Memorandum on the prohibition to recourse to war in the Covenant of the League of Nations

Introduction: In 1919, the world witnessed one of its most destructive wars, leading to an estimated 16 million deaths and 20 million wounded. When the belligerent parties met in Paris to sign the Treaty of Versailles, they not only ended the First World War, but also envisioned an international organization, the League of Nations, aimed at preventing such atrocities from happening in the future. As described by scholars, The covenant (of the League of Nations) was the first serious attempt to place general legal constraints upon resort to war.1 The covenant did not only express, more or less clearly, the goal to prohibit recourse to war, it also created a set of procedures, enforced through international law, meant to prevent and resolve upcoming conflicts. Through the covenant, war was not considered a private matter between the belligerent parties anymore, but rather an issue of collective security. In addition, it established a set of sanctions, meant to deter countries from entering in military conflicts with each other in violation to the covenant. However, as the Second World War reminds us, the system established by the League had shortcomings and loopholes, which authorized its members to resort to war, even within the covenant. This memorandum will first examine the goals set by the covenant to prohibit states from resorting to war to settle conflicts. It will then describe the mechanisms of conflict prevention and conflict resolution established through its articles. Finally, it will examine some of the shortcomings and loopholes that make the prevention of future wars an attempt rather than a success. The Goal to Prohibit Recourse to War in the Covenant: The League of Nations initial goals of promoting peace and prohibiting recourse to war are stated within its preamble. The high contracting parties, in order to promote international co-operation and to achieve international peace and security by the acceptance of the

Lowe, Vaughan (2007) International Law, Oxford University Press, p.268.

obligations not to resort to war () agree to this covenant of the League of Nations.2 In addition, the preamble stresses the importance of international law as the framework ruling states relation with each other, which will be the basis for the procedures to resolve conflicts and to prohibit recourse to war. In article 8, the covenant reiterates its goal as the maintenance of peace3 Article 10 is the main element in the covenant expressing the goal and the duty not to resort to war. However, instead of clearly stating a prohibition of states to use military force, it declares that member states have an obligation to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. 4 The second part of article 10 enlarges the notion of aggression, by adding any threat or danger of such aggression.5 Moreover, article 10 introduces the notion of collective security since third parties to a conflict, the Council which consists of Representatives of the Principal Allied and Associated Powers6 and of four member states, have to provide recommendations on how to enforce and fulfill the obligation. The notion of collective security is reinforced by article 11 which states that Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League. 7 This extends the jurisdiction of the League by including conflicts that do not even affect member states, providing a de facto global jurisdiction to the League. In addition, article 11 reaffirms the Leagues goal of safeguarding the peace of nations and describes its large scope of action to enforce international peace by taking any action that may be deemed wise and effectual.8 By establishing the concept of collective security, all member states become involved in a conflict, and, as such, it should prevent minor regional conflicts from expanding into international wars. Article 16, which establishes the regime of sanctions, reinforces the concept of collective security by stating that any member state resorting to war in disregard of its covenants () shall ipso facto be deemed to have committed an act of war against all other Members of the League. 9 Thus, the concept of collective security and its application

2 3

League of Nations, Covenant, Preamble. League of Nations, Covenant, Article 8 (1). 4 League of Nations, Covenant, Article 10. 5 Idem 6 League of Nations, Covenant, Article 4 (1). 7 League of Nations, Covenant, Article 11(1). 8 idem 9 League of Nations, Covenant, Article 16(1).

leads to a regime of sanctions with mechanisms and procedures meant to prevent, resolve and, in the worst case scenario, sanction conflicts and belligerent states. Mechanism to Prevent, Resolve and Sanction Conflicts: Through article 8, the covenant aims to prohibit recourse to military force by tackling one of its causes, arms race and military buildup. As contemporaries of World War I, the covenants authors understood the role of military buildup in causing conflicts. World War I historian, David Stevenson, explains that it was an essential element () that led to disaster (World War I).10 Consequently, article 8 aims at reducing member states national armaments to the lowest point consistent with national safety11 and at providing a framework in which states can interchange full and frank information as to the scale of their armaments.12 The scale of armament reduction is decided by the Council and adopted by the states respective governments. Member states will also be prohibited to increase their level of armaments without the agreement of the Council, thus putting the size of national armies under the control of the League and its Council. Articles 11 to 15 establish a set of conflict resolution mechanisms, through which member states have to submit any dispute likely to lead to a rupture () to arbitration or judicial settlement or to enquiry by the Council.13This sets up pacific venues to resolve conflicts either through international law, with arbitration or judicial settlement, or through the decision and the reports of the Council. In addition, article 12 creates a new and innovative concept which is known as the cooling off period.14 It is a three months period after the award by the arbitrators or the report by the council during which parties to the dispute agree in no case to resort to war. 15This period is meant for tensions to decrease and for pacific and diplomatic means to solve the conflict. Article 15describes in detail the procedures of conflict resolution and decision-making process of the Council. Member states agree to submit any dispute, which has not been brought to arbitration or judicial settlement, to the Council, which then decides by unanimous or majority vote to make and publish a report containing a statement of the facts of the

