN PEACE

these events. International organization avowedly designed to preserve peace among members of the international community and yet incompetent to cope effectively with a situation so fraught with danger to world peace must be critically examined. Organization of members of the international community for the purpose of preserving world peace involves problems of fundamental importance. In the first place, international organization, if it is intended effectively to maintain world order, must include machinery to develop, interpret, and enforce standards and rules of international conduct. There must be legislative, judicial, and executive agencies, or their equivalents, to make possible the regime of law which is implied in plans to eliminate recourse to force in international relations. Secondly, the shortcomings of the present system of international law must be recognized, and constant effort made to render that law more adequate to meet the needs of international society.1 Existing international law, whether it is derived from custom, convention, or principles of jurisprudence, leaves untouched, and therefore regulated solely by the arbitrary will of powerful states, a vast range of subjects involving problems which constantly endanger international peace. If the maintenance of world peace is to be founded on a system of law entitled to the respect of states and sufficient to meet the needs of a modern international society these "blind spots" of international law must be minimized. In short, in planning the structure of world organization "the primary consideration 1 J. L. Brierly, "The Shortcomings of International Law," Br. Yearbook, p. 4 et seq. (1924).

FORCE AND INTERNATIONAL LAW

5

is to have a peace system coextensive with the range of disputes which may afford cause for war." 1 By enlargement of the scope of international law, especially through international conventions, the processes of arbitration and judicial settlement of international differences will be advanced and the possibility of the use of force in international relations proportionally diminished. Ideally, of course, the use of force would be superfluous in a society of states which were willing and able to rely for the protection of their rights and interests upon the moral influence of law alone. Actually, however, violations of international law, especially in its formative stage, must be anticipated and are constantly recurring. International law governs the conduct of states, and states are composed of human beings. Perfection in behavior can no more be predicated for national groups of individuals than for smaller social units. Through all grades of organization within the state violation of the will of the community is anticipated and means for enforcement of that will are provided. These means of enforcement, the sanctions of law, range from intangible moral influences to positive measures of coercion. In current discussion of international organization, however, it is still a matter of constant debate whether world order requires coercive sanctions of any kind. Are moral influences alone sufficient to guarantee an orderly life among members of the international community? Can public opinion accomplish in the field of 1 Denys P. Myers, "Origin and Conclusion of the Paris Pact," W. P. F. Pam., XII, 92 et seq. (1929). Cf. also Sir John Fischer Williams, "Justiciable and other Disputes," A. J. I. L., xxvi, 31 et seq. (1932); Tell A. Turner, Causes of War and the New Revolution, "passim (1927).

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FORCE IN PEACE

international relations what has been attained in national life only after the physical as well as the moral forces of the community have been organized and made to support each other? The history of the development of international law, arbitration, and machinery for the advancement of peace has received ample attention in recent years, and it is not the purpose of this work further to analyze the significant advances made in these fields. Nor is it the purpose here to argue at length the merits and demerits of moral and coercive sanctions of international law. It must be pointed out, however, that there is no evidence today that moral sanctions alone will suffice to maintain international order and justice. Few if any states rely fully on the law-abiding spirit of their neighbors or on world public opinion for their national security and protection of rights under law. National armaments everywhere deny the immediate adequacy of moral sanctions unsupported by positive means of enforcement. It cannot be assumed, therefore, that a plea for the organization of joint or international coercive sanctions constitutes a retrogressive step simply because it implies the use of force. Unrestrained force is now the rule. Self-help sanctions, such as wanton use of force by states acting in their own behalf, are the ultimate means of enforcing international obligations in the present stage of international society. The practical problem to be settled is the supplanting of state self-help, based on arbitrary force alone, by positive international sanctions, founded on the will and law of the world community. States will not accept moral guarantees as a complete substitute for the self-help system; they demand positive guaran-

FORCE AND INTERNATIONAL LAW

7

tees of security preliminary to taking any of those steps, such as disarmament and acceptance of obligatory arbitration agreements, which imply complete renunciation of the use of armed force in international affairs. The real issue of sanctions is, therefore, not one of moral as against coercive sanctions, but of arbitrary force as against international organization for the enforcement of the will of the international community. The processes of limiting resort to self-help and of organizing the moral and physical force of the international community must progress together. Abandonment of reliance upon state use of force is to be expected only as adequate international sanctions are made available. So long as states are compelled to anticipate the use of force they will insist on the right to be prepared and disarmament will remain impossible. Nor can limitation of the use of force stop with the mere "outlawry" of war. Post-war efforts to minimize the use of force in international relations have been largely confined to attempts to forestall resort to war, but a structure designed to assure world peace cannot be so limited if it is intended to supplant force by law. State use of force is not necessarily war. Within the past year the world has witnessed in the Far East international conflict. There have been battles, bloodshed, and naval bombardment, but there has been no war as that term is used in the post-war treaties for the maintenance of peace. Surely world order cannot be left thus to rest on a legal definition of war. If national arms embattled against national arms, if widespread bloodshed, if invasion and conquest, are not war; if these warlike acts are legally consistent with covenants of international peace and the expressed

8

FORCE IN PEACE

purposes of existing international organization to preserve peace — then surely the confidence of the world has been misplaced and there is danger that all efforts for world peace will be received henceforth with undue skepticism. The use of force short of war in international relations is as much a danger as war in all its legal clothing. Elimination of recourse to armed force and not merely the "outlawry" of a legal status of war must be the objective of plans for real international peace. Examination of the practice and the legal status of the use of force short of war in international relations is the purpose of the present study. There are several reasons for studying the problems raised by the state use of force in time of peace. It is desirable to know how deeply founded in customary law is a practice which has long been justified on the ground that it is a necessary ultimate sanction of international law. Its abuses and its inherent contradictions are apparent when it is recognized as an arbitrary self-help method which is founded on physical force but is defended as a means of supporting law. The history of the development of international law, especially during the nineteenth century, indicates that a large part of our substantive law today represents mere crystallization of state practices. However much we may decry the acts of states and statesmen, we find that international law in general tends to follow the facts of international life. From an idealistic point of view, law should more often accord with abstract principles of justice, usually anticipatory of future or ideal conditions. Realistically, however, we must recognize the close connection between past practice and present law. This is but another

FORCE AND INTERNATIONAL LAW

9

way of asserting, without approving a process which often renders international law out of harmony with actual conditions in a rapidly changing world, that we may safely forecast developments in international law and international relations only after a study of the actual practices of states. In a system of law which is based very largely on custom and usage, past practices are evidence of what states will continue to demand as rights. When it is made clear that the use of force short of war has become established in the customary law of states certain recent events should be easier to understand. The failure of a post-war peace structure, aimed primarily at the elimination of war in the legal sense, to cope with crises brought about by the use of force short of war is disappointing, but that failure would have been anticipated if the structure had been carefully examined in the light of past practice. The exercise of rights derived from customary law and not clearly renounced cannot be condemned on legal grounds, however great the moral offense may be. No state has thus far renounced the right to use armed force under all circumstances. Practically all states have renounced, in a limited set of circumstances, the right to have recourse to war, but that is not enough to render all use of force illegal. The established legality of state self-help methods short of war, the failure of post-war agreements to include legal prohibition of resort to such methods, and the absence of international machinery competent to adjust all international differences by purely amicable methods, justify continued study of the practice of state self-help short of war. There is one more significant

10

FORCE IN PEACE

reason for examining the history of the practice. States have constantly refused to abjure the right to use coercive measures in their own behalf prior to appeal to impartial judgment. It has seemed futile to hold out moral guarantees as a substitute for national armaments. The failure of disarmament plans must be explained in large part by the determination of states not to renounce national armaments until the international community is sufficiently organized to provide adequate material guarantees of their rights under international law. The enforcement of national rights and interests rests today very largely on the possession of physical force by plaintiff states. Such a condition is likely to continue until the international community becomes willing to assume responsibility for rendering its rules of conduct effective. The question is, which method is in the real interests of world order—unrestrained and unregulated state self-help, or provision for sanctions to be exercised by the organized community of states after impartial judgment? The plan of the present work requires some explanation. Its purpose is to trace the evolution of coercive sanctions short of \yar in international relations from individual self-help to state self-help, and finally to current attempts to bring to the aid of world peace the organized physical and moral force of the international community. Available non-coercive methods of adjusting international differences are briefly outlined and their inadequacy emphasized (Chapter II). The study of self-help properly begins with a description and analysis of the mediaeval practice of private reprisals or individual self-help (Chapter III). Before the thir-

FORCE AND INTERNATIONAL LAW

11

teenth century private warfare was the only means whereby the individual could press claims against a foreign community. Self-redress was wholly a matter of individual initiative, for the sovereign recognized no responsibility to press claims of his subjects abroad. In the thirteenth and fourteenth centuries the chaos of private warfare was subjected to legal regulation and restraint. The individual was required to secure authorization, after meeting prescribed legal conditions, before undertaking forceful measures of self-redress abroad. Treaties and legislation, fairly uniform throughout western Europe, gave legal character to the practice of private self-help. Resort to measures of self-redress under authorization of the sovereign became established as the practice of "reprisals" and the issuance of official letters of marque and reprisal continued down to the eighteenth century. However well regulated, private reprisals still constituted private war and were inherently violative of elementary principles of law. Redress was the purpose, but violence and vengeance characterized the practice. It was legalized because no other practicable means of redress was available in that era of state development. The rise of national states, able and willing to assume responsibility for the protection of their subjects' interests abroad, rendered private self-help increasingly superfluous after the seventeenth century. When the state inclined to regard an injury to a subject as an offense against itself the issue of letters of reprisal, authorizing the individual to seek redress in his own behalf, became unnecessary. State action supplanted private self-redress.

12

FORCE IN PEACE

Examination of the practice of state self-help short of war (Chapter IV) is confined to those coercive measures which states have undertaken in order to enforce alleged international obligations. Coercive measures undertaken for such a purpose were usually referred to as public reprisals. The nineteenth century is filled with examples of resort to embargoes, pacific blockades, occupation of territory, bombardments, and display or threat of force. Employment of these measures was defended on the ground that they constituted the only available sanctions of international law and justice after diplomatic negotiation had failed to induce recalcitrant states to recognize international obligations. These modern reprisals, executed in time of peace, are comparable in many ways to the mediaeval practice of private reprisals. Both are essentially measures of selfhelp, arbitrarily applied and unrestrained by impartial judgment. Nevertheless, the necessity of resort to such measures was recognized throughout the nineteenth century and they were regarded as valid under existing international law (Chapter V). So long as states could plead the absence of an international judicial tribunal and international organization to enforce judgment in cases of recurring international delinquency the practice of reprisals appeared to be justified by necessity. Certainly, international law could not exclude from its system a practice whose sole raison d'être was the enforcement of its own rules and standards. The fact that the use of force short of war was generally recognized throughout the nineteenth century as valid under international law should stand as a caveat in the contemplation of plans for ensuring world peace.

FORCE AND INTERNATIONAL LAW

13

If the scope of such plans is confined to the elimination of de jure war their inapplicability to many situations fraught with danger to world peace must be recognized. Widespread resort to armed force, in the absence of a legal status of war, is legally consistent with treaties which limit only recourse to war. The post-war treaties to preserve peace, especially the Covenant of the League of Nations, are examined, therefore (Chapters VI and VII), in an attempt to point out their inadequacy in so far as they fail legally to prohibit or even to limit the use of force short of war. There are those who firmly believe that recurrent neglect, inability, or unwillingness of members of the international community to fulfill their international obligations can be overcome by moral influences alone; but it is foolhardy at this stage of development of international society to assume that international justice and order can be left entirely to a law-abiding sentiment which, even if it exists universally, does not prevent constant violation of international standards. A sense of international morality is a slowly accumulating result founded, in part at least, on the existence of those very coercive sanctions for which it is often suggested as a substitute. One must face the problem of coercive sanctions, therefore, not as a problem of immediate and complete elimination but as one which involves the question of delegating to the organized international community the task of ultimate enforcement which has for centuries rested with states acting in their own behalf. With the lessons of the World War in mind, the framers of the Covenant of the League of Nations envisaged an organization of members of the international

14

FORCE IN PEACE

community competent to assert and to enforce its will in the interest of world order and justice. How far the Covenant succeeds in giving effect to this purpose is studied in Chapter VIII. The present work stresses the inadequacy of a peace structure which confines its objective to minimizing the possibility of war and which ignores the dangers of the use of force short of war. It also describes an evolutionary trend — the gradual abandonment of self-help methods in international relations and the development of international organization as a positive support of international justice. Historically, individual self-help fell into disuse as society became sufficiently organized to substitute for private violence its protective guarantees of individual rights. The institution of private reprisals remained until the eighteenth century a legalized survival of private self-help, limited to the redress of grievances against foreign communities. The rise of national states finally obviated this limited recourse to individual self-help, but only to replace it by public reprisals or state self-help. The absence of an organized world community justified state self-help, just as the absence of organized and responsible agencies within the community formerly justified resort to private violence. The influences which drew disjointed groups into organized states and obviated private self-redress operate today to bring about the international organization of members of the international community and to limit recourse to state self-help. The limitation of arbitrary force in international relations will be successful only as the world community is supplied with the means of

FORCE AND INTERNATIONAL LAW

15

assuring its members that rules and standards of international justice will be made effective. The framework of international organization already exists. The immediate question is, what means shall be adopted to render that organization adequate to meet crises in world peace?

CHAPTER II NON-COERCIVE METHODS OF ADJUSTING INTERNATIONAL DIFFERENCES DIPLOMATIC METHODS

THE settlement of international disputes may be sought either by amicable or by non-amicable methods.1 Amicable methods are non-coercive in nature, while nonamicable methods usually involve some form of coercion. It is convenient to divide the amicable methods into two classes: (a) diplomatic, including negotiation, good offices, mediation, commissions of inquiry, and conferences and congresses; (b) judicial, including arbitration and the more formal judicial process of adjudication by the Permanent Court of International Justice.2 Diplomatic methods are primarily preliminary steps J The nineteenth century witnessed a constant use of amicable methods as well as recurrent resort to coercive measures; arbitration was rejuvenated but the century is replete also with examples of resort to force short of war. Joubert's statement that "Force and Right are the governors of this world; Force till Right is ready," was strangely realized in attempts to justify sporadic alliances of the two "governors." Nicholas Murray Butler, The International Mind, p. 8 (1913), citing Joubert. 2 This classification follows that used by John Bassett Moore, International Adjudications, I, xxxvi-xxxvii (1929). The functions of the Council (and the Assembly) under the Covenant are primarily mediatory or conciliatory but the Council, once possessed of jurisdiction, enjoys a large measure of freedom as to both method and purpose. The fact that it is enabled, under Article 14 of the Covenant, to consult the Permanent Court of International Justice does not render its recommendations or reports judicial in character; it may or may not follow the advice of that tribunal and may resort either to compromise or to rules of law. See Charles Cheney Hyde, International Law, ii, 165 (1922). This freedom constitutes the chief value of the Coun oil in the settlement of political or nonjusticiable disputes.

ADJUSTING INTERNATIONAL DIFFERENCES

17

leading to subsequent formal settlement of international disputes. Even assuming uniform success for such methods, they must be regarded as not altogether satisfactory means of arriving at definitive solutions of many international differences, but in an international society not yet equipped to give universal application to judicial processes these methods play a large part in the adjustment of international differences. In view of the slowness of states to turn to judicial methods, the conciliatory and mediatory functions of the Council of the League of Nations are likely to remain important factors in the preservation of peace. The diplomatic or conciliatory method "brings the parties together; through the moratorium, it prevents sudden breaches of the peace; through the elimination of recourse to rigid law, it spreads the allaying oil of sweet reasonableness over the waves of the controversy; it is marked by simplicity and the absence of cumbrous and costly procedure; it may have the advantages of the services of experts; and as its findings are not binding in any case, it makes possible the conclusion of treaties of pacific settlement without indefinite and therefore destructive reservations." 1 (1) Diplomatic negotiation is the ordinary method by which international differences are brought to amicable conclusion. In its purpose negotiation is supposed to consist in reciprocally full and frank discussion of matters in issue by representatives of the governments concerned. When matters of a peculiarly technical or 1

H. Lauterpacht, "The Absence of an International Legislature and the Compulsory Jurisdiction of International Tribunals," Br. Yearbook, XI, 138-139 (1930).

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FORCE IN PEACE

intricate nature are in issue, or when the controversy is of great magnitude, special representatives may be designated for the occasion. It is a continuous function of regular diplomatic agents, however, to present the views of their respective governments in the more usual and frequent instances when conflicting views require adjustment. When states of disparate power or influence attempt to settle differences by negotiation the outcome may or may not be consistent with the merits of the controversy. The sheer power and political influence of the state he represents may enable a diplomatic representative to secure a "settlement" which, from his adversary's point of view, represents a sacrifice of both rights and interests.1 The greater number of those minor international differences which arise out of the multiplicity of contacts and conflicts between the nationals, interests, and rights of states are adjusted by some form of diplomatic negotiation. (2) Good offices and mediation may be taken together as representing simply different degrees of advisory participation by a third state in an attempt to adjust an international controversy. In its broadest meaning the term "good offices" refers to "the friendly offer of service by a third state to parties involved in a controversy to the end that an adjustment of the difference may be reached." 2 If the offer is accepted by the contending parties and the third state thereafter participates in resultant negotiations, such participation is undertaken as mediation and the third state becomes a mediator. 1 George Grafton Wilson, Handbook of International Law (2nd ed.)» p. 212 (1927); Hyde, International Law, 11, 99; John Bassett Moore, A Digest of International Law, vu, 2 (1906) ; L. Oppenheim, International Law (3rd ed.), li, 6-11 (1921). » Wilson, Handbook, p. 212.

ADJUSTING INTERNATIONAL DIFFERENCES

19

Tender of good offices is an attempt to induce negotiation between disputants; mediation consists in direct participation in negotiations between disputants. The right and duty of offering and accepting good offices and mediation are recognized in the Hague Convention for the Pacific Settlement of International Disputes.1 A third state may tender its good offices or mediate between disputants either to avert hostilities or to end hostilities already begun. The form which mediation may take depends upon the nature and circumstances of the occasion. In so far as mediation often follows a breakdown of direct negotiations between disputants much depends upon the skill and tact of the mediator. The United States has on numerous occasions tendered its good offices, especially to South American States,2 and it has on at least two occasions accepted an offer of good offices.3 (3) Commissions of inquiry and conciliation. Failure of diplomatic negotiation is often due to sincere difference of opinion on questions of fact. When the facts which give rise to an international controversy are made manifest to the satisfaction of both disputants an im1

Articles 2-8. The legal obligation of signatories of the Hague Convention to have recourse to good offices or mediation is practically vitiated by the qualifying phrase "as far as circumstances may allow" in Article 2. 8 See, e.g., Foreign Relations, 1905, p. 916; ibid., pp. 248-252,1030-1036; ibid., pp. 807-828; Foreign Relations, 1906, pt. I, pp. 834-852; see, in general, Moore, Digest, vu, 2 et seq. 8 An example is found in the United States' acceptance in 1914 of the offer of good offices from the representatives in Washington of Argentine, Brazil, and Chile "for the peaceful and friendly settlement of the conflict between the United States and Mexico." See A. J. I. L., vin, 583 (1914). The United States accepted Russia's offer of "mediation" during the war of 1812, but the offer was refused by Great Britain. State Papers and Publick Documents of the U. S., rx, 223; Am. State Papers, For. Rei., in, 623; Hansard, Debates, xxx, 526.

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portant step has been taken towards the adjustment of the difference; often an impartial statement of the facts is sufficient to point the way to a mutually acceptable solution. Part III of the Hague Convention of 1899 for the Pacific Settlement of International Disputes sets forth a plan for the use of International Commissions of Inquiry. In the event of disputes not involving national honor or vital interests such commissions were to be formed by special agreement in order to "facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation." 1 A more extensive use of impartial inquiry was contemplated in the Bryan series of Treaties for the Advancement of Peace begun in 1913.2 In general these require the reference of all disputes, whatever their nature, except those otherwise provided for, to a permanent international commission for investigation and report. Although none was ever invoked, these treaties represent an important advance in the development of methods to prevent precipitant recourse to non-amicable and often irremediable measures. With variations this principle has been embodied in several multilateral treaties in recent years.3 1 Article 9. The six articles (9-14) contained in the First Hague Convention of 1899 were extended to twenty-eight (9-36) in the Second Convention of 1907, apparently in the light of experience gained by the Commission of Inquiry which brought to a successful conclusion the Dogger Banks case — the first occasion on which the new plan was brought into use. Br. and For. St. Papers, xcix, 921 (1905); "Finding of the International Commission of Inquiry organized under Article 9 of the Convention for the Pacific Settlement of International Disputes, of July 29, 1899," A. J. I. L., n, 929-936 (1908). * See, for example, 38 Stat, at L. 1840,1847,1872; 39 ibid. 1672. Twentyone of these treaties were ratified and proclaimed, nine being with LatinAmerican countries and eleven with European powers. ' See, for example, Treaty of May 25, 1915, between Argentine, Brazil,

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21

The primary function of a commission of inquiry is to investigate and report. It is, both in theory and practice, essentially a fact-finding body although it may, and sometimes must, consider questions of law in the process of elucidating the facts of a dispute.1 Following the report the disputants are at liberty to adopt any course of action they choose, for legal restraint upon the actions of the parties ceases at the moment when the commission makes its report unless it is otherwise stipulated.2 It is notable, however, that commissions of inquiry have been authorized to include in their reports recommendations or suggestions relating directly to adjustment of the controversy.3 The concurrent extension of conciliatory processes, such as inquiry by an impartial comand Chile, in James Brown Scott, Treaties for the Advancement of Peace, p. 146 (1920); Convention for the Establishment of International Commissions of Inquiry, February 7,1923 (United States and the five republics of Central America), Conference on Central American Affairs, p. 392 (1923); the Gondra Treaty, signed at Santiago, May 3, 1923, by the United States and other American States, 44 Stat, at L. 2527. 1 It is apparent that the report of the Commission on the Dogger Banks case, by indicating both the source and degree of responsibility, touched upon a question of law. See A. J. I. L., n, 929, 931 (1908). 2 The Bryan treaties provided for a "cooling off" period of one year. All the treaties contain provisions substantially as follows: "Article I. The high contracting parties agree that all disputes between them, of every nature whatsoever, which diplomacy shall fail to adjust, shall be submitted for investigation and report to an International Commission . . . ; and they agree not to declare war or begin hostilities during such investigation and report. "Article III. The report of the International Commission shall be completed within one year after the date on which it shall declare its investigation to have begun, unless the high contracting parties shall extend the time by mutual agreement." Treaty between the United States and Guatemala, September 20, 1913, 38 Stat, at L. 1840. 3 Charles Cheney Hyde, "The Place of Commissions of Inquiry and Conciliation Treaties in the Peaceful Settlement of International Disputes," Proceedings of the American Society of International Law, 23rd annual meeting, p. 146 (1929).

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mission, without power to decide or to adjudicate, and of judicial processes embodied in the functions of the Permanent Court of International Justice, empowered to hand down decisions of an obligatory character, indicates that the shadowy distinction between justiciable and non-justiciable disputes is being retained. Many post-war treaties provide for recourse to conciliation through commissions of inquiry when disputes of a nonjusticiable character arise. Increasing resort to conciliation seems to offer ground for hope that restrictive reservations such as vital interests, national honor, and independence will disappear in a general willingness of states to intrust all differences at least to impartial investigation. (4) Conferences and congresses. An international conference may be defined as a meeting for the "joint consideration and discussion by representatives of two or more states of matters of interest common to both." 1 Such a gathering, in its simplest form, represents direct personal diplomacy; recent international conferences, however, have often included representatives of practically all civilized states, and much of the work of direct exchange of views has been confined to committee meetings and informal conversations. Official international conferences have increased steadily in number during 1

Pitman B. Potter, An Introduction to the Study of International Or· ganization (3rd ed.), p. 188 (1928). The terms "conference" and "congress" are no longer distinguishable in practice. Át one time it was thought that a congress was more formal and more general than a conference; occasionally, too, the term "conference" has been employed to describe gatherings of diplomats engaged in the discussion of political questions, as differentiated from a congress or meeting of experts engaged in the discussion of legal or scientific matters. Neither distinction holds in practice, however. Ibid., p. 190.

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the present century, and have been devoted to almost every conceivable subject which has in recent times been the cause of international concern. These have ranged widely over political, legal, economic, financial, and social questions.1 The large international conference is an unwieldy body which is not well adapted to the adjustment of pending international differences. Usually it approaches the functions of a deliberative body and is most useful and successful in the formulation of general principles. Its composition and procedure make it slow-moving, both in convening 2 and in the adoption of decisions. Continuing traditions of unanimity and state equality render its procedure cumbrous and subject to deadlocks. Aside from those called to establish terms of peace, only a few international conferences held before 1914 can be regarded as having directly aided in the settlement of pending international controversies.3 Since the institution of the League of Nations, however, diplomacy by conference has assumed a permanence and a regularity 1 For a full treatment of their number and variety, see Paul S. Reinsch, Public International Unions (1911); Norman L. Hill, The Public International Conference (1929); Sir Ernest Satow, International Conferences and Congresses (1920); Simeon E. Baldwin, "The International Conferences and Congresses of the Last Century as Forces Working Toward the Solidarity of the World," A. J. I. L., vol. i, pt. π, p. 565 (1907); FrancisB. Sayre, Experiments in International Administration (1919). * Although preparations began in July, 1905, for the Algeciras Conference to discuss critical Moroccan issues which had brought France and Germany to the verge of war, the Conference was not actually convened until January 16, 1906. 3 Reference may be made to the Conference of Brussels on Scheldt Dues (1863), 15 Br. and For. St. Papers, pp. 15, 17; Congress of Berlin (1878), 69 ibid., p. 749; Berlin Congo Conference (1884-1885), 76 ibid., p. 4; Conference of Peking (1900), 94 ibid., p. 686; Conference of Algeciras (1906), 99 ibid., p. 141.

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which give new importance to non-judicial methods of adjusting international disputes.1 (5) The League of Nations. A fundamental purpose of the Covenant of the League of Nations is to provide means for bringing about the peaceful settlement of international disputes. The Covenant recognizes the desirability of studying and minimizing the underlying causes of war, such as competitive armaments and racial minorities, but it also emphasizes the necessity of creating effective machinery to aid in the solution of disputes between states. It is recognized that any war or threat of war is a matter of concern to the whole League, upon which the Council or the Assembly may take action. It is the friendly right of any member of the League to call to the attention of either of these bodies any circumstance which threatens to disturb international peace (Art. II). 2 Members agree to submit to arbitration or judicial settlement or inquiry by the Council any matter likely to lead to a rupture between them; they agree not to resort to war until three months after the award, decision, or report is made (Art. 12). The Council (or the Assembly) is authorized to act as mediator in any dispute between members of the League not submitted to arbitration or judicial settlement (Art. 15). If it is not successful in effecting 1

Much if not most of the post-war activity in international conferences has been directed towards the formulation of international legislation in the form of multilateral treaties and conventions. See Manley O. Hudson, International Legislation, 4 vols. (1931). 2 On two occasions the Council as a whole has instituted action on its own initiative: (1) the Panama-Costa Rica dispute in 1921, and (2) the BoliviaParaguay dispute in 1928. In both cases the Council was in session when hostilities broke out. See League of Nations, Council, Minutes, 12th Session, pp. 27, 42,199-201 (1922); ibid., 53rd Session, afternoon meeting of December 15, 1928, pp. 1-3.

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a settlement it may, either unanimously or by majority vote (excluding the parties to the dispute in either case), report the facts and make recommendations. If the vote is unanimous, excluding parties to the dispute, members agree not to go to war with any party to the dispute which complies with the recommendations; failing unanimity members recover freedom of action.1 This reversion to a situation in which national policy is supject to no legal restraint constitutes the so-called "gap" in the Covenant (Art. 15, par. 7). The functions of the Council in the adjustment of international disputes are essentially conciliatory and mediatory rather than judicial. This is true whether the Council calls upon the Permanent Court of International Justice for an advisory opinion on some legal question involved, refers the dispute to a commission or to the Assembly, or makes recommendations solely on the basis of its own deliberations.2 Until the Council was called upon in 1931 to consider the Manchurian crisis it had not been seized of a major dispute between large states. The action, first of the Council and later of the Assembly, in the disposition of that dispute has not encouraged new faith in the effectiveness of purely conciliatory methods in the face of a strong power's determination to pursue its own aims. The Far Eastern 1

Even if the report of the Council lacks unanimity those members of the League which are parties to the dispute may not go to war until three months after the report (Art. 12, par. 1). t Commissions of inquiry or investigation have been employed by the Council in the settlement or attempted settlement of at least one-third of the disputes which have come before it under Articles 11 and 15. In most of the other cases the Council has acted largely on the basis of its own investigation, although advisory opinions were sought in at least five of the twenty-four disputes handled by the end of 1928. See T. P. Conwell-Evans, The League Council in Action, p. 278 et seq. (1929).

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crisis of 1931-1932 may be regarded as having put to a concrete test the moral force of the conciliatory functions of the League of Nations. The series of resolutions issued by the Council after the first Sino-Japanese clashes near Mukden on September 18,1931, contained numerous "requests" and "recommendations" directed to the parties in an attempt to restore normal relations. The failure of these to exert any deterrent influence on Japan considerably weakened the prestige of the League throughout the world. The Council may recommend or advise methods or terms of settlement, but it does not itself have authority to determine issues in a controversy. Such moral force as its recommendations may have is limited by the fact that a state which fails or refuses to comply with a Council recommendation cannot be said to have violated the terms of the Covenant unless it resorts to war, Moreover, so far as world public opinion is relied upon as an influence in support of League recommendations, it should be emphasized that public opinion becomes effective so long after the culmination of events that little practical good can result.1 It seems apparent that conciliatory and mediatory methods are likely to result in adjustment of international controversies only in those instances where there is little difference in the political and physical strength of the disputants, or where there is already a determination to concede points in controversy. It may be that judicial decisions handed down by an international tribunal are limited 1 After her position had been consolidated in Manchuria, Japan showed considerable frankness and willingness in taking cognizance of unfavorable world opinion by hastening the withdrawal of forces from Shanghai — leaving the real objective, Manchuria, within her control.

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by similar conditions, but deliberate violation of a legal obligation in the form of a binding judicial decision is much less likely.1 In any event, failure or refusal to execute a binding judicial decision is much more apparent as an international delinquency, and therefore less likely to occur, than failure to make concessions usually required in the process of conciliation. JUDICIAL M E T H O D S

As contrasted with the non-judicial methods of adjusting international disputes, represented by the conciliatory or diplomatic processes already described, judicial methods involve deliberate recourse to rules, standards, and principles of international law so far as these are applicable, and to judicial procedure. Judicial methods presuppose a tribunal competent to ascertain the law and to adjudicate the questions at issue. (1) Arbitration is the process of adjudicating a dispute by a tribunal a majority of whose members are appointed by the disputants. The tribunal may be established for a particular occasion or it may be permanently available for use as occasions arise. The decision of the tribunal is referred to as an arbitral award.2 The application of this process since ancient times3 1

Practically all the arbitral awards made during the nineteenth century were carried out. T. J. Lawrence, International Problems and Hague Conferences, p. 81 (1908). 2 Moore, International Adjudications, I, xxxviii; also Oppenheim, op. cit., Ii, 17; Amos S. Hershey, Essentials of International Public Law (rev. ed.), p. 466 (1927); Hyde, International Law, n, 111. 3 International arbitral awards were made as early as 4000 B.C. Curiously enough, one of the earliest recorded awards (4000 B.C.) resulted from recourse to arbitration by two Sumerian cities after warlike operations had been tried

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has resulted in many thousands of international adjudications.1 Although numerous instances of resort to arbitration appear in the records of early civilizations of Asia Minor, the "application of the institution of arbitration, its fuller and wider recognition, and its introduction into the western world as part of the machinery of international relations " is a contribution of the Greeks. By the middle of the fifth century B.C. many Greek citystates had bound themselves by treaty to submit to arbitration any dispute likely to disturb peaceful relations. Not again until the nineteenth century was arbitration so frequently practised as it was in the Greek world of the second century B.C.2 Under the Pax Romana and during the centuries of chaos which followed in its wake the practice was necessarily rare, but throughout the later Middle Ages resort to both arbitration and mediation was common.3 His spiritual preeminence made the Pope a frequent choice as sole arbiter among the Catholic princes of Europe. Several emperors, as well as the kings of England and Catholic princes, occasionally submitted disputes to arbitration.4 The late Middle and found futile as a means of arriving at a definitive conclusion of the dispute. Marcus N. Tod, International Arbitration Amongst the Greeks, pp. 170-171 (1913). 1 Moore, International Adjudications, I, xxxviii. 2 Tod, op. cit., pp. 173-181. 3 During the thirteenth century there were at least a hundred instances of arbitration and mediation in Italy alone. A. C. F. Beales, The History of Peace, p. 25 (1931). 4 Ibid. In 1291 the members of the Swiss Confederation accepted the principle of obligatory arbitration. In a difficult situation in 1244 (a dispute between the Emperor and the Pope) the Parlement of Paris successfully took the part of arbiter.

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Ages is properly referred to as the "second great age of arbitration." 1 As the constant religious and dynastic wars of the sixteenth and seventeenth centuries were followed by a series of wars of conquest in the eighteenth century, the development of agencies and methods for the pacific settlement of international disputes was largely confined to the grandiose peace plans of individuals. The nineteenth century, subsequent to the Napoleonic wars, is referred to as the third "age of arbitration."2 The Jay Treaty of 1794 3 revived the practice of arbitration and its spread became the objective of organized peace movements during the succeeding century. Since the end of the eighteenth century some five hundred cases have been referred to arbitration and the awards have almost invariably been executed.4 All the issues submitted were legal in character — a fact which "reveals both the weakness and the strength of the practice," for it was not yet possible to induce states to intrust to third party judgment issues not clearly governed by rules or principles of international law.5 Nearly three hundred treaties containing arbitration agreements were 1

Russell L. Jones, International Arbitration as a Substitute for War Between Nations, ch. ν (1907). 2 Ibid., chs. VII and νπι. 8 Malloy, Treaties, Conventions, International Acts, etc., i, 590 et seq., Arts. 5, 6, 7; 8 Stat, at L. 116. 4 H. La Fontaine, "Histoire sommaire et chronologique des arbitrages internationaux, 1794-1900," Rev. de Droit Int., 1902, pp. 349-380, 558-582, 623-648; W. E. Darby, International Tribunals, pp. 771-917 (1904). 6 These were distributed as follows: 40% arose out of "warlike or illegal operations." 30% arose over titles and boundaries. 20% concerned pecuniary claims of citizens. 10% concerned the interpretation of treaties. Beaies, op. cit., p. 239.

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signed during the century and nearly two hundred were in force in 1914.1 The Hague Conventions of 1899 and 1907 for the Pacific Settlement of International Disputes indicated an almost universal acceptance of the principle of voluntary arbitration.2 The United States has frequently advocated and practised arbitration as a pacific method for the settlement of international disputes since it signed the Jay Treaty of 1794.3 Arbitration of the Alabama claims in 1872 made a marked impression throughout the world and greatly stimulated the spread of the practice.4 At the Hague Conferences of 1899 and 1907 the United States actively aided in the creation and improvement of the Permanent Court of Arbitration. The twenty-two arbitration treaties of the Root series in 1908-1909 were hailed as a significant advance.6 President Taft attempted in 1911-1912 to secure an all-in type of agreement by specifying (in treaties negotiated with Great Britain and France) the nature of questions to be arbitrated and remitting all others to conciliatory processes. The Senate returned the treaties so "truncated" by amendment and qualification that they were shelved by the President.6 It was not until after the World War 1

Ibid. See Malloy, π, 2016-2032, Arts. 15-57; ibid., pp. 2220-2248, Arts. 37-90; 32 Stat, at L. 1779; 36 ibid. 2199. 3 According to La Fontaine the United States was a party in fifty-six of the one hundred and seventy-seven arbitration cases of the nineteenth century. Op. cit., p. 641. 4 John Bassett Moore, History and Digest of International Arbitrations, I, 495-702 (1898); "Arbitration and the United States," W. P. F. Pam,., ix, 494 (1926). 6 "Arbitration and the United States," W. P. F. Pam., rs, 522 (1926). 6 Sixty-second Cong., 2nd Sess., Sen. Doc. No. 476; Marburg and Flack (Editors), Taft Papers on League of Nations, pp. 43, 178, 179 (1920). 2

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that the all-in type of agreement came into use, notably in the Locarno agreements. Since 1919 the United States has signed two extensive multilateral arbitration treaties 1 but reliance is being placed chiefly on bilateral agreements of a new type. The signing of the arbitration treaty with France on February 5, 1928, seems to have brought to an end the use by the United States of ambiguous exceptions to the operation of arbitration agreements. The phrases "national honor" and "vital interests" do not appear in general arbitration treaties made by the United States during the past four years; a list of specific exceptions takes their place. Moreover, the treaty of 1928 includes reference to the continued operation of the Bryan treaty (France-United States, September 15,1914), which provides for the submission to investigation and report of all disputes, without exception, which are not settled by diplomacy.2 The United States has been active in recent years in building its peace preserving structure on the basis of bilateral agreements which, by providing for the simultaneous operation of arbitration and conciliation agreements, anticipate the submission of all disputes to some form of amicable adjustment by reference to third parties. To date the United States has concluded twenty-six general arbitration treaties of the new type and eighteen conciliation treaties which provide for investigation and report on all disputes which have failed of adjustment by diplomatic or arbitral methods.3 Con1 Treaty to Avoid or Prevent Conflicts between the American States (Gondra Treaty), May 3, 1923, Hudson, International Legislation, n, 1006; this is supplemented by the General Treaty of Inter-American Arbitration, January 5, 1929, ibid., iv, 2625. 2 United States Treaty Series No. 785, Arts, Ι and HI. a Dept. of State, Press Release, August 27, 1932, p. 132. A partial list

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elusion of a network of such treaties among all the signatories of the Pact of Paris is a logical corollary of that agreement. As a means of settling international disputes arbitration is subject to certain practical limitations. It is, in its procedure and in the binding force of the arbitral award, essentially a judicial process, quite in contrast with the diplomatic methods described. An arbitral award is legally binding upon the parties and is final unless the parties have previously agreed otherwise. Whether the rules of procedure to be followed by the tribunal are expressly stipulated or are left to the determination of the arbitrators, they are generally in accordance with juridical practice. The legal basis of arbitral awards is presumed to be "respect for l a w . " 1 The wide latitude allowed the arbitrators by this last circumstance constitutes the fundamental weakness of arbitration as a judicial process and probably justifies the use of some qualifying term, such as "quasi-judicial," in describing it.2 of the arbitration agreements is to be found in Helen M a y Cory, Compulsory Arbitration of International Disputes, p. 154 (1932). T h e latest in the new series of arbitration a n d conciliation treaties are with E g y p t . United States Treaty Series, N o s . 850, 851. Including older types there are now in force thirty-two bilateral arbitration treaties a n d thirty-seven bilateral conciliation treaties between the United S t a t e s a n d other countries. Treaty Information, Bulletin N o . 35, August, 1932, p. 1. 1 Article 37, H a g u e Convention (I) of 1907 for the Pacific Settlement of International Disputes, reads: " I n t e r n a t i o n a l Arbitration has for its object the settlement of disputes between S t a t e s by J u d g e s of their own choice and on the basis of respect for law. " R e c o u r s e t o arbitration implies an engagement to submit in good faith to the A w a r d . " 36 Stat, at L. 2199. 2 T h e f a c t that arbitrators are usually chosen b y the parties in controversy should not seriously qualify the judicial nature of arbitration. See Moore, International Adjudications, i, xxxvii et seq.

