SENATE79th Congress'!
1st Session J

/Document

l No. 33

THE DUMBARTON OAKS PROPOSALS AND THE

LEAGUE OF NATIONS COVENANT

BY

HERBERT WRIGHT

Professor of International Law, the Catholic

University of America

PRESENTED BY MR. THOMAS OF UTAH

March 26 (legislative day, March 16), 1945.—Ordered to be printed

UNITED STATES

GOVERNMENT PRINTING OFFICE

WASHINGTON : 1945

66211



A STUDY OF DUMBARTON OAKS PROPOSALS AND THE
LEAGUE OF NATIONS COVENANT

Mr. Thomas of Utah. Mr. President, there has just come to my
attention a comparative study of the Dumbarton Oaks proposals
and the Covenant of the League of Nations, prepared by Dr. Herbert
Wright, professor of international law at the Catholic University of

America and a member of the board of editors of the American
Journal of International Law. I have known Dr. Wright for a
number of years. In fact, as far back as the summer of 1926 we
were both members of a group of some 50 professors of international

law and relations who made an intensive study of international
organization in Paiis, The Hague, and Geneva. For 2 or 3 years
Dr. Wright was editor of international conferences for the Depart-

ment of State and in this capacity he attended the London Naval

Conference of 1930. About a year ago he wrote a scholarly study of

the Attitude of the United States Toward Austria, which was

published as House Document No. 477, Seventy-eighth Congress,

second session, and caused wide favorable comment.

In the same scholarly fashion he has endeavored to make this
present study as objective as possible by arranging the provisions of

the Dumbarton Oaks proposals in parallel columns with the relevant

portions of the Covenant of the League of Nations, interspersing

comments on the similarities and differences between the two instru-

ments wherever appropriate. I understand it has been read and

approved for publication by Dr. George A. Finch, editor in chief of

the American Journal of International Law, but, since the Apiil issue

of that journal will not appear before the San Francisco meeting on

April 25, he has suggested to the author that he publish it elsewhere

now and revise it after that meeting in the light of the action taken
there for publication in the July issue. Regardless of whether one

subscribes entirely to the views which he may have incidentally
expressed, it seems to me that it will be a decided convenience for
the experts who will attend the San Francisco meeting to have this

handy comparative study (Congressional Record, March 16, 1945).

ii

B@sdc$£&



THE DUMBARTON OAKS PROPOSALS AND THE
LEAGUE OF NATIONS COVENANT

By Herbert Wright, Professor of International Law, the Catholic
University of America

In publishing the tentative Proposals for the Establishment of a

General International Organization, as “the unanimously agreed

recommendations of the four delegations” of the United States, the

United Kingdom, the Soviet Union, and China, reached at Dum-
barton Oaks, Washington, on October 7, 1944, and hence popularly

called the Dumbarton Oaks Proposals, Secretary of State Cordell

Hull declared that: “These proposals are now available for full study
and discussion by the peoples of all countries.” Moreover, he

expressed his—

•

earnest hope that, during the time which must elapse before the convocation of

a full United Nations conference, discussions in the United States on this all-

important subject will continue to be carried on in the same non-partisan spirit

of devotion to our paramount national interest in peace and security which has

characterized our previous consultations . 1

The “full” conference is now scheduled to take place in San Fran-
cisco on April 25, 1945.

2
It is in the spirit of Secretary Hull's state-

ment that the following comparison and analysis of the similarities

and dissimilarities between the Proposals and the Covenant has been

undertaken. As a comparison of the purposes and principles of the

proposed Organization (DOP, I and II) and the League 3 would

extend unduly the length of this study, the discussion here has been

confined to a comparison of the application of its purposes and prin-

ciples as embodied in the technical features of organization (DOP, III

and following). For this purpose, the Proposals and the correspond-

ing relevant portions of the Covenant have been juxtaposed in

parallel columns, following the order of the former, and analytical

comments interspersed where it seemed appropriate or desirable.

It should be pointed out, however, that an important difference

between the Covenant and the Proposals is that the former constituted

Part I of the Treaty of Versailles and the other Paris suburban

treaties, while the Proposals would be embodied in an independent

instrument.

1 Dumbarton Oaks Documents on International Orgaization, U. S. Department of State Publication
2192. The text of the Dumbarton Oaks Proposals used here is that contained in this publication. This
publication and Publication 2218 have been reprinted in Publication 2223.

The text of the League of Nations Covenant used here is that contained in Llewellyn Pfankuchen, A
Documentary Textbook in International Law (New York, 1940), pp. 558-570.
In order to avoid too frequent repetition of the full name of these two instruments in the parallel quo-

tations therefrom, the abbreviations DOP and LNC have been used.
2 As of March 29, 1945. 46 nations are expected to participate in the San Francisco meeting. The Depart-

ment of State Bulletin, Vol. XII, No. 298 (March 11, 1945), p. 295; Washington, the Evening Star, March
29, 1945, p. 8. This number includes India, Lebanon, Liberia, the Philippines, Saudi Arabia, and Syria
and excludes Afghanistan, Argentina, Bulgaria, Denmark, Estonia, Finland, Germany, Hungary, Iceland,,
Ireland, Italy, Japan, Latvia, Lithuania, Poland, Portugal, Spain, Sweden, Switzerland, and "Thailand.
Ireland, Portugal, Spain, Sweden, and Switzerland are neutrals in the present war. Poland is the only
member of the United Nations in this group of noninvited nations.

3 For a brief comparison, see Hans Kelsen, The Old and New League: The Covenant and the Dumbarton
Oaks Proposals, American Journal of International Law, 39 (1945), pp. 45-46.

1



2 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

Chap. III.—Membership The original Members of the League
, , . , „ _ . , . of Nations shall be those of the Signa-

Membership of the Organization tories which are named in the Annex to
should be open to all peace-loving this Covenant and also such of those
states. DOr, ill. 1 other States named in the Annex as shall

accede without reservation to this

Covenant. LNC, I* 1

In a certain sense, the provisions of the Proposals approaches more

closely to the idea of a “ general association of nations” based upon the

broad principles of justice contained in President Wilson’s Fourteen

Points of January 8, 19 18,
4
than did the corresponding provision of

the Covenant. The Covenant restricted membership to those states
mentioned in the Annex to the Covenant, namely, the Allied and
Associated Powers and those other states invited to accede to the Cove-

nant. It excluded from original membership (1) the Central Powers

(Austria, Bulgaria, Germany, Hungary, and Turkey), although these

states signed the Paris suburban treaties, of each of which the Cove-

nant constituted Part I, and the U. S. S. R.
?
although Russia was

originally one of the Allied Powers; (2) those states which had dis-

turbed internal conditions or were not on friendly terms, at the time

of signature of those treaties, with the Government of the United

States (Costa Rica, Dominican Republic, and Mexico); and (3) a

number of other states which had not yet been accorded general

recognition by the community of nations (Afghanistan, Albania,

Egypt, Estonia, Ethiopia, Finland, Iceland, Iraq, Irish Free State,

Latvia, and Lithuania, not to mention Danzig, Liechtenstein, Lux-

embourg, Monaco, and San Marino. 5

The Hedjaz (Saudi Arabia) and the United States never exercised

their option of original membership. All of the other states mentioned

above (except Danzig, Liechtenstein, Monaco, and San Marino) even-

tually became members of the League, but there have been sixteen

withdrawals (Albania, Brazil, Chile, Costa Rica, El Salvador, Ger-

many, Guatemala, Honduras, Hungary, Italy, Japan, Nicaragua,

Paraguay, Peru, Spain, and Venezuela) and one expulsion (U. S. S. R.).

Under the Proposals, although no distinction is specifically made

between original and other members, membership in the Organization

is limited to “peace-loving states.” This is none too precise a

term.
6 Will it be restricted to those invited to participate in the

San Francisco meeting? Is the test of peace-loving to be a declara-

tion of war before February 28? Or will the membership be extended

at that meeting to include all states by reason of their very statehood?

Costa Rica desires the institution of this Organization to be

—

with so universal a nature that every State, by the very fact of being one, may
belong to the international society created, just as there is no individual but

belongs to some particular nation. 7

Similarly, Venezuela declares that

—

* * * The ideal would be for an institution of a universal character to be

secured, in which all regularly recognized States are entitled to occupy a position,

i U. S. Foreign Relations, 1918, Supp. 1, Vol. I (Washington, 1933), p. 16.

s Yet Kelsen, op. cit., p. 46, says that the League had “a universal character” and “was meant to comprise

all states of the world” and is therefore different from the Organization, which is to be limited to the “victori-

ous states.”

« Quincy Wright, A Study of War (Chicago, 1942), Vol. I, Tables 40 and 41, p. 646, gives statistics showing
that the following states have participated in the number of wars stated from 1875 to 1941: Great Britain,

13; France, 9; China, Italy, Japan, and Russia, 8 each; Turkey, 7; United States, 6; Germany 5; and Spain, 4.

7 Pan American Union, Inter-American Conference on Problems of War and Peace, Mexico City, Feb-

ruary, 1945, Handbook for the Use of Delegates (Washington, 1945), p. 115.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 3

provided that they are disposed to submit to the obligations and to practice the
principles that serve as the basis for such institution.8

Chap. IV.

—

Principal Organs

The Organization should have as its
principal organs:

a. A General Assembly;
b. A Security Council;
c. An international court of justice;

and

d. A Secretariat. DOP, IV. 1
The Organization should have such

subsidiary agencies as may be found
necessary. DOP, IV. 2.

The action of the League under this
Covenant shall be effected through the

instrumentality of an Assembly and of

a Council, with a permanent Secretariat.

LNC, II
The Council shall formulate and sub-

mit to the Members of the League for
adoption plans for the establishment of

a Permanent Court of International

Justice. * * * LNC, XIV

The Proposals provide for substantially the same organs as the

Covenant, except that there is a General Assembly instead of an

Assembly, a Security Council (plus an Economic and Social Council

and a Military Staff Committee, to be discussed later, which have

evidently been inadvertently omitted here) instead of. a Council, and

an International Court of Justice is provided for in the Proposals

directly, while only a provision for a future plan of such a court is

provided for in the Covenant. The latter was subsequently estab-

lished by a separate instrument, the Protocol of Signature of the

Statute of the Permanent Court of International Justice.9 All of

these organs are discussed in greater detail below.

Chap. V.

—

The General Assembly

SECT. A. COMPOSITION

All members of the Organization
should be members of the General As-

sembly and should have a number of
representatives to be specified in the

Charter. DOP. V. A

The Assembly shall consist of Repre-
sentatives of the Members of the
League. LNC, III. 1
At meetings of the Assembly, each

Member of the League * * * may
have not more than three Representa-

tives. LNC, III. 4

These provisions are substantially the same, except that the Charter

to be elaborated under the Proposals is to specify the number of repre-

sentatives which each member of the Organization shall have in the
General Assembly, whereas under the Covenant each member may
not have more than three representatives. The question of the num-
ber of representatives seems relatively unimportant, since each mem-
ber has only one vote in the General Assembly, regardless of the num-
ber of representatives (DOP, V. C. 1).

SECT. B. FUNCTIONS AND POWERS

The General Assembly should have
the right to consider the general prin-

ciples of cooperation in the maintenance

of international peace and security, in-

cluding the principles governing disarm-

ament and the regulation of armaments;

to discuss any questions relating to the

maintenance of international peace and

security brought before it by any mem-
ber or members of the Organization or by

The Assembly may deal at its meet-
ings with any matter within the sphere

of action of the League or affecting the:

peace of the world. LNC, III. 3

8 Pan American Union, op. cit., p. 116. Kelsen, op. cit., p. 47, likewise says that the Organization would
have universal character “only if any state is allowed to join the Organization on the condition that it ac-
cepts without reservation the obligations stipulated in the Charter. Its submission to the Charter proves

its love for peace.”

» Text in American Journal of International Law, Supp., 30 (1936), pp. 115-128; Pfankuchen, op. cit., pp.
571-584.



4 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

the Security Council; and to make
recommendations with regard to any
such principles or questions. Any such
questions on which action is necessary

should be referred to the Security Coun-
cil by the General Assembly either be-
fore or after discussion. The General
Assembly should not on its own initia-
tive make recommendations on any
matter relating to the maintenance of

international peace and security which
is being dealt with by the Security
Council. DOP, V. B. 1

Here the Proposals give the General Assembly more restricted

powers than the Covenant gave to the Assembly. If action is required,

the matter must be referred to the Security Council (cf. also DOP,
VI. B. 5). If the Security Council is considering a question, the Gen-

eral Assembly may not on its own initiative make any recommen-
dations on the matter. This would seem to mean that the Security
Council could forestall any recommendations by the General Assembly

at any time by the simple expedient of commencing the consideration

of the same question itself. 10

The General Assembly should be Any fully self-governing State, Do-
empowered to admit new members to minion or Colony not named in the
the Organization upon recommendation Annex may become a Member of the
of the Security Council. DOP, V. B. 2 League if its admission is agreed to by

two-thirds of the Assembly, provided

that it shall give effective guarantees of

its sincere intention to observe its inter-

national obligations, and shall accetp

such regulations as may be prescribed
by the League in regard to its military,

naval and air forces and armaments.

LNC, I. 2

Under the Covenant a state not mentioned in the Annex was allowed

to be admitted to the League only upon (1) the agreement of two-

thirds of the Assembly, (2) the giving of “ effective guaranties of its

sincere intention to observe its international obligations” and (3) the

acceptance of regulations prescribed by the League for “its military,

naval, and air forces, and armaments.” No such conditions were
exacted of original members of the League. Under the Proposals

admission of new members is to be by a two-thirds vote of the General

Assembly (DOP, V. C. 2), but the latter is not free to act until the

Security Council has first made a recommendation in the matter (DOP,

V. B. 2). What is to prevent the Security Council from specifying

any conditions it sees fit, when it makes its recommendations to the

General Assembly? What is to prevent the Security Council from
stymying the admission of a proposed new member by failing to make

any recommendation whatsoever?

The General Assembly should, upon
recommendation of the Security Coun-

cil, be empowered to suspend from the

exercise of any rights or privileges of

membership any member of the Organi-
zation against which preventive or en-

forcement action shall have been taken

by the Security Council. The exercise
of the rights and privileges thus sus-

pended may be restored by decision of
10 This would seem to be one answer to Kelsen’s emery, op. cit., p. 61, “which agency is authorized to

answer the question as to whether ‘action is necessary,' the General Assembly or the Security Council?”



