I. Chronology and summary of arguments

Resolution XIV of the 1922 Third Assembly, which suggested the idea of a Treaty of Mutual Guarantee, was the beginning of a series of efforts to supplement the Covenant with a system of security and thereby to pave the way for disarmament. The Temporary Mixed Commission was instructed to embody the suggestion of Resolution XIV in a formal draft treaty. The result, a product of difficult Anglo-French compromise, appeared at the beginning of September 1923, with the new title of Treaty of Mutual Assistance. The Council communicated it to Member Governments on 29 September 1923.

The key provisions of the Draft Treaty of Mutual Assistance were as follows:

**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 against another.

**Article 2:** The High Contracting Parties, jointly and severally, undertake to furnish assistance, in accordance with the provisions of the Present Treaty, to any one of their number should the latter be the object of aggression, provided that it has conformed to the provisions of the present Treaty regarding the reduction or limitation of armaments.

**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 defence 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 interested so desire, be negotiated and concluded under the auspices of the League of Nations.

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The MacDonald Government, which took office in January 1924, found these commitments unacceptable and rejected the Draft Treaty in a letter of 5 July 1924. Meanwhile, in the French general election of May 1924, the Radical-Socialist Herriot came into office with Socialist support, after having campaigned for the abandonment of a policy of force and for reliance on the Covenant and the alliance with Britain. MacDonald and Herriot came together dramatically at the Geneva opening of the Fifth Assembly in early September 1924. After expressing divergent views before the Assembly the two leaders issued a joint resolution on 7 September 1924, inviting the Assembly to make a fresh study of arbitration and security in preparation for a General Disarmament Conference. A committee headed by Beneš worked for a month on a study of disarmament, while another committee under the Greek delegate Politis studied the question of compulsory arbitration. The two documents were combined into one, reviewed by further committees, and presented to the Fifth Assembly on 1 October 1924. The "Protocol for the Pacific Settlement of International Disputes" was an Annex to this document, which was entitled *Arbitration, Security and Reduction of Armaments: General Report*.

A resolution was passed unanimously the next day, recommending the Protocol to the consideration of Member Governments. The French press, which had been worried by Macdonald's speech of 4 September, was very happy with the Protocol, as was the French Government.* The Canadian delegate expressed reservations, and

*See *The Times* (London), 2 October 1924.

the British Commonwealth as a whole reserved judgment (even though the British delegates Henderson and Parmoor were happy with the Protocol). The MacDonald Government soon fell, and the Baldwin Government rejected the Protocol in Austen Chamberlain's letter of 12 March 1925.

The materials here focus on the arguments about collective security and compulsory arbitration which followed in the wake of the 1923 Draft Treaty and which culminated in the Geneva Protocol of 1924. (Some of the arguments on both sides will be seen to resemble arguments made in the 1920-21 debate over modifying Article 16.) The themes in the debate which I have distinguished here are: (1) The Theory of the "Gap in the Covenant," (2) The Source of the League's Authority, (3) The Role of Military Alliances, (4) The Effectiveness of Arbitration, and (5) The Credibility of Collective Security Arrangements.

1) *The Theory of the "Gap in the Covenant"*.-- The ostensible rationale of the proposed collective security schemes was the need to close a "gap" in the Covenant's "wall of protection around the peace" (See *General Report*, *A* p.18 + p.20). In theory a Member might make war -- not in self-defense, yet legally -- merely if it had duly submitted its case to the Council, if the Council (excluding the parties) had failed to reach unanimity in recommending a solution, and if the Member had waited three months after the Council admitted this failure. However, this notion of the Covenant's inadequacy was extended to the less academic question of the credibility of the Covenant's sanctions

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against outright violators: The law-abiding Members wanted
some guarantee that the League would come to their aid in case
of aggression (Paul-Boncour, p.22; General Report, p.19; Beneš,
p.15; Herriot, p.13; Theunis, pp.14ff). Such a guarantee was
seen as necessary before disarmament could succeed (Joint Resolution,
p.16; Beneš, p.15; Herriot, pp.12f).

The British, on the other hand, replied that the Covenant
was strong enough in both cases, if only everyone would be willing
to stand by it (MacDonald, p.12; Henderson, p.17; Parmoor, p.14
+ p.21). The Baldwin Government was clearly aware that the real
rationale of the new schemes was not the "Gap" in the Covenant
but the problem of its violation, and it did not see how the
Protocol would solve this problem (Chamberlain, p.24).

2) **<u>The Source of the League's Authority.</u>**--- The advocates of collective security were concerned, as already seen, with the plight of law-abiding Members threatened by a violator. The League's moral authority was seen to need the aid of a "secular arm" (Briand, pp.16f; General Report, pp.18-20); justice must be armed (Herriot, p.13).

The British replied that the League's authority was founded
on the banishment of force from international relations and the
League's rectitude in this regard (MacDonald, p.9 + p.12; Parmoor,
p.14 + p.20; Chamberlain, p.23). Moreover, the British felt, the
United States would be more encouraged to join someday if Europe
could make peace work (MacDonald, pp.104).

