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The League of Nations and Unanimity

Published online by Cambridge University Press:  04 May 2017

John Fischer Williams
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Extract

The first two paragraphs of Article 5 of the Covenant of the League of Nations provide:

Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council, shall require the agreement of all the members of the League represented at the meeting.

All matters of procedure at meetings of the Assembly or of the Council, including the appointment of committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the members of the League represented at the meeting.

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 3 , July 1925 , pp. 475 - 488
Copyright
Copyright © by the American Society of International Law 1925

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References

1 See an address by Garner, James W.Professor on “Limitations on National Sovereignty in International Relations,” American Political Science Review, vol. XIX (February, 1925).Google Scholar

2 The rule has, of course, hampered many federal developments; e.g., as to the old German Bund, see Gooch, Germany (London, 1925), p. 13.Google Scholar

3 See Pollock and Maitland, History of English Law, vol. I, pp. 539, 668, and vol. II, p. 624.Google Scholar (Writing away from a reference library, I can refer only to the first edition.)

4 See Stephen, History of the Criminal Law, vol. I, p. 305.Google Scholar“It was impossible to say what was the law as to cases in which the jury could not agree and it was possible to maintain that it was the duty of the presiding judge to confine them without food or fire till they did agree.”Google Scholar

5 See Holdsworth, History of English Law, vol. IV, p. 168, on the history of the Cortes of Aragon where until 1591 “a single dissentient could prevent the levy of a tax or the passing of a law.”Google ScholarA reader may also be reminded of the contribution which the failure to get rid of the principle of unanimity made to the destruction of Poland. See, e.g., the remarks of Bernard Connor, physician of John Sobieski, quoted by Morfill in “Poland—Story of the Nations Series” p. 191, and cf. Cambridge Modern History, vol. VIII, Chapter 17.Google Scholar

6 See Corbett on “What Is the League of Nations?” in the volume of the British Year Book of International Law for 1924, where the arguments are discussed.Google ScholarThe views of the late Professor Oppenheim will be found in his International Law, third edition, vol. I, pp. 268–70.Google Scholar Cf. Geldart on “Legal Personality,” Law Quarterly Review, vol. XXVII, “Where there are rights who can avoid seeing a person?”;Google Scholarand consider Maitland's “Essay on Moral Personality and Legal Personality,” Collected Papers, vol. Ill, p. 304.Google Scholar I ventured to indicate my own view in the course of a lecture last year at the Hague Academy of International Law.

7 Professor Garner (ubi supra, p. 19) refers to the view held by the late Alpheus H. Snow that the whole society of civilized nations and peoples form a “body politic and corporate.” I own that this seems to be passing beyond the realms of law.Google Scholar

8 We need not pause to discuss the inelegancy by which this phrase is repeated in the versions of the Covenant prefixed to each of the Treaties of Versailles, St. Germain, Trianon and Neuilly, with the result that each version of the Covenant, if construed strictly, has a different meaning.

9 See Official Proceedings of the Second Assembly of the League, pp. 355, 690, 895et passim.Google Scholar

10 Third Assembly, Official Proceedings, p. 304.Google ScholarFinal Acts of the Hague Peace Conferences, 1899 and 1907, (Pearce Higgins, The Hague Peace Conferences, pp. 66 and 67).Google Scholar

11 Second Assembly, p. 548.Google Scholar

12 Third Assembly, p. 199.Google Scholar

13 American text of Hague Peace Conventions of 1907, Scott, James Brown, The Hague Peace Conferences, vol. II, p. 289.Google Scholar

14 More accurately: this expression used by Lord Cecil (First Assembly, p. 533) is rendered officially in French by “voeu.”Google Scholar

15 So Pearce Higgins in The Hague Peace Conferences, p. 84.Google Scholar

16 See M. Hanotaux's speech at the Second Assembly (Official Proceedings, pp. 887–8), and cf. Rolin in the Revue de Droit International for 1921, p. 233 et seq.Google Scholar

17 Orders to the Secretariat can presumably be given by a simple majority if they concern internal organization only. They can be treated as being analogous to matters of procedure.

18 First Assembly, Official Proceedings, p. 529.Google Scholar

19 See Procedure for adoption of the Budget of the League, Annex II to Rules of Procedure of Assembly (October 1923), C. 356 (1) M. 158 (1).Google Scholar

20 1 have never been able to understand the sense of this implied slight on “piety.”

21 See Schanzer's, M. observations at p. 531 of the Proceedings of the First Assembly.Google Scholar

22 It is remarkable, on the other hand, to find that, according to a ruling accepted by the Second Assembly (Plenary Sittings, p. 887), the Assembly must be unanimous before it “takes the view” {estime}, though it can “recommend” (recommander) by a bare majority.Google Scholar

23 Ishould have preferred to write during “the first sitting of the Assembly,” but the practice seems to be settled as in the text.

24 See Schϋcking and Wehberg, Die Saizung des Volkerbundes, 2nd ed., p. 335, ad Article 5, and Reports of Proceedings of Second Assembly, pp. 690 and 853.Google Scholar

25 Schϋcking and Wehberg, ubi supra.

26 See League of Nations, Official Journal, Special Supplement No. 14. Minutes of First Committee.

27 It is unfortunate that the discussion in the Institute on this point is only very briefly reported in the Annuaire for 1923.

28 The French text here is very different. “L'exclusion est prononcie par le vole de tous les autres membres de la Société reprisentis au Conseil.” It will be seen that the phrase “vote of the Council” is not to be found in this text.

29 Professor Noel Baker in his book on the Geneva Protocol (London, 1925), p. 138, takes the view that recommendations of the Council under Article 16 must be unanimous. Presumably for the purpose of such unanimity the vote of the covenant-breaking state, if a member of the Council, would not be counted. But further, if the “advice” of the Council under Article 10 may be given by a majority, as the Institute of International Law has advised, it is not easy to see why its “recommendations” under Article 16 must be unanimous. “Recommendations” of the Assembly do not require unanimity.Google Scholar

30 It is familiar to English lawyers that bodies such as the committee of a club, exercising functions which are in substance judicial, must act in accordance with the requirements of “natural justice” or generally received notions of fair-play.

31 In what follows I am much beholden to MM. Schucking and Wehberg's authoritative work.

32 The provisions of the Geneva Protocol of 1924, as to decisions of the Council by a two-thirds majority should also be referred to. They bear eloquent testimony to the inevitability of an attempt to escape from unanimity when practical work has to be done.

33 See the declaration of the President of the Fourth Assembly (M. van Karnebeek) in the 13th Plenary Session (25th September, 1923) on the resolution interpreting Article 10, against which Persia alone voted.