League of Nations Covenants
The Covenant of the League, first signed by the 32 signatories of the Treaty of Versailles, and accepted and acted upon by the 48 States who in 1921 were members of the League.
Article 1 of the Covenant consisted of the rules of membership. It stipulates that the original members of the League shall be the signatories to the Covenant and such other States named in the annex thereto as shall accede to it without reservation; and that any fully self-governing State, dominion or colony may become a member if its admission is agreed to by two-thirds of the members, and provided that it shall give effective guarantees of its sincere intention to observe its international obligations and shall accept the regulations of the League in regard to its military forces. Article 1 also makes provision for the withdrawal after two years’ notice of any member who wishes to abandon its membership. These rules constitute a statement of the principles concerning membership that are essential if the members of the League are to have confidence that their mutual undertakings will be carried out.
With regard to agreements to meet in conference, Articles 2, 3 and 4 of the Covenant stipulate for the creation of an assembly consisting of three representatives of each member of the League, and for a smaller council consisting of representatives of four Great Powers and of four smaller ones. The Covenant does not lay down the intervals at which these bodies shall meet: it merely stipulates that the Assembly shall meet at stated intervals and from time to time as occasion may require; and that the Council shall meet in the same way, and at least once a year. It leaves these questions to be dealt with in whatever rules of procedure the Council and the Assembly may respectively consider it wise to adopt.
The question of representation of the members at the Assembly was one which naturally involved serious difficulties. It was solved by according to every member an equal right to send three representatives. There was considerable discussion when the Covenant was being drafted as to whether three was a sufficiently large number. In practice this point has been dealt with in a way indicated later on.
The question of representation on the Council was still more difficult. A definite preponderance of influence in international affairs had been recognized prior to the war on the part of the Great Powers of the world. It was inevitable, and surely right, that the Great Powers who are members of the League should be accorded permanent representation on its principal executive organ, and this has been done. The representation of the smaller Powers?—?an exceedingly difficult matter?—?was dealt with in a way which in practice seems likely to prove quite satisfactory, namely by providing that the four non-permanent members of the Council shall be selected by the Assembly from time to time in its discretion.
Articles 6 and 7 provide for the necessary secretariat, and for the nomination of a secretary-general who shall make all the appointments to the secretariat with the approval of the Council, and who shall act as secretary at all the meetings of the Assembly and of the Council. These Articles also provide that every position in the secretariat shall be open to women.
So much for the institutional organization of the League as it is established by the Covenant.
With regard to the agreements not to resort to war, which are included above among the essentials, the Covenant embodies practically everything that any responsible authority had advocated as practicable. By Article 12 the members agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree that they will in no case resort to arms until three months after an award has been made by the arbitrators or a report has been made by the Council. Article 12 thus not only embodies an agreement not to go to war without previous recourse to peaceful methods of settlement for disputes, but also lays down two alternative procedures by which, through the agency of the League, settlement can be effected. The first is ambiguously referred to as “arbitration,” but it is evident from Articles 13 and 14 that the use of the word “arbitration” is a loose one, and that what is really intended is recourse to legal decision. For Article 13 proceeds to give a definition of disputes which the members recognize to be “generally suitable for submission to arbitration”; and this definition is textually that agreed to by various high authorities in international law as the best that can be devised for disputes which may be called “juridical,” i.e. suitable for decision by means of legal verdict. Further, while Article 13 leaves the parties free to choose any court or board of arbitration to which they may agree for the judicial settlement of their disputes, Article 14 nevertheless charges the Council with formulating, and submitting to the members of the League for adoption, plans for the establishment of a permanent court of international justice which shall be competent to hear any dispute of an international character which the parties thereto submit to it. While, therefore, these two Articles leave great elasticity, it is evident that the intention was to lay down a normal legal procedure, and to secure the establishment of a permanent international court to which the parties should, in the normal course, take disputes of a legal nature. There is, moreover, at the end of Article 14 a clause which greatly increases the value of the Permanent Court. This clause provides that the Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. It is evident that in the course of a dispute one party may maintain that a whole or a part of the question at issue is juridical in nature, and should be determined on legal grounds. If one of the parties put forward such a contention and were able to support it by sound arguments, there is no doubt that the Council would act on the final clause of Article 14 and would submit the question to the Court for an advisory opinion; and it is to be particularly noted that they could do this as a matter of procedure, and, therefore, by a majority vote. If, then, a litigant should bring to the League a dispute in which it believes the law to be on its side, it will be able to demand, even if the other party does not agree, that the Council shall secure on the juridical questions at issue an advisory opinion from the Court: and the Court in rendering this opinion will give the Council the elements for a decision which would have all the force of a legal verdict.