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Stevenson, David (1996), Armaments and the Coming of War: Europe, 1904-1914, Oxford University Press, p. 412. 11 League of Nations, Covenant, Article 8(1). 12 League of Nations, Covenant, Article 8(6). 13 League of Nations, Covenant, Article 12. 14 Franck, Thomas (2002), Recourse to Force: State Action Against Threats and Armed Attacks, Cambridge University Press, p. 10. 15 League of Nations, Covenant, Article 12.

dispute and the recommendations which are deemed just and proper.16 If the report is unanimously agreed upon, excluding the disputing parties, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report.17 Hence, if the report is unanimously agreed upon, article 15 (6) prohibits member states the recourse to war against the complying party. Consequently, the covenant establishes two obligations not to resort to war, the three month cooling-off period, and against a complying party when the Councils report was agreed upon unanimously. When member states violate their obligations, article 16 establishes a set of sanctions against them that must be applied by all other member states. These sanctions are the severance of all trade or financial relations, () and the prevention of all financial, commercial, or personal intercourse. 18 In addition, the Council can recommend to members states effective military means in order to protect the covenants of the League.19 Member states are also bound to economically and financially support each other when a covenantbreaking state is under sanctions. Article 17 extends the jurisdiction of the League to non member states by inviting the parties of a dispute to join the League. According to article 17 (3), if a state refuses to join because it has resorted to war against a member state, article 16 is applicable, and the belligerent non member state has committed an act of war against all member state. Even if both belligerent states refuse to join the League, article 17(4) allows the Council to take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute,20 thus being able to take measures against states which are not even signatories of the covenant. Articles 11 through 17 provide the covenants conflict resolution and enforcement mechanism in order to fulfill its goal of promoting international peace. As discussed further, the covenant has important loopholes that prevent it from completely prohibiting recourse to military force and war. However, through its conflict resolution mechanism that explicit the obligations not to resort to war and the sanctions against covenant breaching states, the text has the potential to control and limit the recourse to war.

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League of Nations, Covenant, Article 15(4). League of Nations, Covenant, Article 15(6). 18 League of Nations, covenant, Article 16(1). 19 League of Nations, Covenant, Article 16(2). 20 League of Nations, Covenant, Article 17(4).

Loopholes and Shortcomings: The two main loopholes of the covenant are in article 15, especially paragraph 7 and 8. Paragraph 7 states that if the councils report is not unanimously agreed upon, the member states have the right to take such action as they shall consider necessary for the maintenance of right and justice.21Paragraph 8 states that conflicts that are within domestic jurisdiction of a disputing party are not under the jurisdiction of the League. Moreover, Article 12, which establishes the three months cooling period allows consequently for legal recourse to war after that period if the Councils report was not unanimously agreed upon. Through these paragraphs and articles, the covenant effectively reasserts the lawfulness of states right to resort to war in certain condition, thus stopping short of completely prohibiting to recourse to war, but rather controlling its use. In addition, certain wording throughout the covenants can lead to loopholes. For example, the text uses the expression resort to war, without defining war. Consequently any use of military force short of a war can be considered as outside the jurisdiction and the obligations of the covenant. Moreover, article 10 uses the word aggression, without defining it, which can also lead to some loopholes. This article also mentions aggressions against territorial integrity and existing political independence,22 thus limiting the prohibition to wars of occupation and territory invasion, and potentially excluding wars of economic imperialism, in which a state does not challenge the regime or the territorial integrity but rather aims to gain economic concessions. Conclusion: Despite the establishment of new and innovative conflict resolution mechanisms, the League of Nations covenant falls short from prohibiting member states from recourse to war. Rather the covenant controls it and creates a framework with pacific venues to resolve conflicts, while allowing for lawful resorts to war if no settlements were unanimously agreed upon. Throughout the inter war period other attempts to prohibit recourse to military force will take place, most famously the Kellogg- Briand Pact for Renunciation War in which the signing parties accept to renounce to the recourse of war. Unfortunately, as history and especially the Second World War shows, these attempts were mostly inefficient and were not able to establish international peace.

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League of Nations, Covenant, Article 15(7). League of Nations, Covenant Article 10.