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3) **_The Role of Military Alliances._**-- The secular arm which the French and others desired was a system of alliances, defensive in purpose, open to all, and under the aegis of the League (Briand, p.17; Theunis, pp.14f.). The Draft Treaty had been such a system (Theunis, p.15), and the Protocol was to be a replacement.

The British, on the other hand, were initially suspicious of military alliances as dangerous vestiges of the old system which had plunged the world into war (MacDonald, pp.9f.+ pp.15f.). Security is not a military matter, MacDonald asserted; the choice is between arbitration and war (MacDonald p.12). The world had to learn new habits of international conduct (MacDonald, p.12 + pp.15f.). When Baldwin replaced MacDonald, however, the British came around to the view that special alliances were more useful than schemes of compulsory arbitration (Chamberlain, p.24).

4) **_The Effectiveness of Arbitration._**-- The Protocol was a design for compulsory arbitration backed by sanctions; its provision for sanctions was to MacDonald its major defect and to the French its major advantage.

The French and the drafters of the Protocol believed that arbitration without enforcement was inadequate (General Report, p.19; Herriot, p.13; Beneš, p.15; Paul-Boncour, p.22).

The MacDonald Government was enthusiastic about arbitration and was convinced that it could work without sanctions. It had worked in the past (Parmoor, p.14). There was no other way of achieving real security (MacDonald, pp.11f.).

The Baldwin Government, however, was skeptical about

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the effectiveness of arbitration (Chamberlain, p.24).

5) The Credibility of Collective Security.--- The French felt that the arbitration scheme presented a clear definition of aggression, (viz., resorting to war in defiance of the arbitration process), and that this clear definition enabled the sanctions machinery to go quickly into operation (General Report, p.20; Paul-Boncour, p.22). One aim of the Draft Treaty had been deterrence -- not only of actual war, but of the threat of war (Herriot, p.12). The sanctions provision in the Protocol is what would make arbitration something more than barren idealism (Herriot, p.13). In addition, collective security would work because a formula had been found for reconciling collective action with national sovereignty (Paul-Boncour, p.22).

While the French were skeptical about the credibility of arbitration without sanctions, the British Government questioned the credibility of collective security. Too much delay would be involved in the collective procedure (MacDonald, p.8). But the basic defect was the unlikelihood that pledges would be either made or kept (Macdonald, p.8; Henderson, p.17; Parmoor, p.20; Chamberlain, p.24). The British and Dominion Governments were themselves unwilling to give up their sovereign power of decision, especially where the commitment was vague and general (MacDonald, p.10; Henderson, p.17; Dandurand, p.22; Parmoor, p.21; Chamberlain, p.24). If the pledges were imposed on Members, the League might break up (Macdonald, p.10), and the United States would certainly be discouraged from joining (Dandurand, p.23).

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The Baldwin Government also argued that the absence of the United States put the effectiveness of any League sanctions in doubt (Chamberlain, p.23). The vagueness of the commitment in a collective security scheme, MacDonald complained, might even obligate Britain to defend a nation which had put itself in jeopardy by its own policy (MacDonald, p.10).

Both the MacDonald and Baldwin Governments shared this skeptical attitude toward the credibility of collective security. They also shared the view (see above) that the League's real authority was founded on its pacific, rather than military, purposes. But the Baldwin Government, unlike its predecessor, was as skeptical about arbitration as about collective security; its concern for the League's moral purity thus served as a good excuse for turning to an alternative -- supplementary security alliances -- which had been anathema to its predecessor.

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## II. Source Materials

The MacDonald Government rejected the Draft Treaty of Mutual Assistance in a letter to the Assembly on 5 July 1924. Collective security doesn't work, MacDonald felt, because of the delays involved and because of Members' unwillingness to fulfil their pledges:

> The experience of the recent World War does not justify the assumption that where the forces of several nations are involved the immediate acceptance, much less the rapid execution, of plans of operations can with certainty be counted on. The possibility will always exist that the States most favourably situated for providing the necessary force may at a given moment not be in a position to do so, owing to commitments elsewhere, the state of public opinion, or the political condition of the country at the time. The appointment of the higher command will itself involve delay. The Council will have great difficulty in reaching a unanimous decision, for no nation places its troops under a foreign command without very careful consideration. A system which involves prolonged delays before the first step in bringing military pressure to bear on an aggressor nation can be taken does not reach that standard of effectiveness which is essential.

> This consideration can but strengthen His Majesty's Government in the view that the guarantee afforded by the draft Treaty is so precarious that no responsible Government will feel justified in consenting to any material reduction in its armaments in return. If, as His Majesty's Government feel convinced, that is the case, the whole object of the Treaty is lost and its conclusion is objectless. His Majesty's Government, indeed, go further. They are persuaded, after careful examination of the draft scheme, that if the obligations created by the Treaty be scrupulously carried out, they will involve an increase rather than a decrease in British armaments.
> 
> (MacDonald letter of 5 July 1924, printed in League of Nations, *Arbitration, Security and Reduction of Armaments: General Report*, submitted to the Fifth Assembly on behalf of the First and Third Committees by Ms. Politis (Greece) and M. Beneš (Czechoslovakia), Geneva, 1 October 1924, Doc. A.135(1924), Part III, Annex 3, p. 235)

MacDonald felt that the Council's power of decision in the Draft

Treaty was an undesirable extension of the role of a body unsuited to military tasks:

to military tasks:

MacDonald cont'd.

