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The Munich Settlement and International Law1

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
Quincy Wright*
Affiliation:
Of the Board of Editors
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Extract

In his world broadcast on September 27, 1938, immediately after his conversations at Godesberg with Chancellor Hitler, Prime Minister Chamberlain pointed out that he had gained the Czech Government’s consent to the Berchtesgaden proposals which “gave the substance of what Herr Hitler wanted,” and that he “was taken completely by surprise” when at Godesberg he “found that he [Hitler] insisted that the territory should be handed over to him immediately, and immediately occupied by German troops without previous arrangement for safeguarding the people within the territory who were not Germans or did not want to join the German Reich.” This attitude he found “unreasonable” but added that in spite of sympathy “with a small nation confronted by a big and powerful neighbor we can not in all circumstances undertake to involve the whole British Empire in war simply on her account. If we have to fight it must be on a larger issue than that. I am myself a man of peace . . . but if I were convinced that any nation had made up its mind to dominate the world by fear of its force, I should feel that it must be resisted.”

Type
Research Article
Information
American Journal of International Law , Volume 33 , Issue 1 , January 1939 , pp. 12 - 32
Copyright
Copyright © The American Society of International Law 1939

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Footnotes

1

The important documents dealing with the Czech crisis were printed in British White Papers, Misc. Nos. 7, 8 (1938), Cmd. 5847, 5848. The documents connected with President Koosevelt’s appeal were printed in Dept. of State Press Releases, Oct. 1, 1938, Vol. 19, No. 470. These documents, together with extracts from the important debates in the British Parliament on Sept. 28 and Oct. 3; Commissar Litvinov’s speech in the League of Nations Assembly on Sept. 21; the texts of the Karlsbad 8 points of April 24, and the Czechoslovak “fourth plan” of Sept. 6; and various speeches and broadcasts by Hitler, Beneš, Henlein, Chamberlain, and Mussolini, are collected in International Conciliation, November, 1938, No. 344 (cited Int. Con., Nov. 1938). Most of these documents are also printed in the Royal Institute of International Affairs, Bulletin of International News, Oct. 8 and 22, 1938, Vol. 15, Nos. 20, 21 (cited Bull. Int. News). The detailed chronology arranged by countries, published in the bi-weekly issues of this publication contains additional information on the crisis. The debates on the crisis in the British and several of the Dominion parliaments is summarized in Journal of the Parliaments of the Empire, October, 1938, Vol. 19, No. 4. For full texts of former, see Parliamentary Debates, House of Commons, Vol. 339, col. 5 ff.; House of Lords, Vol. 110, col. 1297 ff.

References

2 Bull. Int. News, Oct. 8, 1938, p. 30.

3 Parl. Deb., Commons, Vol. 339, cols. 42, 45; Bull. Int. News, Oct. 8, 1938, p. 10; Oct. 22, 1938, p. 19; Int. Con., Nov. 1938, p. 467.

4 Parl. Deb., Commons, Vol. 339, cols. 34, 36; Bull. Int. News, Oct. 22, 1938, p. 21.

5 C. R. M. F. Cruttwell, in A History of Peaceful Change in the Western World, Ch. 1.

6 See Q. Wright, “Article 19 of the League of Nations Covenant and the Doctrine ‘Rebus Sic Stantibus,’” Proceedings American Society of International Law, 1936, pp. 62-65.

7 Augustine, St., De Civitate Dei, xix, 13 Google Scholar. Regout, Robert (La doctrine de la guerre juste (Paris, 1935), p. 40 Google Scholar) writes: “One knows the broad compass and the dominant significance of the idea of ‘peace’ in the Augustinian theory of the kingdom of God, an idea which does not coincide at all with that of the state of peace in contrast to the state of war. Peace, he said, is ‘tranquillity in order’ (franguillitas ordinis); it is not tranquillity under the yoke of the evil doer, but tranquillity in justice, the harmony of order.” Bouvier (Law Dictionary) defines “Peace” as “The tranquillity enjoyed by a political society, internally by the good order which reigns among its members and externally by the good understanding it has with other nations.”

8 It is in the insistence upon the importance of a proper procedure as evidence of justice in a given transaction, that the conception of just war in the League of Nations Covenant differs from the medieval conception of just war. The latter attached more weight to the subjective estimate of the justice of the ends aimed at than to the means utilized. See Wright, Q., this Journal, Vol. 30 (1936), p. 54 Google Scholar.