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The rules and principles which should, in theory, determine the award of an arbitral tribunal presumably are to be found in prevailing international law. Actually, however, the inadequacies of that system of law have compelled states, in accepting arbitration as a method of adjusting controversies, either to stipulate governing rules in arbitration agreements 1 or to submit differences to arbitration knowing that the arbitrators may find it necessary, in the absence of applicable rules of law, to resort to principles of equity or even to compromise the claims of disputants. Where positive rules of law are not available the tendency is thus to deviate from strict judicial processes and to reach a conclusion often unsatisfactory to both parties. 2 Resort to compromise may be desirable in many cases but a judicial tribunal which is compelled constantly to recognize the inadequacies of the law it administers and deliberately chooses compromise solutions fails thereby to fulfill an important function of any judicial body; it fails to develop the law by interpretation, interpolation, and precedent. A decision based on compromise is not likely to constitute an aid in the determination of similar causes in the future unless, as rarely happens, the compromise is based on some lasting principle. Often arbitral tribunals have ignored existing rules and principles of 1

E.g., the "Three Rules of Washington," contained in the Treaty of Washington (May 8, 1871, United States and Great Britain), were binding upon the arbitrators, although it was expressly stated that they were not thereby recognized as rules of international law. Moore, Digest, vol. vn, sec. 1330. s Perhaps in such cases it is correct to refer to arbitration as "a continuance of the diplomatic function of negotiation." William Howard Taft and William Jennings Bryan, "The Proposal for a League to Enforce Peace," International Conciliation, No. 106, p. 9 (September,1916).

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international law. In their endeavor to compose a controversy arbitrators are too apt to look first to a disposition of the issue which will concede some of the claims of each disputant and to look only incidentally to the rules of law which should determine the award.2 Until very recent years it has been the practice of states to include in arbitration agreements a reservation to the effect that the agreement to arbitrate shall not apply to issues which affect the vital interests, national honor, or independence of the parties.3 This formula provides an uncertain criterion for differentiating jus1

Wehberg cites La Fontaine as authority for the conclusion that of 170 arbitral awards made in the nineteenth century only six were supported on sufficient legal grounds. De Lapradelle and Politis also point out that in six awards, involving legal questions, made by sovereigns in the first half of the century, rules of international law were misconstrued, ignored, or misapplied. Hans Wehberg, The Problem, of an International Court of Justice, il, 19-20 (1918). Awards of mixed commissions display a similar lack of legal basis. Ibid., p. 20. The question of providing for appeals from alleged invalid arbitral awards has recently been raised. See James W. Garner, "Appeal in Cases of Alleged Invalid Arbitral Awards," A.J.I. L., xxvi, 126-133 (1932). 2 It is possible that frequent participation by persons having no legal training or experience explains this tendency in part. E. A. Whittuck, "A Court of International Justice," Transactions of the Grotius Society, v, 40 (1920). In the development of arbitration early in the nineteenth century the lawyer's influence was apparently regarded with apprehension. In 1855 Great Britain and Portugal stipulated that in a pending arbitration case the agent of neither party should be an international lawyer. A. de Lapradelle et Ν. Politis, Recueil des Arbitrages Internationaux, ιι, 13 (1905). Wehberg deplores the retarding influence of the tendency of arbitrators to compromise issues rather than render a legal decision. Wehberg, op. cit., ιι, 10. An arbitral award rendered in 1885 in a dispute between the United States and Haiti was repudiated by the United States, in whose favor the award was made. Ibid., p. 24; see "Claims of Pelletier and Lazare" in Moore, International Arbitrations, n, 1749, 1793. 3 Such meaning as these terms have varies, of course, with the circumstances; in any event, each state determines for itself whether a dispute falls within any of the categories. A very few small states have by treaty undertaken to arbitrate all controversies. See Hershey, Essentials, p. 479, n. 58; Oppenheim, op. cit., II, 23.

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ticiable and non-justiciable disputes. In effect, it manifests the unwillingness of a state to submit all disputes to arbitration, the limitations of which are well recognized. Such reluctance results in part from uncertainty as to the existence of rules of international law governing many subjects of serious international controversy and also from the lack of assurance that arbitrators will apply available rules. Thus, "nations are very ready to arbitrate those things which they do not take seriously enough to care to fight about, and in that way arbitration has been extremely successful,"1 but "no Great Power has ever arbitrated an issue of absolutely first rate importance." 2 The old formula of exceptions is not dead — one of the authors of the Pact of Paris has admitted its vitality by reading it into that document as an implied but fully operative reservation.3 (2) The Permanent Court of International Justice. Although it must be recognized that arbitration has, during the past century, played an extremely important rôle as a method for the amicable adjustment of interA. Lawrence Lowell, League io Enforce Peace, p. 22 (1915). J. L. Brierly, "Judicial Settlement of International Disputes," Journal of the British Institute of International Affairs, iv, 227 (1925). The Alabama dispute is no exception, for the three "Rules of Washington," which really constituted the basis of the dispute, were settled beforehand by diplomacy. Ibid. 3 J. M. Spaight, Pseudo-Security, p. 8 (1928). See explanatory report of Foreign Relations Committee, Congressional Record, January 15, 70th Cong., 2nd Sess., p. 1370. For a general reference on the limitations of arbitration see Sir Frederick Pollock, "The Modern Law of Nations and the Prevention of War," Cambridge Modern History, xii, 703 et seq. (1910); R. Y . Hedges, " T h e Juridical Basis of Arbitration," Br. Yearbook, p. 110 (1926); Brierly, " T h e Judicial Settlement of International Disputes," op. cit., p. 227; Wehberg, op. cit., ch. in; Charles Cheney Hyde, "Legal Problems Capable of Settlement by Arbitration," in Judicial Settlement of International Disputes, p. 247 (1913). 1

2

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national controversies, the tendency of arbitrators to assume the functions of amiables compositeurs rather than of jurists engaged in developing an international jurisprudence has been too apparent. While arbitration is in its procedure and purpose primarily judicial, it often deviates from the functions and methods of a court of justice; arbitral awards cannot, therefore, always be regarded as judicial expressions of rules or principles of international law. Arbitration is a method of adjudication in so far as it yields a legal solution in a given cause, but even in the period of its widest recognition its shortcomings were emphasized and an international institution based more surely on the application of legal principles was demanded.1 Growing dissatisfaction with the Hague Court of Arbitration took form after 1907 in demands for a tribunal which should be both permanent and judicial.2 It was obvious that an international court for the adjudication of justiciable questions must be composed of jurists representative of different legal systems; that the members must not be selected ad hoc by the parties in dispute; and that as far as possible the law of the court must be existing international law. The latest attempt to realize such a tribunal is embodied in the Permanent Court of International Justice, the plan for which was prepared for the Council of the League of Nations by an 1 At the second Hague Conference in 1907 the American delegation pressed strongly for the creation of a Judicial Arbitration Court particularly adapted to the determination of purely judicial questions. The proposal foundered on the problem of devising a satisfactory plan for the selection of judges. See James Brown Scott, The Hague Peace Conferences of 1899 and. 1907, ι, 423-464 (1909); W. I. Hull, The Two Hague Conferences, pp. 410-426 (1908); Malloy, ii, 2380. 2 See Wehberg, op. cit., vol. II, chs. HI, iv, VII.

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Advisory Committee of Jurists meeting at The Hague from June 16 to July 24, 1920. This new "World Court" represents the farthest advance yet made in the development of machinery for the settlement of international disputes in accordance with rules and principles of law. Its decisions and advisory opinions are likely to constitute the most authoritative contribution to the development of international law, save perhaps that proceeding from international legislation.1 When states have exhausted all available methods for the amicable settlement of differences, or when they have refused to have recourse to such methods, there remains, if each disputant is determined to pursue its claims, only the arbitrament of force. Unredressed injury or a right denied is a challenge which frequently serves as a casus belli and until the beginning of the nineteenth century war followed almost as a matter of course. During the nineteenth century, however, international law developed largely in the formulation and limitation of the rights and duties not only of belligerents but also of neutral states. As the duties of belligerents and the rights of neutrals were enlarged and generally recognized, it became impossible for states to resort to war without incurring certain legal obligations toward neutral states. War became more complex and 1 The establishment of the court is authorized by Article 14 of the Covenant of the League of Nations. The Committee of Jurists used as a basis for its plan the court of arbitral justice advocated at the second Hague Conference in 1907. The organization, competence, and procedure of the court are set forth in its Statute. Publications of the Permanent Court, Series D, No. 1 ; Hudson, International Legislation, I, 530-536. The procedural rules of the court are of its own creation. Ibid. For a review of the relation of the United States to the Permanent Court of International Justice, see Philip C. Jessup, "The United States and the World Court," W. P. F. Pam., vol. xii, No. 4 (1929).

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less inviting as neutral rights were established and maintained by strong neutral powers. Nevertheless, to secure redress and to vindicate alleged rights and grievances states still deemed it necessary, in the absence of a common superior and an international tribunal, to have recourse to coercive measures against delinquent or recalcitrant states. There was, therefore, frequent use of force without bringing into existence a condition of de jure war and its complex relationships. The twentieth century ideal is to eliminate war and it is the common belief that "outlawry" of war constitutes an effective means of assuring the solution of international disputes without the use of force. This common faith is illusory, for the negative pledge not to resort to war does not necessarily mean that states thereby undertake to submit their controversies to any of the non-coercive methods of settlement described above. So long as the use of force short of war continues both as a legal right and as a recurrent practice of states mere "outlawry" of de jure war will not result in supplanting force by law in international relations. The history of the past century indicates that war is but one form of state use of force and that the process of making war more difficult and more onerous leaves to states two alternative methods of seeking to adjust their differences. Of these alternatives, the amicable methods already described and the coercive measures short of war about to be studied, the coercive measures so much resemble war in their violation of any reasonable conception of international justice that their elimination must be included in any plan for world peace and order. The use of armed force as an instrument of national

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policy must go the way of war if our peace structure is to substitute law for arbitrary force. I t is to a study of this practice of the use of force in time of peace, a phase of international relations in the borderland between peace and war, that the remainder of this work is devoted. Such a study begins with the mediaeval institution of private reprisals — the practice of self-help by individuals against foreign communities.

PART II PRIVATE AND STATE USE OF FORCE IN TIME OF PEACE

CHAPTER III PRIVATE

REPRISALS

the Middle Ages the right of the individual to defend his person and property, even to the extent of using force, was assumed to be inherent in the nature of things and limited, therefore, only by principles of natural law. The chaotic conditions which prevailed in Europe as a consequence of the dismemberment of the Roman Empire, and which continued for centuries until the comparative order of feudalism was attained, imposed upon those who moved beyond the territorial jurisdiction of local authorities continual risk of loss or injury at the hands of private marauders. The individual, especially the merchant engaged in foreign trade, found it necessary to seek protection and redress by his own efforts. Even within those regions where local law was effective the foreign claimant often found it impossible to secure equitable treatment at the hands of local authorities. In neither case did the sovereign of aggrieved claimants feel inclined to press actively claims of his subjects against foreign communities. Protection of individual rights and interests beyond the local jurisdiction was not yet generally recognized as an obligation which the community owed to its members. Consequently, resort to individual self-help was encouraged and became widespread. The natural right to defend one's own person and UNTIL

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44

property as a last resort could hardly be denied, although many contemporary writers regarded its exercise as the cause rather than the effect of the chaos of the times. As sovereigns became apprehensive of widespread private warfare during the thirteenth and fourteenth centuries, sporadic and unrestrained use of force by individuals in their own behalf was gradually subjected to legal regulation and restraint. Resort by the individual to forceful measures of self-redress in connection with claims abroad was permitted only after formal sanction by the sovereign; treaties and local law clothed the practice with legal character by elaborating detailed procedure governing resort to and exercise of such measures. The term "reprisals" was used generally from the thirteenth century on to describe the practice of individual self-help according to prevailing regulations.1 The early development of maritime commerce in Italy, the intimate trade relations among the numerous Italian city-states, and the general absence of naval 1

The term was first used in the thirteenth century by juristic writers. See Domino Du Cange, Glossarium Mediae et Infimae Latinitatis, VII, 434 (1886) ; Bartoli a Saxoferrato, Consilia, Quaestiones & Tractatus, p. 327 (1588) ; Simon Maccoby, "Reprisals as a Measure of Redress Short of War," Cambridge Law Journal, π, 60 (1926); Ernest Nys, Les Origines de Droit International, p. 68 (1894). It is not subject to precise definition, in so far as it refers to a practice which varied widely in different times and places. The following is a fairly satisfactory statement derived from ordinances, treaties, and customs of the period: "Le droit de représailles est le droit concédé à un particulier, par l'autorité souveraine dont il est sujet, de reprendre, même par la force, son bien ou l'équivalent de son bien, sur un étranger ou les citoyens de cet étranger, lorsqu'il n'a pu obtenir justice par les voies judiciaires du pays de son adversaire." René de Mas Latrie, Du Droit de Marque ou Droit de Représailles au Moyen-Age (nouv. éd.), p. 4 (1875). It should be emphasized that self-help or self-redress is a general term which refers broadly to any method of securing satisfaction or redress in respect of an injury, while reprisals, in mediaeval theory and practice, refer particularly to a legally recognized practice.

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protection account for the growth there of legal regulation of private reprisals.1 But legal restraint upon private warfare was soon made the subject of local statutes and treaty agreements by English and French rulers. The development of a fairly uniform set of legal principles is a characteristic of the practice of private reprisals which distinguishes it from the piratical and lawless acts which it was intended to supplant. Before his sovereign assumed even a limited responsibility to aid him, the individual who possessed a claim against a foreign community was required to seek legal redress in the community at the hands of whose members he had suffered injury or loss. In the event of denial of justice there it was assumed that there had been a failure of jurisdiction which required a transfer of authority to the sovereign of the claimant. The claimant was therefore permitted to petition his own sovereign for authority to seek redress by seizure of goods or property of any members of the defaulting community.2 This conception of an inferred transfer of 1 Mas Latrie, op. cit., p. 4. The political and economic conditions which prevailed in the Italian peninsula during the thirteenth and fourteenth centuries account also for the Italian origin of most of the early writings on reprisals. The two best known are Bartolus, op. cit., and Giovanni da

Legnano, Tractatus de Beilo, de Represaliis,

et de Duello (trans, by Τ. E.

Holland, 1917). Certainly the merchant of the Middle Ages thoroughly sensed the liability of his person and property for the debts of his countrymen and reckoned it among his risks. Thomas A. Walker, A History of the Law of Nations, i, 121 (1895); Rodolphe Dareste, Nouvelles études d'Histoire

du Droit, p. 40 (1902). Maritime insurance was common in Italy in the fourteenth and fifteenth centuries and doubtless grew out of such risks. J. M. Pardessus, Us et Coutumes de la Mer, π, 180 (1847). 2 Da Legnano, op. cit., chs. 148-150, pp. 322-323. Da Legnano regarded reprisais as a form of action taken by an individual with the permission of his sovereign who thus "succeeds to the place of the jurisdiction which has failed." Ibid. ; also Hugo Grotius, De Jure Belli ac Ρacia Libri Tres (Classics of International Law edition), vol. n, bk. m, ch. 2 (1925).

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jurisdiction and authority is, of course, the very antithesis of the theory of absolute sovereignty. The theory and practice of private reprisals was, therefore, to meet with increasing objection as there emerged in the seventeenth century strong national states claiming an absolute control within their territorial domain. If denial of justice resulted in a transfer of jurisdiction action by the sovereign of the private claimant was justified. The sovereign, however, did little more than formally authorize resort to the use of force by the individual claimant. In the absence of public forces for the constant protection of the rights and interests of subjects abroad reversion to individual self-help was necessary. But mediaeval jurists found it difficult to justify, under any of the prevailing legal theories, the fact that permission to exercise private reprisals authorized the seizure of goods or property of any member of the defaulting community. Such indiscriminate license was defensible only on the grounds that a political community was composed of persons who were liable in person and property for the misdeeds of each other, so far as the interests of foreign individuals were affected.1 This concept of communal solidarity, implying a vicarious responsibility, was generally accepted by mediaeval 1 Nys, Les Origines, p. 63; Ernest Nys, Le Droit International, les principes, les théories, les faits, n, 584 (1912); Mas Latrie, op. cit., pp. 5, 8; John Westlake, International Law, n, 81 (1907); Grotius, op. cit., vol. Il, bk. m, ch. 2, sec. 2; E . de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (Classics of International Law edition), vol. m , bk. n, sees. 71-77 (1916); Charles Molloy, De Jure Marítimo et Navali (7th ed.), pp. 25-26, (1722) ; H. J. F. X . Bonfils, Manuel de Droit International Public (6th ed., Fauchille), p. 651 (1912); C. B. Trelles, "Francisco de Vitoria," Recueil des Cours, XVII, 310 (1927).

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47

jurists, first as a moral and later as a legal basis for one phase of the practice of private reprisals.1 It is not suggested here that the practice of reprisals grew out of any deliberate rationalization of such a theory. Conditions peculiar to the age gave rise to the practice as a necessary evil; statutes, treaties, and jurists gave it legal form; jurists finally undertook to justify it on broad and fundamental bases.2 The jurists played a useful part in their attempt to rationalize an inevitable practice, for the two basic principles of transfer of jurisdiction and communal solidarity eventually served to supply certain theoretical limits to the practice of reprisals. Although piracy remained endemic in the Mediterranean commercial world long after the comparative stabilization of feudalism had replaced the chaos following the fall of Rome,3 regulation of private self-help introduced an element of order into a confused world. Limitations upon the unrestrained use of individual self-help appear first in formal agreements between Italian city-states. A convention between Brescia and Ferrara of about 1195 provided that aggrieved citizens who traded between the two city-states should have cause of action against their debtors only; it was suggested that traders should ascertain in advance the character of those with whom they dealt. Other agree1

The Teutonic tribes which surged upon Rome in its later days brought with them a theory of solidarity extending through the family unit to the hundred and commarchate. The strong condemnation of the concept of communal responsibility by Roman lawyers was probably due to its emphasis in barbaric tribal customs. Mas Latrie, op. cit., pp. 6-10; Nys, Les Origines, p. 63. 8 E.g., Grotius, op. cit., vol. n, bk. in, ch. 2, sec. 2. 3 G. H. Perris, A Short History of War and Peace, p. 112 (1911); Mas Latrie, op. cit., pp. 10-11.

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ments accorded traveling merchants special exemptions from liability for debts or misdeeds of their countrymen,1 In England similar immunity was guaranteed to foreign merchants by numerous statutes.2 Henry V attempted in 1414 to obviate recourse to reprisals by appointing a "conservator of the truce" in each of the larger English ports to hear complaints against foreigners.3 Presumably these officers were authorized, if a claim seemed justified, to press for settlement by negotiation. Occasionally special restrictions were placed upon the departure of vessels armed sufficiently to arouse suspicion as to their purpose in sailing the high seas. By treaty English masters were for a time required to post bonds before clearance was permitted.4 These indirect attempts to restrict resort to private self-help were not effective.5 Concurrently during the fourteenth century there was developed a system of official regulation destined to establish individual selfhelp as a legal institution. This took the form of what 1

Nys, Les Origines, pp. 65-67; Mas Latrie, op. cit., pp. 48-52; A. Germain,

Histoire du Commerce de Montpellier, ι, 497 (1861). 2 Magna Carta, ch. 41; 25 Edward III (1350), stat. 5, ch. 23; 27 Edward III (1353), stat. 2, ch. 17; G. F. de Martens, Essai Concernant les Armateurs,

les Prises et sur tout les Reprises, p. 27 (1795). 3 2 Henry V (1414), stat. 1, ch. 6; this was attempted also by a treaty (1440) between Henry VI and the Duke of Brittany. Dumont, Corps Universel Diplomatique, vol. m, pt. 1, p. 548 (1739); Martens, Essai, pp. 25-26. 4 Treaty of July 11, 1440, England and Brittany, Dumont, op. cit., vol. HI, pt. 1, p. 548. In case the sureties were found inadequate to meet later claims against such vessels the inhabitants of the port of clearance were held liable; in a later treaty (France and England, Treaty of Peace, 1655) the judges of the respective admiralties were held personally responsible in such cases. William Horsley, The Political History of Europe, p. 78 (1746). 6 They represent attempts also to abolish private warfare carried on by maritime towns without reference to individual grievances or claims. Henry

Hallam, View of the State of Europe during the Middle

396-399 (1841).

Ages (8th ed.), li,

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49

was essentially a license system. A letter of marque or reprisal, issued by the sovereign to an aggrieved subject authorized the holder to secure redress in a prescribed manner, usually by the seizure of goods or property of a stated value owned by any of the subjects of the offending community. The practice of issuing these litterae or chartae originated in Italy where merchants of commercial city-states constantly appealed to local authorities in causes of action against foreign debtors. Before the end of the fourteenth century the issuance of such letters was general in western Europe. 1 The subject who had suffered loss or injury abroad or at the hands of aliens was required to place a complaint, in the form of application for permission to secure redress by seizure of goods or property, before a designated judicial officer. In England he was required by statute to lay his application before the Lord Chancellor (Keeper of the Privy Seal), in France before the admiralty judge nearest the claimant's place of residence.2 The applicant was required to show that he had appealed in vain to the proper tribunals abroad. 3 Denial of justice was thus made the legal basis of the right of reprisal but denial of justice was never clearly defined.4 If the examining official were satisfied that there had been a manifest 1

Mas Latrie, op. cit., pp. 13-14; Nys, Les Origines, pp. 64-65; Martens, Essai, pp. 25-26. 2 4 Henry V (1416), ch. 7; R. J. Valin, Nouveau Commentaire sur l'Ordonnance de la Marine, n, 420 (1766). 3 Bartolus, op. cit., pp. 331-332; Da Legnano, op. cit., chs. 148-150, 153; Nys, Les Origines, p. 67; Pardessus, op. cit., n, 410. 4 Bartolus, op. cit., p. 331; Da Legnano, op. cit., ch. 150; Molloy, op. cit., p. 27 ; Grotius, op. cit., vol. n, bk. m , ch. 2, secs. 4-5; Cornelius van Bynkershoek, Quaestionum Juris Publici Libri Duo (Classics of International Law edition), bk. ι, ch. 24 (1930); Vattel, op. cit., vol. ni, bk. xi, ch. 18, secs. 42-43. "Manifest denial of justice" was currently referred to in seventeenth century

so

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denial of justice a formal request for reparation was then directed to the offending state.1 It was customary to send several requests and to allow a considerable lapse of time before the issuance of letters of reprisal.2 Included in the letter were an assessment of the damages suffered by the applicant and a statement of the value of property or goods which the letter authorized him to seize. It was usual to limit the authorization by reference to a date of expiry, after which unauthorized seizures were to be regarded as piracy.3 Goods or property seized were required to be brought into admiralty court for judgment in accordance with prize procedure. In case of condemnation the court arranged for sale and handed to the claimant the specified amount. Other charges, such as costs of the expedition, court costs, and occasionally a percentage for the sovereign, were deducted, and any surplus was awarded to the original owner upon application. Endorsement of the letter by the holder constituted quittance of the claim.4 treaties as the only basis on which letters of reprisal would be issued. Jacques Bernard, Recueil des Traitez ιν, 659; M. D. A. Azuni, Maritime Law of Europe, n , 341-343 (1806). 1 In England this was made by the Lord Chancellor in what was called a "letter of request"; in France a notice of protest was served through the King's ambassador resident within the offending state. 4 Henry V (1416), ch. 7; 10 Henry VI, ch. 3; Molloy, op. cit., pp. 31-33; Nys, Les Origines, p. 74; Valin, op. cit., n , 420. 2 Treaty provisions often specified three or four months. E.g., Spain and Scotland, 1662, Art. 17; England and France, April 11, 1713; France and States-General (United Provinces), September 10, 1697, Art. 4 (Treaty of Commerce); Bernard, Recueil, iv, 660; Azuni, op. cit., Ii, 341-343. 3 Pardessus, op. cit., ir, 411, Guidon de la Mer, Art. 4; Valin, op. cit., il, 421, Ordonnance, Art. 3; Mas Latrie, op. cit., pp. 34-35. In France the letter had to be registered with the admiralty office nearest the port of embarkation and security in amount of one-half the assessed damages had to be posted. Valin, op. cit., ii, 421. 4 Valin, op. cit., Ii, 421-424; Azuni, op. cit., ii, 346-347; Dumont, op. cit., vol. m , pt. 1, p. 548; Grotius, op. cit., vol. II, bk. m , ch. 2, sec. 7.

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51

For a short time two kinds of letters were issued. A "letter of reprisal" authorized the holder to make seizures only within the territorial jurisdiction of the sovereign; a "letter of marque" authorized seizures beyond the local jurisdiction. Claimants usually applied for both letters in order to have the widest possible latitude and so a single "letter of marque and reprisal" came into use.1 The right to issue letters of marque and reprisal was deemed as much a prerogative of the sovereign as the power to declare war.2 The exercise of private reprisals was regarded as a privilege of membership in the community and usually letters were issued by a sovereign only to his own subjects.3 Certain persons and The following excerpts from a letter of marque and reprisal issued in 1677 by Charles I I of England indicates the usual form. The grantees are authorized " b y force of arms to set upon, take and apprehend any of the Ships, Goods, monies and Merchandizes of the States-General, or any of the Subjects. . . . Provided always that all Ships (etc.) shall be kept in safety . . . until judgment hath first past. And it is our will and pleasure that this our Commission shall remain in full force . . . until the said Sir Edward Turner and George Carew shall by virtue thereof have by force of arms apprehended . . . one hundred fifty-one thousand six hundred and twelve pounds." Given in Molloy, op. cit., pp. 33-39. 1 For examples of early usage see Nys, Les Origines, pp. 64-65, 71-72; T. Rymer, Foedera, vol. n, pt. II, p. 690; Westlake, International Law, n , 9; Hooper, Administrator v. the United States, 22 Ct. of Claims 408, p. 429 (1887). The terms are used without distinction in Pardessus, op. cit., π , 410 et seq., Guidon de la Mer, Art. 1; Valin, op. cit., n , 417. In the eighteenth century letters of marque, called also "extraordinary letters of reprisal," became associated with privateering. Molloy, op. cit., pp. 28-31; H. J . Stephens, New Commentaries on the Laws of England (4th ed.), Ii, 506 (1858). 2 Mas Latrie, op. cit., pp. 18-19, 44; Bartolus, op. cit., pp. 332-333; Hallam, op. cit., Ii, 396-399; Rymer, Foedera, vol. π, pt. n , p. 690; Statute of the Staple, 27 Edward I I I (1353), stat. 2; Pardessus, op. cit., π, 410-411. 3 Pardessus, op. cit., ii, 410, Guidon de la Mer, Art. 2; Valin, op. cit., il, 420, Ordonnance, Art. 1. But there were numerous exceptions; moreover, merchant subjects who were unable to finance an expedition authorized in their behalf often sold their letters to others who exercised all rights set forth. Mas Latrie, op. cit., p. 37; Sir Robert Phillimore, International Law, in, 30-31 (1885); Vattel, op. cit., vol. in, bk. π , sec. 346.

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classes of persons were by custom, statutes, and treaties exempt in their persons and property from liability to reprisals. In the interests of commerce the goods of foreign merchants engaged in trade within the local jurisdiction were exempt from seizure.1 English statutes protected the Lombards, the financiers of London, from reprisals. In France, Jews were exempt in person and property.2 For various reasons the persons and property of women, children, ecclesiastics, pilgrims, students, and diplomatic envoys were by general custom exempt from liability to reprisals.3 Official regulation and restraint of individual selfhelp did to some extent ameliorate conditions of widespread private warfare. By the end of the seventeenth century piracy in European waters had become comparatively rare and there was less occasion for resort to private self-help. The gradual obsolescence of the practice of private reprisals is not wholly to be explained, however, by the decreasing risks in foreign commerce. Resort to individual self-redress, however well regulated and restrained, remained subject to all the abuses inherent in any system based on violence and self-help. It was a makeshift institution, an evil made necessary by 1

Georges Yver, Le Commerce et les Marchands dans l'Italie méridionale, pp. 153-155 (1903) ; Frantz Despagnet, Cours de Droit International Public, (4me éd.), p. 780 (1910); Nys, Les Origines, p. 71; Mas Latrie, op. cit., pp. 19-22; Walker, A History of the Law of Nations, i, 121; 27 Edward III (1353), stat. 2, ch. 17; Magna Carta, ch. 41. Frequently such persons, especially when en route to fairs and markets, were supplied with safe-conducts which exempted them and their goods from seizure under letters of reprisal. Mas Latrie, op. cit., p. 19; Nys, Les Origines, p. 71. 2 25 Edward III (1350), stat. 5, ch. 23; Mas Latrie, op. cit., pp. 19-22, 51-52, citing Arch, de Venise, Décision du Grand Conseil (1423). 3 Bartolus, op. cit., p. 335; Da Legnano, op. cit., ch. 138; Nys, Les Origines, p. 72; Mas Latrie, op. cit., pp. 19-22.

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53

the absence of any consciousness among states of responsibility for their subjects' interests abroad and by the absence of means wherewith to press the claims of individual subjects. With the rise of strong national states necessity for recourse to individual self-help was removed, for such states readily assumed immediate responsibility for the protection of their subjects' rights at home and abroad. As soon as the view was accepted that an unredressed injury to a subject constituted an offense against the state, direct state action became a logical consequence. Obligation on the part of the community to lend its power and influence to the support of its members' interests abroad was a logical deduction from the conception of communal solidarity which had so long been acted upon. Individuals gradually abandoned private warfare and the issuance of letters of marque and reprisal in time of peace was thus rendered superfluous. Transition from the practice of private reprisals to the practice of state or public reprisals proceeded during the first half of the eighteenth century, when the issuance of letters of reprisal practically ceased. The last letters issued were granted in 1778 by Louis XVI of France to two Bordeaux merchants who had lost a number of vessels to English marauders.1 The latest treaty recog1

Théodore Ortolan, Règles Internationales et Diplomatie de la Mer (4me éd.). vol. I, App. J., p. 445 (1864). An application was made to the French king as late as 1826 but was denied by the sovereign and later by the Council of State. L. Ducrocq, Représailles en Temps de Paix, p. 26 (1901). In 1857 a brief was presented to the Secretary of State of the United States petitioning for a "letter of request" preliminary to issuance of a letter of reprisal against Venezuela. The grievance arose out of the seizure of a small guano island (Aves) in the Caribbean by a Venezuelan naval force. No action was taken. Sen. Doc., vol. 4, No. 10, 36th Cong., 2nd Sess. (1860-1861). There is no

FORCE IN PEACE 54 nition of the right to issue letters of reprisal is found in a treaty of commerce between France and England of 1786, where, however, the right is narrowly confined.1 The practice of private reprisals from the fourteenth to the eighteenth century represents a transitional phase in the development of the national community. The preceding era was one of internal confusion; political communities had barely begun to feel the stabilizing influences of feudalism, and communal responsibility for the protection of individual interests abroad was as yet assumed neither in theory nor in practice. The practice of private reprisals gave limited recognition to the conception of communal responsibility toward the individual claimant. It anticipated modern practice whereby states assume full responsibility for the protection of citizens' rights abroad and are zealously active in maintaining those rights. The advance from unlimited private warfare, which meant chaos, to regulated private reprisals was only slight but it deterred to some extent immediate and unrestrained resort to violence. Out of the practice of private reprisals came many rules and principles fundamental in modern international law.2 In example of private reprisals in the history of the United States. Moore, Digest, VII, 122-123. 1 D'Hauterive et de Cussy, Recueil des Traités de Commerce, vol. n, p. 89, Art. 3. The French Penal Code (1900) in Article 85 makes an indirect reference to private reprisais. 2 The institution of private reprisals was developed in large part on the conception of communal solidarity and responsibility — a view that has become the basis of the modern practice of coercive protection, especially under the alleged right of intervention. Edwin M. Borchard, "Limitations on Coercive Protection," A. J. I. L., xxi, 303 (1927). To some extent the statutory regulations governing the seizure and adjudication of property under authorization of letters of reprisal have formed the basis of modern prize law. De Lapradelle et Politis, op. cit., ι, 109.

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a period usually regarded as characterized by violence and lawlessness the remarkably orderly procedure which governed the issuance of letters of reprisal is significant, but for present purposes the institution of private reprisals has a broader significance. In the first place, persistent attempts to restrain by law violent action undertaken by an individual in his own interest proved futile; they failed because no amount of legal regulation could overcome the abusive evils inherent in a system of self-help based on vengeance. Like the laws of war which are presumed, or were once presumed, to regulate warfare, legal regulation of individual violence served mainly to legalize a practice inherently violative of the principles of elementary justice. A legal system which confounds law and vengeance, rendering the plaintiff judge and sheriff in his own cause, cannot avoid abuse and is characteristic of a primitive stage of social organization. In the second place, it is significant that the state, in assuming the responsibility of enforcing the subjects' interests abroad, merely enlarges opportunity for the use of arbitrary force. The transition from private to state reprisals carries on a self-help system in which inheres an obvious contradiction of elementary principles of justice. There was a futility and a viciousness in the legalization of private self-help broadly analogous to the weaknesses of a nineteenth century system of international law based on the limitless right of each state to impose its own will where its power could prevail. The transfer of rights of enforcement from the individual to the state is but a step in a larger evolution — the delegation by states of the powers of enforcement

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to the international community acting in the interests of all its members.1 1

The history of the development of the common law offers a convenient analogy to the development of international law. We are at present in a primitive state of international law analogous to that in which common law litigants might choose between force and law. "If we go back to the age of Glanville (the latter half of the twelfth century) we find conditions in the common law as regards methods of settlement of disputes between man and man very much in the same situation that they are today as regards disputes between one nation and another. Up to that time the blood feud or private war was a well recognized method of redress by an individual who had suffered wrong. At first there was no restraint upon the use of such methods. Later there was restraint to the extent that a man might not resort to the blood feud until he had first demanded his right in court and been refused. Still later the resort to violence to redress a private wrong was recognized as an injury to the King's peace, and the injured party was compelled to accept compensation instead. After the jury trial came into use it was at first optional with the parties whether it should be used or not. In some instances the litigant had his choice between trial by battle and other methods; during the reign of Henry II, the claimant to land in the possession of another had to offer battle but the defender of his title could, if he preferred, refuse battle and put himself upon the grand assize. After peaceable methods of trial became better known, and permanent courts were established, it was not long comparatively speaking before the blood feud or private war fell into disuse and ultimately the use of violence to redress private wrongs was forbidden by law." Thomas Raeburn White, "Limitations Upon the Initiation of War," Proceedings of the American Society of International Law, 19th annual meeting, pp. 109-110 (1925).

CHAPTER IV STATE SELF-HELP IN PRACTICE

THE nineteenth century witnessed a development of international relations which foreshadowed the present intimate interdependence of members of the international community. The possible adverse effects of war, especially if it involved major powers, were recognized as being no longer confinable to belligerent powers. There was an inevitable tendency, therefore, to develop those rules of international law which determined the rights and duties of states neutral in time of war. Definition of the rights of neutrals, the growing complexity and expense of warfare, and the increasing strength of anti-war movements combined to impose a heavy responsibility upon those states which attempted to settle their differences by resort to war. Nevertheless, in the absence of adequate international organization, it was necessary for states to employ various non-amicable measures in order to secure recognition of international obligations when purely amicable methods had failed to influence recalcitrant states. In their mildest form non-amicable measures may be limited to such evidences of unfriendly feeling as the withdrawal of diplomatic representatives. Measures of retorsion, that is, those evidences of unfriendly feeling which are not in themselves violative of rules or principles of international law and which are usually retaliation in kind, play an important part in international re-

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lations but do not fall within the present study.1 Of more immediate danger to international peace are those coercive measures short of war to which states resort in order to secure from a weaker state redress for alleged violation of international law. The history of the nineteenth century includes many such measures, executed in time of peace, avowedly without belligerent intent, and defended by statesmen as necessary ultimate means either of securing reparation for international delinquency or of discouraging recurrence of illegal acts. The term "reprisals" has been generally used to refer to these coercive measures, and to distinguish them from mediaeval private reprisals they are called public or state reprisals. Public reprisals may thus be defined as coercive measures taken by one state against another, without belligerent intent, in order to secure redress for, or to prevent recurrence of, acts or omissions which under international law constitute international delinquency.2 1 While such measures are non-amicable, being evidences of unfriendliness, they are not usually coercive in the sense that resort is had to the use or display of force. Retorsion refers to the interplay of unfriendly but legal acts between states. Measures of retorsion are not usually intended to secure the redress of international delinquency, but it is possible that a state may employ a measure of retorsion, such as a discriminatory tariff, as a measure of reprisal. A good example of retorsion is found in Bismarck's action in 1885 when, in order to exert pressure on Russia in connection with the letter's customs policies, he forbade the Reichsbank to make advances on the security of Russian state loans. Achille Viallate, Economic Imperialism and International Relations During the Last Fifty Years, p. 59 (1923). 2 This definition is broader than many of those given in general texts of international law but it appears justified after a study of the instances generally referred to during the past century as reprisals. The nearest approach to the definition given is that of Karl Strupp, "L'Intervention en Matière Financière," Recueil des Cours, νιπ, 49 (1925). For other definitions see: Charles Calvo, Dictionnaire de Droit International, il, 161 (1885); Wilson, Handbook, p. 228; T. E. Holland, Studies in

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The elements of this definition are derived from the actual practice of states and from the conditions which jurists and statesmen have generally accepted as necessary to establish the legality of such coercive measures in international law. Emphasis is placed upon international delinquency as a necessary legal basis for coercive measures which in themselves would otherwise be violative of international law. It is generally conceded that states should exhaust regular diplomatic and judicial means before resort to coercion and that the measures employed should not be more severe than is necessary to secure redress proportional to the offense. Reprisals are usually confined in practice to the persons or property of nationals of the offending state.1 Thus, characteristics of the theory and practice of private reprisals find their counterparts in modern public reprisals; denial of justice is expanded to international delinquency as a legal basis; the stipulated value of property to be seized under letters of reprisal finds analogy in the requirement of proportionality between redress and offense; and communal liability is enforced International Law, p. 132 (1898); D. D. Field, Draft Outlines of an International Code, p. 471 (1872); Hershey, Essentials, p. 537; Oppenheim, op. cit., il, 44; Pasquale Fiore, Nouveau Droit International Public (2me éd.) il, 664 (1885); Jean-Gaspard Bluntschli, Le Droit International Codifié (5me éd.), sec. 530, n. 1 (1895); E. S. Creasy, First Platform of International Law, p. 401 (1876); Pitt Cobbett, Cases on International Law (5th ed.), ι, 349 (1931); William E. Hall, A Treatise on International Law (8th ed.), p. 433 (1924); Hyde, International Law, il, 174; Giuseppe Carnazza-Amari, Traité de Droit International en Temps de Paix, n, 590 (1882); Despagnet, op. cit., p. 779; S. Cybichowski, "La Compétence des Tribuneaux à Raison d'Infractions commises hors du Territoire," Recueil des Cours, x n , 341 (1926). 1 Senate Exec. Doc., vol. i, 1857-1858, 35th Cong., 1st Sess., Doc. No. 9, pp. 1-12; ibid., Doc. No. 10; Hansard, Debates (3rd series), cxlvt, 35, 1046 (1857); T. Baty, "The Institute of International Law on Pacific Blockade," Law Magazine ani Review (4th series), xxxi, 289 (1896),

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in the application of modern reprisals. Both private and public reprisals are species of self-help resting on the arbitrary use of force by interested parties in their own behalf. In each case there has been an attempt to provide legal regulation and restraint, but modern international law, in presuming to regulate the conduct of states, is faced with those contradictions which were inherent in the system of private self-help. A legal system which depends for its maintenance upon the arbitrary action of interested parties must fail to satisfy the demands of an ordered community, whether that community be national or international. In the examination of a century of state practice it must be remembered that, in the absence of specific conventional law, " t h e final test of validity must in the case of international law, no less than in that of any other customary law, be found in general consent evidenced by conduct." 1 States have constantly appealed, therefore, to custom as a source of rights under international law. It must be admitted that that portion of international law which represents mere crystallization of state practice should not be assumed to determine state rights and duties without constant reference to changing conditions of state existence. The present century has witnessed an acceleration in international organization which renders less acceptable many of the practical reasons heretofore advanced to justify ultimate resort 1 Pollock, " T h e Modern Law of Nations," op. cit., p. 715. "Opinions, even the most plausible, may fail to produce effectual conviction. Solemn declarations may remain a dead letter. Practice alone will show what is really to be expected. . . . Such usage, if uniform or nearly so, is the best evidence of deliberate consent, for discordant opinions as to what is just or convenient could never produce a uniform accepted usage." Ibid.