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The draft Treaty further appears to involve an undesirable extension of the functions of the Council of the League. Under Article 16 of the Covenant, the Council can only recommend action, while even under Article 16 it can only *advise*. By Article 5 of the draft Treaty, the Council is authorised to decide to adopt various measures. Thus the Council would become an executive body with very large powers, instead of an advisory body. In any event, the Council of the League is a most inappropriate body to be entrusted with the control of military forces in operation against any particular State or States. (Ibid., p. 237)

On 2 September 1924, while traveling by train from Paris to Geneva to attend the opening of the Fifth Assembly, MacDonald told a London *Times* correspondent that the League's authority rested on trust, rather than on the threat of force:

> The League of Nations' authority is one of confidence, to come from the fact that several nations will use it to solve problems which can only be done by international authority, and because its decisions will, in the course of time, be accepted as satisfactory solutions of practical problems. I am emphatically not in favour of any force to enforce these decisions. This would only destroy the power of the League, which is essential to the considerations I have named and does not lie in force. Article 10 of the Covenant of the League provides all that is necessary in this respect. (*The Times*, London, 3 September 1924, p.12)

MacDonald addressed the sixth plenary meeting of the Fifth Assembly on 4 September 1924, explaining why Britain rejected the Draft Treaty of Mutual Assistance. History shows, he said, that military plans provide only false security:

> Now, sir, the danger of supreme importance which is facing us now is that national security should be regarded merely as a military problem based solely on the predominance of force. For a moment that may do; for a moment that may lull to sleep; for a moment that may enable large nations and small to believe that their existence will be no longer challenged. But as, my friends, there is evolution in every plan and a consequence of every idea, if, after all the appalling evidence in history that military force cannot be secure, we to-day repeat the folly of our ancestors, then the security we give of the day is only a betrayal of the nation that we lull to sleep under it. (Loud cheers.)

Our position, briefly, is this. We do not believe that military alliances are going to bring security. We believe

MacDonald, cont'd.

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that a military alliance in an agreement for security is
like a grain of mustard seed -- small to begin with. That
is the essential seed of the agreement, and that seed with
the years will grow and grow and grow, until at last the
tree that has been produced from it will overshadow the
heavens, and we shall be back exactly in the military
position in which we found ourselves in 1914.

(The Times, London, 5 September 1924, p. 12)

Britain, he continued, was unwilling to make vague commitments
which might obligate it to defend a country which had put itself
in jeopardy by its own policy. If such pledges were required,
the League might break up, or the pledges would not be believed:

Moreover, the British Government, wishing to carry out,
to the very letter, every comma and every sentance, any
obligation to which it puts its signature, cannot and will
not put its signature to an indefinite document. If we are
going to have obligations, if we say we are going to carry
them out, we want to know exactly what they are. An
obligation that is based on psychology, an obligation that
is based upon fear of other people, an obligation that we
may have to meet, not because a nation has been faced by
enemies sent to beset it by the Devil, but because a nation
may be beset by enemies on account of its own policy --
that sort of obligation we cannot undertake, because if we
did undertake it, I want to tell you perfectly honestly
that we should find, when we tried to carry it out, that
public opinion would make it impossible for us to do so.

If this kind of obligation were to be imposed upon the
nations affiliated to the League -- I may be wrong, but
I am profoundly of the opinion that that would break the
League, that a great secession would take place, and that
a large number of nations that would remain in affiliation
to the League would do it with such reserve that the
obligation taken by them would be of no value whatever.
That is why the British Government has felt that the last
word has not been said in this Draft Treaty, and wishes
that the matter shall be further considered. (Ibid.)

Many felt that the League's lack of universality of membership
was a problem. But America will be encouraged to join once
Europe establishes peace, and before this can happen, former
enemies must be brought back into the European system:

One day, not because you are going to appeal to
her, not because you are going to bring pressure to bear
upon her, but one day, because we ourselves have been

MacDonald, cont'd.

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wise enough to make our own efforts for peace successful,
America's own heart will incline her to come in, and then
she will find that an honoured and welcome place is
waiting for her in our councils.

The League takes upon itself as its first task
the creating once again of the European system, and that
European system will never exist until our late enemies
have ceased to be our enemies and have come in to take
their cooperative part in that system. I hope, in spite
of the difficulties and in spite of the technicalities
that still apparently remain in the way, that this will
be done at once.
(Ibid.)

Realism requires that security be protected by something more
than obligations on paper. The answer is a system of compulsory
arbitration. If nations agree to this, the world will be
secure; if they do not, peace can never be relied upon:

The main problem is the problem of national security in
relation to national armaments. Let us face that as
realists, not as sentimentalists or as mere idealists,
but as scientific realists who go right to the root of
the whole thing. The superficial school who imagine that
by putting certain phrases upon paper they secure an
enforceable obligation are met straight away with the
possibility of giving definitions to two simple words:

First of all, there is security. What is security?

Secondly, there is aggression. What is aggression?

Take the latter -- what is aggression? ...

