The Geneva Protocol Part 16

THE "AMENDED" COVENANT.

I trust that no one appreciates better than myself that examination of a doc.u.ment bit by bit and piece by piece tends to blind the vision.

One sees the trees and not the forest. Worse than that, one gets a false vision, a picture, if I may change the metaphor, of the b.u.t.tons on the coat but not of the man wearing the coat and still less of the soul within the man.

A critical examination of an international legal doc.u.ment leads to a discussion of trivialities and to hypotheses of almost impossible possibilities. Of course it is true that the carrying out of a great international agreement in the light of the facts and conditions of international life as they arise does not proceed along the technical lines that I have followed, but rather along those lines of policy which really control international action. I do not mean necessarily selfish policy, but policy in the larger sense of decisions based upon the best judgment of those in power for the time being.

What really ought to be done in studying any proposal such as the Protocol of Geneva, is to realize, if possible, the ultimate purpose of the doc.u.ment and to visualize, so far as we can, what would happen if it came into force, not so much what _might_ happen under a particular phrase, but how the international relations of the world would proceed if the whole agreement were a reality.

I have mentioned more than once that the Protocol of Geneva contemplates that its provisions shall form part of the Covenant; in other words, that the two doc.u.ments shall be amalgamated, forming an amended Covenant. With the hope of facilitating a general view, I have endeavored to put the two doc.u.ments together in the form of an "amended" Covenant, and the result of this effort is set out below.[1]

Looking at the text of this "amended" Covenant, one may observe that while twenty of the present twenty-six Articles {107} remain unchanged in form, Articles 12 to 17, inclusive, are expanded and somewhat rewritten; and eight Articles are added; and I do not think that the text of the "amended" Covenant could be phrased in much less language than it appears below.

Of course the length of a doc.u.ment in itself is not of much consequence; but it is not unimportant to observe that the "amended"

Covenant is very much longer than the Covenant as it now reads. This fact, I say, is important, because it is the visible evidence of a reality. The Protocol of Geneva is not a mere completion of the provisions of the Covenant. Advocates of the Protocol make a very serious mistake when they erroneously say that the Protocol of Geneva is merely a rounding out of incomplete and partial agreements of the Covenant.

And it must be borne in mind that new or varied phrases in one Article may change the whole; the amended Covenant is altered not only in those Articles which may be textually amended, but throughout; I attempted to show this in detail as to Article 10 of the Covenant[2]; like any other doc.u.ment, the entire new paper must be read together.

What the Protocol of Geneva does is to create a new and a different League of Nations. It is true that what I may call the procedural and structural functions of the League are not changed; but the system of international relations which is now set up under the League is so much changed that one may properly say that it is an entirely new and different system.

To my mind, there are three outstanding features of the "amended"

Covenant. It creates a complete system of compulsory arbitration; it consecrates the legality of the _status quo_; and it is a general defensive alliance.

Now let us compare these three features of the "amended" Covenant with the ideas of the existing Covenant.

The first mentioned, the system of compulsory arbitration, is by far the most important and the one that should be the starting point for any view of the "amended" Covenant as a whole. In this arbitration system is contained the idea of outlawry of {108} war which the doc.u.ment embodies. The arbitration of disputes under the new system is to take the place of war, which is outlawed.

All that the Covenant did was to forbid some wars, to provide for delay in every case, and otherwise to rely wholly upon voluntary arbitration and, in cases where they could be obtained, upon unanimous recommendations of the Council. The framers of the Covenant were most careful to avoid the idea of compulsory arbitration, for all that even the unanimous recommendation of the Council could do was to prevent hostilities.

Under the "amended" Covenant, the defensive alliance of the Members of the League becomes complete. It is intended to see to it that arbitral decrees are carried out; to see to it that the _status quo_ remains untouched, except by voluntary agreement; and to see to it that the violator is met by the combined forces of other States.

Contrast the provisions of the Covenant, which contemplate no concerted action, unless agreed to at the time, other than economic and financial pressure; and the preservation of the _status quo_ only so far as Article 10 of the Covenant extends.