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to state self-help. In spite, however, of recent advance in international organization, the practice of reprisals remains significant both because of the continuing operation of the customary rules which have arisen from the practice, and because the post-war peace structure has failed adequately to emphasize the necessity of limiting the use of force in time of peace. 1 DISPLAY OF FORCE

Display of military or naval strength may, without actual use, serve to intimidate an offending state whose physical resources are so small that resistance would be futile. Such demonstrations were frequent throughout the nineteenth century and, where it was clearly intimated that a display of force constituted a threat to use it unless grievances were redressed, they were generally effective. Display of force, from which it is clearly to be inferred that continued refusal to meet alleged obligations will result in its use, must be regarded as a coercive measure. American history offers many examples of such measures. As early as 1825 President Adams informed 1 " T h e absence . . . of general agreement concerning what differences should be referred to adjudication before an international tribunal renders it still possible for a State bent on obtaining redress by its own strong arm to excuse the use of force by pleading the non-arbitrable or non-justiciable quality of its grievance. The validity of such an excuse must, in view of existing practice, depend upon the circumstances of the particular case. Until, therefore, the principle indicating the true range of arbitrable differences is clearly perceived and generally accepted, and the means of obtaining justice in such disputes through judicial tribunals obviously assured and necessarily recognized, it is impossible to indicate with precision the conditions when recourse to non-amicable measures entailing the use of force is to be denounced as internationally illegal." Hyde, International Law, n, 166-167.

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Congress that "the constant maintenance of a small squadron in the Mediterranean is a necessary substitute for the humiliating alternative of paying tribute for the security of our commerce in that sea, and for a precarious peace, at the mercy of every caprice of four Barbary States. . . . " 1 United States naval forces were constantly on display off the coasts of Chile and Peru at that time, and in Turkish waters during the latter part of the nineteenth century.2 Since 1850 the United States has almost constantly maintained a naval force in the region of the Isthmus of Panama, the commercial and strategic importance of which was then first recognized. From 1850 to 1907 some fifty-three revolutions occurred in this area; on such occasions American rights and interests provided for in the United States-New Grenada Treaty of 1846 were maintained only by the presence of American naval forces. In 1856 the captain of an American vessel was commended by the Secretary of State for his "potent" action in preventing, by the display of material force and a menacing attitude, threatened violation by the Governor of New Grenada of American rights under the Treaty of 1846.3 Apologies and an indemnity of $10,000 were secured from Paraguay in 1855 after the United States had dispatched a naval force to join the American commissioner already engaged in attempting to adjust a grievance.4 In 1858 the American Mediterranean naval squadron was or1 Message to Congress, December 6, 1825, Richardson, Messages, n, 308-309. 2 Ibid.·, Foreign Relations, 1895, p. 1257. 3 Colby M. Chester, "Diplomacy of the Quarter-deck," A. J. I. L., vin, 446, 449-450 (1914). 4 Moore, Digest, vn, 109-111; Moore, International Arbitrations, π, 1485-1489.

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dered to Jaffa to aid in inducing Turkish authorities to bring to justice persons connected with the massacres of American citizens.1 The arrival of an American naval vessel and the vigorous language of its captain prevented in 1873 further executions of the crew of the American vessel Virginius by Spanish authorities in Santiago de Cuba. 2 The purpose of the dispatch of an American war vessel to Ecuador in 1885, in connection with attempts to secure release of an American citizen, was described by Secretary of State Bayard as "one of peace and good will, to the end of exerting the moral influence of our flag toward a discreet and mutually honorable solution." 3 At the request of the American legation at Lima, Peru, two United States men-of-war came to that place in 1887 "pending the consideration by the Peruvian Congress of legislation which was supposed to tend to the confiscation of the property of citizens of the United States." 4 Much of the early history of United States policy in the region of the Isthmus of Panama is to be found in the records of the Navy Department. 5 Responsibility for the immediate protection of the rights and interests of American nationals abroad has often fallen to the lot of naval officers whose work in this connection has been aptly described as "diplomacy of the quarter-deck." 6 The assumed advantage of quarter-deck diplomacy is, 1

2 Moore, Digest, vu, 108. Chester, op. cit., pp. 458-460. 4 Moore, Digest, VII, 109. Ibid. 6 Chester, op. cit., pp. 447, 461, 465. * Ibid., p. 445. The word "diplomacy" is here used in a non-technical sense, although there are those who would say that negotiations carried on under the trained guns of a battleship often differ from the more usual kind only in that intimidation is more realistic. In any event, "quarter-deck diplomacy " is usually a coercive rather than a diplomatic means. 3

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of course, that it "unites force with persuasion," 1 a combination which seems to have been required in our relations with certain recalcitrant communities.2 Naval officers usually undertake such duties with no specific instructions, since the variety of situations which may arise is endless. Even today, when communication systems render it possible to consult higher authorities almost at once, naval officers are often called upon to assume responsibility for decisions which involve important questions of international law.3 EMBARGO.

NON-INTEBCOURSE

The term "embargo" refers generally to the sequestration or temporary seizure of property, especially of ships. Application of an embargo in time of peace to property of an offending state or its nationals as a means of compelling recognition of an international obligation is a measure of reprisal formerly much used. Occasionally a plaintiff state has sought to bring economic pressure against a delinquent state by prohibiting the movement of its own vessels in trade which normally exists between the disputant states. The two forms of embargo are distinguished as hostile and civil, respectively. In either case the measures may be regarded as coercive but non-belligerent.4 The practice of the nine1

Charles O. Paullin, Diplomatic Negotiations of American Naval Officers, 1778-1883, pp. 8-9 (1912). 2 Ability to "unite force with persuasion" enabled United States naval officers to establish treaty relations with Tripoli and Tunis (1804-1805), Algiers (1815-1816), China (1839-1846), and Japan (1851-1854). Ibid., chs. in, IV, vu, ix. 3 The importance of the work of United States naval officers abroad in time of peace is described in Paullin, op. cit. 4 A state may seize foreign vessels or prohibit the movement of its own

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teenth century indicates that vessels or other property sequestrated under a hostile embargo were subject to confiscation in case war ensued between the states in dispute.1 During the last quarter of the eighteenth century Great Britain resorted to hostile embargoes on five different occasions.2 In 1783 Holland ordered the seizure of several Venetian vessels in order to compel the adjustment of claims of two Dutch nationals against a resident of the Republic of Venice.3 In answer to an objectionable British Order-in-Council the United States imposed an embargo in 1794 on all vessels in United States ports bound for foreign places, hoping vessels for reasons other than bringing pressure to bear in connection with a pending controversy. For example, in case of impending war or immediately upon its outbreak, it was long the practice of belligerent states to lay an embargo on each other's vessels. This practice fell into disuse after the Crimean War but it was not until 1907 that there was general agreement as to rules which should apply. The Second Hague Conference produced Convention (VI) Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities in which it was declared "desirable" that in such circumstances a reasonable number of days of grace should be allowed merchant ships in an enemy port. It is questionable whether this agreement was binding during the World War; it was not uniformly followed. See James W. Garner, International Law and the World War, I, 147-180 (1920). In November, 1925, the Convention was denounced by the British Government. Misceli. No. 19,1925, Cmd. 2564; A. D. McNair, "The Legal Meaning of War, and the Relation of War to Reprisals," Transactions of the Grotius Society, xi, 39 (1926). There is also a belligerent right derived from custom—jus angariae— to detain and use neutral property within the national domain in case of necessity. Oppenheim, op. cit., π, 50-51. 1 This doctrine was laid down in the case of the Boedes Lust, 5 Robinson, Admiralty Reports, 233 (1803). This famous decision of Sir William Scott concerned an embargo laid on Dutch vessels clearly in anticipation of war. 2 Against France, July 29, 1778 and February 14, 1793; against Spain, June 18, 1779 and November 9, 1796; against Holland, September 15, 1795. Maria Magdalena, 1 English Prize Cases, p. 20 (1779). Some of these were later regarded as equivalent to a declaration of war. Ibid., p. 23. 3 Azuni, op. cit., il, 349.

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thereby to embarrass the British West Indies fleet which depended for its supplies upon exports from American ports.1 In 1796 Spain ordered the seizure of English owned property within its jurisdiction as a protest against the detention of a Spanish vessel.2 In 1840 Great Britain laid an embargo on all Sicilian ships at Malta in an attempt to secure revocation of a monopoly granted to France by the Two Sicilies in violation of a treaty (1816) between the Two Sicilies and Great Britain.3 The most complete civil embargo of the last century was that imposed by the United States in 1807 upon the movement of its own vessels. As the most important of neutral carriers during the Napoleonic wars, the United States saw its maritime commerce being squeezed out of existence in the pincers grip of a rigid British blockade on the one hand and exasperating French retaliations, aimed at Great Britain but immediately affecting American commerce, on the other.4 American neutral rights 1 Joint resolutions of Congress, March 26, 1794, and April 2, 1794; 1 Sied, at L. 400; Moore, Digest, vu, 142; Am. State Payers, For. Rei., ι, 429. 2 Azuni, op. cit., il, 349. 3 Annual Register, 1840, pp. 209-210. The British demands were met after France had acted as mediator. Ibid. Where the interests of states not parties to the conflict are adversely affected by a hostile embargo it is customary to allow compensation. In the early part of the nineteenth century the United States was a party to many treaties making provision for indemnification. See Malloy, ι, 135; n , 1482, 1492, 1833. 4 From 1800 to 1807 some 206 American vessels were seized by the French, many of which were condemned without indemnification. Am. State Papers, For. Rei., hi, 583. It was not until 1831 that claims arising out of these seizures were adjusted. By a Convention of July 4,1831, France agreed to pay to the United States twenty-five million francs as full indemnity to American claimants. Malloy, ι, 523. The refusal of the French Chamber of Deputies to vote funds for the payment of the first installment induced President Jackson to threaten reprisals by seizure of French property. The

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were ignored and diplomatic protests were unavailing. To take up arms against either party was contrary to Jefferson's principles and policies, while inaction in the face of depredation of American vessels and goods was impossible. In spite of strong opposition Jefferson proposed to Congress the "inhibition of the departure of our vessels from the ports of the United States." 1 Congress responded promptly by placing an embargo on American vessels.2 In forbidding American vessels to leave port Congress adopted a retaliatory measure which, so far as it influenced the policies of Great Britain and France, has aptly been compared to "trying to freeze a fierce bull-dog by holding him out of the window when the temperature is below zero." 3 As a measure to prevent further seizure of American vessels by the British and the French it was mildly effective,4 but it resulted also in generally diminished trade and an accumulation in the United States of idle ships and sailors, abandoned docks, and rotting threat delayed payments for two years until a veiled apology from Jackson salved French feelings. Moore, International Arbitrations, v, 4464, 4466; Richardson, Messages, in, 106-107; Sen. Exec. Docs. 62, 63, 24th Cong., 1st Sess.; H. Exec. Doc. 254, 24th Cong., 1st Sess. 1 The Works of Thomas Jefferson (edited by P. L. Ford), x, 530-531 (1905) ; Am. State Papers, For. Rei., in, 25. 2 Act of Congress, December 22,1807, 2 Stat, at L. 451, 452. Responsible for its enforcement, Secretary of the Treasury Gallatin found it at once necessary to call for amendments. In its original form the act lacked penalty provisions; it failed also to exempt coasting vessels and to forbid the export of specie in payment for foreign cargoes consigned to the United States. Louis M. Sears, Jefferson and the Embargo, pp. 60-61 (1927). Supplementary acts were passed as follows: January 9, 1808, 2 Stat, at L. 453; March 12, 1808, 2 Stat, at L. 473; April 25, 1808, 2 Stat, at L. 499; January 9, 1809, 2 Stat, at L. 506. For interpretative decisions, see Moore, Digest, vu, 143-147. 3 Philip M. Brown, International Society, Its Nature and Interests, p. 91 (1923). 4 Sears, op. cit., p. 276.

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stocks of goods. In New England local feeling was aroused by the embargo; it was believed that "the administration had ruined the old commerce, signed away our birthright on the sea at the moment when the opening of South America offered a new avenue for expansion, and betrayed the national honor by a surrender of fundamental and inalienable rights in preference to fighting for their support." 2 Only in the agricultural South did Jefferson find consistent support for his measure.3 In general, public opposition was so great that by July, 1808, the administration found it necessary to call upon the navy to aid the Treasury Department's almost futile efforts to enforce the embargo.4 Nevertheless, the embargo had some effect upon industrial life in Great Britain. Throughout the year of its operation (1808) there was privation in crowded industrial cities such as Manchester, Liverpool, and London.5 But, while British exports for the year 1808 showed a loss of some six million pounds in trade with the United States over the previous year, there appeared at the same time an almost exactly equivalent gain in trade with "America, exclusive of the United States." 6 This gain was due in part to increased trade with Canada (doubtless for re1

Ibid. Ibid., pp. 192-193. New England came to the brink of secession over the embargo. Jefferson and the embargo were maligned with equal vigor in the agricultural state of Vermont and the commercial state of Massachusetts. He and his "damned Embargo" went together as the cause of low prices, surplus produce, and lost trade and commerce. Ibid., pp. 102, 141. 3 Eventually the New England states benefited from the embargo, for they were compelled to develop manufactures. Ibid., p. 228. 4 Ibid., p. 91. 6 Poor rates, import statistics, and price statistics indicate that the embargo had an appreciable economic effect in England. Ibid., pp. 280, 284, 287, 293. « Ibid., p. 284. 2

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export to the United States) but more largely to the opening up of new trade with Spanish colonies then achieving independence. The embargo failed of its purpose. No concessions were made by Great Britain, and Napoleon ironically fell back on the embargo as an excuse for indiscriminate seizure of all American vessels on which he could lay hands.1 Just how much additional economic pressure would have been necessary to force the recall of the British Orders-in-Council it is difficult to say. Before the embargo had been in effect a year it was obvious that the United States could go no farther in its selfsacrifice without courting rebellion. In March, 1809, the embargo act expired and was replaced by a nonintercourse act.2 As a measure of reprisal an embargo is likely to be effective only in very special circumstances. An em1

Dissimulation is apparent in Napoleon's view that, in seizing American vessels, he was merely cooperating with the United States in the enforcement of the embargo. This view was manifest in an edict of April 17, 1808, commonly known as the Bayonne Decree. Am. State Papers, For. Rei., m , 291. 2 2 Stat, at L. 528. On two occasions the United States has suspended all commercial intercourse with offending states with which it was nominally not at war. From 1798 to 1800 all commercial relations with France were suspended. Act of Congress, June 13,1798,1 Stat, at L. 565. Again, in 1809 Jefferson's abortive embargo act was replaced by a non-intercourse act interdicting commercial relations with France and Great Britain. Act of Congress, March 1, 1809, 2 Stat, at L. 528; Moore, International Arbitrations, V, 4426-4427. Public and, after May 20, 1809, private vessels of these two powers were forbidden to enter American ports; importation of French and British merchandise was prohibited. The immediate effect was renewed energy on the part of Napoleon in the seizure of American vessels abroad and widespread smuggling in the United States. Am. State Papers, For. Rei., HI, 380. Although the Non-intercourse Act allowed American vessels a limited trade it was productive of dissension at home and irritation abroad without materially influencing the policies of France or Great Britain. The act was practically repealed by the passage of the Macon Bill No. 2, M a y 1, 1810. 2 Stat, at L. 605.

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bargo limited to vessels of the enforcing state is not likely to have adverse effects upon other states. Only if it is applied to the exportation of commodities essential to the offending state is it likely to exert pressure abroad. There are few possible examples, however, of monopoly control of such commodities by a single state. Moreover, the effectiveness of an embargo abroad is proportional to the sacrifice of trade at home. In a world of states vigorously competing for trade advantages it is not likely that a single state will voluntarily renounce economic benefits to secure reparation for an injury which would not warrant more serious coercive action. As means of obtaining redress, embargo and nonintercourse may be regarded as at least "impolitic." 1 In practice they have produced international irritation and internal dissension without expediting adjustment of immediate differences. The possibilities of an embargo by a group of states applied to the international trade of an offending state, which would be equivalent to its economic isolation, were realized during the World War. 2 A joint embargo by a large number of states could thus be made effective and yet avoid the difficulties raised by the application of an embargo by a single state. Since the League was founded the term "economic boycott" has come into use to describe plans for the isolation of a state from normal commercial and trade relations with the rest of the world. If the applica1

Wilson, Handbook, p. 230. It has been estimated that some 760,000 persons died during the World War in Germany alone from privation brought about by the Allied blockade measures. W. Arnold-Forster, "Sanctions," Journal of the Royal Institute of International Affairs, v, 8 (1926). 2

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tion of the so-called economic boycott is to be effective it must be undertaken simultaneously by a large group of states or by a few powerful states with the cooperation of most others. 1 PACIFIC BLOCKADE

During the nineteenth century there were many instances of the enforcement, in time of peace, of a maritime blockade against an offending state. Blockade measures are usually associated with a state of war but their use as measures of reprisal in time of peace has been frequent. The term "pacific blockade" was suggested originally by a vigorous opponent of the practice, from whom, doubtless, the irony of the phrase was not hidden. 2 In official sources the practice has been referred to only as "blockade," never as "pacific blockade." Whether a maritime blockade is pacific or belligerent must be determined by reference to the intention of participant states. When the nature of the blockade is not manifest the legal status of the parties and of the blockade must be inferred from indefinite criteria. This difficulty has arisen in the application of other measures of reprisal but it is especially emphasized in the history 1

Unofficial boycotts have been found slightly effective by Chinese guilds as against France, Japan, and the United States, and by Balkan merchant groups against Turkey. J. Laferrière, Le Boycott et le Droit International, pp. 4, 11, 14 (1910) ; Foreign Relations, 1905, pp. 204-234. The possibilities of economic pressure were emphasized by the "blockade" of the Central Powers by the Allies in the World War but were foreseen before that time. St. P. Séfériadès, Reflexions sur Le Boycottage en Droit International (1912);

William H. Blymer, The Isolation Plan (1921) ; Léon Bollack, Le Loi Mondiale de Boycottage Douanier (1912); Evans Clark, Boycotts and. Peace (1932). 2

L.-B. Hautefeuille, Droits et Devoirs des Nations Neutres (3me éd.),

il, 359 (1868); Holland, Studies, p. 130.

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of pacific blockades, for these are likely in practice to affect the interests of third states. Ordinarily pacific blockade consists in the "closing by force of one or more ports of a country in order to bring the country to terms."1 In its early application it was intended to prevent all communication by sea with the territory blockaded; after 1850, however, vessels of third states were not included in pacific blockade measures.2 Vessels of the offending state found in or attempting to enter blockaded ports were seized and sequestrated.3 The earliest example of pacific blockade is that enforced against Norway by Great Britain in 1814.4 Since that time alleged pacific blockades have been enforced on twenty-two occasions.5 In at least four instances a socalled pacific blockade was ultimately recognized as a war blockade.6 Nine of the total number were instituted 1

Wilson, Handbook, p. 232. A. H. Washburn, "Legality of the Pacific Blockade," 21 Columbia Law Review 459 (1921) ; T. E. Holland, " W a r Sub Modo," 19 Law Quarterly Review 133-135 (1903); Holland, Studies, p. 145. 3 A. Le Moine, Précis de Droit Maritime International et de Diplomatie, pp. 97, 99 (1888); M . Giraud, "Memorandum on Pacific Blockade up to the Time of the Foundation of the League," Official Journal, 1927, p. 842, n. 3; Horst P. Falcke, Le Blocus Pacifique, pp. 231-247 (1919). France alone seems to have confiscated vessels seized during a pacific blockade; e.g., in 1838 (blockade of Mexican ports, although war ensued) and in 1845 (blockade of Rio de la Plata). Ibid. 4 Sweden declared a blockade on April 4,1814, and Great Britain on April 29, 1814. War broke out between Norway and Sweden in July, 1814, but a state of war between Great Britain and Norway was never admitted. Nils Söderquist, Le Blocus Maritime, p. 60 (1908). Textbooks generally refer to the blockade of Turkey (coasts of Greece) by the combined fleets of France, Great Britain, and Russia in 1827 as the first instance. See Giraud, op. cit., p. 842, n. 3; Holland, Studies, p. 130. 6 These are analyzed by Falcke, op. cit., pp. 9-224; see also A. E. Hogan, Pacific Blockade, pp. 73-158 (1908). 6 (a) French blockade of Mexican ports, 1838; (6) French blockade of Rio de la Plata (Argentine), 1839-1840; (c) Chilean blockade of Bolivia, 2

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to compel reparation for wrongs amounting to international delinquencies and these may, therefore, be regarded as reprisals.1 The history of the practice indicates that it has been employed mainly by major powers against small or weak states. Strong maritime powers have not been slow to use their strategic advantages in applying pacific blockades,2 while small powers have rarely had recourse 1879; (d) French blockade of Formosa, 1884-1885. It is doubtful if the Sardinian blockade of Malta and Messina in 1860-1861 ever was pacific in intent; the joint blockade of Venezuela by Great Britain, Germany, and Italy resulted in an anomalous status which was never clearly determined. McNair, "The Legal Meaning of War," op. cit., p. 37; Hogan, op. cit., pp. 73-76; Falcke, op. cit., p. 229; Holland, Studies, pp. 135-136; Giraud, op. cit., p. 841, n. 2. 1 (a) French blockade of Portugal, 1831. Br. and For. St. Papers, 1831, p. 341 et seq.; (δ) British blockade of New Grenada, 1837. Ibid., 1837-1838, p. 128 et seq. ;

(c) French blockade of Mexican ports, 1838. Ibid., 1837-1838, pp. 725, 1099; (d) French blockade of Rio de la Plata, 1839-1840. Ibid., 1840-1841, p. 1089; (e) British and French blockade of Rio de la Plata, 1845-1848. Ibid., 1845-1846, p. 1266; (J) British blockade of Greece, 1850. Ibid., 1849-1850, ι, 16, and Hansard, Debates (3rd series), cxi, 795, 1293, and cxn, 102, 228, 609 (1850); (g) British blockade of Brazil, 1862. Br. and For. St. Papers, 18631864, p. 544; (A) French blockade of Formosa, 1884. Ibid., 1883-1884, p. 494; (i) French blockade of Menam (Siam), 1893. Ibid., 1894-1895, pp. 351-353. See also, Falcke, op. cit., p. 229 et seq.; Giraud, op. cit., p. 841, n. 2, and p. 842, n. 3; Holland, Studies, pp. 130-136. The remaining instances of pacific blockade are mainly examples of intervention for political or allegedly humanitarian purposes. See Falcke, op. cit., passim; Hogan, op. cit., passim. 2 Active participation has been distributed as follows: France, 13; Great Britain, 13; Italy, 6; Germany, 4; Russia, 4; Austria-Hungary, S. Cf. Giraud, op. cit., p. 841, n. 2; Falcke, op. cit., passim; both writers omit the British blockade of Norway in 1814. In many cases a single blockade was enforced by several powers.

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to them. Thus far there has been no serious attempt to enforce a pacific blockade against a powerful state.2 Embargo and pacific blockade are both measures intended to exert pressure on an offending state primarily by interrupting its trade. But while embargo is limited to action taken within the jurisdiction of the enforcing state, pacific blockade includes measures taken on the high seas or within the jurisdiction of the offending state. Thus a pacific blockade is in effect an extended application of embargo. Enforcement of pacific blockades has raised difficult problems in international law, especially when states have attempted to apply the blockade measures to vessels of third states. If the blockade is confined to vessels of the states directly involved in controversy it is rarely likely to be effective under modern conditions. But the application against an offending state of a combined pacific blockade and embargo by, or with the active cooperation of, practically all states would constitute a formidable weapon. Article 16 of the Covenant of the League of Nations envisaged such action but uncertainty as to the attitude of the United States and Russia has rendered this coercive sanction of the Covenant impracticable.3 1 Chile undertook a pacific blockade of Bolivia in 1879; Portugal joined Great Britain, Germany, and Italy in a pacific blockade of Zanzibar in 1888. See Br. and For. St. Papers, 1888-1889, p. 87 et seq.; Annual Register, 1879, p. 303 et seq. 2 Pacific blockades have been enforced three times against Turkey; twice against Argentine and Greece; once against Portugal, Montenegro, Brazil, Uruguay, Nicaragua, New Grenada, Mexico, Bolivia, China (Formosa), Zanzibar, Siam, Crete, Venezuela, and Albania. Falcke, op. cit., pp. 231-244. 3 The legal problems raised by the application of pacific blockade are discussed in Chapter V, infra; the problems raised by the possible application of a League blockade are discussed in Chapter VIII, infra.

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U S E OF M I L I T A R Y A N D N A V A L F O B C E

The use of military or naval force against an offending state to compel recognition of alleged international obligations has been a frequent practice of powerful states. From 1813 to 1899 United States military or naval landing forces were employed on at least forty-six occasions to protect American citizens abroad.1 In practically every instance the use of landing forces was deemed necessary to protect the rights or interests of United States citizens endangered by disordered local conditions in Latin American countries or in countries whose governments denied responsibility for the protection of aliens.2 Such operations have ranged from mere pursuit of marauding bands to extensive military occupation of territory by several thousand troops.3 Whether the measures used were taken to prevent impending injury or to secure reparation for wrongs already committed they were defended as a necessary ultimate means of enforcing international obligations. The use of military or naval force to seek redress for a specific grievance or to afford protection to endangered citizens may be regarded as a measure of reprisal. As commander in chief of the United States Army and Navy the President is empowered to use the military and naval forces for the protection of American nationals abroad; the power of Congress to declare war is not 1 This number is analyzed by Milton Offutt, Protection of Citizens Abroad by the Armed Forces of the United States, chs. n and hi (1928). From 1900 to 1927 landing forces were employed by the United States on at least twentyfour occasions for the same purpose. Ibid., ch. iv. Many of these were insignificant. 1 Ibid., p. 1. ' Ibid.

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encroached upon by use of such forces in time of peace. United States naval commanders are supplied with general orders which include instructions bearing on the use of force under particular circumstances in time of peace.1 In such circumstances much is left to the discretion of naval officers, but it is notable that "only once 1 "On occasions where injury to the United States or to the citizens thereof is committed or threatened, in violation of the principles of international law or treaty rights, the commander in chief shall consult with the diplomatic representative or consul of the United States, and take such steps as the gravity of the case demands, reporting immediately to the Secretary of the Navy all the facts. The responsibility for any action taken by a naval force, however, rests wholly upon the commanding officer thereof. "The use of force against a foreign and friendly state, or against anyone within the territories thereof, is illegal. The right of self-preservation, however, is a right which belongs to States as well as to individuals, and in the case of States it includes the protection of the State, its honor, and its possessions, and the lives and property of its citizens against arbitrary violence, actual or impending, whereby the State or its citizens may suffer irreparable injury. The conditions calling for the application of the right of self-preservation cannot be defined beforehand, but must be left to the sound judgment of responsible officers, who are to perform their duties in this respect with all possible care and forbearance. In no case shall force be exercised in time of peace otherwise than as an application of the right of self-preservation as above defined. It must be used only as a last resort, and then only to the extent which is absolutely necessary to accomplish the end required. It can never be exercised with a view to inflicting punishment for acts already committed. "Whenever, in the application of the above-mentioned principles, it shall become necessary to land an armed force in foreign territory on occasions of political disturbance where the local authorities are unable to give adequate protection to life and property, the assent of such authorities, or some one of them, shall first be obtained, if it can be done without prejudice to the interests involved." Regulations for the Government of the Navy of the United States, pars. 1646, 1647, 1648 (1913). Under such circumstances American naval officers are expected to cooperate with American diplomatic representatives but not to take orders from them. In 1890, as the result of the Barrundia affair, the commander of a United States war vessel was relieved of his command for taking action which was in accordance with the wishes of the local American Minister but which did not meet with the approval of the Department of Navy. Foreign Relations, 1890, pp. 123, 133-142; Moore, Digest, n, 871-878; Chester, op. cit., p. 445.

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has the United States government refused its approval when that decision has led to the use of the armed forces of this country for the protection of its citizens abroad." 1 Frequently the landing of military or naval forces has resulted in a temporary occupation of territory or seizure of strategic posts. Since the end of the last century military occupation has been more frequently exercised as a measure of reprisal than pacific blockade.2 Often seizure of local custom-houses and control of customs revenue have been the immediate objective of landing 1 Offut, op. cit., pp. 8, 14. The instance referred to was the result of Commodore Porter's landing at Porto Rico in 1824. Ibid. 2 Prior to 1895 the last extensive occupation undertaken as a measure of reprisal was that commenced by Great Britain, France, and Spain in 1861, when a joint naval force seized Vera Cruz, Mexico. In April, 1862, Great Britain and Spain withdrew their forces, while the French troops continued on their way to Mexico City and a virtual conquest far beyond the original aim. Moore, Digest, vi, 483-488; Frederick Bancroft, Life of William H. Seward, n, 421-424 (1900). The following are examples of military occupation undertaken as measures of reprisal since 1895 : (а) British occupation of Corinto (Nicaragua), 1895. Foreign Relations, 1895, pt. II, pp. 1030-1034; (б) French occupation of Mytilene (Turkey), 1901. Ibid., 1901, pp. 529-530; M . Moncharville, " L e Conflit franco-turq de 1901," R. G. D. I. P., ix, 677-700 (1902); (c) Joint occupation of Mytilene, 1905. A. Rougier, "L'Intervention de L'Europe," R. G. D. I. P., xm, 178-200 (1906); (d) United States occupation of Vera Cruz (Mexico), 1914. Foreign Relations, 1914, pp. 443-904; (e) Allied occupation of Greek Islands, 1915-1916, including a pacific blockade. T . P. Ion, " T h e Hellenic Crisis," A. J. I. L., xii, 571575, 796-812 (1918); (J) French and Belgian occupation of the Ruhr, 1923. A. D. McNair, " T h e Legality of the Occupation of the Ruhr," Br. Yearbook, 1924, pp. 17-30; F. Allemés and E. J. Schuster, " T h e Legality or Illegality of the Ruhr Occupation," Transactions of the Grotius Society, χ, 61-68 (1925); E. J. Schuster, " T h e Question as to the Legality of the Ruhr Occupation," A. J. I. L., xvni, 407-418 (1924).

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forces.1

Control of such revenue offers a state seeking to press pecuniary claims immediate means of obtaining satisfaction as well as opportunity to bring direct pressure upon governmental authorities. In many cases it has been impossible to secure reparation from small insolvent states by any other means.2 Destruction of lives and property by resort to bombardment is an extreme measure. Serious threat of bombardment, while merely displaying the means, has usually been sufficient to constrain defaulting states. In 1853, however, a United States war vessel bombarded and practically annihilated Greytown, Nicaragua, as a measure of reprisal.3 The United States had repeatedly complained to the government of Nicaragua concerning outrages and depredations committed upon the persons and property of American citizens in that town. It was emphasized that failure or inability of the Nicaraguan government to give adequate protection to American interests there did not relieve that government of ultimate responsibility or the residents of Greytown of immediate liability for injuries or losses sustained by American citizens there. The measures finally adopted by the United States were more drastic than the occasion justified.4 In defending them President Pierce re1 For example, Corinto (1895), Mytilene (1901 and 1905), and Vera Cruz (1861 and 1914). See sources cited, n. 2, p. 77. 2 In his annual message of December 5, 1905, President Roosevelt in effect proposed to establish the United States as receiver in the collection of debts owed to European powers by insolvent or recalcitrant American Republics. Foreign Relations, 1905, pp. xxxiv-xxxv. 3 Senate Exec. Doc., 33rd Cong., 1st Sess., vol. 4, No. 8; ibid., vol. 12, No. 85; ibid., 35th Cong., 1st Sess., Doc. No. 9. 4 The climax of a series of attacks on American citizens and property was an assault on Mr. Borland, the United States Minister to Central America. The United States Commercial Agent at Greytown vainly demanded repara-

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f erred to Grey town as "a marauding establishment too dangerous to be disregarded and too guilty to pass unpunished, and yet incapable of being treated in any other way than as a piratical resort of outlaws. . . . " 1 The action was doubtless intended to discourage future recurrences of such offenses but the thoroughness of the destruction was a drastic punishment for past affronts. In 1923 an Italian fleet bombarded and occupied the Greek island of Corfu as a measure of reprisal.2 This tion and apologies from the local authorities. Captain Hollins of the United States vessel Cyane delivered an ultimatum, July 12, 1854, demanding immediate payment of an indemnity ($24,000) and suitable apologies. This was ignored by local authorities and on the following day, after public notice, the town was twice bombarded; a landing party completed its destruction. No lives were lost but the property damage was great. France, Bremen, and Nicaragua pressed claims in behalf of their nationals but these were emphatically rejected by the United States. Great Britain recognized the validity and justification of the measures taken by Captain Hollins and refused to press claims of her nationals against the United States. Hansard, Debates (3rd series), CXLVI, 35, 1046 (1857); 46 Br. and For. St. Papers, pp. 859-888 (1855); 47 ibid., pp. 1004-1038 (1856); Perrin v. United States, 4 Ct. of CI. 543 (1868) ; also sources cited, n. 3, p. 78. 1 Annual Message, December 4, 1854, Richardson, Messages, v, 282-284. 2 The facts of the Corfu affair are as follows: "August 27 (1923) the Italian General Tellini, President of the Commission for the Delimitation of the Albanian Frontiers, and four members of his suite, were murdered at Janina; August 29, ultimatum presented to Greece by Italy; August 30, Greece replied, refusing to comply with certain of the demands; August 31, Italian fleet (bombarded and) occupied Corfu; September 1, Greece submitted question to the League of Nations; September 6, Note containing points for discussion sent by League to Conference of Ambassadors; September 7, Note containing terms sent by Conference of Ambassadors to Greece, accepted by Greece September 10; September 14, Conference of Ambassadors fixed September 27 as time limit for occupation of Corfu; September 26, Conference of Ambassadors decided that certain conditions of their Note of September 7 had not been fulfilled by Greece, and that Greece should pay whole indemnity of 50,000,000 lire claimed by Italy; September 29, Corfu evacuated." Br. Yearbook, 1924, p. 251, as quoted in McNair, "The Legal Meaning of War," op. cit., p. 42. The bombardment resulted in the death of some seventy civilians; in the subsequent occupation Italian forces took control of the police prefecture, customs, and telegraphic and postal services in

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action raised important questions as to the compatibility of reprisals with obligations assumed by states members of the League of Nations. Both the bombardment and the occupation were defended by Italy before the Council of the League as "moderate" reprisals in accordance with international law and international practice.1 The latest example of military occupation as an alleged reprisal to secure recognition of international obligations is the Japanese occupation of 200,000 square miles of Chinese territory in Manchuria during the last three months of 1931. Although many thousands of troops, Chinese and Japanese, were engaged in battle for several weeks, both governments denied the existence of war in the legal sense. Japan defended her actions before the Council of the League as measures of reprisal and self-defense short of war. Her delegate continually referred to the exercise of similar measures, even since the creation of the League, by major European powers. The failure of both the Council and the Assembly to do more than make a number of "recommendations" and appoint an investigating commission must be taken as evidence of their recognition of the the town of Corfu. F. L. Jones, "Military Occupation of Alien Territory in Time of Peace," Transactions of the Grotius Society, ix, 158 (1924); see also Hans Wehberg, "Le Protocole de Genève," Recueil des Cours, vu, 37 (1925); Karl Strupp, "L'Incident de Janina entre la Grèce et l'Italie," R. G. D. I. P., XXXI, pp. 255-256, 274-275 (1924); McNair, "The Legal Meaning of War," op. cit., p. 42. 1 Official Journal, 1923, p. 1314. The French bombardment of Damascus (Syria) in 1925, as a result of which some 5000 persons were killed and property damaged in the amount of over four million dollars, was regarded by France as a police measure to subdue local insurrection. The status of Syria as a mandated territory of France complicated matters considerably. Quincy Wright, "The Bombardment of Damascus," A. J. I. Ζ . , χ χ , 264-274, (1926).

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absence of "war" which would involve the operation of Article 16.1 SUMMARY

The scope and variety of coercive measures short of war — display of force, embargo, pacific blockade, landing forces, military occupation, and bombardment — have been described to show that states have frequently used force in their relations with each other without recourse to war. So far as these measures have been used as reprisals, that is, to compel fulfillment of international obligations, they may be regarded as attempts to enforce international law and order.2 These measures have long been the ultimate means, short of war, of 1

The compatibility of coercive measures of self-help short of war with the obligations assumed under the Covenant of the League of Nations is the subject of Chapter VII, infra. The Japanese occupation of Manchuria revives this problem, raised earlier by the Italian occupation of Corfu in 1923 and left unanswered at that time. For detailed study of the use of military and naval forces in the absence of a state of war, see: Raymond Robin, Des Occupations Militaires en dehors des Occupations de Guerre (1913) ; J. Reuben Clark, Right to Protect Citizens by Landing Forces (rev. ed., 1929), Memorandum of the Solicitor of the United States Department of State. 2 No attempt is made here to study the use of such measures for other purposes. A state may resort to similar coercive measures short of war in order merely to impose its will upon a weaker state. The use of force for such political ends must be regarded as intervention. Properly defined, intervention is "the interference by a State in the domestic or foreign affairs of another in opposition to its will and serving by design or implication to impair its political independence." Hyde, International Law, i, 117. Concisely, coercive measures short of war may be intended (a) to enforce international law or rights under international law, in which case they are measures of reprisal, or (b) to enforce national policy without regard to international rights and duties, in which case they are measures of intervention. Confusion arises if it is attempted to distinguish reprisals and intervention on the basis of the method adopted by the active state. The basis of distinction should be purpose, legal or political, rather than method.

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enforcing international obligations. They are self-help methods; their application is usually arbitrary and limited in practice to the coercion of small or weak states. Only in a very primitive stage of law can such self-help sanctions be tolerated. Their exercise permits the confusion of law and vengeance, evades impartial judgment, and retards the free development of an international legal system. The continuation of state selfhelp in modern international law is as much an anachronism as private vengeance in the legal relations of individuals. The enforcement of international law is no longer a concern merely of states involved in controversy. The ever widening scope of international interdependence growing out of trade expansion and increased mobility of capital has made it impossible to confine to one community the adverse effects of coercive measures. It is difficult to conceive of an effective maritime blockade which would not affect non-participating states. Protests of non-participating states have, in the past, served to limit the scope and the efficacy of peace time coercive measures. Doubtless third states will continue to insist upon the full measure of their international rights if similar occasions arise. Article 16 of the Covenant of the League of Nations envisages the application of peace time coercive measures as sanctions of international order, and more recent plans for the enforcement of multipartite treaty obligations include similar sanctions. These plans must recognize the possibility that some states will not participate in the application of such measures. It is important, therefore, to study

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the relation of these measures to the system of international law which must be presumed to determine the rights and duties, during the application of international sanctions, of states not bound by treaty to cooperate in making such sanctions effective.

CHAPTER V INTERNATIONAL LAW A N D STATE

SELF-HELP

THE Italian occupation in 1923 of the Greek island of Corfu raised two fundamental questions in connection with reprisals: Are coercive state self-help measures short of war ever "legal" in the sense that their use is compatible with existing international law? Are such measures consistent with the terms of the Covenant of the League of Nations? 1 The Italian member of the Council vigorously asserted that jurists and statesmen had long recognized the legality in international law of reprisals and that the Covenant did not forbid their use or render their exercise illegal in all circumstances.2 These questions remained unanswered, although a special committee of jurists gave them careful study. In the fall of 1931 the Japanese member of the Council presented a similar vindication of the occupation and virtual conquest of Manchuria by Japan. It must be evident that these issues require definitive solution if practical progress in the advancement of peace is to be made. The first question must be studied before the second can properly be answered. 1 Cf. Ν. Politis, "Les Représailles entre Etats Membres de la Société des Nations," R. G. D. I. P., xxxi, 5 (1924). 1 "It must not be thought that the Covenant of the League of Nations forbids these peaceful measures of repression. I may add that in its Preamble the principles of international law are expressly recognized. Among these principles is the right of peaceful reprisals and of occupation as a measure of guarantee. These reprisals are, therefore, legitimate." Official Journal, 1923, p. 1314.

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The relation of reprisals to international law may be briefly stated. Measures of force short of war were constantly employed during the nineteenth century and were justified as reprisals. After a century of practice the validity of such measures was recognized as part of customary international law. States which employed reprisals attempted also to defend them as necessary ultimate sanctions, short of war, for the enforcement of international rights. Finally, the practice of reprisals received some support from vague theoretical concepts such as the rights of existence, self-defense, and independence. Thus custom, necessity, and fundamental right were appealed to in order to justify continued resort to state self-help in time of peace. Little thought was given by jurists to the possibility that new conditions of international life might render custom obsolete and devoid of practical justification, that new and more effective means of enforcing law might be found, and that fundamental rights are conditioned always upon fundamental duties. I t must be admitted that the modern law of nations rests chiefly on the custom and practice of states during the past three centuries.1 Principles of jurisprudence have been developed by jurists and accepted by statesmen, but these principles have too often merely rationalized past practice. The increase in number and scope, toward the end of the last century, of multilateral lawmaking agreements was a tacit recognition of the inadequacy of a legal system based largely on custom and usage.2 In the modern world usage frequently becomes obsolete before it is recognized as custom. Neverthe1

Hudson, International Legislation, i, xiii.

