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The League of Nations Covenant—1939 Model

Published online by Cambridge University Press:  02 September 2013

Denys P. Myers
Denys P. Myers
Affiliation:
Fletcher School of Law and Diplomacy
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Extract

Any constitutional instrument is subject to strains and stresses by reason of demonstrated inadequacy or omission at some times, and of failure to reflect the current state of mind of its constituents at others. The Covenant of the League of Nations, which is by way of a constitutional instrument in the hitherto unoccupied field between independent states, has had reputations as diverse as that of a straight-jacket and an empty sack. In the end, most of the waves of sentiment arrive at the customary human dilemma, that the trouble is not so much with the mechanism as with its human operators.

The League of Nations has had a hectic existence for an institution just emerging from its teens. Its first ten years were a series of easy successes, but the eight years just past have confronted it with problems too tough for the morale of its members; or problems have been kept away from it because, if it cut at all, it would likely come too close to the quick.

After this period of confusion, the members of the League, at the 19th session of the Assembly, took a series of actions to make the Covenant more useful to them. Resolutions of September 30, 1938, dealt with the question of the so-called separation of the Covenant from the peace treaties by approving amendments in the Preamble and Annex and Articles 1, 4, and 5 of the Covenant; and by interpretation with the procedure under Article 11, par. 1; the obligations under Article 16; and collaboration of the League and non-member states. Whether or not these decisions make any actual change from recent practice, the meaning of the Covenant is the clearer because of them, and its application will be more certain when the occasion arises.

Type
Research Article
Information
American Political Science Review , Volume 33 , Issue 2 , April 1939 , pp. 193 - 218
Copyright
Copyright © American Political Science Association 1939

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References

1 Previous interpretations relate to Article 15, pars. 1 and 8 (Official Journal, 1924, 524, and idem, 1926, 597, 519), and to Articles 11, par. 1, 13, and 15, “or other articles” (Council Resolution of June 7, 1928, Official Journal, 1928, 909–910)Google Scholar.

2 Foreign Relations, 1918, Sup. 1, 4. The speeeh answered a memorandum of “war aims” by the Labor party (War Aims of Belligerents, as Elicited by Russia's Attempts to Secure a General Peace, 118. Boston, World Peace Foundation, 1918).

3 Foreign Relations, 1918, Sup. 1, 12.

4 In this connection are pertinent the documents and correspondence of Theodore Marburg in Latané, John H. (ed.), Development of the League of Nations Idea (New York, Macmillan, 1932)Google Scholar.

5 Miller, David Hunter, The Drafting of the Covenant, I, 76, 81–82Google Scholar; U. S. Congress, Committee on Foreign Relations, “Treaty of Peace with Germany,” Hearings, 66th Cong., 1st Sess., Sen. Doc. 106, p. 263; Baker, Ray Stannard, Woodrow Wilson and World Settlement, 1, 233 ff.Google Scholar Mr. Miller's chapter, pp. 76–100, is a well-balanced account.

6 On Secretary Robert Lansing's rejected ideas, see his The Peace Negotiations; a Personal Narrative (New York, Houghton Mifflin, 1921), p. 61Google Scholar.

7 Vol. 57, pt. 5, p. 4974; Fleming, Denna F., The United States and the League of Nations, 1918–1920 (New York, Putnam, 1932), p. 153 ff.Google Scholar

8 Speech at the Metropolitan Opera House, New York, March 4, 1919, International Conciliation, Spec. Bui., Mar., 1919, p. 64. Former President Taft, on the same platform, took the same attitude. See Denna F. Fleming, op. cit., pp. 160–165.

9 Miller, op. cit., II, pp. 592–645.

10 Idem, pp. 683, 695.

11 Miller, op. cit., I, pp. 498–504. Changes at that stage in the Preamble and Articles 4 and 5 are now subjects of amendments.

12 The United States, British Empire, France, Italy, Japan, Belgium, Brazil, Greece, and Spain.

13 2 British and Foreign State Papers, 31, 54, 114; Martens, , Nouveau recueil de traiés, II, pp. 353, 406, 430Google Scholar.

14 The Sixth Committee said that “no question of principle was involved, but only one of form.” (A.78.1938.VII). The committee also emphasized that League of Nations action to establish the independence of the Covenant does not effect a modification of the peace treaties, for which only the parties to them are competent.