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 5

the Security Council. The General As- Any Member of the League which has
sembly should be empowered, upon rec- violated any covenant of the League

ommendation of the Security Council, may be declared to be no longer a Mem-
to expel from the Organization any mem- ber of the League by a vote of the Coun-
ber of the Organization which persist- cil concurred in by the Representatives

ently violates the principles contained of all the other Members of the League

in the Charter. DOP, V. B. 3 represented thereon. LNC, XVI. 4

Under the Covenant expulsion from membership in the League

required a unanimous vote of the Council (exclusive of the member

concerned). The U. S. S. E. was expelled under this procedure,

although the representatives of two nonpermanent members of the

Council (Iran and Peru) were not present. Under the Proposals

expulsion from membership in the Organization requires only a two-

thirds vote of the General Assembly (DOP, V. C. 2), but the latter

cannot act until after the Security Council has first made a recom-
mendation in the matter. The Security Council has the initiative,

therefore, but the General Assembly makes the final decision.

Under the Covenant expulsion may be voted for the violation of
“any covenant of the League.” Under the Proposals it may be voted
only for the “persistent” violation of “the principles contained in the

Charter.” Venezuela declares that

—

there is not seen the purpose of expulsion, which would mean the permanent
exclusion of a State from the circle of international Society and is contrary to the

ideal of the universality of the institution. 11

Point is added to this contention by the fact that the Proposals also

provide for the partial or complete suspension from the privileges of

membership by the General Assembly in the case of a member “against
which preventive or enforcement action shall have been taken by the

Security Council,” which, as in the case of expulsion, can only be done

“upon recommendation of the Security Council.” It should be noted,

however, that the General Assembly has nothing whatever to do with

the lifting of such a suspension, since this is left exclusively to the

Security Council. No provision is made in the Covenant specifically
for suspension from the privileges of membership, although certain

sanctions (LNC, XVI and XVII) can be invoked against a covenant-
breaking member.

The General Assembly should elect * * * These four [nonpermanent]
the non-permanent members of the Members of the League shall be selected
Security Council and the members of by the Assembly from time to time in
the Economic and Social Council pro- its discretion. *

*' * LNC, IV. 1
vided for in Chap. IX. It should be The first Secretary-General shall be
empowered to elect, upon recommenda- the person named in the Annex; there-
tion of the Security Council, the Secre- after the Secretary-General shall be ap-

tary-General of the Organization. It pointed by the Council with the ap-
should perform such functions in rela- proval of the majority of the Assembly,

tion to the election of the judges of the LNC, VI. 2
international court of justice as may
be conferred upon it by the statute of
the court. DOP, V. B. 4

There is no substantial difference in the manner of selection of the
nonpermanent members of the Council and the Security Council
(and the Economic and Social Council, which is to assume some of
the functions exercised by the Council of the League).
Apart from the fact that the original Secretary-General of the

League (Sir Eric Drummond) was specifically named in the Annex

11 Pan American Union, op. cit., p. 121. Kelsen, op. cit., pp. 48-50, likewise questions the desirability of
expulsion as a sanction for violation, since provision is also made for suspension of the rights of membership.



6 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

to the Covenant, there is no substantial difference between the twQ

instruments with regard to the selection of the Secretary-General.

Under the Covenant he was appointed by the Council with the
approval of a majority of the Assembly. Joseph Avenol was chosen

in this way in 1933 to succeed Sir Eric Drummond. Under the
Proposals the Secretary-General is to be elected by a majority of

the General Assembly, upon the recommendation of the Security

Council. (See also DOP, X. 1.) In both cases the larger body plays
a subordinate role, the action of the smaller body being decisive.

Article IV of the Statute of the Permanent Court of International
Justice provides that

—

The members of the Court shall be elected by the Assembly and the Council
from a list of persons nominated by the national groups in the Court of Arbitra-
tion, in accordance with the following provisions.

Presumably no change was intended in the Proposals from the pro-

visions of the Covenant and the Statute of the Permanent Court of

International Justice with regard to the role of the larger body in

the election of the judges of the court.

The General Assembly should appor- The expenses of the League shall be
tion the expenses among the members borne by the Members of the League in
of the Organization and should be em- the proportion decided by the Assembly,

powered to approve the budgets of the LNC, VI. 5
Organization. DOP, V. B. 5

There seems to be no substantial difference on this matter between

the provisions of the Proposals and the provisions of the Covenant

and the practice thereunder.

[DOP, V. B. 6-8, deal specifically [Not covered specifically by the LNC,
with the power of the General Assembly but may be implied from LNC, III. 3,
to initiate studies, make recommenda- above.]
tions and consider reports from the

Security Council and other bodies of the

Organization.]

. sect. c.

—

voting At the meetings of the Assembly, each

_ , , „ „ . . Member of the League shall have one
Each member of the Organization vote * * * LNC III. 4

should have one vote in the General

Assembly. DOP, V. C. 1

There is no substantial difference on this matter between the

Proposals and the Covenant.

Important decisions of the General

Assembly, including recommendations

with respect to the maintenance of inter-

national peace and security; election of

members of the Security Council; elec-
tion of members of the Economic and

Social Council; admission of members,

suspension of the exercise of the rights

and privileges of members, and expul-

sion of members; and budgetary ques-

tions, should be made by a two-thirds
majority of those present and voting.

On other questions, including the de-
termination of additional categories of

questions decided by a two-thirds ma-

jority, the decisions of the General

Assembly should be made by a simple
majority vote. DOP, V. C. 2

Except where otherwise expressly

provided in this Covenant or by the

terms of the present Treaty, decisions

at any meetings of the Assembly
* * * shall require the agreement of

all the Members of the League repre-

sented at the meeting. LNC, V. 1
All matters of procedure at meetings

of the Assembly * * *, including

the appointment of Committees to in-

vestigate particular matters, * * *

may be decided by a majority of the
Members of the League represented at

the meeting. LNC, V. 2
[LNC, I. 2, provides for two-thirds

vote of the Assembly for election of

new members.]
[LNC, IV. 2 bis, provides for two-

thirds vote of the Assembly for rules



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 7

dealing with election of non-permanent

members of the Council.]

[LNCI XVI. 4, provides for unanimity

of the Council, excepting the offending

member, in cases of expulsion.]

Important differences are to be noted here. For expulsion from

membership in the League, the Covenant required the unanimous

vote of the Council (except the member concerned). For expulsion

from membership in the Organization, the Proposals require only a

two-thirds vote of the General Assembly of those present and voting.

This would seem to be a shift of the control of the question of expulsion

from the smaller body (representing the hegemony of the great powers)

to the larger body (representing the equality of the states), except

that no action in this regard can be taken by the General Assembly

until after recommendation by the Security Council (DOP, V. B. 3)
and the Security Council would virtually have a liberum veto on such

a question by reason of its probable ability to control the votes of

one more than one-third of the members of the General Assembly

actually voting on the question.

The Covenant required a majority vote of the Assembly on all

matters of its procedure, including the appointment of investigating

committees, a two-thirds vote of the Assembly for the election of

new members of the League and for rules dealing with the election of

nonpermanent members of the Council and a unanimous vote of the

Assembly on all other matters coming before it not otherwise expressly

provided for in the Covenant or the Treaty of Versailles. 12 The Pro-

posals, on the other hand, require a two-thirds vote of those present

and voting in the General Assembly on the important questions

enumerated in DOP, V. C. 2, but on all other questions, including the
addition of new categories requiring a two-thirds vote, only a simple

majority of the General Assembly is required. Nothing is said as to

whether the reverse would be true, namely, that only a majority

would be required to remove a question from the requirement of a

two-thirds vote.

The differences in the Proposals are evidently intended to correct

some of the ambiguities of the Covenant on the question of voting in

the Assembly, which caused so many controversies in the functioning
of the Assembly in actual practice. 13

sect. d.—procedure The Assembly shall meet at stated
„ , . , _ , intervals and from time to time as

The General Assembly should meet occasion may require * * * LNC,
in regular annual sessions and in such jjj 2
special sessions as occasion may require.
DOP, V. D. 1

The Proposals require “ regular annual sessions’’ of the General

Assembly instead of merely “at stated intervals” as required for the

Assembly by the Covenant.

The General Assembly should adopt All matters of procedure at meetings
its own rules of procedure and elect its of the Assembly * * *, including
President for each session. DOP, V. D. the appointment of Committees to in-
2 vestigate particular matters, shall be

The General Assembly should be em- regulated by the Assembly * * *.

powered to set up such bodies and LNC, V. 2

12 Listed in Sir John Fischer Williams’ The League of Nations and Unanimity (With special reference
to the Assembly), American Journal of International Law, 19 (1925), pp. 485-486.

13 See Williams, op. cit., pp. 475-488.

S. Doc. 33, 79-1 2



8 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

agencies as it may deem necessary for
the performance of its functions. DOP.
V. D. 3

There is no substantial difference here, although the Proposals spell

out a little more in detail and with greater preciseness the provisions
for procedure of the General Assembly than the Covenant provided

for the Assembly. In this it follows what has been the interpretation

of LNC, V. 2, in actual practice.

Chap. VI.

—

The Security Council

SECT. A. COMPOSITION

The Security Council should consist
of one representative of each of eleven

members of the Organization. Repre-
sentatives of the United States of

America, the United Kingdom of
Great Britain and Northern Ireland,

the Union of Soviet Socialist Republics,

the Republic of China, and, in due

course, France, should have permanent

seats. The General Assembly should
elect six states to fill the non-permanent

seats. These six states should be

elected for a term of two years, three

retiring each year. They should not
be immediately eligible for reelection.

In the first election of the non-permanent

members three should be chosen by the
General Assembly for one-year terms
and three for two-year terms. DOP,
VI. A

At all meetings of the Council, each
Member of the League represented on
the Council * * * may have not
more than one Representative. LNC,
IV. 6

The Council shall consist of Repre-
sentatives of the Principal Allied and

Associated Powers, together with Rep-

resentatives of four other Members of
the League. These four Members of
the League shall be selected by the

Assembly from time to time in its dis-

cretion. * * * LNC, IV. 1
With the approval of the majority

of the Assembly, the Council may name
additional Members of the League,
whose Representatives shall always be

Members of the Council; the Council
with like approval may increase the
number of Members of the League to
be selected by the Assembly for repre-

sentation on the Council. LNC, IV. 2

Here will be noted some very important differences. The number

of members of the Security Council is to be 11, which was that of the

Council of the League as of 1922, namely, 5 permanent members and

6 nonpermanent members. The Covenant provided originally that

the permanent members should be the United States, the British

Empire, France, Italy, and Japan. The United States never claimed

the permanent membership to which it was entitled, because it never

ratified the Treaty of Versailles or any of the other Paris suburban

treaties. Germany was elected to a permanent membership in the

Council in 1926, in accordance with LNC, IV. 2. Japan and Ger-
many resigned from the League in 1933, thus relinquishing their per-
manent memberships in the Council. The U. S. S. R. was “ appointed”

to a permanent membership in the Council in 1934,
14
but was expelled

from the League in 1939 after its invasion of Finland and thus lost its

permanent membership in the Council. Italy resigned from the

League in 1937, losing its permanent membership in the Council

thereby. Since December 1939, only Great Britain and France have

had permanent seats, but there has been no meeting of the Council.

The Security Council, under the Proposals, will include as permanent

members the United States, Great Britain, the U. S. S. R., China,

and eventually France. 15 Italy loses its position of influence in Europe,

and Japan its position of influence in Asia.

14 Manley O. Hudson, Afghanistan, Ecuador and the Soviet Union in the League of Nations, American

Journal of International Law, 29 (1935), p. 115.
15 Brazil and Costa Rica have suggested that one Latin-American country have a permanent membership

in the Security Council. Pan American Union, op. cit., p. 125.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 9

The Covenant provided originally for 4 nonpermanent members in

the Council. This number was increased in 1922 to 6, in 1926 to 9,
in 1933 to 10, and in 1936 (at least, temporarily) to 11, the present

number. These increases tended to destroy the compactness and

balance between the great powers and the smaller powers originally

provided for in the Covenant. The 9 memberships provided for in

1926 were divided into 3 groups, each of which was elected for 3

years and was not eligible to reelection unless the Assembly so de-

clared.
16

Since 1936, 5 were supposed to be elected in the year-series

1936, 1939, 1942. Under the Proposals the 6 nonpermanent mem-
bers are to be elected for a term of 2 years each, 3 retiring each year

and not being immediately reeligible. To carry this into effect, at

the first election 3 will be chosen for only 1 year. The ineligi-

bility for immediate reelection, while making it possible to secure new

blood in the Security Council from among the less powerful members

of the Organization, by the same token prevents the building up of

any feeling of solidarity of the nonpermanent members of the Security

Council.

Under the Covenant, the Council, with the approval of a majority

of the Assembly, had the power to increase the number of permanent

members of the Council and to name them and also to increase the

number of nonpermanent members. All of these prerogatives have

been exercised, as noted above. The Proposals contain no specific

provisions on this point and presumably such increases would have

to come, if at all, by way of amendment of the Charter.
The provision of the Proposals for a Security Council of five per-

manent and six nonpermanent members is more in keeping with the

original idea behind the Council of the League of a substantial balance

between the permanent (great powers) and nonpermanent (smaller

powers) members.

SECT. B. PRINCIPAL FUNCTIONS AND
POWERS

In order to ensure prompt and effec-

tive action by the Organization, mem-
bers of the Organization should by the

Charter confer on the Security Council

primary responsibility for the mainte-

nance of international peace and secur-
ity and should agree that in carrying

out these duties under this responsibility

it should act on their behalf. DOP,
VI. B. 1

In discharging these duties the Se-

curity Council should act in accordance

with the purposes and principles, of the
Organization. DOP, VI. B. 2
The specific powers conferred on the

Security Council in order to carry out

these duties are laid down in Chapter
VIII. DOP, VI. B. 3

All members of the Organization
should obligate themselves to accept the

decisions of the Security Council and to
carry them out in accordance with the
provisions of the Charter. DOP,
VI. B. 4

* * * In case of any such aggres-

sion or in case of any threat or danger of

such aggression, the Council shall ad-

vise upon the means by which this

obligation shall be fulfilled. LNC, X
[Similar provisions in LNC, XIII.

4, XV. 1-9, XVI. 2, XXII. 7-8,
XXIV. 2-3.]

The Council may deal at its meetings
with any matter within the sphere of

action of the League or affecting the

peace of the world. LNC, IV. 4

16 Pfankuchen, op. ext., p. 560, note 2.



10 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

There is a fundamental difference to be noted here. Under the

Covenant the Council advised the members as to how any threat
or danger of aggression was to be met and (LNC, XV. 6) the members
agreed that they would not go to war with any party to a dispute

which complied with the unanimous (other than the parties to the

dispute) recommendations of the Council, reserving their independ-

ence of action in case these recommendations were not unanimous.