9 Wright, Q., “The Outlawry of War,” this Journal, Vol. 19 (1925), pp. 89–94 Google Scholar.

10 Wright, Q., “The Meaning of the Pact of Paris,” this Journal, Vol. 27 (1933), p. 5 ffGoogle Scholar.

11 Fundamental Principles of International Policy. Statement of the Honorable Cordell Hull, Secretary of State, July 16, 1937, together with comments of foreign governments (Washington, Govt. Printing Office, 1937), p. 1. The German reply read: “The Beich government has taken note of the statement of Secretary of State Hull with due interest. Its basic principle is as is generally known directed toward the regulation of international relations by pacific agreement and hence coincides with the ideas developed by the Secretary of State.” (p. 24.) The endorsement of the other states was both longer and more en thusiastic.

12 Czechoslovakia and Poland did not exist when the Hague Conventions were negotiated, but have ratified the 1907 Convention since the war. Serbia ratified the 1899 Convention and Russia ratified both before the World War. Yugoslavia and the Soviet Union, which probably are respectively the same states, are listed as bound by the conventions in “A List of Treaties and Other International Acts of the United States of America in Force December 31, 1932,” compiled by the Treaty Division, Department of State, Treaty Information, Dec. 31, 1932, Supplement to Bulletin No. 39.

All were parties to the Convention of 1907 except Great Britain, Italy and Yugoslavia (Serbia), which had ratified the 1899 Convention. The quotations are from the 1907 Convention, but the 1899 Convention is the same with respect to the articles mentioned, except that the parties to the latter merely “recommend” mediation (Art. 3) and commissions of inquiry (Art. 9), instead of “deeming” these procedures “expedient and desirable.” Although the Hague Conventions were not specifically mentioned in the peace treaties after the World War, in spite of efforts of the French representative, M. Bourgeois, it is clear from the discussion in the League of Nations Commission that there was no intention to supersede these conventions, and the Statute of the Permanent Court of International Justice (Art. 1) specifically refers to the continuance of the Court of Arbitration organized by them ( Miller, D. H., The Drafting of the Covenant (New York, 1928), Vol. 1, pp. 175, 261-263Google Scholar). Arts. 282 to 295 of the Treaty of Versailles, and Arts. 217 to 230 of the Treaty of Trianon specify the “multilateral treaties of an economic and technical nature” which “alone” continue to bind Germany and Hungary respectively, but since the Hague Conventions were not treaties of that type, the fact that they are not mentioned in these articles does not indicate that Germany and Hungary were released from them.

13 Italy gave notice of withdrawal from the League of Nations on Dec. 11, 1937, but the two-year period had not expired at the time of the Munich settlement. Germany’s notice of withdrawal made on Oct. 21, 1933, had taken effect on Oct. 21, 1935.

14 Wright, Q., “The Rhineland Occupation and the Enforcement of Treaties,” this Journal, Vol. 30 (1936), p. 486 ff.Google Scholar

15 April 23, 1921, several times renewed. See League of Nations Treaty Series, Nos. 155, 455, 1288.

16 Aug. 14 and 31, 1922, ibid., No. 354.

17 Oct. 16, 1925 (one of the Locarno Agreements), supplementing French-Czechoslovak alliance of March 4, 1924, ibid., Nos. 1298, 588.

18 May 16, 1935, ibid., No. 3677.

19 The French-Czechoslovak treaty made at Locarno when Germany was entering the League referred only to Art. 16, but the Soviet-Czechoslovak treaty made after Germany had withdrawn, referred also to Art. 17.

20 Speech of Foreign Minister Eden in House of Commons, March 9, 1936. This declaration was elaborated in the meeting of the Locarno Powers at London on March 12, 1936, set forth in a British White Paper, March 19, 1936 (Cmd. 5134), and explained by Mr. Eden in the House of Commons, March 26, 1936. (See Bull. Int. News, March 21, 1936, p. 33 ff.; April 4,1936, pp. 3-8, 27-30.) The League of Nations Council has had upon its agenda the question of the effect of the German denunciation upon the Locarno treaties, but consideration of the question has several times been adjourned. (See L. of N. Monthly Summary, May, 1938, p. 110.)

