THE PROTOCOL AND ITS IMPLICATIONS

By PRESIDENT A. LAWRENCE LOWELL

WHAT OUTLAWRY OF WAR MEANS

Much has been said of late about the outlawry of war. The expression is attractive; it suggests something evil driven into the wilderness far away from the homes of men, and ceasing to bring into their neighborhood violence and distress. When we say that we outlaw war, we imply that we have banished it, that it is no more to lift its head among civilized peoples, or anywhere on the face of the earth; and yet a clear-thinking man must ask himself how it is to be done, and what the term really signifies. To outlaw means to thrust outside the protection of the law. An outlaw was a man whom anyone might assault, rob or kill without incurring civil or criminal liability. This might be on account of some crime; but it was not the crime, it was the person who had committed it, that was outlawed; indeed, a crime, an act, cannot be outlawed,-that is deprived of the protection of the law. To say that the crime of murder should be outlawed, so that anyone might with impunity attack a murder, is senseless. It is the murderer who may be so treated, and who is so outlawed. In short, the expression outlawry of war is a misnomer which has confused and obscured the real object to be attained. It is only a person or group of persons, a nation if you please, that can be outlawed. To speak of the outlawry of war is merely using a metaphor to express moral disapprobation, to signify that it ought to be regarded as a crime.

To attach a bad epithet to an act, to brand it as a crime, has a moral effect not without value as a deterrent; but by no means prevents its being committed, for if it did so, theft and murder would have disappeared from the world long ago. Indeed, in the case of war it is even less effective than in that of individual crime, because in fact nations rarely go to war without a sincere conviction on the part of the bulk of their people that their cause is just, their war righteous, and those who fight in it heroes and martyrs deserving the highest honor from their country. There

fore an agreement simply to outlaw war, that is to call it a crime, cannot prevent its occurrence. Nor does it give people in fear of attack the sense of security that leads them to reduce the armaments which will be required for defense in case an attack is made upon them. The only effective way to accomplish what is aimed at by the outlawry of war is to outlaw the aggressor, the nation that unjustly resorts to war. Only by treating a nation so doing as an outlaw, deprived of the ordinary rights that nations enjoy, and by having the others combine to protect their neighbor who is attacked, can a sense of security, a confidence in enduring peace, be attained, and thereby a substantial reduction in national armaments be brought about.

DISARMAMENT AND PROTECTION

Such is the sequence of thought through which the members of the League of Nations have been led in their efforts to reduce armaments. During the World War many people were ready to approve of the use of force, economic and military, against any nation that should wilfully break the peace of the world by unjustly attacking its neighbor. But as the horrors of the struggle faded into the background, the picture became less vivid and the danger of their repetition less ominous. After the delegates from many countries had met in a friendly spirit at the Assembly of the League, solving by mutual understanding a series of hard international problems, and talking of peace and good will to one another, they came to rely for the maintenance of peace on public opinion, and the sanctions of the Covenant seemed to many of them a needless assumption of dangerous obligations. One of the principal objects of the League remained, however, unfulfilled -that of reducing armaments. Much had been done at sea, especially in the case of battleships, by the Conference at Washington; but nothing had been agreed upon for armies and armaments on land, which had become in Europe a perilous burden, a veritable millstone on the neck of human progress.

When the League took the problems of disarmament seriously in hand it was found that with the best intentions nations could not disarm while they felt insecure from foreign attack, that disarmament depended upon security, and that security could

be provided only by a mutual guaranty of protection strong enough to deter any state, however powerful, from war. There followed a review of the plan to substitute judicial procedure and arbitration for war, and an effort to provide against unjust breach of the peace sanctions enforced by all the other nations on the aggressor. The result was the Protocol, framed and adopted at the recent meeting of the League, which makes more precise the provisions of the Covenant, stops some loopholes therein, and defines with greater care the obligations of the signatories.

