David Hunter Miller

“ With the principles of compulsory arbitration I am wholly in accord; with the principle that outlawry of war should follow as the necessary and natural consequence of the substitution of a reign of law for a reign of force I quite agree; and that some tribunal should determine, if need arise, that the agreement has been broken and that there is an "outlaw," is a natural consequence of those principles; and that there may be defence against aggression, if it comes, almost no one will deny. But there, I think, we must stop so far as present agreement is concerned. ”

“ The main principles of the Protocol are clear, as are the detailed provisions.
Our purpose was to make war impossible, to kill it, to annihilate it. To do this, we had to create a system for the pacific settlement of all disputes which might arise. In other words, it meant the creation of a system of arbitration from which no international dispute, whether legal or political, could escape. The plan drawn up leaves no loophole; it prohibits wars of every description and lays down that all disputes shall be settled by pacific means. ”

“ A nation which accepted arbitration had a right to security. "Justice without might is impotent. Might without justice is tyranny." In conclusion: "We stand by the Covenant, but we wish to make it a living Covenant. We simply claim for each nation the rights conferred upon it by the Covenant, no more and no less." ”

“ If there is a binding decision by a tribunal that a dispute arises out of a domestic question, surely a complaining State, under the principles of the Protocol, is bound not to go to war, because it is legally wrong in its claim and has been so adjudged. Just why a State going to war under such circumstances should be presumed to be and be an aggressor if it goes to war before a discussion of the matter subsequent to the decision and not be presumed to be an aggressor but merely be an aggressor, if it goes to war after such discussion, is not logically to be explained. ”

“ What really ought to be done in studying any proposal such as the Protocol of Geneva, is to realize, if possible, the ultimate purpose of the document and to visualize, so far as we can, what would happen if it came into force, not so much what might happen under a particular phrase, but how the international relations of the world would proceed if the whole agreement were a reality. ”

“ After all, that was the fundamental idea of Article 15 of the Covenant, that the Council of the League should lay hold of the dispute, at least to the extent of preventing war from arising out of it. The theory of the Protocol is that every kind of international dispute should be settled either by a Court or by arbitration, that the functions of the Council are those of mediation and conciliation and that the Council is never to consider the merits of the dispute unless the parties thereto at the time of the dispute unanimously wish such consideration. ”

“ All that the Covenant or the Protocol of Geneva attempts to do about the status quo is to say that frontiers shall not be changed as a result of aggression. Indeed, the Protocol [9] protects even an aggressor against loss of territory or of independence as a penalty for its aggression; discussion, leading up perhaps to peaceful agreement but to nothing else, is permitted by Articles 11 and 19 of the Covenant, but that is all. ”

“ That any State may, if it chooses, go to the defence of another against an adjudged aggressor I would concede; but that all States can be or should be now required to sign an agreement so to go to such defence, I deny. In the present state of world opinion and when its own direct interests are not involved, any free people can well say that it will not or ought not to sign such an undertaking.
So I say that, while arbitration may be agreed to in advance {112} and outlawry of war may be agreed to in advance, sanctions and assistance in defence must be voluntary. ”

“ These reasons led us to fill in the gaps in the Covenant and to define the sanctions in such a way that no possible means could be found of evading them, and that there should be a sound and definite basis for the feeling of security.
Finally, the Conference for the Reduction of Armaments is indissolubly bound up with this whole system: there can be no arbitration or security without disarmament, nor can there be disarmament without arbitration and security. ”

“ The preamble to the Protocol asserts that a war of aggression is an international crime. I have discussed above [1] the agreement of the parties to the Protocol not to resort to war except in defence against aggression or in aid of defence against aggression or perhaps in execution of a judicial decision or arbitral award. This is the general covenant of Article 2 of the Protocol. It is this resort to war, contrary to the terms of the Protocol, which is the chief breach of the Protocol against which its chief Sanctions are ordered. ”

“ It is impossible to admit that the very existence of a nation should be subject to such a hazard. It is not sufficient to point out that {188} the Council would be bound to declare the existence of aggression in an obvious case and that it could not fail to carry out its duty. The duty would be a duty without a sanction and if by any chance the Council were not to do its duty, the State attacked would be deprived of all guarantees.
But it would also be dangerous to rely on a majority vote of the Council. ”

“ Here, I think it is fair to make a certain distinction regarding the causes internationally of a given status quo at any particular time and of the existing situation in particular. These causes are two, generally speaking—agreement and war. The instances in modern history of changes in frontiers reached by free agreement are innumerable. I do not see how any one who recognizes the existing state system can object to them or believe that force should be used to change them. ”

“ Thus, after five years' hard work, we have decided to propose to the Members of the League the present system of arbitration, security and reduction of armaments—a system which we regard as being complete and sound.
That is the position with which the Fifth Assembly has to deal to-day. The desire to arrive at a successful issue is unanimous. A great number of the decisions adopted in the past years have met with general approval. There has arisen a thoroughly clear appreciation of the undoubted gaps which have to be filled and of the reasonable apprehensions which have to be dissipated. ”