21 On German rearmament, see L. of N. Council resolution, April 17, 1935, discussed by Garner, J. W. and Jobst, Valentine, this JOURNAL, Vol. 29 (1935), p. 569 ff.Google Scholar; C. G. Fenwick, ibid., p. 675. On Rhineland occupation, see L. of N. Council resolution, March 19, 1936, discussed by Wright, Q., this JOURNAL, Vol. 30 (1936), p. 487 Google Scholar. On Spanish intervention, see L. of N. Council resolutions of Dec. 12, 1936, May 29, 1937, and Sept. 30, 1938, which, however, failed to accept definitely the Spanish Government’s charge that Italy and Germany were intervening in violation of international law and the non-intervention agreement of Aug. 15, 1936. See Garner, J. W., “Questions of International Law in the Spanish Civil War,” this Journal, Vol. 31 (1937), p. 66 ffGoogle Scholar., and N. J. Padelford, “The International Non-intervention Agreement and the Spanish Civil War,” ibid., pp. 578, 588. On Austrian annexation the League of Nations seems to have confined action to the Secretary General’s acknowledgment and communication to the members of the League of a note from Germany enclosing the law of March 13, 1938, providing for this annexation. (Monthly Summary, March, 1938, Vol. 18, p. 62.) On March 20, 1938, Mexico sent a note to the Secretariat describing this annexation as “a flagrant violation of the Covenant and of the treaties of Versailles and St. Germain.” (Bull. Int. News, April 2, 1938, Vol. 15, p. 48.) See Fenwick, C. G., “Fuit Austria,” this Journal, Vol. 32 (1938), p. 302 ff.Google Scholar, and Q. Wright, “The Denunciation of Treaty Violators,” ibid., pp. 526, 534.

22 Proceedings American Society of International Law, 1915, reprinted in Int. Con., March, 1916, No. 100, p. 23.

23 The details of this history can be found in the Bulletin of International News and in Foreign Policy Reports, New York, March 15 and Nov. 15, 1938.

24 Mair, L. P., The Protection of Minorities (London, 1928), p. 125 Google Scholar.

25 Int. Con., Nov. 1938, p. 401.

26 See Toynbee, Arnold J., “Czechoslovakia’s German Problem,” The Economist, July 10, 1937, Vol. 128, pp. 740–741 Google Scholar, who recognized the problem as of general European significance. Rejecting both the “solution Barthou” excluding Germany from southeastern Europe, and the “Naumannische Losung” excluding all others, he suggested that “the European statesmen have to find a solution which will give Germany as large an economic scope in central Europe as may be compatible with the maintenance of Germany’s eastern neighbors.” (p. 741.)

27 Parl. Deb., Commons, Vol. 339, col. 5; Bull. Int. News, Oct. 8, 1938, p. 31; Int. Con., Nov. 1938, p. 447.

28 Cmd. 5847, Doc. 1, p. 4; Bull. Int. News, Oct. 8, 1938, p. 12; Int. Con., Nov. 1938, pp. 424 ff. and 405 for text of plan.

29 Int. Con., Nov. 1938, p. 411 ff.

30 International Law Association, Report of 38th Conference, Budapest, 1935, p. 62.

31 See remarks of Lord Chancellor (Viscount Sankey), ibid., p. 330. See also remarks of Lord Askwith (p. 318) and Lord Howard of Penrith (p. 321).

32 The issue was raised in the Budapest Conference by Dr. Walter Simons, who thought the task of drawing this line was political rather than juridical, but, concluding that this article was a “legal consequence of the treaty of Paris,” the Association rejected Dr. Simons’ motion to strike it out. Ibid., pp. 49-52.

33 It may be compared to President Wilson’s sending of John Lind to mediate among the various factions in Mexico in August, 1913, though in that case the United States did not recognize any government in Mexico, and consequently there was no formal acceptance of his mediation. See President Wilson’s address to Congress, Aug. 27,1913, World Peace Foundation Pamphlet, Feb. 1916, p. 15.

34 Parl. Deb., Commons, Vol. 339, col. 14; Bull. Int. News, Oct. 8, 1938, p. 32; Int. Con., Nov. 1938, p. 454.

35 Cmd. 5847, Doc. 2; Int. Con., Nov. 1938, p. 430; Bull. Int. News, Oct. 8, 1938, p. 4 ff., which prints this proposal in parallel columns with the Godesberg memorandum and the Munich agreement.

36 Parl. Deb., Commons, Vol. 339, col. 17; Bull. Int. News, Oct. 8, 1938, p. 34.

37 Int. Con., Nov. 1938, p. 419.

38 Daladier declared on Sept. 1, and again on Sept. 23, that France would stand by its treaty obligations in the event of an open aggression by Germany against Czechoslovakia, and Chamberlain stated that Daladier told him this on Sept. 26. Bull. Int. News, Sept. 10, 1938, p. 6; Oct. 8, 1938, pp. 37, 50.

