5 Memorandum prepared for Delegation to Imperial Conference

11 September 1936 [1]

REFORM OF THE COVENANT OF THE LEAGUE OF NATIONS

I. GENERAL CONSIDERATIONS

1. The fundamental bases of the foreign policy of Great Britain have been dictated by geography, which has ever exerted a paramount influence. An island state, but the centre of a vast empire with long communications, the maintenance of naval superiority over any European state to ensure security, the food supplies, raw materials and markets for her people, has been a cardinal aim.

Her proximity to Europe, greatly increased by the development of aviation, compels her to take an active part in European affairs.

The maintenance of the independence of the low countries, and of the stability of Western Europe, is still as much traditional British policy today as it was three hundred years ago, and as restated by Mr Baldwin in July, 1934, in the words, 'Today the Rhine is where our frontier lies'. The Locarno agreements are an embodiment of this principle.

The existence of the Dominions has also been a paramount factor in British foreign policy, and the security of India, Australia and New Zealand has led to the domination of Egypt, the maintenance of the Suez Canal communications, the paramount British influence in the Arabian Gulf and Red Sea, as being also included as a basic policy.

Broadly speaking, the above, apart from general considerations, such as the preservation of the most friendly relations with the United States, constitute the fundamentals of British foreign policy. Other questions and crises which periodically arise have been usually determined in the light of existing circumstances and the needs of the moment. It was, as a consequence, inevitable that a policy adopted or a course of action taken was not always acceptable to individual dominions. With the constitutional development of the Dominions, and their increased international status, the question of consultation and co-operation in matters of foreign policy was clearly going to assume an ever increasing significance, and, possibly, divergence of outlook.

The future cohesion of the Empire would in a large measure depend upon the extent to which British foreign policy could command the confidence and support of the Dominions. If that policy were based purely on European considerations, then the Dominions might well be unwilling to co-operate.

2. Fortunately, the League of Nations and the principles enshrined in the Covenant, provided a focal point for a common Empire policy, and of recent years the declared policy of Great Britain and the Dominions has been based on League principles centred round the ideas of collective action, arbitration, conciliation and peace. These principles, world-wide in their scope, lessened the chance of any disruption and facilitated a consistent and unified Empire foreign policy.

Probably Great Britain and the Dominions relied unduly on the universality of acceptance of these principles, and particularly on the disarmament provisions of the Covenant. It is true that Great Britain and the Dominions set an example in disarmament which was not followed by other States, and thereby probably lost influence in the councils of the world. Be that as it may, our main concern at the moment is the failure of the League of Nations to settle peacefully the Far Eastern dispute between China and Japan, the Chaco dispute between Paraguay and Bolivia and the recent Abyssinian dispute. The failure in the case of the first two disputes caused much uneasiness and misgiving, especially on the part of small States, but the future of the League was not regarded as being at stake. The Abyssinian dispute showed, however, that the League, as at present constituted, failed not only to settle peacefully a dispute of which it had ample warning, but failed to bring the war to an end after hostilities had broken out, and, most important of all, failed to prevent a declared aggressor from reaping the fruits of his victory.

As a consequence, if the foreign policy of Great Britain, of the Dominions, and, in fact, of most of the small countries, is to continue to be based on the principles of the League, an examination of the whole League system of collective security is imperative.

3. Great Britain has announced the necessity for revision of League machinery. Mr Lyons, in declaring the Commonwealth policy in regard to the raising of sanctions, indicated that an examination of the League system, in the light of the experience of the last six months, was essential. Spokesmen of many other States have voiced the desirability of revision.