2

Ibid.

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less, statesmen and jurists have constantly reverted to precedent to establish the legality of reprisals. There is no argument which can disprove the facts of history, and a state which bases its rules of conduct on custom alone appeals to inflexible standards. But the moment an attempt is made to rationalize standards of conduct founded chiefly on practice an issue is opened to reason. So far as statesmen maintained, as they did maintain during the nineteenth century, that reprisals were justified because there was no other effective way of enforcing international law, they argued in good point. In the absence of international organization there was indeed no alternative save supine acquiescence in chronic violation of international law and order. Perhaps the progress of international organization in the past decade has rendered that plea of justification inapplicable. So long and so far as it was tenable the international community had to confess a primitive stage of development. If the right to exercise reprisals is to be derived from elementary concepts, such as the right of self-defense or the right to exist, it is almost futile to discuss limitations, for such concepts are intrinsically indeterminate. Selfdefense in the case of the individual presents no suitable analogy, but even there physical injury inflicted in selfdefense is prima facie unlawful.1 Whereas the individual must enter and prove his plea, the state labors under no such necessity. Nineteenth century writers did well to 1 If it can be proved that the force used is limited to defense, is necessary, and is proportionate to the injury threatened, the defendant may be exonerated. A. O. Dicey, Law of the Constitution (8th ed.), p. 489 et seq. (1915); Halsbury, Laws of England, ES, 586-587 (1909); Francis Wharton, Criminal Law (9th ed.), Nos. 484-487 (1885); ibid., Homicide, Nos. 480-532; German Criminal Code, sec. 53; German Civil Code, Arts. 226-230; French Penal Code, Arts. 328-329.

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eschew specious theoretical arguments in favor of more plausible justifications, for theories of state independence, self-defense, and existence, as well as principles of jurisprudence, may be used logically to prove or to disprove the existence of a right to use force. I t was far more logical to plead the actual facts of state existence — the recurrence of international delinquency and the absence of positive means of enforcing international obligations other than state self-help.1 During the nineteenth century, when the compulsive settlement of international differences was regarded as almost inevitable, certain practical considerations were often invoked to vindicate resort to reprisals as against resort to war and therefore to justify their recognition in international law. I t was stated that reprisals, being limited in scope, were less likely than war seriously to affect international relations.2 Holland regarded the limited scope of reprisals as an advantage over the licentia laedendi of war sufficient to offset the fact that reprisals are applicable, in practice at least, chiefly to weak or small powers.3 During the exercise of reprisals the door to direct negotiation between participants remains open, since diplomatic relations usually are not severed. Imposition of a punitive treaty of peace is avoided, because the price of restoration of amicable relations is limited 1 Even the mediaeval jurists, prone as they were to elaborate theoretical and moral considerations, emphasized the practical necessity for existence of self-help methods. Bartolus, op. cit., p. 328; also, on early writers, Grotius, op. cit., vol. n, bk. i, ch. 3, sec. 2; bk. m, ch. 2, sec. 4; Vattel, op. cit., vol. m, bk. Ii, sec. 343. 2 Giraud, op. cit., p. 843; Hall, op. cit., p. 434; T. E. Holland, Letters to

the Times Upon War and Neutrality

(3rd ed.), p. 14 (1921); Cobbett, Cases,

ι, 350-351; Oppenheim, op. cit., ii, 40-41; Vattel, op. cit., vol. HI, bk. π, sec. 354. ® Holland, Letters, p. 14.

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to redress of the original grievance and does not, as is true in case of resort to war, advance with time. 1 Again, resort to reprisals does not terminate existing treaties, does not affect private interests beyond the scene of operations, and raises no questions of neutral rights and duties. These considerations are adequate, perhaps, to justify recourse to force short of war as against recourse to war. So long as it was impossible to conceive of the complete elimination of self-help in international relations these were weighty points and doubtless they aided in the general recognition of a right of reprisals. The necessary and immediate cause for the exercise of reprisals is generally found in the existence, real or alleged, of international delinquency.2 This phrase, meaning any deviation from accepted standards or rules of international conduct, has a broader connotation than the older term "denial of justice." 3 The determination 1

Giraud, op. cit., p. 843; Cobbett, Cases, I, 350-351; Holland, Letters, p. 14; Oppenheim, op. cit., π, 40-41; French Council of Ministers, Journal Officiel, November, 1884, p. 2487 et seq. This is not always true of reprisals. Before the French seized the custom-house of Mitylene (Turkey) in 1901, M. Delcassé indicated that subsequent measures would increase in stringency in direct proportion to the delay in satisfying French claims. As the Sultan postponed settlement the monetary claims increased. M. Delcassé explained that the "moral" stakes advanced with the delay. Moncharville, op. cit., pp. 677-700. 2 Henry Wheaton, Elements of International Law (Lawrence ed.), p. 506, (1863); G. F. de Martens, Précis du Droit des Gens Moderne de L'Europe, il, 187-188 (1864); Phillimore, op. cit., ni, 24; Hyde, International Law, il, 174; Charles de Visscher, "La Responsabilité des Etats," Bibliotheca Visseriana, n, 109 (1924). 3 "Denial of justice" refers particularly to the failure of a state, through any department or agency, "to observe, with respect to an alien, any duty imposed by international law or by treaty with his country." Hyde, International Law, ι, 491. This phrase has been in constant use in treaties since the end of the eighteenth century. Ortolan, op. cit., ι, 400; United StatesSalvador, 1870, 18(3) Stat, at L. 725; United States-Peru, 1870, ibid., 18(3): 698; United States-Mexico, 1882, ibid., 22: 934; United States-Peru, 1887,

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of what acts or omissions constitute international delinquency has rested with the claimant state. While international law has supplied some criteria, the ultimate tests have been ex parte and subjective. 1 International delinquency is most manifest in connection with failure to comply with treaty obligations. Resort to reprisals has uniformly been justified by jurists in such cases, provided available amicable means of securing redress or recognition have been tried.2 Individual claims based on denial of justice have less and less been the cause of reprisals.3 Affront to national dignity has often been regarded as equivalent to international delinquency and made the cause of reprisals.4 The practice of reprisals gives rise to many difficult questions in a world of states which rapidly approaches economic unity. The existence of war in almost any ibid,., 25:1444; United States-Mexico, 1890, United States Treaty Series, No. 233; ibid., 1896, No. 237; United States-Dominican Republic, 1924, 44 Stat, at L. 2193; Multilateral Treaty (Trademarks), ibid., 46: 2907. Actually, most examples of the use of reprisals involve a denial of justice but the more inclusive term, international delinquency, better expresses the basis of modern reprisals. 1 In many international controversies it is difficult to assign delinquency wholly to one side. One is reminded of Westlake's reference to the test of a "just" war. If justice is anywhere to be located in connection with war it is likely to be " a space possessing breadth, within which room may be found for each party though one is more just than the other." International Law, il, 3. 2 Oppenheim, op. cit., Ii, 45; Martens, Précis du Droit, ii, 187-188; Bluntschli, op. cit., pp. 261, 285; Fiore, op. cit., ii, 661-662, 667. Fiore, p. 667, goes so far as to contend that reprisals are justified only when used to protect rights based on treaty. ® Hyde, International Law, I, 491-496. Claims commissions settle an increasingly large number of such cases. 4 Oppenheim, op. cit., II, 45; e.g., arrest of a boat's crew of the U. S. S. Dolphin at Tampico, Mexico, April 9, 1914; insulting treatment of officers of H. M. S. Forte in Brazil, 1861; attack by Paraguayan forts on U. S. S. Water Witch, February 1,1855; assault on United States Minister Borland, Greytown, Nicaragua, 1853,

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part of the world is likely to affect rights and duties of states other than the belligerents. It is important, therefore, to have a'clear-cut line between peace and war. The normal condition of interstate relations is that of peace, and it has long been assumed that any interruption of peace introduces a condition of war. Grotius was careful to point out that war is not a series of acts but a status of interstate relations and that there are but two possible conditions in interstate relations, namely, peace and war. In his view there is no intermediate status.1 The existence of a state of war may be indicated by the issuance of a formal declaration of war or by hostile acts. A few wars have been initiated by formal declarations, but since 1700 war has most often been initiated by resort to overt hostile acts.2 The practice of issuing declarations was not generally followed during the eighteenth and nineteenth centuries, so that the commencement of a legal status of war had to be determined by the nature of the acts of the parties. When reprisals take the form of occupation of territory, pacific blockade, or bombardment they are unquestionably warlike but, it is generally contended, they are not therefore necessarily associated with a state of war. So long as neither party intends, by its participation in reprisals, to be at war there is no state of war in the legal sense. What then are the relations of states directly involved in such measures? Is the absence of war in the legal sense peace? Legal contradictions are certain to arise when states, using warlike measures in time of 1

Grotius, op. cit., vol. il, bk. i, ch. 1, sec. 2; "Inter bellum et pacem nihil est medium," bk. in, ch. 21, sec. 1, citing Cicero. 1 Wilson, Handbook, p. 240.

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peace, insist on belligerent rights but deny belligerent duties.1 It has been suggested that a "state of reprisals" or quasi-war, intermediate between peace and war, should be deduced from the occurrence of measures of reprisal just as a state of war has long been determined by the existence of acts of war undertaken with belligerent intent.2 It is doubtful if recognition of such a status would help to solve the problems connected with the practice of reprisals. In any event, it is true that measures of reprisal have been associated with a state of peace, although enforcing states have occasionally claimed rights properly exercisable only in time of war.3 1

Such rights and duties, arising only in time of war, are the subject of many international agreements. See, e.g., the Hague Conventions, Covenant of the League of Nations, and the Locarno treaties. McNair, "The Legal Meaning of War," op. cit., pp. 29-30. 2 Francis Wharton, A Digest of International Law, HI, 230 (1887); Le Moine, op. cit., p. 100. "Nations are not necessarily either at war or else at peace. There is a well-established intermediate condition known as 'reprisals'." The Schooner Endeavor, 44 Ct. of Claims 242, Argument, pp. 248, 250 (1909). Justice Washington referred to the status of Franco-American relations in 1798 as "imperfect" but still public war and not peace, nor distinguishable from perfect war other than by the fact that hostile acts were limited in scope by "commissions." Bas v. Tingy, 4 Dall. 37, 40 (1800). In the case of Gray, Administrator v. United States, 21 Ct. of CI. 340 (1886), the court indicated that: "No such war existed as operated to abrogate treaties, to suspend private rights, or to authorize indiscriminate seizures and condemnations; that, in short, there was no public general war, but limited war in its nature similar to a prolonged series of reprisals." p. 375. Holland refers to the situation growing out of the British measures of coercion against Venezuela prior to December 20, 1902, as "war svb modo" and to Venezuela as the "quasi enemy." However, he believed that the status became that of de jure war as a result of the proclamation of blockade, December 20, 1902. Holland, "War Sub Modo," op. cit., p. 133; Holland, Letters, p. 12. s Giraud, op. cit., pp. 843-844; also Politis, "Les Représailles," op. cU., p. 9; J. Basdevant, "L'Action Coercitive Anglo-Germano-Italienne Contre le Vénézuila {1902-1903)," R. G. D. I. P., xi, 422 (1904).

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Since warlike acts do not, under prevailing international law, necessarily produce a state of war it is important to examine the criteria by which the use of force in time of peace has been differentiated from war. These criteria have included reference to the nature and scope of the measures of force used, degree of resistance of the offending state, and intention of the coercing state. I t is obviously futile to attempt to distinguish between belligerent and non-belligerent use of force by examining the scope and character of the measures employed. The objective or physical character of a maritime blockade or military occupation varies little whether these measures are belligerent or non-belligerent so far as the states directly involved are concerned.1 Those measures of force which have been applied as reprisals against small powers would doubtless have been accepted as casi belli had they been applied to major powers. There is no logical basis for the contention that a bombardment or a blockade is non-belligerent until a certain degree of efficiency has been reached, when it assumes a belligerent character. 2 Probably more casu1 "There may, therefore, be a state of war without the use of force or after the use of force has ceased, or there may be the use of force without a state of war. The physical results of the use of force may be the same in all cases, but the legal results are clearly distinguished." George Grafton Wilson, "Use of Force and War," A. J. I. L., xxvi, 328 (1932). 2 Despagnet, op. cit., p. 783; Politis, "Les Représailles," op. cit., pp. 10-11; Westlake, International Law, π, 12; G. F . de Martens, A Compendium of the Law of Nations (Cobbett), p. 277 (1802). Holland dated the existence of a state of war between Great Britain and Venezuela from December 20, 1902, when a blockade of the coasts of Venezuela was proclaimed, "applicable to vessels of 'neutral' powers as well as others." Apparently he determined the moment of transition from reprisals to war by the nature and scope of the acts, especially by the fact that third powers were affected. " W a r Sub Modo," op. cit., pp. 133-135. However, prior to the blockade proclamation the forts of Puerto-Cabello had been bombarded. Basdevant, op. cit.,

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alties and a greater variety of military actions occurred in the course of the Japanese peace-time invasion of Manchuria and Shanghai in 1931-1932 than in many petty Balkan de jure wars. If a state which is being subjected to reprisals offers active resistance a difficult situation arises. Usually resistance has not been made, because in practice reprisals have been directed against states which find resistance of no avail. However, within the past year Chinese forces opposed Japanese armies in Manchuria and around Shanghai, but a state of war was never recognized. If active resistance is maintained over an extended period, and the interests of third states are affected as a result of the use of force, the contestants are likely to meet with pressure from these "neutral" powers.1 If the application of reprisals were met by a formal declaration of war it would be difficult to avoid the conclusion that a state of war ought to prevail so far as third states are concerned.2 p. 418. The British Government did not admit a state of war until three weeks after the blockade was proclaimed. Hansard, Debates (4th series), cxvi, 1489 et seq.; Basdevant, op. cit., p. 414, n. 3; Br. and For. St. Pa-pers, xcvi, 481 (1903) ; Lansdowne Dispatch, January 13, 1903. 1 Great Britain compelled France to declare the latter's "pacific" blockade of Formosa in 1884 a war blockade. Br. and. For. St. Papers, 1883-1884, p. 494. In 1903, as a result of protests of the United States, Great Britain and Germany recognized that the "pacific" blockade of Venezuelan ports had ipso facto created a state of war between Venezuela and Great Britain and Germany. Br. and For. St. Papers, xcvi, 481 (1903) ; Foreign Relations, 1903, pp. 420-422, 452, 455, 458. 2 The legal effect of a unilateral declaration of war, made by a small or weak state against a powerful state, is uncertain. The Chinese military delegate to the Hague Peace Conference of 1907 was anxious to secure enlightenment, but his questions merely embarrassed the delegates of major powers. Second Commission, 2nd subcommission, 3rd session, July 12; James Brown Scott, Proceedings of the Hague Peace Conferences, m , 169 (1907). The United States in 1914 practically ignored a statement which,

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Whether the animus behind measures of coercion is belligerent or non-belligerent is difficult to determine unless there is strong reason or necessity for the coercing state formally to initiate a state of war. When a powerful state enforces reprisals against a small or weak state there is usually no reason why belligerent intent should be openly avowed. In most cases the coercing state is able successfully to achieve its objective without disrupting the technical state of peace and assuming the burdens and inconveniences which accompany resort to war. Where it is available, the best evidence of belligerent intent is a formal declaration of war. Convention (III) Relative to the Opening of Hostilities, signed at The Hague in 1907, would seem at first glance to clear away many practical difficulties by requiring formal manifestation of belligerent intent before resort to hostile acts.1 The application of this provision is limited, however, for it is operative only in case all belligerents are bound by the Convention.2 Moreover, the term had it come from a major power, would have been regarded as a declaration of war. In handing United States Chargé O'Shaughnessy his passports, April 22, 1914, the Mexican Foreign Minister said: "According to international law, these acts of the armed forces of the United States . . . must be understood as the initiation of war against Mexico." Foreign Relations, 1914, p. 490. The very nature of reprisals has, in the past, rendered it futile for a coerced state to offer resistance or to declare war. If in the future, however, a coerced state regards the use of reprisals as unjustified and feels confident of support, legal and material, from other members of the international community this problem may require a definitive solution. 1 Article 1 reads: "The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war." 36 Stat, at L. 2259. 1 Ibid., p. 2266, Article 3. At the present time thirty-one states have ratified and are bound by this Convention. These include all the major powers. Dept. of State, Bulletin of Treaty Information, No. 4, June, 1929 (corrected to June, 1932), p. 19.

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"hostilities" as used in the Convention properly refers only to acts undertaken with belligerent intent.1 The most that can be said for Article 1 of this Convention, then, is that it requires, where it is operative at all, a formal manifestation of intent to wage war before resort may be had to acts which are intended to be belligerent. It leaves untouched the problem of determining objectively what warlike acts must be regarded as belligerent, unless it is to be assumed that a state of war can never exist between states bound by Convention (III) in the absence of a declaration or ultimatum. If that is a proper conclusion, if a mere plea of absence of declaration or ultimatum legally avoids a state of war, Convention (III) has only widened the gap between law and fact to the legal advantage of aggressive states. As it is now interpreted it merely says that states must not go to war until they unequivocally declare their intention 1 Occasionally it is maintained that Convention (III) in effect forbids all use of armed force, whether or not with belligerent intent, save after explicit warning in the form of a declaration of war or ultimatum. This misconception arises from failure to understand the term "hostilities" in its legal sense as acts undertaken animo belligerendi. The continuing legality of the use of force short of war is to be implied from the fact that Convention (II) specifically limits the use of "armed force" for the recovery of contract debts. 36 Stat, at L. 2241, Article 1. It must be concluded that any interpretation of Article 1 of Convention (III) which involved its application to all use of armed force would render Article 1 of Convention (II) superfluous. While the Hague Conventions are so many separate acts, they form part of a single Final Act of the Peace Conference of 1907; any interpretation which would render one convention superfluous cannot be accepted. Continued legality of armed force short of war follows from application of the interpretative rule that expressio unius est exclusio alterius. Even Westlake, who would have been willing to give the widest possible meaning to the term "hostilities," admitted that it did not include, as used in Convention (III), measures of reprisal; this fact he regarded as a dangerous lacuna. The Collected Papers of John Westlake, pp. 568-571, 590-606 (1914); "Reprisals and War," Law Quarterly Review, xxv, 127-139 (1909). Cf. also McNair, "The Legal Meaning of War," op. cit., p. 40.

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to go to war. This comes dangerously close to being a vicious circle. The occurrence of warlike acts in time of peace is paradoxical and leads to contradictory situations. Execution of such measures is governed by restraining rules of war so far as those rules are deemed applicable by the enforcing state.1 In practice persons have not been detained and private property has rarely been confiscated. Diplomatic relations between the disputant states usually continue; treaties remain in force, and trade, commerce, and communication between the disputant states are allowed to continue.2 In the absence of a state of war there are no neutrals and questions of neutral rights and duties cannot, technically, arise. Actually, however, the status of reprisals in international law has been most often called into question as a result of the uncertain position of third states. Embargo, occupation, and bombardment, even when they have affected the persons or property of nationals of third states, have met with little or no protest, for such measures are not likely seriously to affect national in1 "It is not denied . . . that Congress may authorize . . . partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed." Marshall, C. J., Talbot ». Seeman, 1 Cr. 1, p. 28 (1801). 2 In 1903, after the enforcement of what had originally been a pacific blockade but which had tardily been recognized as a war blockade, Great Britain made provision for confirmation of existing treaties with Venezuela. Br. and For. St. Papers, xcvi, 214 (1903); Cobbett, Cases, I, 358. Basdevant cites Article 7 of the Protocol of February 13,1903, as confirming the former treaties between Great Britain and Venezuela. Op. cit., p. 438. This precautionary measure was taken to remove doubt as to the continued operation of existing treaties after the recognition of a war blockade. It was apparent that the British Government was not at all certain whether there had been a state of war or not. Holland, "War Sub Modo," op. cit., pp. 133135; Basdevant, op. cit., pp. 420-421.

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terests of third states. But enforcement of a blockade, especially if any attempt is made to include vessels of third states, has brought protests from third states where their interests were affected. Many writers question the legality of the practice of pacific blockade even when confined to vessels of the offending state. 1 A few contend that the practice, extended even to include vessels of third states, is or should be recognized in international law.2 Most jurists agree, however, and it is apparent that this view is in accord with fairly uniform practice, that a pacific blockade is legal only when applied to vessels or property of nationals of those states directly involved in controversy.3 Like any other measure of reprisal, pacific blockade is limited in its purposes to the attainment of a specific objective. Those reasons of necessity which have served to justify interference by belligerents with the persons and property of nationals of neutral states 1 L.-B. Hautefeuille, Histoire du Droit Maritime International, p. 374 (1858); Eugène Cauchy, Le Droit Maritime International, ι, 363 (1862); A. de Pistoye et Ch. Duverdy, Traité des Prises Maritimes, ι, 376 (1859); Ludwig Gessner, Le Droit des Neutres Sur Mer, p. 217 (1865); August von Bulmerincq, "Le Blocus Pacifique et ses Effets sur la Propriété Privée," Journal de Droit International Privé, xi, 576 (1884); F. H. Geffcken, "La France en Chine et le Droit International," Rev. de Droit Int., xvii, p. 146 (1885); Baty, op. cit., pp. 290-292. 2 Charles Barés, Le Blocus Pacifique, p. 150 (1898); A. W. Heffter, Le Droit International à l'Europe (3me éd., French), p. 215 (1873); A. Pillet, Les Lois Actuelles de la Guerre (2me éd.), pp. 143-144 (1901); Basdevant, op. cit., pp. 423-425. 3 August von Bulmerincq, "Die Staatsstreitigkeiten und ihre Entscheidung," in Franz von Holtzendorf, Handbuch des Völkerrechts, iv, 124 (1889) ; R. Piédelièvre, Précis de Droit International Public ou Droit des Gens, II, 104 (1895); Le Moine, op. cit., p. 98; Holland, Studies, pp. 141-146; Hall, op. cit., pp. 440-441; Moore, Digest, VII, 135; Wilson, Handbook, p. 234; Naval War College, International Law Situations, 1902, p. 87; Bulmerincq, "Le Blocus Pacifique," op. cit., p. 569; Calvo, Dictionnaire, n, 162; Hershey, Essentials, p. 540; Oppenheim, op. cit., n, 56.

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cannot properly be invoked in the case of limited resort to force in time of peace. In less than one-third of the pacific blockades enforced since 1814 have vessels of third states been declared subject to interference.1 In 1887 the Institute of International Law recognized the legality of pacific blockade subject to certain limitations following established practice.2 It appears now to be well established that enforcement of a pacific blockade does not justify any interference with the vessels of third states. Although the efficacy of such a measure is increasingly dependent upon its application to all means 1 Falcke, op. cit., p. 242. Most of these occasions were previous to 1850 when Great Britain set the example of confining application to vessels of the offending state. Since 1884 no pacific blockade has been enforced against vessels of third states. Great Britain's protest against the declared intention of the French Government to apply the blockade of Formosa in 1884 to all vessels compelled France to recognize a war blockade. Holland, Studies, p. 135. The protests of the United States likewise induced Germany to join with Great Britain in openly avowing the belligerent character of the blockade of Puerto-Cabello and Maracaibo (Venezuela) in 1902. Previously it had been believed, by the United States at least, that these powers intended to apply a pacific blockade to ships of "neutral" powers. Foreign Relations, 1903, pp. 420, 421, 422, 452, 455, 458. The same attitude was indicated by the United States in the case of the blockade of Crete by several powers in 1897. Thereafter no attempt was made or suggested to apply that blockade to vessels of third states. Foreign Relations, 1897, p. 254; Moore, Digest, VII, 138-139. 2 The resolution adopted was as follows: "The establishing of a blockade in the absence of a state of war should not be considered as permissible under the law of nations except under the following conditions: 1. Ships under a foreign flag shall enter freely in spite of the blockade. 2. Pacific blockade must be officially declared and notified, and maintained by a sufficient force. 3. The ships of a blockaded Power which do not respect such a blockade may be sequestrated. When the blockade is over, they shall be restored to their owners together with their cargoes, but without any compensation whatever." 9 Annuaire de l'Institut de Droit International, pp. 300-301 (1888); James Brown Scott, Resolutions of the Institute of International Law, p. 69

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of communication or trade with a blockaded country, there is no reason to believe that enforcing states may count in advance upon gratuitous cooperation from third states. Third states may, of course, renounce established rights but, in the absence of specific renunciation, complete freedom of commerce and trade in time of peace is the principle of international law which must determine the rights of third states during the exercise of reprisals. Even if it be assumed that the constant recurrence of international delinquency during the nineteenth century and the absence of any international machinery to enforce the law of nations gave a semblance of legality to the exercise of reprisals it must be admitted that the practice is peculiarly subject to abuse. States have constantly tended to resort to the use of force for political purposes, thereby divesting their actions of whatever legal justification there may be for the practice of reprisals. In 1834 President Jackson threatened reprisals against France with practically no thought of showing the existence of international delinquency.1 The United States' occupation of Vera Cruz in 1914 was prompted as much by national pride as it was by a desire to repair an injury; the existence of international delinquency on the part of Mexico was only casually mentioned in the (1916). At an earlier meeting (1875) feeling ran so strongly against the practice that it was impossible to adopt a resolution on the subject. See Rev. de Droit Int., VII, 611 (1875). 1 Richardson, Messages, m , 106-107. The President emphasized the "stain upon the national honor" which would follow if France delayed any longer payment of the first installment due to the United States under the Convention of July 4,1831. Only Clay's tact and influence averted a serious clash. See Report of Henry Clay, Chairman of the Committee on Foreign Relations, Senate Doc., vol. 3, No. 40, 23rd Cong., 2nd Sess., 1834-1835.

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course of deliberations preceding the occupation.1 The measures of coercion, including pacific blockade and occupation of territory, executed by the Allied Powers against Greece in 1915 and 1916 have been defended as acts of reprisals,2 but it is difficult fully to justify them as reparation for international delinquency.3 The French Government's defense of the blockade of Formosa in 1884 showed no legal basis for the measures used.4 There has been a tendency, also, on the part of states which have the advantage of physical resources, to use force without exhausting available amicable means of adjusting differences with weaker states. The British measures of reprisal against Greece in 1850 were generally denounced because of the claimant's failure to appeal to local courts and the British Government's failure to appeal first to amicable methods.5 The unfavorable 1 Senator Root tried in vain to have included in the resolution which authorized the President to exercise reprisals a statement of "the only justification" for such measures, namely, " a condition of things in Mexico which absolutely prevents the protection of American life and property. . . . " A. J. I. L., vin, 581-582 (1914). 2 Ion, op. cit., p. 812. 3 The strictly legal basis was Greece's alleged violation of the Protocol of February, 1830, and Article 3 of the Treaty of 1863, guaranteeing a constitutional regime. Ion, op. cit., p. 811. The reason assigned by the Allied Powers, however, was unneutral conduct on the part of the Greek government which, by its surrender of the strategic Roupel fortress to German and Bulgarian forces, had indicated a close sympathy if not an active cooperation with the Central Powers. Ibid,., p. 796. 4 Journal Officiel, November, 1884, p. 2487. 5 I t was admitted that the individual claimant, Pacifico, had not been given adequate police protection, but it was proved that he had not appealed to local judicial authorities for redress. Hansard, Debates (3rd series), cxi, 1314 (1850). It was generally admitted that Greece had not been manifestly guilty of international delinquency and that the reprisals were not justified. Ibid., pp. 1353, 1360; Oppenheim, op. cit., ii, 47; Phillimore, op. cit., m , 41. The House of Lords passed a resolution condemning ("regretting") the use of coercive measures in this instance, while recognizing the "right" to use

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reaction of third states was apparently not ignored, for Great Britain refused to use force in similar circumstances later in the same year.1 The French and Belgian occupation of the Ruhr Valley in 1923 was based upon an interpretation of the terms of the Treaty of Versailles the correctness of which was doubted by Great Britain; it can hardly be said that France exhausted all available amicable means of settling the issue before resort to coercion.2 such measures under certain circumstances. Hansard, Debates (3rd series), cxi, 1321, 1400 (1850). 1 Against Tuscany for losses sustained by British merchants during political riots. F. de Cussy, Phases el Causes Célèbres du Droit Maritime des Nations, n, 509-513 (1856). 2 Germany's default in carrying out her program of wood and coal deliveries to France had been verified by the Reparations Commission. Allemés et Schuster, oj>. cit., pp. 61-68. France based her action squarely on the ground that paragraphs 17 and 18 of Annex 2, Part VIII, of the Treaty of Versailles, conferred a specific right to exercise military reprisals in case of such default. Paragraph 17: " I n case of default by Germany in the performance of any obligation under this part of the present Treaty, the Commission will forthwith give notice of such default to each of the interested powers and make such recommendations as to the action to be taken in consequence of such default as it may think necessary." Paragraph 18: "The measures which the Allied and Associated Powers shall have the right to take, in case of voluntary default by Germany, and which Germany agrees not to regard as acts of war, may include economic and financial prohibitions and reprisals and in general such other measures as the respective Governments may determine to be necessary in the circumstances." McNair, "The Legality of the Occupation of the Ruhr," op. cit., pp. 17-18. In the voluminous discussion of the legality of the Ruhr occupation no serious attempt has been made to justify the measure on grounds other than treaty right. The chief points of discussion have been (a) whether the words "financial and economic" (par. 18) modify and restrict "reprisals" as well as "prohibitions" and (6) whether the words "such other measures," on which Poincaré based military reprisals, are restricted in scope, by the rule of ejusdem generis, to non-coercive measures of a financial or economic character. Ibid., pp. 17-37; Allemés et Schuster, op. cit., pp. 61-87; Schuster, op. cit., pp. 407-418. The British Government apparently did not favor the

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A determined attempt was made in the early years of the present century to secure a general renunciation of the assumed right to use armed force short of war for the recovery of contract debts owed by a state to the nationals of a foreign state. During the second half of the nineteenth century foreign private capital was poured into Latin American countries from Europe and the United States. Frequently contracts were secured from corrupt governments or by fraudulent means. Defaulting debtor states were constantly subjected to various forms of coercion in the collection of debts, and Latin American states generally strongly advocated the necessity of limiting the use of national armed force to compel fulfillment of such obligations.1 Specific proposals to this effect were made by Dr. Drago in his note of December 29, 1902; similar proposals were recommended by the Third Pan-American Congress in 1906.2 A modified form of the Drago Doctrine was finally emview or measures adopted by France. It has been contended that the right to take any measures whatsoever was conferred on Great Britain, France, Italy, and Belgium jointly and that the British dissent estopped action by the other powers. McNair, "The Legality of the Occupation of the Ruhr," op. cit., p. 24. 1 The position generally adhered to by small debtor states was early expressed by Charles Calvo, Le Droit International (3me éd., 1880); Ν. E. Politis, Les Emprunts d'Etats en Droit International (1894); Drago Note, December 29, 1902, Foreign Relations, 1903, pp. 1-5; Luis M. Drago, "State Loans in their Relation to International Policy," A. J. I. L., vol. i, pt. n, p. 699 et seq. (1907). 2 Rio de Janeiro, July-August, 1906. Such a view was expressed at the conference in a note written March 22,1906, by Mr. Root for the Programme Committee and later expressed by him in Buenos Aires. Elihu Root, Speeches in South America, p. 158 (1906). Roosevelt forcefully stated similar views in his Fourth Annual Message, December 6, 1904. Richardson, Messages, x, 802-838; cf. James Brown Scott, The Hague Peace Conferences of 1899 and 1907, vol. ι, ch. 8 (1909); Sir John Fischer Williams, "International Law and International Financial Obligations Arising from Contract," Bibliotheca Visseriana, n, 11-12 (1924) ; Drago, op. cit., pp. 723-724.

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bodied in Convention (II) Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, signed at The Hague in 1907.1 This Convention not only recognizes specifically the validity of the use of armed force to recover, in certain circumstances, contract debts, but it inferentially recognizes the validity of the use of force for all purposes other than those specified. Several small states made reservations or refused to sign the Convention because of the possibility of such an inference.2 Despite its limited success, however, Convention (II) is significant; by limiting the use of "armed force" instead of "war," "aggression," "hostilities," etc., it becomes operative on the basis of an objective and factual test. It does not rest on legal niceties or those subjective and indefinite criteria which have practically vitiated a subsequent peace structure built on less practical foundations. The existence and influence of those rules and standards which determine the legality or illegality of state conduct and which are referred to as international law must be admitted as a fact. It matters little whether 1

Article 1 reads: "The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. "This undertaking is, however, not applicable when the debtor State refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, prevents any 'Compromis' from being agreed on, or, after the arbitration, fails to submit to the award." 36 Stat, at L. 2241. 2 At present twenty-one states are parties to the Convention. These include the United States, France, Germany, Great Britain, and Japan. Only five of the parties, namely, Guatemala, Nicaragua, Panama, El Salvador, and Haiti, are Latin American states. Bulletin of Treaty Information, U. S. Dept. of State, 1929 (corrected to June, 1932), p. 7. Ten states refused to sign the Convention. G. W. Scott, "Hague Convention Restricting the Use of Force to Recover on Contract Claims," A. J. I. L., n, 86-87 (1908).

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they are properly regarded as "law" in the Hobbesian or Austinian sense of that term. The significant fact is that the conduct of states is continually guided by reference to these criteria derived from custom, convention, and juristic principles. It is the constant care of Foreign Offices to ascertain and apply international law.1 Nevertheless, constant disagreement among jurists, not only as to what the law is but also as to what it ought to be, is evidence that international law is often merely an approximation of international justice. If there is uncertainty among jurists, impartial and politically irresponsible as they are, it is not surprising to find that responsible statesmen frequently adopt policies which are regarded as violative of international law. Conflicts of interpretation of international law must be anticipated in international relations and, in the absence of international organization to provide ultimate means of enforcing impartial judgments, the right of states to use force in their own behalf will be retained. It has been pointed out above that this right has found its basis in the actual conditions of state existence. State self-help has been relied upon as an ultimate means of compelling delinquent states to fulfill international obligations. If it be admitted that sanctions are a necessary part of an effective system of international law the relationship between the practice of reprisals and the problem of sanctions is obviously close.2 The problem of providing 1

Leonard S. Woolf (editor), The Framework of a Lasting Peace, p. 15 (1917). 1 The term "sanction" was used in Roman law to signify the penalty or punishment imposed upon those who violated provisions of the law. Justinian, Digest, bk. 48, title 19, sec. 41. Blackstone refers to sanctions as the "vindicatory branch of law, where it is signified what evil or penalty shall

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new sanctions, or penalties for infringement, of international law is a political problem and must be left largely to statesmen. But the compatibility of state self-help with existing international law is a legal problem which is fundamental in any attempt to appraise the value of recent treaties designed to preserve world peace. The post-war peace structure is built on a system of international law in which state self-help played an important rôle as an ultimate sanction. There has always existed general agreement that international law should so appeal to the sense of justice and to the mentality of mankind that external pressure need never be employed, but there has always been disagreement among states as to what is eternally just and reasonable under all conditions. The constant failure during the last century of moral influences as means of vindicating legal rights, even when it was a generally accepted rule of international law which had been violated, left no alternative save the use of force by the plaintiff state. Conciliation commissions were not yet in use, many disputes were not suitable for arbitration, and there was no international tribunal. States were thus compelled to turn to their own material resources and to justify their actions on the basis of practical necessity.1 be incurred by such as commit any public wrongs, and transgress or neglect their duty." Commentaries (4th ed.), ι, 56 (1771). 1 This point of view was vigorously expressed by Roosevelt, Fourth Annual Message, December 6, 1904, Richardson, Messages, x, 802-838; Message, December 5, 1905, Foreign Relations, 1905, p. xxxiv; cf. also Jacques Dumas, Les Sanctions de l'Arbitrage International, pp. 151-215,183, 186 (1905), referring to material sanctions of international arbitration; Charles de Visscher, "L'Interprétation du Pacte au Lendemain du Différend Italo-Grec," Rev. de Droit Int., v, 381-382 (1924); Donald Roxburgh, "The Sanction of International Law," A. J. I. L., xiv, 26, 32 (1920); Elihu Root, "The Outlook for International Law," A. J. I. L., x, 5 (1916); O. Nippold,

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Nevertheless, the practical and legal objections to the wanton use of force short of war, even though the ostensible purpose is to enforce alleged international obligations, must be apparent. Such measures, whether actual, impending, or rumored, disturb peaceful international relations. Political and economic opportunism too often motivates their use, while physical strength alone determines the outcome. 1 Even the most primitive systems of law have avoided making a plaintiff at one time complainant, judge, and sheriff in his own case. On the other hand, the practical alternative to the practice of state self-help is not necessarily to be found in a sweeping demand for renunciation of the right to use armed force under any circumstances. That leaves unanswered the contention that international law, like any legal system, requires at least the legal possibility of ultimate coercive sanctions if it is to meet the needs of the society it is presumed to govern. That contention is universally acted upon in international affairs and it cannot be answered simply by denying the necessity of providing sanctions for international law. Members of the international community are today as strongly as ever upholding the right to use force to protect fundamental rights. The persistent failure of disarmament conferences is proof of continuing reliance upon national force. A few states are frankly demanding international guarantees as the price of renunciation of the right and the means to Development of International Law after the World War, p. 70 (1923); David Jayne Hill, "The Possible Means of Increasing the Effectiveness of International Law," Proceedings of the American Society of International Law, 10th annual meeting, p. 17 (1916). 1 Borchard, "Limitations on Coercive Protection," op. cit., pp. 304-305; Charles Dupuis, "Liberté des Voies de Communication," Recueil des Cours, il, 423 (1924).

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use national force; other states answer that demand by stressing the adequacy of moral guarantees. Paradoxically, those states which pay the greatest lip-service to moral guarantees are among the most heavily armed. In fact, then, all states, by word or action, continue to recognize the practical necessity of coercive sanctions of international law. The immediate issue is: What form shall they take? Must world order continue to be founded on the arbitrary use of national force, unrestrained by international law and the judgments of an international tribunal? Or has the time come for members of the world community to recognize that international law will serve their real interests best when its growth, interpretation, and enforcement are placed in the hands of a common international organization? In short, the problem of coercive sanctions is not a matter of elimination, — world society has not yet reached a stage where that is possible, — it is a matter of substitution. For the present system of state self-help there must be substituted the organized physical as well as moral force of the international community. International justice must be supported by international organization. High hopes have been held that the peace structure erected after the World War symbolized, or at least made possible, a new era in international society. It was believed that the experiences of the last war would so clearly prove the futility of continuing to rely upon national morality alone for assurance of world order that states would welcome an opportunity to cooperate in erecting an international organization for peace. The builders of the post-war peace structure must have been

108 FORCE IN PEACE aware of the fact that, whatever advance was made in the strengthening of international law by legislative and judicial processes, its enforcement must be provided for; they must have known that state self-help could be supplanted only by assurance of international action against a violator of international law; finally, they must have been fully aware that sanctions which were aimed merely at the elimination of war would fail to meet the real problem. The peace machinery which has been built since 1919 must be examined with these facts in mind if it is to be appraised for what it is rather than for what many hoped it would be.

PART III COERCION AND THE LEAGUE OF NATIONS

CHAPTER VI T H E POST-WAR PEACE STRUCTURE I N SPITE of

the rampant nationalism which characterized the nineteenth century there was, during the fifty years preceding the World War, a constant increase in the number and scope of multipartite international agreements.1 With the exception of the International Postal Union and the accomplishments of the two Hague Peace Conferences, however, world organization made no notable advances. The work of the Hague Conferences was devoted mainly to "humanizing" warfare rather than to the organization of a peace structure which might render war less probable.2 The World War, taking a toll of ten million lives and some $200,000,000,000, illustrated the failure of earlier efforts to "humanize" war3 and amply proved Jean de Bloch's thesis that the destructive forces of war would soon overcome the creative forces of peace.4 Thus fearful experience stimulated de1 The international conferences of the period from 1826 to 1907 are listed by Baldwin, op. cit., p. 808; see also Hudson, International Legislation, i, xix. s Of the documents signed at the first Hague Peace Conference five dealt exclusively with the rules of warfare, and, of the remaining eleven, only one, the Convention for the Pacific Settlement of International Disputes, dealt directly with organization for the prevention of war. At the second Conference ten of the eleven treaties signed concerned rules of war or neutrality; the eleventh was a revision of the 1899 Convention for the Pacific Settlement of International Disputes. ' David Jayne Hill, "Legal Limitations upon the Initiation of Military Action," Proceedings of the American Society of International Law, 19th annual meeting, p. 99 (1925). 4 Jean de Bloch, La Guerre (French trans., 1898).

