[Distributed to the Council

and the Members of the League.]C. 212 . M . 7 2 . 1 9 2 6 . v .

Geneva, March 22nd, 1926.

LEAGUE OF NATIONS

r e p l i e s o f t h e s p e c i a l c o m m i t t e e o f j u r i s t s a p p o i n t e d UNDER THE COUNCIL RESOLUTION OF SEPTEMBER 28t h , 1923.

OBSERVATIONS BY THE GOVERNMENTS OF THE STATES

MEMBERS OF THE LEAGUE.

Note by the Secretary-General :

In execution of th e report of H is E xcellency Viscount Ishii, adopted by the Council on March 17th, 1926, th e te x t of which is p r in ted below, the Secretary-General has the honour to com m unicate to th e Members of the League observations by various Members of the League upon the rep o rt m ade to the Council in 1924 by the Special Committee of Juris ts appointed under the Council’s resolution of S ep tem ber 28th, 1923.

These observations were presen ted in response to the inv ita tion addressed to the Members of the League b y the Council’s resolution of Septem ber 26th, 1925, and the Assembly’s reso­lution of Sep tem ber 21st, 1925, of which the te x t will be found in the report of Viscount Ishii.

The observations of the G overnm ent of Cuba were no t received in tim e to be placed before the Council a t its m eeting of M arch 17th, 1926, b u t are reproduced below.

F o r convenience of reference, th e report of the Special Committee of Ju ris ts is p rin ted in an annex to the presen t docum ent.

I. R E P O R T BY H IS E X C E L L E N C Y VISCOUNT IS H II .

In consequence of a proposal of the N etherlands delegation which h ad been referred by the F if th to th e S ix th Assembly, th e Assembly, on Septem ber 21st, 1925, adopted the follow­ing resolution :

“ The Assem bly requests the Council of the League to invite the Governments of S ta tes Members of the League which find, in the report of the Special Committee of Ju r is ts appo in ted u n d er the resolution of the Council of Septem ber 28th, 1923, doubtful po in ts which require elucidation, or which m ay have o ther com m ents to m ake on this repo rt, to fo rw ard th e ir observations to the Secretaria t of the League of Nations before F eb ru a ry 1st, 1926, w ith a view to a possible exam ination of the m a tte r by a Committee to be appoin ted by the Council.”

B y a resolution of Septem ber 26th, 1925, the Council approved the procedure proposed by the A ssem bly and adop ted th e following resolution :

“ The Council, a t th e instance of the Sixth Assembly, instructs the Secretary-General to inv ite the G overnm ents of S ta tes Members of the League which find, in the report of the Special Com mittee of Ju r is ts appoin ted under the resolution of the Council of Sep­tem b er 28th, 1923, doub tfu l points which require elucidation, or which m ay have other com m ents to m ake on this report, to forw ard their observations to the Secretariat of the League of N ations before F eb ru a ry 1st, 1926, w ith a view to a possible exam ination of th e m a t te r by a com m ittee to be appoin ted by the Council.”

By a circu lar le t te r (No. 113. 1925. V), the Secretary-General com m unicated the above resolution of the Council to all the Members of the League, adding th a t he would be glad, in accordance w ith the Council's decision, to receive any observations which the Governm ents m ight desire to form ulate . My colleagues on the Council have no doubt acquain ted themselves w ith the replies from the Governm ents which have been circulated in docum ents C. 57- r 92^- Y ; C. 57 (a). 1926. V ; an d C. 57 (6). 1926. V.

S. d. N. 600 (F.) 4- 600 (A.) 3/26. Imp. J. de G. Publications of the League of Nations

V. LEGAL

Replies have been received from tw enty-one G overnm ents in all. A ustra lia , South Africa, the B ritish Em pire, F rance, Ita ly , Ja p a n , Brazil and E sthon ia have in d ica ted t h a t they do n o t desire to present any observations. The G overnm ent of Cuba s ta te s th a t the m atter is un d er consideration by th e com peten t au thorities , whose views will be fo rw arded as soon as received. The rem aining replies, n am ely those from D enm ark , F in land , Greece, the Netherlands, Poland, Salvador, Sweden, Sw itzerland, H ungary , N orw ay, S iam an d Uruguay, conta in reservations or criticism s an d observations re la ting to some or all of the replies of the Committee of Ju ris ts .

These criticism s an d observations, which we owe to the in itia tive of the N etherlands G overnm ent, constitu te , in m y opinion, an im p o r ta n t con tribu tion to w ard s th e elucidation of the problem s in question.

The Council has now to decide, in accordance w ith the te rm s of th e A ssem bly’s resolution of Septem ber 21st, 1925, w hether it is desirable to refer these p rob lem s to a new Committee for exam ina tion in th e ligh t of the com m unications which have been received from the above- m entioned M embers of the League. I am , on the whole, of th e opinion th a t , while th e ini­t ia tive of the N e the rlands G overnm ent has p roduced a m ost va lu ab le resu lt in evoking s ta te ­m ents of th e ir opinion from so m an y Governm ents, there w ould no t be a n y p rac tica l ad v an ­tage in a t tem p tin g to ca rry the m a tte r fu r th e r b y appo in ting a new C om m ittee which would reconsider the answers given by the Special C om m ittee of Ju r is ts to th e questions addressed to it b y th e Council an d fo rm ula te new answers to these questions. The orig inal answers were approved b y the Council as a whole on M arch 13th, 1924. The resolution adop ted on th a t occasion was as follows :

“ The Council, hav ing noted the replies of th e Special C om m ittee of Ju r is ts to the questions raised in the resolution of the Council d a ted Septem ber 28th, 1923, approves those replies as a whole.

“ I t fu r th e r decides th a t the te x t of the p resen t resolution, to g e th er w ith th e tex t of the replies, shall be com m unica ted to all the S ta tes Members of the League of N ations.”

In adop ting th is resolution, th e Council d id n o t of course in ten d to accep t the replies of th e ju rists for itself, or to impose th em upon the Members of the League, as a final and exhaustive s ta tem en t of the law on the points dealt with. On the con tra ry , c e r ta in Members of the Council, while voting for the resolution, felt free to m ake reservations as to th e application of replies in ce rta in cases. The sam e o p p o rtu n ity to express the ir opinions h as now been enjoyed by all th e Members of the League, a n d the essential object a im ed a t by th e proposal of the N etherlands G overnm ent appears to me in th is w ay to have been a tta in ed . We must rem em ber th a t th e questions answered b y the ju ris ts are general questions of in te rp re ta tio n of the Covenant and of in te rn a tio n a l law, upon which it was felt desirable th a t the Council should tak e the advice of a s trong legal com m ittee b u t which, as the com m unica tion from the Swiss G overnm ent ju s tly points out, canno t be au th o rita tiv e ly an d finally se tt led b y a report from an y com m ittee, how ever com peten t. There can be no dispute as to th e com petence of th e original Com mittee, and the fac t th a t it felt i t desirable to give general answers to the questions p u t, w ithou t a t tem p tin g to lay dow n deta iled rules governing th e infin ite v arie ty of cases which m ay arise in practice, is in itself a reason for th ink ing th a t these questions are h a rd ly susceptible of a n y o th er t re a tm en t. On the o th er hand , when a case p resen ts itself in which it m ay be ap p ro p ria te for th e Council to look for guidance to th e replies of th e Ju ris ts , it is obvious th a t the Council will a t the sam e tim e take in to consideration the observations on these replies which it will have the ad v a n tag e of hav ing received from so m an y Members of the League.

I would therefore propose th a t the Council should ab s ta in from ap p o in ting a new Com­m ittee , b u t should note the com m unications received from the M embers of th e League and cause th em to be circu lated to all the Members of th e League.

If m y colleagues are in agreem ent w ith th is po in t of view, I w ould propose t h a t the Council should sim ply ad o p t m y present report.

I I . O B S E R V A T IO N S O F T H E G O V E R N M E N T S O F T H E ST A T E S

M EM BERS O F T H E L E A G U E O F N A T IO N S.

Reply from South Africa.

Pretoria , N ovem ber 26th, 1925.

W ith reference to yo u r le t te r C.L. 113. 1925, of October 10th, 1925, in w hich the Union G overnm ent is requested to forward, before F eb ru a ry 1st, 1926, observations on the report b y th e Special C om m ittee of Ju r is ts on th e in te rp re ta tio n of th e C ovenant of th e League, I have th e h onour to inform you th a t the answers of the Ju r is ts seem to h ave been specially considered b y th e ex p e rt advisers of Members of the Council of th e League an d to have given rise to no doub ts in th e ir minds. The legal advisers of the U nion G overnm ent can see no points which require elucidation, and the U nion G overnm ent does n o t therefore consider it necessary to offer any observations on th e report in question.

(Signed) J . B. M. H e r t z o g ,

Prim e M inister, Union of South Africa.

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Reply from Australia.

M elbourne, J a n u a ry 7th, 1926.

I h ave th e honour, b y d irection , to in fo rm you th a t th e Com m onw ealth G overnm ent has no observations to m ake in regard to the rep o r t of the Special C om m ittee of Ju ris ts .

(Signed) J . D e a n e ,

_____________ Secretary.

Reply from Brazil.[Translation.]

Geneva, F eb ru a ry 26th, 1926.

I have th e honour to in form you th a t th e B razilian G overnm ent has instructed m e to inform you th a t i t has no observations to m ake on the report of the Special Committee of Ju ris ts re ferred to in th e Council reso lu tion of S ep tem ber 28th, 1923.

(Signed) A franio DE M e l l o - F r a n c o .

Reply from the British Empire.

Ja n u a ry 25th, 1926.

In yo u r le t te r No. C.L. 113. 1925, V, of O ctober 10th last, you enquired w hether His M ajesty’s G overnm ent desired to receive a n y fu r th e r in form ation or to m ake any com m ent on the rep o r t of th e Sub-C om m ittee of J u r is ts ap p o in ted u n d er th e resolution of the Council of S ep tem ber 28th, 1923, to investigate ce r ta in questions re la ting to the in te rp re ta tio n of the C ovenant and o th er po in ts of in te rn a tio n a l law.

I am d irec ted b y Secre tary Sir A usten C ham berlain to in form you th a t His M ajesty’s G overnm ent are satisfied w ith th e opinions expressed in the rep o rt and do no t consider th a t there is a n y need to ap p o in t ano ther com m ittee to m ake a fu r th e r exam ina tion of the question.

(Signed) R. H. Ca m p b e l l .

Reply from Cuba.[Translation from the Span ish .]

I.H avana , N ovem ber n t h , 1925.

I h ave th e h o n o u r to acknow ledge receipt of yo u r le t te r C.L. 113. 1925. V, da ted October 10th last, in w hich y ou were good enough to fo rw ard to th is D ep artm en t th e inv ita tion addressed by the Council to th e S ta tes M embers of th e League to forw ard before F eb ru a ry is t, 1926, th e ir observations on th e rep o rt of th e Special Com m ittee of Ju r is ts appo in ted b y the Council on S ep tem ber 28th, 1923, for the consideration of ce rta in questions concerning the in te rp re ta tio n of th e C ovenant and o th er poin ts of in te rna tiona l law.

I beg to in fo rm you th a t th is re p o rt on th e five questions su b m itted to the Committee of Ju r is ts is now u n d e r consideration b y the com peten t authorities, whose views we shall have m uch pleasure in forw ard ing to th e Secretaria t as soon as we receive them.

(Signed) Miguel Angel Ca m p e ,

Under-Secretary of State.

[Translation from the Spanish.]

H avana, J a n u a ry 4th, 1926.

The replies to th e first four questions call for no special observations ; they are in acco r­dance w ith th e general sp irit of the Covenant and w ith the p ractica l application w hich is custom arily given to it.

