§ LORD ASKWITH rose to ask His Majesty's Government whether their attention had been called to the Budapest Conference of the International Law Association held in September, 1934, and the articles of interpretation of the Briand-Kellogg Pact of Paris unanimously adopted by the conference, and whether they consider that these articles of interpretation correctly represent the effect of the Briand-Kellogg Pact on International Law and the obligations of this country; and to move for Papers.
The noble Lord said: My Lords, the Question and Motion that I have on the Paper relate to the Briand-Kellogg Pact, a famous document which was signed in 1928, and the interpretation that has been given to it by a conference of international lawyers, which met at Budapest last year, and which, although there was some difference of opinion as to various clauses of the Draft Convention, arrived at a unanimous decision upon the interpretation which they finally promulgated. The noble Lord who will reply to my Question and Motion should, I think, have little difficulty in doing so, because I notice that the Secretary of State for Foreign Affairs, the first time that a document was sent formally to him upon the matter, replied in these words:
The exact fulfilment of treaty engagements is a matter which affects the national honour; precision as to the scope of such engagements is, therefore, of importance. Each of the suggestions made by the French Government has been carefully considered from this point of view.
Therefore the Foreign Office, before engaging this country to the Pact, evidently had given it the most careful consideration.
§ The point to which this Question is directed is as to what is the scope of these engagements. Is the Pact a vague declaration of good will, or is it a real advance towards peace—" a new ideal of nations, an era in world history," as it was proclaimed at the time of the signa- 1008 ture. If so, is it a change in the aspect of International Law and an alteration of the policy of the sixty-four nations who have adhered to it and who have accepted this Pact? If it is a proclamation of peace and a change of law, how is the law changed, and what are the implications attached to the change, especially in any action in which this country is implicated in the exact fulfilment of its engagements? Or, as a noble Viscount who does not any longer sit on this side of the House, Lord Snowden, wrote in one of the Sunday papers a few weeks ago, is it "a scrap of paper"? "The Kellogg Pact is a mere scrap of paper," he said. I regret much that Lord Snowden, by doctor's orders, is prevented from attending to-day, although he wrote to me a most kind letter in which he said he would gladly have taken part in the debate otherwise.
§ Now I recognise that a treaty of this kind cannot be construed in the same way as you would construe a contract for a cargo of wheat, nor I think in the same way as some of the innumerable contracts which have been registered at Geneva, generally upon legal questions, might be construed. It stands rather in an order of its own, with the Covenant of the League of Nations and the Treaty of Locarno; indeed, the Permanent Court of International Justice has pointed out that in the interpretation of treaties of this kind it is necessary to consider the social, economic and political circumstances under which they are in being. Therefore it is possible that the reply that is made to me will necessarily be somewhat indefinite as to the exact interpretation of this Pact, and will not dot the i's and cross the t's too much. But I would submit that the Pact must mean something. That is what these gentlemen at Budapest have considered, and upon which they have made a pronouncement. Many of your Lordships are well acquainted with the Kellogg Pact, but others are not so well circumstanced, and some may be inclined to look upon it in the same way that the old branch of Plantagenet Kings alluded to "the liberties and rights being given as in the time of our grandfather," without going into an inquiry as to what those rights and liberties might be.
May I therefore give some little history of this matter It was on June 20, 1927,
that M. Briand informally sent the terms of a Pact to Mr. Kellogg in the United States. The terms that he sent for signature were those that have been adopted by all these nations, with one addition. The preamble describes how deeply sensible of their solemn duty to promote the welfare of mankind these nations were, and goes on:
persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made, to the end that the peaceful and friendly relations now existing; between their peoples may be perpetuated;
Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process" …
and then comes the addition put in by America—
and that any signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty.
It goes on to express the hope that their peoples will be brought
within the scope of its beneficent provisions, thus uniting the civilised nations of the world in a common renunciation of war as an instrument of their national policy,
and then states that the Powers have decided to conclude a Treaty.
§ That Treaty is comprised in three paragraphs only. The third paragraph is a paragraph giving the form of ratification. The first two paragraphs are:
§ ARTICLE 1.
§ "The high contracting parties solemnly declare, in the name of their respective peoples, that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another."
§ ARTICLE 2.
§ "The high contracting parties agree that the settlement or solution of all disputes or conflicts, of whatever nature or whatever origin they may be, winch may arise among them, shall never be sought except by pacific means."
§ It is on these simple paragraphs, the only change being in the introduction to the preamble, that the nations have come to an agreement.
§ There had been correspondence. It was six months before Mr. Kellogg replied. He then questioned the idea of a unilateral Pact between France and America only. He suggested that other nations ought to come France did not object to the other nations coming 1010 in, but they put in the word "aggressive" war, to which America objected. America took the line that an aggressive war was difficult to define, that it was not a provision which the United States considered would be of much advantage by itself, and that it would be better to put forward a simple Pact abolishing the institution of war. That was finally done, it being intimated by the French Ambassador to the Secretary of State that if one of the signatories should fail to keep its word the other signatories should be released from their agreement, and that the Pact would not deprive nations of the right of legitimate defence; further, that the Pact should not be substituted for, or take the place of, the Covenant of the League of Nations or the Locarno Agreement; and altogether that in that form there was a practical chance of its being adopted by other contracting Powers who might conic into it on its being put forward. These reservations appeared in a letter on March 30.
On April 13, the United States sent the proposed Pact to a number of nations—Great Britain, Germany, Italy and Japan—enclosing a draft. The nations replied in terms of a favourable character. The close of the German answer, which came first, was:
This new guarantee for the maintenance of peace must give a real impulse to the efforts for the carrying out of general disarmament. And further still, the renunciation of war must as a necessary complement enlarge the possibilities of settling in a peaceful way the existing and potential conflicts of national interests.
Italy replied on May 4, Great Britain on May 19. Sir Austen Chamberlain, in his reply, put in a further reservation which was not alluded to in any of the subsequent correspondence, except in his own last letter, in which he said that he understood it was agreed to, being looked upon as a matter of defence. He said that there were certain obligations resting on this country which we must keep. He also laid stress upon the importance of the Treaty of Locarno and of adhering to it. He spoke about the position to which I have already alluded. He mentioned that self-defence was an inalienable right, and in his reservation, his most important reservation, he mentioned that
there are certain regions of the world the welfare and integrity of which constitute a special and vital interest for our peace and safety,
that "interference with these regions cannot be suffered," and that "their protection against attack is to the British Empire a measure of self-defence." Japan replied that she took it to imply "the entire abolition of the institution of war," and "an era of permanent and universal peace." New Zealand, the Irish Free State, Canada, Australia, and South Africa all followed suit.
Therefore, it was heralded as a very important document by all States at that time, and the American Government replied, sweeping away some of the difficulties and mentioning the fact that, in their opinion, this Treaty would bring the world nearer to a practical fulfilment of peace than anything that had yet been accomplished. The reply ended up:
My Government is confident that the other nations of the world will, as soon as the Treaty comes into force, gladly adhere thereto, and that this simple procedure will bring mankind's age-long aspirations for universal peace nearer to practical fulfilment than ever before in the history of the world.
On receiving that document, Sir Austen Chamberlain repeated his reservation, mentioning that he considered it self-de-fence, and on August 27, 1928, when the document was signed, M. Briand made a remarkable speech at Paris. I do not wish to tie French statesmen down too much to the actual words he spoke, particularly when he must have been so glad and delighted that a suggestion made by him had apparently borne such fruit. He spoke of it As "the greatest collective deed born of peace," and proceeded:
It will be, I hope, no exaggeration to say that to-clay's event marks a new date in history-making… For the first time, on a comprehensive and absolute scale, a Treaty is truly devoted to the very establishment of peace initiating a new law and freed from all political contingencies. … For the first time in the face of the whole world through a solemn covenant involving the honour of great nations, all of which have behind them a heavy past of political conflict, war is renounced unreservedly as an instrument of national policy. … Branded with illegality, it is by mutual accord truly and regularly outlawed so that a culprit would incur the unconditional condemnation and probably the enmity of all its co-signatories. It is a direct blow to the institution of war, even to its very vitals.
He ended with an appeal of an emotional character:
And there is not one of the nations represented here but has shed the blood of her children on the battlefields of the last War. I propose that we should dedicate to the dead, to all the dead, of the Great War, the event which we are going to consecrate together by our signatures.