Argentina requested a meeting of the adjourned 1935 Session of the Assembly, and in July of this year the following resolutions were passed and submitted to all States members of the League:-

'The Assembly,

1. Having met again on the initiative of the Government of the Argentine Republic, and in pursuance of the decision to adjourn its session taken on the 11th October, 1935, in order to examine the situation arising out of the Italo-Ethiopian dispute;

2. Taking note of the communications and declarations which have been made to it on this subject;

3. Noting that various circumstances have prevented the full application of the Covenant of the League of Nations;

4. Remaining firmly attached to the principles of the Covenant, which are also expressed in other diplomatic instruments, such as the declaration of the American States, dated the 3rd August, 1932, excluding the settlement of territorial questions by force;

5. Being desirous of strengthening the authority of the League of Nations by adapting the application of those principles to the lessons of experience;

6. Being convinced that it is necessary to strengthen the real effectiveness of the guarantees of security which the League affords to its Members;

Recommends that the Council-

(a) Should invite the Governments of the Members of the League to send to the Secretary-General, before the 1st September, 1936, any proposals they may wish to make in order to improve in the spirit and within the limits laid down above, the application of the principles of the Covenant;

(b) Should instruct the Secretary-General to make a first examination and classification of these proposals;

(c) Should report to the Assembly at its next meeting on the state of the question.'

4. At this adjourned meeting of the Assembly there was a marked divergence of opinion. Some States wished to confine proposals to the preventive and repressive articles, namely Articles 11 and 16, others wished States not to be circumscribed in any way. Others again expressed the view that no alteration was necessary as the present Covenant was quite effective enough, but that its effectiveness depended on its proper application, which in turn depended on whether the interests of League members were affected by the threatened aggression.

The different viewpoints so far expressed indicate that any general agreement on the alteration in terms or method of application of the Covenant is going to be exceedingly difficult to procure, and that any pressing of extreme views might well cause complete disruption and the end of the League as a political factor in international affairs.

The extreme point of view is for a revision on the lines of the strengthening of the obligations under Article 16, especially in their automatic application, including military sanctions against a declared aggressor.

At the other end of the scale is the view for the weakening of the obligation by eliminating all the coercive and repressive articles such as the sanctions under Article 16, thereby abandoning the policy of collective security, and relying purely on the League's moral and consultative aspects.

Between these extremes are various compromise proposals, such as the retention of financial and economic sanctions only and an extension of existing regional agreements within the framework of the League providing for the application of military sanctions by the parties thereto against an aggressor.

5. These various proposals are set out in a Memorandum recently prepared by the United Kingdom Government and submitted to the Commonwealth Government. A perusal of this Memorandum indicates that the British Government has apparently not reached definite conclusions on the best course to adopt. In a cablegram to the Commonwealth Government, dated 30th July, it states that it does not intend to announce beforehand its proposals as requested by September 1st, but will wait until the actual meeting of the Assembly. Other States Members of the League have also decided not to announce their proposals beforehand.

In the United Kingdom memorandum, one of the suggestions is for the removal of all coercive powers, on the ground that although collective security is the ideal policy for peace, it is ineffective and dangerous at present in that it creates obligations without the necessary confidence that they will be fulfilled; that some nations, like the United States, are deterred by these Articles which may entangle them in European wars, and others, like Germany and Japan, regard them as provisions for the maintenance of the Versailles settlement. The view is advanced that the League, if shorn of such powers, has a chance of becoming universal, of being accepted as a central organisation from which in time a system of real collective security might well emerge.

II. COMMONWEALTH PROPOSALS

1. In considering what proposals for the reform of the Covenant should be submitted by Australia, it is assumed, in the absence of any declared intention to the contrary, that the foreign policy of the Commonwealth Government will remain based on and harmonised with the collective system of the League of Nations.

The continued acceptance of League principles preserves the maintenance of Empire unity, provided some practical way is found of making the Covenant more effective to meet ever-changing political and economic conditions.

In fact, there seem at present no possible alternatives in sight to the League system as a foundation of foreign policy.

The only alternatives are power politics, with their balance of power system of diplomacy and a policy of isolation. Beyond stating that they have been found unworkable in practice under modern conditions and do not prevent States from being drawn into war, it is not necessary to traverse the objections to the adoption of either of these alternatives.

