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16. The Security System established by the Covenant of the League of Nations was of this type. The Covenant did not prohibit resort to war under all circumstances. It is significant that in the Preamble "the acceptance of obligations not to resort to war," not of the obligation not to resort to war was mentioned. According to Articles 12 and 15, the members were obliged to submit their disputes either to an international tribunal or to the Council. Submission to an international tribunal presupposed agreement of the parties to the dispute. The members were obliged to carry out the decision of the tribunal and not to resort to war against a member of the League which complied therewith. War against a state which, in violation of its obligation, did not comply with the decision of the tribunal was not excluded (Articles 12 and 13). In case agreement to submit a dispute to a tribunal could not be reached, each party was entitled to submit the case to the Council, which was authorized to proceed at the request of one party to the dispute. For this purpose no agreement was necessary. The Council was first to endeavor “to effect a settlement of the dispute" by bringing about an agreement between the parties. However, if a dispute could not be settled in this way, the Council was bound to settle a dispute by making a recommendation to the parties. Only a recommendation unanimously agreed to by those members of the Council who were not representatives of the parties to the dispute gave the recommendation of the Council a legal effect. This effect consisted of prohibiting war against a party which complied with the recommendation. War against a party which did not comply with the recommendation was not excluded, nor was war excluded in case none of the parties complied with the recommendation of the Council. In case a unanimous recommendation could not be reached by the Council, war was expressly permitted by the Covenant, but only "for the maintenance of right and justice" (Article 15, paragraph 7). Finally, war was not forbidden, or at least not expressly forbidden, in case a dispute arose from a matter of domestic jurisdiction. In all cases in which war was not forbidden, the parties were obliged not to resort to war until three months after a decision by an international tribunal or a report or recommendation of the Council (Article 12, paragraph 1).
17. As the Covenant of the League of Nations in Article 16.
18. According to an interpretation of Article 16 of the Covenant of the League of Nations adopted by resolution 9b of the Second Assembly of the League in 1921, the Council had the power to exempt a member state from participating in the sanctions taken against an aggressor, even if the member concerned shared with other members the view that an act of aggression had been committed by the state against which the sanctions were taken. Cf. Note 19.
19. Cf. Paul Guggenheim, "La securité collective et le problème de la neutralité.” Annuaire Suisse de droit international. Vol. II (1945), pp. 9 ff, and J. F. Lalive, “International Organization and Neutrality.” The British Yearbook of International Law. Vol. 24 (1947), p. 75. When Switzerland joined the League of Nations, the Council of the League declared in its resolution of 13 February 1920 that "the perpetual neutrali of Switzerland and the guarantee of the inviolability of her territory as incorporated in the law of nations, particularly in the treaties and in the Act of 1815, are justified by the interest of general peace, and as such are compatible with the Covenant.” It was understood, however, that Switzerland, while refusing to participate in military action or to admit the passage of foreign troops, fully recognized the duties of the solidarity she was incurring as a member of the League, particularly the duty under Article 16 of participating in any economic action taken by
the League against a covenant-breaking state. However, by a resolution of the Council of the League of Nations adopted on 14 May 1938, Switzerland was freed of the obligation to take any sanctions, even economic sanctions, against the aggressor. To justify the attitude of Switzerland, Professor Schindler wrote in a memorandum presented to the International Studies Conference (cf. supra, p. 9): "In entering the League of Nations, Switzerland did not abandon this political maxim, whose value has been proved to her satisfaction by an age-long experience. It is indispensable to her in both foreign and domestic policy. To participate in a war between other States means for Switzerland the almost certain prospect of seeing her entire territory turned into a battlefield. Surrounded by several very powerful States, Switzerland, if she were involved in a modern war, would risk, more than any other country in the world, complete annihilation. Even in the course of a long war, a large State can hardly be altogether destroyed.” Collective Security, p. 420. The last argument is not quite correct. A great power, the Austrian-Hungarian Monarchy, was altogether destroyed in the course of a long war. In order to maintain its permanent neutrality, Switzerland did not join the United Nations.