15 In the Union of South Africa, the Treaty of Peace and Southwest Africa Mandate Act, 1919; United Kingdom, Treaty of Peace Act, 1919, Treaty of Peace (Covenant of the League of Nations) and orders in council, 1935; France, law of October 12, 1919; Poland, Legal Gazette, 1920, No. 35, item 200; (Dispute between Ethiopia and Italy, Coördination of Measures under Article 16 of the Covenant, Proposals and Resolutions of the Coördination Committee and the Committee of 18 …, Official Journal, Spec. Sup. No. 150, pp. 18, 58, 132, 238). See generally, Kluyver, C. A., Documents on the League of Nations (Leyden, Sijthoff, 1920)Google Scholar.

16 Three circumstances contributed to the popularity of this thesis: (1) the identity of the “principal allied powers” with the permanently represented members of the Council; (2) the priority and notoriety of the treaties of peace in utilizing the jurisdiction of the Council; and (3) disregard of or lack of credence in the technical fact that the Council meticulously and specifically in each case of assignment reserved to itself the decision on whether the matter properly fell within its functions under the Covenant.

17 United Kingdom, Correspondence Showing the Course of Certain Diplomatic Discussions Directed Toward Securing an European Settlement, June, 1934, to March, 1936 (Misc. No. 3 [1936], Cmd. 5143), p. 79. A more elaborate “peace plan” of March 31 included the same offer in slightly different terms (Correspondence with the German Government Regarding the German Proposals for an European Settlement, March S4~May 6, 1936 (Misc. No. 6 [1936], Cmd. 5175), pp. 10–11, 16. In a later speech (February 20, 1938), Herr Hitler asserted that Germany would “never join it again, because we have no intention of being involved in the defense of injustice in some part of the world by a majority decision of the League.” He dilated upon his conception—at the moment of speaking—of “injustice.”

18 Documents Relating to the Question of the Application of the Covenant (Official Journal, Spec. Sup. No. 154), p. 6. The resolution was adopted simultaneously with a resolution to halt the application of Article 16 in the dispute between Ethiopia and Italy.

19 Idem, p. 96.

20 Resolutions Adopted by the Assembly … 1936 (Official Journal, Spec. Sup. No. 153), p. 40. The governments represented were the Argentine Republic, Austria, Belgium, Bolivia, Bulgaria, Canada, Chile, China, Colombia, Czechoslovakia, France, Greece, Iran, Italy, Latvia, Mexico, Netherlands, New Zealand, Poland, Portugal, Rumania, Soviet Union, Spain, Sweden, Switzerland, Turkey, United Kingdom, and Uruguay.

21 C.494.M.335.1937.VII.

22 A.78.1938.VII.

23 The communication was to the United States, Brazil, Costa Rica, Germany, Guatemala, Honduras, Japan, and Nicaragua (Minutes of the 103d Session of the Council, Minute 4096).

24 These provisions read:

“1. Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly.”

25 The amendments are quoted from the protocol, A.79.1938.V.

26 Italics in the text indicate amending language.

27 Miller, op. cit., I, p. 319; II, p. 342; see also I, pp. 397, 409, 466, 476; II, pp. 694, 717.

28 Miller, op. cit., I, p. 467. For the circumstances as to Costa Rica, see Kelchner, Warren H., Latin American Relations with the League of Nations (Boston, World Peace Foundation, 1929), pp. 39, 51Google Scholar.

29 League of Nations, Resolutions and Recommendations Adopted by the Assembly … 1931 (Official Journal, Spec. Sup. No. 92), p. 41. This action was, of course, a criticism of the Wilson policy accepted by the conference.

30 Official Journal, 1934, p. 1468Google Scholar.

31 The kingdom of Saudi Arabia is the successor state, and the choice open to the Hejaz would presumptively extend to it.

32 Italy of the “signatory” list, and Chile, El Salvador, and Venezuela of the “accession” list, have notices of intention to withdraw maturing.

33 Official Journal, 1922, p. 545Google Scholar. The resolution since March 11, 1936, is an annex to the Rules of Court.

34 Report of the Committee of Ten Jurists … 3 (C.494.M.335.1937.VII).

35 Documents C.27.M.17.1937, and Members of the League and Composition of the Council, September 21, 1938.

36 Paraguay's “obligations under the Covenant” were not fulfilled at the expiration of its notice of withdrawal on February 23, 1937. See Records of the 19th Session of the Assembly, Meetings of the Committees, Minutes of the 4th Committee, 153 (Official Journal, Spec. Sup. No. 173), and Assembly resolution of October 5, 1937, in A.76.1937.X; idem, Plenary Meetings, 120, 147 (Official Journal, Spec. Sup. No. 169).