M. Briand was a very eloquent statesman and those are strong words. They were to a certain extent discounted by the severe criticism that came in shortly afterwards from the Soviet Government in words of pungent force. That Government alluded to the small reception that had been given to their efforts, first of all, for entire disarmament, secondly, for partial disarmament—efforts made at Geneva—and said that unless there was a limitation, the Briand-Kellogg Pact would remain a dead letter without real meaning. They thought it necessary to point out the insufficient definiteness and clearness in the first clause concerning the formula of the prohibition of war itself, this having the effect of permitting various and arbitrary interpretations. They referred to the reservation of the British Government, and said:
By virtue of this reservation the British Government reserves a freedom of action toward a series of regions which it does not even enumerate. If it means provinces already belonging to the British Empire or its Dominions, they are already included in the compact in which are foreseen cases of their being attacked, so that the reservation of the British Government regarding them must seem at least superfluous.
However, if other regions are meant, the participants of the compact are entitled to know exactly where the freedom of action of the British Government begins and where it ends. But the British Government … reserves the right to an arbitrary definition of what is considered an unfriendly act ' of interference,' justifying the commencement of military action on the part of the British Government.
Recognition of such a right of the British Government would mean justification of war and could be a contagious example …
In the last paragraph the note says:
Summarising what has been said above, one must state the absence from the compact of obligations concerning disarmaments, which is the only essential element of peace guarantee, the insufficiency and indefiniteness of tin formula itself for prohibition of war and the existence of several reservations having as their object beforehand the suspension of even any appearance of obligations towards the cause of peace.
These were the opinions that that Government gave upon the matter and upon that there came the question of what the matter (lid really mean. I would allude to some statements that were made upon it at the time. M. Briand himself later said: "La pain proclaimée, c'est bien, c'est bien, c'est beaucoup. Mais il faudra l' organiser." He did not treat it as final. Then, in 1932, the American Secretary of State, Mr. Stimson, made a very important pronouncement. He claimed on behalf of this Pact that
war between nations was renounced by the signatories of the Briand-Kellogg Treaty. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to he the principle around which the duties, the conduct and the tights of nations revolve. It is an illegal thing. Hereafter, -when two nations engage in armed conflict, either one or both of them most be wrongdoers—violators of this general treaty-law. We no longer draw a. circle about them and treat them with the punctiliousness of the duellist's code. Instead, we denounce them as lawbreakers. By that very act we made obsolete many legal precedents and have given the legal profession the task of re-examining many of the codes and treaties.
As to that last part that is exactly what this conference has been doing. The conference is one of International Law and is, I believe, sixty years old. It has contributed much in the past to the study of international Law. On this occasion it met at Budapest and was presided over by Professor Manley Hudson, Professor of International Law at Harvard University and editor of The American Journal of international Law. There were present several English lawyers, a Norwegian Judge, two or three Hungarians, delegates from Yugoslavia, Italy, Austria and Czechoslovakia and two or three from the United States. After debating for several days and, as I said, having some difference of opinion upon some of the points of the draft proposals, they came to a conclusion in which they said after bringing in a preliminary article which I need not read:
1. A signatory State cannot, by denunciation or non-observance of the Pact, release itself from its obligations there-under.
2. A signatory State which threatens to resort to armed force for the solution of an international dispute or conflict is guilty of a violation of the Pact.
3. A signatory State which aids a violating State thereby itself violates the Pact.
Then it goes on to state what may be done if the Pact is violated either by a threat to resort to armed force or by a signatory State aiding a violating State. They say that:
4. In the event of a violation of the Pact by a resort to armed force or war by one signatory State against another, any signatory State, not being a party to the original dispute, may, without thereby committing a breach of the Pact or of any rule of international Law do all or any of the following things:
5. The signatory States are not entitled to recognise as acquired de jure any territorial or other advantages acquired de facto by means of a violation of the Pact.
6. A violating State is liable to pay compensation for all damage caused by a violation of the Pact to any signatory State or to its nationals.
Then it goes on to save humanitarian obligations.
§ The question is, have these gentlemen gone too far? Are they right in saying that a State that threatens in this way violates the Pact and that anyone who assists it also violates the Pact? I cannot help thinking that they have gone too far, and that the Pact does not mean so much as they have put in this document. It may he that it was a most useful matter for them to discuss, but when they made the great claims that they did and declared that it would affect generations to come, I think that what they decided at Budapest was rather too much. It is not for me to interpret the Pact, but after studying it as far as I have been able, I cannot help thinking that the real importance of it was that it was a declaration to the whole world that the policy of war was not one that the nations would pursue; that for the first time it brought the United States into the general view of that position with the rest of the important nations of the world; that it 1015 was in a sense less than the Treaty of Locarno because it mentioned no sanctions and did not say what was to happen in that way, except that it gave rights to certain nations as against a belligerent violator.
§ It may be, and I think it is, very important that the laws of neutrality which existed in the nineteenth and in the eighteenth centuries should be revised and considered with the utmost care, to see what difference there may be when you have made war in certain circumstances illegal, instead of its being considered a legal right belonging to a sovereign State, to be waged either by the will of the Sovereign, if he was an autocrat, or by the will of Parliament, or the decision of any legislative body that might have the power to bind a country. That is the real importance of the Pact. It does not mention any sanctions, as I say. It does not mention any method of settling disputes such as by reference to the Arbitral Court at The Hague or the Permanent Court of International Justice. It does not hint at anything of that kind.
It may be, as has been suggested, that it is a useless document until proper machinery for dealing with non-legal disputes is established. But it may be noted that Mr. Stimson, who was Secretary of State in the United States after the Treaty had been in force for four years, said:
The Briand-Kellogg Pact provides for no sanction of force. It does not require any signatory to intervene with measures of force in case the Pact is violated. Instead, it rests upon the sanction of public opinion, which can be made one of the most potent sanctions of the world.
Surely that is the real effect of the Briand-Kellogg Pact—to interpret the will of the people to peace, to interpret the desire of all nations who adhere to it to co-operate with a view to peace, even though it is not being followed out apparently in some countries of the world. But once you have got that idea gradually gaining force, the Pact may become by the will of the people one of the most important documents of all those signed at the beginning of this century.
§ It is useless to prophesy, and I have no right to say what is the will of the people towards peace, but I can say that I have found in one serious international 1016 dispute and in scores, if not hundreds, of industrial disputes, that it is not the desire of the people as a whole to have war or to have disputes and a struggle to the death. They desire to live in peace. Anything that would bring the nations of the world to a better sense so that they should maintain peace—and I believe all Governments in Great Britain have been anxious towards that end—is an excellent thing; but it is not well to put into black and white obligations which could scarcely be fulfilled as a whole, and which might not be kept.. I am going to be followed, I believe, by my noble friend Lord Howard of Penrith, who will address your Lordships' House for the first time. He was Ambassador at Washington at the time the Kellogg Pact was signed and he may be able to throw some interesting light upon its meaning. I move for Papers in case there may be any documents in the Foreign Office which would throw further light on the meaning of the Pact, because if they could be published for the use of the nation as a whole, then the nation would not be likely to find itself bound by obligations it did not understand or faced by difficulties that it had not foreseen.
§ LORD HOWARD OF PENRITH
My Lords, I have never before dared to address your Lordships' House because I always felt that there must be many present who would be able to say all I had to say and say it much better. On this particular occasion I am afraid I shall be ploughing what one may call a lonely furrow, and my only consolation perhaps will be that I shall not detach anybody from the cause I am desirous to promote. I am very grateful to my noble friend Lord Askwith for the kind reference which he made to me in his speech. Although I confess that I do not entirely agree with his point of view with regard to the Kellogg Pact, I agree to this extent, that I have often felt that, perhaps owing to the very fact that it has no teeth in it, it is being relegated in public opinion to the limbo of forgotten and almost useless things.
I thank the noble Lord, Lord Askwith, very much for at any rate drawing attention to the articles of interpretation of the Kellogg Pact which were arrived at by the International Law Association at Budapest. It struck me at the time as most extraordinary that these articles of interpretation, which appear to me to be 1017 extremely important, should have been passed over by the Press almost entirely in silence. That is surely a sign that public opinion is not interested any longer in the Kellogg Pact, and does not believe in it as a living thing, and that if we are to make it a living thing we really have now to take some kind of action in order, as the American saying is, to "put teeth into it." The truth is, I think, that either the Briand-Kellogg Pact is going to play a most important part in world politics in the interests of peace, or it will finally remain what it is now, unfortunately, generally treated as being, a very Utopian pious opinion having no practical effect whatever.