... The only way we can ... approximate to an accurate
attribution of responsibility for aggression is by arbitration,
the setting up of courts, because you cannot have one court
for the purpose. There are prejudicing questions. There
are political questions. There are questions that can be
settled only by wise and enlightened citizens. There are
questions that can be settled only by a trained and expert
lawyer. But the system of arbitration is a system of
watching the clouds, a system of warning when a cloud just
the size of a man's hand appears above the horizon, and the
taking of steps at once, not of a military kind but of a
rational judicial kind to charm it out of existence. The
test is, are you willing to arbitrate? The test is, are
you willing to explain? The test is, will you come before
us and tell us what you propose to do? The test is, will
you expose your weakness? Are you a lover of darkness and
timorous lest the world should know what is in your mind?
That is the test, and the only test.

I am in favour of arbitration -- I see nothing else

MacDonald, cont'd.

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for the world. If we cannot devise a proper system of
arbitration, then do not let us fool ourselves that we
are going to have peace.

*(Ibid.)*

The Covenant is strong enough if we all stick to it:

> The Covenant is very much stronger than some of our
> friends imagine. We think that what ought to be done
> now is to explore this matter, beginning with the Covenant,
> applying the Covenant to present circumstances, and, in
> the spirit of the League of Nations, developing a policy
> that will give security and reduce armaments. The British
> Government stands by the Covenant. . . . Clauses 10, 12,
> 13, 15, and 16 of the Covenant may well form themselves
> into a charter of peace if we only apply them and fill them
> out.

*(Ibid.)*

Beware of the false security offered by military alliances,
which only lead to wars. The League's strength is its rectitude:

> ... [H]istory is full of the doom of nations that trusted
> in false security.

> Our interests for peace are far greater than our interests
> in creating a machinery of defence. A machinery of defence
> is easy to create, but beware lest in creating it you destroy
> the chances of peace. What the League of Nations has to do
> is to advance the interests for peace. The world has to be
> habituated to our existence; the world has to be habituated
> to our influence. We have to embody in the world confidence
> in the order and rectitude of law, and then the nations,
> with the League of Nations enjoying authority, with the
> League of Nations looked up to not because its arm is great,
> but because its mind is calm and its nature is just, can
> pursue their destinies in a feeling of perfect security,
> none daring to make them afraid.

*(Ibid.)*

French Premier Herriot spoke to the Assembly the next day,
5 September 1924. He expressed his concern for deterring even
the threat of war, and his view that arbitration alone did not give an
adequate guarantee of the security of States which abided by the
Covenant. Justice must be armed:

> Thus, disarmament and security are bound together in the
> Covenant itself.

> On this idea was founded the Treaty of Mutual Assistance,
> which makes a war of aggression an international crime. . . .

> I would further observe that Article 3 of the draft Treaty
> covers not merely actual war but policies likely to lead to
> war -- not merely aggression, but the threat of aggression.

Herriot, cont'd.

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But we ought to speak clearly and frankly before this high Assembly, which has assumed such heavy moral responsibilities, and it is necessary courageously to face all the elements in the problem of peace.

Arbitration is essential, but it is not sufficient. It is a means, but not an end. It does not entirely fulfil the intentions of Article 8 of the Covenant, which, if I may again remind you, are security and disarmament.

We in France regard these three terms -- arbitration, security, and disarmament -- as inseparable, and these three words would be but empty abstractions did they not stand for living realities created by our common will.

At all times and for all peoples war has been a dreadful reality; we must now make a reality of peace. I use definite terms because I feel that we are now faced by the greatest of all our duties to mankind, if we wish our work to be regarded by posterity as something more than the barren proceedings of some vast and sterile academy. Arbitration must not be made a snare for trustful nations. (Loud applause.)

If upon the foundation of trust we desire to establish a final charter to govern international relations, we must by asserting our will afford protection to all countries that loyally observe their bond -- even the smallest country -- against the deceit and menaces of force. A great nation can, in the last resort, protect itself unaided, a small nation cannot. (Loud and prolonged applause.)

We Frenchmen believe -- and in speaking thus I am expressing a moral rather than a political idea -- we Frenchmen believe that a nation which accepts arbitration, which, notwithstanding the uncertainties and risks that still exist in the world, sets this example of willingness to accept the dictates of justice -- we believe that such a nation, be it great or small, has a right to security. (Applause.)

Arbitration, as my friend Mr. MacDonald has said, is justice without passion. In that I recognise the nobility of his mind. But it must not be justice without might. (Applause.) Might must not be left in the ruthless grasp of injustice.

Pascal said -- and his words should, I think, serve as a watchword for the League of Nations -- "Justice without might is impotent. Might without justice is tyranny. Justice without might is unavailing, for wicked people still remain. Might without justice stands condemned. We must therefore mate justice with might and to that end we must ensure that what is just is mighty and that what is mighty is just."

(Applause.)

(League of Nations, Arbitration, Security and Reduction of Armaments: Extracts from the Debates of the Fifth Assembly, including those of the First and Third Committees, Geneva, 1924, Doc. C.708.1924.IX(C.C.O.1.), Eighth Plenary Meeting, 5 September 1924, pp. 20-21)

Lord Parmoor told the same meeting of the British view that the League should eschew the use of force, and that the

Parmoor, cont'd.