Under the Proposals, however, the Security Council is given
1

1

primary

responsibility for the maintenance of international peace and secu-

rity” and the members not only are to “agree that in carrying out

these duties under this responsibility it should act on their behalf,”

but also “should obligate themselves to accept the decisions of the

Security Council and to carry them out in accordance with the pro-

visions of the Charter.” The purpose of this is to “ensure prompt

and effective action by the Organization.” The League was handi-

capped by the cumbersomeness of its procedure in promptly and

effectively meeting a threat to peace or an aggression. For instance,

in 1931-32, while its Lytton Commission of Enquiry was busy investi -

gating a threat to the peaceful relations between China and Japan,

Japan confronted it with a fait accompli in the creation of “Man-
chukuo”. 17 Lest it be considered that this provision of the Proposals

is giving the Security Council a “blank check” to be filled in at its

discretion, the Proposals provide that “in discharging these duties

the Security Council should act in accordance with the purposes and

principles of the Organization.” The comparative powers of the

Security Council and the Council are discussed below (under DOP,
VIII).

f In order to promote the establishment

and maintenance of international peace

and security with the least diversion of

the world’s human and economic re-

sources for armaments, the Security

Council, with the assistance of the Mili-

tary Staff Committee referred to in

Chap. VIII, Sect. B, par. 9, should have

the responsibility for formulating plans

for the establishment of a system of

regulation of armaments for submission

to the members of the Organization.

DOP, VI. B. 5

The Members of the League recognize
that the maintenance of peace requires

the reduction of national armaments to

the lowest point consistent with national

safety and the enforcement by common
action of international obligations.

LNC, VIII. 1
The Council, taking account of the

geographical situation and circum-

stances of each State, shall formulate

plans for such reduction for the con-

sideration and action of the several

Governments. LNC, VIII. 2
[LNC, VIII. 3-6, also refer to reduc-

tion of armaments.]

On the question of the reduction of armaments, the Proposals go
a step farther than the Covenant in specifying that the Security

Council shall have the assistance of the Military Staff Committee in

formulating plans for the establishment of “a system of regulation

of armaments for submission to the members.” The acceptance or

rejection of the plan so formulated would still require action by the

individual members. 18 If the regulation is for the purpose of securing

“the least possible diversion of the world’s human and economic

resources for armaments,” unless this is mere lip service, it would seem

to imply disarmament and abolition of conscription. As far back as

1? Stephen C. Y. Pan, American Diplomacy Concerning Manchuria (Washington, 1938), pp. 243-256.
is Senator Warren B. Austin, who participated in the conferences with the Secretary of State preceding

the Proposals, so interprets it. Congressional Record, 79th Cong., 1st Sess., Vol. 91, No. 15, January 25,

1945, p. 498, col. 2.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT II

1939, Pope Pius XII, in his Christmas allocution, called attention to

the necessity of this for any peaceful settlement, when he said:

* * * Any peaceful settlement which fails to give fundamental importance

to a mutually agreed, organic, and progressive disarmament, spiritual as well as

material, or which neglects to ensure the effective and loyal implementing of such

an agreement, will sooner or later show itself to be lacking in coherence and

vitality. 19

It will be remembered that

—

The German argument in support of the recent action [repudiation of Part V of
the Treaty of Versailles] * * * is that the Allied and Associated Powers were

bound to Germany by treaty obligations to reduce their own armaments, that
Germany’s duty to continue to observe the clauses of Part V was conditioned upon
the fulfillment by them of their obligations, and that those obligations not having

been performed after the lapse of nearly 15 years, Germany’s obligations ceased

to be binding upon her and might be unilaterally denounced without the consent of

the other parties. This reciprocity, it is argued, is to be found in the so-called

Novembervertrag concluded between Germany and her enemies in the early days of
November 1918, in the preamble to Part V of the Treaty of Versailles, in Article 8
of the Covenant of the League of Nations, and in the conditions under which.

Germany became a member of the League in 1926.20

The provisions for military enforcement with a Military Staff Com-
mittee operating under responsibility to the Security Council (DOP,
VIII. B. 4-9) are presumably intended not only to maintain inter-

national peace and security, but also to prevent the slightest justifica-

tion for the use of such an argument as that put forward by Germany
to relieve itself of the obligations of Part V of the Treaty of Versailles.
The difference between the Military Staff Committee and the similar
assistance rendered to the Council of the League is discussed below

(under DOP, VIII. B. 9).

At meetings of the Council, each
Member of the League represented on the
Council shall have one vote, * * *

LNC, IV. 6
Except where otherwise expressly

provided in this Covenant or by the
terms of the present Treaty, decisions
at any meeting of the * * * Coun-
cil shall require the agreement of all
the Members of the League represented
at the meeting. LNC, V. 1

All matters of procedure at meetings
of the * * * Council, including

the appointment of Committees to in-
vestigate particular matters, * * *

may be decided by a majority of the
Members of the League represented at
the meeting. LNC, V. 2

If the dispute [likely to lead to rup-
ture] is not thus settled, the Council
either unanimously or by a majority

is Harry C. Koenig (ed.), Principles for Peace, Selections from Papal Documents, Leo XIII to Pius XTT
(Washington, 1943), p. 637.

20 James W. Garner and Valentine Jobst III, The Unilateral Denunciation of Treaties by One Party
Because of Alleged Non-performance by Another Party or Parties, American Journal of International
Law, 29 (1935), p. 574, citing Viktor Bruns, Deutschlands Gleichberechtigung als Rechtsproblem (Berlin
1934).

*

21 This provision was adopted at the Crimea Conference of Prime Minister Churchill, President Roose-
velt, and Marshal Stalin at Yalta in February 1945. The Department of State Bulletin, Vol XII No
298 (March 11, 1945), p. 394. This information had already been published from “unimpeachable” oflmssi
sources by Frederick Kuh, Yalta Formula for Voting by Security Group Revealed, the Washington Post
February 24, 1945, p. 5. Nothing was said about the agreement of China to this provision. The original
DOP, C, read: “The question of voting procedure in the Security Council is still under consideration "

SECT. C. VOTING 21

Each member of the Security Coun-
cil should have one vote. DOP, VI.
C. 1

Decisions of the Security Council on

procedural matters should be made by
an affirmative vote of seven members.

DOP, VI. C. 2
Decisions of the Security Council on

all other matters should be made by an
affirmative ' vote of seven members, in-

cluding the concurring votes of the per-

manent members
;

provided that, in

decisions under Chap. VIII, Sect. A,

and under Chap. VIII, Sect. C, par. 1,
second sentence, a party to a dispute

should abstain from voting. DOP, VI.
C. 3



12 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

vote shall make and publish a report
containing a statement of the facts of

the dispute and the recommendations
which are deemed just and proper in
regard thereto. LNC, XV. 4.
[LNC, XV. 6, refers to a unanimous

decision other than parties to the dis-

pute.]

Under the Covenant, at meetings of the Council, each member of
the League represented on the Council was to have one vote; and a
majority was required for matters of its procedure, including the

appointment of investigating committees, a unanimous or majority

vote was required for a report on a dispute likely to lead to a rupture

of peaceful relations, a unanimous vote (excepting the parties to the

dispute) was required for the creation of the obligation of all members
of the League to support the recommendations made in such report
on a dispute (LNC, XV. 6), and a unanimous vote was required for all
other matters coming before it not otherwise expressly provided for

in the Covenant or the Treaty of Versailles. 22 In the actual func-

tioning of the Covenant, Sir John Fischer Williams calls attention to

the “inevitability of an attempt to escape from unanimity when
practical work has to be done.” 23

It is not surprising, therefore, that the Proposals originally post-

poned the difficult question of voting procedure in the Security Council

for further consideration. There is scarcely any part of the Organiza-

tion envisaged by the Proposals which has occasioned more discussion

than that of voting in the Security Council.
24 And rightly so, for

upon the satisfactory solution of this problem depends in large measure

the success that can be hoped for from the new Organization. To

some

—

The omission of voting procedure in the Security Council seems to confirm pre-
vious unofficial reports that Soviet Russia has not agreed to an American-British

proposal that a permanent member of the Council should not vote when it is
accused of aggression. Should the unanimity rule of voting by the great powers

be incorporated in the Charter, the new peace organization would be just another
international agency to prevent little wrars of the small powers but impotent in

the case of big wars of the great powers.25

The solution of the problem of voting procedure in the Security

Council adopted at Yalta seems to mean that, in decisions on ques-

tions involving a threat of war, the majority of seven must include

the five great powers, except that, if the threat is not immediate or is

regional, the powers directly involved in the dispute will be excluded

from voting. This solution leaves unanswered the doubts of the

smaller nations, since

—

If a single vote of a permanent member, wThether an aggressor or not, is allowed

to veto the use of force, what protection will the smaller nations have against the

great powers? 26

22 Listed in Williams, op. cit., pp. 485-486.

23 Williams, op. cit., p. 485, note 2.
24 See, for example, the various proposals of Chile, Costa Rica, Guatemala, Mexico, Uruguay, and Vene-

zuela on this question. Pan American Union, op. cit., pp. 129-130.

Kelsen, op. cit., p. 58, suggests a majority vote of the Security Council with a weighted vote for the per-

manent members.
See also Louis B. Sohn, Weighting of Votes in an International Assembly, The American Political Science

Review, 38 (1944), pp. 1192-1203.
23 George A. Finch, World Court Favored, letter to the Editor, the New York Times, October 22, 1944.
26 Harrv C. Koenig, Dumbarton Oaks, Catholic Digest, 9 (January 1945), p. 5. Cf. George A. Finch,

World Peace, letter to the Editor, the Washington Post, October 15, 1944.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 13

Perhaps a more acceptable compromise might conceivably be worked

out by weighting the vote of all the members of the Security Council

according to the seven classes for the division of the expenses of the

Universal Postal Union with a two-thirds vote required for decisions.

Such a provision would yield a range of voting necessary for decisions

from four permanent members plus one other member down to all the
nonpermanent members plus at least two and probably three perma-
nent members.

SECT. D. PROCEDURE

The Security Council should be so or-
ganized as to be able to function con-

tinuously and each state member of the
Security Council should be permanently

represented at the headquarters of the

Organization. It may hold meetings
at such other places as in its judgment

may best facilitate its work. There
should be periodic meetings at which

each state member of the Security
Council could if it so desired be repre-

sented by a member of the government
or some other special representative.

DOP, VI. D. 1
The Security Council should be em-

powered to set up such bodies or agen-

cies as it may deem necessary for the
performance of its functions including

regional subcommittees of the Military

Staff Committee. DOP, VI. D. 2
The Security Council should adopt its

own rules of procedure, including the
method of selecting its President.

DOP, VI. D. 3

The Council shall meet from time to
time as occasion may require, and at
least once a year, at the Seat of -the
League, or at such other place as may
be decided upon. LNC, IV. 3

All matters of procedure at meetings
of the * * * Council, including

the appointment of Committees to in-
vestigate particular matters, shall be
regulated by the * * * Council.
LNC, V. 2

Although the Covenant provided that the Council could meet as
occasion required, not less frequently than once a year, and might

meet at some place other than the seat of the League, it was fre-
quently difficult in practice to assemble a meeting of the Council

on short notice to deal promptly with an emergency. This difficulty
was aggravated with the increase in the number of nonpermanent
members of the Council. The Proposals are evidently intended to
meet this difficulty so that the Security Council could function con-
tinuously, by reason of the fact that each member of the Security
Council is to be “permanently’’ (a better word would be “continu-
ously”) represented at the headquarters of the Organization and, if
desired (for instance, if the Security Council meets at some other
place), could be represented by a member of the government or some
other special representative. The Proposals seem to indicate greater
regularity of meetings (at “periodic” intervals) of the Security Council
than the irregular (“from time to time”) meetings of the Council under
the Covenant. The Proposals also spell out a little more in detail
and with slightly greater preciseness the provision for procedure of
the Security Council than did the Covenant for the Council, although
the question of the headquarters of the Organization has been post-
poned for further consideration, presumably at the San Francisco
meeting .

27

27 It is rumored that the U. S. S. R. favors Vienna, while Brussels and Luxembourg have also been sug-
gested. Associated Press dispatch, the Washington Post, December 26, 1944.

s



14 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

Any member of the Organization
should participate in tjie discussion of

any question brought before the Secu-

rity Council whenever the Security

Council considers that the interests of

that member of the Organization are
specially affected. DOP, VI. D. 4

Any member of the Organization not
having a seat on the Security Council

and any state not a member of the
Organization, if it is a party to a dispute

under consideration by the Security

Council, should be invited to participate

in the discussion relating to the dispute.

DOP, VI. D. 5

Any Member of the League not
represented on the Council shall be
invited to send a Representative to sit

as a member at any meeting of the
Council during the consideration of

matters specially affecting the interests

of that Member of the League. LNC,
IV. 5

In the event of a dispute between a

Member of the League and a State
which is not a Member of the League,
or between States not Members of the
League, the State or States not Mem-
bers of the League shall be invited to

accept the obligations of membership in

the League for the purposes of such dis-

pute, upon such conditions as the Council
may deem just. * * * LNC, XVII.

These two provisions approach the same objective from different

directions. Under the Covenant (LNC, IV. 5), the Council was

obliged to invite a member of the League not represented on the

Council to send a representative to sit as a member at any meeting

of the Council “during the consideration of matters specially affecting

the interests” of that member, but this member was under no obliga-

tion under this article to accept such an invitation. Moreover, it

was not specified whether the Council or the member concerned was

to decide whether the matters specially affected the member or not.

As the provision stands, it is susceptible of interpretation either way,

but the presumption is that it lay with the Council to decide since it

had the initiative. Since the member concerned would “sit as a

member” of the Council, it would be entitled to vote where that is

called for.

The Proposals, -on the other hand, place the determination of

whether the interests of that member of the Organization are specially

affected expressly in the hands of the Security Council and place the

obligation of participating in the discussion of the question specially

affecting the member squarely upon the shoulders of the member

itself, once the Security Council has decided that that member is

affected. There is no necessary implication of the right to vote con-

tained in an obligation to “participate in the discussion.”

Under the Covenant (LNC, XVII. 1), in case of a dispute between

a member of the League and a nonmember or between two or more

nonmembers, the nonmembers “shall be invited to accept the obliga-

tions of membership in the League for the purposes of such dispute,

upon such conditions as the Council may deem just,” therefore, not

necessarily on a plane of equality with members of the League. Under

the Proposals, if a dispute is under consideration by the Security

Council, not only a member of the Organization not represented on

the Security Council, but even a state not a member of the Organiza-

tion itself, provided it is a party to the dispute, must be invited by the

Security Council to “participate in the discussion” relating to the

dispute. The right of nonmembers to vote in cases involving a dispute

seems to be excluded under both the Covenant and the Proposals.
28

28 For further discussion of the rights accorded nonmembers, see the discussion under DOP, VIII. B. 11,
below.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 15

Chap. VII.