I agree with Lord Askwith to the extent that I think two of the articles of interpretation certainly go well beyond the meaning of the Kellogg Pact. Those are the articles which declare that no signatory State can release itself from the obligations of the Pact, and that any signatory State which threatens to resort to armed force for the solution of any international dispute is thereby guilty of a violation of the Pact and should be dealt with accordingly. I do not understand either of these obligations to be inherent in the Pact as it stands, though therein probably lies, in my opinion, a part of its present weakness, which causes it to be generally regarded merely as a pious opinion and lacking in all force. Indeed, if I understand it aright, each signatory of the Pact is responsible only for himself and is under no obligation whatever to take any action against another who violates the Pact. On the other hand the words of the preamble to the effect that:Any Signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty,mean that other co-signatories would be at least at liberty to take not only measures of necessary self-defence, but also (if I may call it so) such police action as may be required to cause the violator to cease from his illegal acts.
That seems at any rate to be explicitly stated in the explanatory Note addressed by the Government of the United States to the British Government and the other Governments who were being asked to join the Pact at the time, on June 23, 1923, before the Pact was signed. Mr. Kellogg therein stated: 1018 Firstly, that there was nothing in the Pact to restrict or impair in any way the right of self-defence. Secondly, that there was no necessary inconsistency between the idea of an unqualified renunciation of war for national ends and the Covenant of the League of Nations which admitted of collective action to end a war. Thirdly, as to the Treaties of Locarno, Mr. Kellogg pointed out that if all the parties to the Locarno Treaties were under any positive obligation to go to war, such obligation would certainly not attach until one of the parties had resorted to war in violation of its solemn pledges thereunder. It was therefore obvious that if all the parties to the Locarno Treaties became parties to the multilateral anti-war treaty proposed by the United States of America, there would be a double assurance that the Locarno Treaties would not be violated by recourse to arms. Fourthly, Mr. Kellogg likewise did not consider that the multilateral anti-war treaty could conflict with already existing treaties of neutrality, since no signatory would be compelled by it to take sides against a country with whom he had a treaty of neutrality.
Fifthly, Mr. Kellogg pointed out that undoubtedly, as a matter of law, any violation of a multilateral anti-war treaty through resort to war by one party thereto, would automatically release the other party from their obligations towards the treaty-breaking State. That is to say, if I correctly grasp the meaning of this Note, that any signatory may, as Article 4 of the articles of interpretation correctly states, without committing a breach of the Pact or of any rule of International Law, either assist with armed forces the State attacked, supply that State with financial or material assistance including munitions of war, refuse to admit the exercise by that State of belligerent rights, or decline to observe towards the violator the duties prescribed by International Law for a neutral in relation to a belligerent. This article of the articles of interpretation seems, then, to me to be entirely consistent with Mr. Kellogg's explanatory Note of June 23, 1928, which was accepted fully at the time by all the Governments to which it was addressed, including His Majesty's Government.
1019 We may, I think, therefore fairly conclude that the other articles of interpretation, in stating that any signatory may take any of the actions mentioned, which are those of a belligerent and not of a neutral, against a violator of the Pact, is fairly interpreting the meaning attached to it by all its signatories. What, however, the Pact does not say, and this the Budapest articles also most properly do not say, is that such police action shall be taken against a violator of the Pact, nor does it prohibit—and this is in my opinion a great flaw in the whole Pact—the interference by co-signatories with such police action on the basis of previously accepted neutral rights in war. It is hardly necessary to point out that such interference with a State acting in accordance with the provisions of the Pact would be tantamount to taking sides with the violator of the Pact.
The sixth point in Mr. Kellogg's explanatory Note emphasises the desirability of the new anti-war treaty being as universal as possible. Although the last point does not come into the matters treated of in the Budapest articles, I may perhaps be allowed to say a few words on, the subject, for it is one of the most important and novel features of this Pact and gives it its special significance for the future. It can forthwith, just on account of its universality, be converted into a real genuine shield against war much more readily perhaps than any other international instrument, treaty, pact or covenant actually in existence. It is this which takes it in my opinion out of the category of mere pious opinions, provided it receives some necessary additions which may make of it a power for the maintenance of peace throughout the world, and of confidence in security, which is without doubt the most important single factor for world recovery to-day.
It is curious that wherever two or three are gathered to talk of armaments and disarmaments, of economic disturbances and economic recovery, or to talk of international relations or of internal conditions, they almost invariably come at last to discuss questions of security and of confidence in security, without which no genuine progress can possibly be made. Particularly so is this the case as regards negotiations and discussions about disarmament. It has always been the French thesis that confidence in security must 1020 precede any genuine scheme of armament reduction for which every country in Europe, without exception, is sighing. Quite early in the disarmament discussion M. Briand or M. Herriot, I forget which, produced the motto, "Arbitration, Security, Disarmament." All nations hastened to make arbitration treaties with each other and deposited them at Geneva, where they lie. Did these produce confidence in security and promote disarmament? I fear not. Then we had Locarno, which imposed in certain circumstances the most serious obligations upon us, full belligerent obligations which the Dominions wisely declined to share and which may, therefore, easily cleave the British Empire from crown to heel, for we have yet to see a political Commonwealth that can be at once belligerent and neutral as regards another State. Yet has that produced such confidence in security that general reduction of armaments is in sight? Again I fear not. And now we have discussions about new Pacts for extending Locarno so to speak into the air, and into Eastern Europe, and into the Pacific. Will these all give us that confidence in security which is really the inescapable basis of disarmament and recovery? I rather doubt it.
It is difficult after all these set-backs not to become sceptical. The necessity of universality, which is the special feature of the Kellogg Pact, becomes with every new effort to avoid it more and more evident, while the prospect of attaining, by regional pacts alone, this confidence seems to recede ever more and more. I therefore venture must diffidently to submit to the consideration—and I hope the favourable consideration—of His Majesty's Government a very skeleton of a plan, a suggestion of an idea, which, based mainly on the Kellogg Pact, should also embrace the Covenant of the League and existing regional security treaties. Anything short of universality equal to that of the Kellogg Pact, which, be it remarked, we have all accepted, cannot be satisfactory, because otherwise it will always be uncertain that any country which adopts police measures against a violator may not be brought up against another country acting in defence of neutral rights as understood by the Law of Nations before the War.
Under this new plan for giving practical effect to the Kellogg Pact all that 1021 would be required would be a further Protocol enabling signatories to take police action against a violator without danger of interference on the part of other signatories on the ground of ancient neutral obligations and rights. It may well be argued that these neutral rights as between co-signatories have been actually abolished by the Pact itself, if we are to accept the view of such an authority as Mr. Stimson, former Secretary of State of the United States, whose speech my noble friend has just quoted. The whole of this speech is worth study, but the particular sentence to which I would refer is that in which he says that waris no longer to be the source and subject of rights. It is no 1onger the principle around which the ditties, the conduct and the rights of nations revolve. It is an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be wrongdoers—violators of this general treaty law.He continued:We no longer draw a circle about them and treat them with the punctiliousness of the duellist's code. Instead we denounce them as lawbreakers. By that very act we have made obsolete many legal precedents and have given the legal profession the task of re-examining many of its codes and treaties.Again, he saidThe only limitation to the broad covenant against war contained in it was the right of self-defence.This right seemed so inherent and universal that it appeared unnecessary even to insert it in the Treaty.
According to Mr. Stimson, therefore, and indeed according to many authorities, the whole conception of war and neutrality since the Pact has been revolutionised, because any country using force against another for a national purpose is a violator of the Pact and, therefore, of the new Law of Nations, and so becomes an outlaw who may legally be treated as such. It is, undoubtedly, in deference to this modern conception of a 'preferential neutrality in favour of one belligerent as against another, that Mr. Eden, replying in another place on February 4 to the honourable Member for Hertford, made the most important statement that His Majesty's Government had informed the Secretary-General of the League of Nations that they were prepared to accept and carry out the recommendation of the Advisory Committee, to 1022 the effect that the embargo on the supply of arms against the belligerents in the Bolivian-Paraguayan war should be raised as far as Bolivia was concerned. This ends, once and for all, the principle of International Law established hitherto, and generally strictly followed, that neutrality implied inpartiality towards both belligerent—the open door, so to speak, to both sides.