The rep ly to th e fifth question, on th e o th er hand , is som ewhat in con trad ic tion w ith the system generally accep ted in America an d expressed in Article 2 of the Convention signed at Mexico on J a n u a r y 29th, 1902, b y the delegations of the Republics of Argentine, Bolivia, Colombia, Costa R ica, Chile, the D om inican Republic, Ecuador, Salvador, G uatem ala, H o n ­duras, Mexico, N icaragua , P arag u ay , Peru and U ruguay.

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T h a t article, which was subsequently ra tif ied b y the Pan-A m erican Congress, runs as follows :

"T h e S tates neither assum e nor recognise in favour of foreigners an y obligations o r responsibilities o ther th a n those subsisting in favour of the ir own na tionals b y their constitu tion or th e ir laws. Consequently, the S ta tes are no t responsible for damage suffered by foreigners th ro u g h ac ts com m itted by parties or ind iv iduals an d in general for dam age caused b y acc iden ta l events of an y kind, such as ac ts of civil or n a tional war, unless the constitu ted au th o r i ty has been negligent in the fulfilm ent of its du ties .”

I have th e honour to com m unica te the above for the in form ation of the Council of the League of Nations.

(Signed) Carlos Manuelo d e Ce s p e d e s .

Reply from Denmark.[Translation.]

Berne, J a n u a ry 29th, 1926.

W ith reference to your le t te r C.L. 113, 1925. V, which you were good enough to forward to th e D anish G overnm ent on O ctober 10th, 1925, concerning the replies of the Special Com­m ittee of Ju r is ts appo in ted under th e Council resolution of Septem ber 28th, 1923, I am in s tru c ted b y m y G overnm ent to inform you th a t th e D anish G overnm ent wishes to reserve its opinion regard ing P o in t IV of the report of the above-m entioned Com m ittee and the wording of th e fo u r th question.

(Signed) O l d e n b u r g ,

Danish M inister at Berne.

Reply from Esthonia.[Translation.]

T allinn , F eb ru a ry 27th, 1926.

I have th e h o n o u r to inform you th a t the E sthon ian G overnm ent has no observations to m ake on th e repo rt of the Special Com m ittee of Ju r is ts referred to in the Council resolution of S ep tem ber 28th, 1923.

(Signed) A. S c h m i d t ,

Director of Political A ffairs for the M inister and by authorisation.

Reply from Finland.[Translation .]

Helsingfors, J a n u a ry 26th, 1926.

In your le t te r (C.L. 113. 1925. V) dated October 10th, 1925, you were good enough to com m unica te to m y predecessor the following resolution adop ted by the Council on Septem ber 26th, 1925 :

‘ ‘The Council, a t the instance of the s ix th Assembly, ins truc ts the Secretary-General to inv ite th e G overnm ents of S ta tes M embers of the League which find in the report of the Special C om m ittee of Ju r is ts appo in ted un d er the resolution of the Council of Sep­tem b er 28th, 1923, d o ub tfu l po in ts requiring elucidation, or which m ay have o th er com­m ents to m ake on th is repo rt, to fo rw ard th e ir observations to the Secretaria t of the League of N ations before F eb ru a ry is t , 1926, w ith a view to a possible exam ination of th e m a tte r b y a C om m ittee to be ap p o in ted b y th e Council.”

The F inn ish G overnm ent desired to tak e th is o p p o rtu n ity of subm itting some observa­tions on th e above-m entioned report, and I h ave th e honour to forw ard th em herewith.

(Signed) Em ile S e t à l

Annex to the Reply from Finland.

The F inn ish G overnm ent takes the o p p o rtu n ity of subm itting herew ith a n u m b er of observations regard ing th e replies of the Special Com m ittee of Ju r is ts appo in ted u nder the Council’s reso lu tion of Sep tem ber 28th, 1923, to consider certa in questions concerning the in te rp re ta tio n of the C ovenant and o ther points of in te rna tiona l law.

The fo u r th question referred to the Com m ittee of Ju r is ts concerns the use of coercive m easures w hich are n o t in ten d ed to constitu te acts of war. In the F innish G overnm ent’s opinion, the rep ly m ade b y the Com m ittee is too vague and should be supp lem ented in order to lay dow n a line of conduc t for G overnm ents to follow. Otherwise th e C om m ittee’s opinion m igh t even be invoked, against the in ten tion of its au thors, to justify ce rta in abuses in in ter ­n a tional policy.

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The C om m ittee of Ju r is ts seems inclined to identify m easures of coercion p u re ly an d simply w ith m easures classed as reprisals ; this, however, appears to be som ew hat a rb itra ry . There m ay be coercive m easures in respect of which the justification of reprisals proper, i.e., that the S ta te hav ing recourse to th em only wishes to ob ta in satisfaction for a w rong i t has suffered, can n o t be invoked. Moreover, coercive m easures are n o t a lw ays charac terised b y direct acts of violence ; pressure can be b ro u g h t t o bear o n an o th e r S ta te b y the m ere th re a t of im m ediate ac tion if it does no t su b m it to the dem ands m ade upon it.

In reality , coercive m easures described as n o t being acts of war, or even as being “ pac ific” , may co nstitu te a grave danger for the security of the sm aller States. If the regim e im posed by the C ovenant is to have an y value, i t is m ost im p o rtan t to adop t an in te rna tiona l policy under which, as i t becomes m ore an d m ore possible to p rohib it and repress aggression, com m on action can be su b s t itu ted for w ar in ensuring respect for the obligations of the League referred to in Article 16 of th e Covenant. Moreover, i t is essential th a t an ind iv idual S ta te shou ld not be allowed to tak e the law in to its own han d s an d presum e upon th a t inequality of s tren g th which m u st alw ays subsist betw een States.

A lthough Articles 12, 13 an d 15 an d also A rticle 17 of the Covenant only refer d irec tly to war, recourse to w ar being p roh ib ited sub ject to ce rta in conditions, and even rendered sub jec t to the penalties prov ided for in Article 16, i t should be borne in m ind th a t the tendency w hich predom inates in th e C ovenant is to p rev en t n o t on ly recourse to w ar b u t aggression as such. However g rea t th e te m p ta t io n m ay be in politics to minimise the consequences of Article 10 of th e Covenant b y an equivocal in te rp re ta tio n , th is artic le rem ains none the less the corner­stone of th e legal system of th e League. I t is t ru e t h a t the constitu tion of the League does n o t expressly qualify aggression as an in te rn a tio n a l crime ; nevertheless, Article 10 regards i t as a m a t te r of concern to th e League an d as an illic it ac t calling for com m on action, th e m a in ­tenance of th e te rr i to r ia l in teg r i ty and political independence of every M ember of th e League being an obligation on each one of i ts Members. As regards the precise m eaning of the te rm "aggression” in Article 10, i t should be em phasised th a t an aggression can tak e place w ithou t a previous dec lara tion of w ar on th e p a r t of th e aggressor. E ven if a S ta te acting in such a way as to im peril th e in teg rity or independence of a M ember of the League expressly announces its in ten tion of avoiding th e effects of an o u tb reak of war, th is does no t render the te rm “ aggression” inapplicable. Indeed, i t is inadm issib le th a t such a S ta te should be p e rm itted to app ly coercive m easures described as non-w arlike ac ts w ithou t exposing itself to in te rv en tio n on the p a r t of the League. B u t we m ay go fu rther. Supposing the v ictim of such ac ts should re ta lia te b y a dec lara tion of w ar; th is , according to the conten tion against w hich we are arguing, w ould h ave a perfectly inadm issible consequence, to which a tten tio n has a lready been d raw n b y a d istinguished w riter, M. Charles De Visscher, in the following passage : " . . . . b y a s trange reversal of th e rôles, i t w ould be th e v ictim of acts of violence, and no t the in i t ia to r responsible for th em , who w ould be regarded as th e cause of an u n ju s t war an d w ould becom e liable to th e collective sanctions p rovided for in Article 16 of the C ovenant” (Ch. D e V i s s c h e r , " In te rp re ta t io n of th e Covenant on the Morrow of the Ita lo - Greek D ispu te ,” Revue de droit international et de législation comparée, 1924, page 384).

I t should be added th a t conventions have been concluded u n d e r the auspices of the League of N ations in w hich the logical consequences of the above premisses have been drawn.

In th is connection th e F innish G overnm ent need only quote as an exam ple the fact th a t th e Convention concerning the non-fortification and neu tra lisa tion of the A aland Islands describes as an aggressor in Article 7 anyone m aking a sudden a t ta c k e ither against the A aland Islands or across th em against th e F inn ish m ain land ; such an a t ta c k bring ing in to p lay the penalties p rovided in th e C onvention w ithou t an y distinc tion being m ade between hostilities accom panied b y a dec lara tion of w ar and an ac t of violence com m itted w ith the in ten tion of avoiding war.

I t should also be poin ted ou t th a t Article 10 of the Covenant reckons w ith the possibility of an aggression im perilling th e political independence of a S ta te w ithou t necessarily tak ing the form of an a t ta c k against th a t S ta te ’s te rr ito ry . If th is possibility is allowed, it m ust also be ad m itted th a t a th re a t o r danger of aggression is sufficient to justify m easures ensuring the fulfilm ent of the obligation co n trac ted u n d e r Article 10. I t follows th a t a b road definition m ust be given to ac ts which u nder Article 10 of the Covenant are co n tra ry to the obligation of respecting and m ain ta in ing the in teg rity and independence of Members. I t is not only the m ost serious assau lts on th e v ita l in terests of a S tate, such as a rm ed in terven tion against its will, occupations of te rr ito ry , bom bardm en ts , the fom enting of a revolu tionary m ovem ent d irected against i ts po litical independence, etc., which are of th is character. O ther less violent measures, such as the dem and w ithou t legal justification for a given privilege accom panied by a th re a t of aggression, are also incom patib le w ith the good order which should reign under the ægis of th e League.

** *

I t is to be reg re tted th a t the fu n d am en ta l clause of the Covenant, Article 10, should have been left incom plete, and th a t definite provisions regarding its scope and application should still be lacking. I t is p ar ticu la rly regrettab le th a t a definition of the aggressor or a t least some m eth o d of determ in ing the aggressor should not have been devised. There can, however, be no d o ub t as to th e im portance of Article 10 for the in terp re ta tion of o ther articles of the Covenant, p a r ticu la rly Articles 12, 13, 15 and 17.

The Special Com m ittee of Ju r is ts expressed the opinion th a t "coercive m easures which are not in tended to constitu te acts of w ar m ay or m ay not be consistent w ith the provisions of Articles 12 to 15 of the C ovenant” , b u t it om itted to indicate the principles on which the Council should act when dealing w ith a d ispu te arising out of measures of th is k ind taken against

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an o th e r State. A solution of th is k ind is too liable to be governed by considerations of expe­diency. I t is to the Covenant itself t h a t we m u s t look to discover in w ha t circumstances m easures of coercion are consistent or n o t w ith th e fu n d am en ta l articles in question.

The F innish G overnm ent is convinced th a t the C om m ittee’s rep ly m ust be supplem ented b y a true appreciation of th e source of in te rp re ta tio n constitu ted b y Article 10. As soon as a measure of coercion imperils the interests placed under the safeguard of the League of Nations in virtue of Article 10 of the Covenant, this measure m ust be regarded as inconsistent with the terms of Articles 12, 13, 15 and 17 of the Covenant. On the con trary , it is condem ned by th e Covenant. The F innish G overnm ent is therefore of th e opinion th a t th e Council, w hen a d ispute has been laid before it, m ust be guided b y th e considerations p u t forw ard above in deciding whether a coercive m easure is com patib le o r no t w ith the constitu tion of the League.