THE PROTOCOL AFFORDS PROTECTION

For those who believe that the outlawry of war should be a reality, and not merely an aspiration, the Protocol, whatever may be thought of its details, seems at present to offer the only thoroughly effective means for the purpose. At the same time it leaves the sovereignty of states unimpaired. Under it, no doubt, they assume obligations, but so they do under all treaties; and these obligations go no farther than many treaties for mutual defense which have never been deemed to infringe the sovereignty of the parties thereto. The most significant difference between such treaties and the Protocol lies in the fact that the representatives of so large a number of countries have voted for the latter that, if their assent is ratified, the combination will be too strong for any power or combination of powers to disregard. If this happens aggressive war will be rendered extremely improbable. It is certainly the most important move for the preservation of peace ever made.

Americans who think that our country has neither interest nor duty in preventing war over the rest of the world will naturally regard the Protocol as a courageous attempt by other nations to face the real problem of relieving mankind from this agelong scourge. With the detachment of beings from another planet they can observe impartially the provisions made, and consider how much better they are adapted to the purpose of eliminating predatory war than anything previously agreed upon. To those, on the other hand, who believe that our increasing commercial relations with other countries are exposed to material injury in any war between foreign nations, that into any great

war we are liable to be again drawn, and that we can not justify standing wholly aside from movements to promote human welfare and prevent human suffering, the Protocol offers a subject of supreme importance.

THE PROTOCOL AND DOMESTIC QUESTIONS

The briefest remarks about the Protocol would be inadequate in American eyes, without a reference to the Japanese amendment on domestic questions. The matter is confused and little understood. In the Covenant (Arts. 12, 13, 15) the Members of the League agreed that they would submit any dispute likely to lead to a rupture either to arbitration or to judicial settlement or to inquiry by the Council; that in case of arbitration or judicial settlement they would carry out the award in good faith, and not resort to war against a member which complied therewith; and that in case of submission to the Council they would not go to war with any party to the dispute which complied with a unanimous report of that body. Then follows the clause (Art. 15, 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." The clause seems to have been interpreted in two diametrically opposite ways. It has been taken to mean that the Council should make no recommendation, because the matter, being purely domestic, was one in which no other state had a right to interfere, and therefore one on which no other state might go to war. The other interpretation is that such a report had the effect of placing the matter wholly outside the provisions of the Covenant, so that on a domestic question the Members of the League were free from its provisions and might go to war as if the Covenant did not exist.

However that may be, the Protocol, as drafted before the Japanese amendment, appeared to set the matter at rest. It provided, and still provides, in Article 2 that "the signatory states agree in no case to resort to war 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." In Article 5 it was provided that if, in an arbitration, one of the parties claimed that the matter was solely domestic the arbitrators should take the advice of the Permanent Court of International Justice; that the opinion of the Court should be binding upon the arbitrators, who, if the opinion were affirmative, should confine themselves to so declaring in their award. Then Article 10 declared that, in the event of hostilities having broken out, any state, unless the Council decided unanimously to the contrary, should be presumed to be an aggressor if it had refused to submit the dispute to the procedure of pacific settlement, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or had 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 arose out of a matter which by international law is solely within the jurisdiction of the latter state. The article then goes on to say that, apart from these cases, the Council, if unable to determine at once the aggressor, shall enjoin upon both an armistice.

THE JAPANESE AMENDMENT

Now it is evident that at this stage the framers of the Protocol intended so far as possible to stop all grounds for aggressive war, and among them any based on domestic questions. They made it perfectly clear that on domestic matters no nation should be permitted to go to war with another, and that no arbitrators should even take them into consideration. The plan on this point was consistent and perfectly definite; but it did not satisfy the Japanese. They felt, perhaps more in regard to the treatment of their citizens in foreign lands than to their exclusion, that they were entitled to bring such questions before the bar of world opinion. To Article 5 of the Protocol was therefore added a clause which says: "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