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.

[AA: CP 4/2, BUNDLE 2, ITEM 35]