—

An International Court
of Justice

There should be an international

court of justice which should consti-

tute the principal judicial organ of the

Organization. DOP, VII. 1

The court should be constituted and

should function in accordance with a

statute which should be annexed to and

be a part of the Charter of the Organi-

zation. DOP, VII. 2
The statute of the court of interna-

tional justice should he either (a) the

Statute of the Permanent Court of In-

ternational Justice, continued in force

wfith such modifications as may be de-
sirable or (b) a new statute in the prep-

aration of which the Statute of the

Permanent Court of International Jus-

tice should be used as a basis. DOP,
VII. 3

The Council shall formulate and

submit to the Members of the League

for adoption plans for the establish-

ment of a Permanent Court of Inter-

national Justice. The Court- shall be

competent to hear and determine any

dispute of an international character

which the parties thereto submit to

it. The Court may also give an ad-
visory opinion upon any dispute or

question referred to it by the Council

or by the Assembly. LNC, XIV

The Permanent Court of International Justice was not embodied

in the original Covenant, although Article XIV provided for the
formulation by the Council of plans for the establishment of such a

court. An Advisory Committee of Jurists accordingly, by invitation
of the Council, met at The Hague in the summer of 1920 and formu-

lated such a project,
29 which was discussed and adopted by the

Council and Assembly of the League before the end of that year.

This Statute of the Permanent Court of International Justice was

annexed to a Protocol of Signature, separate from the Covenant, and

this Protocol was opened for signature (exclusively by the members

of the League and the states mentioned in the Annex to the Covenant)

on December 16, 1920.
30 This Statute provided for the election of

its judges by the concurrent action of the Council and Assembly of

the League and for its expenses to be borne by the League. Its juris-

diction to render advisory opinions to the Council and Assembly of

the League was conferred by Article XIV of the Covenant until the
revisions of 1936 mentioned below. In view of the fact that the

United States had not ratified the Treaty of Versailles containing

the Covenant, some of the advocates of the United States “ joining’

’

31

the Permanent Court of International Justice, particularly those who
were also advocates of the United States joining the League itself,

argued that the Permanent Court of International Justice was not

the League’s court,
32

since its Statute was embodied in an inter-

national instrument separate from the Covenant. The Proposals

leave no doubt as to the integral connection of the International

Court of Justice with the Organization, for an International Court

of Justice is to “constitute the principal judicial organ of the Organ-

ization” and its statute is to “be annexed to and be a part of the

Charter of the Organization.”

29 James Brown Scott, The Project of a Permanent Court of International Justice and Resolutions of the
Advisory Committee of Jurists (Washington, 1920).

30 Manley O. Hudson, The World Court, 1921-1934 (4th Ed., Boston, 1934), pp. 5 and 155.
31 That is, signing the Protocol of Signature of the Statute of the Permanent Court of International Justice.
33 Manley O. Hudson, The Permanent Court of International Justice, in its Jurisdiction, and in its

Application of Law, American Society of International Law, Proceedings, 1931, pp. 92-102; but see David
Jayne Hill, The Problem of a World Court (New York, 1927), pp. 108 fl.

S. Doc. 33, 79-1- -3



16 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

The Proposals leave open the question of whether the Permanent
Court of International Justice is to be taken over into the Organiza-
tion “with such modifications as may be desirable’

’
(for example,

changing the method of election of judges and the provision for
expenses to conform to the new Organization) or whether a new
International Court of Justice should be established on the basis of
the Statute of the Permanent Court of International Justice. Pre-
sumably one factor underlying this provision is the larger question
whether the Organization itself will actually supersede the League
entirely; and if so, how the transfer of functions and property is to
take place.

All members of the Organization
should ipso facto be parties to the stat-

ute of the international court of jus-

tice. DOP, VII. 4
Conditions under which states not

members of the Organization may be-
come parties to the statute of the inter-
national court of justice should be

determined in each case by the General

Assembly upon recommendation of the

Security Council. DOP, VII. 5

Marked clarifications are to be noted here. Under Article 35,
paragraph 1, of the Statute of the Permanent Court of International

Justice, that court was to “be open to the Members of the League and
also to States mentioned in the Annex to the Covenant,” namely, the

Allied and Associated Powers and those other states invited to accede

to the Covenant, regardless of whether they had ratified or acceded

to the Protocol of Signature of the Statute of the Permanent Court

of International Justice. It was open, therefore, ipso jure only to

members of the League or prospective members. Under the Pro-

posals, on the other hand, all members of the Organization are to be

ipsojado “parties to the statute of the International Court of Justice.”

This emphasizes the integral connection of the International Court

of Justice with the Organization; states cannot be members of the

Organization without accepting the International Court of Justice

also (states could be members of the League without accepting the

Permanent Court of International Justice) nor accept the Inter-

national Court of Justice without being members of the Organization

(after the failure of the United States to ratify the Treaty of Versailles,

it was proposed that the United States accept the Permanent Court

of International Justice alone).

Under Article 35, paragraph 2, of the Statute of the Permanent

Court of International Justice

—

The conditions under which the Court shall be open to other States shall,
subject to the special provisions contained in treaties in force, be laid down by
the Council, but in no case shall such provisions place the parties in a position of

inequality before the Court.

These “conditions” were embodied in a Resolution adopted by the

Council on May 17, 1922,33 and provided that (1) such state, either
by a particular declaration or a general declaration, accept“the juris-

diction of the Court, in accordance with the Covenant of the League of

Nations”;
34

(2) such state “undertakes to carry out in full good faith”

33 Text in American Society of International Law, Proceedings, 1931, pp. 226-227. The numbering of the
“conditions” is mine.

34 Note this does not say “in accordance with the Statute of the Permanent Oourt of International Justice/'

but “in accordance with the Covenant of the League of Nations.”



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 17

the decisions of the Court; (3) such state undertakes “not to resort to

war against a State complying therewith”; (4) if such state accepts

compulsory jurisdiction in conformity with Article 36 of the Statute,

“such acceptance may not, without special convention, be relied upon
vis-a-vis Members of the League of Nations or States mentioned in

the Annex to the Covenant” accepting the optional clause of compul-

sory jurisdiction; (5) “the Council of the League of Nations reserves

the right to rescind or amend this resolution”; (6) “to the extent

determined” by the exercise of this right of revision by the Council,

“existing declarations shall cease to be effective” ad futurum; and

(7) “all questions as to the validity or the effect of a declaration” are

to be decided by the Permanent Court of International Justice. It

is difficult to see how these “conditions” do not “place the parties in

a position of inequality before the Court,” since at least conditions

Nos. 4, 5, and 6 were not required of the signatories of the Statute.

Be that as it may, under the Proposals it is the General Assembly

which, upon recommendation of the Security Council, determines the

“conditions under which states not members of the Organization may
become parties to the statute of the International Court of Justice.”

In brief, under the Covenant system, only members or prospective

members of the League could be parties to the Statute of the Per-

manent Court of International Justice; under the Proposals, only

members of the Organization can and all such members must be parties

to the statute of the International Court of Justice. Under the Cove-

nant system, states not mentioned in the Annex to the Covenant could

not be parties to the Statute of the Permanent Court of International

Justice, although, by accepting the conditions in the Resolution of the

Council of 1922, they could be parties to cases before the Permanent

Court of International Justice; under the Proposals, nonmembers of

the Organization must become parties to the statute of the Inter-

national Court of Justice, if they wish to be parties to cases before the

International Court of Justice. Since the International Court of

Justice is an integral part of the Organization, does this mean that
nonmembers of the Organization must become members of the Or-

ganization, before they can become parties to the statute of the Inter-

national Court of Justice, or are the Proposals intended to have the

same meaning as that under the Covenant system?

Chap. VIII.

—

Arrangements for the
Maintenance of International
Peace -and Security Including
Prevention and Suppression of
Aggression

SECT. A. PACIFIC SETTLEMENT OF DIS-
PUTES

The Security Council should be em-
powered to investigate any dispute, or
any .situation which may lead to inter-
national friction or give rise to a dis-

pute, in order to determine whether its

continuance is likely to endanger the

maintenance of international peace and
security. DOP, VIII. A. 1

The Council may deal at its meetings
with any matter within the sphere of

action of the League or affecting the

peace of the wbrld. LNC, IV. 4
Any war or threat of war, whether

immediately affecting any of the Mem-
bers of the League or not, is hereby

declared a matter of concern to the

whole League, and the League shall

take any action that may be deemed
wise and effectual to safeguard the peace

of nations. * * * LNC, XI. 1
[See also LNC, XII. 1, and XV. 1.]



18 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

Under the Covenant, the investigatory power of the Council (as

well as of the Assembly) stems out of the provision of LNC, V. 2,
concerning “the appointment of Committees to investigate particular

matters” of procedure, although it may also be implied from the
general authorization (LNC, IV. 4) of the Council to deal “with any

matter within the sphere of action of the League or affecting the peace

of the world,” and (LNC, XI. 1) of the League to “take any action

that may be deemed wise and effectual to safeguard the peace of
nations.” In the latter case, since the Secretary-General is directed,

on request of any member of the League, to “forthwith summon a
meeting of the Council,” the responsibility of the League under LNC,
XI. 1, was to be exercised primarily by the Council. Moreover, the

members of the League agreed (LNC, XII. 1) that, if there should arise

between them any dispute likely to lead to rupture, they would submit

the matter either to arbitration or judicial settlement or to inquiry

by the Council, and (LNC, IV. 1), if the matter was not submitted to

arbitration or judicial settlement, they would submit the matter to

the Council. It will be noted, however, that for the most part the

authority of the Council to investigate a dispute or threatening situa-

tion, apart from an actual request or submission of members of the

League, is open to some question. There is no question, however, that

under the Proposals the Security Council has the authority to investi-

gate a dispute or threatening situation ipso jure
,
independently of any

request or submission of members of the Organization.

Any state, whether member of the It is also declared to be the friendly
Organization or not, may bring any such right of each Member of the League to
dispute or situation to the attention of bring to the attention of the Assembly

the General Assembly or of the Security or of the Council any circumstance

Council. DOP, VIII. A. 2 whatever affecting international rela-
tions which threatens to disturb inter-

national peace or the good understand-

ing between nations upon which peace

depends. LNC, XI. 2

Under the Covenant only members of the League have “the friendly

right to bring to the attention of the Assembly or of the Council any

circumstance whatever affecting international relations which threatens

to disturb international peace or the good understanding between na-

tions upon which peace depends.” Under the Proposals “any state,

whether member of the Organization or not,” may bring any dispute
or threatening situation to the attention of the General Assembly or

Security Council.

The parties to any dispute the con- The Members of the League agree
tinuance of which is likely to endanger that if there should arise between them

the maintenance of international peace any dispute likely to lead to a rupture,

and security should obligate themselves, they will submit the matter either to

first of all, to seek a solution by nego- arbitration or judicial settlement or to

tiation, mediation, conciliation, arbitra- enquiry by the Council, and they agree

tion or judicial settlement, or other in no case to resort to war until three

peaceful means of their own choice, months after the award by the arbi-

The Security Council should call upon trators or the judicial decision or' the

the parties to settle their dispute by report by the Council. LNC, XII. 1
such means. DOP, VIII. A. 3

Under the Covenant the members of the League agree to submit

“any dispute likely to lead to a rupture” either to arbitration or

judicial settlement or to inquiry by the Council, but they virtually

reserve the right to resort to war at the expiration of 3 months after



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 19

the arbitral award, judicial decision, or Council report, a curious

provision for a League, most of the members of which are parties to

Hague Convention I on the Pacific Settlement of International Dis-

putes of 1899 or 1907. 35 It is curious also that such a provision for

resort to war was not removed by amendment of the Covenant after

the coming into force of the General Pact for the Renunciation of

War (Briand-Kellogg Pact) of August 27, 1928, 36 under Article II of
which

—

The High Contracting Parties agree that the settlement or solution of all

disputes or conflicts of whatever nature or of whatever origin they may be, which
may arise among them, shall never be sought except by pacific means.

Although this instrument did not enumerate the specific “pacific

means” to be employed, presumably ‘they included all the means

available at the time, namely, direct negotiation, mediation, concilia-

tion, commissions of inquiry, and arbitration (all covered by Hague

Convention I), judicial settlement (covered by the Statute of the

Permanent Court of International Justice), or other peaceful means

of their own choice (such as, for instance, bilateral conventions for

“cooling off”, like the Bryan Treaties for the Advancement of Peace).

The above provision of the Proposals, therefore, simply spells out

the obligation which almost all of the prospective members of the

Organization have already assumed under the instruments mentioned

above. It is more elastic than the similar provision in the Covenant

in that it is not restricted to the three methods of peaceful settlement

(arbitration, judicial settlement, or inquiry by the Council), but leaves

the member free to select whatever peaceful means will effectively
settle the dispute. Lest the member be remiss in complying with

this obligation to settle his dispute by some sort of peaceful means,

the Proposals direct the Security Council “to call upon the parties

to settle their dispute by such means.”

If, nevertheless, parties to a dispute

of the nature referred to in par. 3 above
fail to settle it by the means indicated
in that paragraph, they should obligate

themselves to refer it to the Security

Council. The Security Council should
in each case decide whether or not the
continuance of the particular dispute is

in fact likely to endanger the mainte-

nance of international peace and secu-
rity, and, accordingly, whether the

Security Council should deal with the

dispute, and if so, whether it should
take action under par. 5. DOP, VIII.
A. 4

The Security Council should be em-
powered, at any stage of a dispute of
the nature referred to in par. 3 above,

to recommend appropriate procedures
or methods of adjustment. DOP, VIII.
A. 5

If there should arise between Mem-
bers of the League any dispute likely to

lead to a rupture, which is not sub-

mitted to arbitration or judicial settle-

ment in accordance with Article 13,
the Members of the League agree that

they will submit the matter to the

Council. * * * LNC, XV. 1
The Council shall endeavour to effect

a settlement of the dispute, and if such

efforts are successful, a statement shall

be made public giving such facts and
explanations regarding the dispute and

the terms of settlement thereof as the

Council may deem appropriate. LNC,

Under the Covenant, if arbitration or judicial settlement is not
used, the members of the League agree to submit the “ dispute likely

35 As of December 31, 1941, 31 states (including the United States, China, France, Germany, Japan, and
the U. S. S. R.) are parties.to Hague Convention I of 1907, and 15 more (including Great Britain and Italy)
are parties to that of 1899. Treaties in Force, U. S. Department of State Publication 2103 (Washington,
1944), p.l.

38 As of December 31, 1941, 63 states (including all those mentioned in preceding note) are parties to this
Pact. Treaties in Force, p. 35.



20 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

to lead to a rupture” to the Council. Under the Proposals, if any
“peaceful means of their own choice” fails to settle the “dispute the
continuance of which is likely to endanger the maintenance of inter-

national peace and security,” the members of the Organization are
obliged to refer it to the Security Council, but it is the responsibility

of the Security Council to decide in each case “whether or not the

continuance of the particular dispute is in fact likely to endanger the

maintenance of international peace and security,” and, if it decided

that it does, to “recommend appropriate procedures or methods of
adjustment.” But the Security Council does not need to wait until

the peaceful means have been exhausted or used and failed before it

makes its recommendations. It has the power, “at any stage of a

dispute of the nature referred to,” to make appropriate recommenda-
tions. The Proposals evidently were intended to make it impossible
for international peace and security to be endangered simply because

of the recalcitrance of any party to its obligation® or because of a

lack of appropriate authority to deal with the matter.