The F innish G overnm ent has a lready poin ted o u t th a t Article 17 of th e Covenant must not be neglected in deciding w hether m easures of coercion are consistent or no t w ith the pro­visions of the C ovenant ; i t canno t b u t regret th a t th is im p o rtan t po in t has n o t been taken into consideration e ither in th e questions p u t to th e Com m ittee of J u r is ts or in the replies m ade by th e la tte r . I t is t ru e th a t the th ird p a rag rap h of Article 17 only refers to the case of a S ta te n o t a M em ber of th e League having recourse to war against a Member. The same applies therefore to Articles 12, 13 an d 15 of the Covenant, which also on ly refer to w ar ; never­theless, i t was w ith good reason th a t the question of “ pacific” coercive m easures was raised. In th e F inn ish G overnm en t’s opinion, it is im p o rtan t to la y stress on th e inev itab le conclusion derived from Articles 10, 11 and 17 th a t one of th e first missions of the League is to safeguard a M em ber aga inst ac ts of violence on the p a r t of a non-M ember, no t only in the case of violence in the form of w ar properly so called, b u t also in the case of any m easure of coercion covered b y th e te rm “ ex te rna l aggression” in the sense of Article 10 of th e Covenant.

Reply from France.[Translation.']

Paris, December 22nd, 1925.

On October 10th last, you were good enough to inv ite me to forw ard any observations th e F rench G overnm ent m igh t desire to m ake w ith regard to th e report of th e Special Committee of Ju r is ts on certa in questions “ concerning th e in te rp re ta tio n of th e Covenant and other po in ts of in te rna tiona l law ” .

I have the honour to inform you th a t I can only confirm the opinion expressed b y the F rench represen ta tive on the Council of the League a t th e la t te r ’s m eeting of M arch 13th, 1924, when he approved in substance the replies g iven by th e ju ris ts to the questions referred to them by the Council.

F o r th e P rim e M inister and M inister for Foreign Affairs :

(Signed) L a r o c h e ,

Councillor of State, M in ister Plenipotentiary, Director of Political and Commercial Affairs.

Reply from Greece.[Translation.]

Athens, J a n u a ry 4th, 1926.

W ith reference to y o u r le t te r of October 10th last, in w hich you were good enough to inv ite Greece, as a M ember of the League of N ations, to fo rw ard before F eb ru a ry is t , 1926, an y observations i t m ig h t wish to m ake concerning th e rep o rt of the Special C om m ittee of Ju r is ts appo in ted u n d e r the Council’s resolution of Septem ber 26th, 1923, I have th e honour to com m unica te to you th e following :

The Greek G overnm ent approves b o th the substance and th e te rm s of the replies of the C om m ittee of Ju r is ts to th e first, second, th ird an d fifth questions referred to it by th e Council.

I t is unable , however, to give its app rova l to th e fourth rep ly concerning m easures of coercion as a t p resent worded.

The absence of a definite criterion for d istinguishing betw een m easures of coercion which are justifiable as being com patib le w ith th e C ovenant and m easures which are inadm issible is liable to give rise to m isunderstand ings which it is im p o rtan t to avoid.

E v en if th is lack of precision were rem edied b y m eans of a suitable definition, it none the less appears t h a t m easures of coercion, as a m eans of d irect action, can w ith difficulty be reconciled w ith the te x t and spirit of the Covenant. For, clearly, d irect ac tion tak ing the form of any k ind of coercion is incom patib le w ith th e institu tion of proceedings before the Council, h av ing the effect in some sort of tak in g th e d ispute ou t of th e hands of the parties to it.

Such appears to be, moreover, th e view ad o p ted b y th e Council in its recent decision in th e Greco-Bulgarian d ispute, w hich the Greek G overnm ent in terp re ts as im ply ing a reversal of its previous jurisprudence on th is point.

(Signed) L. K anakaris R o u f o s ,

Greek M inister for Foreign Affairs.

Reply from Hungary.

[Translation.]Geneva, F eb ru a ry i s t , 1926.

I h ave th e honour to com m unica te to you herew ith the observations of th e Royal H ungarian G overnm ent 011 th e rep o rt of th e Special Com m ittee of Jurists.

On R eplies Nos. 1, 2 an d 3 the R oyal H u n g arian G overnm ent has no observations to offer.

As regards No. 4, how ever, m y G overnm ent is of opinion th a t the reply is open to very serious question.

I t is s ta ted th a t coercive m easures tak e n by one M ember of the League of N ations against another M em ber are n o t abso lu te ly irreconcilable w ith the provisions of Articles 12 to 15 of the Covenant. This opinion am oun ts to g ran tin g th e possib ility of coercive measures as between S ta te s regard less of th e p rocedure laid down in Articles 12 to 15 of the Covenant ; it even a im s a t leg itim ising such m easures in ce rta in cases. In the view of the Royal Govern­ment, th e Special C om m ittee’s opinion n o t m ere ly tends to weaken the stipulations of the Covenant (Articles 12 to 15) — th e reb y endangering i ts suprem e object, nam ely to guaran tee peace an d security am ong th e n a tions — b u t is inconsis ten t w ith the spirit of the Covenant. The C ovenant m akes no m en tion of “ m easures of coercion” as betw een S tates Members of the League. On th e co n tra ry , i t b inds th e S ta tes Members, in view of the th rea t to peace which w ould be offered b y such "m easu res of coercion” , to resort to the procedure laid down in Articles 12 to 15 in th e even t of d ispu tes arising am ong them .

Moreover, th e very princip le of m easures of coercion strikes a t the foundations of the League of N ations, w hich is based upon th e eq u a lity of the strong and the weak ; for in p rac ­tice such m easures can on ly be tak en by a s tro n g S ta te aga inst a w eak S ta te.

A p a rt from th a t po in t, th e H u n g a rian G o v e rn m en t’s doub ts as to the justice of the Special C om m ittee’s a t t i tu d e are s tren g th en ed by th e fac t th a t the C om m ittee’s reply does no t es tab ­lish the responsib ility — in th e event of th e coercive m easures being shown to be unjustified — of a S ta te w hich resorts to violence. T hus pow erful S ta tes m ay resort to force w ithou t fear of serious consequences, and , according to th e J u r i s t s ’ report, the u tm ost th a t the Council can do will be to recom m end th e d iscon tinuance of th e coercive measures. I t is qu ite pos­sible, how ever, th a t where coercive m easures are tak e n the strong S ta te m ay, before the Council has t im e to in tervene, inflict serious m ora l and m a te r ia l dam age on the weak S ta te, and will be u n d e r no com pulsion to m ake good such dam age.

A gain, th e w ording of the C om m ittee’s rep ly m igh t in itself give rise to serious mis­givings ; th e rep ly to Q uestion 4 only refers, like the question itself, to "m easures of coercion which a re n o t m ean t to co n s ti tu te ac ts of w a r” .

Since reference is m ade here only to m easures which are n o t m ean t to constitu te acts of war, i t m igh t be supposed th a t th e Council in tends to exclude all m easures of coercion which public opinion m igh t regard as ac ts of war. The wording, however, is som ew hat obscure, and leaves room for a different in te rp re ta tio n , n am ely th a t th e ind iv idual opinion of the S ta te which tak es m easures of coercion is sufficient to decide w hether such m easures constitu te acts of war. U n d er these circum stances, th e door is left wide open for th e tak in g of m easures of coercion ; fo r th e S ta te w hich tak es th e m can alw ays say th a t , in tak in g any given m easure, it has no w arlike object, b u t m ere ly desires to upho ld its prestige, safeguard i ts in terests , or the like. N o r m ust it be fo rgo tten th a t m easures of coercion and ac ts of w ar are closely re la ted , since th ey have th e sam e purpose — to enable a S ta te to impose its will upon ano ther S ta te b y force. Since vio len t m easures can only be tak en b y strong States, i t is obvious th a t weak S ta tes have reason to ap p reh en d th e possib ility even of having to subm it to violence a t the h an d s of s tronger States, and , w h a t is more, th a t in such cases the stronger S ta tes m ay m a in ta in th a t th e ir ac tion is no t inconsis ten t w ith their obligations to the o ther Members of the L eague u n d e r th e Covenant.

In the opinion of th e R oyal H u n g a rian Governm ent, the Special C om m ittee’s reply to Question 5 is also open to d ispute. The question is this : W hen is the responsibility ofa S ta te involved b y the com m ission of a political crime against th e persons of foreigners in its te r r i to ry ?

A ccording to th e Ju ris ts , th e S ta te is bound not m erely to tak e m easures for the pursu it, arrest an d b ring ing to justice of the crim inals, b u t also for the prevention of the crime. The R oyal H u n g arian G overnm ent considers th a t enquiries would be desirable w ith a view to deciding w h a t m easures should be tak en by a S ta te in order to p reven t such crimes. I t is quite obvious th a t every S ta te is bound to m ain ta in its public police service a t a certain level of efficiency an d to exercise special vigilance on behalf of the safety of foreigners employed in official du ties (legations, etc.), who are m ore particu la rly exposed to these risks ; but, a p a r t from th a t , th e S ta te is n o t in a position to p reven t crimes being com m itted , w hether th ey are crimes ag a in st its own citizens or aga inst foreigners.

(Signed) Zoltân B a r a n y a i ,

Chargé d ’Affaires of the Royal H ungarian Delegation accredited to the

League of Nations.

Reply from Italy.[Translation from the I ta lian .]

Geneva, M arch io th , 1926.

W ith reference to your circular le t te r of O ctober io th , 1925 (C.L. 113.1925.V), I have the honour to inform you th a t th e R oyal I ta l ia n G overnm ent has no observations to m ake in respect of the report of the special C om m ittee of Ju r is ts referred to in the Council resolution of Septem ber 28th, 1923.

(Signed) G r a n d i .

R eply f r o m jap a n .

[Translation.]Paris, J a n u a ry 30th, 1926.

In a le t te r (C.L. 113) d a te d October io th , 1925, you were good enough to ask th e Japanese G overnm ent, in conform ity w ith the decision tak e n by the Council of the League of Nations on S ep tem ber 26th, 1925, to forw ard to you an y observations it m igh t desire to m ake on the rep o rt of th e Special Com m ittee of Ju r is ts appoin ted u nder th e resolution of th e Council of S ep tem ber 28th, 1923.

I h av e the honour to in form you th a t th e Japanese G overnm ent has ju s t notified me th a t i t has no observation to m ake on th is report, which has been unan im ously accepted by th e Council.

(Signed) Y. S u g i m u r a ,

Chief of the Japanese League of Nations Department.

R eply f r o m th e N e th er lan d s .[Translation .]

Berne, J a n u a ry 21st, 1926.

I have the honour to refer to your circular le t te r of October io th , 1925 (C.L. 113.1925. V), in which, in accordance w ith a decision by the Council, you requested the N etherlands Govern­m ent to forw ard any observations which it m igh t desire to m ake on the report b y the Special Com m ittee of Jurists .

A fter careful exam ination , the N etherlands G overnm ent is strongly of opinion th a t the report conta ins a certain n u m b er of d o ub tfu l points, and considers th a t , from the point of view of the developm ent of in te rna tiona l public law, it is im p o rtan t th a t these poin ts should be elucidated.

Accordingly, I have received instructions to forw ard to you in an annex th e te x t of the observations and questions w hich these doub tfu l points have suggested to m y Governm ent.

F o r the N etherlands M inister :

(Signed) W. F. v a n L e n n e p ,

Secretary of Legation.

Annex to the Reply from the Netherlands.

O B SE R V A T IO N S BY T H E N E T H E R L A N D S G O V E R N M E N T ON T H E R E P O R T OF

T H E S PE C IA L C O M M ITTEE OF JU R IS T S .