37 Occupied until October 14, 1933, and assigned until October 30, 1935.

38 The same condition would apply if Japan should again become a member.

39 Articles, 48, 98, 289, 304, 336, 376, 386.

40 Articles 48 (commission), 49 (trustee), Annex 34 (plebiscite).

41 Articles 102, 103.

42 Articles 164 (level of material), 213 (investigation).

43 Articles 338 (international waterways), 379 (international transit, waterways, ports, or railways).

44 Articles 377, 378 (waterways and railways).

45 Articles 34, 80, 280, pars. 1 and 2, 312.

46 Articles 34 (Eupen-Malmédy); 48, 49, and Saar annex; 102 and 103 (Danzig); 164 and 213 (armament); 304 (Mixed Arbitral Tribunal); 312 (social insurance); 336 (waterway jurisdiction); 338 and 379 (communicative conventions); 376 (port, railway, waterway disputes).

47 Articles 80 (Austria, but corresponding article (88) of treaty with Austria was applied); 98 (German-Polish “corridor”); 280 (commercial relations and treatment of nationals); 289 (revival of treaties); 342 (Niemen river administration).

48 Articles 377 (revision of port, railway, waterway clauses); 386 (Kiel Canal).

49 The Saar régime (Articles 48, 49, Annexes 34 and 40); armament investigation (Article 213); treatment of nationals (Articles 276, 280).

50 The Conference of Ambassadors did enlist the Council's aid in several difficult questions which the parties to the treaties were themselves unable to solve. Myers, , Handbook of the League of Nations, 303 (Albania), 305Google Scholar (Upper Silesia), 312 (Jaworzina), 313 (Corfu), 315 (Memel).

51 A.74.1938.VII.

52 The compiled document is C.444.M.287.1938.VII.2, as cited. The declarations and observations were made in the 3d to 8th plenary meetings (September 13–21, 1938) and in the 4th to 9th meetings of the Sixth Committee (September 22–28, 1938).

53 The form of this language was debated in the 9th meeting of the Sixth Committee.

54 In the dispute between Ethiopia and Italy, “the Members of the Council, other than the parties” (not the Council other than the parties) agreed “with the conclusions” of the crucial report (Official Journal, 1935, p. 1225Google Scholar). The Assembly took “cognizance of the opinions” of the Council and set up the Coördination Committee for effecting “measures which they may severally contemplate” (Records of the 16th Ordinary Session of the Assembly, Plenary Meetings, 113 (Official Journal, Spec. Sup. No. 138).

55 See report by the Secretary-General, May 17, 1927, Official Journal, 1927, pp. 834–835Google Scholar. It does not follow that states will actually pursue this indubitable sequence of reasoning. In the Ethiopian-Italian dispute, the United Kingdom government assumed that hostile military contact would degenerate into a mutual state of war. But see the memorandum of January 22, 1936, “Dispute between Ethiopia and Italy … Proposals and Resolutions” (Official Journal, Spec. Sup. No. 150, pp. 332–337).

56 Five proposals put into effect during the Ethiopian-Italian dispute gave substance to some phases of this comprehensive undertaking. “Dispute between Ethiopia and Italy, Proposals and Resolutions (Official Journal, Spec. Sup. No. 150, pp. 1–12).

57 From the appearance of the phrase “in such case” in the text of Article 16, par. 2, it is possible to argue that the severance of economic relations might also be regarded as a prior condition. An amendment pending since 1925 to strike out that clause would strengthen an interpretation that the Council's duty was simultaneous with the incidence of the economic undertaking. It has, however, been a general assumption that economic sanctions are “obligatory” and military sanctions “optional,” since the Council only makes a recommendation.

58 Reports and Resolutions on the Subject of Article 16 of the Convenant, 42 (A. 14.1927.V.14). This document summarizes action and reprints papers up to June, 1927.

59 Idem, p. 60.

60 93 Treaty Series, 343; Reg. No. 2123.