Justiciable disputes should normally Disputes as to the interpretation of a

be referred to the international court treaty, as to any question of inters

of justice. The Security Council should national law, as to the existence of any
be empowered to refer to the court, fact which, if established, would consti-
for advice, legal questions connected tute a breach of any international obli-
with other disputes. DOP, VIII. A. 6 gation, or as to the extent and nature of

the reparation to be made for any such
breach, are declared to be among those
.which are generally suitable for sub-

mission to arbitration or judicial settle-

ment. LNC, XIII. 2
For the consideration of any such

dispute, the court to which the case is

referred shall be the Permanent Court

of International Justice, established iq

accordance with Article 14, or any

tribunal agreed on by the parties to the

dispute or stipulated in any convention

existing between them. LNC, XIII. 3
* * * The Court may also give

an advisory opinion upon any dispute

or question referred to it by the Council

or by the Assembly. LNC, XIV

The question of which disputes are “justiciable” and which “non-

justiciable” has long been discussed by international lawyers. 37

Strictly speaking, “A dispute may be nonjusticiable in the sense that
no court has jurisdiction, but in substance there are no nonjusticiable

disputes.”
38

Or, to state it in other terms, “any dispute which the

parties choose to submit to an unlimited court may be determined
by them.” 39 The definition of justiciable disputes given in LNC,
XIII. 2, is also embodied in Article 36 of the Statute of the Permanent

Court of International Justice, which provides that, either when

signing or ratifying the Protocol of Signature of the Statute of the

Permanent Court of International Justice or later, the members of

37 See, for instance, the discussion by Norman A. M. MacKenzie, Edwin Borchard, Arthur K. Kuhn,
and Charles G. Fenwick, American Society of International Law, Proceedings, 1938, pp. 17, 34, 38, and 40,

respectively.
33 Quincy Wright, The Present Status of Neutrality, American Journal of International Law, 34 (1940),

p. 402, note 56, citing H. Lauterpacht, The Function of Law in the International Community, pp. 21, 60,
435.

39 Norman A. M. MacKenzie, op. cit., p. 17, citing .Lauterpacht. See also Sir John Fischer Williams,
Justiciable and Other Disputes, American Journal of International Law, 26 (1932), pp. 31-36.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 21

the League and the states mentioned in the Annex to the Covenant

may “declare that they recognize as compulsory ipsofacto and without
special agreement, in relation to any other Member or State accepting
the same obligation, the jurisdiction of the Court in all or any of the

classes of legal disputes” mentioned above. Otherwise, the Permanent

Court of International Justice is competent to hear only cases which

the parties agree to submit to it.

Under the Proposals “justiciable” disputes are not defined but

presumably include all disputes not settled by other peaceful means

(DOP, VIII. A. 3) and are normally to be referred to the International

Court of Justice. “Normally” would seem to imply that the Inter-

national Court of Justice has compulsory jurisdiction unless the

parties to a dispute settle their controversy by other peaceful means.40

No provision for advisory opinion jurisdiction was contained in the
original Statute of the Permanent Court of International Justice,

such jurisdiction being exercised solely under Article XIV of the
Covenant. In the Eastern Carelia case, for instance, where one of

the parties interested, the U. S. S. R., was not a member of the
League and refused to give its consent, the Permanent Court of

International Justice declined to render an advisory opinion.41 How-
ever, Articles 65-68 of the Statute, added under the Protocol of

Revision of September 14, 1929, which went into effect February 1,

1936,
42

filled this gap by granting the Permanent Court of International

Justice jurisdiction to render advisory opinions to the Council or As-

sembly of the League. Presumably these provisions, possibly with

some modifications, would be taken over into the International Court

of Justice, whether it is the Permanent Court of International Justice

itself or a new court on the same basis. It will be noted that in* this

connection the Proposals cover only “legal questions connected with

other disputes” than justiciable disputes normally referred to the

International Court of Justice, whereas the Covenant covered “any

dispute or question.” It will also be noted that, under the Covenant,

advisory opinions may be requested “by the Council or by the As-
sembly,” whereas, under the Proposals, only the Security Council is

to be empowered to refer questions to the court “for advice.” This

conforms to the actual practice of the League, as the Assembly has

never exercised this right under the Covenant.

The provisions of pars. 1-6 of Sect. A If the dispute between the parties is
should not apply to situations or dis- claimed by one of them, and is found

putes arising out of matters which by by the Council, to arise out of a matter

international law are solely within the which by international law is solely

domestic jurisdiction of the state con- within the domestic jurisdiction of that

cerned. DOP, VIII. A. 7 party, the Council shall so report, and
* shall make no recommendation as to its

settlement. LNC, XV. 8

Under the Covenant the question of whether a dispute arises out

of a matter solely within the domestic jurisdiction of one of the parties

10 Kelsen, op. cit., pp. 59-61, maintains that the Proposals do not provide for any “obligatory” submission

of justiciable disputes to the International Court of Justice, although he quotes DOP, VIII. A. 3, which
provides that the parties to any dispute likely to endanger international peace and security “should obligate

[italics mine] themselves to seek a solution by
* *

* judicial settlement, or other peaceful means of

their own choice,” and he states that compulsory character is possible only if the Security Council by
“calling upon the parties to settle their dispute by such means” creates a legal duty for the parties. The
provision of DOP, VIII. A. 4, simply gives the Security Council a club to persuade the parties to comply
with their already existing obligation.

« Permanent Court of International Justice, Publications, Ser. B, No. 5 (Leyden, 1923), pp. 27-29.
« Pfankuchen, op. cit., pp. 583-584; also American Journal of International Law, Supp. 30 (1936), pp.

127-128.



22 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

is raised first by the party itself, but the interested party’s claim is
subject to review by the Council. 43 Under the Proposals nothing is
said about such a claim being raised by the interested party nor of
its approval by the Security Council, but presumably the Security
Council would be the agency which would decide the fact that the
dispute arises out of a matter solely within the domestic jurisdiction

of the state concerned, unless some provision is subsquently made
for such a question to be determined by the Permanent Court of
International Justice (or the International Court of Justice, in case

the latter is not the same as the Permanent Court of International

Justice). Under both the Covenant and the Proposals, if the dispute
does so arise, there is no further provision for its settlement.

SECT. B. DETERMINATION OF THREATS

TO THE PEACE AND ACTS OF AGGRES-
SION AND ACTION WITH RESPECT
THERETO

Should the Security Council deem
that a failure to settle a dispute in ac-

cordance with procedures indicated in

par. 3 of Sect. A, or in accordance with

its recommendations made under par. 5
of Sect. A, constitutes a threat to the

maintenance of international peace and

security, it should take any measures

necessary for the maintenance of inter-

national peace and security in accord-

ance with the purposes and principles of

the Organization. DOP, VIII. B. 1

If the dispute is, not thus settled, the

Council either unanimously or by a ma-
jority vote shall make and publish a re-
port containing a statement of the facts

of the dispute and the recommendations
which are deemed just and proper in re-
gard thereto. LNC, XV. 4

Under the Covenant, if a dispute (other than one arising • out of a

mattbr solely within the domestic jurisdiction of the parties) which is

not settled by diplomacy, arbitration, or judicial settlement cannot be

settled by mediation by the Council, the Council either unanimously

or by a majority vote makes a report on the facts of the dispute with

recommendations deemed “just and proper” with regard to the situ-

ation. Under the Proposals, in case of a continued threat of the

nature described to international peace and security, the Security

Council can take “any measures necessary” for peace and security

which are in accord “with the purposes and principles of the Organi-

zation.” As pointed out above (DOP, VI. C. 3), decisions of the

Security Council on such matters are “made by an affirmative vote

of seven members, including the concurring votes of the permanent

members,” and if the interested party is a member of the Security

Council, it may participate in the voting, unless the threat of war is
not immediate or the dispute is a regional one. It will be noted that,

under the Covenant, only a report with recommendations may be
made by the Council and the members have the responsibility of tak-

ing appropriate action (LNC, XVI), while, under the Proposals, any

measures may be taken by the Security Council not inconsistent with
the purposes of the Organization.

Under the Covenant, if the report of the Council is agreed upon

unanimously (apart from the parties to the dispute), the members of

the League agree not to go to war with the party to the dispute com-

« For a discussion of the jurisdiction of the Permanent Court of International Justice in domestic

questions, see Sidney B. Jacoby, Some Aspects of the Jurisdiction of the Permanent Court of International

Justice, American Journal of International Law, 30 (1936), pp. 242-247, and H. Arthur Steiner, Some
Fundamental Conceptions of International Law of the Permanent Court of International Justice, American
Journal of International Law, 30 (1936), pp. 419-420.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 23

plying with the recommendations in the report (LNC, XV. 6), while,

if the report of the Council is agreed upon by a simple majority, the

members of the League reserve their freedom of action (LNC, XV. 7),
although it might be argued that there may be some conflict between
this provision and the provision discussed below, namely, that, in case

of any threat of war, “the League shall take any action that may be
deemed wise and effectual to safeguard the peace of nations” (LNC,

XI. 1).

In general the Security Council should

determine the existence of any threat to

the peace, breach of the peace or act of

aggression and should make any recom-
mendations or decide upon the meas-

ures to be taken to maintain or restore

peace and security. DOP, VIII. B. 2

Any war or threat of war, whether
immediately affecting any of the Mem-
bers of the League or not, is hereby

declared a matter of concern to the

whole League, and the League shall take
any action that may be deemed wise and
effectual to safeguard the peace of

nations. In case any such emergency

should arise, the Secretary-General

shall, on the request of any Member of
the League, forthwith summon a meet-
ing of the Council. LNC, XI. 1

Under the Covenant, “The Members of the League undertake to

respect and presetve as against external aggression the territorial

integrity and existing political independence of all Members of the

League” (LNC, X). Any threat of war, regardless of whether it
immediately affects any of the members of the League, is considered

“a matter oi concern to the whole League” and the League is author-

ized, indeed obliged, to “ take any action that may be deemed wise and
effectual to safeguard the peace of nations” (LNC, XI. 1). The rub

comes in defining what constitutes aggression. As early as the Fourth

Assembly of the League, a special committee of the Temporary Mixed

Commission appointed to report on the definition of aggression

concluded

—

that no simple definition of aggression can be drawn up, and that no single test

of when an act of aggression has actually taken place can be devised. It is
therefore clearly necessary to leave the Council complete discretion in the matter. 44

The report gave detailed reasons why the definition of aggression as
“mobilization or violation of a frontier” has lost its value as a test.

The difficulty of defining aggression has not cooled the ardor of

those who desire to define aggression, whether they be nations or

individuals expert in international law.
45 For instance, the Conven-

tion defining Aggression, between Afghanistan, Estonia, Latvia,.

Persia, Poland, Rumania, Turkey, and the U. S. S. R., signed at

London, July 3, 1933, provides:

Art. 1 . Chacune des Hautes Parties contractantes s’engage a accepter dans

ses rapports mutuels avec chacune des autres et & partir du jour de la mise en

vigueur de la presente convention la definition de Vagression telle qu’elle a 6t6

expliquee dans le rapport du Comite pour les questions de security en date du 24

mai 1933 (Rapport Politis), a la Conference pour la reduction pt la limitation

des armements, rapport fait a la suite de la proposition de la delegation sovietique.

Art. 2. En consequence, sera reconnu comme agresseur dans un conflit
international, sous reserve des accords en vigueur entre les parties en conflit,

l’Etat qui, le premier, aura commis Tune des actions suivantes: * * * 46

44 Quoted by George A. Finch, A Pact of Non-Aggression, signed editorial, American Journal of Inter-
national Law. 27 (1933), p. 727.
« For a bibliography on aggression, selected by Clyde Eagleton, see Harvard Draft Convention on Rights

and Duties of States in Case of Aggression, American Journal of International Law, Supp., 33 (1939), pp.
831-843; also Manley O. Hudson (ed.), International Legislation, Vol. VI (Washington, 1937), p. 411.

4« 147 League of Nations Treaty Series, p. 70; Hudson, op. cit., pp. 412-413; English text also in American

Journal of International Law, Supp., 27 (1933), p. 193, reprinted from Soviet Union Review, Sp. Supp.,

July-August 1933.



24 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

The actions suivantes which will make a state committing them an
aggressor include: (1) Declaration of war; (2) invasion of territory

by armed force, with or without declaration; (3) attack on territory,

vessels, or aircraft by land, naval, or air forces, with or without

declaration; (4) naval blockade of coasts or ports; and (5) giving of.

support to armed bands invading territory or refusal to take measures

to deprive such bands of assistance, notwithstanding the request of

the invaded state. Identical provisions are contained in the Con-

vention defining Aggression, between Czechoslovakia, Rumania,

Turkey, the U. S. S. R., and Yugoslavia, signed at London, July 4,
1933Y

Typical of the definitions attempted by writers on international law

is that of Quincy Wright:

A state which is under an obligation not to resort to force, which is employing
force against another state, and which refuses to accept an armistice proposed in
accordance with a procedure which it has accepted to implement its no-force

obligation, is an aggressor, and may be subjected to preventive, deterrent or
remedial measures by other states bound by that obligation . 48

The Harvard Research defined aggression in the following terms:

“Aggression” is a resort to armed force by a State when such resort has been
duly determined, by a means which that State is bound to accept, to constitute a
violation of an obligation . 49

The difficulties attendant upon the attempt to define aggression are

indicated in the following statement of Edwin Borchard, whether one
agrees with his conclusions or not:

It must be evident that in modern international relations the line between

aggression and defense is metaphysical and incapable of identification, and that

if the status of “aggressor” is retained in legal instruments, the determination as

to who is the “aggressor” is likely to be political in character. Even the refusal
to arbitrate is no infallible criterion of wrongdoing, for it is well known that certain
issues affecting great national interests have never been arbitrated, and, under

present political organization, are not likely to be. The first armed movement is
even less valid as a test, for it overlooks the fact that provocative policy is more

important in judging causation than an armed movement consequent upon intol-
erable conditions thereby created .60

Under the Covenant, in case of such a war or threat of war, 51 it

devolved upon the Secretary-General of the League, on the request of

any member of the League, to “forthwith summon a meeting of the
Council,” which, as pointed out above, was authorized to “deal
* * * with any matter * * * affecting the peace of the

world” (LNC, IV. 4).