I . The reply to the first question lays dow n th a t the Council, w hen seized a t the instance of a M em ber of the League of N ations of a d ispute su b m itted by th a t M ember as likely to lead to a ru p tu re , is n o t b ound —- before enquiring in to th e substance of the d ispute — to consider w h e th e r such description is well founded. The second p arag rap h in th e rep ly adds th a t th e Council m ay a t all tim es estim ate the g rav ity of th e d ispu te an d determ ine th e course of its action accordingly.

T he N etherlands G overnm ent is d o ub tfu l as to the exact m eaning of th is reply. Is it to be concluded th a t i t is for each of the parties to the d ispu te and for th em alone to judge w he ther th e d ispute is likely to lead to a ru p tu re and th a t th e Council, while es tim ating the g rav ity of th e d ispute in order to determ ine the course of its action, m ust only declare its incom petence when in its opinion the d ispu te is n o t “ likely to lead to a ru p tu re ” ? Or does the rep ly m ean th a t the Council, a lthough n o t bound in the first place to consider whether the d ispu te is likely to lead to a ru p tu re , m ust declare itself incom peten t if an exam ination of th e case convinces it t h a t the d ispute is no t one com ing w ithin th a t ca tegory ?

I I . The N etherlands G overnm ent does n o t clearly see the connection betw een th e first a n d second paragraphs in the rep ly to th e second question. Is the second p arag rap h a general s ta tem en t of the reasons which led the Com m ittee of Ju r is ts to adop t the ru ling conta ined in

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the first p a rag ra p h ? Or do the tw o p arag raphs deal w ith en tire ly d is tinc t cases ? If the latter, the N etherlands G overnm ent th in k s th a t the d istinction betw een th e two categories is not qu ite clear. In particu la r, i t would like to know w hat m eaning is to be given to the expression “ o ther ju risd ic tion” in th e second paragraph . If th is te rm m eans any o ther ju ris ­diction th a n th a t of the Council, th e tw o paragraphs would refer to the sam e cases. On the other hand , if the words refer to some jurisdiction o ther th an the “ a rb itra tio n o r judicial proceedings” m entioned in the first parag raph , it is not clear w hat ju risd ic tion is m eant. Is the procedure of conciliation looked upon as one of the “ o ther channels” m entioned in the second p arag rap h , so t h a t the reference back b y the Council of a d ispute which had previously been b ro u g h t by agreem ent betw een th e tw o parties before a Conciliation Commission is not com pulsory in accordance w ith the first paragraph , b u t optional in conform ity w ith the second p a rag rap h ?

I I I . H e r M ajesty ’s G overnm ent en tire ly concurs in the first two p arag raphs of the reply to th e th ird question, b u t it is doub tfu l of the m eaning of the th ird paragraph . Does this p a rag ra p h seek to re s tr ic t th e com petence conferred upon the Council in v irtue of the first and second p a rag rap h s ? Can the d u ty of the Council to “ have regard to in terna tiona l engagem ents” im p ly th a t th e Council should declare itself incom peten t to deal w ith th e d is­pu te in question ? If so, w h a t were th e cases the C om m ittee had in m ind ?

IV . The rep ly to the fo u r th question is confined to laying down th a t coercive m easures which are n o t in ten d ed to co n stitu te ac ts of w ar m ay or m ay no t be consistent w ith th e p ro ­visions of Articles 12 to 15 of th e Covenant. This provides no criterion by which to judge. How are perm issible m easures of coercion to be distinguished from those which are not permissible ? How are the circum stances to be dete rm ined in which coercive m easures are or are no t per­missible, an d w ha t coercive m easures will i t be perm issible to take ?

V . In view of the fact th a t th e p roblem dealt w ith in th is question is a t present under consideration b y th e C om m ittee fo r th e Codification of In te rn a tio n a l Law, H er M ajesty 's G overnm ent prefers to m ake no observations on th is point.

Reply from Norway.[Translation.]

Oslo, F e b ru a ry 3rd, 1926.

I have th e h onour to in form you t h a t th e N orw egian G overnm ent has no observations to offer on th e replies of th e Specia l C om m ittee of J u r is ts to Questions 1, 2, 3 and 5.

As regards th e rep ly to Q uestion 4, th e N orw egian G overnm ent desires to po in t ou t th a t , in its view, th e C ovenant abso lu te ly p roh ib its the use of a rm ed force as a m easure of coercion before a d ispu te has been su b m itte d to th e p rocedure laid dowrn in Articles 12 to 15 of the Covenant.

T he N orw egian G overnm ent does n o t feel called upon to offer an y opinion as to how fa r n o n -m ili ta ry m easures of coercion are consisten t w ith the te rm s of these articles of the Covenant.

(Signed) Jo h . L ud. M o w i n c k e l .

Reply from Poland.[Translation.]

Geneva, October 23rd, 1925.

In a circu lar le t te r d a te d O ctober io th last (C. L. 113.1925. V), you were good enough to inform the Polish G overnm ent th a t the Council of the League of Nations, on Septem ber 26th, 1925, in s tru c ted you, in accordance w ith a request to th a t effect m ade to it by the Assembly a t its las t session, to inv ite the G overnm ents of the S tates Members of the League which found in the rep o rt of the Special Com m ittee of Ju r is ts appoin ted under the resolution of the Council of Septem ber 28th, 1923, doub tfu l points requiring elucidation, or which m ight have other com m ents to m ake on th is report, to forw ard the ir observations to the Secretariat of the League of N ations before F eb ru a ry 1st, 1926, w ith a view to a possible exam ination of the m a tte r by a Com m ittee to be appo in ted b y the Council.

I w ould rem ind you in th is connection th a t on Ju n e 23rd, 1924. the Polish delegation subm itted for the in fo rm ation of the M embers of the Council a m em orandum containing the observations of the Polish Section of the In terna tional Law Society w ith regard to the report of the Special C om m ittee of Ju ris ts . In the event of a Committee being appoin ted b y the Council to exam ine the replies of th e various Governments, I should be glad if you would subm it to it the observations m entioned above.

A t the sam e time, I should be g lad if, in view of the great interest displayed by the^ Polish G overnm ent an d the public opinion of m y coun try in the work of the League of N ations, the Council would consider appo in ting a Polish juris t belonging to the Polish Section of the In te rn a tio n a l L aw Society to sit on th is Committee.

(Signed) G. D. M o r a w s k i ,

Resident M inister attached to the League of Nations.

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Annex to the Reply from Poland.

L e t t e r f r o m t h e P o l i s h D e l e g a t e a c c r e d i t e d t o t h e L e a g u e o f N a t i o n s to t h e

S e c r e t a r y - G e n e r a l o f t h e L e a g u e .

[Translation .]Geneva, J u n e 23rd, 1924.

In rep ly to th e circu lar le t te r from th e Secretaria t d a ted M arch 22nd las t (C.L.44.1924.V) regarding the report of the S pecia l C om m ittee of Ju r is ts on th e in te rp re ta tio n of A rt ic le 15 of the Covenant of the League of N ations, I h ave th e honour to in form you th a t , in view of the g rea t in te res t i t tak es in th is question, th e Polish G overnm ent has com m unicated th e above-m entioned rep o rt to th e Polish B ran ch of th e In te rn a tio n a l Law Association. The la tte r , hav ing carefu lly exam ined th e report, em bodied its conclusions in a m em orandum which I have th e h o n o u r to t ran sm it to you herew ith for th e in fo rm ation of the M embers of the Council of th e League of Nations.

(Signed) T. L u k a s i e w i c z ,

For the Delegate accredited to the League of Nations.

Observations of the Polish Branch of the International Law Association in Regard to the Reportof the Special Committee of Jurists on the Interpretation of Article 15 of the Covenant.

I t m ust be recognised th a t , in principle, the in te rp re ta t io n given b y the Special Committee of Ju r is ts to Article 15 of the Covenant of the League of N ations is well founded.

The first reply, in lay ing down th a t th e Council’s freedom of ac tion canno t be restric ted on pu re ly form al grounds, touches the very im p o r ta n t question of com petence ; i t disallows consideration of w hat is called the “ previous q u es tion” . The Council is n o t bound, before considering the m erits of a d ispute, to exam ine w hether it is “ likely to lead to a ru p tu re ” . T he im p o rtan ce of a d ispute, its significance, th e danger th a t it involves, and the tension th a t i t creates are a ll problem s to be taken in to consideration , as well as the n a tu re of the case a n d its a t te n d a n t circum stances, a n d th ey can n o t be ad m itte d as a b a r to the Council’s com­petence, e ither a t the request of th e p a r ty concerned or on the Council’s own motion. The Council is n o t obliged, before s tudy ing th e question a t issue, to decide w hether it constitu tes a d ispu te involving legal consequences.

T he second rep ly provides a solution for the problem s involved by the p lea of “lis pendens before an o th e r ju risd ic tion” ; th is p lea should, in th e opinion of the C om m ittee of Jurists , be ad m itted . I t m ay be ad m itted either ex officio b y the Council (in conform ity w ith th e im ­plied m ean ing of the first p a rag ra p h of Article 15) or aga in a t the request of one of th e parties, if all th e partie s concerned in the d ispu te have a lread y agreed to subm it it to an o th e r in ter ­n a t io n a l au th o r i ty (G. S c h ü c k in g and W e h b e r g , pages 294, 364). I t should be pointed o u t t h a t th e opinion of th e C om m ittee of Ju r is ts on th is po in t is opposed to th a t expressed b y th e F irs t Com m ittee of th e T h ird Assem bly of th e League of Nations, which, w hen exa­m ining the pro ject of th e Sub-Com m ittee on th e P rocedure of Conciliation, la id down the principle t h a t “ in no case can a convention betw een parties im pede th e operation of Article 15 of th e Covenant ; t h a t recourse b y one of th e p ar tie s to th e Council as soon as th e situation co n tem p la ted by A rticle 15 arises is alw ays possible and has th e effect of im m edia te ly sus­pend ing the procedure of d irect concilia tion” (Minutes of the F irst C om m ittee of the T hird Assem bly, 1922, page 86). I t was for th is reason th a t Article 9 of the orig inal d ra f t was suppressed (see page 68).

While i t m ust be recognised th a t in principle th e second rep ly is well founded, it m ust n o t be forgotten th a t cases m ay arise in which th e claim th a t a d ispute is outside th e Council’s com petence w ould be liable to infringe the righ ts of th e parties. The au th o r i ty called upon to judge the d ispute quoad essentiam p rovided for in Article 15 m ay be an organisa tion or in te r ­n a t io n a l in s titu tio n in which one of the partie s is n o t represented and has no vote. This occurred in th e I ta lo -G reek dispute, in w hich M. Politis, in asking th a t th e com petence of th e Council should be recognised, very righ tly claim ed th a t the procedure laid down in Article 15, p a ra g ra p h 1, was no t precluded b y the fac t t h a t th e d ispute h ad been laid before the Confe­rence of Am bassadors.

“ S ta tes which, like ours, are n o t represented on the Conference of A m bassadors do not recognise as legal th e ju risd ic tion of th a t b o d y ” (Minutes, page 1282).

T he th ird rep ly provides an in te rp re ta tio n of the g rea test im portance : nam ely , th a t the case con tem pla ted in p a ra g ra p h 8 of Article 15 is th e only case in which the procedure laid down in th a t artic le shall no t ap p ly ; in consequence, special in te rn a tio n a l conventions con­ta in in g reserva tions in regard to a rb itra tio n canno t be p leaded as a b a r to proceedings being tak e n b y th e Council.