2. (a) The question then is, what practical suggestions can the Commonwealth advance in the light of its own experience and position in making the Covenant more effective.

(b) Obviously, the focal point of League reform is Article 16, with its purpose of maintaining peace through the coercive action of sanctions when other provisions of the Covenant have failed to effect a settlement. It provides that in the event of a resort to war in violation of Articles 12, 13 or 15, States Members are bound to apply immediately and automatically certain sanctions severing financial, economic and personal intercourse with the declared Covenant-breaking State. Article 16 also provides for military sanctions, which, however, are permissive and not mandatory in character, as it is the duty of the Council to recommend only to States Members what effective armed forces shall be contributed to protect the Covenant.

(c) The experience of the Italo-Abyssinian dispute has shown certain defects in the application of Article 16, but there are weighty reasons for maintaining its provisions in some form, for: -

(i) It is the only guarantee of active support from other States, in the event of any State being the victim of aggression.

(ii) Its elimination would estrange many small States, who would probably leave the League and gravitate towards the strongest power in their region. The League would then have value for consultative purposes only.

(iii) It forms a reasonable basis for regional agreements within the framework of the League.

(iv) Its existence enables the British Commonwealth to exercise belligerent rights at sea in a much more effective manner than could be the case under the rules of belligerency and neutrality.

For example, when legitimate pressure was being exerted against an aggressor by virtue of Article 16 difficulties with the United States would be obviated provided the United States agreed that the League action was to restrain a declared aggressor.

(d) Some modification of Article 16, however, is necessary to prevent States being automatically obliged to take coercive measures which may be so ineffective or dangerous as may commit their peoples to war, which may conflict with vital national interests, or, alternatively, may relate to a dispute in which the State has no immediate interest.

A practical proposal, and one which might be generally acceptable, would be to retain the mandatory provisions of Article 16, for the automatic application of financial and economic sanctions to a declared aggressor amounting to- (i) Prohibition of export of arms and munitions of war of all descriptions.

(ii) Prohibition of export of raw materials used for military operations and manufacture of war material, including metals and oil.

(iii) Refusal of all loans and credits facilities.

(iv) Prohibition of all imports from the aggressor State.

(e) The obligation to render military assistance would arise only in respect of definite agreements by virtue of which the parties in regions where their national interests are directly involved agree to render mutual assistance in the event of one or more of them being attacked by an aggressor. States, and especially European States, would be invited to enter such regional agreements within the framework of the League and subject to the spirit and provisions of the Covenant. For example, present indications are that Great Britain would not enter into any further commitment beyond the region covered by the Locarno Treaty. In this respect, there would be no obligation entered into by Australia.

So far as the Commonwealth is concerned, the Pacific is the area in which we are vitally concerned for the maintenance of peace.

With Japan and the United States outside the League, a regional agreement of the particular kind contemplated would be unacceptable, but the promotion of a regional understanding and pact of non-aggression in the spirit of the League undertakings for Pacific countries might reasonably be accepted as an objective of Australian foreign policy.

(f) In respect of the automatic application of the mandatory obligation, it is felt that an attempt should be made to obviate some of the difficulties which were encountered during the Abyssinian dispute, and which are bound to arise in any future application of Article 16. It is evident that in a democracy there will be objections by the Government of the day having to implement a national obligation if it has had no say in its acceptance.

There are various methods by which this might be achieved:-

(i) by incorporating into the Covenant, No. 4 of the interpretative resolutions (Annex A) of the 1921 Assembly which were to constitute rules for guidance, mainly procedural in character as to how the obligations of States under Article 16 were to be implemented. These were actually followed in the Italo-

Abyssinian dispute-

No. 4-'It is the duty of each Member of the League to decide for itself whether a breach of the Covenant has been committed. The fulfilment of their duties under Article 16 is required from Members of the League by the express terms of the Covenant, and they cannot neglect them without breach of their Treaty obligations.'