Under the Proposals, there is a more specific provision authorizing

the Security Council to “determine the existence of any threat to the

peace, breach of the peace, or act of aggression” and “make recom-

mendations [if these be sufficient] or decide upon the measures to

be taken [if action be necessary] to maintain or restore peace and

security” (DOP, VIII. B. 2). It will be noted that the Security

Council requires no request of a member of the Organization but

47 Hudson, op. cit., pp. 417-418.
48 Quincy Wright, The Concept of Aggression in International Law, American Journal of International

Law, 29 0935), p. 395.
49 Harvard Draft Convention on Rights and Duties of States in Case of Aggression, Art. 1 (a), American

Journal of International Law, Supp., 33 (1939), p. 827.
80 Edwin Borchard, “War” and “Peace”, signed editorial, American Journal of International Law,

27 (1933), pp. 116-117.

si Yet U. S. Department of State Publication 2223 states that the Covenant “made only outright war

illegal.” Cf. David Lawrence, New League Principles Called Same as Old, Washington, the Evening
Star, October 12, 1944, p. A10.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 25

determines the existence of the threat or of the aggression itself. It

will also be noted that the Security Council not only may “make
recommendations” dealing with the situation (which is virtually the

extent of the powers of the Council of the League), but may also

actually “decide” upon the measures to be taken. The Proposals

also mention specifically an “act of aggression” (which is not men-

tioned in LNC, XI. 1), although they do not define what constitutes

an act of aggression.

This failure to define aggression has been pointed out more than

once since the publication of the Proposals. For instance, the mem-

bers of the Administrative Board, National Catholic Welfare Con-

ference, in the names of the bishops of the United States, on November

19, 1944, issued a declaration on the peace that is to come, in the

course of which they said:

Nations which refuse to submit their international disputes which constitute

a threat to the peace or the common good of the international community should
be treated by the international organization as outlaw nations .52

Although this is perhaps an oversimplified formula for defining ag-

gression, the statement points out that

—

obligatory arbitration of international disputes which threaten world peace would

mark a signal advance in international relations.

An ingenious and more detailed attempt to define aggression for
the purposes of the Proposals has been made by George A. Finch. 63

He starts with the premise that

—

Aggression by nations, like guilt for murder or trespass, should be regarded as

a judicial question to be tried by a court and not by a political council meeting

behind closed doors and dominated perhaps by nations whose selfish interests

might influence their votes.

On this basis, he suggests that

—

The Permanent Court of International Justice, which it is proposed to retain,
should be vested with jurisdiction to hear and determine in public sessions charges

of aggression brought by any member of the international community against
any other member. For prompt relief, the court should be empowered to order

a cessation of all aggressive acts pending the trial and decision of the case. The
court’s orders and decisions should be certified to the Security Council, which

should thereupon put in motion the appropriate sanctions provided in Chapter

VIII, including, if necessary, the armed forces at its disposal. The convicted
aggressor should, of course, have no vote on the application of sanctions.

For the guidance of the Permanent Court of International Justice,

he proposes “a simple definition
* * * which the public can

understand.” For such a definition he goes to one of the several

nonaggression treaties negotiated by the Soviet Government a decade

ago with nearly all of its neighbors, specifically, that with Finland of

January 21, 1932, which provided (Art. 1, par. 2) that

—

Any act of violence infringing the integrity and inviolability of the territory,
or directed against the political independence of the other high contracting party,

will be regarded as an aggression even should the said act be carried out without

a declaration of war and any evident manifestation thereof . 54

82 The Catholic Review, November 24, 1944, p. 2; the New York Times, November 19, 1944, p. 1. The
declaration was signed by Edward Mooney, Archbishop of Detroit, Chairman; Samuel A. Stritch, Arch-
bishop of Chicago, Vice Chairman; Francis J. Spellman, Archbishop of New York, Secretary; John T.
McNicholas, Archbishop of Cincinnati; John Gregory Murray, Archbishop of St. Paul; John J. Mitty,
Archbishop of San Francisco; Joseph F. Rummell, Archbishop of New Orleans; John F. Noll, Bishop of
Fort Wayne; Karl J. Alter, Bishop of Toledo; and James H. Ryan, Bishop of Omaha.

83 George A. Finch, World Court Favored, letter to the Editor, the New York Times, October 22, 1944,
p. E8.

84 American Journal of International Law, Supp., 27 (1933), p. 172.



26 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

As Finch'points out

—

The advantages of this legal approach to the solution of the problem of inter-
national aggression are threefold: (1) It avoids the difficulty of a unanimous
vote by a political body and substitutes the majority opinion of a judicial court;
(2) it requires no dubious division of the nations of the world into two groups
of potential aggressors and peace-loving nations; (3) it answers the constitutional
objection to the delegation of the Congressional war power to an executive agent
of our Government. A general act of Congress could confer authority upon
the President to use the armed forces of the United States in cooperation with
other nations to make effective the decisions of a World Court which the United
States would join for the purpose of contributing to the elimination of war and
to the administration of international justice. 55

The Security Council should be em-
powered to determine what diplomatic,

economic, or other measures not involv-

ing the use of armed force should be
employed to give effect to its decisions,

and to call upon the members of the
Organization to apply such measures.

Such measures may Include complete
or partial interruption of rail, sea, air,

postal, telegraphic, radio and other
means of communication and the
severance of diplomatic and economic

relations. DOP, VIII. B. 3

Should any Member of the League
resort to war in disregard of its cove-
nants under Arts. 12, 13 or 15, it shall

ipso facto be deemed to have committed
an act of war against all ofher Members
of the League, which hereby undertake

immediately to subject it to the sever-

ance of all trade or financial relations,

the prohibition of all intercourse be-

tween their nationals and the nationals
of the covenant-breaking State, and the
prevention of all financial, commercial

or personal intercourse between the

nationals of the covenant-breaking

State and the nationals of any other
State, whether a Member of the League
or not. LNC, XVI. 1

Under the Covenant, if a member of the League’ resorts to war in
disregard of its obligations under Articles XII, XIII, or XV, it shall
ipso jacto be deemed to have committed an act of war against all

other members of the League. In such a contingency, the members

of the League by their signature of the Covenant undertake imme-

diately on their own initiative to sever “all trade and financial rela-
tions

7
’ and to prevent “all financial, commercial, or personal intercourse

between the nationals of the covenant-breaking State and the nationals

of any other State” whatsoever. Such sanctions were to be applicable

only (1) if there was a resort to war, not if there were merely a threat

to peace, (2) if the member of the League resorts to war in the manner
described, and (3) if the individual members of the League presumably

decided for themselves whether such a resort to war existed in fact.

Under the Proposals, all measures, short of armed force, to be em-

ployed to give effect to the decisions of the Security Council with

regard to the existence of any threat to the peace, breach of the peace,

or act of aggression or with regard to the maintenance or restoration of

peace and security are to be determined by the Security Council,

which is empowered to call upon—that is, direct—the members of the
Organization, and they are obliged (DOP, VI. B. 4) to apply such

measures. (See also DOP, II. 5: “All members of the Organization
shall give every assistance to the Organization in any action under-

taken by it in accordance with the provisions of the Charter.”) Such

measures may specifically extend to blockade of communications in
whole or in part or severance of diplomatic and economic relations.

Subsequently, he explains “the difference between a supposed delegation of Congressional power

through the World Court and through the Security Council,” by referring to the precedent of the treaty

of April 7, 1862, between Great Britain and the United States, establishing mixed courts of justice at Sierra

Leone and at the Cape of Good Hope in Africa and at New York to adjudicate violations of the outlawed
slave trade. George A. Finch, To Define Aggression, letter to the Editor, the New York Times, November
12, 1944, p. E8.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 27

Instead of the automatic severance of all trade and financial relations

by the individual action of the members of the League required by the

Covenant, which might be equally injurious to the state applying

sanctions and which in some cases might be incommensurate with the

objective sought to be attained, the application of sanctions under the

Proposals is to be decided by the Security Council and is to be adjust-

able to the end sought to be attained.

Should the Security Council consider It shall be the duty of the Council in

such measures to be inadequate, it such case to recommend to the several

should be empowered to take such ac- Governments concerned what effective

tion by air, naval or land forces as may military, naval or air force the Mem-

be necessary to maintain or restore in- bers of the League shall severally con-

ternational peace and security. Such tribute to the armed forces to be used

action may include demonstrations, to protect the covenants of the League,

blockade and other operations by air, LNC, XVI. 2

,sea or land forces of members of the

Organization. DOP, VIII. B. 4
[Members to make available armed

forces. DOP, VIII. B. 5.]
[Members to make available air force

contingents for combined international

enforcement action. DOP, VIII. B. 6.]
[Security Council should determine

whether enforcement is to be by com-

bined action or by some members in

specific cases. DOP, VIII. B. 7.]
[Security Council to make plans for

use of armed force with assistance of

Military Staff Committee. DOP, VIII.
B. 8.]

[Military Staff Committee should be

established, responsible to the Security

Council. DOP, VIII. B. 9.]

Under the Covenant, only the power of recommendation is given to

the Council, in case armed force is necessary to protect the covenants

of the League. These recommendations extend to “ effective military,

naval, or air force” and are to be made to the “several Governments

concerned,” which may or may not act. Under the Proposals, the
Security Council is empowered to do, rather than merely to recom-

mend, such action as may be necessary for international peace and
security, including “demonstrations, blockade, and other operations

by air, sea, or land forces.” Members of the Organization are obli-

gated to “make available to the Security Council, on its call,” the

armed forces and assistance necessary for international peace and

security. By prior agreement the numbers and types of forces and
the nature of the assistance to be provided are to be specified. For

urgent military measures, national air force contingents are to be made

available for combined international enforcement action, the details

of which are to be decided by the Security Council with the assistance

of the Military Staff Committee, a new agency. The Security Council

determines whether enforcement is to be by concerted action of all

members of the Organization or by some members only in specific

cases, whether members of the Security Council or not. A Military
Staff Committee is to be established, composed of the Chiefs of Staff

of the permanent members of the Security Council or their representa-

tives, with occasionally association of representatives of nonpermanent

members as circumstances require, operating under the Security



28 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

Council. “ Questions of command of forces should be worked out

subsequently.”

These provisions are aimed at remedying a weakness of the relevant

provisions of the Covenant. The question with regard to the actual

command of the Military Staff Committee or of the combined forces,

which remains to be worked out, is one that has wrecked other

attempts in history to provide for joint forces, but it may be argued

that if such a problem can be solved, as it has been and is being

solved, in time of war, there is reason to hope that it may be solved
satisfactorily in time of peace.

The members of the Organization The Members of the League agree,

should join in affording mutual assist- further, that they will mutually support

ance in carrying out the measures de- one another in the financial and eco-

cided upon by the Security Council, nomic measures which are taken under

DOP, VIII. B. 10 this Article, in order to minimise the
loss and inconvenience resulting from
the above measures, and that they will

mutually support one another in resist-

ing any special measures aimed at one

of their number by the covenant-break-
ing State, and that they will take the

necessary steps to afford passage through

their territory to the forces of any of

the Members of the League which are
co-operating to protect the covenants

of the League. LNC, XVI. 3

The object of this provision, both in the Proposals as well as in
the Covenant, is to ensure the support of all in all measures taken

against a disturber of the peace of the international community.

Under the Covenant, the provision is in a sense more specific and, by

that very reason, more restricted. Under the Proposals, the provi-

sion is comprehensive in that the members are to afford mutual
assistance in carrying out the decisions of the Security Council, and

these decisions themselves are more far-reaching than those per-

missible under the Covenant.

Any state, whether a member of the [So far as nonmembers are concerned,
Organization or not, which finds itself covered by LNC, XVII. So far as
confronted with special economic prob- members are concerned, covered in part
lems arising from the carrying out of by LNC, XVI. 3.]
measures which have been decided

upon by the Security Council should
have the right to consult the Security

Council in regard to a solution of those

problems. DOP, VIII. B. 11

Under LNC, XVII. 1 and 3, nonmembers of the League involved
in a threatened breach of the peace of the international community

are invited to accept the obligations of membership in the League for

the purpose of such dispute, and if they accept, become subject to

LNC, XII-XVI. If they do not accept such an invitation and
resort to war against a member of the League, LNC, XVI, becomes
operative against them. Under LNC, XVI. 3, the members of the
League agree to support one another in measures taken to minimize

the loss and inconvenience resulting from the sanctions applied.

This “loss and inconvenience” to the states intending to apply such

sanctions may have been partially responsible for the breaking down



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 29

of the proposal for an embargo by the League on oil and other key

products in the Italo-Ethiopian dispute in 1935-36.
66

Under the Proposals, the Security Council not only decides on the

measures of sanctions but also is empowered to adjust the special

economic problems arising from the carrying out of the sanctions,

whether these problems are those of a member of the Organization or

not. Moreover, DOP, II. 6 (2), provides that

—

The Organization should ensure that states not members of the Organization act

in accordance with these principles so far as may be necessary for the maintenance
of international peace and security. 57

sect. c.

—

regional arrangements Nothing in this Covenant shall be

.
deemed to affect the validity of inter-

Nothing in this Charter should pre- national engagements, such as treaties
elude the existence of regional arrange- Qf arbitration or regional understand-
ments or agencies for dealing with

ings like the Monroe doctrine, for secur-
such matters relating to the mam-

jng the maintenance of peace. LNC,
tenance of international peace and XXI
security as are appropriate for regional The Members of the League severally
action, provided such arrangements or agree that this Covenant is accepted as
agencies and their activities are con- abrogating all obligations or under-
spent with the purposes and principles standings inter se which are inconsistent
of the Organization. The Security with the terms thereof, and solemnly
Council should encourage settlement of undertake that they will not hereafter
local disputes through such regional enter into any engagements incon-
arrangements or by such regional sistent with the terms thereof. LNC,
agencies, either on the initiative of the XX. 1
states concerned or by reference from jn case any Member of the League
the Security Council. DOP, VIII. shall, before becoming a Member of the
U 1

.
League, have undertaken any obliga-

The Security Council should, where tions inconsistent with the terms of this
appropriate, utilize such arrangements Covenant, it shall be the duty of such
or agencies for enforcement action under Member to take immediate steps to
its authority, but no enforcement action procure its release from such obligations,
should be taken under regional arrange- LNC XX. 2
ments or by regional agencies without

the authorization of the Security Coun-

cil. DOP, VIII. C. 2
The Security Council should at all

times be kept fully informed of activ-

ities undertaken or in contemplation

under regional arrangements or by
regional agencies for the maintenance of

international peace and security. DOP,
VIII. C. 3

Under the Covenant, treaties of arbitration, whether multilateral,

like Hague Convention I of 1899 and 1907 and the General Treaty of
Inter-American Arbitration of 1929, or bilateral, which were capable

of resolving disputes between nations by peaceful means, were not to
be superseded by League action, since the purpose of both was to

prevent disputes from reaching the stage of war. This was all the

more desirable because of the fact that many nations were not auto-
matically eligible to membership in the League, not being mentioned

in the Annex to the Covenant, and others which were eligible were
unwilling to exercise their right to become members or, having become

56 Proposal IV (a), adopted by the Committee of Eighteen, November 6, 1935, American Journal of Inter-
national Law, Supp., 30 (1936), p. 56. . See John H. Spencer, The Italian-Ethiopian Dispute and the League
of Nations, American Journal of International Law, 31 (1937), pp. 625 and 636, which, however, does not
mention the possibility referred to above. Contemporary press dispatches mention opposition or qualified
support on the part of Rumania, the U. S. S. R., Venezuela, and Turkey, among others.