I t should be p o in ted out, however, t h a t th e enum era tion of th is princip le does n o t p ro ­vide a clear and unquestionab le solution. In th e first place, the m eaning of the e igh th p a ra ­g raph of Article 15 has n o t been finally an d absolu te ly determ ined (the difference in th e English a n d F rench tex ts m ust be ta k e n in to consideration). The advisory opinion of the H ague T rib u n a l w ith regard to the A nglo-F rench dispute concerning n a t io n a li ty in th e countries u n d e r F rench p ro tec to ra te recognises in principle th e essentia lly relative ch a rac te r of the possible solutions w hen it determ ines w h a t m ust be understood b y the phrase “ solely within th e dom estic ju r isd ic t io n ................................ An essentia lly re la tive question, i t depends upon

— II —

the developm ent of in te rn a tio n a l re la tions” (Collection of Advisory Opinions, Series B» No. 4> Pa Se 24)- The opinion of th e C om m ittee of Jurists, moreover, seems insufficiently clear, because the clauses in special a rb itra tio n conventions precluding the in terven tion of a third a u th o r i ty are in th e m a jo rity of cases identica l w ith the reservation in th e eigh th paragraph of Article 15. Such clauses, accord ing to S t r u p p (Die wichtigsten Arten der Vôl- kerrechtlichen Schiedsgerichtsvertrage 1917), re fer to the constitu tion of one of the con trac ting parties, to its v ita l in terests , i ts independence, its in tegrity , its honour or its sovereignty (e.g., the Russo-Belgian Convention of O ctober 30th, 1904)" These reservations are of the same ch a rac te r as th a t con ta ined in p a ra g ra p h 8, Article 15. F urtherm ore , the form ula employed b y th e ju ris ts does n o t tak e in to account reservations precluding a rb itra t io n in cases of “ conflict w ith th e in terests of a th ird S ta te ” . (See digest of clauses of th is k ind : N i e m e y e r , D ie Internationale Schiedsgerichtsbarkeit Z. f. in t. Recht, 1918, Vol. X X V II , pages 308 an d 309). F ina lly , th e opinion of the ju ris ts is liable to cause confusion in view of the fact th a t th e las t passage of the reply, w hich refers to Article 21 of the Covenant of the L eague of N ations, does n o t m ake it clear w h e th e r the plea in b a r to the proceedings should not be exc luded by the operation of p a rag ra p h 8 of Article 15, since a special a rb itra tion con­vention u su a lly excludes every k ind of in c id en ta l p lea (e.g., the Italo-A rgentine Convention of Ju ly 23rd, 1898, the C entra l A m erican Conventions of December 20th, 1907, and Con­ventions of th e B ry an type).

The fo u r th an d fifth replies concern questions of a p rac tica l nature .The fo u r th rep ly deals w ith the I ta l ia n con ten tion th a t coercive m easures taken to safe­

guard th e leg itim ate in terests of an in ju red S ta te do no t constitu te ac ts of war. W hether coercive m easures are or are n o t consistent w ith the provisions of Articles 12 to 15 of the Covenant of th e League of N ations depends on th e ind iv idua l circum stances of each case.

The rep ly of th e ju ris ts p rovides no in d ica tio n as to w h a t criterion is to be adop ted in determ ining w he ther coercive m easures co n s ti tu te an ac t of w ar ; is i t to be the in ten tion (anim us) of th e p a r ty h av ing recourse to coercion, or is it to be the ch a rac te r of the coercive measure itself ? Self-defence in th e form of re to r tio n an d reprisals is allowed by the Covenant of the League of N ations in so fa r as i t does n o t involve “ ru p tu re of re la tions” (Sc h ü c k i n g and W e h b e r g , page 293).

The con ten tion of the fo u r th reply, d ra f ted in general term s, is th a t “ peaceful occupation” , in so fa r as it does n o t b ea r th e ch a rac te r of an a c t of w ar (aggression w ithout declara tion of war) an d w hen u n d e r ta k en solely for the purpose of “ guaran tee ing” rights or of tak in g a "p ledge” , is n o t in itself inconsisten t w ith th e te rm s of th e Covenant of th e League of N ations. It m ight be said t h a t an occupation of th is k ind is a justifiable ac t of self-defence or a species of reprisals (such as peacefu l b lockade for exam ple , see Professor C y b i c h o w s k i — Treatise, page 239). In the case in po in t, M. S a lan d ra p u t fo rw ard the legal a rgum en t in the following words : “ T he occupation was m ere ly designed to assure obligations arising out of respon­sibility for a te rr ib le crim e . . . T he creation of th e League of N ations does n o t con­s titu te a renuncia tion by S ta tes of all r igh t to ac t for the defence and safety of th e ir righ ts and of th e ir d ig n ity ” . (Minutes, page 1288).

The ju r is ts ' rep ly ind irec tly re jects the d issen ting opinions of M. B ran ting and Viscount Cecil b y ad o p tin g th e view th a t the Council m ust consider each individual case before deciding whether the coercive m easures ta k e n by a n y S ta te should be allowed to s tand or not. M. Salandra was en tire ly justified in quo ting M. Oppenheim , M. de Fauchille an d M. de Rolin (Minutes, page 1314), who consider th a t occupation for the purpose of guaran tee is admissible. On the basis of th is doctrine , M. S a lan d ra som ew hat ironically pointed out th a t " I ta ly , who has recen tly tak en her p lace in w orld h isto ry , has m erely followed illustrious exam ples” (page 1314).

G erm an doctrine recognises the adm issib ility of “ peaceful occu p a tio n ” in so fa r as it constitu tes : (1) an a c t of self-defence, (2) an ac t of urgent necessity (N o t s t a n d a k t ) ; (3) an act justified on special co n tra c tu a l g rounds ( H e y l a n d , Die Rechtstellung der beselzten Rhein- lande, H andbuch des Vôlkerrechts, Vol. II. P a r t V II , 1923).

F ina lly , th e fifth rep ly lays down the princip le of responsibility for in terna tional crimes— a principle w hich is un iversa lly know n an d accepted.

R eply from S alvador.

[Translation from the S p a n ish .]San Salvador, December 14th, 1925.

I have the honour to rep ly herew ith to your note C.L. 113. 1925. V., dated October io thlast.

In th is no te you inform ed us th a t the Council of the League of N ations on Septem ber 26th, 1925, in s tru c ted you, in accordance w ith a request to th a t effect m ade to i t by the Assembly a t i ts last session, to inv ite th e G overnm ents of the S tates Members of the League to examine the rep o rt of the Special C om m ittee of Ju r is ts da ted Jan u a ry 24th, 1924, on certain points concerning th e in te rp re ta t io n of the C ovenant and o ther questions of in terna tional law, and to fo rw ard th e ir com m ents on d o u b tfu l po in ts and any o ther observations th ey m ight wish to m ake before F eb ru a ry 1st next.

My G overnm ent has no observation to m ake regarding the first, second, th ird and fifth questions an d the m an n er in which th e C om m ittee has answered th em in its report. I t is unable to say the same, however, w ith regard to the fourth question. This question and its answer are as follows :

— 1 2 —

“ Fourth Question. — Are m easures of coercion which are no t m ean t to constitute acts of w ar consistent w ith th e te rm s of Articles 12 to 15 of the Covenant, when they are tak en b y one M ember of th e League of N ations aga inst ano ther M em ber of th e League w ithout prio r recourse to th e procedure laid down in these articles ? ”

“Reply. — Coercive m easures which are no t in tended to co nstitu te ac ts of war m ay or m ay not be consistent w ith the provisions of Articles 12 to 15 of th e Covenant, and it is for the Council, when th e d ispu te has been su b m itted to it, to decide imme­diately , hav ing due regard to all c ircum stances of th e case an d to th e n a tu re of the m easures adop ted , w he ther i t should recom m end th e m ain tenance o r the w ithdraw al of such m easures.”

My G overnm ent considers th a t ac ts of violence u n d er tak en w ith a view to coercion for an y purpose c learly con ta in an elem ent of aggression, p a r ticu la rly when these acts are directed against a co u n try which, as we suppose to be the case, has n o t so fa r a t te m p te d a n y act of a similar n a tu re aga inst the first country . At any ra te , th is was the im pression gained by my G overnm ent from th e spirit which prevailed during the discussions on arb itra tio n , security and d isa rm am en t in connection w ith the Geneva Protocol. On th a t occasion i t was laid down th a t any co u n try resorting to force in violation of th e obligations assum ed u n d e r th e Covenant and P ro tocol w ould be regarded as an aggressor, and it was laid down th a t th is principle not only applied to clear cases of th e use of force which came w ithin the category of ac ts of war b u t also to those w hich did n o t constitu te acts of w ar in th e tru e sense, since the sp irit of the Protocol was to elim inate violence from in te rn a tio n a l life as a m eans of se ttling disputes.

My G overnm ent considers, moreover, th a t ac ts of violence which have no t the character of ac ts of w ar can only be those com m itted b y a powerful nation against a weak one, since the la t te r can n a tu ra l ly no t re ta lia te in the same m easure. Between tw o nations of equal or ap p rox im a te ly equal s treng th , such acts w ould be inconceivable, as th e n a tio n attacked would in all p ro b ab ility resist a n y a t te m p ts to coerce it, and this w ould give rise to a true s ta te of war. I t is therefore ev iden t th a t th e principle la id down in th e Special C om m ittee’s report in rep ly to the fou rth question refers exclusively to w eak nations, which, if th is principle were accepted, would be exposed to insults, equally uncalled for and unnecessary for th e settle­m en t of the d isputes which m ight arise betw een th em and m ore powerful nations. Above all, my G overnm ent does n o t see w hy the Council should m ain ta in , in any p articu la r case, th e measures of coercion th a t have been ta k e n an d w hy it should n o t invariab ly order th a t the previous situa tion should be re-established pending its in te rven tion and final decision.

A nother question th a t arises is w hether the Council could in an y ev e n tu a li ty order or even give its support to acts of coercion of the n a tu re u n d er consideration, in the event of such action n o t hav ing a lready been tak en b y one of the parties pending the Council’s inter­vention in the d ispu te in question an d its decision. This being clearly m ost im probable, why should the Council to le ra te such m easures and m ain ta in th em for the simple reason th a t one of the parties has tak e n the law in to its own hands ?

My G overnm ent considers th a t , a t the stage now reached by in te rn a tio n a l law, such conduct can have no raison d’être a n d m ust be condem ned by public opinion. The acceptance of th is principle by th e Members of th e League would be diam etrically opposed to th e ideas which led to th e creation of the League, and canno t be reconciled w ith the m ain tenance of peace th ro u g h a respect for law and justice.

(Signed) R. A rrie ta R ossi.

Reply from Siam.

Bangkok, J a n u a ry 8th, 1926.

His M ajesty ’s G overnm ent su b m its th e following observations concerning the replies of the Special C om m ittee of J u r is ts to the five questions propounded to th em concerning the in te rp re ta t io n of the C ovenant of th e League of N ations.

His M ajes ty ’s G overnm ent fu lly approves the replies given to the first, second, third and fifth questions.

His M ajes ty ’s G overnm ent, however, feels t h a t a clearer answ er to the fo u r th question is essential. A ny a t ta c k , how ever violent, how ever destruc tive an d how ever unjustified, m ay be cla im ed b y th e n a tio n m aking it to be m erely “ a m easure of coercion n o t in tended to constitu te an ac t of w a r” . I t is c learly no t sufficient, therefore, m erely to perm it th e nation so a t ta c k e d to ask th e Council of the League of N a tions to decide t h a t th e m easures taken aga inst i t are n o t consisten t w ith the C ovenant an d m u st be w ithdraw n. Such an in terpre­ta t io n w ould open the door to serious abuse.