Thus, while avoiding the pitfall of “obligatory arbitration,” which very few of the States of the world at that time were ready to accept, the Covenant included provisions which go towards securing that all international disputes of a genuinely legal nature shall be determined by legal methods.
With regard to the other alternative method provided for the settlement of disputes, which members agree to by Article 12, that is to say, inquiry by the Council, Article 15 lays down in considerable detail the procedure which is to be adopted. It provides that any party to a dispute can oblige the League to take cognizance of it by giving notice to the Secretary-General, who is then obliged to make all the necessary arrangements for a full investigation and consideration thereof. The parties undertake to communicate to the Secretary-General as promptly as possible statements of their case, with all the relevant facts and papers. The Council is then given discretion to endeavour to effect a settlement of the dispute, and it is provided that if its efforts are successful, a statement shall be made public giving such an account of the dispute and of the settlement arrived at as the Council may deem proper. If the Council fails to settle the dispute, it is to make a report setting forth the merits of the dispute and the recommendations which the Council thinks would be suitable for a settlement, and this report is to be published. A report may be made either unanimously or by a majority vote, and any individual member of the League which is represented on the Council has a right to make its own public statement concerning the dispute and the conclusions which it draws from them. There is a further provision in Article 15 to the effect that if such a report is agreed to by the Council unanimously, with the exception of the representatives of one or more of the parties to the dispute, the members of the League?—?including the parties?—?agree that they will not go to war with any party to the dispute who complies with the provisions of the report. This is a most important additional limitation of the right of members to resort to arms. Article 15 also provides for an appeal to the Assembly, conditional on its being made within 14 days after the submission of the dispute to the Council. If a dispute is so referred to the Assembly, the Assembly is to deal with the matter in the same way as the Council, with this exception, that if a report is agreed to in the Assembly by all the members of the League represented on the Council, and by a majority of the other members of the League, exclusive in each case of the representatives of the parties to the dispute, the report shall have the same force as a unanimous report agreed to by the Council. In other words, the members of the League must not go to war with any of the parties to the dispute which accept it. These Articles, then, provide two, or rather three, methods by which disputes can be settled by peaceful means through the agency of the League. The first of these methods provides for legal verdicts, when such verdicts are possible and useful; the second provides for arbitration by some other tribunal agreed to by the parties to a dispute; and the third, for settlement by the political agency of the Council or the Assembly, in accordance with procedure based on the principles of full publicity and strict impartiality. It may perhaps be observed that publicity will of itself ensure impartiality; for it is not conceivable that a council, acting as the representative of the whole body of the League and in circumstances of utmost publicity, should conduct its inquiries into a dispute in any way not consistent with the strictest fairness to all the parties concerned.
Articles 12 to 15 also make provision for the next essential of a league?—?united pressure by all the members against any of their number which disregards its undertakings. In providing for a public report by the Council on the merits of a dispute and for the publication of its recommendations as to a settlement, the Covenant lays down a method which, in practice, must exert the strongest moral pressure on any State which in defiance of Article 12 is disposed to go to war. Anyone who knows how great a factor in the conduct of international affairs the public opinion of the Society of States was, even prior to 1914, will realize that such a verdict of the organized opinion of the world is bound to be a weapon of great power.
But the Covenant goes beyond this, and provides in Article 16 that, if any member of the League in contravention of its agreements resorts to arms, such a member is ipso facto “deemed to have committed an act of war against all other members of the League,” and the other members are obliged to prevent all financial, commercial or personal intercourse between the nationals of the Covenant-breaking State and the nationals of any other State. It was difficult in the disturbed condition of the world during 1919-21 to realize just what would be the effect of such a complete economic and financial boycott in times of normal peace. But it is not too much to say that no civilized State would, in 1914, have ventured to declare war had it been threatened by such a universal boycott as Article 16 stipulates.