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Covenant did not really stand in need of any supplementing.

Moreover, Lord Parmoor pointed out, arbitration had worked very effectively many times in the past -- and without sanctions:

> I want now to express what I consider to be the only principle upon which we can proceed. I desire not the application of force but the supremacy of and obedience to international law under the constituted authority of an International Court. It is in law that we can find equality; it is in law that we can find justice and equity. In military force we can never find either the one or the other.

> I can see no reason whatever for doubting that the sanctions contained in the Covenant are adequate and sufficient.

> In the nineteenth century . . . there were several hundred arbitrations, I believe that there were more than 700 in all. . . . What I want to predicate is this, that in respect of all those arbitrations, many of them dealing with matters of infinite importance to the countries concerned, none of them, as far as I know, providing what we call an adequate force of sanction, I can find no instance whatever -- not a single case -- in which the award or the decision of the arbitrator has not been accepted by the parties concerned. (Applause.)

> I do not myself believe in the importance of what are called sanctions in matters of this kind. The important matter is the agreement of the nation to accept arbitration; when that has once been agreed, the need or necessity for sanctions becomes secondary. (Ibid., pp. 24-25)

The Belgian delegate Theunis told the Ninth Plenary Meeting, 5 September 1924, that the best guarantee of the security of law-abiding nations was a coalition against violators. Such alliances as envisaged in the Draft Treaty were indeed military in character, but they could be made in conjunction with the League:

> In asking you for further guarantees, I believe that I am serving not only the interests of my own country, but the interests of other countries and of peace itself, for the tragic events of recent history should have taught the nations that, in the event of a dispute, each may fall a victim to the caprice of military strategy; and I believe

Theunis, cont'd.

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that no better guarantee could be found to assure the
maintenance of peace than the certainty that aggression
will invariably be opposed by a coalition of the civilised
nations. (Applause.)

I admit that this defensive organisation /the Draft Treaty\/
may involve the risk of certain groups abandoning the
peaceful purpose for which they were founded. But how can
the dangers inherent in the new political constellations in
Europe be averted otherwise than by bringing them within
the compass of the League, by co-ordinating them, and
adjusting them, making them subject to the control of the
Council, a control that, according to the French Government's
proposal, should become yet more rigorous? (Ibid., Ninth
Plenary Meeting, 5 September 1924, p. 28)

Benes of Czechoslovakia reminded the Assembly at the same
meeting that many nations simply could not disarm without
a security guarantee.

We cannot abandon a principle to which we are committed
under the terms of the Covenant, by four years of work,
and by a unanimous resolution of the Assembly. It is a
principle, too, which is vital to the political requirements
of a number of countries, which frankly declare that unless
the reduction of armaments is accompanied by some kind of
guarantee, they cannot reduce their armaments to any
appreciable extent. (Ibid., p. 30)

Benes asked, what will happen if a country breaks the Covenant?
This question must be faced:

The question always takes the same form: What will
happen if war breaks out despite pledge and treaty?
We cannot evade the issue. Sanctions must be provided
for crimes against international law. (Ibid., p. 31)

Taking leave of the Assembly on 6 September, 1924, MacDonald
noted that some meeting of minds had occurred in spite of the
differences of opinion. He then told the Assembly of his fear
lest the world revert to its old habits of conduct:

> It is not that our opinions have been reconciled; it is
> that the meaningless difference in distance and position
> has been bridged by our commonsense and our desire for
> human companionship.

You know that when the wheels begin to go round on the top

MacDonald, cont'd.

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of a rut the great danger is that unless the hand that guides is a steady hand steering towards the new and the better, down you may go into the rut, and another war and another revolution are necessary to enable you to get out of it. This, frankly, is the fear that we have in our hearts -- lest we go back. (Ibid., Eleventh Plenary Meeting, 6 September 1924, p. 46)

The two Premiers offered the following joint resolution, urging new studies of arbitration and disarmament in preparation for a new disarmament conference:

The Assembly, noting the declarations of the Governments represented, remarks with satisfaction that they contain the basis of an understanding tending to establish and secure peace, and decides as follows:

With a view to reconcile in the new proposals the divergencies between certain points of view which have been expressed, and, when agreement has been reached, to enable an International Conference upon Armaments to be summoned by the League of Nations at the earliest possible moment,

(1) The Third Committee is requested to consider the material dealing with security and the reduction of armaments, particularly the observations of the Governments on the Draft Treaty of Mutual Assistance, prepared in pursuance of Resolution 14 of the Third Assembly, and other plans prepared and presented to the Secretariat since the publication of the Draft Treaty, and to examine the obligations contained in the Covenant of the League in relation to the guarantees of security that a resort to arbitration and a reduction of armaments may require.

(2) The First Committee is requested (a) to consider, in view of possible amendments, the Articles in the Covenant relating to the settlement of disputes; (b) to examine within what limits the terms of Article 36, Paragraph 2, of the Statute establishing the International Court might be rendered more precise and thereby facilitate the more general acceptance of the clause. (The Times, 8 Sept. 1924, p.12)

In the interval while the committees were at work, an article by Briand appeared in *L'Europe Nouvelle* dated 18 September 1924. His point was that the League needed a secular arm, which could be provided in the form of a defensive alliance system:

At Cannes, while seeking formulae which should guarantee Europe against all aggression, I thought of the possibility of furnishing the League of Nations, by roundabout ways,

Briand, cont'd.

