2. WORK OF THE THIRD COMMITTEE

(Rapporteur: M. BÉNES)

SECURITY AND REDUCTION OF ARMAMENTS

(Articles 7 to 21 of the Protocol)

1. INTRODUCTION

The special work of the Third Committee was to deal with the problem of security (sanctions) and the reduction of armaments.

The work required, above all, important political negotiations. While the question of arbitration required simply a political decision of principle, namely, the acceptance of compulsory arbitration, and the remainder was principally a matter of drafting-without question an extremely difficult task-of a scheme for the application of such arbitration, the questions of security and disarmament necessitated long and laborious political negotiations; for they involved fundamental interests, questions of vital importance to the States, engagements so far-reaching as radically to change the general conditions of the various countries.

Although in the work of the First Committee the Assembly had distinctly indicated in its resolution of September 6th that there was a likelihood-indeed, a necessity-of amending the Covenant, the work of the Third Committee as regards questions of security and reduction of armaments had, in pursuance of the debates of the Assembly, to remain within the framework of the Covenant. Above all, it was a question of developing and specifying that which is already laid down in the Covenant. All our discussions, all our labors, were guided by these principles, and a delicate task was thus imposed upon us. But the spirit of conciliation which pervaded all the discussions has permitted us to resolve the two problems which were placed before us. This is, indeed, an important result, and if the solution of the problem of arbitration which has been so happily arrived at by the First Committee be also taken into consideration, we are in the presence of a system the adoption of which may entirely modify our present political life.

This is the real import of the articles of the Protocol concerning the questions of security and reduction of armaments.

2. THREAT OF AGGRESSION: PREVENTIVE MEASURES

Article 7.-The pacific settlement of disputes being provided for in the present Protocol, the signatory States undertake, should any conflict arise between them, not to resort to preparations for the settlement of such dispute by war and, in general, to abstain from any act calculated to

aggravate or extend the said dispute. This provision also applies to the period preceding the submission of the dispute to arbitration or conciliation, and to the period in which the case is pending.

This provision is not unaccompanied by sanctions. Any appeal against the violation of the aforesaid undertakings may, in conformity with Article 11 of the Covenant, be brought before the Council. One might say that, in addition to such primary dispute as is or might be submitted to the Council or to some other competent organ, a second dispute arises, caused by the violation of the undertakings provided for in the first paragraph.

The Council, unless it be of opinion that the appeal is not worthy of consideration, will proceed with the necessary inquiries and investigations. Should it be established that an offense has been committed against the provisions of the first paragraph, it shall be the duty of the Council, in virtue of the results of such inquiries and investigations, to call upon the State guilty of the offense to remedy it. Any State refusing so to do will be declared by the Council to be guilty of violation of the Covenant (Article 11) and the Protocol. (By refusal shall be understood either formal refusal or any attitude incompatible with the decision of the Council ordering that the offense be remedied.)

The Council shall, further, take the necessary measures to put an end, as soon as possible, to a situation calculated to threaten the peace of the world. The text does not define the nature of these preventive measures. Its elasticity permits the Council to take such measures as may be appropriate in each concrete case, as, for example, the evacuation of territories. Any decisions which might be taken by the Council in virtue of this Article shall be taken by a two-thirds majority, except in the case of decisions dealing with questions of procedure which still come under the general rule of Article 5, paragraph 2, of the Covenant. The following decisions, therefore, shall be taken by a two-thirds majority:

The decision as to whether there has or has not been an offense against the first paragraph;

The decision calling upon the guilty State to remedy the offense; The decision as to whether there has or has not been refusal to remedy the offense;

Lastly, the decision as to the measures calculated to put an end, as soon as possible, to a situation calculated to threaten the peace of the world.

The original text of Article 7 provided that, in the case of inquiries and investigations, the Council should avail itself of the organization to be set up by the Conference for the Reduction of Armaments in order to insure respect for the decisions of that Conference. There is no longer any

mention of this organization, but this omission does not affect any decisions which the Conference may be called upon to take regarding the matter. It will be entirely free to set up an organization, if it judges this necessary, and the Council's right to make use of this body for the inquiries and investigations contemplated will, a fortiore, remain intact.

Article 8.-Article 8 must be considered in relation to Article 2. Article 2 establishes the obligation not to resort to war, while Article 8, giving effect to Article 10 of the Covenant, goes further. The signatories undertake to abstain from any act which might constitute a threat of aggression against any other State. Thus, every act which comes within the scope of this idea of a threat of war-and its scope is sufficiently elastic- -constitutes a breach of the Protocol, and therefore a dispute with which the Council is competent to deal.

If, for example, one State alleges that another State is engaged in preparations which are nothing less than a particular form of threat of war (such as any kind of secret mobilization, concentration of troops, formation of armed bodies with the connivance of the Government, etc.), the Council, having established that there is a case for consideration, will follow what may be defined as the procedure of preventive measures; it will arrange for suitable inquiries and investigations, and, in the event of any breach of the provisions of paragraph 1 being established, will take the steps described in Article 7, paragraph 4.