57 This approximates LNC, XVII (which was never applied), in the attempt to extend to nonmembers
the obligations of the Organization for the maintenance of peace and security. See Kelsen, op. cit., pp. 48-49.



30 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

members, had resigned, and yet a dispute between any one of these

and a member of the League might very easily reach the war stage.
The Covenant also refers to “regional understandings like the Mon-

roe doctrine” , among the “international engagements * * * for
securing the maintenance of peace,” although the Monroe Doctrine
was a unilateral declaration of policy by the United States 58 and not
an “international engagement” nor a “regional understanding”

(except in the limited sense of an understanding by the United States
with regard to a particular region) until the adoption of the so-called

Declaration of Lima, the Declaration of the Solidarity of America,

signed at the Eighth International Conference of American States,

Lima, December 24, 1938,
59 and the Act of Chapultepec, signed at the

Inter-American Conference on War and Peace, Mexico City, March 3,
1945,

60 which gave it multilateral character.

The confusion that might arise under the possibility of several
agencies attempting independently to solve the same international

conflict at the same time was exemplified in the Chaco dispute between

Bolivia and Paraguay.61 This dispute reached a climax at the very

opening of the International Conference of American States on Con-

ciliation and Arbitration in Washington in December 1928. The

Conference immediately took cognizance of the situation and a Special

Committee was appointed to offer the good offices of the Conference to

Bolivia and Paraguay. 62 Meanwhile, the Pope 63 and the League of

Nations 64 made efforts to solve the dispute, and the proposal was even
made that the case be submitted to the Permanent Court of Inter-
national Justice.

65

It was perhaps to avoid such a situation that the Proposals, while

not precluding the existence of other agencies appropriate for regional

action, provide that the activities of regional agencies should be “con-

sistent with the purposes and principles of the Organization,” that the

Security Council “be kept fully informed” of such activities and that

no enforcement action should be taken under such regional auspices

“without the authorization of the Security Council.” The provision

that regional agencies must be “consistent with the purposes and

principles of the Organization” virtually makes the organization and

activities of any regional agencies such as those provided for in the

recent Conference in Mexico City, subject .to the approval of the

Security Council. Presumably, if not inconsistent therewith, there

will be no interference with the activities of regional agencies in

matters appropriate for regional action. This is the same in prin-

ciple as LNC, XX. 1 and 2.66

M J. Reuben Clark, Memorandum on the Monroe Doctrine (Washington, 1930); Chandler P. Anderson
The Monroe Doctrine Distinguished in Principle from Mutual Protective Pacts, signed editorial, American
Journal of International Law, 30 (1936), pp. 477-479.

69 Text in American Journal of International Law, Supp. 34 (1940), p. 199. See also Charles G. Fenwick,

The Monroe Doctrine and the Declaration of Lima, American Journal of International Law, 33 (1939), pp.
257-268.

90 The Department of State Bulletin, Vol. XII, No. 297, March 4, 1945, pp. 339-340; the New York Times,
March 4, 1945, Sect. 1, p. 25. This Act continentalizes the Monroe Doctrine.

6i For a running account of the solution of this dispute, see Lester H. Woolsey, The Bolivia-Paraguay

Dispute, American Journal of International Law, 23 (1929), pp. 110-112; 24 (1930), pp. 122-126, 573-577; The

Chaco Dispute, 26 (1932), pp. 796-801; 28 (1934), pp. 724-729; all signed editorials.
92 Herbert F. Wright (ed.), Proceedings of the International Conference of American States on Concilia-

tion and Arbitration (Washington, 1929), pp. 88-89.
93 Letter Le Notizie Che, to the Presidents of Bolivia and Paraguay, Dec. 18, 1928, in Harry C. Koenig

(ed.), Principles for Peace, Selections from Papal Documents, Leo XIII to Pius XII (Washington, 1943),

pp. 382-383.
94 For a list of documents of the League concerning the dispute, see American Journal of International Law,

Supp. 33 (1939), p. 841.
" Manley O. Hudson, The Thirteenth Year of the Permanent Court of International Justice, American

Journal of International Law, 29 (1935), pp. 16-18.
99 Cf. David Lawrence, New League Principles Called Same as Old, Washington, the Evening Star,

October 12, 1944, p. A10.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 31

The inclusion of a provision for encouragement of the settlement of

“local disputes through such regional arrangements or by such re-

gional agencies’ ’ (which, under the Crimea Conference extension of

DOP, VI. C. 3, requires the concurring vote of the permanent mem-
bers of the Security Council) was probably intended to cover such

principles as that American disputes should be settled by Americans 67

or such proposals- as an Inter-American Court of International Jus-

tice
68

or other regional courts.

Chap. IX.—Arrangements for In-
ternational Economic and Social
Cooperation

SECT. A. PURPOSE AND RELATIONSHIPS

With a view to the creation of condi-

tions of stability and well-being which

are necessary for peaceful and friendly

relations among nations, the Organiza-
tion should facilitate solutions of inter-

national economic, social and other

humanitarian problems and promote

respect for human rights and funda-
mental freedoms. Responsibility for

the discharge of this function should be

vested in the General Assembly and,

under the authority of the General

Assembly, in an Economic and Social

Council. DOP, IX. A. 1
The various specialized economic,

social and other organizations and

agencies would have responsibilities in

their respective fields as defined in their

statutes. Each such organization or

agency should be brought into relation-

ship with the Organization on terms to

be determined by agreement between

the Economic and Social Council and

the appropriate authorities of the

specialized organization or agency, sub-

ject to the approval of the General

Assembly. DOP, IX. A. 2

The success of the League in such humanitarian and social activities

as are embraced in LNC, XXIII and XXV, no doubt warrants the
attempt to extend the area of such activities in DOP, IX. A. 1, to
economic problems in general and to “promote respect for human
rights and fundamental freedoms.” Attempts to formulate “human

rights,” whether this term be considered to embrace only the rights of

nations or also the rights of individuals and minorities, has long en-

gaged the attention of statesmen, jurists, and moralists. Without

going too far back and making only invidious selections, reference

might be made to the Declaration of the Rights and Duties of Nations,

adopted by the American Institute of International Law at its first
session in Washington, January 6, 1916,

69 and the Declaration of the

Rights of Man, adopted by the Institute of International Law at its
session in the United States, October 12, 1929.

70 The Seventh

87 Cf. Art. 3 of the General Treaty of Inter-American Arbitration of January 5, 1929; 49 Stat. (pt. 2), p.

3153; U. S. Treaty Series 886; Edward J. Trenwith (ed.), Treaties, etc., Vol. IV (Washington, 1938), p.
4758; American Journal of International Law, Supp. 23 (1929), pp. 83-84.

88 Pan American Union, Eighth International Conference of American States, Lima, Peru, December 9,
1938, Special Handbook for the Use of Delegates (Washington, 1938), pp. 17-20.

89 Text in American Journal of International Law, 10 (1916), pp. 124-126.
70 Text in American Journal of International Law, 24 (1930), p. 560; Jacques Maritain, Les droits de

l’homme et la loi naturelle (New York, 1942), pp. 139-142.

[LNC, XXIII, provided for mainte-

nance of fair labor conditions, just

treatment of natives, control of traffic

in women and children and traffic in
opium, supervision of trade in arms and

ammunition, freedom of communica-

tions and transit, equitable treatment

for commerce, and prevention and con-

trol of disease.]

[LNC, XXV, provided for promotion
of “Red Cross organisations having as
purposes the improvement of health, the

prevention of disease and the mitiga-

tion of suffering throughout the world.”]

[Under LNC, III. 3 and IV. 4, the As-
sembly and Council may deal with such
matters. See LNC, IX.]

There shall be placed under the di-

rection of the League the international

bureaux already established by general

treaties if the parties to such treaties

consent. All such international bu-

reaux and all commissions for the regu-

lation of matters of international in-

terest hereafter constituted shall be

placed under the direction of the League.

LNC, XXIV. 1



32 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

International Conference of American States, held at Montevideo,

counted among its achievements a Convention on Rights and Duties
of States, signed December 26, 1933.

71 The most recent endeavors in
this direction on the part of jurists are embodied in the

‘

‘Postulates

and Principles” contained in The International Law of the Future,
elaborated “by a number of North Americans actively interested in
international law,”

72 under the leadership of Judge Manley O. Hudson.
Among the recent attempts by moralists to formulate “human

rights” and “fundamental freedoms” might be mentioned A Code of
International Ethics, prepared by the International Union of Social

Studies and first published in Oxford in December 1937, An Inter-
national Bill of Rights, drafted by Rev. Wilfrid Parsons, S. J., Pro-

fessor of Sociology and Politics, the Catholic University of America,

in 1941,
73 and Jacques Maritain’s Les droits de Vhomme et la loi naturelle,

published in New York in 1942 in a small edition of 200 copies.
The Proposals themselves give no hint as to what it was contem-

plated should be included in the terms “human rights” and “funda-
mental freedoms.” Until the content of these terms is officially and

adequately defined,
74
the use of such terms in international agreements

may justifiably give rise to such views as those expressed by Fred K.
Nielsen, when he says:

* * * Not infrequently we hear fulsome lip-service to the ethical priDciples
that are the foundation of international law. Lofty generalities are conveniently

unaccompanied by any translation into any form of effort concerned with con-
structive measures indispensable to giving reality to those principles. Then I

am reminded of some effective language used by Judge John Bassett Moore, in
referring to some vague, guarded declarations in an international act, as an

“illustration of the propensity of the human mind to seek, in glib phrases, a
refuge from its disinclination and failure to grapple with stern realities.” 75

Some differences will be noted between the League system and the

Proposals in the handling of economic, social, and other humanitarian

problems. Under the Covenant, presumably the Assembly and

Council may concurrently deal with such matters, creating such com-
missions or other bodies as they may see fit. Under the Proposals, a
new agency is to be created to coordinate all of these matters, the

Economic and Social Council, which is to operate under the authority

of the General Assembly, without reference to the Security Council.

In other words, these matters are to be under the ultimate control of

all of the members of the Organization on the basis of equality and

presumably are not to be dominated by the powers controlling the

71 49 Stat. (pt. 2), p. 3097; U. S. Treaty Series 881; Trenwith, op. cit., p. 4807; 165 League of Nations Treaty

Series, 19. As of December 31, 1941, it was in force for ail of the 21 American republics except Argentina,

Bolivia, Paraguay, Peru, and Uruguay. Treaties in Force, p. 30.
72 The International Law of the Future, American Journal of International Law, Supp., 38 (1944), pp.

54-55.

n America’s Peace Aims, a Committee Report of the Catholic Association for International Peace, Pam-
phlet No. 28 (Washington, 1941), pp. 23-24;

The Federal Council of Churches of Christ in America, at the second national study conference, held

in Cleveland January 16-19, 1945, recommended that “there be established a special commission on human

rights and fundamental freedoms.” Cong. Rec., 79th Cong., 1st Sess., Vol. 91, No. 26, February 12, 1945,

p. A605.

The Inter-American Juridical Committee at Rio de Janeiro similarly declared that “It would seem desir-

able to include in the charter of the new international organization an international bill of rights containing

the rights that are fundamental for the protection of the individual citizen. An international bill of rights
might, if sufficiently comprehensive, preclude the necessity of making provision for the protection of minori-

ties in countries where there are large minority grpups that have long possessed a separate national charac-

ter.” Pan American Union, Inter-American Conference on Problems of War and Peace, Mexico City,
February 1945, Handbook for the Use of Delegates (Washington, 1945), p. 172.
Senator Warren B. Austin has expressed the “hope that the proposed court will operate on the equivalent

of a bill of rights which will comprehend human relations.” Cong. Rec., 79th Cong. 1st Sess., Vol. 91,
No. 15, January 15, 1945, p. 496, col. 2.

75 Fred K. Nielsen, Pacific Settlement of International Disputes, an address before the Institute of Inter-

national Law, Washington, April 28, 1943, p. 3.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 33

Security Council. Moreover, whereas under the Covenant existing

international bureaus already established by general treaties are to

be placed under the “direction” of the League “if the parties to such

treaties consent,” under the Proposals each such organization or agency

is to be brought into “relationship” with the Organization by agree-

ment between the Economic and Social Council and the appropriate

authorities of the specialized organization or agency, of course, subject

to the approval of the General Assembly. No independent existence
of any international agency is presumably contemplated under the

Proposals, if the rather equivocal term “relationship” is interpreted

to mean “conformity” or “control.” One is constrained to inquire:

How is this provision intended to apply, if at all, to such organizations
as the Pan American Union or the Universal Postal Union?

sect. b.—composition and voting [Under LNC, III. 3, and IV. 4, the
.

„ Assembly and Council may presumably
I he Economic and Social Council deal with such matters, except that

should consist of representatives of under LNC, IX, a Permanent Corn-
eighteen members of the Organization. missi0n was to advise the Council on
The states to be represented for this matters included in LNC, I-VIII, and
purpose should be elected by the General military, naval, and air questions.]
Assembly for terms of three years.

Each such state should have one repre-
sentative, who should have one vote.
Decisions of the Economic and Social
Council should be taken by simple
majority vote of those present and
voting. DOP, IX. B

The provisions of the Proposals with regard to the Economic and

Social Council exhibit an intention of establishing a body in between

the Security Council and the General Assembly, from the point of

view of size, for the determination of the more or less noncontroversial,

or at least nonpolitical, matters coming within the competence of

the new body as described above. This makes for a more wieldy body
in handling such matters with dispatch, while at the same time it

provides for widespread participation in the determination of such

matters on the part of the members of the Organization at large.
Unlike the nonpertnanent members of the Security Council, the Ec-

onomic and Social Council is to be renewed integrally every 3 years.

Presumably, but not necessarily, the members of the Security Coun-
cil will be represented on the Economic and Social Council and the

remaining 13 members will be selected from among the other members
of the Organization. No provision is mentioned concerning nonreeli-
gibility

;
unless some such provision is added, there is nothing to pre-

vent members of the Economic and Social Council from being reelected
at the expiration of their respective terms. It is more than likely that
the large number of members of the Economic and Social Council
was considered to afford a desirable elasticity. The Economic and
Social Council under the Proposals performs some of the functions
of the Assembly and Council under the Covenant, but there is no need
to repeat here the comments made above concerning voting in the
Security Council and the General Assembly, since the voting here is
by simple majority.