It would be unfair and untrue to call this new system a super-state, for it is nothing of the sort; but it would be in a sense untrue also to say that this new system is merely a development of the Covenant itself; it is the sort of change that one might call a development if it had taken two or three generations or a century to bring it about; but not properly to be called a development when it all comes at once.

The natural conclusion to be reached is that such a complete change cannot be realized at this time, and that is the sound conclusion.

That a system of law should be built up governing the international relations of the States of the world, by which their differences should be adjusted by the orderly processes of legality, excluding as a method of adjustment the chaos of war, may be admitted. Thus far, the changes proposed by the Protocol of Geneva are desirable; the question is merely as to the length to which the countries of the world are willing to go in {109} this direction at this time; and I include as a part of this development, the outlawry of war, the agreement that war is not to be resorted to by any State, that it should disappear from international relations, except in so far as force must necessarily remain as defence.

It is to be hoped that this part of the Protocol may stand; and it must be admitted that there is inherently and _ipso facto_ to some extent a consecration of the legality of the _status quo_ by the outlawry of war and by peaceful settlement of disputes by legal means.

On the other hand, various features of what I may call the defensive alliance portion of the Protocol seem to me to be impossible and at this time inadvisable. They are supposed to flow logically from the system of compulsory arbitration; and certainly the problem which they attempt to solve does follow logically from any system of compulsory arbitration and outlawry of war. If we a.s.sume war to be outlawed and a system by which there is to be a legal settlement of disputes in place of war, the question of course arises: Well, what is to happen in a given case if some State which has accepted this system and has agreed to it should refuse to abide by it, should not carry out an award or decision or should even take up arms against it, what then?

The Continental mind very logically answers this question by saying there must be a system of execution of decrees and that if you outlaw war, you must have a combination for defence. This is true from the point of view of logic; but it is not true from the point of view of life. Compulsory arbitration and outlawry of war are untried ideas, and we cannot say now, under all circ.u.mstances, what should be done in the course of their working, if they are put to work; much less can Nations now bind themselves as to a definite and complete course of action under all possible and varying future circ.u.mstances. That such a system of concerted action against aggression as is proposed by the Protocol of Geneva may perhaps in time be worked out along with the growth and development of the ideas of outlawry of {110} war and of arbitration, may be admitted. That it can be done now is, to my mind, contrary to the realities of life and to the lessons of history.

There is another phase of this last discussion which should be particularly noticed. It is impossible for any such agreement for concerted action not to have a direct bearing upon countries which are not parties to the agreement; in other words, Russia and the United States. We must admit at least the theoretic possibility of a conflict between one of the Members of the League and one of these two Great Powers, insisting, if we will, that such a possibility is highly remote so far as the United States is concerned, and utterly unknowable so far as Russia is concerned; but none the less a possibility.

And certainly, in view of that possibility, any provisions of a doc.u.ment which looks toward force as a last resort of defence should, in my judgment, be drawn with the utmost care to avoid the idea of a possible conflict between the parties to the doc.u.ment on the one hand and an outside State on the other. Outlawry of war and arbitration are things to be agreed upon and not to be compelled against those who are unwilling to agree; for the breach of such an agreement is a much more serious and a very different thing than a refusal to arbitrate, or even than going to war when there is no agreement.

That the hospitality, if I may call it so, of the League of Nations should be extended to States which are unwilling to join it; that its facilities should be offered to these States for the settlement of disputes in every case where they are willing to accept them; that the covenants of the Members of the League for justice toward an outside State should be as explicit and complete as its covenants toward a Member, I quite agree; the covenants of the Members of the League should be covenants of peace among themselves, and of justice toward all. This is the road to a universal League of all Nations.

If it be said that to Finland or the Baltic States or Poland or Roumania or Turkey there is danger from their great neighbour, {111} I cannot deny such a possibility; and if any Members of the League are willing to join with such States in protection against such danger, either in advance of its occurrence or when it happens, I would see no objection to it, if such agreements were coupled with all the offers of peaceful settlement that could be written, as well as with offers of members.h.i.+p in the League, either permanent or _ad hoc_.