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mands for organization of the world community in the interests of peace. As the war progressed it was recognized that international organization for the maintenance of peace involved not merely the creation of international machinery but also solemn agreement to use the machinery and international sanctions to enforce legal obligations.1 Plans for the creation of a League of Nations gave promise of realization of such a world organization. The Covenant of the League was drafted at the Paris Peace Conference in the first few days of February, 1919. It may, perhaps justly, be described as the work of "reformers in a hurry," 2 but it does represent the first deliberate attempt to organize the international community. The framers of the Covenant were compelled to avoid any organization which suggested a state federation possessed of delegated powers. The existence of a state system based on ultimate national sovereignty made necessary a more primitive form of association. Under the Covenant no League agency is given author1

See W. Evans Darby, "The Enforcement of the Hague Conventions," Transactions of the Grotius Society, u, 139 (1917). Cf. the numerous proposals made during the war period looking toward such a world organization, Woolf, op. cit., passim. The necessity of providing effective sanctions was emphasized in the United States during the war. "But if war is to cease, there must be forecasting in a larger way than would suffice to prepare one nation for defense. There must be agreeing action by many nations collectively strong enough to restrain any power that would break the peace — as the single state is strong enough to restrain the criminal individual, or the forces of local insurrection. The strength of the restraining group must be more than moral; it must be the strength of physical force. A league to pass resolutions, and to offer advice, will not avail; it must be a league to enforce peace." Franklin H. Giddings, "How Social Progress Depends upon the Success of the League Platform," Enforced Peace (Proceedings of the League to Enforce Peace), pp. 174-175 (1916). 2 Spaight, op. cit., p. 139.

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ity to issue orders which are legally binding upon members of the League. "The Council of the League is, indeed, at liberty, and even enjoined, to advise or recommend . . . action by the members, but no member assumes any obligation to follow the advice unless it chooses so to do. The language is in that respect perfectly clear and consistent, unless we are to construe such words as 'advise,' 'propose,' and 'recommend' in a sense quite contrary to their ordinary meaning." 1 Nevertheless, the Covenant does embody many of the principles which characterized earlier plans for international organization. Periodic conferences of members of the League of Nations are provided for; judicial and conciliatory methods of settling international differences are emphasized; an attempt is made to provide for the exercise of international coercive sanctions should any member resort to war in violation of its obligations under the Covenant. It is necessary to give here only a brief summary of the procedure and the machinery which the Covenant provides for the pacific settlement of international disputes. A general principle is set forth in Article 11 which says, in part, that "any war or threat of war . . . is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations." A program of methods is set forth in Article 12, according to which "the Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the 1

A. Lawrence Lowell, in "The Covenanter," W. P. F. Pam., π, 103 (1919), but he regarded Article 16 as automatic. Ibid., p. 138.

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matter either to arbitration or judicial settlement or to inquiry by the Council. . . . " Members of the League are under obligation to give precedence to the first two methods in disputes which are particularly suitable for submission to arbitration or judicial settlement.1 The third method, inquiry by the Council, is apparently regarded as applicable to all other disputes. Article 15 provides, in part: "If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council." The rôle thus assigned to the Council is that of conciliator; as such the Council may aid the disputants in arriving at a settlement, or at most, it may "recommend" terms of settlement. Limited to advisory or recommendatory functions it has no power to assume "jurisdiction" of any cause, for it cannot pronounce a sentence of law or award remedies provided by law. Its recommendations have no binding force, although they may have considerable influence upon the actions of the parties in dispute. The effect of this influence is likely to be limited, however, for a state which ignores a Council recommendation cannot be said to have violated the terms of the Covenant — unless it resorts to war in the legal sense, when the sanctions of Article 16 become operative.2 1

Article 13, pars. 1, 2. For detailed commentary on the functions and work of the League in the settlement of international controversies, see: Z. Gralinski, Règlement "panifique obligatoire des Différends Internationaux suivant le Pacte de la Société des Nations (1925); C. Howard-Ellis, Origin, Structure and Working of the League of Nations (1928); A. N. Mandelstam, "Conciliation internationale 2

115 The Covenant failed to provide a system of positive sanctions for the enforcement of international law and treaty obligations. The limited and uncertain content of Articles 10 and 16 has been gradually minimized by restrictive interpretation. From the creation of the League many states, notably France, have advocated wider and more positive guarantees of security.1 The Three Powers Guarantee Treaty of 1919 between Great Britain, France, and the United States was intended to compensate France for her failure to secure positive guarantees in the Covenant.2 In September, 1922, the French demand for effective international guarantees was approved in principle by an Assembly resolution which pointed out the necessity of considering together disarmament and international guarantees.3 This prinTHE POST-WAR PEACE STRUCTURE

d'après le Pacte et la jurisprudence du Conseil de la Société des Nations,' Recueil des Cours, xiv, 337-643 (1926); David Hunter Miller, Drafting of the Covenant, 2 vols. (1928). 1 The French draft plan for a League of Nations, submitted to the Peace Conference in 1919, included proposals for what would have been in reality an international police force under League control. See infra. Chapter VIII, p. 150, n. 2. 2 There were actually two treaties signed at Versailles, June 28,1919, one between France and the United States and one between France and Great Britain. These obligated the United States and Great Britain to assist France against unprovoked German aggression in case Articles 42, 43, and 44 of the Treaty of Versailles (relating to the Left Bank of the Rhine) did not at first provide adequate security for France. Failure of the United States to ratify ended the plan, for each treaty was contingent upon the other. Treaties, Conventions, International Acts. . . . , in, 3709. ' Resolution 14, League of Nations, 3rd Assembly, Records, Plenary Meetings, p. 291 (1922). "2. In the present state of the world many Governments would be unable to accept the responsibility for a serious reduction of armaments unless they received in exchange a satisfactory guarantee of the safety of their country. "3. Such a guarantee can be found in a defensive agreement, which should be open to all countries, binding them to provide immediate and effective assistance in accordance with a prearranged plan in the event of one of them being attacked, provided that the obligation to render assistance

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ciple was embodied in the provisions of the Draft Treaty of Mutual Assistance submitted to the Assembly in September, 1923. But here an attempt was made to preserve and guarantee peace by providing sanctions against an "aggressor" state. Laudable as was this effort to extend the operation of sanctions to occasions other than resort to de jure war, it was unfortunate that a criterion so indefinite as "aggression" should have been made the basis of guarantees. Although two important League commissions reported that a satisfactory definition of aggression was then impossible, the basis of the Draft Treaty of Mutual Assistance was that the Council should, within four days after notification of the commencement of hostilities, decide which party was the aggressor.1 Thereupon the Council was empowered to call for military aid from such states as it chose and to determine the disposition of military forces contributed.2 The text of this treaty was circulated in 1924, but the replies from the various governments indicated insufficient support to justify continued efforts to secure adoption.3 to a country attacked shall be limited in principle to those countries situated in the same part of the globe. In cases, however, where, for historical, geographical, or other reasons, a country is in special danger of attack, detailed arrangements should be made for its defence in accordance with the abovementioned plan." 1 An attempt was made to define aggression, largely in negative terms. League of Nations, 4th Assembly, Records, Plenary Meetings, pp. 403, 406 (1923). In the Third Committee of the Assembly of 1923 it was asserted that tests of mobilization and violation of frontiers had lost their value as tests of aggression. 4th Assembly, Records, 1923, Third Commission, p. 183. Cf. Official Journal, 1924, p. 753; James T. Shotwell, War as an

Instrument

of National Policy, pp. 213-216 (1929). 2 Articles 4, 5. See Shotwell, op. cit., p. 403. 3 5th Assembly, Records, Meetings of the Committees, Minutes of the Third Committee, pp. 129-168. The text of the treaty is found in Official Journal, 1923, p. 1521; W. P. F. Pam., VII, 480 et seq. (1924).

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The Draft Treaty of Mutual Assistance leaned too heavily on material guarantees; it was too sudden a reaction to the Covenant which, it was now apparent, rested largely on moral sanctions. Dissatisfaction with both extremes, voiced by Dr. Lange (Norway) in the Fourth Assembly,1 was expressed again in the Fifth Assembly by Premier Herriot in a formula which has become memorable as "security, disarmament, and arbitration." 2 In an attempt to meet the points of this program the Fifth Assembly produced the Protocol for the Pacific Settlement of International Disputes (Geneva Protocol), the general purpose of which was to obviate recourse to war by relating "security and disarmament to all-inclusive compulsory arbitration." 3 The Protocol emphasizes obligatory arbitration and judicial settlement as a step towards security and disarmament. It requires acceptance of the optional clause of the Statute of the Permanent Court of International Justice 4 and provides for ultimate "compulsory" arbitration, arranged by the Council of the League, after conciliation or mediation by the Council under Article 15 of the Covenant has failed to settle a dispute. The purpose of the Protocol is to provide "that every possible dispute between the parties to the Protocol which is subject to international cognizance shall be finally determined by a judicial or arbitral tribunal resulting in a legally binding decision or award." 5 The parties 1 4th Assembly, Recorda, Meetings of the Committees, Minutes of the Third Committee, p. 16. 2 5th Assembly, Records, Plenary Meetings, p. 52 (1924). s Manley 0 . Hudson, "Protocol of Arbitration, Security and Disarmament," W. P. F. Pam., VII, 393 (1924). 4 Article 36, par. 2, of the Statute of the Court. 6 David Hunter Miller, The Geneva Protocol, p. 27 (1925). Under the

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agree to accept and to carry out the award. It was hoped that the positive legal obligation to submit all disputes either to arbitration or judicial settlement before recourse to war or to other measures "likely to extend the dispute or render it more acute" 1 would offer a practical test by which to determine an aggressor state. The specific tests provided are essentially objective in character. In general, "every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor." Moreover, "violation of the rules laid down for a demilitarised zone shall be held equivalent to resort to war." 2 Presumption of aggression arises also in certain specific cases, none of which rest upon the existence of a state of war.3 The tests of violation and aggression here Protocol (Art. 5) so-called domestic questions remain beyond the competence of the Council or any international tribunal, although it is recognized that the Council (or Assembly) may give "consideration" to such questions under the broad terms of Article 11 of the Covenant. If a state resorts to war without awaiting such consideration it violates the Protocol and becomes liable to its sanctions. Hudson, "Protocol of Arbitration," op. cit., pp. 395-396. 1 Hudson, International Legislation, p. 1385, Article 7. 2 Ibid., p. 1386, Article 10. 3 " I n the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare: " 1 . If it has refused to submit the dispute to the procedure of pacific settlement provided by Articles 13 and 15 of the Covenant as amplified by the present Protocol, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognising that the dispute between it and the other belligerent State arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State; nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly, in accordance with Article 11 of the Covenant. " 2 . If it has violated provisional measures enjoined by the Council for

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set up are significant, for they avoid the pitfall of aiming merely at limiting resort to war in the legal sense. The test of violation is based broadly upon the existence of aggression and this is determined by reference to objective criteria.1 The sanctions of the Geneva Protocol, directed against the state declared by the Council guilty of aggression, are those provided for in Article 16 of the Covenant.2 An attempt is made merely to clarify the Covenant provisions concerning sanctions and to provide for their extension.3 If the Council exercises its authority to call upon signatory states to apply sanctions against an aggressor under the Protocol its authority is no greater than that assigned to it by the Covenant.4 The operation of sanctions under the Protocol rests, therefore, upon a mere recommendation and the the period while the proceedings are in progress as contemplated by Article 7 of the present Protocol. "Apart from the cases dealt with in paragraphs 1 and 2 of the present Article, if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution. "Any belligerent which has refused to accept the armistice or has violated its terms shall be deemed an aggressor." Hudson, International Legislation, II, 1386-1387, Article 10. 1 Presumption of aggression may be removed in any case by unanimous vote of the Council (excluding the parties in dispute). Ibid., p. 1386, Article 10. 2 In addition, Article 15 of the Protocol provides that the expense of repressing aggression under the Protocol, as well as reparation for all loss or damage suffered by individuals, "shall be borne by the aggressor up to the extreme limit of its capacity," but neither its territorial integrity nor its political independence shall be affected. Ibid., p. 1390. 3 Ibid., pp. 1387-1398, Articles 11, 12, 13. 4 It seems to be accepted that the authority of the Council under the Protocol was not intended to exceed its authority under Article 16 of the Covenant. Hudson, "Protocol of Arbitration," op. cit., pp. 397-398.

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deterrent effect of their possible use is reduced to a minimum. Had the Protocol come into force it might, however, have given new life to the sanctions provisions of the Covenant. Unfortunately the British Government saw in the Protocol the possibility that Great Britain might be called upon to assume greater moral and legal responsibilities than were compensated for in the agreement. Chiefly because of Great Britain's opposition the Protocol never came into force.1 In rejecting the Geneva Protocol, Great Britain admitted the necessity of protective guarantees to support arbitration but insisted that the burden of enforcing sanctions or guarantees should be distributed according to the direct interest of guarantor states in the region of the world concerned. The term "regional guarantees" came into use to express a compromise between the extensive guarantees of the Protocol and the nugatory clauses of the Covenant. Franco-German tension over the left bank of the Rhine had remained a constant menace to peace since the end of the war. The Three Powers Guarantee Treaty of 1919 represented an unsuccessful French attempt to secure guarantees of security in that region. The French Government welcomed the idea of "regional guarantees" as an invitation to renew its earlier attempt to secure limited guarantees. The result was a series of treaties, negotiated at Locarno in October, 1925, and signed at London, December 1, 1925. In effect, the principles of the Draft Treaty of Mutual Assistance and of the Geneva Protocol are em1

A. Pearce Higgins, Studies in International Law and Relations, pp. 105106 (1928); Denys P. Myers, World Disarmament, p. 114 (1932); Official Journal, 1925, p. 446.

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bodied in this group of treaties but the application is confined to specified danger zones in which the guarantor states have a direct interest. The Locarno treaties include eight documents. To the Final Protocol are annexed five treaties: the first, known as the Treaty of Mutual Guarantee, is between Great Britain, France, Germany, Italy, and Belgium; the other four are arbitration treaties between Germany, on the one hand, and Belgium, France, Poland, and Czechoslovakia, respectively, on the other. There are, in addition, treaties between France and Poland and between France and Czechoslovakia providing for mutual aid and assistance in case of unprovoked attack by Germany.1 The first group of treaties practically guarantees "the territorial status quo resulting from the frontiers between Germany, France, and Belgium and the inviolability of such frontiers as defined by the Treaty of Versailles, and also of the observance of the provision relating to the demilitarized portion of the Rhineland." 2 The Locarno treaties entered into force 1 The texts of all the documents are found in W. P. F. Pam., ix, 54-75 (1926). 2 Higgins, Studies, p. 110. The boundaries and demilitarized zones are set forth in the Treaty of Versailles, Articles 27, 42-44, 428-432. Treaties,

Conventions, International

Acts . . . , ill, 3346, 3351, 3515.

The Locarno treaties may be summarized as follows: "Germany, Belgium, France, Great Britain and Italy, as a group and individually, guarantee the present German frontiers of Belgium and France and the demilitarization of German territory west of a line drawn 50 kilometers east of the Rhine. "Under the auspices of Great Britain and Italy, Germany and Belgium and Germany and France mutually undertake not to attack or invade each other or resort to war against each other. This undertaking does not apply in five situations: 1. Exercise of the right of resistance to a violation of the undertaking specified above; 2. Flagrant breach of the provisions demilitarizing the Rhineland; 3. Action to fulfill the undertaking of Article 16 of the League Covenant,

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on September 14, 1926, immediately after Germany's admission to the League of Nations. They were hailed as the beginning of a new era of real peace founded upon arbitration and security.1 The Covenant of the League of Nations, the Draft Treaty of Mutual Assistance, the Geneva Protocol, and the Locarno treaties have been briefly described because they represent the chief post-war attempts to expand, concurrently, the scope of judicial processes for the settlement of international controversies and the organization of international sanctions designed to make effective solemn obligations to employ amicable methods rather than national force. Two of these attempts, the Draft Treaty of Mutual Assistance and the Geneva Protocol, failed; a third, the Locarno treaties, applies only to a limited region of the world and to only a few that is, to apply sanctions in case of resort to war in disregard of the pacific settlement provisions of the Covenant (Arts. 12,13, and 15); 4. Action resulting from a decision of the Assembly or Council of the League; 5. Action directed against an attacking state, definable as necessary if such action is taken for the maintenance of peace following a unanimous report on an inquiry by the League Council. In view of the above guaranty and mutual undertaking, Germany and Belgium and Germany and France undertake to settle by peaceful means 'all questions of every kind which may arise between them' which are not settled by normal methods of diplomacy." "The Locarno Conference," W. P. F. Pam., ix, 25 (1926). 1 Edward Benes, "After Locarno: The Problem of Security Today," Foreign Affairs, iv, 195-210 (1926) ; George Glasgow, From Dawes to Locarno, (1925); Charles Cheney Hyde, "Commissions of Conciliation and the Locarno Treaties" (editorial), A.J.I.L., xx, 103 (1926); Charles G. Fenwick, "The Legal Significance of the Locarno Agreements" (editorial), A. J. I. L„ xx, 107 (1926); W. R. Bisschop, "The Locarno Pact," Transactions of the Grotius Society, xi, 79-115 (1926); Higgins, Studies, p. 107 et seq. The immediate effect was a rapprochement in Franco-German relations but "the real test as to whether the Locarno Treaties have succeeded in their object will be afforded by the state of the armaments in the next few years." Ibid., p. 122.

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states. The Covenant of the League of Nations remains, therefore, the most comprehensive attempt to provide an international organization designed to obviate recourse to state self-help. It is true that many post-war multipartite treaties provide for conciliation and limited arbitration,1 but these include no attempt to extend effective international guarantees or sanctions. Nor can the Pact of Paris be regarded as a significant part of the post-war peace structure. True, its moral influence may be great, but so long as it lacks machinery and sanctions its positive contribution to the preservation of world peace must be uncertain. Signatories of the Pact of Paris agree, in Article 2, that the settlement of all disputes between them "shall never be sought except by pacific means." Like war, measures of reprisal are always defended by the coercing state, however aggressive it may be, as forced upon it and not of its own seeking. A more serious loophole in the wording of Article 2 is that coercive measures short of war have always been regarded as "pacific" in character and purpose. The word "pacific" means associated with a state of peace as distinguished from "hostile" or "belligerent," meaning associated with a state of war. Even admitting that the non-recognition doctrine announced in Secretary of State Stimson's note of January 7, 1932 constitutes a "sanction" of the Pact of Paris, it is true that that doctrine is a gratuitous interpretation not clearly provided for in the Pact. 2 The legal basis of the Pact is the "out1

For an interesting tabular analysis of provisions in recent treaties for conciliation and inquiry, see Norman L. Hill, "International Commissions of Inquiry and Conciliation," International Conciliation, No. 278, pp. 30-35 (1923); see also Cory, op. cit., pt. II. 2 This "sanction" of the Pact of Paris is discussed in Chapter VIII, infra.

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lawry " of war — war de jure·, by interpretation its terms except defensive wars. It seems apparent that a moral pledge to eliminate offensive de jure wars, a pledge unsupported by international organization, merely aims an innocuous weapon at a non-existent target. A framework of international organization may be found in the existing structure of the League of Nations, but that structure must be examined in order to see how adequately it meets the immediate needs of international society. Is the Covenant designed to supplant national self-help, in all its varieties of coercion, by international law and justice, or are its terms limited in their application to de jure war? Is resort to national self-help short of war affected at all by the Covenant? It is hardly to be expected that a lasting world peace structure can be founded on a basis so limited as the prohibition of a legal status of war, while practically all the concrete evils associated with that status are allowed to continue. The League must be examined, therefore, not merely to estimate the progress in international society which its mere existence signifies, but, in the interests of still greater progress, to point out the desirability of further steps towards an effective international organization.

CHAPTER VII STATE SELF-HELP OF

AND THE

LEAGUE

NATIONS

THE Covenant of the League of Nations is the League's constitution. It is the source of the legal authority and powers of the League as an organization of states. In any examination of the functions of the League it is essential to keep in mind the fact that the Covenant takes the form of an international treaty. Where its terms impose legal obligations upon its signatories the Covenant must be interpreted according to the rules which govern treaty interpretation. In so far as League members have assumed legal obligations under the Covenant these obligations cannot properly be extended beyond the meaning which the signatories must have understood at the time the Covenant was accepted. Under prevailing rules of treaty interpretation specific legal obligations cannot be imposed or extended by implication.1 It is necessary, therefore, to understand the precise meaning of the terms of the Covenant if we are to ascertain to what extent the Covenant succeeds or fails in imposing limitations on the state use of force in time of peace. The "spirit" of the Covenant and the temporary ideals of its framers cannot be invoked to give new content to terms already clear beyond doubt or to inject unusual meanings into ambiguous terms. 1 Generally accepted rules of treaty interpretation, including those here stated, are to be found in Wilson, Handbook, p. 193.

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The Covenant was designed to provide means for the prevention of war. In fact, however, it does not prohibit war under all circumstances. The provisions of Articles 12,13,15, and 16 constitute what has been called a legal "drag" upon war, but in a variety of circumstances members have retained freedom to resort to war against other states.1 It would indeed be inconsistent to attempt absolutely to interdict resort to war without at the same time providing adequate international organization for the pacific settlement of all international disputes. The time was not ripe in 1919 for the realization of such an organization but the Covenant does provide a large measure of legal restraint on the freedom of League members to resort to war. Acceptance of such a limitation, even though it is less than an absolute prohibition, is a notable advance and there is no intention here to belittle its significance. A question of more immediate importance is the legal effect of the Covenant upon the right of states to use force short of war. An attempt will be made to support the assertion that "the letter (of the Covenant) does not preclude every resort by members of the League to acts of force by way of reprisals without the preliminary attempts at pacific settlement which under the Covenant must precede resort to war.2 It has been emphasized in earlier chapters that mere restriction of the right to go to war does not have any legal effect on the right to employ coercive methods 1 For a critical analysis of six occasions when war would be "lawful" under the Covenant, see Spaight, op. cit., pp. 21-26; also, David Mitrany, The Problem of International Sanctions, pp. 10-11 (1925); John B. Whitton refers to seven occasions when war may be legal under the Covenant. "La Neutralité et la Société des Nations," Recueil des Cours, xvn, 487-492 (1927). s McNair, "The Legal Meaning of War," op. cit., p. 41.

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short of war, unless, in making resort to war illegal, states assume a positive obligation to employ only amicable methods in the adjustment of their differences.1 There exists today no treaty or rule of international law by which states are required to settle all disputes by amicable methods alone.2 Moreover, there remains a large category of subjects of international controversy which are regarded as unsuitable for arbitration and which do not, therefore, fall within the jurisdiction of available international tribunals.3 The recurrence of the use of force short of war is, therefore, legally and practically possible today. The history of the past decade indicates that the Covenant fails effectively to provide legal restraint on the use of force short of war even where legal issues clearly suitable for adjudication are involved. Since the Covenant came into force there have been several major instances of resort by members of the League to the use of force without prior recourse to the amicable methods of settlement set forth in Article 12. 1 Lauterpacht, op. cit., pp. 139-140; see also, Maccoby, op. cit., p. 70; Politis, "Les Représailles," op. cit., p. 5; de Visscher, "L'Interprétation du Pacte," op. cit., p. 377. 2 The Pact of Paris does not accomplish this. See Chapter VI, supra. 3 "The fears as to security, and the competitive armaments which both express and increase them; the grievances of minorities; the national ambitions that claim or deny parity in armed forces as an expression of political status; the ententes or associations or alliances of political friends as against others outside the group; the competitive diplomacy in such regions as the Balkans which this process of group-forming evokes; the rival political systems of democracy, dictatorship, and Bolshevism, with their external reactions; the historical and sentimental resentments at the transfer of territory to other sovereignties under recent treaties— it is to causes such as these that such danger as lies in the immediate international situation may be traced." Sir Arthur Salter, "The Economic Organization of Peace," Foreign Affairs, ix, 43-44 (1930).

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In these instances, — the bombardment of Corfu by Italy in 1923,1 the Greco-Bulgarian incident of 1925,2 the Sino-Japanese crisis of 1931-1932,3 and the BoliviaParaguay conflict now in a critical stage, — no state of war existed, although there was prolonged use of military and naval force.4 Diplomatic relations continued uninterrupted, despite tension between the parties in dispute. In each case the authority of the League was invoked and the active participant defended its acts as valid under the Covenant as well as under prevailing international law.5 The inadequacy of the Covenant and 1 Official Journal, 1923, pp. 1274, 1276-1290, 1294-1301, 1304-1310, 1313-1316, 1412-1415. s Official Journal, 1925, pp. 1696-1718; ibid., 1926, pp. 108-118,196-210. 3 The background and the immediate events of the recent crisis in the Far East are presented from the official Chinese point of view in League Doc. A. (Extr.)l.1932.VII; the Japanese case is presented in League Doc. A.(Extr.) 6.1932.VII. The action of the League is summarized in a Report of the Secretary-General of the League, League Doc. A.(Extr.)4.1932.VII. Three reports (up to February 20, 1932) of the League Committee of Enquiry set up at Shanghai under Article 15, paragraph 1, of the Covenant, are contained in League Doc. A.(Extr.)3.1932.VII. The Lytton Report, published as League Doc. C.663.M.320.1932.VII, is the official summary of the affair. 4 In discussing the Corfu affair in the Council, Lord Robert Cecil remarked, perhaps ironically: " I n my young days, when I was more familiar with the textbooks of international law than I am now, I think such actions used to be called measures short of war." Official Journal, 1923, p. 1321. 6 The Italian contentions before the Council in 1923 are representative of the arguments used. " Cases of peaceful occupation, either of territory or of ships, are very numerous. England and France have had recourse to this practice more frequently than other States, but there are also examples of such action on the part of Austria, Germany, Russia and the United States of America. Such measures have usually constituted a reply to acts of violence of much less gravity, from the point of view of international law, than that which was the original cause of the occupation of Corfu. " I t must not be thought that the Covenant of the League of Nations forbids these peaceful means of repression. They are not forbidden by any of its articles. I may add that in its Preamble the principles of international law are expressly recognized. Among these principles is the right of peaceful reprisals and of occupation as a measure of guarantee. These reprisals are

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of the League of Nations as legal and practical means of assuring early adjustment of international differences becomes obvious when one realizes the facility with which the use of force short of war was on these occasions legally and morally justified by members of the League. In each case the League followed the line of least resistance, displaying a reluctance to insist on any interpretation of the Covenant which would open the way for the threat or use of sanctions.1 In each case therefore legitimate. It should be noted that such eminent authorities on international law as Professors SchUcking and Wehberg (Die Satzung des Völkerbundes, 1921, p. 293), who have studied in detail the Covenant of the League of Nations, state most explicitly that reprisals and retorsions are not forbidden. " N o act of war and no violation of international law therefore took place. The Covenant which we have all accepted and which we all respect is an essential and integral part of international law but does not constitute the whole of it. As regards the precedent which M. Branting fears, it should not be forgotten that Italy, who has recently taken her place in world history, has merely followed illustrious examples." Official Journal, 1923, p. 1314. The Japanese delegate at Geneva presented similar contentions throughout the Sino-Japanese crisis over Manchuria and Shanghai. Both China and Japan denied the existence of a state of war. League of Nations, Monthly Summary, October, 1931, p. 303, and February, 1932, p. 42. Japan referred to previous instances of the use of force by major powers against China even since the League was founded. Ibid., February, 1932, p. 47. So long as the matter remained before the Council no action was taken to suggest that war existed and no definite statement was made to the effect that Japan had violated the terms of the Covenant by her actions in Manchuria and Shanghai. Members of the Assembly were more outspoken, but even there, where sympathy was strong for China, it could only be said that "what is taking place is war in everything but name." M. Lofgren (Sweden), ibid., March, 1932, p. 84. It is true that the second telegraphic report of the Committee of Enquiry set up at Shanghai, dated February 12,1932, stated that: "Since February 3rd, (a) state of open war exists, any pretence (of) truce being abandoned." League [Doc. A.(Extr.)3.1932.VII, p. 6. The intention was obviously to indicate resumption of widespread fighting rather than to pronounce an opinion as to the legal status of Sino-Japanese relations — a matter entirely beyond the functions of the committee. 1 In 1928 the Third Committee of the Assembly, in approving the Rutgers Report, frankly admitted that any hard-and-fast definition of

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members of the League had resort to force to secure alleged rights without prior recourse to any of the amicable methods prescribed by the Covenant, and yet no suggestion was made that the Covenant had been violated. It is true that Greece in 1925 paid Bulgaria an indemnity of $225,000 despite her plea before the Council that her invasion of Bulgaria was undertaken in selfdefense; but it was Italy, the aggressor of 1923, who received an indemnity after the Council of the League had turned the dispute over to the Conference of Ambassadors. Japan in 1933 seems to have consolidated her position in Manchuria despite the means by which her control was brought about.1 In only one instance has there been a suggestion that the use of armed force alone constituted an occasion for consideration by the League of the application of Article 16 of the Covenant. In November, 1921, Jugo-Slav troops advanced into Al"resort to war" would be dangerous, "for it might oblige the Council and Members of the League to decide that there had been a breach of the Covenant. . . . " Official Journal, 1928, Spec. Supp. No. 64, p. 457. It is just this situation which must be faced if the League is to assume its real functions as the ultimate support of international law and order. 1 President Wilson's confident hope in the efficacy of the League of Nations is illustrated by the following statements, especially interesting in view of the Japanese occupation of Manchuria in 1931-1932: Senator Knox — Mr. President, the economic privileges that they (Japanese) originally acquired in Korea, and subsequently in inner and outer Mongolia, and in northern and southern Manchuria, have almost developed into a complete sovereignty over those countries, have they not? The President — Yes, Senator; in the absence of a league of nations they have. Senator Knox — You think the League of Nations would have prevented that, do you? The President — I am confident it would. Treaty of Peace with Germany, Report of the Conference between members of the Senate Committee on Foreign Relations and the President of the United States, August 19, 1919. Senate Doc. No. 76, 66th Cong., 1st Sess., p. 24.

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banian territory. The British Government at once requested the Secretary-General to summon the Council with a view to the application of economic sanctions against Jugo-Slavia. The Council met a few days later but in the meantime the troops were withdrawn. Jugoslavia frankly admitted that the possibility of economic pressure left open no other course.1 Members of the League are under obligation to submit to purely amicable methods of settlement only disputes of a qualified character — those "likely to lead to a rupture." Does this mean that coercion cannot legally be used in any case unless one of the three methods referred to in Article 12 has been previously employed? When does a dispute become likely to lead to a rupture?2 Ability to determine whether a dispute is likely to lead to a rupture of pacific relations requires a degree of prophetic judgment which even the League of Nations cannot properly claim. Indeed, weak states like China have frequently been subjected to various forms of coercion and yet pacific relations between China and the coercing powers have seldom been interrupted. There is doubt, therefore, as to what disputes must be submitted to judicial or conciliatory methods. It is by no means clear that recourse to the use of force before the amicable methods of Article 12 have been tried is a violation of that article if the use of force does not result in a rupture 1

Official Journal, 1921, pp. 521, 1182; Annual Register, 1921, p. 155. For discussion of this point see: Politis, "Les Représailles," op. cit., pp. 11-14; Wright, "Opinion of Commission of Jurists on Janina-Corfu Affair," A.J.I.L., χνιπ, 541 (1924); de Visscher, "L'Interprétation du Pacte," op. cit., pp. 383-384; Strupp, "L'Incident de Janina," op. cit., pp. 283-284; Wehberg, "Le Protocole de Genève," op. cit., pp. 37-39; on the general question see McNair, "The Legal Meaning of War," op. cit., p. 50, Appendix B. 2

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of pacific relations. It must be admitted that the ambiguity inherent in this part of the Covenant leads not only to a failure of the Covenant to give unequivocal legal effect to its underlying purpose, but also to a situation in which the moral and the legal onus of the Covenant's provisions for the prevention of war may fall on the state which is a victim of aggression. Technically, a state which chose to oppose coercive measures directed against it and to regard the resultant conflict as de jure war would be guilty of having initiated a state of war and the sanctions of Article 16 would presumably become operative against it.1 No one seriously upholds such a conclusion and yet the terms of the Covenant, by their emphasis upon de jure war and their failure to take into account the possibility of the use of force short of war, lead to such a legal result.2 The history of the drafting of the Covenant is especially interesting in the light of the legal limitations subsequently apparent in its provisions. The terms "war" and "use of force" were bandied about by the framers so casually that it is difficult to believe that they were aware of the significant difference in meaning. In the Preamble of the Covenant the phrase "use of force" was first inserted at Mr. Miller's suggestion because Colonel House "always wanted some words against war in the McNair, "The Legal Meaning of War," op. cit., p. 43. McNair suggests that the "reasonable" answer in such a case must be as follows: " (i) The plaintiff state, which undertakes measures of force as a reprisal or an intervention, does so at the risk of being in breach of covenant if the defendant state should elect to regard those measures as war; and (ii) the defendant state, which elects in favor of war, cannot be said to have resorted to war and to be in breach of the Covenant." McNair, "The Legal Meaning of War," op. cit., pp. 42-44; per contra, see Maccoby, op. cit., p. 71. 1

2

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Preamble of the Covenant.1 The Drafting Committee later substituted the word "war" and the change was agreed to by Mr. Miller in a telephone conversation with Lord Eustace Percy.2 In Wilson's first draft of the text of the Covenant sanctions were to become operative "if any Power shall declare war or begin hostilities or take any hostile step short of war." 3 In his second draft Wilson uses the terms "resort to armed force" and "hostile action short of war." 4 The British drafts (Phillimore, Cecil, and Smuts) had consistently used the term "war" only, making no attempt to include limitation of resort to force short of war.5 In the amalgamation of the British and American drafts the American phraseology was retained. The Hurst-Miller draft of February 4, 1919, contained the clause: "They (signatories) will in no case resort to armed force." 6 The Commission on the League left the terms substantially as they were.7 The clause was changed by the Drafting Committee to: "They will in no case resort to any act of war," and finally, in the printed version it included simply "resort to war." 8 There is no evidence of the reason for the last change, although it was fundamental. Nor is there any evidence to show that the significance of the change from "armed force" to "war" was recognized as striking at the practical basis of the Covenant. The phrase "any dispute likely to lead to a rupture" is subject to the same difficulties as those which surround the term "war," for the existence of such a dis1 2 4 6 7

Miller, The Drafting of the Covenant, i, 68. 3 Ibid., Ii, 15. Ibid., pp. 213, 222. Ibid,., p. 74. These were repeated in Wilson's third draft. Ibid., p. 101. β Ibid., p. 224. Ibid., pp. 3, 23. 8 Und., pp. 306, 311. Ibid., p. 267.

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pute can be determined by no objective tests. The phrase used in earlier drafts of Article 12 1 led the Swiss Federal Council to conclude that any dispute must be regarded as having reached a danger point as soon as diplomatic relations between the disputants are severed.2 Even this test would not have covered resort to measures of coercion short of war, for diplomatic relations have seldom been severed as a result of the exercise of such measures. It is possible, however, that such a test would react to the benefit of a coerced state, for it would lie within the power of that state to sever diplomatic relations and to place the active state clearly in default if it continued to use force. Such a criterion cannot be read into Article 12 as it now stands; only the intention of the disputants supplies any basis for concluding that a rupture of pacific relations is imminent. Inasmuch as it is to the practical and legal advantage of both parties to avoid the manifestation of any intention to initiate a state of war or even to sever diplomatic relations this test can hardly be regarded as practicable. The real intention of the active state often becomes apparent only after it is in a position to present the world with an irrevocable fait accompli. Japan's recent venture in Manchuria has illustrated this weakness in the Covenant. In handling the Corfu incident of 1923 the League had an opportunity to establish a precedent and to clarify 1

Until the end of March, 1919, the phrase used was "disputes . . . which cannot be adjusted by the ordinary processes of diplomacy." The change was made, apparently with little thought of its importance, by the Drafting Committee not long beforefinaladoption of the Covenant by the Conference. See ibid., pp. 651, 661. Cf. Politis, "Les Représailles," op. cit., p. 14.

> Ibid.

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the meaning of Article 12, but that opportunity was lost. The answer given by the Special Committee of Jurists to the question of the compatibility of measures short of war with the terms of the Covenant was diffuse and noncommittal. In effect, it made the legality of such measures depend on the particular circumstances of each case and left it to the Council to determine in each case the issue after the fact.1 Whichever way the Council may report, the fact that its opinion must come long after the culmination of events gives the active state an advantage which, as in the case of the recent Japanese occupation of Manchuria^ may have results quite beyond the competence of the League to revise. If the Council reports that the dispute is not one likely to lead to a rupture either or both states are thereby legally justified in continuing to refuse to submit the matter to judicial or conciliatory methods of settlement.2 The absence of ob1 "Question IV. Are measures of coercion which are not meant to constitute acts of war consistent with the terms of Articles 12 to 15 of the Covenant when they are taken by one Member of the League of Nations against another Member of the League without prior recourse to the procedure laid down in those articles? "Answer IV. Coercive measures which are not intended to constitute acts of war may or may not be consistent with the provisions of Articles 12 to 15 of the Covenant, and it is for the Council, when the dispute has been submitted to it, to decide immediately, having due regard to all the circumstances of the case and to the nature of the measures adopted, whether it should recommend the maintenance or the withdrawal of such measures." Official Journal, 1924, p. 524. The report was adopted by the Council. Ibid., p. 527. See Mandelstam, op. cit., p. 345. Ironically, in view of later events, the Chairman of the Special Committee of Jurists was M. Adatci (Japan) and the replies of the Committee were reported to the Council by Viscount Ishii (Japan). League Doc. C.212.M.72.1926.V. 1 Cf. de Visscher, "L'Interprétation du Pacte," op. cit., pp. 213-220. Of course, the Council may proceed to an investigation of the dispute without deciding in fact whether it is likely to lead to a rupture. But if the Council fails to report that the dispute is likely to lead to a rupture, or that a state of

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jective criteria to determine the application of Article 12 adds one more ambiguity in the possible relations between states, for it now becomes essential to distinguish acts of war, acts of force short of war, acts of force short of war which are likely to lead to a rupture bètween states, and, finally, acts of force short of war which are not likely to lead to a rupture. The obligations of Articles 12 and 15 1 are made to rest upon a phrase devoid of practical meaning, and the efficacy of two of the most fundamental articles of the Covenant is reduced to a minimum which falls short of the practical ideals which inspired the creation of the League of Nations. The restricted application of the term " w a r " and the inadequacy of a structure for the preservation of international peace which rests solely on mere " d r a g " or legal restraint on de jure war are coming to be realized.2 In several post-war multilateral treaties the dangers to international peace of certain coercive measures short of war are recognized and attempts are made to insure resort to amicable methods before recourse is had to those measures which are equivalent in fact but not in law to de jure war.3 I t is too much to hope that states war exists, it is estopped from indicating that the Covenant has been violated. Cf. Question I and Answer I, Special Commission of Jurists, Official Journal, 1924, p. 524. 1 Article 15, paragraph 1, also employs the phrase " a n y dispute likely to lead to a rupture." 2 McNair, " T h e Legal Meaning of W a r , " op. cit., p. 45. 3 Treaty to Avoid or Prevent Conflicts between the American States, 1928, Article I. " T h e High Contracting Parties undertake, in case of disputes, not to begin mobilization or concentration of troops on the frontier of the other Party, nor to engage in any hostile acts or preparations for hostilities, from the time steps are taken to convene the Commission until the said Commission has rendered its report or until the expiration of the time provided for in Article 7." Hudson, International Legislation, u, 1008; also 44 Stat, at L. 2527.

