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II

COMMENTARY ON THE DRAFT TREATY OF DISARMAMENT

AND SECURITY

PART I

General Measures

CHAPTER I

OUTLAWRY OF AGGRESSIVE WAR

The phrase “to outlaw war," while not accurate from the legal standpoint, has acquired great vogue throughout the United States and, more especially, among those who have been most critical of other schemes for American participation in the League of Nations, on the grounds that the Covenant does not sufficiently safeguard against aggressive war, or that its provisions would involve peace-loving states in wars of others. In America, this phrase will be taken to indicate the whole intent and purpose of the Treaty and it will further its understanding and popular acceptance.

This has been taken over, verbally changed, ARTICLE I

from the Draft Treaty of the Temporary Mixed Commission. In this setting, however, it acquires a new character. It is no longer a mere declaration and statement of intention; it is a contract with a sanction attached.

This is a further step of definition. It is purARTICLE 2

posely kept in very general terms leaving to the machinery which is to be set up by the Powers to develop the systematic and detailed definition of aggression as time goes on. The completion of this definition is left to the Permanent Advisory Conference, as indicated in Articles 7 and 14, and the Permanent Court of International Justice.

Article 2 is, therefore, to some extent a temporary statement, or rather the general terms of a future definition.

This is especially important in view of Arti- ARTICLE 3 cle 9. But it also naturally involves the question of the sanctions of Article 8.

CHAPTER II

ACTS OF AGGRESSION

This chapter covers those acts leading to competition in armaments as well as those leading to war itself. It is an effort to avert the menace of aggression; and yet, it does not include those provocative political acts which lie outside the technical sphere of aggression. Questions of political character, matters of policy, etc., are left for the conciliation of the Council of the League of Nations. The action of the Court is strictly limited to the interpretation of the terms of this Treaty itself. Just as aggressive war is declared an in

ARTICLE 4 ternational crime by Article 1, so this Article defines acts of aggression as constituting a kind of international misdemeanor equally forbidden by international law. This is one of the central articles of the

ARTICLE 5 Treaty; it contains a definition of aggression. The aggressor is one who refuses to accept the jurisdiction of the Court.

Specal attention is called to the four-day time limit. This is inserted in order to prevent an aggressor from continuing war-like preparations while trifling with an appeal to the Court. It safeguards the security of the complainant's power. This is similar to Article 3.

ARTICLE 6

This is an important article, but can be conARTICLE 7

sidered better in connection with Article 14 below. The suggestions for the codification of international law made by a technical body of this character will undoubtedly have great weight with public opinion and with the Permanent Court of International Justice, and will tend towards the development of international law.

CHAPTER III

SANCTIONS

Special attention is called to this chapter, both for what is in it and what has been left out.

This is the heart of the whole treaty. For the ARTICLE 8

first time in international law, we have a method of treaty enforcement which both leaves the H.C.P. free to apply the enforcement or not, as they see fit, and yet, at the same time, secures an enforcement that is real and adequate. There is no surrender of national sovereignty. There is no delegation of authority to the Council of the League to call out the armed forces of its members; with the resultant enfeeblement (rather than enhancement) of its position, owing to its uncertainty as to whether the members of the League would comply with its request. The Council of the League is, therefore, theoretically deprived of one of its prerogatives under the Covenant, but, in reality, its authority will be strengthened, owing to the effectiveness with which the present clause will work, and work automatically.

Article 8 falls into two main divisions: (1) the economic sanction, (2) the sanction by act of war. In the latter case it is directly stated that each Signatory shall be entirely free. Its liberty of action is in no way infringed by this Treaty, so long as it acts only as a police force. Naturally, the other articles of the Treaty operate to prevent its transforming police action into aggression. In the economic sanction the H.C.P. do not bind them

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selves by this Treaty to take any acts contrary to their own interests. But they are free to do all manner of things as against an aggressor with reference to its property rights on the high seas or within their own frontiers. In a word, the aggressor is outlawed, and, as such, deprived of any security for his property in other lands. Automatically he loses his own security throughout the whole world.

The effect of this upon business interests would be instant. No trader could be sure that his ships would receive entry into the ports of another Signatory or that his investments in their keeping would not be immediately attached. In a world built up on a basis of credit, the result would be for the aggressor unavoidable panic, of greater or less degree. The effect of this would at once be registered in the fall in exchange value of the currency of the aggressor state. In view of the experience of the last five years, there could hardly be a more impressive lesson of the danger of violating this Treaty or ignoring its monetary provisions.

The economic sanction here indicated brings to bear upon the aggressor state the whole post-war experience of Europe. At the same time, it avoids interfering with the sovereignty of any government. Article 9 applies the principle of repara

ARTICLE 9 tion. This is a normal consequence of the recognition of aggressive war as a crime. The threat of this alone would have a large deterring effect.

CHAPTER IV

DECREES OF THE PERMANENT COURT

This chapter concludes Part I of the Treaty, which deals with the outlawry of war and the measures for distinguishing police activities from those of aggression.

These two Articles, taken in connection ARTICLE 10 with Article 5, are a further safeguard against ARTICLE II the possible bad faith of an aggressor.

PART II

Disarmament

CHAPTER I

REDUCTION AND LIMITATION OF ARMAMENT

In view of the machinery set up by this ARTICLE 12

Treaty this Article has been kept in very general terms. It is admitted by technical experts that we have not yet found any adequate way for measuring the relative standards of armaments to be applied. In directly recognizing the situation the Treaty calls for a continuing study of the problem and provides the means for it.

In principle, however, the Treaty relies more upon the measures described in Part I for securing a lessening of armament than upon the mutual agreements for disarming. In this it follows the line of the reasoning of the European experts as well in regarding the question of security as fundamental and disarmament as dependent upon it.

CHAPTER II

DEMILITARIZED ZONES

ARTICLE 13

This is admittedly an incomplete statement

of an important measure. More should be done both to develop this Article and to secure its application in special instances.

CHAPTER III

PERMANENT ADVISORY CONFERENCE

Here we have a major contribution of the ARTICLE 14 ARTICLE 15

Treaty. The necessity of having a conference ARTICLE 16

on disarmament is recognized on all hands. ARTICLE 17

But what is needed is something more. The conference must be periodic. The experience of the Washing

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