ANNEX III

MEMORANDUM

ON

THE DRAFT OF THE CONSTITUTION

OF THE LEAGUE OF NATIONS

The people of the United States see in the draft references to "the reduction of national armaments to the lowest point consistent with national safety," "the high contracting parties will submit the whole matter to arbitration," " "permanent court of international justice,' "prohibition of all intercourse," "effective military and naval force," and, without reading deeper, many are inspired by the belief that the Constitution will secure all of these features for them. They forget that competitive struggles are still to be the order of the day between nations, as between people, and that it is not to be expected that those with whom they deal will be so altruistic that they need give no attention to their own interests. Did they but take the trouble to know what the language imports, they would discover that, on the very face of the draft, the above features were largely delusions.

They do not know, or have forgotten, that, because of just such neglect, they are obliged to let freight in foreign vessels pass through their own Panama Canal on the payment of lower toll than they are allowed to collect on that under their own flag; and that they are now on the point of doing infinitely worse, if they accept the draft as proposed.

Attention is called to the following points in its construc

tion:

I.

Although not affecting the proposed position of America adversely, the first articles should not be passed over without the following mention:

The first three articles provide for three organs: a body of delegates, in which each member nation would have three representatives; the Executive Council to have nine members; and a secretariat to be in the charge of a Secretary General. The first would be empowered to deal with "matters within the sphere of action of the League" and the second, with "any matter within the sphere of action of the League." The impression at first glance is that the body of delegates would be the popular branch of the government and would participate in the general legislation; that here is the bestowal of equal powers on the small States-the much expected democratization of the world.

In empowering the Council, however, the word “any” is placed before the word "matter" and a little comparison of the two phrases discloses that, while the one, regarding the Council, would give it plenary powers, the other, relating to the delegates, is only a clause of limitation; and simply means, that whatever they are permitted to do, must be within the sphere of action of the League. Then, on running through the instrument, it appears, that all power is specifically delegated to the Council, except that the body of delegates would be competent (1) to select the four other states to be represented in the Council (Art. III); (2) to have its attention drawn, as a friendly right, to circumstances threatening to disturb the peace,

but without power to act thereon (Art. XI); (3) to act as a substitute court of an impossible composition (Art. XV and see below); and (4) to advise the reconsideration by States of treaties and of conditions which may endanger the peace of the world (Art. XXIV). [The assent to the admission of other states to the League (Art. VII) and the power of amendment (Art. XXVI) would be exercised directly by the member States.]

When the body of delegates is convoked by our President (Art. IV) there will, therefore, be but one act that it may perform: the selection of the additional four States to be represented in the Council; but, before it can be convoked, can convene and select the four States (if, indeed, an agreement can ever be reached), the Council will, "pending the appointment," have filled these places (possibly with the representatives of dominions and colonies) or, without filling them, have completed its organization and determined upon its recommendation as to the armaments that each nation may maintain. The body of delegates can only be convoked when the occasion arises for the purposes under 2 and 3, above, and the only occasion when it can convene at its own suggestion will be for the purpose under 4, above.

Will the body of delegates ever assemble from the corners of the earth to exercise such empty privileges? Is this America's idea of fairness toward small States?

(Suggestion followed in the Revision, by the insertion of "any" in Article 3)1.

(1) This amendment constituted the only authority in the Covenant for the discussion of the question of mandates by the Assembly at Geneva, and caused much displeasure to Mr. Balfour, who depended upon the careful wording of Art. 22 of the Covenant (p. 103) to keep the subject out of the jurisdiction of the nations generally.

II.

Article IV provides, that "matters of procedure at meetings" may be decided by a majority of the States represented, but is silent as to votes upon matters of substance.

Lord Robert Cecil is reported, in the New York Times of February 23, as having stated: "the decisions of the League will, generally speaking, only be binding if unanimously arrived at"; and it seems that the President expressed this idea in connection with our control of immigration; while Senator Borah maintains, that a majority of five would suffice; and doubtless most jurists would so interpret the articles. Indeed, it could not be held, that a measure supported by the votes of three members of the Council, being a majority of a quorum, would be illegal; and that fact might afford a sufficient argument to uphold some pernicious action and lead to very serious results.

(Suggestion followed in Article 5).

III.

Next, arises the doubt, introduced in Article VII, defining member States by the words: "shall be limited to fully self-governing countries, including dominions and colonies." This has already been interpreted to give Great Britain additional votes for Canada and each colony and would mean a league within the League, unless the obligation in Article XXV, "the present covenant is accepted as abrogating all obligations inter se which are inconsistent with the terms thereto," is calculated to sever the relationship and render the British possessions inde

pendent states, which could not well be sustained. The expression is equivocal, and the addition “including dominions and colonies," has no use unless it is the intention to give Great Britain extra votes. It gives rise to the supposition that the unit of representation in international relations is not to be the independent state and that India, or Ireland, for instance, may appear as a litigant. It should be stated squarely.

(Suggestion followed by naming them in the Annex).

IV.

The Secretary General, for whom provision is made in Article V, would be an unnecessarily exalted personage; for, clothed with the power conferred under Article XV, he could cause nations to wait their turn and attend upon his convenience and even pleasure, as to when he would make the "necessary arrangements for a full investigation and consideration" of their disputes. As he is to act in the capacity of Secretary "at all meetings of the body of delegates or of the Executive Council," there will doubtless be long periods when he cannot give attention to the making of arrangements, and it may even be necessary for one body to defer its meeting until the other has adjourned and he can be present so that it may legally function.

He should simply be a court clerk, as is the clerk of the Court of The Hague, without powers of discretion, responsible for the functioning of his office in a prescribed manner and for the custody of documents, the preparation