¹ The text of what are believed to be the material portions of the Covenant will be found on pp. 18–21, post.

² On this general question see, amongst recent publications, Professor Brierly, , ‘International Law and Besort to Armed Force,’ this Journal (1932), IV, p. 308Google Scholar; DrMcNair, , ‘The Legal Meaning of War,’ Grotius Society Publications for 1926Google Scholar; Professor Wright, Qnincy, ‘When Does War Exist?’ American Journal of International Law, vol. xxvi (04, 1932), p. 362CrossRefGoogle Scholar.

³ Those who have given special attention to the point will be acquainted with the very able discussion of the matter in M. de Brouckère's Report to the Committee of the Council of the League, made between September and December, 1926 (No. 27 of A. 14, 1927, V, League of Nations Publications).

⁴ The Chinese claim that in the Sino-Japanese conflict of 1931–2 in and near Shanghai their casualties in killed, wounded and missing, amounted to 24,000 officers, men and civilians. (League of Nations Publication, C. 663, M. 320, 1932, vii, p. 86.) They also give a figure of 1,500,000,000 Mexican dollars as material loss. Even if we allow for considerable exaggeration, especially in the latter figure, it is obvious that this conflict in its outward manifestations was not unlike ‘war.’

⁵ Memoirs of a British Agent. Lockhart, Bruce. London and New York: Putnam. 1932Google Scholar.

⁶ Unless possibly the other State made no resistance.

⁷ International Law (8th ed. 1924), Oxford Univ. Press. Ch. III, p. 81, s. 15.

⁸ International Law (2nd ed.), vol. ii, p. 1.

⁹ International Law (4th ed.), vol. ii, s. 54, p. 115.

^9a Op. cit. p. 4.

¹⁰ Droit International Public, tome ii, s. 1000.

¹¹ See for the text, pp 19–21, post.

¹² Even if any doubt could be felt on this head if Art. 19 is looked at by itself, Art. 16 makes it abundantly clear that the action forbidden is unilateral. You cannot reasonably have sanctions limited to one Power if the thing forbidden requires the combined action of two Powers.

¹³ See The Nayade (1802) 4 C. Rob. p. 253Google Scholar, cited by McNair, , ‘The Legal Meaning of War’—Grotius Society Publications, 1926Google Scholar. Bat it may be observed that in this case there was evidence that a state of war in fact existed between Portugal and France, and Lord Stowell only says—it in submitted, by way of dictum— that ‘in cases of this kind it is by no means necessary that both countries should declare war’ —(italics not in the original report), implying only that action without declaration might be enough.

¹⁴ Moore's Digest, vii, 153, 154. Cited by Hyde, International Law, vol. ii, p. 189— apud McNair, p. 4.

¹⁵ Thus McNair (p. 10) deduces four prepositions from the authorities which he cites, including The Nayade, ubi sup., but no one of them includes the proposition that the unilateral action of one State alone produces ‘war.’ On the other hand (p. 17), he submits that a state of war occurs when an act of force is done under the authority of a State ‘animo belligerendi.’

The Assembly of the League, at its second meeting in 1921, when laying down guiding principles for the application of Art. 16, expressly declared (Resolution of October 4, 1921) that the unilateral act of the covenant-breaking State, could not create a state of war; it only entitled the other Members of the League to resort to acts of war, or declare themselves to be in a state of war with the covenant-breaking State. (Assembly Resolution of October 4, 1921, League of Nations Publication, A. 14, 1927, v, p. 42.) This resolution is of very high authority. M. de Brouckère (ubi supra) calls the statement, that the unilateral act of one State cannot create a state of war, ‘a truism.’

¹⁶ Bowen, Lord (then Bowen L.J.) in Edgington v. Fitzmaurice (1885) L. R. 29 Ch. D. 459, 483Google Scholar.

¹⁷ Instances have occurred in history in which one Power has declared that it interprets action by another Power which was perfectly compatible with the maintenance of peaceful relations, as an act of war or even as a declaration of war. And war has followed. Thus one Power has claimed to discover an animus belligerendi in the actions of another. Such incidents are interesting as evidence (1) of the desire of every State not to appear as first ‘resorting to war,’ (2) of the ease with which an animus belligerendi may be imputed and how offensive, and how dangerous is the imputation, (3) of the difficulty of applying a formal test for the purpose of deciding which of two Powers ‘resorts to war.’ The question is always one of fact. But it must be observed that when an opposing Power interprets action taken by its adversary as an act of war, it has itself the intention eo ipso of declaring war. The situation of Members of the League in relation to an act that may or may not be an act of war by another Member is quite different. They have not to consider whether as a matter of their own policy they will declare war, but whether on the true interpretation of the Covenant there has been a ‘resort to war’ by another Power.

¹⁸ Per Brian C.J. Y. B. 17 Edw. 4, Pasch. pl. 2. Holdsworth, , ‘History of English Law,’ vol. iii, p. 374 (3rd ed. 1923. Metbuen. London)Google Scholar.