20. Cf. Collective Security, p. 26.
21. The Charter of the United Nations forbids the use of armed force, and hence forbids war, under all circumstances with two exceptionsthe exercise of self-defense and the execution of sanctions. In regard to members of the organization not involved in a war between other members or between members and non-members or between non-members only, the Charter imposes the obligation to resort to both military and non-military sanctions against the aggressor in accordance with the decisions of the Security Council (Article 39–50). Article 2, paragraph 5, provides: “All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.” Article 25 stipulates: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” In view of these provisions, it follows that in case of a military action taken by the United Nations, constituting war between the Organization and a state, or in case of a war between two states in which the Organization intervenes by either a military or a non-military action, the status of neutrality, or the principle of impartiality, is excluded in principle. The Report of the Rapporteur of the Subcommittee to Committee 1/1 of the San Francisco Conference contains the following statement in reference to paragraphs 5 and 6 of Chapter II of the Dumbarton Oaks Proposals which correspond to Article 2, paragraph 5, of the Charter: "The French Delegation proposed to add to Paragraph 5 of Chapter II the following phrase which was conceived in the French text as follows: 'Sans qu'un État puisse, pour s'y soustraire, invoquer un statut de neutralité.' The French Delegate explained that what he meant by 'statut de neutralité' was that of permanent neutrality. From the discussion that ensued, it was understood in the subcommittee that the status of permanent neutrality is incompatible with the principles declared in paragraphs 5 and 6 of Chapter II, in that no state can avail itself of the statute of permanent neutrality to be freed from the obligations of the Charter. The subcommittee, on that understanding, tacitly accepted that the vote taken on paragraphs 5 and 6 covers the French amendment.” Although as a rule the status of neutrality, or if not the status of neutrality at least the principle of
impartiality, is excluded, there are nevertheless certain cases in which the one or the other may be maintained.
First of all, the fact must be considered that according to Article 48, paragraph 1, of the Charter, the action of the Organization may be carried out by all the members of the United Nations or by some of them, the determination as to which members must carry out the Organization's decision is made by the Security Council. Hence, the Security Council may call upon only some members to make available to the Organization contingents of their armed forces to be employed in a military action taken against a state at war with another state or guilty of an act of aggression which does not consist of resorting to war, as in the case of a threat of force. The members not involved in the war between the aggressor and its victim or in the war between the Organization and another state may then remain neutral and may even adopt an attitude of strict impartiality towards the belligerents, provided that the Security Council does not order them to apply nonmilitary sanctions to the state against which the military action of the organization is directed. If they must apply non-military sanctions, they can observe only a qualified neutrality. In case of a war between states, if the Security Council decides to take only measures short of war, especially measures not involving the use of armed force, and if the Security Council calls upon only some members to execute these measures, the other members which are not involved in this war may observe a perfect neutrality, although the members called upon to execute the decisions of the Security Council may observe only a qualified neutrality. This interpretation of the Charter presupposes that Article 2, paragraph 5, means that the members are obliged to give the United Nations only that assistance which they are ordered to give by the competent organ of the United Nations, and that members are obliged to refrain from giving that state against which the United Nations action is directed only that assistance which they are prohibited from giving by the competent organ. However, the wording of Article 2, paragraph 5, certainly allows another interpretation, one not quite consistent with Article 48, paragraph 1. According to this interpretation, members not called upon by the Security Council to make available contingents of their armed forces or to take measures short of war are obliged to take military or non-military measures against the state against which the United Nations action is directed. In this case, the choice of the appropriate means is left to the discretion of the individual states. Consequently, while these states may remain neutral, they cannot adopt an attitude of impartiality, that is to say, they may observe a so-called qualified neutrality.