(ii) Another method of preserving the sovereignty of a democratic State and also of obviating the difficulties confronting many States in having to implement a sanction in a matter in which they have no direct interest would be some provision in Article 16 to prevent a State from being automatically committed to apply such sanctions without the consent of its Government. This object could be achieved by some provision to the effect that 'no State shall be committed to the application of sanctions until it shall have obtained the consent of its Government or Parliament as the case may be.'

(g) Another and more drastic method of amendment of Article 16 would be to render all sanctions (financial and economic, as well as military) permissive instead of mandatory. This would raise serious consequences and would so weaken the coercive provisions of the Covenant that it probably would not meet with acceptance by the smaller Powers. At the same time it would remove certain objections to Article 16 in its present form whereby the opinion of the Council can virtually commit a State, without that State having had an opportunity of indicating its opinion. Moreover, it would remove many of the objections some countries, (e.g. the United States) have against entering the League and might form the basis of a new conception of obligation which would in time bring about universality.

(h) Incidentally it is to be noted that the French Government is inclined to the view that the best way to reform the Covenant is by further interpretative resolutions. In the light of experience, reform by such method should be resisted.

(i) In addition to its interpretative resolutions the 1921 Assembly also, after exhaustive consideration by a special committee, adopted certain amendments to Article 16 (vide underlined parts in Annex B). Of these amendments, paragraphs 2, 3 and 4, although ratified by some 30 nations including Australia and all the other Members of the British Commonwealth, except the Irish Free State, are not yet in force for the reason that they have not fully received the ratifications of all the States represented on the Council and a majority of those represented in the Assembly. The 1921 amendment of paragraph 1 was further amended in 1924 as shown in Annex A. This has not yet been ratified by Australia.

The objects of these amendments were briefly: (a) to extend the prohibition of intercourse with the 'nationals of the Covenant- breaking State', to 'persons resident within the territory of the Covenant-breaking State'; (b) to exclude the votes of the parties to the dispute; and (c) to empower the Council to postpone the application of sanctions by particular States in certain circumstances. These amendments are set out in Annex B.

3. (a) In addition to the main proposal as set out above in relation to

Article 16 the following supplementary proposals are advanced:

Article 10 reads:-

'The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.'

The precise obligations involved by Article 10 have been the subject of discussion for years. As it stands there is a conflict with the idea of military assistance by virtue of regional agreements only, as there is an obligation for every member, wherever situated, if attacked by an aggressor.

In 1923, the United Kingdom and the Dominions, together with most other States Members voted for the undermentioned resolutions, with only one State dissenting (i.e. Persia). It is felt that Article 10 should be modified by the confirmation of resolutions on the previous lines, or even the adoption of other provisions on more liberal terms:-

'The Assembly, desirous of defining the scope of the obligations contained in Article 10 of the Covenant so far as regards the points raised by the Canadian delegation, adopts the following resolution:-

"It is in conformity with the spirit of Article 10 that, in the event of the Council considering it to be its duty to recommend the application of military measures in consequence of an aggression, or danger of aggression, the Council shall be bound to take account, more particularly, of the geographical situation and of the special conditions of each State.

It is for the constitutional authorities of each member to decide, in reference to the obligation of preserving the independence and the integrity of the territory of members, in what degree the member is bound to assure the execution of this obligation by employment of its military forces.

The recommendation made by the Council shall be regarded as being of the highest importance, and shall be taken into consideration by all the members of the League with the desire to execute their engagements in good faith."'

(b) Improvement in the working of Article 11 should be made, and this involves a consequential amendment to Article 5. As Article 11 stands at present, action by the Council can be blocked by the votes of the States which are parties to the dispute or by the vote of a State contemplating aggression. This was the reason why the Co-ordination Committee was set up to implement the sanctions against Italy.