3. SECURITY-SANCTIONS

Article 11.-(Article 11, paragraphs 1 and 2, of the Protocol in its relation to Articles 10 and 16 of the Covenant.) According to Article 10 of the Covenant, Members of the League undertake to preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of aggression, the Council shall advise upon the means by which this obligation shall be fulfilled.

According to Article 16, should any Member of the League resort to war in disregard of its engagements under Articles 12, 13 or 15, all other Members of the League undertake immediately to apply economic sanctions; furthermore, it shall be the duty of the Council to recommend to the several Governments concerned what effective military, naval or air forces the Members of the League shall severally contribute to the armed forces to be used to protect the engagements of the League.

At the time when they were drafted at the Peace Conference in Paris in 1919, these articles gave rise to keen controversy as to the exact scope of the engagements entered into in these provisions, that is to say, as to the nature and extent of the obligations referred to in Article 10, the exact moment at which such obligations arose, and the juridical consequences

of the Council recommendations referred to in Article 16, paragraph 2. This controversy continued, as is well known, in the debates here in Geneva, where the question has been discussed in previous years.

Article 11 is intended to settle this controversy. The Signatories of the present Protocol accept the obligation to apply against the aggressor the various sanctions laid down in the Covenant, as interpreted in Article 11 of the Protocol, when an act of aggression has been established and the Council has called upon the signatory States immediately to apply such sanctions (Article 10, last paragraph). Should they fail so to do, they will not be fulfilling their obligations.

As regards their nature and extent, these obligations are clearly defined in paragraph 2 of Article 11. According to this paragraph, the reply to the question whether a signatory to the Protocol has or has not fulfilled its obligation depends on whether it has loyally and effectively co-operated in resisting the act of aggression to an extent consistent with its geographical position and the special conditions of its armaments.

The State remains in control of its forces, and itself, and not the Council, directs them, but paragraph 2 of Article 11 gives us positive material upon which to form a judgment as to whether or not these obligations have been carried out in any concrete case. This criterion is supplied by the term: loyally and effectively.

In answering the question whether a State has or has not fulfilled its obligations in regard to sanctions, a certain elasticity in the obligations laid down in Article 11 allows of the possibility of taking into account, from every point of view, the position of each State which is a signatory to the present Protocol. The signatory States are not all in possession of equal facilities for acting when the time comes to apply the sanctions. This depends upon the geographical, economic and social position of the State, the nature of its population, internal institutions, etc.

Indeed, during the discussion as to the system of sanctions, certain delegations declared that their countries were in a special situation, by reason of their geographical position or the state of their armaments. These countries desired to co-operate to the fullest extent of their resources in resistance of every act of aggression, but they drew attention to their special conditions. In order to take account of this situation, an addition has been made to paragraph 2 of Article 11 pointing out this state of affairs and laying stress on the particular situation of the countries in question. Moreover, Article 13 of the Protocol allows such countries to inform the Council of these matters beforehand.

I would further add that the obligations I refer to are imperfect obligations in the sense that no sanctions are provided for against any party which shall have failed loyally and effectively to co-operate in protecting the Covenant and resisting any act of aggression. It should, however,

be emphasized that such a State would have failed in the fulfilment of its duties and would be guilty of a violation of engagements entered into.

In view of the foregoing, the gist of Article 11, paragraphs 1 and 2, might be expressed as follows: Each State is the judge of the manner in which it shall carry out its obligations but not of the existence of those obligations, that is to say, each State remains the judge of what it will do but no longer remains the judge of what it should do.

Now that the present Protocol has defined more precisely the origin, nature and extent of the obligations arising out of the Covenant, the functions of the Council, as provided in Articles 10 and 16, have become clearer and more definite.

Directly the Council has called upon the signatories to the Protocol to apply without delay the sanctions provided in Article 11, it becomes a regulating, or rather an advisory, body, but not an executive body. The nature of the acts of aggression may vary considerably; the means for their suppression will also vary. It would frequently be unnecessary to make use of all the means which, according to paragraphs 1 and 2 of Article 11, are, so to speak, available for resisting an act of aggression. It might even be dangerous if, from fear of failing in their duties, States made superfluous efforts. It will devolve upon the Council, which, according to Article 13, may be in possession of the necessary data, to give its opinion, should need occur, as to the best means of executing the obligations which arise directly it enjoins the application of sanctions, especially as to the sequence in which the sanctions must be applied.

The practical application of the sanctions would, however, always devolve upon the Governments; the real co-operation would ensue upon their getting into touch, through diplomatic channels-perhaps by conferences and by direct relations between different General Staffs, as in the last war. The Council would, of course, be aware of all these negotiations, would be consulted and make recommendations.

The difference between the former state of affairs and the new will therefore be as follows:

According to the system laid down by the Covenant:

1. The dispute arises.

2. In cases where neither the arbitral procedure nor the judicial settlement provided for in Article 9 of the Covenant is applied, the Council meets and discusses the dispute, attempts to effect conciliation, mediation, etc.

3. If it be unsuccessful and war breaks out, the Council, if unanimous, has to express an opinion as to which party is guilty. The Members of the League then decide for themselves whether this opinion is justified and whether their obligations to apply economic sanctions therefore become operative.