It may be held that in providing for such a universal boycott, the Covenant goes beyond the essentials of a league. It may even be held that it goes beyond what is practicable and wise. Certainly it is a matter which will give rise to the gravest problems, and on which, indeed, the League had in 1921 already found it necessary to appoint a commission to determine the precise obligations of the members and to recommend the machinery required for their fulfilment. But it must be remembered that Article 16 only comes into force in the case of a State insisting on going to war without waiting for any attempt at peaceful settlement such as is provided for in Articles 12, 13 and 15, or where the agreed tribunal or a unanimous council have given a decision which has been accepted by the other party. In other cases ultimate resort to war is envisaged as possible.
And the Covenant goes even further than this in making provision for pressure on recalcitrant members of the League.
Article 16 further lays down that in addition to the blockade, which is an automatic obligation of all the members of the League, the Council shall consider and shall recommend to the several Governments concerned, what effective military, naval or air forces members of the League shall severally contribute to the armed forces to be used to protect the Covenant. In other words, while leaving again the greatest possible elasticity, and while laying no positive obligation on any member to contribute military force, the Covenant yet definitely foreshadows united military action against a Covenant-breaking State.
To turn to another matter, the Covenant provides by Article 20 for the abrogation of Treaties , obligations and understandings which are inconsistent with its own terms, and thus meets, in yet another particular, the essentials of a league.
How far, and in what respects, does the Covenant go beyond what we have recognized to be these essentials?
To begin with perhaps the most important point of all, there are the much-discussed provisions of Article 10. This Article has been very generally misunderstood. It has been widely proclaimed as containing the central and essential obligation of the whole Covenant?—?an obligation, moreover, which most States are unlikely to accept in practice and which, indeed, they would be right in refusing. This is quite untrue. As a matter of fact the great objection to it is that it has little actual effect while appearing to mean a great deal. It does not create, as has been thought, an obligation on all the members of the League to maintain by force of arms the existing territorial and political arrangement of the world. It does indeed guarantee the members against external aggression which would impair their territorial integrity or political independence. But this guarantee is only to be enforced, if at all, as the Council acting unanimously shall agree. In practice the protection against sudden and unjust attacks provided by Articles 12-16 will be much more useful. Article 10, when closely examined, will be found to be little more than a rather clumsy assertion that territorial or political changes ought not to be made by aggressive warfare. Such changes, if required, should be made under Article 19, which enables the Assembly to reconsider treaties which have become obsolete or dangerous to peace.
It may perhaps with more show of reason be said that, by the provisions of Article 8 on the subject of armaments, the Covenant introduces something which is extraneous to an agreement to preserve the peace. But the history of the 20th century has already demonstrated that if you prepare for war you will have war; that increase of armaments in one country provokes increase of armaments in other countries, and that if rivalry in preparation for war continues, within a certain time war will break out. Unless the rivalry in armaments can be prevented, any league of nations, however it be constituted, will fail. Doubtless complete disarmament is not practicable or probable at an early date. But an agreement not to engage in unlimited competition on the development of armaments is absolutely necessary to the peace of the world. The Covenant deals with the matter in a way which is preeminently practical and sane. It recognizes that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and directs the Council to formulate plans for such reduction for the consideration of the several members of the League. In other words, the members agree to coüperate in working out a general international plan embodying scales in accordance which with their armaments shall be limited or reduced. Further, the members agree that they will, through the League, endeavour to take measures for abolishing the evil effects of the private manufacture of armaments and material of war, and they agree to exchange full information as to their armaments, their preparations for war, and the condition of their industries which may be adapted to warlike purposes. Lastly, by Article 23 they agree that, subject to conventions to be arranged, the international traffic in arms, admittedly one of the minor contributing causes of war, shall be placed under the League’s supervision.
These are only general principles. In themselves they would be of small value. But the Covenant, by Article 9, establishes a Permanent Commission to advise the Council in working them out in detail and securing their effective application. It may fairly be hoped that this machinery will in time enable the members of the League to give effect to the purpose of Article 8; and if so, great strides will undoubtedly be made towards the disarmament which everyone desires. In this respect, as in others, the authors of the Covenant were careful not to travel too fast; they laid foundations on which those who were to wield authority in the League could later build.
By providing in Article 18 for the publication of all treaties, the Covenant again goes beyond essentials. Yet no reasonable man can doubt that, under the diplomatic system which prevailed before 1914, secret treaties of alliance, directly by mere existence and indirectly through mistrust which they created, were one of the serious causes of international conflict.
