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“Resort to War” and the Interpretation of the Covenant During the Manchurian Dispute

Published online by Cambridge University Press:  12 April 2017

H. Lauterpacht
H. Lauterpacht*
Affiliation:
London School of Economics and Political Science
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Extract

The first phase of the dispute between China and Japan before the League of Nations began in September, 1931, when China, following upon the invasion of Manchuria by Japanese troops, invoked Article 11 of the Covenant and asked the Council to take measures to restore the territorial status quo and to determine the amount and the character of the compensation due to her as the result of the invasion of her territory. It ended in April, 1933, when, subsequently to the adoption by the Assembly of a report under Article 15 of the Covenant, it became clear that no effective action would be taken to implement the purposes of the Covenant. The charter of the community of nations organized in and through the League proved, to all appearances, to be of illusory value in its fundamental aspect, namely, in the undertaking to protect the members of the League from external violence and aggression. The prediction of the sceptics that the authority of the League would be unable to assert itself if challenged by one of the Great Powers seemed to have been amply confirmed. It seemed to have been fulfilled by a successful defiance of the Covenant so unprecedented in its magnitude, obviousness and persistence as to constitute a fair test case of the value and of the potentialities of the League.

Type
Research Article
Information
American Journal of International Law , Volume 28 , Issue 1 , January 1934 , pp. 43 - 60
Copyright
Copyright © American Society of International Law 1934

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References

1 P. 126 of the Report.

2 P. 18 of the Draft Report: Doc. A (Extr.) 22.1933. VII. The report was printed in this journal, Vol. 27 (1933), Supplement, pp. 119-152

3 See p. 120 of the Keport.

4 At p. 127.

5 P. 18.

6 “The Covenant of the League of Nations and War,” in Cambridge Law Journal, V (1933), p. 14.

7 “International Law and Resort to Armed Force,” ibid., IV (1932), p. 314.

8 Schücking, Rühland and Böhmert in Zeitschrift für Völkerrecht, XVI (1932), p. 541. See also Röttger, Die Voraussetzungen für die Anwendung von Völkerbundmassnahmen (1931), pp. 13-16.

9 International jurists have never accepted the view that a state of war can be brought about only by a formal declaration of war. Dr. McNair, in a now classical paper, summed up in 1925 the position as follows: He concluded that a state of war occurs, inter alia, “upon the commission of an act of force, under the authority of a State, which is done animo belligerendi, or which, being done sine animo belligerendi but by way of reprisals or intervention, the other State elects to regard as creating a state of war, either by repelling force by force or in some other way; retroactive effect being given to this election, so that the state of war arises on the commission of the first act of force.” (Grotius Society Publications, Vol. 11 (1926), p. 45.) It would appear from Dr. McNair's conclusion that a state of war arises if force not undertaken animo belligerendi is repelled by force; there is in such cases a presumption of an animus belligerendi on the part of the attacked state. But it is no more than a presumption, which can be rebutted if the state concerned expressly disclaims the will to bring about a formal state of war. A state cannot be involved in war against its will in deference to a theoretical definition of war.

10 Doc. A. 14.1927. V. And see ibid., p. 32, for the report presented on this matter by the Third Committee to the Assembly in 1921.

11 It might be urged that if the Covenant had used the term “act of war” in its literal meaning, the detailed enumeration of the sanctions would not be necessary. They would follow automatically upon the occurrence of the state of war. It is of interest to note that the first American draft of the Covenant contained in this connection the phrase “shall thereby ipso facto become at war with all other members of the League.” (ibid., p. 28; Synopsis of the Development of Article 16 of the Covenant.)

12 Reports and Resolutions on the Subject of Art. 16 of the Covenant, Doc. A. 14.1927. V, p. 17.

13 ibid., p. 32.

14 Doc. A. 24 (1). 1921. V, p. 12. Sir John Fischer Williams, op. cit, pp. 12,13, cites some of these pronouncements as supporting the view that “resort to war” is identical with “resort to armed force.” This deduction is perhaps in the nature of rum sequitur. From the fact that a technical state of war is not necessary to constitute resort to force a violation of the Covenant it does not follow that every act of armed force is resort to war. What does follow from it is that certain acts of force may and that others may not constitute “resort to war.“

15 For an account of these successive changes in the wording of the crucial terms, see Röttger, op. cit., pp. 14-16, and Hindmarsh, Force in Peace (1933), p. 133.

16 See Hunter Miller, My Diary at the Conference of Paris, Vol. V, Doc. 396, p. 277, for a passage in the memorandum to the President on the draft of the Covenant of Feb. 13,1919, to the effect that “there is a change in verbiage in the opening words which use ‘war’ instead of ‘the use of armed force'.” However, what appeared to Mr. Hunter Miller (and possibly to some of his colleagues) as a mere change in verbiage may not have appeared so to others. Great care was taken to effect this change in verbiage in all the relevant articles of the Covenant. See also ibid., Vol. XX, p. 74, for the speech of M. Bourgeois at the plenary meeting of the Conference of April 28, 1919, in which the expression “recourse to armed force” was apparently used as synonymous with “resort to war.” 1

17 Resolutions concerning the Economic Weapon, Doc. A. 14. 1927. V, p. 43

18 Official Journal, 1928, Spec. Suppl. No. 64, p. 457.

19 Official Journal, Dec. 1932, p. 1923 (Minutes of the 69th Session of the Council).

20 Attention may also be drawn to the report of M. de Brouckère in 1926 which emphatically takes the view that no “resort to war” can be deemed to have taken place if there exists no state of war, and that “a state of war does not really exist until the country attacked takes up the challenge and thus admits the existence of a state of war.” (Doc. A. 14. 1927. V., p. 68.) The report by the Secretary-General, of May 17, 1927, on the application of Art. 16 is clear and emphatic on this point: “From the legal point of view, the existence of a state of war between two States depends upon their intention and not upon the nature of their acts. Accordingly, measures of coercion, however drastic, which are not intended to create and are not regarded by the State to which they are applied as creating a state of war, do not legally establish a relation of war between the States concerned.” (ibid., p. 83, and also in Official Journal, 1927, p. 834.)

21 Pari. Papers, Prance, No. 1, 1885.

22 Professor Quincy Wright, in an illuminating article contributed to this journal (Vol. XXVI, April, 1932, pp. 362-368), has foreshadowed very clearly an interpretation here adopted. In 1927, in the memorandum already quoted, on the application of Art. 16, the Secretary-General of the League drew attention to the possibility of situations in which there is no formal state of war between the disputants, but in which third states may find it necessary to guide their conduct by the view that a state of war exists (Doc. A. 14. 1927. V, p. 83).

23 See, for instance, McNair in the fourth edition of Oppenheim's International Law (Vol. II, 1926), p. 102.

24 This was, for instance, the opinion of Professor Ch. de Visscher, who was a member of the Committee of Jurists: Revue de droit international et de la législation cornparée, 3rd ser., Vol. V (1924), p. 377.

25 But not necessarily in respect of other articles of the Covenant, for instance, in regard to Art. 10. The members of the League clearly admitted in the report of the Assembly that the conditions for assuming a violation of this article by a fellow-member have been fulfilled. This finding was not followed by an attempt at the fulfilment of the obligation to preserve the territorial integrity and political independence of another member of the League against what the Assembly, in fact, considered to be external aggression.

26 A. C. 40 (a), p. 12.

27 Schücking-Wehberg, Die Satzung des Völkerbundes (1st ed.), p. 596.

28 Sir John Fischer Williams, op. cit., p. 14.

29 P. 18.