Now this ruling, which has, I believe, also been agreed to by the United States, makes it clear that a, State, without becoming an ally or associate in a war, may establish in the interests of peace a boycott, or, as Mr. Gladstone preferred to call it, a condition of exclusive dealing as against one of the belligerents, thus cutting at the very roots of neutrality as formerly understood. Are we, therefore, at war with Paraguay? Apparently not. At least the papers have not reported it, and I suppose that if we were it would be what in the United States is called "front-page news value." I should have supposed that the Press, if it failed to scent out the importance of the Budapest articles of interpretation of the Kellogg Pact, might at least have realised the extreme importance of the consequences of this decision of his Majesty's Government and of the United States Government to jettison not only platonically but actually in fact the whole previous conception of neutrality.
They might even go a step further and deduce the necessary consequences of this act, for these fundamentally alter the whole code of law regarding neutral rights by land or sea. For if this act means anything it means this: Assuming that the Powers of the League and the Pact agree to practice what I may call exclusive dealing against a persistent violator or violators of the Pact for the purpose of re-establishing peace, which has now become a recognised common interest, and assuming that some country claiming the benefit of neutral rights insists on supplying both or either belligerent party with their needs and so helping to continue the war, the supplier must himself become, morally in any case, guilty of violation of the Pact and be liable to be treated accordingly. This point does not seem to have been sufficiently realised. Further, could we acquit those of violation of the Pact who, having solemnly renounced war as an instrument of national policy, should, nevertheless, for 1023 purposes of trade, have recourse to war in order to enforce their neutral rights against co-signatories who were engaged in carrying out police measures to restore peace in accordance with the provisions of that Pact?
The possibility of coming to such an agreement with the United States Government about neutral rights on these lines seems especially hopeful at the present moment. The Times correspondent in Washington cabled to his newspaper on the 17th instant that Mr. Cordell Hull, the Secretary of State, had at a public dinner reiterated the statement made three years ago by Mr. Norman Davis at Geneva to the effect that the United States was prepared, in the event of an effective disarmament agreement, to join a consultative pact for the maintenance of peace and to forswear any interference with collective action taken against an aggressor. In this statement, it seems to me, we have the framework of a Protocol to the Kellogg Pact such as I have suggested which, if universal or almost so, would provide a real basis for a genuine disarmament treaty. Only it would be necessary that the two instruments should, of course, be negotiated pari passu and signed simultaneously. Personally I cannot understand the mental attitude of those who talk about "outlawing war" and at the same time cling fondly to their old neutral rights of making money by selling commodities of all sorts to the belligerents, and so enabling them to carry on war till one or both are exhausted.
I hope I have said enough to show that the Budapest articles of interpretation are in the main justified by the correspondence that passed between the respective Governments concerned at the time of the signature of the Pact, excepting only, perhaps, Article 2, which laid it down that a threat of war constitutes a violation of the Pact. I may be allowed, perhaps, to conclude by repeating that some system of preferential neutrality seems to me to be eminently desirable in itself, in order to make the Kellogg Pact sufficiently effective as a deterrent to war, to act as a foundation on which to build confidence in security, which is so needed for a real treaty of disarmament, for general economic recovery throughout the world, and, lastly, but by no means least, to hold together that great British 1024 Commonwealth of free nations which is in itself one of the principal guarantees of peace over at least one-fifth of the globe.
§ THE EARL OF IDDESLEIGH
My Lords, it gives me a sense of great privilege to be the mouthpiece of your Lordships' House in congratulating Lord Howard of Penrith upon a very remarkable maiden speech, and in expressing a hope that he will very frequently exercise his powers again, especially on this subject, on which he is admitted to be a very great expert.
One of the members of this important Budapest Conference remarked that the Kellogg Pact had two aspects. It might be regarded in the first place as a philosophical or moral declaration of the very greatest importance. When I say that I prefer to regard the Pact as a philosophical, rather than as a legal, document, I am far from characterising it as what my noble friend Lord Askwith calls a "vague declaration of good will." To my mind the moral aspects of this Pact are of supreme importance. It was a renunciation by all civilised States of the Clausewitzian doctrine of war as a legitimate continuation of national policy, and it was a most distinct reversal of the tenets of that school of philosophy which holds that the State is above morality and cannot be judged on moral grounds. For these reasons I conclude that the Pact has a very great importance indeed, and I entirely share the regret of my noble friend Lord Howard of Penrith that that importance is not more frequently remembered and realised.
In the second place, the Pact can undoubtedly be regarded as a legal document, like any other treaty, only of a more important kind. Naturally the Budapest Conference, being composed of jurists, concentrated upon this legal aspect of the Kellogg Treaty. But it has always seemed to me that the main flaw in the Kellogg Treaty, regarded as a legal document, is that it does not make any attempt at the definition of an aggressor. The representative of the Soviet Government made this point at the time when the Pact was signed, and I cannot but feel in agreement with that gentleman. It may be, perhaps it is, impossible to make a satisfactory definition of an aggressor, but surely it would 1025 have been very helpful if this conference of jurists had laid down some general principles, some considerations which ought to be taken into account by any tribunal which may be set up to decide Whether the Pact has been violated by a particular State or not. Such an approach would, I believe, have been of very considerable value. And I admit also the great value of the attempt recently made, again by Russian statesmen, to give a definition of the aggressor, though am far from suggesting that that definition is in all respects satisfactory. Our reservations to the Kellogg Pact do go some way to define what we should mean by a, violator of the Kellogg Pact, and to that extent have very considerable value. The whole subject seems to me to need very serious and earnest discussion, even if it is impossible to arrive at a completely satisfactory conclusion.
But when this is suggested, one is very apt to be told that an aggressor is a thing very hard to define but very easy to decide. There is a school of thought that considers that, in fact, when any actual case of war comes along it is perfectly easy for fair-minded people to make up their minds which State has violated the Pact. It may be easy to decide, but it is not at all easy to decide either truly or unanimously. We had no difficulty in deciding that the Central Powers were the aggressors in the Great War. The Central Powers had no difficulty in deciding that the Allies were the aggressors in the Great War, and neutral opinion remained, until at any rate the later stages of the war, very much divided upon the question. Again, we could point to a great many other wars, such as the Boer War in which the majority of our nation decided, without any doubt, that we were in the right, but most of the Continental nations were rather inclined to the opposite view.
And indeed, if this had been a conference of historians and not a conference of jurists, and if the question has been posed: Is it really easy to decide in any given case at all which State was the aggressor? the answer would have certainly been a decisive "No." And although those persons who hold the doctrine of the recognisability of the aggressor are perfectly entitled to point to Japan as an instance in which the League found found no difficulty in 1026 making up its mind, I must venture to remind them on the other side that think it is for two years that the League Council has been discussing the war between Paraguay and Bolivia, and that the League Council has only just been able to make up its mind which of those countries was the aggressor. The need of some kind of a code in this matter is intimately connected with the need of a court. One of the jurists at this Conference, the learned Dr. Paul de Auer, pointed out that so far satisfactory arrangements have not been made for courts to be established in the various classes of dispute to which the Kellogg Pact may be applicable.
With the permission of the House I will read a short paragraph from his speech. Dr. Paul de Auer said:It should be pointed out, however, that it is not enough to declare war illegal if there is no satisfactory provision for settling all disputes by peaceful means. Article 2 of the Briand-Kellogg Pact declares that the settlement or solution of all disputes or conflicts shall never be sought except by pacific means. The Pan-American Conference at Habana in 1928 maintained that 'there are no international conflicts, however serious, which cannot be settled by pacific means.' All these declarations are of rather platonic value if we have not complete instruments for settling the conflicts by pacific means. It has to be pointed out that such instruments are not at present at our disposal.He goes on to point out that in the case of the Arbitral Court of The Hague the usefulness of the body is vitiated by certain reservations, and in the case of the Permanent Court of International Justice the disputes to be settled are only juridical disputes.
In this connection I may mention that Sir John Fischer Williams added a desideratum, which was not discussed, to these articles of interpretation. He suggested, if I understand him rightly, that the World Court should be empowered to give an opinion, even in non-justiciable cases. That seems to me an experiment fraught with very great danger to the Court. It is asking the Court to undertake a, branch of work in which it does not profess competence, and to violate its rule of proceeding only in those subjects with regard to which there are fairly clear principles of International Law. Again, there is the League Council, and, apart from the fact that there are many States which are not Members of the Council I suggest that some con- 1027 fusion is likely to arise since the Council's main function, and surely its most important function, is conciliation to end wars or to prevent their occurrence, rather than the exercise of judicial functions. There may be a very real difference between conciliation and judicial functions, and I think most of us would prefer that the World Court remained primarily a conciliatory body. If I am challenged in this assertion that there is no adequate body to deal with the matter of defining an aggressor, I can only refer noble Lords to the very lucid speech of Dr. Paul de Auer, contained in the little memorandum which I have in my hand.