Article 22 of the Covenant introduces a new principle into international affairs which is certainly extraneous to the central purpose of a league. The mandates system which it creates is a great experiment in the government by advanced peoples of backward territories and races. The main principles are simple. The Article is based on the proposition that backward peoples and territories are not for the future to be exploited for the exclusive benefit of those who govern them; that, on the contrary, their interests and well-being constitute a sacred trust of civilization, and that the way in which they are ruled is a matter of interest to the world at large. The Article therefore lays down that in the government of such territories the interests and progress of the inhabitants must be the guiding purpose of the administration. The methods by which their interests are to be protected and their development secured vary, of course, in every case with the nature of the territory and the character of the people concerned. But in every case the fundamental principles are the same; and to secure the observance of them the Covenant imposes on the mandatories a duty to make annual reports for submission to a permanent mandates commission; which is, in turn, to report to the Council. Here, again, the Covenant relies on publicity and public opinion as a guarantee that Article 22 will be faithfully carried into effect.
With regard to international coüperation, the Covenant in Articles 23 and 24 goes a great deal further than might be considered essential. It provides in general terms for the establishment of a labour organization (which in fact has been elaborated separately by another agreement); for the equitable treatment of commerce; for the development of freedom of transit; for League supervision of the traffic in arms; for League action in matters of public health; and for the general supervision by the League of all official, and also, if necessary or useful, of unofficial, international offices established for international purposes of general interest. There is no need to deal in detail with the provisions of these Articles. Their general effect is to make the League what it is clearly desirable that it should be?—?a central organism through which international activities of every sort can be coürdinated and when useful assisted by the Council and the Secretariat. There can be no doubt that the result of this must be to prevent waste of effort and promote efficiency in the conduct of international business of every kind.
In the last place the Covenant, by Article 26, provides a method by which it can itself be amended; and this, it may be held, is not an essential of a league. It is true that the Covenant might have been regarded as an ordinary international treaty, valid, as most treaties are now made, for a certain fixed period, at the end of which it might have been renewed or changed by the ordinary methods. But it was precisely because the authors of the Covenant did not regard it as an ordinary international treaty that they provided a special means for amendment; and there can be no doubt-that morally Article 26 is of great significance, and that practically it may prove to be of great constitutional value. It still leaves it difficult to secure amendment of the terms of the Covenant. It can only be done if all the members of the Council and the majority of the members of the Assembly are agreed. But the fact that amendment is definitely envisaged is in itself important, and the proceedings of the Amendments Commission established last year by the first Assembly, which will report for the acceptance of the next Assembly certain amendments of importance, have demonstrated the essential soundness of the conception of Article 26.
Generally, it may be said that when the Covenant goes oeyond the essential features which are necessary to any effective league to preserve peace, it does so with one of two objects in view. Either it is with the purpose of giving real life to the machinery which it establishes: of bringing the international forces actually at work into effective coüperation, in order that members of the League may be brought closer together, and the League itself be strengthened and have the vitality that comes from continuous and varied work; or else it is with the purpose of removing those deep-seated causes which public opinion has recognized as having led to war. It is not by chance that the Covenant contains more or less elaborate provisions concerning armaments, the traffic in arms, annexation by conquest, the avoidance of unfair economic competition, imperial rivalry in the exploitation of backward countries, secret treaties and alliances. It is because these things have led to war in the past that the Covenant seeks to deal with them in a practical and effective way, to the end that war may be rendered less probable in the future.
It has already been said that the authors of the Covenant confined themselves to laying down the essentials of the organization which they considered the League required and the general rather than the detailed obligations to which they thought that members of the League must agree. Elasticity is one of the chief “notes” of the whole machinery of the League. The Council and the Assembly have been free to develop their own methods and systems as they chose, to appoint committees and commissions at their discretion, and to draw up codes of procedure which they could themselves change, and have thus been able to give to the general principles of the Covenant a free development on sound lines.
It is in pursuit of this same elasticity that in several cases the Council is charged to carry into execution plans which the authors of the Covenant felt to be essential, but which they were not themselves, for lack of time and for lack of expert technical advice, able immediately to develop. Much good has been done under these provisions.
It will perhaps be worth while to examine more in detail the working of the Covenant in action, and to examine it under three separate aspects: the first, the institutions of the League considered as political machinery; the second, the working of the Covenant in connexion with disputes; and the third, the activity of the League in the promotion of international coüperation.