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with the secular arm which it lacked. A double system of alliances was already arising out of the conversations which were in progress -- an Anglo-Franco-Belgian agreement assuring security on the Rhine, and a second pact between nations interested in the maintenance of order in the east and south of Europe. These two systems of conventions, combined under the aegis of the League of Nations, were to have equipped the League with an effective force which would have hastened the solution of the problems with which it is still faced to-day, inasmuch as these conversations displayed no hostility towards anyone. Those who were negotiating them even pointed out in private conversation that Germany might be called upon to form part of these new combinations as soon as she should have signed the pact of non-aggression which was to be worked out at Genoa. (*The Times*, 20 Sept. 1924)

Arthur Henderson told a meeting of the Third Committee on 23 September 1924 that the Covenant was strong enough so long as nations were going to stick by it, that vague commitments were not very helpful, and that the good faith of the Members should be relied upon:

> We are remaining within the terms of the Covenant and we are undertaking no new obligations. We do not see how any Power which has signed the Covenant and which intends to carry out honourably the pledges it has now given can hesitate to subscribe to Article 7. Surely "loyal and effective cooperation" in support of the Covenant is what may be confidently expected from every member of the League of Nations. Otherwise their membership is a fraud and a delusion. We ardently hope that our present labours will sound the death-knell of war, but we cannot be absolutely certain, and what we wish to proclaim to the world is that we are determined to join hands and assist each other "loyally and effectively" in punishing the aggressor. It is obviously altogether impossible to foresee the exact contingency which may arise. The extent of cooperation must depend on the actual circumstances, not only as regards the geographical position and resources of all kinds of individual states. It would be no use to bind oneself to do a variety of things which may not be required. We must, and we can, rely on the good faith of members of the League to decide themselves how their effective cooperation can best be given, if and when the necessity arises. (*The Times*, 27 September 1924, p. 11)

Henderson repeated these words to the committee on 25 September, and added that Britain could not agree to give up its own sovereign power of decision:

Henderson, cont'd.

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The Council can recommend us, but we feel that the
Government of a country is entitled in strict keeping
with the discharge of its obligation to use its discretion
if it thinks it has a better and more effective way of
bringing about the punishment of a transgressor if and when
that unfortunate moment arises.

But if we are told that our Governments are no judges as
to the method by which this is to be carried out or the
measure in which this is to be carried out, and that loyal
and effective cooperation means suspension of judgment, I
can only say that we never agreed to that two days ago,
we did not agree to it yesterday, and we cannot agree to
it now. (Ibid.)

The result of the month of committee work was the _General Report_ on Arbitration, Security and Reduction of Armaments, issued on 10 October 1924, and written by Politis and Beneš, rapporteurs of the First and Third Committees, respectively. The section written by Politis on compulsory arbitration explains and defends the scheme of the Protocol, which was appended to the document as Annex II.

Politis began by explaining that there was a "gap" in the
Covenant, i.e., it did not ban _all_ wars:

> Compulsory arbitration is the fundamental basis of the
> proposed system. It seemed to be the only means of
> attaining the ultimate aim pursued by the League of Nations,
> viz. the establishment of a pacific and legal order in the
> relations between peoples.

The Covenant of the League of Nations erected a wall of
protection around the peace of the world, but it was a
first attempt at international organisation and it did not
succeed in closing the circle sufficiently thoroughly to
leave no opening for war. It reduced the number of possible
wars. It did not condemn them all. There were some which
it was forced to tolerate. Consequently, there remained, in
the system which it established, numerous fissures, which
constituted a grave danger to peace.

The new system of the Protocol goes further. It closes
the circle drawn by the Covenant; it prohibits all wars
of aggression. Henceforth no purely private war between
nations will be tolerated.

This result is obtained by strengthening the pacific
methods of procedure laid down in the Covenant. The

General Report, cont'd.

-19-

Protocol completes them and extends them to all international disputes without exception, by making arbitration compulsory. (General Report, Part II, Chapter 1, "The Work of the First Committee," p. 5)

"Arbitration," Politis continued, was being used here in a new sense: It was part of an elaborate machinery, peace (as much as justice) was one of its aims, and it was backed up by sanctions:

In reality, the word "arbitration" is used here in a somewhat different sense from that which it has generally had up to now. It does not exactly correspond with the definition given by the Hague Conferences which, codifying a century-old custom, saw in it "the settlement of disputes between States by judges of their own choice and on the basis of the respect for law" (Article 37 of the Convention of October 18th, 1907, for the Pacific Settlement of International Disputes).

The arbitration which is now contemplated differs from this classic arbitration in various respects:

(a) It is only part of a great machinery of pacific settlement. It is set up under the auspices and direction of the Council of the League of Nations.