If I may turn briefly to a consideration of the articles of interpretation themselves, I would direct your Lordships' attention to Article 2 in the final text. It was Article 4 in the first text, but it is now Article 2. This article reads as follows:A signatory State which threatens to resort to armed force for the solution of an international dispute or conflict is guilty of a violation of the Pact.A legal document of this character is of very little value—we may say of no value whatever—unless it is extremely precise; and it seems to me that the word "threatens" contains a great deal of imprecision. I am not quite convinced that even in the case of a direct threat the threatening State necessarily violates any moral principle. After all, we threatened Germany in 1914 that we would go to war if she invaded Belgium. I do not think we were guilty of any moral obliquity in threatening Germany on that occasion, and one can imagine many cases, even to-day, in which a State may legitimately threaten war.
Let us suppose that its neighbour has been acting in a very hostile manner for a considerable space of time, and let us suppose the neighbour refuses to submit the matter to arbitration. Surely the Kellogg Pact was not designed to prevent an aggressed State from threatening as a last resort to go to war to bring its neighbour to reason, especially if the neighbour has already refused to submit the matter to arbitration? After all, what does "threatening" mean? If the noble Lord, Lord Ponsonby, were here, he would probably tell us that the mere existence of an armed force is a threat to go to war, and he would be perfectly right. Is the mobilisation of the army 1028 a threat to go to war? Is partial mobilisation a threat? Might not manœuvres conducted in a certain part of your territory be a threat to go to war in certain eventualities? I see a very great danger in, as it were, complicating the already difficult task of the body that has to decide upon the question of violation of the Pact by adding this new and, so to speak, irrelevant consideration.
With regard to the other interpretations, with which I shall not deal in detail, I should like, with very great respect, to dispute the right of my noble friend Lord Askwith to describe them as having been unanimously adopted. If you study the proceedings of the Budapest Conference you will find that this is what occurred:—An article was read out and discussed and in every case amendments were moved—sometimes amendments to omit. In the case of Article 4 these amendments were discussed and put to the vote, and after the amendments had been lost the interpretation was carried unanimously. That can hardly be said to denote any real unanimity in the proceedings of the Conference. Professor Reut-Nicolussi made a very strong and very interesting objection to all the later articles of interpretation, and he made the point that these articles are not really interpretations of the Pact; they are really sanctions. Thus we get the article which permits a State to decline to observe towards a violator the duties prescribed by International Law. That appeared to the high authority of Professor Rent-Nicolussi to be essentially of the nature of a sanction and not an interpretation, and he reminded the Conference that it was of the essence of the Briand-Kellogg Pact that it was a Pact to which no sanctions were attachea.
The words of Professor Reut-Nicolussi are very interesting. He said:I think the reaction of the community against the violator of the Briand-Kellogg Pact is a matter for itself and cannot he confounded with the obligation of the signatory Powers which they took when they signed the Pact.And he goes on to point out that it would be necessary to work for, a very long time before world opinion is educated up to the point at which a consideration of sanctions will be in any way possible. It is true that since the United States signed that Pact we have 1029 had the very remarkable Stimson declaration, but, after all, important though that declaration is, and though it seems to hint at some participation by the United States in measures that may have to be taken to enforce the Pact, yet it does not in any way commit the United States Government. We have learned, by bitter experience, if I may say so, to study the American Constitution and to realise that treaty-making power and power to make commitments with foreign Powers resides entirely in the President and in the Senate and cannot be alienated from those bodies. I suggest therefore that we should not give more than just weight to the Stimson declaration.
If I may come to Interpretation 4, winch is Article 6 in the first draft, it read as Follows:In the event of a violation of the Pact by a resort to armed force or war by one signatory State against another, any signatory State, not being a party to the original dispute, may, without thereby committing a breach of the Pact or of any rule of International Law, do all or any of the following things:—I am very glad that in the final form of this article the word "may" is used. From certain speeches during the proceedings of the Conference, I gather that some of the jurists present would have liked to substitute "must" for "may," in which case we should have got a very much more powerful article, but it would have involved, as might easily happen, the most distant States in local conflicts. The noble Lord, Lord Howard of Penrith, has told us we have to some extent involved ourselves in the Paraguayan situation, and he has asked the question, Are we at war with Paraguay I suppose the answer to that is that it does not very much matter whether we are at war with Paraguay or not. It is a matter of very minor importance, and even if Paraguay, being infuriated by the treatment which we are giving her, wore to declare war on Great Britain to--morrow, I do not suppose it would greatly disturb our complacency.
- (a) Assist with armed forces the State attacked;
- (b) Supply the State attacked with financial or material assistance, includmunitions of war;
- (c) Refuse to admit the exercise by the State violating the Pact of belligerent rights, such as visit and search of blockade, etc."
1030 That is not going to be the case in all disputes, and we can all imagine conflicts in which it would be exceedingly dangerous to abandon an attitude of the most correct neutrality. For example, if some strong naval power, or two great naval powers, were involved in a conflict and we were to take up the position that we did not admit the right of their officers to search our ships, would not the danger of our being involved be a most serious one? What would we do? Would we instruct the skippers of our merchant vessels to refuse to allow officers to board their vessels, to resist by force? Would we send our battle fleet to protect our merchant ships in those circumstances. And how long, in those circumstances, should we be able to keep the conflict localised? After all, these rules that govern the relations between neutrals and belligerents were drawn up with a very definite purpose. They were drawn up with the definite purpose of localising conflicts and enabling neutrals to avoid being dragged into hostilities in which their essential interests were not concerned. I feel that the greatest risk attaches even to the permission to abandon that neutral attitude. We have to remember that the great danger which confronts our civilisation is not a local war. It would be very optimistic in the present circumstances to hope that there will never be local wars again, or even considerable local wars. Our efforts should be turned unceasingly towards preventing all world-wars, and especially, of course, a war that involved Western Europe.
If I may call your Lordships' attention to one further article, I shall very shortly have done my examination of this matter. That is Article 5 which appears in the final text (Article 7 in the first draft):Signatory States are not entitled to recognise as acquired de jure any territorial or other advantages acquired de facto by means of a violation of the Pact.If we adopt that interpretation it will mean, amongst other consequences, that we shall never be able to recognise the independence of Manchuria. We shall continue to have to treat that country as an integral part of the Chinese Republic, although every fact is contrary to that course of action. We are at present bound, or at least we are held to be bound by some authorities and not by 1031 others—I cannot say which authorities are right—by the League Resolution that forbids Members of the League to recognise Manchuria as a sovereign State. That Resolution can be rescinded, and I have felt for some time, in common with many other people, that there is a good deal to be said for asking the League to rescind that Resolution. We can hardly blame Japan if their citizens have certain privileges in Manchuria which, to some extent, interfere with the principle of the open door, and I do not know that it is a very pleasant position for our manufacturers to approach Manchuria through Tokio. Nor does it seem to me in any way helpful to the solution of the Sino-Japanese conflict.
If I may venture to direct your Lordships to an analogy in the last century, I would recall the case of Bulgaria. In the last century Russia established the independence of the Bulgarian Kingdom in defiance of the Concert of Europe just as Japan has established the independence, or nominal independence, at any rate, of Manchuria in defiance of the League of Nations. What happened in the Bulgarian case? The Powers were exceedingly annoyed with Russia. There were protests. Bulgaria was, for the first few years of its existence, practically a puppet state of Russia. But the European Powers decided that it was expedient to recognise the fait accompli. The Bulgarian Kingdom was recognised, diplomatic envoys were sent to Bulgaria and she was accepted as part of the European system. And with what result? With the result that before many years had elapsed Bulgaria had been completely detached from the Russian system, and to such an extent that Bulgaria was found among the enemies of Russia in the European War. That seems to me a considerable achievement on the part of the old diplomacy, and I cannot help wondering whether regard for world peace and for Asiatic peace would not dictate the recognition of Manchuria and all encouragement being given to the ruler of Manchuria to free himself from a state of servitude to Japan and declare that his sovereignty must be real as well as nominal, so that Manchuria might, perhaps in the course of many years, become a buffer state between Russia and Japan.