[DOP, IX. C, provides that the Eco- [Under the LNC, these functions are
nomic and Social Council should be performed by the Council and Assembly
empowered to carry out recommenda- and agencies created by them.]
tions of the General Assembly, make



34 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

recommendations on its own initiative
in economic, social, and humanitarian
matters, coordinate activities of other

organizations and agencies,, enable the

Secretary-General to provide informa-

tion to the Security Council, assist the

Security Council on request, and per-

form such other functions as may be
assigned by the General Assembly.]

[DOP, IX. D, covers organization and

procedure of the Economic and Social
Council.]

These provisions cover the setting up^of an economic commission,

a social commission, and such other commissions as may be required,
all consisting of experts, and the establishment of a permanent staff

as a part of the Secretariat of the Organization. Suitable arrange-

ments are to be made by the Economic and Social Council for the
participation (without vote) of representatives of specialized organ-

izations and agencies in the deliberations of the Economic and Social

Council and its commissions. The Economic and Social Council is

to adopt its own rules of procedure and method of selecting its
President.

Chap. X.

—

The Secretariat

There should be a Secretariat com-

prising a Secretary-General and such

staff as may be required. The Secre-
tary-General should be the chief ad-

ministrative officer of the Organization.

He should be elected by the General
Assembly, on recommendation of the

Security Council, for such term and

under such conditions as are specified

in the Charter. DOP, X. 1

The permanent Secretariat shall be
established at the Seat of the League.

The Secretariat shall comprise a Secre-
tary-General and such secretaries and

staff as may be required. LNC, VI. 1

The first Secretary-General shall be
the person named in the Annex; there-
after the Secretary-General shall be ap-

pointed by the Council with the ap-

proval of the majority of the Assembly.

LNC, VI. 2
The secretaries and staff of the Secre-

tariat shall be appointed by the Secre-

tary-General with the approval of the

Council. LNC, VI. 3

Both the Covenant and the Proposals provide for a Secretary-

General and such staff as may be required. As the Proposals are
silent on the headquarters of the Organization, they likewise do not

specify that the permanent Secretariat should be established at such

headquarters. Presumably this is one of the “other questions” men-

tioned in a note appended to the Proposals as “still under consider-

ation.”
76 The Proposals do, however, specify that the Secretary-

General should be the chief administrative officer of the Organization,

a more or less self-evident fact which was omitted from the Covenant

but corresponds with the actual practice thereunder. The Covenant

provided that the first Secretary-General was to be the person named

in the Annex, namely, Sir James Eric Drummond (British).77 The
Covenant did not specify his term, but his successor was appointed by

the Council with the approval of the Assembly. Under the Proposals,

however, the Secretary-General is to be elected from the very begin-

ning by the General Assembly, on the recommendation of the Security

76 See above, note 27.
77 He was succeeded on July 1, 1933, by Joseph Avenol (French). It may be noted in passing that the

first Director of the International Labor Organization was Albert Thomas (French), who was succeeded in
1932 by H. B. Butler (British).



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 35

Council, for such term and under such conditions as are eventually

specified in the Charter.

The Secretary-General should aet in The Secretary-General shall act in
that capacity in all meetings of the Gen- that capacity at all meetings of the

eral Assembly, of the Security Council, Assembly and of the Council. LNC,
and of the Economic and Social Council VI. 4

and should make an annual report to the
General Assembly on the work of the

Organization. DOP, X. 2

There is no substantial difference here, except that under the

Proposals the Secretary-General is required to make an annual report
to the General Assembly on the work of the Orgapization.

The Secretary-General should have * * * In case any such emergency
the right to bring to the attention of war or threat of war should arise, the
the Security Council any matter which Secretary-General shall, on the request

in his opinion may threaten interna- of any Member of the League, forth-
tional peace and security. DOP, X. 3 with summon a meeting of the Council.

LNC, XI. 1

*

Herein the Proposals give much broader powers to the Secretary-
General than did the Covenant. Such limited initiative as was

accorded him under the Covenant could only be exercised on the

request of a member of the League. Under the Proposals he would
have the right to bring to the attention of the Security Council on

his own initiative any matter which he thought desirable in the interest
of maintaining peace and security.

Chap. XI.—Amendments. Amendments to this Covenant will

. ,
•

, .
take effect when ratified by the Members

Amendments should come into force 0f the League whose Representatives
for all members of the Organization, compose the Council and by a majority
when they have been adopted by a vote Qf the Members of the League whose
of two-thirds of the members of the Representatives compose the Assembly.
General Assembly and ratified in ac- LNC XXVI. 1
cordance with their respective con- No’ such amendments shall bind any
stitutional processes by the members of Member of the League which signifies
the Organization having permanent

its dissent therefrom, but in that case
membership on the Security Council

it shall cease to be a Member of the
and by a majority of the other members League. LNC XXVI. 2
of the Organization. DOP, XI

A fundamental difference is to be noted here. Under the Covenant
amendments could become effective only when ratified by all the
members of the Council and by a majority of all the members of the
Assembly. In this way, all of the members of the Council have a
double voice, once in the Council and once in the Assembly. But,

if so adopted, an amendment would bind every other member of the
League unless it dissented and thereby forfeited membership in the

League. Under this procedure each member of the Council has a
veto.

Under the Proposals, however, amendments are to become effective
when adopted by two-thirds of the members of the General Assembly
and ratified by the permanent members of the Security Council and a
majority of the other members of the Organization. If so adopted,

an amendment would bind every other member of the Organization,
even without its specific consent, as in the case of Amendments to the
Constitution of the United States. Under this procedure only each

'permanent member of the Security Council has a veto. There seems
little ground for believing that such a provision would prejudice the



36 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

rights of the smaller States, since any amendment which can command
the vote of two-thirds of the members of the General Assembly and
the ratification of all of the permanent members of the Security Council
plus a majority of all the other members of the Organization—which
means ratification by 55 to 60 percent of all of the members of the
Organization, depending on the number of members constituting the
Organization—is not apt to be one to which objection couldj-easonably
be made.

Chap. XII.

—

Transitional

Arrangements

(DOP, XII. 1, provides for consulta-

tion for joint action pending the coming

into force of special agreements referred

to in DOP, VIII. B. 5, and in accord-
ance with par. 5 of the Four-Nations

Moscow Declaration of October 30,
1943.]

In paragraph 5 of the Four-Nations Moscow Declaration of October

30, 1943, the Governments of the United States, the United Kingdom,

the Soviet Union, and China jointly declare:

That for the purpose of maintaining international peace and security pending
the reestablishment of law and order and the inauguration of a system of general
security, they will consult with one another and as occasion requires with other

members of the United Nations with a view to joint action on behalf of the
community of nations.78

Presumably this provision covers the Cairo Conference of President

Roosevelt, Generalissimo Chiang Kai-shek, and Prime Minister

Churchill, November 22-26, 1943, 79 the Teheran Conference of

Premier Stalin, President Roosevelt, and Prime Minister Churchill,

November 26-December 2, 1943,
80 and the Crimea Conference of

Prime Minister Churchill, President Roosevelt, and Marshal Stalin,

at Yalta, February 6-12, 1945.
81

No provision of the Charter should
preclude action taken or authorized in

relation to enemy states as a result of
the present war by the Governments

having responsibility for such action.

DOP, XII. 2

These innocent-looking words may contain the dynamite disruptive
of the entire scheme for a general international organization, since

they underwrite the agreements arrived at at Moscow, Cairo, Teheran,

and Yalta, whatever may have been their undisclosed contents. In
plain words, this means that the eventual Charter and the Organiza-

tion operating thereunder will be prohibited (“preclude” means

“hinder,” “prevent,” or “render ineffectual”) any “action taken or

authorized in relation to enemy states”—that is, Germany, Bulgaria,
Finland, Hungary, Italy, Japan, Rumania, and Thailand 82—“by the

78 War Documents, U. S. Department of State Publication 2162 (Washington, 1944), p. 10; American
Journal of International Law, Supp., 38 (1944), p. 5.

79 War Documents, p. 26; The Department of State Bulletin, Vol. IX, No. 232 (December 4, 1943),
p. 393; American Journal of International Law, Supp. 38 (1944), pp. 8-9.

so war Documents, pp. 27-28; The Department of State Bulletin, Vo. IX, No. 233 (December 11, 1943),
pp. 409-410; American Journal of International Law, Supp. 38 (1944), pp. 9-10.

81 Crimean Conference, Senate Doc. No. 8, 79th Cong., 1st Sess.; The Department of State Bulletin, Vol.
XII, No. 295 (February 18, 1945). pp. 213-216.

82 Alignment of the Nations at War, as of November 1, 1943, The Department of State Bulletin, Vol. IX,
No. 230 (November 20, 1943), pp. 349-372.



DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT 37

Governments having responsibility for such action/’ It is not indi-

cated whether such “responsibility” is assumed by the Government or

Governments in question on their own initiative or is only that ac-

corded by the joint action or agreement of the United Nations or any

group thereof. That it conceivably covers both may be argued from
the use of the words “action taken or authorized” in the preceding

phrase. Moreover, the term “enemy states” might be alleged equiv-

ocally as including states at one time or another completely occupied

by the enemy, in which case Belgium, Czechoslovakia, Denmark,

Greece, Luxembourg, Netherlands, Norway, Poland, and Yugoslavia

would be included in the provision.

An example will suffice to show how this provision might be applied.
The Crimea Conference, while professedly reaffirming “faith in the

principles of the Atlantic Charter” of August 14, 1941,
83 and corrob-

orating the “pledge in the declaration of the United Nations” of Jan-

uary 1
,
1942,

84 decided that “the eastern frontier of Poland should

follow the Curzon line” in general, with compensation for the lost

territory to the east by “substantial accessions of territory in the

north and west.” Under the Proposals such action cannot be “pre-

cluded”—that is, rendered ineffectual—by any provision in the even-
tual Charter. It might be remarked in passing that it was the inva-

sion of Polish territory which was largely responsible for the outbreak

of the war and that Poland is a signatory of the United Nations

Declaration of 1942.

It has also been maintained that

—

the Anglo-Soviet mutual assistance agreement of May 26, 1942, the Soviet-
Czechoslovak treaty of December 12, 1943, the Franco-Soviet treaty of alliance

and mutual assistance of December 10, 1944, and any similar agreements which

might be made

—

such as the Anglo-Soviet-United States agreement which was sug-

gested by Senator Arthur H. Vandenberg, “fit the pattern of the gen-

eral international organization for security and peace,” since “they

run against Germany and her Axis specifically.” 85 It is difficult to

see how the parties to these treaties could fulfill their obligations under
DOP, VIII. B. 3, and DOP, II. 5, if any of the other parties were to
be adjudged an aggressor by the Security Council.

Note

In addition to the question of voting

procedure in the Security Council re-

ferred to in Chap. VI, several other

questions are still under consideration.

Among the topics covered by the Covenant and not covered by the
Proposals are the right of withdrawal froiji membership after 2 years’

notice (LNC, I. 3) or after ‘dissent from an adopted amendment

(LNC, XXVI. 2),
86

the designation of a headquarters (LNC, VII. 3),

83 War Documents, p. 1; The Department of State Bulletin, Vol. V, No. 112 (August 16, 1941), pp. 125-
126; American Journal of International Law, Supp., 35 (1941), pp. 191-192.

8< War Documents, pp. 2-3; The Department of State Bulletin, Vol. VI, No. 132 (January 3, 1942), pp.
3-4; American Journal of International Law, Supp., 36 (1942), pp. 191-192.

83 Senator Austin, op. cit., p. 489, col. 1. The Inter-American Juridical Committee raised “the question
whether the alliances recently contracted and now being proposed are not ipso facto incompatible with the
terms of the Charter.” Pan American Union, op. cit., p. 200. David Lawrence, Grew’s Speech Seen Bow
to Expediency, Washington, the Evening Star, January 19, 1945, also denies this consistency, since both

the Soviet-Czechoslovak and the Franco-Soviet treaties “are committed to render aid to Russia, irrespec-

tive of whether the latter nation is herself guilty of aggression,” and vice versa.
86 Kelsen, op. cit., p. 50, hopes that the omission of the right of withdrawal was intentional “so that the

United Nations may become a permanent League for the maintenance of peace, in the true sense of the
term.”



38 DUMBARTON OAKS PROPOSALS AND LEAGUE COVENANT

already discussed above, the equality of women in official positions
(LNC, VII. 3), the diplomatic privileges and immunities of repre-
sentatives of members engaged in official business (LNC, VII. 4), the
inviolability of League property (LNC, VII. 5), the registration of
treaties as a condition precedent to binding obligation (LNC, XVIII),

the revision of treaties (LNC, XIX), at least, specifically, 87 and the
specification of mandates (LNC, XXII. 1-6).

Finally, as Koenig points out, the

—

principal defect of the League was the fact that the sole motivating force behind
observance of its provisions was utilitarian interests of individual nations, who
supported the articles of the League as long as they favored their national ad-
vantage . 88

Cheerfully granting that “Many of the League’s ordinances were
wise,” he continues:

* * * But these injunctions failed during the existence of the old League
because they were not founded on justice and the moral law. And they will fail
again more disastrously if the United Nations are guided by the same slippery
utilitarianism.

There is no reference to justice 89 in the Proposals except the provision

for the creation of an International Court of Justice, and there is no

reference to the moral law except the veiled one to “the respect for

human rights and fundamental freedoms” (DOP, IX. A. 1). This
defect in the Proposals is probably what induced the Catholic Bishops

of the United States, in their declaration of November 19, 1944, to say:
* * * The gilded dreams of a new era, which these systems [like that of the

League] heralded, have proved to be hideous nightmares. If we are to have a
just and lasting peace, it must be the creation of a sane realism, which has a clear
vision of the moral law, a reverent acknowledgment of God as Author, and a
recognition of the oneness of the human race underlying all national distinctions .90

8? Cf.JWalter Lippmann, Senator Vandenberg’s Thesis, the Washington Post, March 15, 1945, p. 13, who
argues that revision of treaties is implicit in DOP, VIII. A. 1.

88 Koenig, Dumbarton Oaks, Catholic Digest, 9 (January 1945), p. 6. See also James Brown Scott, A
Single Standard of Morality for the Individual and the State, American Society of International Law,

Proceedings, 1932, pp. 10-29; H. Lauterpacht, The Law of Nations, the Law of Nature, and the Rights
of Man, paper read before the Grotius Society, London, December 7, 1942; and HerbertSWright, The Moral
Bases of International Law, American Society of International Law, Proceedings, 1941, pp. 52-63.

89 The Inter-American Juridical Committee declares that international law “must represent the sense of
justice of the international community.” Pan American Union, op. tit., p. 170.

90 The Catholic Review, November 24, 1944, p. 2; The New York Times, November 19, 1944, p. 1.