(b) It is not only an instrument for the administration of justice. It is, in addition and above all, an instrument of peace. The arbitrators must no doubt seek in the first place to apply the rules and principles of international law. This is the reason why, as will be seen below, they are bound to consult the Permanent Court of International Justice if one of the parties so requests. But if international law furnishes no rule or principle applicable to the particular case, they cannot, like ordinary arbitrators, refuse to give a decision. They are bound to proceed on grounds of equity, for in our system arbitration is always of necessity to lead to a definitive solution of the dispute. This is not to be regretted, for to ensure the respect of law by nations it is necessary first that they should be assured of peace.

(c) It does not rest solely upon the loyalty and good faith of the parties. To the moral and legal force of an ordinary arbitration is added the actual force derived from the international organisation of which the kind of arbitration in question forms one of the principal elements; the absence of a sanction which has impeded the development of compulsory arbitration is done away with under our system.

In the system of the Protocol, the obligation to submit disputes to arbitration is sound and practical because it has always a sanction. Its application is automatically ensured, by means of the intervention of the Council; in no case can it be thrown on one side through the ill-will of one of the disputant States. The awards to which it

General Report, cont'd.

-20-

leads are always accompanied by a sanction, adapted to the circumstances of the case and more or less severe according to the degree of resistance offered to the execution of the sentence. (Ibid., pp. 576)

The co-authors of the _General Report_ wrote in the Conclusion that their scheme was free of loopholes. Because of the clear signal of aggression, the machinery could move swiftly and inexorably into action:

> Our purpose was to make war impossible, to kill it, to annihilate it. To do this, we had to create a system for the pacific settlement of all disputes which might arise. In other words, it meant the creation of a system of arbitration from which no international dispute, whether legal or political, could escape. The plan drawn up leaves no loopholes; it prohibits wars of every description and lays down that all disputes shall be settled by pacific means.

But this absolute character which has been given to the system of arbitration should also belong to the whole of the scheme, to the treatment of every question of principle. If there were one single gap in the system, if the smallest opening were left for any measure of force, the whole system would collapse.

To this arbitration is provided for every kind of dispute, and aggression is defined in such a way as to give no cause for hesitation when the Council has to take a decision. (*General Report*, Part III, p.20)

In the discussion which followed the presentation of the _General Report_ and Protocol, Lord Parmoor gave his own interpretation of the Protocol. The sanctions provision, he stated, was aimed at preventing wars, not at fighting them:

> Sanctions, whether economic, military or naval, have inevitably played an important part in the discussions in the Committees. Let me, however, impress upon you at the outset that the basic idea of the sanctions in the Protocol is not how or when to make war, but, on the contrary, how to reduce the chances of war to a minimum and to preserve an assured system of peace settlement. We want sanctions, but we want them to make war impossible, and we resolved to do everything we could to make war impossible. (*Extracts from the Debates of the Fifth Assembly*, Twenty-sixth Plenary Meeting, 1 October 1924, p. 322)

Parmoor, cont'd.

-21-

In his view, the Protocol was not a design for a "super-State"
which would encroach upon national sovereignty. This was
proper, because the League Council would never be able to act
in an executive capacity to enforce anything:

Let us therefore be quite clear what we are doing. There
is no attempt to make the Council or the Assembly of the
League into a super-State, with authority over the
different Governments. Any attempt to do this would, in
my opinion, be to court inevitable failure.

The sovereignty of the various Governments will remain
supreme in matters pertaining solely to domestic jurisdiction,
and such matters should be rigidly excluded from the scope
of the present proposals. If the worst happens -- and we
must face boldly the possibility that it may happen, however
improbable it may appear to be -- if the economic sanctions
are insufficient and sanctions have to be applied by
force of arms, the Council of the League will have no
executive powers. There will be neither troops nor ships
at its disposal. . . . Every Government, unless it
voluntarily undertakes the obligation, will be free to
decide, when the time comes, to what extent and in what
form it can best co-operate loyally and effectively in
support of the Covenant and in the common duty of giving
assistance to any victim of aggression.

Let there be no doubt that we have remained within the
limits of the Covenant. Arbitration and sanctions already
form the main fabric of the Covenant. (Ibid. p. 323)

The French delegate Paul-Boncour addressed himself to the same
questions the next day. Unlike Lord Parmoor, he felt that the
Protocol did "extend," "develop," and "define" the Covenant.
The key feature of the Protocol, in his view, was that it
guaranteed that any aggression would set the sanctions machinery
in motion. In respect to sovereignty, the scheme was a compromise
between excessive supra-nationalism and excessive looseness:

> What is new is that we are here engaged upon the extension
> of the Covenant. . . .

> This is the justification for our Protocol. It is only
> a development of the Covenant; every essential part of it
> must first have existed in the Covenant.

Paul-Boncour, cont'd.

-22-

The new feature of the Protocol, the force of the Protocol, which defines the Covenant, is that, when once responsibility for aggression has been clearly and unmistakably determined before the whole world, this fact alone will bring into play a machinery of sanctions such as history has never yet known.