His M ajesty ’s G overnm ent feels t h a t ce rta in so-called “ coercive m easures” can be , and clearty o ugh t to be, b ran d ed in ad v an ce as inconsisten t w ith the te rm s of th e C o v e n a n t . O thers m a y be declared to be c learly consistent w ith th e Covenant. O thers again, as to w hich there is d o u b t, m a y well be su b m itted to th e Council for its decision as t o whether or not, u n d er a ll th e circum stances, th e y are consistent w ith the Covenant. If th is is done, however, i t seems to H is M ajesty’s G overnm ent th a t the te rm s and t h e sp irit of t h e C o v e n a n t require th a t th e subm ission to th e Council should b e m ade before and n o t a f te r the coercive m easures are taken .

— 13 —

His M ajes ty ’s G overnm ent therefore expresses the hope th a t fu r th e r s tu d y m ay be m ade of the m a t te rs involved in th e fo u r th question in the hope of b ring ing the S ta tes M embers of the League to agree on a clear in te rp re ta tio n of the C ovenant which, so fa r as possible, will p reven t u n ju s t in ju ry to an y na tio n and unnecessary p rovocation to w a r th ro u g h the medium of ac ts of coercion “ n o t in ten d ed as ac ts of w a r” .

(Signed) T r a i d o s ,

________ M inister for Foreign Affairs.

Reply from Sweden.[Translation.]

Stockholm, Jan u a ry 29th, 1926.

In rep ly to your le t te r of October io th , 1925, in which you asked the Swedish G overnm ent to forw ard to th e S ecretaria t of the League of N ations an y observations which i t m ight desire to m ake on th e rep o rt of th e Special Com mittee of Ju r is ts appointed under the resolution of the Council of Sep tem ber 28th, 1923, I have the honour to subm it to you the following considerations re la ting to the question d ea lt w ith under (4) in th a t report :

A t th e m eeting of th e Council on March 13th, 1924, when the above-mentioned report was exam ined, th e Swedish representa tive , M. B ran ting , m ade the following s ta tem en ts :

“ As regards the rep ly to the fou rth question, the Committee of Ju ris ts has not indicated th e cases in which coercive m easures are leg itim ate and the cases in which they are not. I t is ev iden t th a t th e rep ly of th e C om m ittee m igh t cover different opinions as to the legal charac te r of ce rta in coercive m easures. In these circumstances, m y Governm ent would h ave liked th is question to be referred to the P erm anen t Court of In ternational Justice in o rder th a t a clearer opinion m igh t be obtained on th is extrem ely im p o rtan t and v ery delicate problem.

“ As, however, th is suggestion has no t been favourab ly received by m y colleagues, I declare, in accordance w ith m y instructions, th a t m y G overnm ent m ain tains in its in teg ri ty the in te rp re ta tio n of the C ovenant on th is subject, an in te rp re ta tion which was supported b y me du ring a previous session of the Council, and th a t i t therefore continues to be of opinion th a t th e use of arm ed forces is no t com patible w ith the Covenant in th e circum stances ind ica ted in the fo u rth question. I accept the fou rth reply subject to th is dec lara tion .”

May I be allowed to add th e following to these s ta tem en ts ? The wording of Question 4 as regards m easures of coercion which are not m ean t to constitu te acts of war obviously refers only to m easures tak en b y one S ta te against ano th e r in order to b ring pressure to bear upon it. The poin t a t issue appears therefore to be lim ited to w hat in terna tiona l law m eans by reprisals. Reprisals include no t only m easures involving the use of arm ed forces bu t also other m eans of pressure, such as financial measures, etc.

The rep o rt of the C om m ittee of Ju r is ts confines itself, as regards the fourth question, to stating th a t certain m easures of coercion are consistent w ith th e term s of Articles 12 to 15 of the Covenant an d th a t o thers are not. B u t it does no t trace an y line of dem arcation between the tw o classes of measures, t h a t is, betw een those which are legitim ate and those which are not. I t is, however, exceedingly im p o rtan t to d raw as clear a distinction between th em as possible.

I t should be no ted in th is connection th a t opinions on th is question held prior to the adoption of th e Covenant are now of only lim ited im portance in relations between S tates Members of th e League of Nations.

1. The question w hether a S ta te which resorts to reprisals is defending a just cause is of no im portance a t all. According to th e Covenant, a t tem p ts m ust in every case be m ade to settle the d ispute b y peaceful m eans before any recourse is had to acts of force. According to Article 12, th e parties are bound no t to resort to war or to take any o ther measure consti­tu ting a rup tu re , or likely to be regarded by th e o ther p a r ty as being of th a t natu re , before applying to th e Council or su b m ittin g to arb itration .

2. The question can n o t be solved by any such purely subjective s tan d ard as the in ten ­tions of th e G overnm ent w hich tak es the m easures in question. The system established by the Covenant requires th a t the question should be settled b y an objective s tan dard enabling the Council to determ ine which S ta te it is th a t first resorted to acts of w ar and thus incurred the penalties p rovided b y th e Covenant.

3 . Nor can the question be se ttled by a consideration of the a tti tu d e adopted by the State to which m easures of coercion have been applied. If it were accepted th a t a pacific a tti tude on its p a r t would remove from th e measures in question their warlike character, it would follow th a t th e S ta te a t tack ed would have a reason for offering armed resistance, since the m easure of reprisal would th u s ap p ear as having created a s ta te of war and as therefore entitling it to appeal for help to the League of Nations. Such an in terp re ta tion of the Covenant would, however, be d irec tly harm ful to the m aintenance of peace.

The conclusion which follows from the above argum ents is th a t measures of coercion which involve th e use of a rm ed forces m ust be considered incom patible w ith the provisions of the Covenant in th e circum stances ind icated in the fourth question. This conclusion seems also to accord w ith th e a t t i tu d e adopted by the Council in settling the conflict between Greece and Bulgaria.

(Signed) Ô s te n U n d e n .

— 14 —

Reply from Switzerland.

[Translation.]Berne, F eb ru a ry 2nd, 1926.

In your le tter, No. C.L. 113. 1925. V., of O ctober io th , in execution of a decision of the Council of the League of N ations d a ted Sep tem ber 26th, 1925, w hich itself was pu rsu an t to a resolution by the s ix th Assem bly, you requested th e Federal Council to fo rw ard to you before the 1st of th is m o n th its observations on the rep o rt of th e Special Com m ittee of Jurists appoin ted on Sep tem ber 28th, 1923.

In reply to th is in v ita tio n , we have the honour to forw ard to you herew ith an aide-mémoire giving the F edera l Council’s views on th e J u r is t s ’ report, its observations on a num ber of points, and also ce rta in o th er po in ts in regard to which it desires a m ore explicit s ta tem en t to be made.

(Signed) M o t t a ,

Federal Political Department.

A ID E -M É M O IR E .

I t is exp ed ien t first of all to exam ine the legal ch a rac te r of the replies given b y th e Com­m ittee of Ju ris ts . In its resolution of M arch 13th, 1924, th e Council m ade no pronouncem ent on th is po int, b u t approved the replies in th e ir en tire ty .

The C ovenant of th e League of N ations con ta ins no provisions w ith regard to th e proce­dure to be followed in its in te rp re ta tion . There can h a rd ly be any d oub t, however, t h a t the organ of th e League which has to deal w ith a concrete case has also to interpret the Covenant with a view to its application. Such in te rp re ta tio n does no t, of course, possess a n y b ind ing character a p a r t from the case in respect of which the in te rp re ta t io n is given. I t is for th e Perm anent Court of In te rn a t io n a l Justice to give an abstract interpretation of the Covenant, in th e form of an adv isory opinion. I t is h a rd ly open to d ispu te th a t the replies of th e C om m ittee of Ju r is ts as app roved by the Council have no b ind ing charac ter. This view has a lread y been upheld by M. G. Ador, m em ber of the Swiss delegation, in his speech a t the p lenary m eeting of the Assem­b ly on Sep tem ber 8th, 1924, during the discussion on th e w ork of th e Council. Speaking of the J u r i s t s ’ replies, M. A dor said :

"T h e Council has ta k e n no te of i t and the docum en t canno t be regarded as an au then ­tic in te rp re ta tio n of the Covenant or as b in d in g in ch a rac te r ."

In particu la r, M. A dor em phasised th e fact th a t the League A ssem bly could n o t be bound by an in te rp re ta t io n of the Council w hen he added :

“ The Assem bly m ust rem ain th e suprem e a u th o r i ty in so fa r as concerns th e in terpre­ta t io n of the C ovenant.”

O ther speakers m ain ta in ed th e sam e poin t of view. There is, in fact, no d o u b t on this m atte r . I t is for the con trac ting parties alone — a p a r t from th e cases m entioned above — to in te rp re t an in te rn a tio n a l t re a ty . I t w ould be co n tra ry to th is p rinciple were the Council, on which only a lim ited n u m b er of S ta tes Members are represented, en titled to give an in ter ­p re ta tio n of the C ovenant w hich w ould be b ind ing upon th e o ther Members. The Assembly, on th e o th e r h and , being a bo d y w hich comprises all the co n trac tin g States, can give an ab s trac t in te rp re ta t io n of th e Covenant th ro u g h a unan im ous decision, a l though th is decision is no t of an abso lu tely b ind ing charac ter. I t w ould appear th a t th e J u r i s t s ’ replies might lead to some such decision if discussed b y the Assembly.

As regards i ts authentic interpretation in th e s tric t sense of th e te rm , the Covenant, as has been said, con ta ins no provisions. I t m ust, however, be ad m itted th a t the principles custom ary in in te rp re tin g in te rn a l public law ought to be applied in this case b y analogy. J u s t as it is impossible to give an au th en tic in te rp re ta t io n of a law except by legislative m eans, so the am endm en t procedure laid dow n in Article 26 should be applied to the C ovenant of the League of N ations (see in th is connection the s ta tem en ts m ade in the F irst C om m ittee of the second A ssem bly b y M. M otta and M. Erich, th e F inn ish delegate, Records of the Second Assembly, Vol. I, pages 96 an d 97). A t th e sam e tim e, th is m eth o d of in te rp re ta t io n can scarcely be considered in th e p resen t case.

A fter these general rem arks, le t us proceed to exam ine the p articu la r points.

“ F irst Question. — Is th e Council, w hen seized a t the instance of a M em ber of the League of N ations of a d ispute, su b m itted , in accordance w ith th e te rm s of A rticle 15 of th e Covenant, b y such a M ember as ‘likely to lead to a ru p tu re ’, bound, e ither a t the request of the o ther p a r ty or on i ts own au th o rity , and before enquiring in to an y point, to decide w h e th e r in fac t such descrip tion is well-founded ?”

“ F irst Reply. — T he Council, w hen seized a t the instance of a M ember of the League of N ations of a d ispu te su b m itted , in accordance w ith the te rm s of A rticle 15 of the Cove­nan t, b y such a M em ber as ‘likely to lead to a ru p tu re ’, is no t bound, e ither a t the request of the o ther p a r ty or on its own au tho rity , and before enquiring in to an y point, to decide w hether in fac t such descrip tion is well-founded.

“ The Council m ay a t a ll tim es estim ate th e g rav ity of the d ispu te an d determine th e course of its ac tion accord ingly .”