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will soon renounce in specific terms the right to use armed force in any form and under all circumstances; Protocol on the Pacific Settlement of International Disputes (Geneva Protocol), 1924, Article 7. " I n the event of a dispute arising between two or more signatory States, these States agree that they will not, either before the dispute is submitted to proceedings for pacific settlement or during such proceedings, make any increase of their armaments or effectives which might modify the position established by the Conference for the Reduction of Armaments provided for by Article 17 of the present Protocol, nor will they take any measure of military, naval, air, industrial or economic mobilisation, nor, in general, any action of a nature likely to extend the dispute or render it more acute. . . . If the result of such enquiries and investigations is to establish an infraction of the provisions of the first paragraph of the present Article, it shall be the duty of the Council to summon the State or States guilty of the infraction to put an end thereto. Should the State or States in question fail to comply with such summons, the Council shall declare them to be guilty of a violation of the Covenant or of the present Protocol and shall decide upon the measures to be taken with a view to end as soon as possible a situation of a nature to threaten the peace of the world." Hudson, International Legislation, II, 1385-1386. Treaty of Mutual Guarantee (Locarno), 1925, Article 2. "Germany and Belgium, and also Germany and France, mutually undertake that they will in no case attack or invade each other or resort to war against each other. " Article 4. (3) In case of a flagrant violation of Article 2 of the present treaty or of a flagrant breach of Articles 42 or 43 of the Treaty of Versailles by one of the high contracting parties, each of the other contracting parties hereby undertakes immediately to come to the help of the party against whom such a violation or breach has been directed as soon as the said Power has been able to satisfy itself that this violation constitutes an unprovoked act of aggression and that by reason either of the crossing of the frontier or of the outbreak of hostilities or of the assembly of armed forces in the demilitarised zone immediate action is necessary." Ibid., HI, 1691, 1693. Treaty of Neutrality and Non-Aggression between Turkey and the Union of Soviet Socialist Republics, 1925, Article 1. " E n cas d'action militaire contre une des parties contractantes de la part d'une ou de plusieurs tierces puissances, l'autre partie contractante s'engage à maintenir la neutralité envers la première. "Remarque. Sous l'expression 'action militaire' ne doivent point être comprises des manoeuvres militaires vu qu'elles ne portent point de préjudice à l'autre partie." Br. and For. St. Papers, cxxv, 1001 (1926). Hague Convention (II) Respecting the Employment of Force for the Recovery of Contract Debts had earlier used the phrase "recourse to armed force." See Chapter V, supra. Cf. also, League Model Treaty to Strengthen the Means of Preventing War, Article III, Official Journal, 1928, Spec. Supp., No. 63, p. 50.

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nor is there any immediate possibility of securing acceptance of a definition of war which will include all use of force. It is imperative, however, in view of the fact that much of our post-war peace structure is aimed directly at the restraint of recourse to war in the legal sense, that great precision be assigned to that term so that it may be made apparent just how far the use of force is legally restrained. In suggesting the necessity for a practical definition of war it should be pointed out that war has never been defined in objective terms to include all the measures of force which the layman regards as the essence of war. The most appropriate place for a practical definition would be in multipartite treaties whose operation rests largely on the meaning of the term. In any event, it is disconcerting to a great body of public opinion, upon whose support and interest it is assumed international peace must ultimately rest, to find that solemn covenants fail of their lauded purposes because there are no practical criteria by which to determine the moment at which such agreements become operative.1 The continuing legality of war under the Covenant has often been regarded as the most important gap in that document. It is contended that such a gap justifies the retention by states of their competitive armaments. 1 McNair suggests the following: " A state of war arises in International Law (a) at the moment, if any, specified in a declaration of war; or (fi) if none is specified, then immediately upon the communication of a declaration of war; or (c) upon the commission of an act of force, under the authority of a State, which is done animo bettigerendi, or which, being done sine animo belligerendi but by way of reprisals or intervention, the other State elects to regard as creating a state of war, either by repelling force by force or in some other way; retroactive effect being given to this election, so that the state of war arises on the commission of the first act of force." " T h e Legal Meaning of War," op. cit., p. 45.

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Statesmen logically maintain the position that the necessity of being prepared for self-defense is a constant condition of state existence in spite of current progress in international organization for peace. Persistent attempts have been made to close the gap — provision for extensive obligatory jurisdiction of the Permanent Court of International Justice, the Optional Clause of the Statute of the Permanent Court of International Justice, the Geneva Protocol, the Locarno treaties, the all-in arbitration treaties, the General Act of 1928, the Pact of Paris, and the proposed amendments to the Covenant.1 It must be emphasized, however, that the continued legality of de jure war is not the only significant gap in the Covenant's provisions. Self-defense is not limited to recourse to war, and national armaments are evidence not only of the persistent apprehension of war but also of the general realization that the ultimate sanction of international law is still left to the willingness and ability of each state to use its physical resources in its own behalf. If war and the use of force short of war remain the ultimate sanctions of international rights it is not illogical or unreasonable for states to insist upon retention of the physical means for the enforcement of their alleged rights. Any world peace plan which rests wholly upon the prohibition or limitation of resort to de jure war fails to meet the real issue of world order.2 If arbitrary force is to be supplanted by international law and justice it must 1 Arnold-Forster, "Order and Self-Defense," op. cit., pp. 233-234. * This was clearly recognized in discussion in the Assembly when the Geneva Protocol was being examined. Many delegates contended that the ultimate test of aggression should be changed from resort to war to resort to force. Sth Assembly, Records, First Committee, pp. 35, 49, 51, 52, 71-73 (1924).

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yield in all its forms, whether war or reprisals. Recourse to all national self-help coercive methods must be obviated if an international legal system is to take form. But self-help cannot be eliminated as a legal right unless the international community provides an adequate substitute. One cannot expect states to be satisfied with unenforceable rights. That states may be induced finally to renounce the right of coercive self-help, as the individual long ago relinquished it, is a possibility, but its realization is contingent upon the creation of a world organization into whose hands ultimate responsibility for law and order may safely be placed.1 As the individual gave up self-help rights only when the community became sufficiently organized to maintain and preserve his rights, so the state can be expected absolutely to renounce the right of self-help only when the international community reaches that point of organization where it can give to its members adequate assurance of the maintenance of international law and justice.2 In the present state of world organization national armaments and the League of Nations structure are supplementary rather than alternative means of preserving world order. The development of international legislation and legislative machinery, the functioning of the Permanent Court of International Justice, and the slow but gradual appreciation of the necessity of providing international sanctions — all these combine to raise the hopes of those who believe that international government will take form as national units come more thor1 Cf. Clyde Eagleton, "The Attempt to Define Aggression," International Conciliation, No. 264, p. 11 (November, 1930). 2 Cf. Spaight, op. cit., p. 30 et seq.-, David Davies, The Problem of the

Twentieth Century, p. 227 et seq. (1930).

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oughly to realize that the era of national absolutism no longer conforms to the facts of state existence or to the needs of the world community. Of these three developments, enforcement of international law and order has met the greatest opposition and made the least progress. Even staunch advocates of the growth of international legislation and of the Permanent Court of International Justice look askance at or frankly oppose the mere suggestion that the international community must ultimately take its rules of conduct seriously enough to see that they are applied. This timidity is difficult to understand when it emanates from those who are surely able to see the paradox inherent in such a view. In the present state of international society national force and national self-help are the rule; it is a case of every state for itself — "the powerful exact what they can and the weak grant what they must," in the words of the Athenian envoy to Melos. The enforcement of international law now depends ultimately upon the relative physical strength of members of the international community. Are we willing longer to intrust the enforcement of law to the arbitrary decisions of national units, while rebelling at the thought of enforcement under the aegis of the entire community? Is there not greater danger in leaving to each state the application of physical sanctions in its own behalf than there is in intrusting this function to a group of states representing the will of the world community? It may be said that no enforcement is necessary; that view is disproved by every battleship that floats and by every national armed force that moves. National armaments stand out as expressions of the

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attitude of states on the question of sanctions, for these armaments bear testimony to the deep conviction that international rights and interests cannot safely be left to the moral influence of law alone. The danger and the evil inherent in reliance upon moral force alone are to be found in the unconscious rashness of those who, by opposing the logical evolution of international government, really uphold the international anarchy of national selfhelp. The pusillanimity of those who refuse to take a forward step is foolhardiness under the guise of caution. Unyielding worship of vague deterrents of aggression retards the growth of effective international organization. Blind faith in disorganized public opinion as a guarantor of international order aids in maintaining the existing self-help system and ignores inevitable trends in a modern world. In more advanced units of society law acquires a moral momentum as a result of both its long continued operation and its inherent reasonableness. But in early stages of social development its mere nature and existence are not sufficient to give it operative force; reasonableness and certainty of application and enforcement combine to induce individuals to renounce private force in favor of the law of the community. The history of the common law includes not only the development of the King's Courts but also the activities of the King's Sheriffs; the reasoned justice of the one and the active cooperation of the other together induced that law-abiding spirit which is as much a result of habit as it is of inherent respect for law. Whereas most individuals in modern society have reached a stage where they can sincerely ascribe to moral influences their own respect for law, states are as yet

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merely emerging from a long period of anarchic individualism, a period devoid of uniform and constant respect for the rights and interests of other members of the international community. To bring about the habit of adherence to law among states there must be limitation of freedom of national action where the rights and interests of other states are concerned. Any practical realization of a better world legal system will require two positive steps forward — extension of the scope of international law by deliberate international legislation, and the elimination of the right of national self-help. The enforcement of rules designed to safeguard the rights and interests of members of the international community must be intrusted to the joint authority and power of the international community itself. The problem of international sanctions thus emerges as a fundamental factor in the practical solution of questions of disarmament, the growth of international law, renunciation of war and use of national force, and the preservation of a world order in which peace shall be based on law rather than on the mere unwillingness or inability of states to have recourse to war. When it becomes impossible for a state to take up arms in the pursuance of its own interests without violating international law and incurring the onus of responsibility to the world community, then the society of nations will emerge and standards of international morality will take form. Internal and external strife have ultimately driven society to unity and cooperation. A world war is perhaps the price of an elementary lesson in world organization. The Covenant of the League of Nations stands out in the Treaty of Versailles as one of the few portions

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of that treaty which distinguish it from other treaties of peace imposed by victors on vanquished foes. In the Covenant is realized a little of the progressive idealism which characterized the external show of the Conference of Paris in 1919. In the light of the atmosphere which actually prevailed within the Peace Conference the omissions of the Covenant are to be deplored but they need not be regarded with surprise. Traditional nationalism cannot be stifled in the moment of victory and spoils gathering. Nor is it surprising that in the years which immediately followed the creation of the League the practical significance of the Covenant was whittled down by restrictive interpretation until the world was offered the spectacle of flagrant aggression committed with impunity. The defection of the United States, the ambiguities of the Covenant, and national selfishness have so far rendered innocuous the international sanctions originally devised for the League of Nations. Recent events in the Far East have been almost too much, even for those who have advocated the adequacy of moral sanctions alone. The League is confronted in 1933 with an opportunity to meet squarely the issue of international action for peace. How far it can go to meet the needs of international order must be determined largely by the terms of the Covenant.

CHAPTER INTERNATIONAL LEAGUE

Vili ORDER

AND

SANCTIONS

THE significance of the conciliatory and mediatory functions of the League of Nations has been amply demonstrated during the past decade; it is more than likely that the technical peace which has generally prevailed since 1919 would have been broken more than once if the machinery of the League had not been available. Perhaps there is much truth in the remark that the League has succeeded merely in adjusting serious controversies between small states and insignificant controversies between large states, but out of such controversies world catastrophes have arisen.1 Nevertheless, in spite of its notable accomplishments, the League must be constantly subject to critical examination in the light of the prominent rôle which it or a comparable international organization must eventually play in building and maintaining world order. It has already been pointed out that war and the use of force short of war under the Covenant remain admissible as methods of attempting to adjust international controversies; that disarmament cannot precede abandonment of the right to use national force; and that confidence in an international legal system must supplant reliance upon 1 It is noteworthy that a clear threat to call League economic sanctions into use has been made only once and then in a dispute involving relatively small powers. See p. 130, supra.

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state self-help if existing dangers to world peace are to be removed. Whether the League is destined successfully to fill the rôle of an international executive and legislative organization cannot be predicted, but there is no doubt that in the fervor of the months following the World War it was generally regarded as the foundation of a lasting structure designed to assure world peace. The mere existence of the League of Nations, however, has not made violation of international law and justice impossible. True, practically all states have professed a desire to refrain from the use of force in international affairs and that intention has been elevated to a moral rule of international conduct. To what extent is the League competent, either by virtue of its Covenant or as the result of accumulation of functions, to enforce the rules of action which states generally accept as international law and which, when they are expressed in an international treaty like the Covenant, may be regarded as the will of the international community? Any conception of world order apart from a world organization adequate to maintain it ignores historical truth and is likely to be based on views which fail to take into account important factors in international society.1 At one extreme it is contended that justice can prevail 1 "The English conception of the King's peace would have been ineffective without the King's officers and the King's courts, and our new conception of the world's peace might be ineffective without a world agency devoted to its realization." Manley O. Hudson, Progress in International Organization, pp. 94-95 (1932). In appealing to the League during the recent crisis in the Far East China illustrated in almost pathetic terms an illusory faith. In her appeal of February 29,1932, China stated: " China comes to the League of Nations as the acknowledged trustee of international order and justice with a case which is classic in its simplicity. She has kept the Covenant; she has offered and still offers, in the most sweeping terms, to adopt and carry out any pro-

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among states only as a result of respect for law; moral sanctions alone, expressed through world public opinion, must, therefore, suffice to render law effective.1 It seems to matter little that public opinion is an uncertain and often prejudiced influence, and that it can be expressed only through national and partial agencies. At the other extreme is the belief, now seldom openly avowed but amply demonstrated in the policies of many states, that the evolutionary process which has resulted in a division of the world into state units has reached a culmination; that something sacrosanct and ultimate lies inherent in the state as a unit of society; that beyond and above the state there is and can be no authority, no higher duty or responsibility. The credo of this cult of nationalism is sovereignty. The doctrine of sovereignty, injected into international law by Grotius in a moment of opportunism,2 is a complete estoppel to any practical approach to the problem of international organization.3 gramme that may be formulated and applied for the peaceful adjustment of her differences with Japan; she has placed herself unreservedly in the League's hands. . . . And yet one of the signatories of the Covenant, and of the Pact of Paris, and of the Nine-Power Treaty, is today ravaging her territory. . . . " League Doc. A.(Extr.)1.1932.VII, p. 32. " T h e League must either reject the Japanese contention (self-defense) or write its Covenant down to a pious declaration that aggression depends upon the self-asserted frame of mind of the aggressor. . . . " Ibid., p. 4. 1 The Pact of Paris rests on moral sanctions alone. Its brief history has already destroyed a great deal of public optimism which might have been more properly directed into constructive channels. Presumably with the Pact of Paris in mind, it has been well stated that: " W a r will not disappear from men's minds because of a pronunciamento. I t will not lose its appeal because of a moral ukase. It will not be ended by a fiat. Institutions, methods, habits are needed to assure that intelligence will be brought to bear when situations become acute, and these mean international organization." Hudson, Progress in International Organisation, p. 96. 2 In his De Jure Belli ac Pacis (1625). 3 "All the efforts of the modern period have been directed towards a consolidation of State unity, based first on the power of the reigning House, in

FORCE IN PEACE 148 It is fortunate, however, that the impedient doctrine of national sovereignty is gradually succumbing to the same inevitable forces which brought the individual into society — interdependence and the need for common action in the face of danger and disorder. The World War served to emphasize the necessity of international organization as well as the futility of attempting to build world order and law on a system of arbitrary state self-help. Even before the end of that experience there was outspoken recognition of the necessity of supporting international peace by active enforcement of the will of the international community when that will was clearly expressed. Writing in 1914, Roosevelt said: "At present force, as represented by the armed strength of each nation, is wholly divorced from such instrumentalities for securing peace as international agreements and treaties. In consequence, the latter are practically impotent in great crises. Under these conditions every wise and upright nation must continue to rely for its own peace and well-being on its own force, its own strength. Our business is to make force the agent of justice, the instrument in international affairs, as it the Absolute State, and then on that of the Sovereign People, in the National State. The Absolute State was first patrimonial, then paternalist. The National State was first liberal, then democratic. But the social cycle began and ended with the State and went no further, so that once the ecclesiastic political barriers imposed by Papal power, and the conception of a Christian Empire, and the interests of hegemonic dynasties, had all passed away, international life was reduced to the external relations between Sovereign States and their ephemeral balance of power. At this stage two currents of thought developed, the juridical among the publicists and the casuistic among the moralists. These defined the legal and moral aspect of the terms of relations between State and State, but without any true conception of international community." Luigi Sturzo, The International Community and the Right of War, p. 33 (1929).

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has been made in municipal affairs, in matters within each nation." 1 In formulating a plan for an association of states the League of Nations Commission of the Paris Peace Conference was confronted with a problem which had inspired the world peace schemes of Saint-Pierre, William Penn, Kant, and, during the World War, the suggestions of the League to Enforce Peace. There was, however, no practical basis on which to rest a structure which, in order to meet the needs of international society, must ultimately assume legislative, judicial, and executive functions in behalf of the international community.2 Among the delegates at the Conference it was 1

Reprinted in New York Times, February 14,1932, from articles printed originally in October, 1914. Cf. Davies, op. cit., ch. Ii. Some of those frankly in favor, in the war period, of supporting international order by international coercive sanctions were later found in opposition to that idea as embodied in the Covenant of the League of Nations. In his address to the League to Enforce Peace at Washington, May, 1916, Senator Lodge said: " I think the next step is that which this League proposes and that is to put force behind international peace." Enforced Peace, p. 165. Senator Lodge's opposition to the Covenant, especially to the terms of Article 10, is well known. The views of General Smuts, expressed during the Conference at Paris in 1919, were frankly in favor of coercive sanctions and somewhat ominous of later events. "Let peace be founded in human ideals, in principles of freedom and equality and in institutions which will for the future guarantee those principles against wanton insult." Miller, Drafting of the Covenant, II, 28. "While we avoid the super-sovereign at one end, we must be equally careful to avoid the mere ineffective debating society at the other end. The new situation does not call for a new talking shop. We want an instrument of government which, however much talk is put into it at one end, will grind out decisions at the other end." Ibid., p. 38. 2 At least ten unofficial war-time peace plans are noteworthy for their recognition of the necessity of reconciling absolute sovereignty and international progress and interdependence. Plans were advanced by: French League of Nations Society, British League of Nations Society, League to Enforce Peace, American Peace Society .World Court League, American Institute of International Law, Central Organisation for a Durable Peace (Minimum Program), International Peace Bureau (La Fontaine), British Labour Party,

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to some extent agreed that any plan for an association of nations should provide both machinery and procedure for the performance of these functions. The Covenant, as it was finally drafted at the end of a relatively short period of study and conference (February 3-14, 1919), represents the lowest common denominator of several plans submitted to the Conference.1 It is significant that in nearly all the drafts submitted provision was made for positive sanctions to insure the enforcement of obligations assumed under the plans proposed.2 As and the Fabian Society. See analysis in American Advocate of Peace, 1919, p. 216 et seq.; Woolf, op. cit., passim,·, Beales, op. cit., pp. 302-303. 1 Twelve drafts are listed in Ray Stannard Baker, Woodrow Wilson and World Settlement, vol. ni, pt. HI (1922). 2 An important exception was the Norwegian plan. W. Schiicking and H. Wehberg, Die Satzung des Völkerbundes (2nd ed.), p. 602 (1924). The official French plan for a League of Nations included the boldest and most outright suggestions. "4. The League of Nations shall be represented by an international body, composed of the responsible heads of Governments or of their delegates. This international body shall have the following powers: (1) It shall organize an international tribunal. (2) It shall effect the amicable settlement of disputes between the States members of the League by means of mediation, preceded, if necessary, by an enquiry in the terms of the Hague Convention of 1907. (3) In the event of an amicable settlement proving impossible, it will refer the matter to the International Tribunal, if the question at issue is open to a legal decision; otherwise it shall itself decide the matter. (4) It shall enforce the execution of its decisions and those of the International Tribunal; at its demand every nation shall be bound, in agreement with the other nations, to exert its economic, naval, and military power against any recalcitrant nation. (5) Every nation shall likewise be bound, at the demand of the International Body, to exert, in common accord with the other nations, its economic, naval, and military power against any nation which, not having become a member of the League of Nations, shall attempt, by any means whatsoever, to impose its will on another nation." Baker, op. cit., m , 153-154. This so-called "French view" of sanctions has been consistently advanced by French statesmen since that time. Cf. also C. L. Lange, "Préparation de la Société des Nations pendant la Guerre," Les Origines et L'Oeuvre de la Société des Nations, i, 53 (1923); Pitman Β. Potter, "The

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finally accepted the Covenant provides, in Article 16, for a very limited enforcement in terms which induced such endless discussion that any efficacy originally intended has been interpreted almost out of existence.1 If it was at any time intended to place the responsibility for the enforcement of Covenant provisions for the amicable settlement of international disputes upon the members of the League in such a way as to render the sanctions of the Covenant an effective deterrent of the wanton use of force in international affairs, it has surely been lost sight of in subsequent discussions.2 The coercive sanctions suggested in Article 16 for the effective preservation of peace between members of the League are (a) economic and (6) military.3 The economic sanctions may be classified as negative (par. 1) and positive (par. 3).4 The immediate objective of the French Position Regarding Sanctions and Disarmament," A. J. I. L., xxv, 717 (1931). 1 The persistent appearance, in earlier drafts, of sanctions provisions similar to those set forth in Article 16 is traced in Miller, Drafting of the Covenant, π, 888. In one of the first drafts of the Covenant provision was made for enforcement of Council recommendations aside from the limited terms of Article 16; this provision was later omitted. League of Nations, "Reports and Resolutions on the Subject of Article 16 of the Covenant," League Doc. A.24.(1). 1921.V, p. 10. 2 In an address before the Senate in 1919, President Wilson said: "Armed force is in the background in this program, but it is in the background, and if the moral force of the world will not suffice the physical force of the world shall. But that is the last resort, because this is intended as a constitution of peace, not as a league of war." Sen. Doc., 65th Cong., 3rd Sess., No. 389, p. 13. 8 In addition, par. 4 of Article 16 provides a form of sanction which is hardly coercive in nature. "4. Any Member of the League which has violated any covenant of the League may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon." 4 "1. Should any Member of the League resort to war in disregard of its

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economic sanctions is to bring about the economic isolation of a defaulting state by denying to it all commercial, financial, and trade facilities so far as these are within the control of members of the League. As the first paragraph reads, however, it goes further than this, for it attempts "to place upon the members of the League the limitless obligation of cutting off the aggressor from any intercourse with any other State in any place where that intercourse may occur."1 The possibility that application of the economic sanctions of Article 16 would necessarily include blockade measures, partaking of the character of military sanctions rather than mere economic pressure in the form of a local embargo, at once caused concern among small neutral states. Within a few weeks after the Covenant was drafted these voiced their apprehensions before the covenants under Articles 12, 13, or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. "3. The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which are taken under this Article, in order to minimize the loss and inconvenience resulting from the above measures." 1 Mitrany, op. cit., p. 28. A. Lawrence Lowell has stated: " I t is not difficult for members of the League to prevent their own citizens from trading with the citizens of the offending country, but how about the citizens of other countries not members of the League? No doubt the framers of this clause had in mind a blockade; but what if the offender's land frontiers border upon countries not members of the League? . . . Apparently something here is wrong." A. Lawrence Lowell and Henry Cabot Lodge, "Joint Debate on the Covenant of Paris," W. P. F. Pam., π, 67-68 (1919). Of course, the framers assumed that all important states would eventually become members of the League.

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League of Nations Commission in Paris, but their fears that they were assuming obligations beyond their material strength were somewhat allayed for the moment by Lord Robert Cecil.1 Problems concerning the application of economic sanctions were at once raised by the Secretary-General in a memorandum to the Council in 1920. He recommended that "an International Blockade Committee should be appointed under the authority of the First Assembly for the purpose of studying the problem and general plan of action, the organization of the more permanent machinery required and the principles on which it should work." 2 In preparing ground for the study of the International Blockade Committee the Secretary-General posited several questions which clearly showed acceptance of the assumption that blockade, in addition to boycott and embargo, is implied as one of the economic sanctions of Article 16.3 With these 1

Lord Cecil assured them that they would not be required to assume military burdens beyond their abilities or to undertake military measures which would subject them to danger of retaliation. P. Munch, " Les Etats neutres et le Pacte de la Société des Nations," Les Origines et L'Oeuvre de la Société des Nations, i, 173-178, 182 (1923) ; Bruce Williams, State Security and the League of Nations, pp. 127-128 (1927). 2 1st Assembly, Records, Committee Meetings, pp. 334-336 (1920). 3 "A breach of the Covenant in the sense of Article 16 is regarded as constituting an act of war, but it is not laid down that this act of war creates an actual state of war. If the blockade be considered as a war measure, should the international law of blockade be applied; that is to say, . . . can the blockade only be applied after diplomatic notification to the blockaded State? Must it be ' effective ' in the technical sense of the word? Will private property be exempt from seizure, and if so, to what extent? To what extent will the traditional definition of contraband hold good? What will be the effect of a breach of blockade? Will neutrality be recognized and, if so, to what extent? If the blockade is not a war measure should the law and practice of pacific blockade be applied?" Official Journal, 1921, pp. 431-432, Circular letter of Secretary-General to members of the International Blockade Committee. Moreover, the Secretary-General asked members of the League to

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questions as a basis of study the Committee began its work at once and submitted its report to the Council in September, 1921. The Committee prefaced its report by abjuring its title, which, it said, was an "incorrect description" of its task; in its view "the application of Article 16 does not involve the application of the blockade, in the traditional sense in which that term is understood in international law, although the blockade may become necessary, in certain instances, to enable this Article to be effectively applied."1 Without discussing the coercive phases of economic sanctions, the Committee found that the difficulties raised by the purely economic aspects were practically insurmountable so long as the League did not embrace all important states. It was forced to conclude that Article 16 should be reconsidered and redrafted to make allowance for unforeseen conditions.2 Following this suggestion the Second Assembly adopted on October 4,1921, a series of proposed amendments to Article 16, together with a number of interpretative resolutions concerning the economic weapon of the furnish "any published official reports on the effect of the 'blockade' enforced against the Central Powers during the recent war," as well as information indicating the means at their disposal for the fulfillment of obligations under Article 16. Official Journal, 1921, pp. 220-221, 719. 1 Report of the International Blockade Committee, League Doc. A.28.1921.V (C.288.1921.V), p. 3. Later in the report it is stated: "Article 16 is primarily directed to economic pressure. There are, however, two naval measures upon which it is perhaps desirable that a word should be said: they are measures which it might in some contingencies be advisable to use in support of the economic measures to be taken: (a) it might be advisable to impose and maintain an effective blockade of the seaboard of the defaulting State; (6) it might be advisable that some Members of the League should exercise the belligerent right of visit and search at sea." In such case, however, it is assumed the measures would come under par. 2 of Article 16. Ibid., pp. 9-10. 2 Ibid., p. 3.

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1

League. These resolutions include an admission that it is impossible to decide beforehand upon "the various measures of an economic, commercial and financial nature to be taken in each case where economic pressure is to be applied," but certain suggestions are made clearly implying ultimate recourse to blockade measures.2 In a circular letter to members of the League, approved by the Council, January 10, 1922, it was stated that "the Council will certainly be guided by the rules recommended by the Assembly, so far as they relate to the Council's action, should the necessity for such action arise, before the final rules have been established.3 ι League Doc. A.14.1927.V, pp. 42-43; also, League of Nations, 2nd Assembly, Records, Committee Meetings, pp. 393-394 (1921). ' The pertinent resolutions are: "10. It is not possible to decide beforehand, and in detail, the various measures of an economic, commercial and financial nature to be taken in each case where economic pressure is to be applied. When the case arises, the Council shall recommend to the Members of the League a plan for joint action. 11. The interruption of diplomatic relations may, in the first place, be limited to the withdrawal of the heads of Missions. 12. Consular relations may possibly be maintained. 13. For the purposes of the severance of relations between persons belonging to other States Members of the League, the test shall be residence and not nationality. 14. In cases of prolonged application of economic pressure, measures of increasing stringency may be taken. The cutting-off of the food supplies of the civil population of the defaulting State shall be regarded as an extremely drastic measure which shall only be applied if the other measures available are clearly inadequate. 15. Correspondence and all other methods of communication shall be subjected to special regulations. 16. Humanitarian relations shall be continued." Resolutions Regarding the Economic Weapon, Official Journal, 1927, p. 840. See also, Bruce Williams, op. cit., p. 149. * Official Journal, 1922, p. 121, Annex 2853. The resolutions were generally approved by members of the League pending formal amendment of

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Since 1921 very little has been accomplished to define the nature and scope of the economic sanctions proposed in Article 16. In 1921 and again in 1926 the SecretaryGeneral was instructed "to institute a study on the legislation calculated to make it easier for States to apply economic sanctions." In his analysis in 1927 of twenty-one replies the Secretary-General found that only two countries (France and Czechoslovakia) had taken any positive steps towards providing for the application of economic sanctions.1 Since 1921 most of the discussion concerning League sanctions has avoided any precise analysis of economic sanctions. Other questions, especially the problem as to when Article 16 becomes operative, have given rise to considerable discussion only to indicate the singular complexity of the problem of international sanctions as well as the futility of trying to find in Article 16, as it now stands, more than a beginning for the organization of international sanctions.2 If sanctions, whether confined to economic pressure or Article 16. Ibid., pp. 489-491, 717-718, 1032-1083. Perhaps the definitive non-adoption of the proposed amendments has removed part of the force of the resolutions, but so far they constitute the only generally accepted statement of the nature of the economic sanctions and the obligations of League members under Article 16. Cf. League Doe. A.14.1927.V, p. 60, Report of M. de Brouckère. 1 Official Journal, 1921, p. 433 et seq., p. 930 et seq.; ibid., 1927, pp. 694702. The earlier study indicated that very few countries were empowered by existing legislation immediately to assume the minimum obligations implied in Article 16. 2 The possibility of League military sanctions is merely suggested in par. 2 of Article 16. "2. It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League." The practical problems which would arise out of the use of such measures are so ominous that the possibility of their exercise has been little discussed. Cf. Davies, op. cit., p. 143.

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extended to coercive measures, are to have any measure of effectiveness the moment at which they become operative must be determinable by reference to objective criteria. Although this requirement has long been appreciated by practical statesmen, Article 16 presents an example of broadly envisaged sanctions which are to become operative at no determinable moment, or, at most, their operation is contingent upon the existence of a legal status which can easily be avoided by the state or states against which they are directed. Under Article 16 a defaulting state does not become liable to sanctions until it resorts "to war in disregard of its covenants under Article 12, 13 or 15." It has been made evident that the existence of " war " is a matter of legal definition based largely on subjective and ex jparte views. Thus the operation of League sanctions is made to depend upon a condition of de jure war which can easily be avoided by an aggressor state even while proceeding to practically unlimited exercise of coercion. In such circumstances, why should an aggressor admit the existence of a state of war if it can accomplish its aims otherwise? The possibility of joint sanctions, even though limited to the single occasion of resort to de jure war in violation of the Covenant, might be regarded as a real advance if their application were certain. But the joint sanctions of Article 16 are not automatic. Although the phrase ipso facto is used in the first paragraph of that article it refers simply to the immediate nature of the right of each member of the League to regard resort to war in violation of the Covenant as an "act of war" against itself.1 1

"3. The unilateral action of the defaulting State cannot create a state of war; it merely entitles the other Members of the League to resort to acts

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A defaulting state may resort to war in clear violation of its covenants and each member state may thereby be entitled to regard such resort as an act of war or a casus belli, but "it is the duty of each Member of the League to decide for itself whether a breach of the Covenant has been committed." 1 It is true that a member which has unequivocally recognized a breach of the Covenant is bound thereafter to proceed with the application of sanctions, but the absence of any definite proof war or to declare themselves in a state of war with the Covenant-breaking State; but it is in accordance with the spirit of the Covenant that the League of Nations should attempt, at least at the outset, to avoid war, and to restore peace by economic pressure." Resolutions Regarding the Economic Weapon, Official Journal, 1927, p. 840. It should be noted that the British Draft Convention of January 20, 1919, provided that "in the event of any state member of the League committing a breach . . . , it will become, ipso facto, at war with all the other states members of the League; they will all regard each other as co-belligerents. . . ." Miller, Drafting of the Covenant, n, 112. 1 Official Journal, 1927, p. 840, Resolution 4. The rôle of the Council would have been strengthened if the amendments to Article 16 proposed by the Assembly in 1921 had been adopted. The second and third of the four proposed amendments were: "2. The Assembly adopts the following resolution, being an amendment to Article 16 of the Covenant; The second paragraph of Article 16 shall read as follows: ' I t is for the Council to give an opinion whether or not a breach of the Covenant has taken place. In deliberations on this question in the Council, the votes of Members of the League alleged to have resorted to war and of Members against whom such action was directed shall not be counted.' 3. The Assembly adopts the following resolution, being an amendment to Article 16 of the Covenant; The third paragraph of Article 16 shall read as follows: 'The Council will notify to all Members of the League the date which it recommends for the application of the economic pressure under this Article.'" League Doc. A.14.1927.V, p. 42. The view that the Council has no authority to render a binding decision concerning an alleged breach of the Covenant, and that it may merely give an opinion which leaves to each member a moral and legal right to decide for itself whether the opinion is sound, has come to be applied generally to the obligations of the Covenant, particularly to Articles 10 and 16.

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cedure or criteria for the immediate and simultaneous determination of a breach of the Covenant and of the applicability of sanctions causes the whole matter to revert to the uncertain judgment of each state. The Council may recommend a date on which enforcement is to begin but its purely advisory rôle is more than likely so to limit the effect of its recommendation that it becomes a mere gesture.1 In discussions of the sanctions of the Covenant military sanctions have hardly been examined and economic sanctions have been discussed very largely in order to indicate their limited scope. This failure to explore the possibilities of international coercive sanctions is not surprising in view of the absence from the League of the United States and Russia and the apparent reluctance of members to commit themselves to any definite obligations, even when these merely imply the use of armed force. The endeavor has been to evolve a procedure and a method whereby effective economic pressure can be brought against a defaulting state without involving League members in difficult problems of neutral rights and duties. It has been impossible, however, to avoid the fact that the economic sanctions of Article 16 must include some form of coercive action and that this must take the form of a joint pacific blockade. The experience of the World War, which pointed out conclusively that 1

Cf. suggested Council procedure, Official Journal, 1927, p. 840, Resolutions 5-8. The futility of leaving each member of the League to decide for itself when and whether to institute economic sanctions was early recognized. 1st Assembly, Records, Committee Meetings, pp. 265-269 (1920). The International Blockade Committee also recognized weaknesses inherent in the views ultimately adopted by the Assembly and suggested that provision be made for "a certain centralisation of effort. . . . " Report of the International Blockade Committee, p. 5, cited p. 154, n. 1, supra.

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"the gun has to be fired with gold" 1 and that economic pressure was an important factor in the final defeat of the Central Powers, doubtless explains the origin of this part of the Covenant. The legal and practical problems raised by the Allied "blockade" during the World War would be revived and intensified by any complete application of economic sanctions. Most of the discussion of Article 16 among League members has been the result, therefore, of apprehension rather than of a deliberate attempt to outline a program for future use. This apprehension has been increased by the realization that the operation of the sanctions of Article 16 would probably occur in time of peace and the rights of participants would therefore be confined within the scope of the practice of pacific blockade. A pacific blockade undertaken without the support of all major powers could not be made effective if it were applied in accordance with past practice. Uncertainty as to the means which would or could be adopted to render a League blockade effective has caused League members to adopt an evasive attitude.2 Some of the problems raised by the possible application of Article 16 were studied by the Secretary-General in a report submitted to the Council June 15,1927. The report assumes that a state of war would not automati1

Mitrany, op. cit., p. 52. Between 1920 and 1927 discussion of Article 16 inevitably became connected with discussions of security and disarmament, and "attention has been more and more directed towards the possibility of utilising the provisions of the article in connection with proposals for international agreements directed towards the establishment of security and the attainment of disarmament." League Doc. A.14.1927.V, p. 9. The Draft Treaty of Mutual Assistance (1923) and the Protocol for the Pacific Settlement of International Disputes (1924) were both essentially attempts to amend or to clarify Article 16. Ibid. 2

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cally be produced as between a defaulting state and other League members as a result of aggression ("resort to war") by the former; nor would application of the economic sanctions automatically produce a state of war between the defaulting state and the states applying sanctions. So far, then, as the relations between members applying sanctions and the Covenant-breaking state could be called into question, there would exist between them a state of peace. Whether or not the Covenant-breaking state would choose to regard measures directed against it as creating a state of war would, as in the case of reprisals, be governed by political considerations.1 Relations between members of the League, whether among those applying the sanctions or between these and other members who did not consider the Covenant to have been broken, must be governed by provisions of paragraph 3 of Article 16 and by the view that each member, "while entitled to decide for itself if there has been a breach of the Covenant which justifies and obliges it to apply Article 16 is bound as a party to the article to recognise the right of the other Members to hold for their part that there has been a breach of the Covenant and to interrupt intercourse between the peccant State and the nationals and territory of all other States, including those of the Member itself." 2 This view presupposes a large measure of cooperation between League members, but it is supported by later provisions in the Covenant.3 1 Official Journal, 1927, p. 835. * Ibid., p. 836. 3 Article 20. " 1. The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof and solemnly undertake that

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The most delicate questions in connection with the operation of League economic sanctions, applied without declaration of war and partaking of the nature of a pacific blockade, arise when the position of third states is considered.1 However obvious it may be that the application of League sanctions is a means of maintaining world peace, in which third states presumably have an interest, it must be assumed that any third state "will claim to the utmost all the rights which it can found upon international law as it existed before the Covenant. . . ." 2 Rules of international law which govern measures to be taken by member states within their own territory are fairly clear. Should League members undertake to enforce a blockade beyond their own jurisdiction, however, difficulties would arise. If the states applying sanctions do not recognize that a state of war exists they are precluded from claiming belligerent rights against third states. Under such circumstances the application of economic sanctions which took form in blockade measures would be confined to the scope of a joint pacific blockade. Existing law of pacific blockade is in many respects uncertain, but it is clear they will not hereafter enter into any engagements inconsistent with the terms thereof. 2. In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations." In the proposed amendments of 1921 the Assembly approved the view that residence and not nationality should be the test for the severance of intercourse. League Doc. A.14.1927.V, p. 42, par. I. This was repeated in an amendment drawn up in 1924 where, however, it was stated that members were entitled, if they deemed it expedient, to apply the test of nationality. Ibid., p. 48. 1 By "third states" is meant states neither parties to the aggression (re2 sort to war) nor members of the League. Official Journal, 1927, p. 838.

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that such a measure may not, in the absence of specific agreement, impair the peace-time rights of third states. It is true, however, that before 1914 there was an increasing tendency "to recognise that a pacific blockade imposed in the interests of international order by a number of Powers had a much higher claim to be regarded as an institution of international law than a blockade enforcing the particular interests of certain Powers. . . . " 1 A pacific blockade under Article 16 would obviously be entitled to the full benefit of any such view, but League members have not so far been willing to assume grave responsibilities in the absence of positive assurances of world cooperation. In his 1927 report the Secretary-General pointed out that the efficacy of economic sanctions based on a pacific blockade would be greatly diminished if vessels of third states were allowed to pass freely.2 He might have added that a League blockade would probably never be attempted unless the attitude of the United States and possibly also of Russia were known in advance. So long as a League blockade remained a pacific blockade, insistence by the United States and Russia upon their rights under international law would practically preclude successful application of this measure. The League must recognize the body of customary international law which governs certain phases of peace-time use of force and particularly the practice of pacific blockade.3 There are in fact only two possible ways of 1

3

Ibid., p. 839.

2

Ibid.