To a state which is contemplating the possibility of signing the Protocol of Geneva, it may well be that the provisions of that doc.u.ment regarding sanctions stand out as the most important, the ones having the greatest possibilities as to obligations of future action. This is a very natural point of view, and even a very proper one. And, while I myself am very deeply convinced that, from the point of view of world politics, the most far-reaching and vital provisions of this doc.u.ment are those which refer to arbitration and to the outlawry of war, yet perhaps for that very reason, I am equally convinced that the most serious changes which are necessary in the paper are changes in its provisions for sanctions and for enforcement.

With the principles of compulsory arbitration I am wholly in accord; with the principle that outlawry of war should follow as the necessary and natural consequence of the subst.i.tution of a reign of law for a reign of force I quite agree; and that some tribunal should determine, if need arise, that the agreement has been broken and that there is an "outlaw," is a natural consequence of those principles; and that there may be defence against aggression, if it comes, almost no one will deny. But there, I think, we must stop so far as present agreement is concerned. That any State may, _if it chooses_, go to the defence of another against an adjudged aggressor I would concede; but that all States can be or should be now required to sign an agreement so to go to such defence, I deny. In the present state of world opinion and when its own direct interests are not involved, any free people can well say that it will not or ought not to sign such an undertaking.

So I say that, while arbitration may be agreed to in advance {112} and outlawry of war may be agreed to in advance, sanctions and a.s.sistance in defence must be voluntary.

Where does all this leave the problems of disarmament and security?

I answer by saying that the solution of these problems is very difficult, because with it are involved feelings of national fear and haunting doubts of possible national disaster. The feeling of security must be a plant of slow growth, and progress toward disarmament cannot be realized except to the extent that that growth comes. All that can be done now is to make a beginning, and, if too much is attempted, less will be accomplished. The world must rely on the development of the new idea of the reign of law and reach its feeling of security as that reign succeeds and triumphs.

The Protocol of Geneva is one of the most important of modern international doc.u.ments. This is true whether it comes into force as a binding treaty or whether it does not; and it is true because the Protocol represents a development of international thought since the World War along lines of what may be called international morality, of what may almost be called international religion, which, while not novel in the realm of thought, were wholly novel in the diplomatic field of action.

The belief that international law must be strengthened, the thought that it must lay hold of international questions before the time of war and the idea that the security of a country is to be a security for peace and not simply a security in war, were the principles upon which the Covenant of the League of Nations was based; but in that doc.u.ment they were to some extent formulated only as hopes for the future.

These ideas which the Protocol of Geneva seeks to make complete realities have fundamentally become a part of international life. To my mind, they are certain to be carried out in some doc.u.ment in the near future and one of their incidents will be the realization of schemes for the reduction of armament as an incident of the development of the feeling which exists as to security.

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The Protocol of Geneva will undoubtedly be much changed as a result of the consideration which is now being given to it by the various important governments of the world.[3] In various respects the Protocol goes farther than cautious public sentiment of countries like Great Britain and her Dominions is, or ought to be, willing now to proceed; but it is these very matters which can easily be changed and which will be changed.

The Conference on Disarmament and its result are the cornerstones on which the Protocol of Geneva rests. That Conference must be held and it must have a result; the public sentiment of the world demands it; and the satisfaction of that demand involves the adoption by the Members of the League of the Protocol of Geneva, not the doc.u.ment as it now is, but as it will be.

[1] See Annex G, p. 271.

[2] _Supra_, p. 84.

[3] Since this monograph was written, I have received the text of the Report of the British Delegates regarding the Protocol of Geneva (Miscellaneous No. 21, 1924, Cmd. 2289). It is reprinted as Annex E, page 217. It is a most valuable and interesting doc.u.ment. I have carefully considered its conclusions, some of which are not the same as my own, and despite my very high regard for its authors, I see no reason to change anything that I have written.

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ANNEXES.

PAGE

A. THE COVENANT OF THE LEAGUE OF NATIONS .......................... 117

B. THE PROTOCOL OF GENEVA ......................................... 132

C. THE REPORT TO THE FIFTH a.s.sEMBLY ............................... 156

D. RESOLUTIONS .................................................... 210