— 15 —

I t m igh t be concluded from the w ording of th e first p a rag rap h in th is reply ("L e Conseil. . . ne doit p a s . . . — T he C ouncil. . . is n o t b o u n d . . as also from the w ording of th e second paragraph (“ Le Conseil p e u t . . . ” — “ The Council m a y . . . ” ), t h a t the Council is n o t obliged to consider w he ther th e d isp u te is likely to lead to a rup tu re , b u t th a t i t is free to do so. It would th u s n o t be b ound to deal w ith a d ispu te subm itted to it in conform ity w ith Article 15, paragraph 1, of the C ovenant of the League, unless it th o u g h t th a t it was “ likely to lead to a ru p tu re” . This view w ould ap p ear to us to be con tra ry to the spirit of the Covenant. In our opinion, each M em ber of the League m ust be left free to judge w hether the conflict is likely to lead to a ru p tu re and w hether, therefo re , it should be subm itted to the Council in accordance w ith A rticle 15. The question w h e th e r a d ispute is likely to lead to a ru p tu re depends so m uch upon pu re ly subjective fac to rs th a t only the parties them selves are able to estimate th e weight th a t should be given to them . E ven the Council would lack an objective criterion by which to judge. T h a t is w hy it is bound to deal w ith any dispute su b m itted to it in accordance w ith A rticle 15, p a rag rap h 1 (with the exception of the cases m entioned in Replies 2 a n d 3).

A com parison betw een Articles 13 and 15 of the Covenant would appear to lead to the same conclusion. A rticle 13 deals w ith a rb itra t io n or judicial proceedings. These m ay be applied if th e d ispu te canno t be “ satisfac to rily se ttled by d ip lom acy” . This provision does not ap p ea r in Article 15, w hich lays dow n th e principles of procedure in the event of an appeal to the Council. D ip lom atic negotiations therefo re need n o t necessarily precede an appeal to the Council. The d u ty of deciding w h e th e r th e y do or do n o t desire to pursue these negotia­tions m u s t be left largely to th e discretion of th e S ta tes concerned. In its judgm ent of August 30th, 1924, in the case of the M avrom m atis P alestine Concessions (Publications of the Per­manent Court, Series A, No. 2), the P e rm an en t Court of In te rn a tio n a l Justice said in this connection :

(Page 13) “ The question of th e im p o rtan ce and chances of success of dip lom atic nego tia tions is essentia lly a re la tive one. N egotia tions do n o t of necessity always pre­suppose a m ore o r less len g th y series of no tes an d despatches ; i t m ay suffice th a t a discussion should h ave been com m enced, a n d th is discussion m ay have been very short ; th is will be the case if a deadlock is reached o r if, finally, a po in t is reached a t which one of th e parties defin ite ly declares him self unable , or refuses, to give way, and there can therefore be no d o u b t th a t th e d ispu te can n o t be se ttled by diplom atic n eg o tia t io n . . . ”

(Page 15) “ The Court realises to th e fu ll the im portance of the rule laying down th a t on ly d isputes w hich can n o t be se ttled b y nego tia tion should be b ro u g h t before it. I t recognises, in fact, th a t , before a d isp u te can be m ade the subject of an action of law, its su b jec t-m a tte r should have been c learly defined b y m eans of d ip lom atic negotiations. Nevertheless, in app ly ing th is rule, th e C ourt canno t d isregard , am ongst o ther conside­ra tions, th e views of th e S ta tes concerned, w hich are in the best position to judge as to po litical reasons w hich m ay p rev en t th e se ttlem en t of a given dispute by diplom atic nego tia tions .”

If, therefore, th e opinion of S ta tes as to th e expediency of appealing to the Court of Justice o r a cou rt of a rb itra t io n is decisive, even in cases in w hich the provisions of Article 13 regarding the failure of d ip lom atic nego tia tions are to be applied, how m uch m ore should this opinion be decisive when, as in Article 15, no such provision is included ?

These are the few po in ts in th e first rep ly w hich we th in k should be m ade clearer.

“ Second Question. — Is the Council, w hen seized of a d ispute in accordance w ith A rticle 15, p a rag ra p h 1, of th e C ovenant, a t the instance of a Member of the League of N ations, bound, e ith e r a t th e request of a p a r ty or on its own au tho rity , to suspend its en q u iry in to th e d isp u te when, w ith th e consen t of the parties, th e se ttlem ent of the dispute is being sought th ro u g h some o ther channel ?”

“Second Reply. — W here, co n tra ry to th e term s of Article 15, parag raph 1, a dispute is su b m itte d to th e Council on th e app lica tion of one of the parties, where such a dispute a lread y form s th e sub ject of a rb itra t io n or of judicial proceedings, the Council m ust refuse to consider th e application .

“ If th e m a t te r in d ispute, b y an agreem ent between th e parties, has already been su b m itte d to o th er ju risd ic tion before which it is being regularly proceeded with, o r is being dea lt w ith in th e said m an n er in ano ther channel, it is in conform ity with the general principles of law th a t it should be possible for a reference back to such jurisdiction to be asked for and o rde red .”The J u r i s t s ’ rep ly d istinguishes tw o cases and provides a separate solution for each.The first case is th a t in which th e d ispu te “ forms the subject of a rb itra tion or of judicial

proceedings” ; the second is when the m a t te r “ has a lready been subm itted to o ther ju ris ­diction before which it is being regularly proceeded with, or is being dealt w ith in the said m anner in an o th e r ch an n e l” . . „

In th e form er case, th e Council m ust “ refuse to consider the application . This reply must be regarded as sa tisfac to ry . I t is also in accordance w ith the stipulations of Articles 12 to 15 of the Covenant, to the effect th a t a d ispu te which is subm itted to a rb itra tion or judicial procedure canno t be b ro u g h t a t the same tim e before the Council. .

This reply , however, a lthough correct, m igh t c a u s e certain m isunderstandings which it would be well to avoid. I t m igh t suggest th a t th e Council is only incom petent if th e d ispute already form s the sub ject of a rb itra tio n o r of judicial proceedings, whereas it m ust obviously also refuse to exam ine the m a t te r in th e following circum stances .

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(1) W hen the dispute has no t been su b m itted to an y court, b u t when th e parties are bound by a convention to b ring it before some court of a rb itra tio n or to judicial proceedings ;

(2) W hen the d ispute is a lready pend ing or m ust necessarily be b ro u g h t before a court of conciliation and when th e parties are obliged to subm it i t to a cou rt of a rb itra ­tion or to judicial proceedings in th e even t of conciliation proving unsuccessful.

For th e same reasons, th e Council m ust declare itself incom peten t when the d ispu te already forms the subject of jud ic ia l proceedings or a rb itra tio n and w hen it is included am ong th e cases which have ju s t been m entioned.

The Members of th e League of N ations are free to supplem ent and reinforce by separate conventions the perfectly general obligations which th ey have con trac ted in regard to the peaceful se ttlem en t of th e ir d isputes as Members of the League. A greem ents of th is sort can only consolidate the fu n d am en ta l principle of the League, nam ely, the pacific settlem ent of in te rn a tio n a l disputes. T hey constitu te an advance on the Covenant itself. Accordingly, a resolution b y the th ird Assem bly of the League, d a ted Septem ber 22nd, 1922, specially recom m ends to S ta tes M em bers th e conclusion of separa te trea ties of conciliation. Switzer­land, b y th e conclusion of num erous conventions for jud ic ia l se ttlem ent, a rb itra tio n an d conci­liation, has given proof of h er firm resolve to con tribu te as fa r as she can tow ards perfecting the p rocedure for th e peaceful se ttlem en t of in te rn a tio n a l disputes. These conventions, where th ey deal w ith conciliation procedure, w ith a rb itra tio n , or w ith judicial procedure, constitu te , in re la tion to th e corresponding principles in th e League Covenant, a lex specialis. This, in conform ity w ith a generally accepted rule, tak es precedence of the Covenant, th e latter being regarded as a lex generalis. W henever trea tie s of th is k ind exist, therefore, appeal to th e Council in conform ity w ith Article 15 ought only to be m ade in the last reso rt, t h a t is to say, when th e par ticu la r procedure agreed upon has not led to the se ttlem en t of th e dispute. I t would be co n tra ry to th e principle of respect for trea ties as proclaim ed in th e pream ble of th e Covenant of the League (“ In order . . . b y . . . a scrupulous respect for all t re a ty obligations in the dealings of organised peoples w ith one an o th e r” ) th a t one of the con trac ting parties should wish to subm it a d ispute im m ed ia te ly to the Council in spite of existing conventions. I t w ould seem th a t th e Council should first recall the app lican t State to a sense of the respect due to its t r e a ty engagem ents.

T he fac t th a t the C om m ittee of Ju r is ts em ploys a different form ula in the second para ­g rap h of its rep ly is ap p a ren tly a t tr ib u tab le to its desire to em phasise th a t in the cases referred to, as opposed to th e cases m entioned in th e first paragraph , the Council may and n o t must refer th e question back. The decision to be tak e n would therefore depend upon the opinion of th e Council.

" T h ir d Question. — Is an objection founded on Article 15, p a rag rap h 8, of th e Cove­n a n t the only objection based on the m erits of the d ispute on which the com petence of th e Council to m ake an enqu iry can be challenged ? ”

“ Third Reply. — W here a d ispu te likely to lead to a ru p tu re is su b m itted to the Council, on the app lica tion of one of the parties , in accordance w ith the provisions of Article 15, p a rag rap h 1, the case con tem pla ted in p arag rap h 8 of Article 15 is the only case in which th e Council is no t to enquire in to th e dispute.

" I n particu la r, the reserva tions com m only inserted in m ost a rb itra tio n treaties canno t be p leaded as a b a r to th e proceedings.

"T h e C om m ittee considers it desirable to observe th a t , where the case arises, the Council should, in dete rm in ing th e course of its action, have regard to in terna tiona l engagem ents, such as trea tie s of a rb itra t io n o r regional understand ings for securing the m ain ten an ce of peace.”

The rep ly to th is question also seems satisfactory . F u r th e r discussion on th e force of the objection based on Article 15, p a rag rap h 8, of th e C ovenant no longer appears necessary after th e A dvisory Opinion No. 4 given b y th e P erm an en t Court of In te rn a tio n a l Justice on February 7th, 1923.

We are pleased to no te the p ronouncem ent of th e Com m ittee of Ju r is ts on a par­ticu lar question in the th ird p arag rap h of its reply. This rem ark recognises th a t , in determ ining th e course of its action, the Council should have regard, for exam ple, to Swiss neu tra lity .

“ Fourth Question. — Are m easures of coercion which are n o t m ean t to constitu te ac ts of w ar consistent w ith the te rm s of Articles 12 to 15 of the Covenant w hen th e y are tak e n b y one Member of the League of N ations aga inst an o th e r M ember of the League w ith o u t prio r recourse to the procedure laid down in those Articles ? ”

" Fourth Reply. — Coercive m easures which are no t in tended to constitu te ac ts of w ar m ay o r m ay n o t be consistent w ith the provisions of Articles 12 to 15 of the Covenant, an d it is for th e Council, when th e d ispu te has been su b m itted to it, to decide im m ediately, hav ing due regard to all the circum stances of th e case and to the n a tu re of the measures adop ted , w hether i t should recom m end the m ain tenance or th e w ithdraw al of such m easures.”

There are ce rta in omissions in th is reply, and it accordingly requires to be m ade clearer. I t would be well to explain w hat is understood b y the words "w hich are no t m ean t to con­

s t i tu te acts of w a r” . Are we to judge b y th e in ten tions of the S ta te which takes measures of coercion, or is it th e n a tu re of these m easures th a t is to be regarded as the determ ining

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factor ? I t would seem th a t an objective s tan d a rd is the only one th a t should be applied. It is the n a tu re of th e m easure, and no t the in ten tions d ic ta tin g it, w hich decides w he ther it is admissible or not.

The C om m ittee of Ju r is ts fu r th e r recognises in its reply th a t there are certa in “ coercive measures w hich are no t in ten d ed to co n stitu te acts of w a r” b u t which are nevertheless co n tra ry to the provisions of Articles 12 to 15 of the Covenant. This po in t also requires elucidation.