As Appendix II the Secretary-General attached to his report " A Memorandum on Pacific Blockade up to the Time of the Foundation of the League of Nations," by M. Giraud. The memorandum reaches a conclusion hardly justified by the facts, even the incomplete set of facts presented. In spite of

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making the sanctions of Article 16 practicable, thereby obviating the vacillation so clearly evident during the recent crisis in the Far East. Either it must be admitted that the application of League sanctions initiates a status of war or the cooperation of important non-League members must be secured in advance of their application. Under the first alternative states applying sanctions would be entitled to apply the blockade to neutral vessels as a belligerent right, but the probability of resort to the use of League sanctions would be minimized if League members were required in all cases to declare war. The efficacy of Article 16 rests largely on a reasonable certainty that members will not hesitate in proper cases to assume the obligations which it imposes. Its possible deterrent effect must, therefore, be diminished by any condition which renders its operation particularly onerous and uncertain. The second alternative, that of securing the gratuitous cooperation of important non-League members in advance of the application of economic sanctions, becomes essential if League sanctions are to be practicable. Whatever doubt may remain in the minds of many persons concerning the general question of the desirability or necessity of sanctions, it must surely be apparent that, had the fact that only the French Government has consistently favored enforcement of pacific blockade against third state vessels (although it has not been able in face of protest to do so) and that no pacific blockade of any importance (possibly the blockade of Montenegro in 1913 is an exception) from 1850 to 1914 was enforced against third state vessels, M. Giraud concludes that "most precedents are in favour of the enforcement.. . against third States. . . . " #He admits, however, that "the contrary doctrine is strongly upheld by the Government of the United States, and is sometimes admitted by the British Government." Ibid.., p. 845.

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the League members been formally assured, in the early phases of the recent Japanese venture in Manchuria, of the cooperation of the United States, there would have been less general reluctance at Geneva to consider the possibility of joint action. In that event Japan's policies in the Far East would have been subjected to restraining influences which would doubtless have avoided altogether the Shanghai incident in 1932 and the consummation of the virtual conquest of Manchuria. To say that the League failed to prevent an obvious case of aggression because of the unwillingness of its members to assume the task and the responsibility of restraining Japan by positive action is to overlook the immediate difficulty. The League's failure (for it was a failure) was inevitable. It was inevitable partly because its constitution has been so interpreted that its members are under no legal obligation to act in such circumstances, but a very real difficulty is that members have been driven to that interpretation because it has been recognized ever since the League was created that the United States must hold the key position in any situation which might require the application of Article 16. However willing the rest of the world may be to assume positive obligations in behalf of the maintenance of peace, uncertainty as to the attitude of the United States operates as a bar to the consummation of any practicable plan. During the brief period of public enthusiasm for the Pact of Paris it was believed by many that the United States, in becoming a party to that agreement, had pledged itself to a principle which would demand some form of joint action in the event of a breach by a co-signatory. The illusory nature of that

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belief is now apparent, unless the non-recognition doctrine which was expounded in Mr. Stimson's note of January 7,1932, is to be accepted as a positive contribution of the United States to the enforcement of the Pact of Paris.1 The doctrine of non-recognition is based on the assumption that the Pact of Paris renders war illegal, 1

The Secretary of State issued on January 7, 1982, an identic note to the Japanese and Chinese Governments. In the form of a caveat it announced what may be called a nullity doctrine. So far as it refers to the Pact of Paris the note indicates that the United States "does not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which treaty both China and Japan, as well as the United States, are parties." Department of State, Press Releases, January 9, 1932, pp. 41-42. In a letter to Senator Borah, dated February 23,1932, Mr. Stimson clearly indicates his hope that the common action which practically compelled Japan to give up the fruits of the Sino-Japanese War of 1895 and to restore Shantung to China in 1922 would be repeated. "If a similar decision should be reached and a similar position taken by the other governments of the world, a caveat will be placed upon such action, which, we believe, will effectively bar the legality hereafter of any title or right sought to be obtained by pressure or treaty violation, and which, as has been shown by history in the past, will eventually lead to the restoration to China of rights and titles of which she may have been deprived." Ibid., February 27, 1932, p. 205. The history of Japan's previous ventures in China differs from the present episode. By the Treaty of Peace signed at Shimonoseki, April 17, 1895, ending the Sino-Japanese War, China ceded to Japan portions of the Liaotung Peninsula, including Port Arthur and Dalny. Subsequently, at the insistence of Russia, France, and Germany, Japan reluctantly retroceded this territory to China in return for an additional indemnity. Russia at once (1898) acquired for herself a 25-year lease of the Liaotung Peninsula. See J. V. A. MacMurray, Treaties and Agreements ivith and Concerning China, 1894-1919, ι, 18-25, 119. Japan, in 1914, entered the World War on the side of the Allies and immediately seized German possessions in Shantung. She then strengthened her position by the 1915 treaties with China, but at the Paris and Washington Conferences she was compelled to relinquish much of her gain. See ibid., pp. 1216, 1220, 1229, 1230-1237, 1485; Sen. Doe., No. 166, 67th Cong., 2nd Sess. (1922). The pseudo-independent state of Manchukuo has not yet become a possession of Japan and its restoration to China presents problems quite different from those of 1905 and 1922.

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although the right of self-defense remains as a limitation to the terms of the Pact. Mr. Stimson has stated that the limits of self-defense "have been clearly defined by countless precedents." 1 It would be interesting to know what these "countless precedents" are, for a clear definition of self-defense has been the object of an immense amount of endeavor by the League of Nations in its futile attempt to define aggression. Aggression is the opposite of self-defense, and if we are as certain of our definition of self-defense as Mr. Stimson indicates surely the definition of aggression is available. It may well be doubted, however, whether the terms of the Pact are to be construed as broadly as Mr. Stimson suggests. Certainly offensive war is abjured, but what of the use of force short of war? There are many reasons for believing that the term "war" in the Pact of Paris refers to a legal status (de jure war) rather than to all measures of force.2 It may well be questioned whether the states which ratified the Pact understood that it meant, as Mr. Stimson suggests, that "hereafter when two nations engage in armed conflict either one or both of them must be wrongdoers— violators of this general treaty law." 3 Even assuming the broadest construction of its terms the Pact of Paris seems to lack essential means of accomplishing its purpose. Mr. Stimson has stated that "it rests upon the sanction of public opinion, which can be made one of the most potent sanctions of the world" 4 and President Hoover has described it as a means of rendering public 1 "The Pact of Paris, Three Years of Development," Address before the Council on Foreign Relations, August 8, 1932. * "International Law and Resort to Armed Force," J. L. Brierly, Cambridge Law Journal, vol. iv, No. S (1982), p. 808. 4 * Address of August 8, 1932, n. 1, supra. Ibid.

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opinion "tangible and effective." 1 It is a hopeful sign that both the President and his Secretary of State admitted the necessity of consultation between the signatories of the Pact in the face of threatened violation. But what then? Is consultation to be limited in its possible results to the general adoption of a non-recognition policy? If world public opinion is to be given effect in times of international crises solely to the extent of a general refusal among states to recognize a fact the desirability as well as the efficacy of such a "sanction" may well be questioned. The only positive outcome of the non-recognition doctrine would be the refusal by the non-recognizing states to deal with the defacto authorities in a community such as Manchukuo. Even if the United States were willing to join with members of the League in an attempt to apply an economic boycott against Manchukuo it is doubtful if such a step would seriously interfere with Japan's position or policy in the Far East. Joint action, or the imminent possibility of joint action, by the United States and League powers against Japan might well bring about a revision of a "situation, treaty, or agreement" which is violative of the Pact. Short of that, however, a mere stamp of illegality can mean little.2 It is not surprising that "the American policy seems to the Chinese to be chiefly composed of words having little effect on the hard realities of the actual situation," and that China's reaction to the Stimson doctrine is one of "scepticism mixed with eagerness to believe." 3 1

Acceptance Speech, August 11, 1932. Cf. "The New Doctrine of 'Recognition,'" Sir John Fischer Williams, Grotius Society, June 80, 1932. s T. Z. Koo, Williamstown Address, August 16, 1932, Boston Herald, August 17, 1932. 2

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Active cooperation of the United States in the work of preserving world peace by common action by no means presupposes that the United States must become a member of the League of Nations. After all, through the Pact of Paris we are formally pledged to the principle upon which the Covenant is founded and which has constantly motivated every activity of the League since its creation. The difference between the Covenant and the Pact is that the former is supplied with machinery which must remain ineffective in the absence of the cooperation of the United States, while the latter has no machinery at all.1 Whether we attach new machinThe position of the United States is well illustrated in the following paragraphs: " (1) . . . If the United States could at least go as far as to agree, in the event of a violation of the Pact of Paris, to advise as to steps which might be taken, thus minimizing the possibility of conflict with the operation of any mutual assistance plans of States bound by the Covenant, (2) Great Britain, in a more positive way, might be enabled to extend additional assurances of security to the continental states feeling in need of it before venturing to disarm, while (3) France might then be willing both to reduce armaments and agree to the possibility and necessity of periodical adjustments and revisions of treaties envisaged in Article 19 of the Covenant, provided that (4) Germany, in return for her insistence on equal security and treatment, could agree to forego any intentions of bringing about such changes by force. In this way it is possible that the views and positions of the groups could be harmonized, and America by taking a minimum negative position would start the process on which the whole solution appears to depend." Introduction, Pitman B. Potter, Sanctions and Security, p. 6 (1932). 1 It is only too true that "the pact itself does not prescribe or authorize any procedure for its observance or enforcement. It is an instrument of renunciation, not a constitution of mechanism for enforcing peace. I t must rely, for efficacy, upon the sanction of public opinion." But it is also true that "the problem of maintaining peace is a common or world problem; it is the proper concern of the whole community of nations, not a right or an obligation peculiar to any one nation." Both statements are from the same speech of S. K. Hornbeck, Chief of the Division of Far Eastern Affairs, U. S. Department of State, delivered at a meeting of the American Society of

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ery to the Pact or help to make effective the machinery already set up to support the principle of the Pact is not a vital question so long as we cross one bridge or the other. In any event, we must offer more than words if we are to assume a fair portion of the responsibility for world peace which attaches to each member of the international community. A pledge to consult in times of crises, a consultative pact, is possibly the first immediate step, but it is only preliminary and must be followed either by attaching international machinery and common commitments to the Pact of Paris or by assurance of American cooperation with the League in case that body undertakes to enforce the principles on which the Pact is founded.1 The brief history of Article 16 has brought to light the practical problems which must be solved before any system of international material guarantees will become a reality. The experience of the League emphasizes above all the fact that the defection of a single powerful state International Law, April 29, 1932; Department of State, Press Releases, April SO, 1932, p. 394 et seq. But adherence to a peace pact which lacks all means for rendering it operative in times of crises cannot be regarded as assumption of a fair share of the common responsibility which each state must bear in maintaining world peace. 1 The latest expression of a plan to achieve this end is found in Boycotts and Peace, A Report by the Committee on Economic Sanctions, edited by Evans Clark (1932). Cf. Philip C. Jessup, "American Neutrality and International Police," W. P. F. Pam., χι, 460-461 (1928). The United States has already actively but "unofficially" cooperated with the League. See Clarence A. Berdahl, "Relations of the United States with the Assembly of the League of Nations," 26 American Political Science Review 99 (1932); Berdahl, "Relations of the United States with the Council of the League of Nations," ibid., p. 497; Berdahl, "The United States and the League of Nations," 27 Michigan Law Review 607 (1929); Hudson, Progress in International Organization, p. 107.

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is sufficient to prevent the realization of an effective organization for world peace. Insistence by the United States upon traditional rights under international law would defeat the purpose of the system of international sanctions suggested in Article 16 of the Covenant. It is apparent also that states are reluctant as yet to undertake general commitments which may require them to apply coercive sanctions in regions of the world where they have no direct interests. The failure of the Geneva Protocol and the success of the Locarno treaties constitute the expression and suggest the solution of this difficulty. The unwillingness of small states to commit themselves to the application of coercive sanctions against powerful neighbors is a particular expression of this reluctance and one founded on more justifiable apprehension. In some measure, the fears of the small states were allayed by formulation of a proposed amendment to Article 16, generally approved by members of the League, to the effect that the obligations of particular members under the Article might be suspended by the Council. Finally, there remains the difficult problem of determining the occasion for the application of sanctions. T o be effective sanctions must become operative at some moment determinable by objective tests; if they are to be joint sanctions they should be applied simultaneously by a number of members sufficient to render them overwhelmingly effective. League members have so far been unwilling to accept a recommendation of the Council as a verdict directing the application of sanctions; they are unwilling also to extend the occasion beyond its present narrow confines of de jure

172 FORCE IN PEACE war. The result has been a reversion to the individual judgment of each member, a consequent elimination of certainty and unity from the system of sanctions envisaged in Article 16, and the limitation of even this restricted possibility to a legal status which aggressor states have constantly been able to avoid.

CONCLUSION THE task of devising effective guarantees of international peace and order remains as yet barely begun. The League of Nations constitutes a beginning but it is inadequate to the immediate needs of an international community whose members are more and more impelled to recognize the necessity of common organization and common action for peace. The very existence of the League, however, must tend to accelerate appreciation of the fact that the state is not a final form of society, that it is merely a member of a larger community, and that this international community must evolve by the same process and under the same practical necessities which characterized the formation of centralized national states.1 That process has included amalgamation of smaller groups into larger and more nearly selfsufficing units. Although the development of national units has often been advanced by deliberate and aggressive means, it has been motivated largely by a constant tendency to seek national security. The necessity of common action to offset common danger has been the 1 " Civilisation, as it exists today, has been laboriously constructed upon the formulation and codification of law by legislatures and the judiciary; the institution of courts of justice to define, interpret and administer the law; and the provision of sanctions to enforce the law. Human nature has adapted itself to all these various changes and developments. It is true that it has taken many centuries to do so, but nevertheless, it has slowly but surely acquiesced in this evolution from a state of barbarism. How, therefore, can it be argued that human nature is violently opposed to the same principles when they are applied to international relationships?" Davies, op. cit., p. 159.

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lesson of chaos and disorder within the state. Today, almost abruptly, members of the international community are compelled to recognize the futility of striving to build world peace on a system of state self-help characterized by arbitrary force and international anarchy. A host of post-war problems have virtually driven states into frequent conference and even into common action. The World War contributed problems which could be approached only through international organization. Many of these problems have thus been successfully disposed of, but a sense of security and faith in continuing international peace has not yet been realized. Indeed, if the piling up of weapons of destruction be any indication of the lack of faith in international agencies for the preservation of peace, it must be admitted that little real progress has been made since 1913. The Covenant of the League represents definite progress for it does carry over into the international sphere the principle, limited though it is, of positive action in the interests of world peace. International sanctions to discourage precipitate resort to war are at least proposed in Article 16. While their application is not clearly provided for, the implied responsibility of individual states to the international community and the expressed interest of that community in whatever concerns peace constitute progress.1 If the practical necessity for the existence (not necessarily the use) of international sanctions in any effective system of international organization for the preservation of peace were as generally recognized as is the necessity for an executive branch of government in the modern state, acceptable plans for 1

Cf. Bruce Williams, op. cit., pp. 230-232.

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175

organization of joint sanctions would doubtless be realized. The case for international sanctions may be immediately advanced, therefore, as much by securing a more general appreciation of their necessity as by detailed statements of their possible application. It has been emphasized that there has long been recognized in international law the right of each state to protect, even by the use of force, those fundamental interests which involve the continued existence of the state. These interests give rise to rules or standards of international law or are at least recognized as valid under international law. There have always existed, therefore, potential sanctions for international law. This has been particularly true in the case of treaties, for whenever one party has failed to fulfill its obligations under a written agreement the other party has usually employed all the means within its power to enforce its treaty rights. Whether these means are limited to diplomatic pressure, severance of diplomatic relations, or economic pressure, or whether they involve the use of coercion, they are in effect and purpose sanctions of international law. The Covenant of the League of Nations is, of course, an international treaty and the fact that there has been a deliberate attempt to state within that treaty, in specific terms, what is usually left to implication need not be regarded as either novel or evil. The larger issue is: Is the enforcement of international law and order to be left in the hands of individual states acting without restraint and in their own interest, or shall it be transferred by common agreement to the world community acting in the interest of all its members? Shall each state continue to determine for

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itself the legality of its own conduct in international affairs, enforce its own views where it has the physical power to do so, pass final judgment upon the conduct of other states, and take such action in its own behalf as its material resources enable it to take? Or shall the enforcement of international law be transferred to the common counsel and joint action of the world community? 1 The immediate problem is not so much a choice between moral and coercive sanctions of law; it is a question of offering a practicable substitute for the existing system of self-help sanctions. To oppose international sanctions simply because they imply the possible use of coercion, restrained and regulated though it may be, is in reality to defend the existing self-help system based wholly on unregulated force. There can be no question of the continuance of the fundamental right of states to demand redress for violation of rights under international law. That these rights, real or assumed, have long been upheld by each state in proportion to its own physical resources is the history of war and peace since the system of national states came into being, bringing with it the modern system of international law. Enforcement has always been the ultimate support of this system, but self-help enforcement has given rise to international chaos and injustice. Unless this chaos, with its concomitants of suspicion, distrust, and armament competition, is to be continued, steps must be taken gradually to intrust the interests of each state to the common guarantee of all. This fundamental issue is seldom touched in the commonly stated objections to international sanctions. It 1

Cf. Mitrany, op. cit., p. 24.

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is said, for example, that coercive sanctions visit punishment upon an innocent population. That is a consequence of the state system and it is as inevitable under the present anarchic system of state self-help as it would be under a system of international sanctions.1 It is contended that international sanctions would fix an unsatisfactory status quo; the implication is that we ought to prefer violent changes brought about by arbitrary power, the method which has been the rule hitherto. But that contention begs the question, for the unsatisfactory status quo is in reality the obvious result of the absence of any international organization capable of enforcing principles of international law and justice.2 To the contention that moral sanctions, especially public opinion, are adequate to secure that respect for law which is as necessary in international as it is in national life, it may be answered that no state today gives evidence of a willingness to rely on moral sanctions. There is as yet no way of marshalling world public opinion, even assuming that it could take form in time to prevent international aggression. In any event, public opinion must find support, after it has found means of expression, in the probability of common action to uphold accepted standards. It is more than probable that, as civilization progresses, international order will rest less 1

David Hunter Miller, "Sanctions," Proceedings of Academy of Political Science, vol. x n , entitled International Problems and Relations, p. 45 (1926). 2 Some wag once defined the status quo as "the mess we are in now." "The truth is that the injustices which we are warned that we must in no case stereotype are but the latest product of a system which is incapable of producing anything else but injustice and disappointment; and that we cannot even begin to mend the effects until we have eradicated the cause. This is the first task — to stop the wanton rule of force." Mitrany, op. cit., p. 63.

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on ultimate coercive sanctions and more on the general acceptance of ethical and legal standards. These standards may ultimately become universally effective simply because of a general recognition of the interdependence of members of the world community. In that stage of development moral sanctions may suffice, but it is too much to hope that there will be a sudden leap from the present stage of international society, characterized by national force, to an ideal condition in which moral influences alone will render law and order universally operative. Even within the compact national state we are as yet still in the intermediate stage where community enforcement must stand behind impartial judgment. Advance from "anarchic decisions of private force" to "judgments of reason backed by an ultimate international sanction" 1 is a logical and a practicable next step. It is well to keep in mind that sanctions are not an end in themselves; they are essential parts of an international system the ideal of which is the preservation of international order free from wanton use of force. The organization of international sanctions represents an essential step in the direction of that ideal. A beginning must be made if the end is to be approached. It must be admitted that any plan for the application of international coercive sanctions will involve problems of extreme complexity. The objects of such a system of sanctions must necessarily be states and the possibility of resistance from a recalcitrant state would call for a high degree of unity in action and purpose among the enforcing states. It is necessary, also, to recognize that there must accompany the organization of international 1

Arnold-Forster, "Sanctions," op. cit., p. 1.

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sanctions definite improvement in the system of international law for the enforcement of which international sanctions would constitute the best guarantee. It is difficult to expect universal acceptance of the principle of obligatory jurisdiction until the present system of international law is provided with a surer foundation. It is perhaps unreasonable to expect states to assume the burden of mutual assistance until there is some assurance that all states will have recourse to adjudication before using force. Strengthening of the system of international law, acceptance of the principle of obligatory jurisdiction, and provision for international enforcement must therefore proceed together. Rigid insistence upon the complete realization of any one of these objectives prior to taking practical steps to realize the others must indefinitely postpone all progress. Historically, in any legal system, all have developed concurrently and the improvement of each element has aided in the development of the others.1 Finally, the effectiveness, and therefore the certainty, of international sanctions depends in large part upon the practicability of the test employed in determining the aggressor. The definition of aggression was not of great moment until the problem of sanctions became current.2 So long as the test of aggression remains resort 1 One is reminded of the League's struggle with the order of the trilogy, "security," "arbitration," and "disarmament." The last element, disarmament, enters our picture as a sequel to the first two. "Those sanctions are potentially the most effective which the would-be aggressor as well as his possible victim truly believes will be applied: then the one will think force and armaments useless, and the other will find them superfluous. In that way the present broken circle might be completed: arbitration strong enough to deserve sanctions; strong sanctions serving arbitration — the two cooperating to make national armaments unnecessary." Mitrany, op. cit., 2 p. 74. Cf. Eagleton, op. cit., p. 611.

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to "war," as it is in the League Covenant, in the Pact of Paris, and in many other post-war treaties, evasion is not difficult and the applicability of sanctions is confined to a sphere much narrower than the large purposes of these agreements seem to suggest. It is difficult if not impossible to determine when war begins unless one is to rely on the formal declarations of the parties; it has been seen that aggression goes on apace in the absence of this formal, legal, status. Aggression must not be limited to resort to war. It must be made synonymous with any use of armed force in international affairs prior to appeal to arbitration or judicial settlement. In 1927 M. Briand thus graphically illustrated the point: "Aggression has a way of betraying itself. After all, a cannon shot is a cannon shot. You can hear it and it often leaves its traces. The first to fire — it is surely fair to say that his act is not favourable to the cause of humanity, and if we can find the guilty party and bring him before the world tribunal and say : This blood, this havoc are his work — well that is something after all. . . . And when the first shot is fired and the League says 'Cease fire' well, if one of the adversaries refuses, we can surely say that he is not really very anxious about peace, and we can all see who he is." 1 The restraining order of "Cease fire" has been repeatedly handed down from Geneva during the past year, but it has lacked authority and effect. International peace requires a surer foundation, a foundation more nearly in accord with the facts of state existence and with the needs of a new era in the evolution of international society. 1

8th Assembly, Records, Plenary Meetings, September 10,1927, p. 92.

APPENDICES

A P P E N D I X

I

COVENANT OF THE LEAGUE OF NATIONS1 (In force, Januaiy 10,1920) T H E H I G H CONTRACTING PARTIES,

In order to promote international co-operation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honorable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another, Agree to this Covenant of the League of Nations. ARTICLE 1

1. The original Members of the League of Nations shall be those of the Signatories which are named in the Annex to this Covenant, and also such of those other States named in the Annex as shall accede without reservation to this Covenant. Such accessions shall be effected by a declaration deposited with the Secretariat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League. 2. Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guaranties of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League 1

With amendments in force, January 1, 1933.

APPENDICES in regard to its military, naval and air forces and armaments. 3. Any Member of the League may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal. 184

ARTICLE 2

The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat. ARTICLE

3

1. The Assembly shall consist of Representatives of the Members of the League. 2. The Assembly shall meet at stated intervals and from time to time, as occasion may require, at the Seat of the League, or at such other place as may be decided upon. 3. The Assembly may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world. 4. At meetings of the Assembly each Member of the League shall have one vote and may have not more than three Representatives. ARTICLE 4

1. The Council shall consist of Representatives of the Principal Allied and Associated Powers together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Greece and Spain shall be Members of the Council.1 1 An Assembly resolution of September 25, 1922, increased the nonpermanent members of the Council from four to six; by resolution of September 8, 1926, the number was increased to nine.

185 APPENDICES 2. With the approval of the majority of the Assembly, the Council may name additional Members of the League, whose Representatives shall always be Members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council. 2 bis. The Assembly shall fix by a two-thirds majority the rules dealing with the election of the non-permanent Members of the Council, and particularly such regulations as relate to their term of office and the conditions of reeligibility. 3. The Council shall meet from time to time as occasion may require, and at least once a year, at the Seat of the League, or at such other place as may be decided upon. 4. The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world. 5. Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a Member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League. 6. At meetings of the Council, each Member of the League represented on the Council shall have one vote, and may have not more than one Representative. ARTICLE 5

1. Except where otherwise expressly provided in this Covenant, or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting. 2. All matters of procedure of meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting. 3. The first meeting of the Assembly and the first meeting

186

APPENDICES

of the Council shall be summoned by the President of the United States of America. ARTICLE

6

1. The permanent Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary-General and such secretaries and staff as may be required. 2. The first Secretary-General shall be the person named in the Annex; thereafter the Secretary-General shall be appointed by the Council with the approval of the majority of the Assembly. 3. The secretaries and the staff of the Secretariat shall be appointed by the Secretary-General with the approval of the Council. 4. The Secretary-General shall act in that capacity at all meetings of the Assembly and of the Council. 5. The expenses of the League shall be borne by the Members of the League in the proportion decided by the Assembly. ARTICLE

7

1. The Seat of the League is established at Geneva. 2. The Council may at any time decide that the Seat of the League shall be established elsewhere. 3. All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women. 4. Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities. 5. The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable. ARTICLE

8

1. The Members of the League recognize that the maintenance of peace requires the reduction of national armaments

APPENDICES

187

to the lowest point consistent with national safety and the enforcement by common action of international obligations. 2. The Council, taking account of the geographical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments. 3. Such plans shall be subject to reconsideration and revision at least every 10 years. 4. After these plans shall have been adopted by the several Governments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council. 5. The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety. 6. The Members of the League undertake to interchange full and frank information as to the scale of their armaments, their military, naval and air programs, and the condition of such of their industries as are adaptable to warlike purposes. ARTICLE 9

A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Articles 1 and 8 and on military, naval and air questions generally. ARTICLE 1 0

The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression, the Council shall advise upon the means by which this obligation shall be fulfilled.

188

APPENDICES ARTICLE 11

1. Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise, the Secretary-General shall, on the request of any Member of the League, forthwith summon a meeting of the Council. 2. It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends. ARTICLE 12

1. The Membèrs of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to inquiry by the Council and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision or the report by the Council. 2. In any case under this Article, the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute. ARTICLE 1 3

1. The Members of the League agree that, whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration or judicial settlement and which can not be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement.

APPENDICES 189 2. Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact, which, if established, would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement. 3. For the consideration of any such dispute the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them. 4. The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto. ARTICLE

14

The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. ARTICLE

15

1. If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all

190 APPENDICES necessary arrangements for a full investigation and consideration thereof. 2. For this purpose the parties to the dispute will communicate to the Secretary-General, as promptly as possible, statements of their case, with all the relevant facts and papers, and the Council may forthwith direct the publication thereof. 3. The Council shall endeavor to effect a settlement of the dispute, and if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. 4. If the dispute is not thus settled, the Council either unanimously or by a majority vote, shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. 5. Any Member of the League represented on the Council may make public a statement of the facts of the dispute and of its conclusions regarding the same. 6. If a report by the Council is unanimously agreed to by the Members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report. 7. If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice. 8. If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement. 9. The Council may in any case under this Article refer

APPENDICES

191

the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, provided that such request be made within 14 days after the submission of the dispute to the Council. 10. In any case referred to the Assembly, all the provisions of this Article and of Article 12 relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the Assembly, if concurred in by the Representatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute, shall have the same force as a report by the Council concurred in by all the members thereof other than the Representatives of one or more of the parties to the dispute. ARTICLE 16

1. Should any Member of the League resort to war in disregard of its covenants under Articles 12,13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. 2. It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League. 3. The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which are taken under this Article, in order to minimize the loss and inconvenience resulting from the

192

APPENDICES

above measures, and that they will mutually support one another in resisting any special measures aimed at one of their number by the covenant-breaking State, and that they will take the necessary steps to afford passage through their territory to the forces of any of the Members of the League which are co-operating to protect the covenants of the League. 4. Any Member of the League which has violated any covenant of the League may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon. ARTICLE

17

1. In the event of a dispute between a Member of the League and a State which is not a Member of the League, or between States not Members of the League, the State or States not Members of the League shall be invited to accept the obligations of Membership in the League for the purposes of such dispute, upon such conditions as the Council may deem just. If such invitation is accepted, the provisions of Articles 12 to 16, inclusive, shall be applied with such modifications as may be deemed necessary by the Council. 2. Upon such invitation being given, the Council shall immediately institute an inquiry into the circumstances of the dispute and recommend such action as may seem best and most effectual in the circumstances. 3. If a State so invited shall refuse to accept the obligations of Membership in the League for the purposes of such dispute, and shall resort to war against a Member of the League, the provisions of Article 16 shall be applicable as against the State taking such action. 4. If both parties to the dispute, when so invited, refuse to accept the obligations of Membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute.

APPENDICES

193

ARTICLE 1 8

Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered. ARTICLE 1 9

The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable, and the consideration of international conditions whose continuance might endanger the peace of the world. ARTICLE 2 0

1. The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof. 2. In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligation inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations. ARTICLE 2 1

Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace. ARTICLE 2 2

1. To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the

194

APPENDICES

States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant. 2. The best method of giving practical effect to this principle is that the tutelage of such peoples should be intrusted to advanced nations who, by reason of their resources, their experience or their geographical position, can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. 3. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. 4. Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory. 5. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defense of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League. 6. There are territories, such as Southwest Africa and certain of the South Pacific islands, which, owing to the sparse-

APPENDICES

195

ness of their population or their small size, or their remoteness from the centers of civilization, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. 7. In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge. 8. The degree of authority, control or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. 9. A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories, and to advise the Council on all matters relating to the observance of the mandates. ARTICLE

23

Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League : (a) will endeavor to secure and maintain fair and humane conditions of labor for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organizations; (b) undertake to secure just treatment of the native inhabitants of territories under their control; (c) will intrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children and the traffic in opium and other dangerous drugs; (d) will intrust the League with the general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest;

196 APPENDICES (e) will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League. In this connection, the special necessities of the regions devastated during the war of 1914-1918 shall be borne in mind; (f) will endeavor to take steps in matters of international concern for the prevention and control of disease. ARTICLE 2 4

1. There shall be placed under the direction of the League all international bureaus already established by general treaties, if the parties to such treaties consent. All such international bureaus and all commissions for the regulation of matters of international interest hereafter constituted shall be placed under the direction of the League. 2. In all matters of international interest which are regulated by general conventions but which are not placed under the control of international bureaus or commissions, the Secretariat of the League shall, subject to the consent of the Council and if desired by the parties, collect and distribute all relevant information and shall render any other assistance which may be necessary or desirable. 3. The Council may include as part of the expenses of the Secretariat the expenses of any bureau or commission which is placed under the direction of the League. ARTICLE 2 5

The Members of the League agree to encourage and promote the establishment and co-operation of duly authorized voluntary national Red Cross organizations having as purposes the improvement of health, the prevention of disease and the mitigation of suffering throughout the world. ARTICLE 2 6

1. Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly.

APPENDICES 197 2. No such amendment shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League. ANNEX I . ORIGINAL MEMBERS OF THE LEAGUE OF NATIONS, SIGNATORIES OF THE TREATY OF PEACE 1

United States of America Haiti Belgium Hedjaz Bolivia Honduras Brazil Italy British Empire Japan Canada Liberia Australia Nicaragua South Africa Panama New Zealand Peru India Poland China Portugal Cuba Rumania Ecuador Serb-Croat-Slovene State France Siam Greece Czecho-Slovakia Guatemala Uruguay States

Invited

Argentine Republic Chile Colombia Denmark II.

to Accede

to the

Netherlands Norway Paraguay Persia Salvador

Covenant2

Spain Sweden Switzerland Venezuela

FIRST SECRETARY-GENERAL OF THE LEAGUE OF NATIONS

The Honorable Sir James Eric Drummond, K.C.M.G., C.B. 1 The United States of America, Ecuador, and Hedjaz did not become original members. 2 AU these states acceded to the Covenant·

APPENDIX II DRAFT TREATY OF MUTUAL ASSISTANCE1 (Not in force, January 1, 1933) PREAMBLE

The High Contracting Parties, being desirous of establishing the general lines of a scheme of mutual assistance with a view to facilitate the application of Articles 10 and 16 of the Covenant of the League of Nations, and of a reduction or limitation of national armaments in accordance with Article 8 of the Covenant "to the lowest point consistent with national safety and the enforcement by common action of international obligations", agree to the following provisions: I. P A C T O F

NONAGGRESSION

ARTICLE 1

The High Contracting Parties solemnly declare that aggressive war is an international crime and severally undertake that no one of them will be guilty of its commission. A war shall not be considered as a war of aggression if waged by a State which is party to a dispute and has accepted the unanimous recommendation of the Council, the verdict of the Permanent Court of International Justice, or an arbitral award against a High Contracting Party which has not accepted it, provided, however, that the first State does not intend to violate the political independence or the territorial integrity of the High Contracting Party. II. G E N E R A L

ASSISTANCE

ARTICLE 2

The High Contracting Parties, jointly and severally, undertake to furnish assistance, in accordance with the provisions 1 Official Journal, 1923, p. 1521. The Draft Treaty was submitted by the Council of the League of Nations to member states under resolution of the Assembly, September 29, 1923,

APPENDICES

199

of the present Treaty, to any one of their number should the latter be the object of a war of aggression, provided that it has conformed to the provisions of the present Treaty regarding the reduction or limitation of armaments. ARTICLE 3

Menace of Aggression In the event of one of the High Contracting Parties being of opinion that the armaments of any other High Contracting Party are in excess of the limits fixed for the latter High Contracting Party under the provisions of the present Treaty, or in the event of it having cause to apprehend an outbreak of hostilities, either on account of the aggressive policy or preparations of any State party or not to the present Treaty, it may inform the Secretary-General of the League of Nations that it is threatened with aggression, and the SecretaryGeneral shall forthwith summon the Council. The Council, if it is of opinion that there is reasonable ground for thinking that a menace of aggression has arisen, may take all necessary measures to remove such menace, and in particular, if the Council thinks right, those indicated in sub-paragraphs (a), (6), (c), (d) and (e) of the second paragraph of Article 5 of the present Treaty. The High Contracting Parties which have been denounced and those which have stated themselves to be the object of a threat of aggression shall be considered as especially interested and shall therefore be invited to send representatives to the Council in conformity with Articles 4, 15 and 17 of the Covenant. The vote of their representatives shall, however, not be reckoned when calculating unanimity. ARTICLE 4

Hostilities In the event of one or more of the High Contracting Parties becoming engaged in hostilities, the Council of the League of Nations shall decide, within four days of notification being

200

APPENDICES

addressed to the Secretary-General, which of the High Contracting Parties are the objects of aggression and whether they are entitled to claim the assistance provided under the Treaty. The High Contracting Parties undertake that they will accept such a decision by the Council of the League of Nations. The High Contracting Parties engaged in hostilities shall be regarded as especially interested, and shall therefore be invited to send representatives to the Council (within the terms of Articles 4, 13 and 17 of the Covenant), the vote of their representative not being reckoned when calculating unanimity; the same shall apply to States signatory to any partial agreements involved on behalf of either of the two belligerents, unless the remaining Members of the Council shall decide otherwise. ARTICLE 5

Measures of Assistance The High Contracting Parties undertake to furnish one another mutually with assistance in the case referred to in Article 2 of the Treaty in the form determined by the Council of the League of Nations as the most effective, and to take all appropriate measures without delay in the order of urgency demanded by the circumstances. In particular, the Council may : (a) decide to apply immediately to the aggressor State the economic sanctions contemplated by Article 16 of the Covenant, the Members of the League not signatory to the present Treaty not being, however, bound by this decision, except in the case where the State attacked is entitled to avail itself of the Articles of the Covenant; (b) invoke by name the High Contracting Parties whose assistance it requires. N o High Contracting Party situated in a continent other than that in which opera-

APPENDICES

201

tions will take place shall, in principle, be required to co-operate in military, naval or air operations; (c) determine the forces which each State furnishing assistance shall place at its disposal; (d) prescribe all necessary measures for securing priority for the communications and transport connected with the operations; (e) prepare a plan for financial co-operation among the High Contracting Parties with a view to providing for the State attacked and for the States furnishing assistance the funds which they require for the operations; ( / ) appoint the Higher Command and establish the object and the nature of his duty. The representatives of States recognized as aggressors under the provisions of Article 4 of the Treaty shall not take part in the deliberations of the Council specified in this Article. The High Contracting Parties who are required by the Council to furnish assistance, in accordance with sub-paragraph (b), shall, on the other hand, be considered as especially interested, and, as such, shall be invited to send representatives, unless they are already represented, to the deliberations specified in sub-paragraphs (c), (d), (e) and ( / ) . M.

COMPLEMENTARY DEFENSIVE

AGREEMENTS

ARTICLE 6

For the purpose of rendering the general assistance mentioned in Articles 2, 3 and 5 immediately effective, the High Contracting Parties may conclude, either as between two of them or as between a larger number, agreements complementary to the present Treaty exclusively for the purpose of their mutual defense and intended solely to facilitate the carrying out of the measures prescribed in this Treaty, determining in advance the assistance which they would give to each other in the event of any act of aggression. Such agreements may, if the High Contracting Parties in-

202

APPENDICES

terested so desire, be negotiated and concluded under the auspices of the League of Nations. Ahtïcle 7 Complementary agreements, as defined in Article 6, shall, before being registered, be examined by the Council with a view to deciding whether they are in accordance with the principles of the Treaty and of the Covenant. In particular, the Council shall consider if the cases of aggression contemplated in these agreements come within the scope of Article 2 and are of a nature to give rise to an obligation to give assistance on the part of the other High Contracting Parties. The Council may, if necessary, suggest changes in the texts of agreements submitted to it. When recognized, the agreements shall be registered in conformity with Article 18 of the Covenant. They shall be regarded as complementary to the present Treaty, and shall in no way limit the general obligations of the High Contracting Parties nor the sanctions contemplated against the aggressor State under the terms of this Treaty. They will be open to any other High Contracting Party with the consent of the signatory States. Article 8 The States parties to complementary agreements may undertake in any such agreements to put into immediate execution, in the cases of aggression contemplated in them, the plan of assistance agreed upon. In this case they shall inform the Council of the League of Nations, without delay, concerning the measures which they have taken to ensure the execution of such agreements. Subject to the terms of the previous paragraph, the provisions of Articles 4 and 5 above shall also come into force both in the cases contemplated in the complementary agreements and in such other cases as are provided for in Article 2 but are not covered by the agreements.

APPENDICES

203

IV. D E M I L I T A R I Z E D Z O N E S ARTICLE

9

In order to facilitate the application of the present Treaty, any High Contracting Party may negotiate, through the agency of the Council, with one or more neighboring countries for the establishment of demilitarized zones. The Council, with the co-operation of the representatives of the Parties interested, acting as Members within the terms of Article 4 of the Covenant, shall previously ensure that the establishment of the demilitarized zone asked for does not call for unilateral sacrifices from the military point of view on the part of the High Contracting Parties interested. V. C O S T O F I N T E R V E N T I O N ARTICLE

10

The High Contracting Parties agree that the whole cost of any military, naval or air operations which are undertaken under the terms of the present Treaty and of the supplementary partial agreements, including the reparation of all material damage caused by operations of war, shall be borne by the aggressor State up to the extreme limits of its financial capacity. The amount payable under this article by the aggressor shall, to such an extent as may be determined by the Council of the League, be a first charge on the whole of the assets and revenues of the State. Any repayment by that State in respect of the principal money and interest of any loan, internal or external, issued by it, directly or indirectly, during the war shall be suspended until the amount due for cost and reparations is discharged in full.

APPENDICES

204 VI.

DISARMAMENT ARTICLE

11

The High Contracting Parties, in view of the security furnished them by this Treaty and the limitations to which they have consented in other international treaties, undertake to inform the Council of the League of the reduction or limitation of armaments which they consider proportionate to the security furnished by the general Treaty or by the defensive agreements complementary to the general Treaty. The High Contracting Parties undertake to co-operate in the preparation of any general plan of reduction of armaments which the Council of the League of Nations, taking into account the information provided by the High Contracting Parties, may propose under the terms of Article 8 of the Covenant. This plan should be submitted for consideration and approved by the Governments, and, when approved by them, will be the basis of the reduction contemplated in Article 2 of this Treaty. The High Contracting Parties undertake to carry out this reduction within a period of two years from the date of the adoption of this plan. The High Contracting Parties undertake, in accordance with the provisions of Article 8, paragraph 4, of the Covenant, to make no further increase in their armaments, when thus reduced, without the consent of the Council. ARTICLE

12

The High Contracting Parties undertake to furnish to the military or other delegates of the League such information with regard to their armaments as the Council may request. ARTICLE

13

The High Contracting Parties agree that the armaments determined for each of them, in accordance with the present

APPENDICES

205

Treaty, shall be subject to revision every five years, beginning from the date of the entry into force of this Treaty.