39 “They (France and Great Britain) informed us that they could not extend aid in the event we were attacked by Germany and they were of the opinion such a conflict would have been inevitable had Czechoslovakia refused to cede the territories of the German population.” (Int. Con., Nov. 1938, p. 420.) See also Lord Cecil’s quotation of Anglo-French statement to Czechoslovakia, Parl. Deb., Lords, Vol. 110, col. 1329.

40 Parl. Deb., Commons, Vol. 339, col. 20; Bull. Int. News, Oct. 8, 1938, p. 33; Int. Con., Nov. 1938, p. 458.

41 Cmd. 5847, Doc. 6; Bull. Int. News, Oct. 8, 1938, p. 4; Int. Con., Nov. 1938, p. 437.

42 Cmd. 5847, Doc. 3; Int. Con., Nov. 1938, p. 432.

43 Parl. Deb., Commons, Vol. 339, col. 21; Bull. Int. News, Oct. 8,1938, p. 36; Int. Con., Nov. 1938, p. 459.

44 Cmd. 5847, Doc. 7; Int. Con., Nov. 1938, p. 439.

45 Int. Con., Nov. 1938, p. 422; Bull. Int. News, Oct. 8, 1938, p. 37. Litvinov is said to have made a similar statement to the German Ambassador early in September. (Ibid., Sept. 10, 1938, p. 6.)

46 Parl. Deb., Commons, Vol. 339, col. 23; Bull. Int. News, Oct. 8, 1938, p. 37; Int. Con., Nov. 1938, pp. 459-460.

47 Ibid., p. 422.

48 Parl. Deb., Commons, Vol. 339, col. 5; Int. Con., Nov. 1938, p. 447; Bull. Int. News, Oct. 8, 1938, p. 30.

49 L. of N. Monthly Summary, Sept. 1938, pp. 221, 258.

50 Int. Con., Nov. 1938, p. 422.

51 Cmd. 5848, Docs. 1, 2; Parl. Deb., Commons, Vol. 339, col. 25; Bull. Int. News, Oct. 1938, pp. 37-39; Int. Con., Nov. 1938, pp. 460-462.

52 Ibid., pp. 484-485.

53 Bull. Int. News, Oct. 8, 1938, p. 29.

54 Parl. Deb., Commons, Vol. 339, col. 26; Int. Con., Nov. 1938, p. 462.

55 Cmd. 5848, Doc. 4; Int. Con., Nov. 1938, p. 463; Bull. Int. News, Oct. 8, 1938, p. 3 ff.

56 Bull. Int. News, Oct. 8, 1938, p. 48. For Beneš’ letter of resignation Oct. 5, 1938, see Int. Con., Nov. 1938, p. 476.

57 Harold J. Tobin, in The Termination of Multipartite Treaties (1933), p. 218 ff.; Q. Wright, in Proceedings American Society of International Law, 1936, p. 64.

58 Letters of Historicus on Some Questions of International Law (London, 1863), p. 41.

59 Virgil, Aeneid, VI, line 126. In his radio address of Oct. 26, 1938, President Roosevelt commented on some of the consequences: “It is becoming increasingly clear that peace of fear has no higher or more enduring quality than peace of the sword. There can be no peace if the reign of law is to be replaced by a recurrent sanctification of sheer force. . . . You can not organize civilization around the core of militarism and at the same time expect reason to control human destiny.” (Dept. of State Press Releases, Oct. 29, 1938.)

60 Miller, D. H., The Drafting of the Covenant, Vol. 2, p. 12 Google Scholar.

61 Ex parte Milligan (1867), 4 Wall. 2.

62 Dicey, A. V., Introduction to the Study of the Law of the Constitution (8th ed., London, 1915), Ch. 8Google Scholar.

63 SirWilliams, John Fischer, Some Aspects of the Covenant of the League of Nations (London, 1934), Ch. 5Google Scholar.

64 Apart from such special treaties, it has been argued that the League guaranties require only collective, not individual action (See Williams, op. cit., Ch. 4, and “Great Britain and the League,” International Affairs, March-April, 1938, Vol. 17, p. 187 ff.); but the commonly-accepted opinion holds the obligations under Arts. 10 and 16 to be individual. ( Wright, Q., “The Test of Aggression in the Italo-Ethiopian War,” this Journal, Vol. 30 (1936), p. 46 Google Scholar.)