Article 11 declares any war or threat of war between members or non-members to be a matter of concern to the whole League and lays down that 'the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations'. The Article is subject to the unanimity rule. Article 11 as it stands at present comes under the ban of the French. In their declarations of policy on 23rd June M. Blum and M. Delbos [2] said: 'The prevention of aggression by Article 11 of the Covenant is at present made impossible by the principle of unanimity. It is ridiculous that guilty parties can stop preventive action'.

This view is agreed with and Article 5(1) might therefore be amended to make it clear that dissentient votes of the parties to a dispute shall not, either in the Council or the Assembly, be regarded as affecting the requirements of unanimity.

Article 19

4. The claim for colonial outlets has become a vital international issue, and the demands of Germany have now been followed by similar claims from Poland and Czechoslovakia. Whatever may be the attitude of States Members to such claims the question will have to be faced, and this involves the consideration of Article 19.

This Article provides that the Assembly may from time to time advise the reconsideration by Members of the League of Treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world.

In a dynamic world with rapidly changing conditions, this article is too rigid, and favours unduly those States whose main object is the maintenance of the status quo, especially that of the Treaties of Versailles. This might be overcome by making Article 19 mandatory instead of permissive, and by substituting for the vague phrase 'from time to time' some definite period such as 'every two years' and providing for some method of revision whereby claims for revision could, after their consideration has been approved by the Council or Assembly, be referred to a Committee for investigation and report. Such a provision might well act as a valuable safety valve.

5. Finally, the relations between the Covenant and the Treaty of Versailles demand consideration. If the League is to become universal, and to act as an instrument for the preservation of future peace, rather than be linked to a period of past history which directly concerned only a certain number of States Members, then the Covenant should be divorced from the Treaty of Versailles.

For example, Germany's main objections to the League Covenant have been based on:

(a) the fact that it is an instrument for enforcing the Treaty of Versailles.

(b) the fact that it perpetuates Germany's inferior status.

Germany would, therefore, like: (c) complete severance of the Covenant from the Treaty of Versailles. (At present it forms Part 1 of all the post-1918 Treaties of Peace, except Lausanne).

This would be comparatively simple and, it is submitted, is now desirable. It would require an amendment of the Preamble and one or two minor alterations in the body of the Covenant-such as omission of reference to the Principal Allied and Associated Powers in Article 4, and of the reference to 'the terms of the present Treaty' in Article 5, and to Article 22 relating to territories lost as a consequence of the late war. Although this physical severance would be easy it might involve something morethe cessation by the League of certain functions imposed on it by the Peace Treaty.

The question whether we can afford to let the Covenant be severed from the Treaty is of some importance. The functions which it imposes on the League are, however, probably less numerous and important to-day than when they were first allotted. Such as remain could probably be transferred to some extra-League body.

6. Other articles such as Article 7, relating to disarmament and Article 17 relating to a dispute between a State Member and non- State Member have been carefully examined, but it is felt that no practical purpose would be served by suggesting any amendments.

7. The above proposals for revision can, therefore, be summarised as:-

(i) Certain financial and economic obligations under Article 16 to be automatic in case of a declared aggressor, provided a State member is not denied the opportunity of deciding for itself on the aggression. An alternative proposal is also advanced for making the financial and economic sanctions permissive. Any military obligation, whether permissive or mandatory, to be imposed by virtue of regional agreements only.

(ii) Article 10 to be modified by the adoption of the 1923 resolutions.

(iii) Votes of parties to a dispute not to affect the rule of unanimity.

(iv) Article 19 relating to revision of treaties to be amended to provide for effective reconsideration.

(v) The Covenant to be separated from the Treaty of Versailles.

1 This memorandum was originally prepared by the Department of External Affairs for a Cabinet sub-committee on reform of the Covenant of the League of Nations, which met on 11 September 1936.

It was used unaltered as a brief by the Australian delegation to the 1937 Imperial Conference.

2 Leon Blum, French Prime Minister, and Yvon Delbos, French Foreign Minister.

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