234 Lord Stanley, U.K. Secretary of State for Dominion Affairs, to Commonwealth Government

Circular Cablegram B185 LONDON, 29 July 1938, 11 p.m.

CONFIDENTIAL

(1) The most important item on the agenda at the forthcoming meeting of the League Assembly will probably be the report of the Committee of Twenty-eight on the application of the principles of the Covenant, and the Assembly will be faced with the necessity of coming to a decision affecting the whole future of the League. His Majesty's Government in the United Kingdom have accordingly been considering whether it would not be advisable for them to make specific proposals to the Assembly on this question and have been examining the form which any such proposals might take.

(2) They are inclined to think that the United Kingdom Representative in his speech at the opening debate of the Assembly might take a line which may be summarised as follows:-

Firstly, it is necessary to recognise that the League, by reason of its reduced membership and the divided counsels among its remaining members, is not in a position to give full effect to certain important provisions of the Covenant. This is due less to the terms of the Covenant itself, than to force of circumstances and perhaps the shortcomings of the members. The position might have been different had it been possible to carry out fully Article 8 of the Covenant but every effort to give effect to this Article has so far failed. Many members of the League have made it clear that they regard the system of Sanctions as in fact suspended. Many more have tacitly or openly recognised an attenuation of the obligations laid on member States in the matter of collective action. In these circumstances an honest avowal of the limitations of the League would have the effect of putting it on a sounder basis and increasing its authority and usefulness as an instrument of peace.

Secondly, reference could be made to the position under Article 19. After examination of the effect of this Article in its present form it could be pointed out that, while it is not the only Article of the Covenant providing for the examination of grievances, the fact that it has never been employed lends colour to one of the most frequent criticisms of the League, that it exists mainly for the perpetuation of the status quo. Certain nations do not believe the present state of affairs to be altogether just and fair, and they have, rightly or wrongly, abandoned any hope of rectifying it through the machinery of the League. If the League is actively to fulfil its task, some means must be found of making Article 19 a reality.

The Articles of the Covenant which provide a system for the peaceful settlement of disputes afford an immensely valuable piece of machinery. These articles have in some respects been overshadowed by the coercive clauses of the Covenant. It is desirable to enhance the authority of this system which is the essence of the Covenant.

Two minor points may be mentioned. (a) The desirability of modifying the unanimity rule in its application to the first paragraph of Article 11 of the Covenant, in order that the League can intervene effectively at an earlier stage in disputes than has been possible hitherto. Proposals to this effect were made by the United Kingdom delegate at the Assembly of 1936.

(b) Effect should be given to the recommendations in the report of the Committee of jurists to the last Assembly upon the proposal that the Covenant should be given an existence separate and independent from the Treaties of Peace.

(3) The proposals which His Majesty's Government in the United Kingdom have in mind would be on the following lines:-

As regards the obligations of the Covenant, it would be suggested that any decision which might be reached should only be regarded as a modus vivendi. There is nothing essentially wrong with the Covenant, and it should be kept substantially as it is in the hope that eventually it may be possible to apply it in its entirety. In the meantime it seems desirable clearly to define, as a temporary measure, the limits within which League members can carry out their obligations as regards the coercive clauses of the Covenant, and secondly, to improve the facilities provided for the remedying of just grievances. If possible this should be effected by an Assembly resolution.

Such a resolution might be based, as regards collective obligations, on the conception that the circumstances in which occasion for international action will arise and the possibility and nature of the action to be taken cannot be determined in advance, and that each case must be considered on its merits. Thus membership of the League would for the present involve, in a case where a breach of the Covenant had been established in accordance with the usual procedure, no automatic obligation to apply either economic or military sanctions. It would, however, in such a case involve a general obligation to consider, in consultation with the other members, whether, and if so, how far they were able to apply the measures provided in Article 16 and what steps, if any, they could take in common to render aid to the victim of such a breach of the Covenant. In the course of such consultation each member of the League would be the judge of the extent to which its own position would allow it to participate in any measures which might be proposed, and in doing so it would be entitled to take into account the extent to which other members were prepared to act. It would at the same time be made clear that it is essential, for the future of the League, to preserve intact the principle that aggression against a member of the League is a matter of concern to all the members, and not one as to which they are entitled to adopt an attitude of indifference.

As regards the remedying of just grievances the Assembly's action might be directed towards encouraging the use of Article 19 by declaring that an expression of opinion by a sufficient majority of the Assembly on any issue brought before it under this Article should be regarded as indicative of the probable attitude of League, members in considering any action that might subsequently be taken by the States concerned to give effect to that opinion.

Finally, the resolution might include proposals in regard to the application of the unanimity rule under Article 11, paragraph 1, and in regard to the separate and independent existence of the Covenant.

(4) In connection with the above proposals the terms of the joint communique issued by the Foreign Ministers of Belgium, Luxembourg, Holland, Norway, Sweden and Denmark after their meeting on July 23-24 are noteworthy.

'Convinced that their states should continue their participation in the work of the League of Nations, they have put on record that their Governments are decided to maintain that line of action which they indicated by declaring that they regarded the system of sanctions under present conditions and as practised in past years as of a non-obligatory character. They consider further, that this non-obligatory character of sanctions applies not only to a special group of states but to all members of the League of Nations. They are convinced that, in the interests of the League of Nations, this right to independent judgment should be expressly established. It is from this standpoint that they are preparing their participation in the discussions of the report laid before the Assembly for its consideration by the Committee of Twenty- eight.' (5) His Majesty's Government in the United Kingdom will be glad to learn the views of other British Commonwealth Governments on the above suggestions, and if as they trust these suggestions are generally acceptable to these Governments, it is hoped that they will be prepared to instruct their representatives at the Assembly to support proposals on the foregoing lines.

[FA : A2937, L. OF N. CONSTITUTION-REFORM OF, ii]