W ithou t considering the question in all its aspects, it ought to be possible to enum era te a certain n u m b er of coercive m easures w hich would certain ly not be authorised . This is first and forem ost the case w ith m easures affecting th e te rr ito r ia l sovereignty of a S ta te . I t m ust be considered incom patib le w ith Articles 12 to 15 of the Covenant for a S ta te to v io late the territory of an o th e r S ta te during th e course of peaceful proceedings and before the expiry of the tim e-lim it laid dow n in Article 12. This follows from the consideration th a t , if a S ta te were p e rm it ted to em ploy coercive m easures aga inst an o th e r S tate, the la t te r ough t to be allowed to ta k e th e sam e m easures aga inst the form er. Measures of th is kind, which, if tak e n simultaneously b y b o th S ta tes, w ould in ev itab ly lead to war, canno t be consistent w ith Articles 12 to 15.

The obligation to respect th e te r r i to ry of S ta tes follows also from the te rm s of Article 1 0

of the Covenant. I t is in v ir tue of th is provision th a t S ta tes Members “ are bound to refrain from any violent u n d e r ta k in g ” (see th e Message of th e Federa l Council to the Federal Assembly of A ugust 4 th , 1 9 1 9 , w ith regard to th e question of Sw itzerland’s accession to the League of Nations, page 1 7 ).

" F i f th Question. — In w hat c ircum stances and to w hat ex ten t is the responsibility of a S ta te involved b y th e com m ission of a po litical crime in its te rr i to ry ? ”

" F i f th Reply. — The responsib ility of a S ta te is only involved by the commission in its te r r i to ry of a political crim e aga inst the persons of foreigners if the S ta te has neglec­ted to tak e all reasonable m easures for the preven tion of the crime and th e pursu it, arrest an d bring ing to justice of th e crim inal.

“ T he recognised pub lic ch a rac te r of a foreigner an d the circum stances in which he is p resen t in i ts te r r i to ry en ta il up o n th e S ta te a corresponding d u ty of special vigilance on his beha lf.”

T he question a n d th e rep ly refer to “ political crim es” w ithou t seeking to define them . I t m ay be agreed th a t a political crim e is com m itted “ when crimes against foreigners are obviously inspired b y hostili ty to th e ir n a tio n a li ty , in o ther words, when th ey are a ttack ed as na tionals of a ce rta in co u n try ” ; especially, therefore, when — the above conditions being fulfilled — “ th e v ic tim has a public ch a rac te r and when the a t ta c k is m ade upon h im b y reason of th a t c h a ra c te r” x.

W ould it no t be b e t te r to speak m ore generally of crim es com m itted against foreigners and not only of political crim es ? I t m ay be said generally th a t a S ta te is in any case not more, but less, responsible for crimes th a t are n o t of a political natu re .

As regards the “ reasonable m easures” , the question w hether th ey have or have not been taken can only be se ttled in concrete cases. A t the sam e tim e, a few exp lanations seem possible. Thus, no S ta te is requ ired to g ra n t to foreigners a g rea te r m easure of p ro tec tion th a n it grants to its own nationals , in so fa r a t least as th e y are n o t obviously th rea ten ed by reason of their being foreigners. N or is i t the d u ty of th e S ta te to p reven t or punish a crime by different m ethods according as it is com m itted aga inst a foreigner or a national.

I t w ould ap p e a r obvious, a lth o u g h it m ay be w orth s ta tin g so explicitly, th a t a S ta te is not responsible for a ju d g m en t given against a crim inal, b u t only for his pursu it, arrest and bringing to justice in con fo rm ity w ith ex isting laws. To quote M. Ch. De Visscher 2 : “ If criminals b ro u g h t before th e regu lar courts have been judged according to the procedure laid down b y the law of th e coun try , th e obligations of the S ta te are d ischarged .”

As regards the cases dea lt w ith in th e second p arag rap h of the reply, the words used by M. Ador a t th e p lenary m eeting of th e A ssem bly on Septem ber 8th, 1924, again seem perfectly appropriate . M. A dor said th a t “ the only d u ty of the S ta te is to prevent, so far as possible, crimes aga inst the official rep resen ta tives of o ther S ta tes when on official business w ith in its te r r i to ry ” .

F inally , i t w ould be well to m ention certain circum stances which m ight diminish the responsibility of S ta tes in the cases dea lt w ith in paragraphs 1 and 2. For example, an y fault com m itted b y the foreigner himself w ould dim inish responsibility. The same would apply if the crime against the foreigner h ad its origin in events of domestic policy occurring in his own country . The in te rn a tio n a l responsib ility of a S ta te is clearly dim inished if the crime is the result of political tension which has developed w ithout the S tate on whose te rr i to ry the crime is co m m itted hav ing been in an y w ay concerned and w ithout its being able to exercise any influence w ith a view to reducing or rem oving such tension.

A ny rep ly t h a t m igh t be given to the fifth question m ust necessarily be so general th a t its applica tion in concrete cases will lead to differences of opinion. It m ay be rem arked here tha t the question of the responsib ility of S ta tes is clearly one of those which lend them selves to a judicial or a rb itra l settlem ent. P a rag rap h 2 of Article 13 of the Covenant, in fact, expressly m entions as such “ d ispu tes . . . as to the existence of any fact which, if established, would co n stitu te a b reach of an y in te rn a tio n a l obligation, or as to the ex ten t and n a tu re of the reparation to be m ade for an y such b re ach ” .

1 M. Ch. De Visscher, in th e Revue de droit international et de législation comparée, Vol. V (1924), page 390.

2 Ibid, pages 393 and 394.

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Reply from Uruguay.

[Translation from the Span ish .]M ontevideo, J a n u a ry 8th, 1926.

In th e first place, m y G overnm ent desires to reaffirm the principles w hich i t has always followed in connection w ith th e p roblem s exam ined by th e C om m ittee of Ju ris ts . All endea­vours m ust be d irec ted , while respecting b o th th e le t te r and the sp irit of th e Covenant, tow ards estab lish ing th e ru le of law, s treng then ing th e Covenant in the in terests of peace an d consolidating th e influence a n d au th o r i ty of th e League of N a tions — th e p ro p e r inter­n a tional o rgan isa tion to safeguard th a t peace.

In th e opinion of m y G overnm ent, tho u g h th e principles in question m ay have guided the work th a t h as been done, th e y m igh t have found m ore defin ite and full expression.

The rep ly given to Question 4 suggests observations which are sufficient to ju s tify our ju dgm en t.

W e consider t h a t no m easures of coercion can be consisten t w ith the le t te r an d th e spirit of th e C ovenant, since th e adop tion of the C ovenant m ark s th e ad v en t of an in terna tional o rder w hich precludes the em ploym ent of violence u n ti l a ll ap p ro p ria te m easures to dispense S ta tes from th e necessity of tak in g the law in to th e ir own h an d s have been exhausted .

T his is the observa tion which m y G overnm ent considers it essen tia l to m ake ; on a m ore conven ien t occasion i t m ay proceed to consider som e of the rem ain ing questions.

(Signed) J . C. B l a n c o .

ANNEX.

R E P L I E S G IV E N B Y T H E S P E C IA L C O M M ITT EE O F J U R IS T S TO T H E

Q U E S T IO N S S U B M IT T E D BY T H E C O U N C IL O F T H E L E A G U E OF

N A T IO N S ON S E P T E M B E R 2 8 t h , 1 9 2 3 .

The Commission has agreed upon th e following replies to th e questions su b m itted by the Council :

First Question.

I s the Council, when seized at the instance of a M ember of the League of Nations of a dispute submitted in accordance with the terms of Article 15 of the Covenant, by such a M ember as “likely to lead to a rupture”, bound, either at the request of the other party or on its own authority, and before enquiring into any point, to decide whether in fact such description is well founded ?

Reply.

The Council, when seized a t th e instance of a M ember of th e League of N ations of a dis­p u te subm itted , in accordance w ith the term s of Article 15 of the Covenant, by such a Member as " l ik e ly to lead to a ru p tu re ” , is no t bound, e ither a t th e request of th e o ther p a r ty or on its own au th o rity , a n d before enquiring in to an y point, to decide w hether in fa c t such descrip tion is well founded.

The Council m ay a t all times estim ate the g rav ity of th e d ispute and determ ine the course of its ac tion accordingly.

Second Question.

I s the Council, ii'hen seized of a dispute in accordance with Article 15, paragraph 1, of the Covenant, at the instance of a M ember of the League of Nations, bound, either at the request of a party or on its own authority, to suspend its enquiry into the dispute when, with the consent of the parties, the settlement of the dispute is being sought through some other channel ?

Reply.

W here, co n tra ry to the te rm s of Article 15, p a rag ra p h 1, a d ispu te is su b m itted to the Council on the app lica tion of one of th e parties, where such a d ispute a lread y forms the subject of a rb itra t io n or of jud icial proceedings, the Council m ust refuse to consider the application.

If the m a t te r in d ispute, by an agreem ent betw een the parties, has a lread y been subm itted to o th er ju risd ic tion before which i t is being regu la rly proceeded w ith, or is being d ea lt with in the said m an n er in an o th e r channel, i t is in con fo rm ity w ith the general principles of law th a t it should be possible for a reference back to such ju risd ic tion to be asked for and ordered.

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T hird Question.

Is an objection founded on Article 15, paragraph 8, of the Covenant the only objection based on the merits of the dispute on which the competence of the Council to make an enquiry can be challenged ?

Reply.

W here a d ispu te likely to lead to a ru p tu re is subm itted to the Council, on the application of one of the parties , in accordance w ith the provisions of Article 15, p a rag rap h 1, the case contem plated in p a rag ra p h 8 of Article 15 is the only case in which the Council is not to enquire into the dispute.

In p ar ticu la r , the reservations com m only inserted in most a rb itra t io n treaties cannot be p leaded as a b a r to th e proceedings.

The Commission considers i t desirable to observe th a t , where th e case arises, the Council should, in dete rm in ing th e course of its action , have regard to in te rn a tio n a l engagem ents such as trea tie s of a rb itra t io n or regional understand ings for securing the m aintenance of peace.

Fourth Question.

Are measures of coercion which are not meant to constitute acts of war consistent with the terms of Articles 12 to 15 of the Covenant when they are taken by one Member of the League of N ations against another M em ber of the League without prior recourse to the procedure laid down in these articles ?

Reply.

Coercive m easures which are n o t in tended to constitu te acts of w ar m ay or m ay not be consistent w ith th e provisions of A rticles 12 to 15 of the Covenant, and it is for the Council, when th e d ispu te has been su b m itted to i t , to decide im m ediately , h av ing due regard to all the circum stances of the case an d to the n a tu re of the m easures adop ted , w hether it should recom m end th e m ain tenance or the w ith d raw al of such measures.

F ifth Question.

I n what circumstances and to what extent is the responsibility of a State involved by the commission of a political crime in its territory P

Reply.

The responsib ility of a S ta te is only involved b y the commission in i ts te rr ito ry of a political crime against the persons of foreigners if th e S ta te has neglected to tak e all reasonable measures for th e preven tion of th e crim e an d the pursu it , a rrest an d bringing to justice of the criminal.

The recognised public ch a rac te r of a foreigner an d the circum stances in which he is p re ­sent in its te r r i to ry en ta il upon the S ta te a corresponding d u ty of special vigilance on his behalf.

Geneva, J a n u a ry 24th, 1923.For the Special Committee of Jurists :

(Signed ) A d a t c i ,

Chairman of the Commission.

(Signed) V a n H a m e l ,

Director, Legal Section of the Secre­tariat of the League of Nations.