The intention was to strike a middle course which would avoid, on the one hand, what would be impracticable and would render our edifice uninhabitable, and, on the other, would obviate an excessive looseness which would have allowed a country to shirk, from purely selfish motives, its share of the work. Care has been taken to avoid leaving the decision to the Council, because such a course would have involved an infringement of national sovereignty; on the other hand, the decision has not been left to each individual State, because that would have ruined the Protocol as well as the Covenant, of which the Protocol is the continuation and development. A solution has been sought in co-operation between the Council and the States. (Ibid., Twenty-eighth Plenary Meeting, 2 October 1924, pp. 335-336)

The same day, 2 October 1924, Senator Dandurand of Canada expressed his reservations about the Protocol. He felt it was clearly an infringement of sovereignty, which would, among other things, discourage the United States from ever joining. He regretted the last-minute concession to Japan, which allowed some domestic matters (e.g. Australia's immigration policy) to come before the Council. (The account of this speech in the London *Times* is fuller, for some reason, than that in *some* League documents.) According to *The Times*:

Senator Dandurand, the Canadian Delegate, probably spoke for more than his own Dominion when he said that Canada lived far from the inflammable material of Europe, and had always sought an interpretation of Article 10 of the Covenant which would leave to her Parliament the decision as to the measure of participation in a conflict. He recalled the fact that last year an amendment to Article 10 in this sense secured the support of the Assembly with the exception of one dissentient vote, which sufficed to reject it. It is, indeed, singular to reflect that in two successive years the League has pursued two opposite policies in regard to Article 10 -- last year it sought

Dandurand, cont'd.

-23-

to weaken its effect, this year to make it more effective. There are many here who greatly regret that it has not confined itself to repeating last year's attempt to make participation in League sanctions dependent in each case upon Parliamentary approval. By that way alone, it is felt, could the United States ever approach the League. As it is, this year's proceedings have led the League farther away from the New World and implicated it more closely in Europe. The hasty concession to Japan in allowing matters of "domestic jurisdiction" to come in certain circumstances before the Council of the League is considered a short-sighted expedient, which may ultimately prove a disastrous obstacle to universality. (The Times, 3 October 1924, p. 12)

This kind of sentiment eventually prevailed in British policy. Austen Chamberlain, representing the new Baldwin Government, rejected the Protocol in a letter to the League Council dated 12 March 1925. The League's lack of universality, he noted, made any sanctions ineffective; the League should better concern itself with "diminishing the causes of war":

> The "economic sanction," if simultaneously directed by all the world against a State which is not itself economically self-sufficing, would be a weapon of incalculable power. This, or something not very different from this, was the weapon originally devised by the authors of the Covenant. To them it appeared to be not only bloodless, but cheap, effective and easy to use, in the most improbable event of its uses being necessary. But all this is changed by the mere existence of powerful economic communities outside the limits of the League. It might force trade into unaccustomed channels, but it could hardly stop it; and, though the offending State would, no doubt, suffer, there is no presumption that it would be crushed, or even that it would suffer most.

And it certainly seems to His Majesty's Government that anything which fosters the idea that the main business of the League is with war rather than with peace is likely to weaken it in its fundamental task of diminishing the causes of war, without making it in every respect a satisfactory instrument for organising great military operations should the necessary arise for them to be forced upon the world.

Chamberlain, cont'd.

-24-

Chamberlain dismissed the theory of the "gap" in the Covenant:

The real problem was not the loopholes for legal wars, but the credibility of the sanctions against violation:

> But it is not the possibility of an attack through these,
> alleged, weak places in the Covenant which haunts the
> imagination of those who hesitate to disarm. They do not
> doubt that the Covenant, if kept, would be sufficient to
> protect them, at least from attack by those who signed it.
> What they doubt is whether, when it comes to the point,
> the Covenant will be kept. ...

> His Majesty's Government fail altogether to see how this
> situation is bettered by the Protocol.

Since arbitration and collective security were both inadequate
defenses of the peace, the British Government now recommended
special supplementary security pacts:

> What expedient remains? How is security, and, above all,
> the feeling of security, to be attained? In answering this
> question, it is necessary to keep in mind the characteristics
> of the "extreme cases" to which reference has already been
> made. The brooding fears that keep huge armaments in being
> have little relation to the ordinary misunderstandings
> inseparable from international, as from social, life --
> misunderstandings with which the League is so admirably
> fitted to deal. They spring from deep-lying causes of
> hostility, which for historic or other reasons divide great
> and powerful States. These fears may be groundless; but if
> they exist, they cannot be effectually laid by even the most
> perfect method of dealing with particular disputes by the
> machinery of inquiry and arbitration. For what is feared
> in such cases is not injustice, but war -- war deliberately
> undertaken for purposes of conquest or revenge. And, if
> so, can there be a better way of allaying fears like these
> than by adopting some scheme which should prove to all the
> world that such a war would fail?

> Since the general provisions of the Covenant cannot be
> stiffened with advantage, and since the "extreme cases"
> with which the League may have to deal will probably affect
> certain nations or groups of nations more nearly than others,
> His Majesty's Government conclude that the best way of
> dealing with the situation is, with the co-operation of the
> League, to supplement the Covenant by making special
> arrangements in order to meet special needs. That these
> arrangements should be purely defensive in character, that
> they should be framed in the spirit of the Covenant, working
> in close harmony with the League and under its guidance, is
> manifest.