61 Official Journal, 1928, pp. 670–686Google Scholar

62 Official Journal, 1933, pp. 754, 757, 763, 765Google Scholar.

63 Official Journal, 1934, pp. 837, 827, 1594–1609, 1610Google Scholar.

64 Conference for the Reduction and Limitation of Armaments. Preliminary Report on the Work of the Conference, 153–159 (Conf.D.171(l).1936.IX.3).

65 Dispute between Ethiopia and Italy. Proposals and Resolutions of the Coordination Committee …, 1 (Official Journal, Spec. Sup. No. 150).

66 These papers have not been published, but were prepared in response to C.L. 216.1936.II.A.

67 Documents Relating to the Question of the Application of the Principles of the Covenant (Official Journal, Spec. Sup. No. 154, pp. 75–89).

68 Report of the Special Committee Set up to Study the Application of the Principles of the Covenant, pp. 41–43, 113–23 (A.7.1938.VII.1).

69 By formal application, Switzerland was absolved from active obligations under Article 16 by action of the Council, May 14, 1938 (Official Journal, 1938, p. 368)Google Scholar.

70 Belgium, Denmark, Finland, Luxemburg, Netherlands, Norway, and Sweden.

71 Records of the 19th Session of the Assembly, Plenary Meetings, 38.

72 The Norwegian delegate's statement, idem, 50.

73 Questions relating to Article 16 of the Covenant, 15(C.444.M.287.1938.VII.2); Sixth Committee, 4th meeting.

74 Minutes of the 103d Session of the Council, Minute 4098. For the Japanese retort, see the Foreign Office statement of October 3. The United States made detailed demands on Japan on October 6.

75 Report of the Special Committee Set up to Study the Applications of the Principles of the Covenant, p. 43 (A.7.1938.VII.1).

76 Ibid., p. 99 (A.7.1938.VII.1).

77 The draft resolution read:

“The Assembly,

“Having regard to the opinions expressed by certain delegations on the unanimity rule laid down in Article 5, paragraph 1, of the Covenant, as applied to paragraph 1 of Article 11;

“Without prejudging any question of principle as to the effect of that rule and without prejudice to the Council's freedom of judgment:

“Expresses the view that, in cases in which a dispute is referred to the Council under paragraph 1 of Article 11, the Council may, with the consent of all its Members other than the parties to the dispute:

“(1) Express an opinion or adopt a report concerning the facts of the dispute;

“(2) Make recommendations as to the measures to be taken by the Members of the League, other than the parties to the dispute, to safeguard peace.”

78 At the 6th and 7th meetings, September 24, 26, 1938.

79 Documents Relating to the Question of the Application of the Principles of the Covenant (Official Journal, Spec. Sup. No. 154, pp. 55–61).

80 Report of the Special Committee Set up to Study the A pplication of the Principles of the Covenant, pp. 41, 61 (A.7.1938.VII.1).

81 Idem, pp. 8–86. The debate constantly reverted to the problem of Article 16.

82 A.76.1938.VII.

83 The resolution was communicated to the United States, Saudi Arabia, Brazil, Costa Rica, Iceland, Germany, Guatemala, Honduras, Japan, Liechtenstein, and Nicaragua (Minutes of the 103d Session of the Council, Minute 4097).

84 On the extent and character of collaboration, see the Cranborne report, and especially the memorandum annexed to it (Report of the Special Committee Set up to Study the Application of the Principles of the Covenant, pp. 61–75, A.7.1938.VII. 1).

85 In its reply of February 2, 1939, to the League circular note of September 30. 1938, the United States Government said (Department of State, Press Releases, XX, 153Google Scholar; League document C.77.M.37.1939.VII):

“The growing complexity of the modern world has for many years made increasingly clear the need for intelligent coordination of various activities, and the pooling of information and experience in many fields. The International Postal Union, the International Institute of Agriculture, the International Office of Public Health, and other international organizations, were created to meet this need in specific fields before the creation of the League and continue to carry out their tasks. The League, however, has been responsible for the development of mutual exchange and discussion of ideas and methods to a greater extent and in more fields of humanitarian and scientific endeavor than any other organization in history. The United States Government is keenly aware of the value of this type of general interchange and desires to see it extended.

“Encouraging as has been the progress already made, much remains to be done for the promotion of human welfare in health, social, economic and financial fields. This Government regards each sound step forward in these fields as a step toward the establishment of that national and international order which it believes is essential to real peace.

“The United States Government looks forward to the development and expansion of the League's machinery for dealing with the problems in those fields and to the participation by all nations in active efforts to solve them.”

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