But on the general question that is raised by this interpretation, are we never to recognise a change of sovereignty 1032 compelled by force? What is to happen when two Powers are at war? We recognise at first that one Power is the aggressor, and we hope we may even take some steps to secure the victory of the second; but, nevertheless, once the first Power takes territory, and compels the defeated Power to sign a treaty of peace which contains a clause ceding territory, are we never to recognise that cession? Will not the results of that course of action be to breed a most bitter feeling of irredentism in the defeated Power? Do we want to encourage the sentiment of irredentism in defeated Powers? Cannot that line of conduct be right by the one test which ought to be applied to every policy—Is it likely to make for world peace?
I do not approach these articles with any feeling of hostility. I only beg that His Majesty's Government, as I am sure they will, will give most careful examination before committing themselves even to the most tentative approval of the articles. We do not want to win applause in this matter. We do not want to make a gesture which is not a gesture full of meaning. We should remember that our first duty is to safeguard the peace of the Empire and of Western Europe. We are deeply committed to making every effort to secure the peace of Western Europe, and I certainly congratulate His Majesty's Government upon the means which they have recently found to secure that peace. It is quite true, as the noble Lord, Lord Howard of Penrith, said, that these Pacts, this Air Pact and the Locarno Treaties, will not provide absolute confidence in Europe. Absolute confidence will not be obtained in international relations. Complete security is the attribute of the blessed in Heaven and is not likely to arrive here. But the virtue of these treaties is that they provide very greatly increased confidence—not absolute confidence, but increased and stronger confidence—in the ability of Western statesmen to maintain peace. They provide a very much larger measure of security than existed before. I beg His Majesty's Government to proceed on those lines which they have already adopted and to subordinate all other considerations, however theoretically desirable they may be, to this vital matter which we have taken in hand of preserving the peace of the most civilised part of the European Continent.
§ LORD AMULREE
My Lords, I am very glad that my noble friend Lord Askwith has brought this matter to the attention of your Lordships in order that it may be discussed, because I have held the view for some time that the Kellogg Pact has not received at the hands of statesmen, of international jurists, or of public opinion that sustained attention which it clearly deserves. It is true that it has been treated as having vital force in the Pact of Non-Aggression between France and Russia in 1932, in the Convention of London in 1933, in the Four-Power Pact, or Pact of Rome, between France, Germany, Great Britain and Italy in 1933, and in the German-Polish Pact of Non-Aggression in 1934. It may be, as was pointed out in the very illuminating speech of the noble Lord, Lord Howard of Penrith, that the Pact wants strengthening. If so, I hope that the discussion which has arisen and these resolutions will enable some influence in that direction to be brought to bear.
The Pact itself is not an isolated event. There are three instruments in the post-War period of outstanding significance in International Law. They are the Covenant of the League of Nations, to which some fifty-seven States are parties; the Statute of the Permanent Court of International Justice, to which some forty-nine States are parties; and the Kellogg Pact of 1928, or Treaty of Paris, to which sixty-four States are parties. In consequence of these instruments a profound change is taking place in international relations which will call for the building up of a new International Law. Article 11 of the Covenant has been tersely put as meaning that war anywhere is a matter of concern to people everywhere. This is the new principle which the Covenant has introduced into international relations. In the past we have proceeded on the theory that international war was outside the reach of International Law. Before 1919 the cynical attitude of International Law towards war was sometimes expressed in the maxim, "War is no illegality," and upon this basis we built a great superstructure of neutral rights and belligerent rights.
The aim of the Covenant, of the Permanent Court of International Justice and of the Pact of 1928, is to bring war within the ambit of law, and what is now proposed is that war under certain circumstances shall be illegal. For a State 1034 to go to war in former times was a perfectly legitimate exercise of a sovereign right. When this happened, a non-belligerent had imposed upon him by virtue of his status as a non-belligerent formidable obligations towards the belligerents, and formidable rights were enjoyed by the belligerents against him. He could not escape them. They arose as a matter of International Law at the outbreak of war. It is now sought to change this fundamentally. The violator or law breaker can no longer claim as against a non-belligerent the rights and duties of neutrality. To my mind, the significance of the Pact and the Budapest resolutions may be noted under three aspects. There is first the illegality of war as an instrument of national policy; secondly, there is the subject of sanctions; and thirdly, the question of what constitutes an aggressor.
The Pact, together with the resolutions, seeks to establish the illegality of war as an instrument of national policy. International Law did not institute war, which it found already existing, but accepted it as a brutal fact and tried to humanise it. As Westlake, in his "International Law" points out:The truth is that when war enters upon the scene all law that was previously concerned with the dispute retires, and a new law steps in, directed only to secure fair and not too inhuman fighting.Germany's war on Belgium could be called illegal because it involved a violation of a treaty, but war as such was not illegal, for "War was no illegality." The Covenant made a number of wars illegal but left a number perfectly lawful. The Peace Pact of 1928 definitely made war "as an instrument of national policy"—that is, as a means of getting what you cannot get by peaceful means—illegal. It recognises a breach of treaty as an international wrong. The fact that over sixty Governments concurred in this makes it a piece of international legislation which approaches universality. This is a big step, even when all is said and done about self defence.
It was said, I think, by my noble friend Lord Askwith and by the noble Earl, Lord Iddesleigh, that the Peace Pact contains no sanctions. That is perfectly true. There are no express sanctions. This is better, perhaps, than if it contained sanctions which did not work. But there is a very important implicit 1035 sanction and the main merit of the Budapest resolutions is that they bring this out. It lies in the fact that if a State to-day embarks upon a war as an instrument of national policy it thereby commits an international wrong or a breach of treaty against almost every other State. The infliction of a wrong entitles the injured States to take steps by way of reprisals or otherwise to secure redress and a cessation of the wrong. What steps will those be? Assuming that they are not participating in the illegal war in progress and remain non-belligerent, there is strong ground for contending that they would be entitled, as themselves injured parties, to modify the old law of neutrality in favour of the victim of the illegal war and against the perpetrator of it. This is the point developed in the resolutions. It is inconceivable that they would maintain impartiality as between the two combatants, having regard to the fact that the illegal war is also an international wrong against themselves.
So much for the injured States. Then what of the aggressor? The noble Earl, Lord Iddesleigh, has said that there no definition of an aggressor. I venture to think there is. The great merit of the Pact is that it evades the extreme difficulty of defining an aggressor, because any party which violates the Pact becomes an aggressor automatically. There have been since 1919 many futile attempts to define an aggressor positively. The Pact seems to do it negatively. I believe, my Lords, that the resolutions deserve general support. They stress the point that the Pact of 1928 has transformed the attitude of International Law towards the institution of war.
§ LORD ALLEN OF HURTWOOD
My Lords, I am bound to admit that as I have listened to this debate a sense of despair has come upon me as to whether we are fully alive to the valuable documents and valuable administrative machinery which are already available to the world for the purpose of carrying out the objects of the Kellogg Pact. When I hear these acute legal analyses of the various declarations of the Budapest jurists, and the noble Earl making us believe that we have no means of defining an aggressor, I look out on Europe to-day and I cannot but feel that there is a lack of harmony between the sceptical 1036 attitude adopted in this House and the urgent need of Europe at this present moment. I do not know whether the noble Lord, Lord Askwith, brought these Budapest resolutions before this House in order that we may blame or in order that we may praise, but what I am anxious to do, if I can, is to bring this debate back to the topic which appears to me to be of immediate importance. The resolutions of the jurists of Budapest are permissive resolutions, and their wording if studied makes us realise that all that these resolutions do is to inform Governments of States what it is that they may do. They tell us nothing about what Governments shall do, and it seems to me that although it is valuable to have a clearer interpretation of the existing law, what we really require at the present moment is a far clearer indication of policy on the part of the Governments concerned and of the manner in which they propose to use the law which is already available to them.
I believe it was the noble Marquess, Lord Lothian, who pointed out in The Times in those two distinguished articles of his which appeared a few days ago, that no fewer than 200 Pacts of one kind and another have been signed and sealed during the last few years. The great question at the moment is to what extent are we prepared to rely upon them for security. We shall make no headway whatever with disarmament until this question of security is dealt with and when we speak of security it seems to me imperative that we should realise that we are not merely thinking of French security, but that we are thinking of security for ourselves. Our own safety to-day is just as much at stake as France thinks hers to be. I do not suppose that any speech delivered by the Foreign Secretary of this country has brought to the attention of the British people so urgently as did his speech delivered by wireless a few days ago on the Air Pact, the fact that we need the assistance of other countries at this moment in order to promote our own security.