In view of the fact that the special agreements concerning the contingents of the armed forces which the members must place at the disposal of the Security Council have not yet been concluded, in case of a war the Security Council would not be in a position to take military measures by decisions binding upon the members. However, according to the wording of Article 39, it could recommend to members not involved in the war that they take such measures. Since these recommendations are not binding, the members concerned could choose whether they did or did not wish to remain neutral. If a military action taken by a member on the recommendation of the Security Council is considered to be an action of the United Nations, Article 2, paragraph 5, would apply. If it is interpreted as imposing on each member the obligation to give the United Nations every assistance in any action taken by the Organization even if the member is not under an order issued by the Security Council in conformity with Article 48, a member which does not comply with a recommendation to take military action made by the Security Council in conformity with Article 39 would be obliged
to take such an action or enforcement measure not involving the use of armed force under Article 2, paragraph 5. This paradoxical consequence can be avoided if Article 2, paragraph 5, is interpreted to mean that the members are obliged to give the United Nations only that assistance which they are ordered to give by the Security Council in conformity with Article 48.
For one reason or another, especially because of the lack of unanimity of its permanent members, the Security Council may be prevented from making such recommendations or deciding upon non-military measures. In this event, Article 2, paragraph 5, would not apply. In case of a war, the members not involved in the war would be able to remain neutral and adopt an attitude of strict impartiality towards the belligerents. However, in case of an armed attack, they are under Article 51, in the exercise of the right of collective self-defense, entitledbut not obliged—to resort to war or to take measures short of war against the state which they consider to be the aggressor, that is to say, to give up neutrality or to observe a so-called qualified neutrality towards the belligerents. In case of a war, if under Article 39 the Security Council determined the existence of a breach of the peace or act of aggression, and thus determined the aggressor but did not take any measures against this aggressor state, the members not involved in the war which exercised their right of collective self-defense would be bound by the decision of the Security Council insofar as they could no longer decide for themselves which state was the aggressor.
Article 106 of the Charter stipulates : “Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, October 30, 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security." The states authorized to take joint action on behalf of the United Nations are the five permanent members of the Security Council. Consequently, it is not very likely that such action will ever be taken, since a "joint" action requires the unanimity of the five permanent members of the Security Council. However, if it should take place in case of a war, it would have to be considered a military action of the United Nations to which Article 2, paragraph 5, would apply. The question of the neutrality of the members of the United Nations not involved in the war would be answered according to which of the two interpretations of Article 2, paragraph 5, was accepted.
(e) Preventive Measures (aa) Consultation.
As pointed out in a previous chapter of this study, the distinction between repressive and preventive measures is not an absolute one. As reactions against a violation of the law already committed, repressive measures, and especially sanctions, always also have a preventive effect, and some measures which, in principle, have a preventive character may be applied after the delict has been perpetrated. Consultation is such a measure.
By consultation, any form of communication between governments may be understood. As a specific means to be applied within a system of international security, consultation is an exchange of views among governments for the purpose of preventing or terminating the use of armed force by one state against another. Such consultation takes place among states which are not involved in the conflict, but the parties to the conflict may also participate in the discussion. The states concerned may consult each other in case of a mere threat to the peace in order to consider the means for its preservation. In this case, the consultation has a preventive character. On the other hand, consultation may take place in case of an actual breach of the peace. It then has a repressive character.2
Consultation may take place outside a security organization or within such an organization or between the organization and states not belonging to it. Consultation outside a security organization may be carried out either through the normal diplomatic channels or through the mechanism of an international conference. Consultation within a security organization is an essential element of the procedure of the organs competent to apply preventive or repressive measures for the maintenance or restoration of peace. It necessarily precedes the decisions concerning the application of repressive measures, especially the application of sanctions. If not all the members are represented in the organ, the member not represented may be invited to participate in the discussion of the matter affecting the interest of that member.
If the security organization is not universal, consultation is advisable between the organization on the one hand and the non-member involved in the conflict with which the organization is dealing on the other. It is, however, not only consultation with a non-member involved in a conflict but also consultation with a disinterested, especially a neutral, non-member which is of importance, especially if the non-member is a great power, for the cooperation of all third parties is essential to the effectiveness of consultation. As the United States was not a member of the League of Nations, consultation of the United States with the League was a paramount political problem. Since the United States is a member of the United Nations and a permanent member of the Security Council, consultation between this organization and the United States is no longer a problem."
There can be no doubt that consultation through the mechanism of an international security organization is preferable to that through diplomatic channels and conferences. This is true, first, because the latter, as Cooper 8 correctly points out, rest upon no recognized authority and hence are always open to the charge of being unwar