“ We preferred, however, to recognise the position frankly by retaining the expression "resort to war" which is used in the Covenant. If we said "force" instead of "war," we should not be altering the facts in any way. Moreover, the confession that war is still possible in specific cases has a certain value, because the term describes a definite and well-understood situation, whereas the expression "resort to force" would be liable to be misunderstood, and also because it emphasises the value of the sanctions at the disposal of the community of States bound by the Protocol. ”

“ A mere obligation not to resort to war, without more, would almost imply that disputes between the parties to the obligation should {15} find some other method of settlement. For if some other method could not be found, feelings due to the continuance of the dispute might well arouse such passions in one country or another as to sweep away the obligation for peace. The two questions of the ending of war and the settlement of disputes between States are not only logically but realistically very closely related. ”

“ So we come back to the situation that a presumption as to the aggressor can exist only if certain facts exist; and that the existence of one or more of these facts may very likely be in doubt or dispute and that, with one exception, there is no procedure for determining such questions of fact so as to be able to say with certainty that the presumption does exist. ”

“ Article 10 of the Protocol decrees sanctions against any State resorting to war without availing itself or in defiance of, the procedure of pacific settlement provided in the Covenant as amplified by the Protocol itself. The amplification of that procedure to cover all cases, so as to remove all excuse for resort to war, has enabled the framers of the Protocol to give a more exact definition of aggression, and to make that definition more certain and more automatic. ”

“ It may be a better thing to live in Manitoba than in North Dakota, or to live in North Dakota than in Manitoba; but worse than almost any conceivable place of residence would be a status which might change in the future, so that one could not tell say five years ahead in what country he was going to live. A frontier is not merely a line drawn on a map or demarcated on the ground; a frontier means a nexus of customs, of laws, of traditions and of innumerable other things that directly affect the daily life and conduct of every inhabitant. ”

“ In no case is any State signatory of the Protocol entitled to undertake on its own sole initiative an offensive war against another signatory State or against any non-signatory State which accepts all the obligations assumed by the signatories under the Protocol.
The prohibition affects only aggressive war. It does not, of course, extend to defensive war. The right of legitimate self-defence continues, as it must, to be respected. The State attacked retains complete liberty to resist by all means in its power any acts of aggression of which it may be the victim. ”

“ Compulsory arbitration and outlawry of war are untried ideas, and we cannot say now, under all circumstances, what should be done in the course of their working, if they are put to work; much less can Nations now bind themselves as to a definite and complete course of action under all possible and varying future circumstances. That such a system of concerted action against aggression as is proposed by the Protocol of Geneva may perhaps in time be worked out along with the growth and development of the ideas of outlawry of {110} war and of arbitration, may be admitted. ”

“ ARTICLE 5.—In the absence of a state of war, measures of force by land, by sea or in the air taken by one State against another and not taken for the purpose of defense against aggression or for the protection of human life shall be deemed to be acts of aggression. ”

“ That a system of law should be built up governing the international relations of the States of the world, by which their differences should be adjusted by the orderly processes of legality, excluding as a method of adjustment the chaos of war, may be admitted. ”

“ The Southern frontier of the United States, for part of its extent is the direct result of a war between the United States and Mexico, a war which by many, and I am among them, is considered to have been a war of aggression. Now no one but a madman would believe that there ought to be a change in the status quo of the communities now existing in New Mexico, which in 1850 was uninhabited country, by delivering them over to Mexican rule. ”

“ It is true that in the resolutions about the economic weapon in the Assembly of 1921, it was recognized that from practical points of view the application of the economic pressure cannot be made equally by all countries. But undoubtedly, subject to the practical difficulties mentioned, a definite obligation exists in Article 16 of the Covenant to impose economic sanctions against the aggressor, and, as I said, in my judgment this obligation is not changed by the Protocol; but it can now become an operative obligation only if and when the Council says so. ”

“ The Council would formulate an armistice and in the absence of an open defiance by one State, or possibly by a group of States, of all the others, the armistice would introduce a new situation, a situation in which hostilities were not going on; and human experience shows that, given an armistice, the recommencement of hostilities on the old grounds is a real impossibility. ”

“ It is for this reason that we have not hesitated to speak of the exceptional authorisation of war. It has been proposed that the word "force" should be used in order to avoid any mention of "war"—in order to spare the public that disappointment which it might feel when it found that, notwithstanding the solemn condemnation of war, war was still authorised in exceptional cases. ”

“ It does not rest solely upon the loyalty and good faith of the parties. To the moral and legal force of an ordinary arbitration is added the actual force derived from the international organisation of which the kind of arbitration in question forms one of the principal elements; the absence of a sanction which has impeded the development of compulsory arbitration is done away with under our system. ”