Let me turn for a moment, if I may, to the Kellogg Pact itself. The Kellogg Pact is a document of immense value. It has been frequently resorted to in diplomacy because it was supposed to be an instrument which made it more easy for us to establish a modus vivendi with America. So far as our Government was 1037 concerned, it was felt that there were difficulties in relation to America, and the Kellogg Pact was meant to be a bridge which brought the signatory States of the Covenant into contact with America. For myself, I believe that since the statements made first by Mr. Samson, then by Mr. Norman Davis and more recently by Mr. Cordell Hull, that difficulty no longer exists. Let us take the statement made by Mr. Hull only a few clays ago, and reported in The Times. From that statement we may assume that at present the difficulty with America is no longer a substantial one at all. Mr. Hull said that thefour pillars of a sound peace structure are, first, renunciation of war as an instrument of national policy; second, the promise of 11 on-aggression; third, consultation in the even of a, threat to peace; and, fourth, nonintervention on our part—that is, on America's part—with such measures of restraint as may be brought against a deliberate violation of peace.America has therefore on three different occasions made perfectly clear the direction in which her policy is tending, and with that in mind it seems that we are now able to return to the Covenant of the League of Nations itself, and that if we rely upon the existing Articles of the Covenant, as we can do, we shall not find ourselves involved in those difficulties with America which have hitherto made us feel that the Briand-Kellogg Pact was of such paramount importance.
What we need to do is to implement the Articles of the Covenant. May I venture to refer the noble Earl, Lord Iddesleigh, to the existing Articles? First you have Article 12, which lays it down perfectly clearly that nations are no longer at liberty to go to war until they have in the first instance submitted their disputes either to arbitration or to judicial settlement or to inquiry. That is perfectly clearly laid down. Article 15 makes it perfectly clear that you could if you wished enforce a report made after an inquiry by the Cornell if it isunanimously agreed to by the members thereof other than the representatives of one or more of the parties to the dispute.By this is meant thatthe 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.1038 With these two Articles available, with the method of either arbitration, judicial settlement or inquiry provided for by the Covenant, it is obvious that a nation which proceeds to break either of those articles is ipso facto the aggressor. Moreover, we have had quite recently a number of workmanlike, attempts to translate that into practice, particularly by the Soviet Government, and these have become the substance of some of the pacts of non-aggression which have been signed in Eastern Europe. If we are to seek for a precise definition of an aggressor let us make quite clear that the aggressor is he who resorts to armed force and declines to make use of the methods of settlement which are laid down by the Covenant. Why therefore we should create so many difficulties for ourselves over this matter I cannot understand. The question is not whether we can design pacts preventing war, but what we will do with an aggressor when we find he is the aggressor.
§ THE EARL OF IDDESLEIGH
May I ask a question? Why, then, did it take the League so long to reach a decision in the Chaco War?
§ LORD ALLEN OF HURTWOOD
It need not have done so. The difficulty about the machinery of the League of Nations is that at the present moment we do not always take advantage, for political reasons or other reasons, of the machinery which is available. It is not the nature of the machinery which makes it difficult. What I think is required at the present moment is not legal knowledge but political will Power, in older that we may use the machinery already available.
Now coming to the point which is dealt with by the jurists at Budapest, these resolutions are permissive. What we require is a statement by our Government of its intentions. I would refer to Article 16 of the Covenant of the League, which lays down specifically certain methods for dealing with a law-breaker. Some people will say that force was never envisaged in the Covenant of the League, but that appears to me to be a confusion of thought. Article 16 is perfectly clear on this point, and it is there laid down that after a recommendation of the League the nations are entitled to use force. This was later 1039 defined in definite schemes as to how it was to be carried into effect. Since Locarno we have passed on to the new Air Pact, where we definitely intend to use force for the purpose of mutual security. It seems to me that in these League Articles provision is made for bringing pressure to bear, in some cases by conciliation and in others by force. In the case of the dispute between Yugoslavia and Hungary the former method was used, and in the case of the Saar, force is envisaged in another form.
The matter has been brought to a head by the statement of the British Prime Minister himself, when speaking with reference to the new Air Pact. I hope that the noble Lord who will speak for the Government on this occasion will make it clear to us that this speech of the Prime Minister is an accurate and definite interpretation of the intention of the Government with regard to the use of collective force, so far as dealing with an aggressor is concerned. This is what the Prime Minister said:So far from quick action now being precipitate action, if there is an aggressor State anywhere in the world, plotting and planning a war, that aggressor State knows that the moment it has sent its aeroplanes to attack its enemy then it will be met with a combination that makes victory absolutely impossible for it.I notice that the Prime Minister used the word "world," although he was dealing with the Western area.
The Prime Minister continued:Therefore what we do is this, we set up by this agreement the most effective deterrent to an aggressor that ever has been set up by the diplomacy of nations. It is a great step to peace. It is a great step in making war unthinkable and impossible. Not only that, if the wars should come—and I do not believe they will, very largely on account of this—but if the wars do come, we do not stand alone.That was a statement made only a few days ago, and it is a most complete justification of the attitude taken up by many noble Lords in this House, and many experts outside, that we can now deal with an aggressor. I should like to have a statement from the Government, not only as to whether they accept the interpretations of the Budapest Conference, but rather whether this precise and definite policy, which is represented first by what the Prime Minister has said and secondly by the Air Pact, proves that we do in future intend to use the autho- 1040 rity of this country, by collective action, to carry out the law as provided by the Covenant of the League of Nations.
So far as armaments are concerned we must either do what Lord Ponsonby has suggested with such sincerity, namely, come forward with a form of realistic moral pressure by unilateral disarmament—Lord Ponsonby was not even speaking on behalf of the Party to which he belongs, and he knows that no Government is likely to put that policy into practice—or use armaments collectively, and show that we are no longer going to stand aside, leaving the rest of the world uncertain as to whether we will, by means of Article 16, deal with an aggressor by a combination of force. The third alternative is no alternative. It is a policy of drift, where we do not define our position, do not take advantage of the moral gesture which Lord Ponsonby wishes to employ, but simply drift, which means an armaments race, ententes and alliances, and ultimately the disintegration of the League of Nations itself. I urge the Government to act now before it is too late. Repeatedly this country has acted too late on these questions, such as German equality, and even now we are expressing our approach to Germany with a lack of sympathetic certainty which we do not use when dealing with France. Surely if it is permissible for us to discuss policy with France in a bilateral conference, it is equally permissible to do so with Germany? Are we also going to act too late in regard to this question of the use of collective force, just as we were too late in regard to Reparations? I hope the noble Lord who will reply on behalf of the Government will take this matter much further than is suggested in the Budapest resolutions and give us a clear indication of the intentions of the Government, making it clear to the world that we are prepared, in combination with other countries, to use force collectively behind law to restrain an aggressor.
§ LORD MERRIVALE
My Lords, I could not listen to what has been said by the noble Lord who has just sat down without feeling the strongest sense of the peril there is in discussions of envisagement of war without a due sense of the responsibility involved. Really when one looks back to the Great War and the horrors which it entailed, and the 1041 universal misfortunes there were, and still are, arising from it, it seems to me a shocking thing that a noble Lord, with the humane and generous sentiments I know him to possess, should envisage war here, and almost advocate it, as a means of the application of force for the attainment of particular purposes of policy.
The noble Lord, Lord Howard of Penrith, said, as I think quite properly, that one characteristic of the Briand-Kellogg Pact was that it lacked teeth. Well, I cannot help thinking at the moment that perhaps it is just as well that the responsibility for war does not depend. upon international associations, but does depend upon the individual statesmen of countries who direct the policy of those countries. Here it depends upon the views and decisions of His Majesty's Government, animated by the views of Parliament and by the feeling of the people of this country; and it really is a great relief, when I hear of this possibility of the waging of war under the direction of the League of Nations, to know that we cannot be involved in war without a decision of His Majesty's Government to that effect, and that we enjoy the security we have heretofore enjoyed in that matter.
I really rose only to say that I do hope the Minister who speaks on behalf of His Majesty's Government will recognise how cautiously we ought to proceed in matters of this kind, and how we ought to hold aloof from anything like threats of war to other nations, either collective nations or individual nations. After all, our first business is the wellbeing of Britain and the British Empire, and everybody knows that during many years new sacrifices for pence have been made, and there has been the almost universal desire of the people of this country that, irrespective of what may be thought by others, we should maintain peace by every means in our power. I do hope that His Majesty's Government are not going to be led into the delusive course of committing themselves to take warlike action, where at present they are free to decide what they ought to do.