VII.

PKOTOCOL

ARTICLE 14

Maintenance of Existing Treaties Nothing in the present Treaty shall affect the rights and obligations resulting from the provisions of the Covenant of the League of Nations or of the Treaties of Peace signed in 1919 and 1920 at Versailles, Neuilly, St. Germain and Trianon, or from the provisions of treaties or agreements registered with the League of Nations and published by it at the date of the first coming into force of the present Treaty as regards the signatory or beneficiary Powers of the said treaties or agreements. ARTICLE 15

Compulsory Jurisdiction of the Court The High Contracting Parties recognize from to-day as ipso facto obligatory the jurisdiction of the Permanent Court of International Justice with regard to the interpretation of the present Treaty. AR.TICLE 16

Signature The present Treaty shall remain open for the signature of all States Members of the League of Nations or mentioned in the Annex to the Covenant. States not Members shall be entitled to adhere with the consent of two-thirds of the High Contracting Parties with regard to whom the Treaty has come into force.

206

APPENDICES ARTICLE 17

Partial

Adhesion

Any State may, with the consent of the Council of the League, notify its conditional or partial adherence to the provisions of this Treaty, provided always that such State has reduced or is prepared to reduce its armaments in conformity with the provisions of this Treaty. ARTICLE 1 8 1

Ratification

[The present Treaty shall be ratified and the instruments of ratification shall be deposited as soon as possible at the Secretariat of the League of Nations. It shall come into force : In Europe when it shall have been ratified by five States, of which three shall be permanently represented on the Council; In Asia when it shall have been ratified by two States, one of which shall be permanently represented on the Council; In North America when ratified by the United States of America; In Central America and the West Indies when ratified by one State in the West Indies and two in Central America; In South America when ratified by four States; In Africa and Oceania when ratified by two States. With regard to the High Contracting Parties which may subsequently ratify the Treaty, it will come into force at the date of the deposit of the instrument. The Secretariat will immediately communicate a certified copy of the instruments of ratification received to all the signatory Powers. 1 These articles (18 and 19) are given as an indication of subject-matter requiring further study by those Governments to which the draft is submitted with a view to arriving at a satisfactory and definite text.

APPENDICES

207

It remains understood that the rights stipulated under Articles 2, 3, 5, 6 and 8 of this Treaty will not come into force for each High Contracting Party until the Council has certified that the said High Contracting Party has reduced its armaments in conformity with the present Treaty or has adopted the necessary measures to ensure the execution of this reduction, within two years of the acceptance by the said High Contracting Party of the plan of reduction or limitation of armaments.] ARTICLE 19

Denunciation [The present Treaty shall remain in force for a period of fifteen years from the date of its first entry into force. After this period, it will be prolonged automatically for the States which have not denounced it. If, however, one of the States referred to in Article 18 denounces the present Treaty, the Treaty shall cease to exist as from the date on which this denunciation takes effect. This denunciation shall be made to the Secretariat of the League of Nations, which shall, without delay, notify all the Powers bound by the present Treaty. The denunciation shall take effect twelve months after the date on which notification has been communicated to the Secretariat of the League of Nations. When the period of fifteen years referred to in the first paragraph of the present Article has elapsed, or when one of the denunciations made in the conditions determined above takes place, if operations undertaken in application of Article 5 of the present Treaty are in progress, the Treaty shall remain in force until peace has been completely reestablished.]

A P P E N D I X III PROTOCOL FOR T H E PACIFIC OF INTERNATIONAL

SETTLEMENT

DISPUTES1

(Not in force, January 1, 1933) Animated by the firm desire to insure the maintenance of general peace and the security of nations whose existence, independence or territories may be threatened; Recognizing the solidarity of the members of the international community; Asserting that a war of aggression constitutes a violation of this solidarity and an international crime; Desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between States and of insuring the repression of international crimes; and For the purpose of realizing, as contemplated by Article 8 of the Covenant, the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations; The Undersigned, duly authorized to that effect, agree as follows : ARTICLE 1

The signatory States undertake to make every effort in their power to secure the introduction into the Covenant of amendments on the lines of the provisions contained in the following articles. They agree that, as between themselves, these provisions shall be binding as from the coming into force of the present 1

League Dec. C.606.M.211.1924.IX. Adopted by the Assembly of the League of Nations and opened for signature at Geneva, October 2, 1924.

APPENDICES

209

Protocol and that, so far as they are concerned, the Assembly and the Council of the League of Nations shall thenceforth have power to exercise all the rights and perform all the duties conferred upon them by the Protocol. ARTICLE 2

The signatory States agree in no case to resort to war either with one another or against a State which, if the occasion arises, accepts all the obligations hereinafter set out, except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly of the League of Nations in accordance with the provisions of the Covenant and of the present Protocol. ARTICLE S

The signatory States undertake to recognize as compulsory, ipso facto and without special agreement, the jurisdiction of the Permanent Court of International Justice in the cases covered by paragraph 2 of Article 36 of the Statute of the Court, but without prejudice to the right of any State, when acceding to the special protocol provided for in the said Article and opened for signature on December 16th, 1920, to make reservations compatible with the said clause. Accession to this special protocol, opened for signature on December 16th, 1920, must be given within the month following the coming into force of the present Protocol. States which accede to the present Protocol, after its coming into force, must carry out the above obligation within the month following their accession. ARTICLE 4

With a view to render more complete the provisions of paragraphs 4, 5, 6, and 7 of Article 15 of the Covenant, the signatory States agree to comply with the following procedure : 1. If the dispute submitted to the Council is not settled by it as provided in paragraph 3 of the said Article

210

APPENDICES

15, the Council shall endeavor to persuade the parties to submit the dispute to judicial settlement or arbitration. 2. (a) If the parties cannot agree to do so, there shall, at the request of at least one of the parties, be constituted a Committee of Arbitrators. The Committee shall so far as possible be constituted by agreement between the parties.. (6) If within the period fixed by the Council the parties have failed to agree, in whole or in part, upon the number, the names and the powers of the arbitrators and upon the procedure, the Council shall settle the points remaining in suspense. It shall with the utmost possible dispatch select in consultation with the parties the arbitrators and their President from among persons who by their nationality, their personal character and their experience, appear to it to furnish the highest guarantees of competence and impartiality. (c) After the claims of the parties have been formulated, the Committee of Arbitrators, on the request of any party, shall through the medium of the Council request an advisory opinion upon any points of law in dispute from the Permanent Court of International Justice, which in such case shall meet with the utmost possible dispatch. 3. If none of the parties asks for arbitration, the Council shall again take the dispute under consideration. If the Council reaches a report which is unanimously agreed to by the members thereof other than the representatives of any of the parties to the dispute, the signatory States agree to comply with the recommendations therein. 4. If the Council fails to reach a report which is concurred in by all its members, other than the representatives of any of the parties to the dispute, it shall submit the dispute to arbitration. It shall itself determine the composition, the powers and the procedure of the Committee of Arbitrators and, in the choice of the arbitrators,

211 APPENDICES shall bear in mind the guarantees of competence and impartiality referred to in paragraph 2 (b) above. 5. In no case may a solution, upon which there has already been a unanimous recommendation of the Council accepted by one of the parties concerned, be again called in question. 6. The signatory States undertake that they will carry out in full good faith any judicial sentence or arbitral award that may be rendered and that they will comply, as provided in paragraph 3 above, with the solutions recommended by the Council. In the event of a State failing to carry out the above undertakings, the Council shall exert all its influence to secure compliance therewith. If it fails therein, it shall propose what steps should be taken to give effect thereto, in accordance with the provision contained at the end of Article 13 of the Covenant. Should a State in disregard of the above undertakings resort to war, the sanctions provided for by Article 16 of the Covenant, interpreted in the manner indicated in the present Protocol, shall immediately become applicable to it. 7. The provisions of the present article do not apply to the settlement of disputes which arise as the result of measures of war taken by one or more signatory States in agreement with the Council or the Assembly. ARTICLE

5

The provisions of paragraph 8 of Article 15 of the Covenant shall continue to apply in proceedings before the Council. If in the course of an arbitration, such as is contemplated in Article 4 above, one of the parties claims that the dispute, or part thereof, arises out of a matter which by international law is solely within the domestic jurisdiction of that party, the arbitrators shall on this point take the advice of the Permanent Court of International Justice through the medium of the Council. The opinion of the Court shall be binding upon the arbitrators, who, if the opinion is affirmative, shall confine themselves to so declaring in their award.

212 APPENDICES If the question is held by the Court or by the Council, to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11 of the Covenant. ARTICLE 6

If in accordance with paragraph 9 of Article 15 of the Covenant a dispute is referred to the Assembly, that body shall have for the settlement of the dispute all the powers conferred upon the Council as to endeavoring to reconcile the parties in the manner laid down in paragraphs 1, 2 and 3 of Article 15 of the Covenant and in paragraph 1 of Article 4 above. Should the Assembly fail to achieve an amicable settlement : If one of the parties asks for arbitration, the Council shall proceed to constitute the Committee of Arbitrators in the manner provided in subparagraphs (a), (6) and (c) of paragraph 2 of Article 4 above. If no party asks for arbitration, the Assembly shall again take the dispute under consideration and shall have in this connection the same powers as the Council. Recommendations embodied in a report of the Assembly, provided that it secures the measure of support stipulated at the end of paragraph 10 of Article 15 of the Covenant, shall have the same value and effect, as regards all matters dealt with in the present Protocol, as recommendations embodied in a report of the Council adopted as provided in paragraph 3 of Article 4 above. If the necessary majority cannot be obtained, the dispute shall be submitted to arbitration and the Council shall determine the composition, the powers and the procedure of the Committee of Arbitrators as laid down in paragraph 4 of Article 4. ARTICLE 7

In the event of a dispute arising between two or more signatory States, these States agree that they will not, either before the dispute is submitted to proceedings for pacific

APPENDICES

213

settlement or during such proceedings, make any increase of their armaments or effectives which might modify the position established by the Conference for the Reduction of Armaments provided for by Article 17 of the present Protocol, nor will they take any measure of military, naval, air, industrial or economic mobilization, nor, in general, any action of a nature likely to extend the dispute or render it more acute. It shall be the duty of the Council, in accordance with the provisions of Article 11 of the Covenant, to take under consideration any complaint as to infraction of the above undertakings which is made to it by one or more of the States parties to the dispute. Should the Council be of opinion that the complaint requires investigation, it shall, if it deems it expedient, arrange for inquiries and investigations in one or more of the countries concerned. Such inquiries and investigations shall be carried out with the utmost possible dispatch and the signatory States undertake to afford every facility for carrying them out. The sole object of measures taken by the Council as above provided is to facilitate the pacific settlement of disputes and they shall in no way prejudge the actual settlement. If the result of such inquiries and investigations is to establish an infraction of the provisions of the first paragraph of the present Article, it shall be the duty of the Council to summon the State or States guilty of the infraction to put an end thereto. Should the State or States in question fail to comply with such summons, the Council shall declare them to be guilty of a violation of the Covenant or of the present Protocol, and shall decide upon the measures to be taken with a view to end as soon as possible a situation of a nature to threaten the peace of the world. For the purposes of the present Article decisions of the Council may be taken by a two-thirds majority. ARTICLE 8

The signatory States undertake to abstain from any act which might constitute a threat of aggression against another State.

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If one of the signatory States is of opinion that another State is making preparations for war, it shall have the right to bring the matter to the notice of the Council. The Council, if it ascertains that the facts are as alleged, shall proceed as provided in paragraphs 2,4, and 5 of Article 7. ARTICLE 9

The existence of demilitarized zones being calculated to prevent aggression and to facilitate a definite finding of the nature provided for in Article 10 below, the establishment of such zones between States mutually consenting thereto is recommended as a means of avoiding violations of the present Protocol. The demilitarized zones already existing under the terms of certain treaties or conventions, or which may be established in future between States mutually consenting thereto, may at the request and at the expense of one or more of the conterminous States, be placed under a temporary or permanent system of supervision to be organized by the Council. ARTICLE 1 0

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. In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare : 1. If it has refused to submit the dispute to the procedure of pacific settlement provided by Articles 13 and 15 of the Covenant as amplified by the present Protocol, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognizing that the dispute between it and the other belligerent State

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arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State; nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly, in accordance with Article 11 of the Covenant. 2. If it has violated provisional measures enjoined by the Council for the period while the proceedings are in progress as contemplated by Article 7 of the present Protocol. Apart from the cases dealt with in paragraphs 1 and 2 of the present Article, if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution. Any belligerent which has refused to accept the armistice or has violated its terms shall be deemed an aggressor. The Council shall call upon the signatory States to apply forthwith against the aggressor the sanctions provided by Article 11 of the present Protocol, and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent. ARTICLE 1 1

As soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 of the present Protocol, the obligations of the said States, in regard to the sanctions of all kinds mentioned in paragraphs 1 and 2 of Article 16 of the Covenant, will immediately become operative in order that such sanctions may forthwith be employed against the aggressor. Those obligations shall be interpreted as obliging each of the signatory States to co-operate loyally and effectively in support of the Covenant of the League of Nations, and in resistence to any act of aggression, in the degree which its geographical position and its particular situation as regards armaments allow.

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In accordance with paragraph 3 of Article 16 of the Covenant the signatory States give a joint and several undertaking to come to the assistance of the State attacked or threatened, and to give each other mutual support by means of facilities and reciprocal exchanges as regards the provision of raw materials and supplies of every kind, openings of credits, transport and transit, and for this purpose to take all measures in their power to preserve the safety of communications by land and by sea of the attacked or threatened State. If both parties to the dispute are aggressors within the meaning of Article 10, the economic and financial sanctions shall be applied to both of them. ARTICLE 12

In view of the complexity of the conditions in which the Council may be called upon to exercise the functions mentioned in Article 11 of the present Protocol concerning economic and financial sanctions, and in order to determine more exactly the guarantees afforded by the present Protocol to the signatory States, the Council shall forthwith invite the economic and financial organizations of the League of Nations to consider and report as to the nature of the steps to be taken to give effect to the financial and economic sanctions and measures of co-operation contemplated in Article 16 of the Covenant and in Article 11 of this Protocol. When in possession of this information, the Council shall draw up through its competent organs: 1. Plans of action for the application of the economic and financial sanctions against an aggressor State; 2. Plans of economic and financial co-operation between a State attacked and the different States assisting it; and shall communicate these plans to the Members of the League and to the other signatory States. ARTICLE 1 3

In view of the contingent military, naval and air sanctions provided for by Article 16 of the Covenant and by Article 11

217 APPENDICES of the present Protocol, the Council shall be entitled to receive undertakings from States determining in advance the military, naval and air forces which they would be able to bring into action immediately to insure the fulfilment of the obligations in regard to sanctions which result from the Covenant and the present Protocol. Furthermore, as soon as the Council has called upon the signatory States to apply sanctions, as provided in the last paragraph of Article 10 above, the said States may, in accordance with any agreements which they may previously have concluded, bring to the assistance of a particular State, which is the victim of aggression, their military, naval and air forces. The agreements mentioned in the preceding paragraph shall be registered and published by the Secretariat of the League of Nations. They shall remain open to all States Members of the League which may desire to accede thereto. ARTICLE

14

The Council shall alone be competent to declare that the application of sanctions shall cease and normal conditions be re-established. ARTICLE

15

In conformity with the spirit of the present Protocol, the signatory States agree that the whole cost of any military, naval or air operations undertaken for the repression of an aggression under the terms of the Protocol, and reparation for all losses suffered by individuals, whether civilians or combatants, and for all material damage caused by the operations of both sides, shall be borne by the aggressor State up to the extreme limit of its capacity. Nevertheless, in view of Article 10 of the Covenant, neither the territorial integrity nor the political independence of the aggressor State shall in any case be affected as the result of the application of the sanctions mentioned in the present Protocol.

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The signatory States agree that in the event of a dispute between one or more of them and one or more States which have not signed the present Protocol and are not Members of the League of Nations, such non-Member States shall be invited, on the conditions contemplated in Article 17 of the Covenant, to submit, for the purpose of a specific settlement, to the obligations accepted by the States signatories of the present Protocol. If the State so invited, having refused to accept the said conditions and obligations, resorts to war against a signatory State, the provisions of Article 16 of the Covenant, as defined by the present Protocol, shall be applicable against it. ARTICLE 17

The signatory States undertake to participate in an International Conference for the Reduction of Armaments which shall be convened by the Council and shall meet at Geneva on Monday, June 15, 1925. All other States, whether Members of the League or not, shall be invited to this Conference. In preparation for the convening of the Conference, the Council shall draw up with due regard to the undertakings contained in Articles 11 and 13 of the present Protocol a general program for the reduction and limitation of armaments, which shall be laid before the Conference and which shall be communicated to the Governments at the earliest possible date, and at the latest three months before the Conference meets. If by May 1,1925, ratifications have not been deposited by at least a majority of the permanent Members of the Council and ten other Members of the League, the Secretary-General of the League shall immediately consult the Council as to whether he shall cancel the invitations or merely adjourn the Conference to a subsequent date to be fixed by the Council so as to permit the necessary number of ratifications to be obtained.

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ARTICLE 1 8

Wherever mention is made in Article 10, or in any other provision of the present Protocol, of a decision of the Council, this shall be understood in the sense of Article 15 of the Covenant, namely that the votes of the representatives of the parties to the dispute shall not be counted when reckoning unanimity or the necessary majority. ARTICLE 19

Except as expressly provided by its terms, the present Protocol shall not affect in any way the rights and obligations of Members of the League as determined by the Covenant. ARTICLE 2 0

Any dispute as to the interpretation of the present Protocol shall be submitted to the Permanent Court of International Justice. ARTICLE 2 1

The present Protocol, of which the French and English texts are both authentic, shall be ratified. The deposit of ratifications shall be made at the Secretariat of the League of Nations as soon as possible. States of which the seat of government is outside Europe will be entitled merely to inform the Secretariat of the League of Nations that their ratification has been given; in that case, they must transmit the instrument of ratification as soon as possible. So soon as the majority of the permanent Members of the Council and ten other Members of the League have deposited or have effected their ratifications, a procès-verbal to that effect shall be drawn up by the Secretariat. After the said procès-verbal has been drawn up, the Protocol shall come into force as soon as the plan for the reduction of armaments has been adopted by the Conference provided for in Article 17.

220 APPENDICES If within such period after the adoption of the plan for the reduction of armaments as shall be fixed by the said Conference, the plan has not been carried out, the Council shall make a declaration to that effect; this declaration shall render the present Protocol null and void. The grounds on which the Council may declare that the plan drawn up by the International Conference for the Reduction of Armaments has not been carried out, and that in consequence the present Protocol has been rendered null and void, shall be laid down by the Conference itself. A signatory State which, after the expiration of the period fixed by the Conference, fails to comply with the plan adopted by the Conference, shall not be admitted to benefit by the provisions of the present Protocol. In faith whereof the Undersigned, duly authorized for this purpose, have signed the present Protocol. Done at Geneva, on the second day of October, nineteen hundred and twenty-four, in a single copy, which will be kept in the archives of the Secretariat of the League and registered by it on the date of its coming into force.

APPENDIX IV TREATY OF MUTUAL GUARANTEE1 (In force, September 14, 1926) The President of the German Reich, His Majesty the King of the Belgians, the President of the French Republic, and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, His Majesty the King of Italy; Anxious to satisfy the desire for security and protection which animates the peoples upon whom fell the scourge of the war of 1914-1918; Taking note of the abrogation of the treaties for the neutralisation of Belgium, and conscious of the necessity of ensuring peace in the area which has so frequently been the scene of European conflicts; Animated also with the sincere desire of giving to all the signatory Powers concerned supplementary guarantees within the framework of the Covenant of the League of Nations and the treaties in force between them; Have determined to conclude a treaty with these objects, and have appointed as their plenipotentiaries : The President of the German Reich : Hans Luther, Gustav Stresemann; His Majesty the King of the Belgians: Emile Vandervelde; The President of the French Republic: Aristide Briand; His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India: Stanley Baldwin, Joseph Austen Chamberlain; His Majesty the King of Italy: Vittorio Scialoja; Who, having communicated their full powers, found in good and due form, have agreed as follows: ι 54 League of Nations Treaty Series, p. 289.

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Article 1. The high contracting parties collectively and severally guarantee, in the manner provided in the following articles, the maintenance of the territorial status quo resulting from the frontiers between Germany and Belgium and between Germany and France, and the inviolability of the said frontiers as fixed by or in pursuance of the Treaty of Peace signed at Versailles on June 28, 1919, and also the observance of the stipulations of articles 42 and 43 of the said treaty concerning the demilitarised zone. Art. 2. Germany and Belgium, and also Germany and France, mutually undertake that they will in no case attack or invade each other or resort to war against each other. This stipulation shall not, however, apply in the case of : (1) The exercise of the right of legitimate defence, that is to say, resistance to a violation of the undertaking contained in the previous paragraph or to a flagrant breach of articles 42 or 43 of the said Treaty of Versailles, if such breach constitutes an unprovoked act of aggression and by reason of the assembly of armed forces in the demilitarised zone immediate action is necessary; (2) Action in pursuance of article 16 of the Covenant of the League of Nations; (3) Action as the result of a decision taken by the Assembly or by the Council of the League of Nations or in pursuance of article 15, paragraph 7, of the Covenant of the League of Nations, provided that in this last event the action is directed against a State which was the first to attack. Art. 3. In view of the undertakings entered into in article 2 of the present treaty, Germany and Belgium, and Germany and France, undertake to settle by peaceful means and in the manner laid down herein all questions of every kind which may arise between them and which it may not be possible to settle by the normal methods of diplomacy: Any question with regard to which the parties are in conflict as to their respective rights shall be submitted to judicial decision, and the parties undertake to comply with such decision. All other questions shall be submitted to a conciliation

APPENDICES 223 commission. If the proposals of this commission are not accepted by the two parties, the question shall be brought before the Council of the League of Nations, which will deal with it in accordance with article 15 of the Covenant of the League. The detailed arrangements for effecting such peaceful settlement are the subject of special agreements signed this day. Art. 4. (1) If one of the high contracting parties alleges that a violation of article 2 of the present treaty or a breach of articles 42 or 43 of the Treaty of Versailles has been or is being committed, it shall bring the question at once before the Council of the League of Nations. (2) As soon as the Council of the League of Nations is satisfied that such violation or breach has been committed, it will notify its finding without delay to the Powers signatory of the present treaty, who severally agree that in such case they will each of them come immediately to the assistance of the Power against whom the act complained of is directed. (3) In case of a flagrant violation of article 2 of the present treaty or of a flagrant breach of articles 42 or 43 of the Treaty of Versailles by one of the high contracting parties, each of the other contracting parties hereby undertakes immediately to come to the help of the party against whom such a violation or breach has been directed as soon as the said Power has been able to satisfy itself that this violation constitutes an unprovoked act of aggression and that by reason either of the crossing of the frontier or of the outbreak of hostilities or of the assembly of armed forces in the demilitarised zone immediate action is necessary. Nevertheless, the Council of the League of Nations, which will be seized of the question in accordance with the first paragraph of this article, will issue its findings, and the high contracting parties undertake to act in accordance with the recommendations of the Council provided that they are concurred in by all the members other than the representatives of the parties which have engaged in hostilities. Art. 5. The provisions of article 3 of the present treaty are placed under the guarantee of the high contracting parties as provided by the following stipulations ;

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If one of the Powers referred to in article 3 refuses to submit a dispute to peaceful settlement or to comply with an arbitral or judicial decision and commits a violation of article 2 of the present treaty or a breach of articles 42 or 43 of the Treaty of Versailles, the provisions of article 4 of the present treaty shall apply. Where one of the Powers referred to in article 3 without committing a violation of article 2 of the present treaty or a breach of articles 42 or 43 of the Treaty of Versailles, refuses to submit a dispute to peaceful settlement or to comply with an arbitral or judicial decision, the other party shall bring the matter before the Council of the League of Nations, and the Council shall propose what steps shall be taken; the high contracting parties shall comply with these proposals. Art. 6. The provisions of the present treaty do not affect the rights and obligations of the high contracting parties under the Treaty of Versailles or under arrangements supplementary thereto, including the agreements signed in London on August 30, 1924. Art. 7. The present treaty, which is designed to ensure the maintenance of peace, and is in conformity with the Covenant of the League of Nations, shall not be interpreted as restricting the duty of the League to take whatever action may be deemed wise and effectual to safeguard the peace of the world. Art. 8. The present treaty shall be registered at the League of Nations in accordance with the Covenant of the League. It shall remain in force until the Council, acting on a request of one or other of the high contracting parties notified to the other signatory Powers three months in advance, and voting at least by a two-thirds' majority, decides that the League of Nations ensures sufficient protection to the high contracting parties; the treaty shall cease to have effect on the expiration of a period of one year from such decision. Art. 9. The present treaty shall impose no obligation upon any of the British dominions, or upon India, unless the Government of such dominion, or of India, signifies its acceptance thereof. Art. 10. The present treaty shall be ratified and the rati-

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fications shall be deposited at Geneva in the archives of the League of Nations as soon as possible. It shall enter into force as soon as all the ratifications have been deposited and Germany has become a member of the League of Nations. The present treaty, done in a single copy, will be deposited in the archives of the League of Nations, and the SecretaryGeneral will be requested to transmit certified copies to each of the high contracting parties. In faith whereof the above-mentioned plenipotentiaries have signed the present treaty. Done at Locarno, October 16, 1925. (Signed) Hans Luther, Gustav Stresemann, Emile Vandervelde, Aristide Briand, Stanley Baldwin, Austen Chamberlain, Vittorio Scialoja.

APPENDIX

V

TREATY FOR THE RENUNCIATION OF WAR1 (In force, July 24, 1929) The President of the German Reich, the President of the United States of America, His Majesty the King of the Belgians, the President of the French Republic, His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, His Majesty the King of Italy, His Majesty the Emperor of Japan, the President of the Republic of Poland, the President of the Czechoslovak Republic, Deeply sensible of their solemn duty to promote the welfare of mankind; Persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated; Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty ; Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavor and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting the civilized nations of the world in a common renunciation of war as an instrument of their national policy; Have decided to conclude a Treaty and for that purpose have appointed as their respective Plenipotentiaries : 1

U. S. Treaty Series, No. 796; 94 League of Nations Treaty Series, p. 57·

APPENDICES m The President of the German Reich: Gustav Stresemann; The President of the United States of America: Frank B. Kellogg; His Majesty the King of the Belgians: Paul Hymans; The President of the French Republic: Aristide Briand; His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India: For Great Britain and Northern Ireland and all parts of the British Empire which are not separate Members of the League of Nations: Lord Cushendun; For Canada: William Lyon Mackenzie King; For Australia: Alexander John McLachlan; For New Zealand: Christopher James Parr; For the Union of South Africa: Jacobus Stephanus Smit; For the Irish Free State: William Thomas Cosgrave; For India: Lord Cushendun; His Majesty the King of Italy: Gaetano Manzoni; His Majesty the Emperor of Japan: Count Uchida; The President of the Republic of Poland: A. Zaleski; The President of the Czechoslovak Republic: Eduard Benès; who, having communicated to one another their full powers found in good and due form have agreed upon the following articles : Article 1. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. Art. 2. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means. Art. 3. The present Treaty shall be ratified by the High Contracting Parties named in the Preamble in accordance with their respective constitutional requirements, and shall take effect as between them as soon as all their several instru-

228

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merits of ratification shall have been deposited at Washington. This Treaty shall, when it has come into effect as prescribed in the preceding paragraph, remain open as long as may be necessary for adherence by all the other Powers of the world. Every instrument evidencing the adherence of a Power shall be deposited at Washington and the Treaty shall immediately upon such deposit become effective as between the Power thus adhering and the other Powers parties hereto. It shall be the duty of the Government of the United States to furnish each Government named in the Preamble and every Government subsequently adhering to this Treaty with a certified copy of the Treaty and of every instrument of ratification or adherence. It shall also be the duty of the Government of the United States telegraphically to notify such Governments immediately upon the deposit with it of each instrument of ratification or adherence. In faith whereof the respective Plenipotentiaries have signed this Treaty in the French and English languages both texts having equal force, and hereunto affix their seals. Done at Paris, the twenty-seventh day of August in the year one thousand nine hundred and twenty-eight.

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INDEX

INDEX Adams, President, 61,167 Aggression, attempt to define, 116; Geneva Protocol and, 119 Alabama claims, 1872, SO Algeciras conference, 23 n. 2 Angary, 64 n. 4 Arbitral awards, 27, 32 Arbitral tribunals, use of international law by, 33 Arbitration, history of, 27; compulsory, 117 Armed force, recourse to, 8, 62, 95, 106, 133, 151 n. 2 Barrundia case, 76 n. 1 Bartolus, on necessity of self-help, 87 Bayonne decree, 69 n. 2 Belligerent rights and duties, 91 Bismarck, act of retorsion, 1885, 58 n. 1 Blackstone, on sanctions, 104 n. 2 Bloch, Jean de, on war, 111 Blockade, 98; Article 16 of the Covenant and, 153 n. 3. (See also Pacific blockade) Boedes Lust, case of, cited, 65 n. 1 Bombardment, of Greytown, 78; of Damascus, 80 n. 1 Boycott, unofficial, 71 n. 1 Brazil, British blockade of, 1862, 72 n. 6 Briand, Aristide, 180 Cecil, Lord Robert, on Corfu affair, 128 η. 4; on economic sanctions, 153 China, and the League, 128 n. 5, 146 η. 1. (See also Manchuria) Coercion, 109, 131, 149 η. 1

Coercive measures, Committee of Jurists on, 135 Commissions of inquiry, 19; use by Council, 25 n. 2 Committee of Jurists, on compatibility of measures short of war with terms of Covenant, 135; plan for court of arbitral justice, 37 Communal responsibility, growth of, 54 Compulsory arbitration, 117 Conciliation, Commissions of Inquiry and, 19 Conference of Ambassadors, and Corfu affair, 1923, 79 n. 2 Conferences and congresses, as means of settling disputes, 22 Contract debts, use of force for recovery of, 95 η. 1, 102 Corfu affair, 1923, 79, 128 Damascus, French bombardment of, 80 η. 1 Days of grace, 64 n. 4 Delcassé, M., 88 η. 1 Denial of justice, 46, 59, 88 Diplomatic negotiation, 17 Disputes, "likely to lead to a rupture," 133; adjustment of, 27; pacific settlement of, 111; Protocol for Pacific Settlement of International, 117, 136 n. 3, (text) 208 Dogger Banks case, 20 η. 1 Draft Treaty of Mutual Assistance, 116; (text) 198 Drago doctrine, 102 "Economic boycott," 70, 168 Economic sanctions, and Article 16,

246

INDEX

151; and international order, 145. (See also Sanctions) Embargo, civil and hostile, 64 Falcke, on pacific blockade, 73 n. 2. Force, display of, 61 ; short of war, 8, 12, 38, 106, 145; use of, 5, 38, 43, 61, 106, 132 Formosa, French blockade of, 1850, 72 n. 6; pacific blockade of, 93 n. 1 France, pacific blockades by, 72 n. 6; threatened embargo by U. S., 66.

Gallatin, Secretary of Treasury, 67 n. 2 Geneva Protocol, 1924. (See Pacific Settlement of International Disputes, Protocol for) Giddings, Franklin, on maintenance of peace, 112 Good offices, 18 Gray, Administrator v. United States, case of, cited, 91 n. 2 Great Britain, embargoes by, 65; letters of marque and reprisal, 50; rejection of Geneva Protocol by, 120 Greco-Bulgarian incident, 128 Greece, British blockade, 1850, 72 n. 6; pacific blockade, 1915-16, 100; Italian occupation and bombardment of Corfu, 79 Greytown, Nicaragua, U. S. bombardment of, 78. Grotius, on peace and war, 90; on sovereignty, 147 Hague Conventions, I, for the Pacific Settlement of International Disputes, 13, 30; II, Respecting the Employment of Force for the Recovery of Contract Debts, 103, 136 n. 3; III, Relative to the Opening of Hostilities, 94; VI, Relative

to the Status of Merchant Ships at the Outbreak of Hostilities, 64 n. 4 Holland, T. E., on reprisals, 92 n. 2, 98; on "war sub modo," 91 η. 2 Hoover, President, 167 Hornbeck, S. Κ., on Pact of Paris, 169 Hudson, M. O., on Geneva Protocol, 117 n. 5; on need for international organization, 147 η. 1 Hyde, C. C., on intervention, 81 n. 2; on use of force, 61 Immunity, of foreign merchants, 1414, 48 "Imperfect" war, 91 n. 2 Institute of International Law, 1887, on pacific blockade, 98 International Blockade Committee, 153, 159 η. 1 International conference, settlement of controversies through, 23 International delinquency, 59, 99; defined, 88 International differences, amicable and non-amicable settlement, 16 International guarantees, 115 International law, development, 8, 56, 85; enforcement of, 4,141,175; interpretation of, 104; self-help and, 84; validity of, 60 International morality, 13 International organization, 4, 107, 112, 147 International police force, 115 η. 1 Intervention, defined, 54 n. 2, 81 n. 2 Italy, occupation of Corfu, 79, 128 η 5 Jackson, President, threat of reprisal, 99 Japan, early action in China, 166 n. 1; economic boycott of, 168; occupation of Manchuria, 25, 80, 128 n. 5

INDEX Jay treaty, 1794, 29 Jefferson, on embargo, 67 Joubert, on force and right, 16 n. 1 Jugo-SIavia, use of armed force, 130 " J u s t " war, 89 n. 1 Landing of armed forces, 75 League of Nations, coercion and, 109; economic sanctions and, 145; French plan for, 115 n. 1,150 n. 2; state self-help and, 125 League of Nations Council, Geneva Protocol and, 118 n. 1; ItaloGreek incident, 79 n. 2; Japanese occupation of Manchuria, 80; settlement of international disputes, 16 n. 2, 25 League of Nations Covenant, Article 11, 113; Article 12, 131, 157; Article 13, 118 n. 3, 157; Article 15, 118 n. 3, 157; Article 16, 82, 121 n. 2,130,151,170; drafting of, 112, 132; gap in, 138; legality of war under, 138; pacific settlement of international disputes and, 24; right of reprisals under, 84, 128 n. 5; (text) 183; war and use of force, 126, 132 League to Enforce Peace, 149 Legnano, on reprisals, 45 n. 2 Letters of marque or reprisal, 49, 59 Liaotung Peninsula, 166 n. 1 Locarno treaties, 1925, 121, 136 n. 3; (text) 221 Lodge, Senator, on use of force, 149 n. 1 Lowell, A. Lawrence, on economic sanctions, 152 McNair, Arnold, on legal meaning of war, 132 n. 2, 138 n. 2 Manchukuo, 168 Manchuria, 26 n. 1, 80, 93, 128 n. 5, 134, 165 Mas Latrie, on reprisals, 44 n. 1 Mediation, 18

247

Menam, Siam, French blockade, 72 n. 6 Mexico, blockade of, 73; United States armed forces in, 93 n. 2 Miller, Hunter, on drafting of Covenant, 132 Mitrany, D., on rule of force, 177 n. 2 Moral sanctions, 6,107 Mytilene, occupation of, 77 n. 2 Napoleon, and embargo, 69 Naval forces, 75; United States, use of, 62, 64 n. 4 Neutral vessels, 164 New Grenada, blockade of, 73; treaty with United States, 62 Nicaragua, British occupation, 77 n. 2; United States bombardment, 78 Non-intercourse Act, United States, 69 Non-recognition doctrine, 123, 166 Norway, pacific blockade of, 72 Occupation, military, 77 ; peaceful 128 n. 4 Offutt, Milton, on protection of citizens abroad, 75 n. 1 Outlawry of war, 7, 38, 125 Pacific blockade, 71, 153 n. 3; legality of, 97; third states and, 72, 98, 162

Pacific Settlement of International Disputes, Hague Convention, 13, 30; Protocol for, 117, 136 n. 3; (text) 208 Pacifico, Don, affair, 100 n. 5 Pact of Paris, 3, 35, 127, 147 n. 1; loophole in, 123; Secretary Stimson on, 167; (.text) 226; United States and, 169 Panama, United States and, 62 Peace structure, post-war, 111 Permanent Court of Arbitration, 36

248

INDEX

Permanent Court of International Justice, 16 n. 2, 35, 117 Pierce, President, on action of United States in Nicaragua, 78 Piracy, 50 Pollock, on validity of international law, 60 Portugal, blockade of, 72 n. 6 Potter, Pitman B., on sanctions, 168 n. 1 Private reprisals, 11, 45, 52 (See also Reprisals) Protection of nationals abroad, 63, 75; mediaeval practice, 46 Public opinion, sanction of, 5, 142, 167 "Quarter-deck diplomacy," 63 "Quasi-war," 91 "Regional guarantees," 120 Reprisals, Covenant and, 84; in Middle Ages, 43; intervention and, 81 n. 2; history of, 45; public, 58; relation to international law, 85 Retorsion, 57 Rio de la Plata, blockade of, 72 n. 6 Ruhr district, occupation of, 77 n. 2, 100 Russia, League blockade and, 163 Salter, Sir Arthur, on security, 127 n. 3 Sanctions, French view of, 150 n. 2; international law and, 5; international, 174; League, 145; of Geneva Protocol, 119; military, 159; reprisals and, 104 Schooner Endeavor, the, case of, 91 n. 2 Security, 115,168 n. 3 Self-defense, and reprisals, 86; Mr. Stimson on, 167 Self-help, individual, 44; renuncia-

tion of right of, 140; state, 6, 57, 84, 125 Self-preservation, right of, 76 n. 1 Shanghai incident, 128 η. 5 Shantung, Japan and, 166 η. 1 Sino-Japanese dispute, 1931-32, 26, 80, 93, 128 n. 5, 165 Sino-Japanese war, 1895, 166 η. 1 Smuts, General, on sanctions, 149 η. 1 Sovereignty, doctrine of, 147 Status quo, 177 Stimson, Secretary of state, non-recognition doctrine of, 123, 166 Strupp, Karl, on intervention, 58 n. 2 Sturzo, Luigi, on state unity, 147 η. 1 Sweden, 72 Taft, President, on arbitration, 30 Third states, pacific blockade and, 72, 96, 162; reprisals and, 96 "Three rules of Washington," 33 n. 1, 35 n. 2 Treaties, Bryan, 21 n. 2; effect of reprisals on, 68 Treaty for the Renunciation of War (Pact of Paris), 123, 127,147 n. 1, 167; (text) 226 Treaty of Mutual Guarantee (Locarno), 121, 136 n. 3; (.text) 221 Treaty of neutrality and non-aggression, Turkey and Union of Soviet Socialist Republics, 136 n. 3 Treaty of Versailles, 101 Treaty of Washington, 1871, 33 η. 1 Treaty to Avoid or Prevent Conflicts between the American States, 31 n. 1, 136 n. 3 Turkey, pacific blockade of, 72 n. 4 United States, armed forces in Mexico, 93 n. 2; bombardment of Greytown, 79; cooperation for world peace, 169; embargo, 66;

INDEX international delinquencies and, 90 η. 4; good offices, accepted and tendered by, 19; League blockade and, 163; non-intercourse act, 1809, 69; practice of arbitration, 30; protection of citizens abroad, 75; use of naval forces, 62, 75 Use of force, 5, 38, 61, 106, 132; Hague Convention I I and, 103; Japan and, 1931-32, 128 n. 5 Venezuela, pacific blockade of, 93 n. 1, 96 n. 2 Vera Cruz, occupation of, 77 n. 2, 99 War, and peace, 90; Covenant and prevention of, 126; declaration of, 90; de jure, 124; "imperfect," 91 n. 2; "just," 89 η. 1; legal restraint

249

on recourse to, 136; state of, 90, 128 n. 5; use of force and, 7, 38, 132 Warlike acts, 92 Wehberg, Hans, on arbitral awards, 34 η. 1 Westlake, John, on " j u s t " war, 89 n. 1; on reprisals, 95 η. 1 White, Thomas Raeburn, on settlement of disputes, 56 η. 1 Wilson, George G., on use of force, 92 n. 1; on treaty interpretation, 125 Wilson, President, on armed force, 151 n. 2 Wright, Quincy, on bombardment, 80 η. 1 Zanzibar, blockade of, 74 η. 1