¹⁹ It is pertinent to observe that this question of the meaning of the expression animus belligerendi may have special importance in connexion with a civil war. At the outbreak of the American Civil War the Northern States claimed that their military operations did not create a state of belligerency and would, no doubt, have asserted quite truly that they had no animus belligerendi in the sense of carrying on what for international purposes was ‘war.’ On this showing, the animus belligerendi was present, if at all, on the side of the Southern States alone. The British argument that the institution of the blockade of the Southern ports wes only consistent with the existence of a state of war was based on the assumption (which, it is submitted, is true), that a conscious intention to carry on war is not necessary to the existence of a state of war when the things done are only consistent with-the existence of a state of war (See, on this subject, Great Britain and the Law of Nations. Smith, H. A.. London: F. S King. 1932. Vol. i, 303 and following.)Google Scholar

²⁰ Ante, p. 5.

²¹ See e.g. Schücking and Wehberg, Die Satzung des Volkerkondea (ad Art. 12 of the Covenant) (2nd ed. p. 509).

²² If it is some obligation of the Covenant, other than the obligation not to resort to war,' which is violated, the sanction prescribed by the Covenant (last paragraph of Art. 16) is expulsion from the League. This would not seem an appropriate penalty. It certainly is not remedial in its operation.

²³ See on this point, the paper on ‘The Weakness of Peace Machinery,’ in the series of ‘Foreign Policy Reports,’ published by the (American) Foreign Policy Association, vol. viii, No. 14 (09 14, 1932)Google Scholar.

²⁴ League of Nations Publication, A. 14, 1927, v, p. 17. Italics not in the original. The Members of the Committee were: MM. De Aguëro y Bethancourt(Cuba), Gout (France), Finlay, Sir William (Great Britain), Baroni, replacing Schanzer (Italy), Oka (Japan), Sparre (Norway), Garnica (Spain), Huber (Switzerland). The sittings were attended by Commends tore Anzilotti (then Under-Secretary-General of the League), and M. Hammorskjöld (then a Member of the Secretariat of the League) acted as Secretary.

²⁵ See League of Nations Official Journal, April, 1924, p. 524. In connexion with this case the Article by Professor Charles De Visscher in the Revue de Droit International et de Législation Comparée, 3rd Series, vol. v, especially at pp. 377 and following, is of peculiar value and interest. M. De Yisscher was a member of the Jurists' Committee. The other members were M. Adatci (Japan), Lord Buckmaster (British Empire),) M. Fromageot (France), M. Rolandi Ricci (Italy), M. Unden (Sweden), M. Villaurrutia (Spain), M. Van Eamel (Holland—Legal Department of the League).

²⁶ League of Nations Official Journal, February, 1926, p. 173.

²⁷ E.g. Oppenheim, ii, 23–4; Westlake, ii § 55.

²⁸ Quoted from the report in The Times newspaper, September 28, 1932. Italics not in the original.

²⁹ It is worth recalling that some earlier drafts of the Covenant used this phrase in place of ‘resort to war.’ The interpretation now given by the Council may serve as an illustration of the fragility of attempts to construct arguments on the basis of speculations suggested by travaux preparatoires, especially when they are incomplete. (See Foreign Policy Association Reports, ubi supra, and Miller, D. H., The Drafting of the Covenant (Putnam. New York, London, 1928), vol, iiGoogle Scholar, and cf. e.g. President Wilson's draft of January 20, 1919, p. 100, ‘will in no case resort to armed force,’ and p. 101, ‘If any Power shall declare war or begin hostilities or take any hostile step short of war,’ and the British draft of the same date, ibid. p. 109, ‘will not … go to war.’) For you may argue either (1) that the earlier draft was deliberately rejected on this point, and therefore the interpretation of the Council is wrong, or (2) that the final draft is to be interpreted by the earlier proposals, and therefore the interpretation of the Council is right. The author is assured by a friend who was in a position to be well acquainted with the history of the drafts of the Covenant, that so far as he knows the change was made without conscious reference to the problem discussed in the text.

³⁰ So Professor De Vissoher's argument in the Revue de Droit International, ubi supra.

³¹ See M. Briand's speech in the Greco-Bulgarian Affair. Official Journal of the League of Nations, ubi supra.

³² See McNair, ubi supra, pp. 11 and 17.

³³ There are other, quite distinct, retroactive effects of the outbreak of war, e.g. the invalidity of transfer of property made in anticipation of a declaration of war. (The Sally (1795) 3 C. Rob. 300 (n), and The Southfield (1915) 1 B. & C. 333, P. C.; approved in The Dakta (1917) 2 B. & C. 358, P. C.—cited by McNair, ubi supra.)

³⁴ Speech of March 28, 1928, before the League for Political Education at New York. (Cited by Mr. Stimgon in his speech of August 8, 1930, to the Council of Foreign Relations, New York.)

³⁵ Article in the American Journal Foreign Affairs, for October, 1932, p 73.

³⁶ A. W. Dulles, ibid. p. 56.