§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, I think this House is indebted, and many people outside this House are indebted, to the noble Lord, Lord Askwith, for his very instructive account of the history of the Briand- 1042 Kellogg Pact and for his careful analysis of its central Articles, as well as for some of the opinions which he has expressed about it. May I be permitted also to express the hope that the noble Lord, Lord Howard of Penrith, will in the future give us frequent assistance in this difficult and delicate matter? No one is better qualified than he is by knowledge and experience to do so. I should like also to express the thanks of the Government to the noble Earl, Lord Iddesleigh, for his very interesting speech and for his thoughtful criticism and suggestions. I have listened with sympathy, and I am sure that all your Lordships have, to the speech made by the noble Lord, Lord Allen of Hurtwood, but I would venture to remind him that his observations have gone rather beyond what is involved in this Question or what is set down for this debate. Of that I have no complaint to make, except to say that I am here, not to take part in a general discussion of the League of Nations, or the Covenant, or the Protocol, but to answer shortly, and as concisely as I can, the Question which was addressed to the Government.
The Question divides itself into two parts. Let me read it:To ask His Majesty's Government whether their attention had been called to the Budapest Conference of the International Law Association held in September, 1934, and the articles of interpretation of the Briand-Kellogg Pact of Paris unanimously adopted by the conference.That is the first Question, and I will answer it first. The shortest way of answering it is in one word—Yes. The work of the International Law Association is well known and much appreciated by His Majesty's Government, and I should like to take this opportunity of expressing my recognition of the services which they have rendered in bringing into more orderly cultivation important parts of the field of International Law. His Majesty's Government welcome in particular the phase of their work which is under discussion in this House to-day, and they have noted with great interest that at the Budapest Conference the Association were able, under the chairmanship of the distinguished American jurist, Professor O. Manley Hudson, to agree unanimously on articles of interpretation of the Pact the name of which perpetuates the services to peace of two 1043 great statesmen, Mr. Kellogg and the late M. Aristide Briand.
So far for the first Question. What is the second Question?Whether they consider that these articles of interpretation correctly represent the effect of the Briand-Kellogg Pact on International Law and the obligations of this country.I will endeavour to answer that. It is necessary to emphasise at the outset of my remarks that the Conference, whatever the weight of its authority, and whatever consideration is due to its conclusions, was a purely private and unofficial conference. Its members were expressing, quite rightly from their point of view, their own views: they did not necessarily represent the opinion of lawyers in all their own countries, still less the opinions of their Governments. The Briand-Kellogg Pact was deliberately drafted in broad terms, and its authors wisely declined to be drawn into attempts at precise definitions. While it is possible, as the Budapest Conference has shown, to obtain agreement on its interpretation among a group of international lawyers, it does not follow that all the Governments concerned would be ready to accept all the articles of interpretation which were adopted by the Conference.
I am sure noble Lords will agree that it is not desirable, in view of the far-reaching importance in international relations of the Pact which we are discussing, for His Majesty's Government to attempt to give their imprimatur to any particular article of interpretation adopted by the Budapest Conference, or to embark at the present moment in answer to this Question on any public discussion of the weighty issues which these articles raise. Let me remind the House of two occasions on which His Majesty's Government have made declarations or proposals with regard to the effect of the Kellogg Pact. In October, 1929, the President of the United States and Mr. Ramsay MacDonald issued a joint statement on the occasion of Mr. MacDonald's visit to the United States, in which they declared that both their Governments resolvedto accept the Peace Pact, not only as a declaration of good intentions but as a positive obligation to direct national policy in accordance with its pledge.The first paragraph of the preamble adopted by the International Law Asso- 1044 ciation at Budapest is in accordance with this declaration when it states that the Pact is a multilateral law-making treaty whereby each of the high contracting parties makes binding agreements with each other and all of the other high contracting parties.
I would also refer to the text put forward by the United Kingdom Delegation at Geneva, in the first part of their Draft Disarmament Convention suggesting the steps to be taken in the event of a breach or threat of a breach of this Pact of Paris. His Majesty's Government proposed that either the Council or the Assembly of the League of Nations, or one of the parties to the Convention who were not members of the League of Nations, might propose, in the event of a breach or threat of a breach of the Kellogg Pact, immediate consultation between the Council or Assembly and any of the parties to the Convention. It should be the object of such consultation in the event of a threat of a breach of the Pact to exchange views for the purpose of preserving peace, and averting a conflict; in the event of a breach of the Pact to use their good offices for the restoration of peace; and in the event that it prove impossible thus to restore peace, then to determine which party or parties to the dispute were to be held responsible. These provisions were not in any way to prejudice the rights and obligations of the Members of the League, nor conflict with nor limit the powers and duties of the Assembly or Council under the Covenant. His Majesty's Government have not attempted in the discussions at Geneva, nor at any other time, to give a precise definition of the effect of a breach of the Pact or of the measures which in that event the signatories could or should take. His Majesty's Government would not think it wise to do so now. It would therefore evidently be premature to express an opinion as to the correctness or otherwise of the articles of interpretation adopted at Budapest as to the effect of the Kellogg Pact on International Law or on the obligations of His Majesty's Government.
An interpretation of the Pact must find a measure of general agreement to have any validity or force; in the circumstances a detailed commentary on the articles would be rather out of place, 1045 and I only propose to make a few general observations upon them. The first paragraph of the preamble adopted by the Conference makes it plain that the Treaty is not merely a declaration of policy but embodies legal obligations, and as such it is in conformity with the statement, to which I have already referred your Lordships, made by the President of the United States and Mr. Ramsay MacDonald in 1929. As regards some of the articles of interpretation, the comment may be made that their effect is dependent upon the precise meaning which it is intended to attach to some of the terms employed.
In Article I, for instance, the statement that a signatory cannot release itself from its obligation to the Pact by non-observance of it is in one sense an obvious truism, but I am not clear whether any other meaning is intended to be put upon it. Similarly, the effect of Article 2 which, as it seems to me, is intended to be an interpretation of Article 2 of the Pact, depends upon the precise meaning to he attached to the phrase "a signatory State which threatens to resort to armed force," and a similar observation may be made about the word "aids" in Article 3. Article 4 raises questions in regard to the effect of the Pact, the position of belligerent and other States, which are of the greatest interest and importance, but into which at the present moment I do not feel it incumbent upon me to enter. Article 5 is apparently based upon the Resolution passed by the Assembly of the League of Nations on March 11, 1932. Article 6, while possibly a logical consequence of the Pact, is not necessarily a legitimate interpretation of it; while Article 7 represents the general consensus of opinion as to the relation of the Pact to such humanitarian obligations as are contained in general treaties.
This review of the articles, though admittedly a cursory one, is perhaps sufficient to show that, while in some respects they are conceived on generally accepted lines, in other respects they may possibly require further consideration. I do not propose, at present, to make other or more detailed comments, but I would make one general observation. The Pact has become, from its universal character 1046 as well as from the general nature of the obligations which it imposes, the background against which all the efforts to ensure peace are made. It contains over-riding obligations which cover any deficiencies or gaps which may occur in more limited agreements or treaties. As such, it has a unique value which in present circumstances can perhaps only be impaired by unilateral attempts to render its legal effects more definite and precise. This is not to say that the attitude of the signatories towards the implications of the Pact is not of the first importance, both as regards the machinery of consultation for preventing or terminating violations of the Pact, and as regards their position in relation to countries which may be involved in war in consequence of such a violation. These are questions that may ultimately be discussed and decided, but until the time for such a discussion is ripe, any rigid interpretation of the Pact put forward by one signatory might retard rather than hasten an agreed solution which would have such a vital importance for the maintenance of world peace. I should again like to thank the noble Lord who inaugurated this debate. I do not know of any Papers which I can lay before the House, but I hope I have given a satisfactory answer to the noble Lord's Question.
§ LORD ASKWITH
My Lords, I am much obliged to the noble and learned Viscount on the Woolsack for the answer that he has given and I shall ask leave to withdraw the Motion in view of his reply that no Papers are available for publication. It was hinted to me that the answer would be rather indefinite owing to the fact that it would be inadvisable for one side to bring forward a proposal without agreement with the others; but I trust that the discussion here and the action of the Conference at Budapest may be indications of a desire that Governments and nations should proceed to follow out M. Briand's advice and organise further in the direction of peace.
§ Motion for Papers, by leave, withdrawn.
§ House adjourned at twenty-two minutes past six o'clock.