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ranted and presumptuous." Another defect of consultation outside a security organization is the absence of an established procedure and the danger of conflicting with an action initiated by a security organization. “The ideal method of consultation,” says Cooper, "is one which includes all neutrals, which has an established and recognized authority and organization, and which will not conflict with any other peace machinery.". It is evident that a universal or quasiuniversal security organization, such as the League or the United Nations, is the most adequate instrument of consultation.10
It is an essential characteristic of consultation that it has no legal effect. Consultation does not imply any legal obligation whatsoever, especially no obligation to take a definite action for the maintenance or restoration of peace. Its purpose is political rather than legal. A treaty imposing upon the contracting parties an obligation to consult together is of the same nature as a treaty imposing upon the contracting parties the obligation to enter into negotiations. Just as negotiations may or may not result in an agreement of the parties, consultation may or may not lead to action for the maintenance or restoration
It was always with a reservation that no commitment to take action was implied, that the government of the United States accepted the obligation of consultation. Nevertheless, the opposition against consultative pacts was very strong among politicians and others of a more or less isolationist conviction. When at the London Naval Conference of 1930, in a press release of the United States delegation on 26 March 1930, the statement was made: “... that America had no objection to entering a consultative pact as such; on the contrary, the United States is already a party to a number of treaties involving the obligation of consulting with other powers. It will not, however, enter into any treaty, whether consultative or otherwise, where there is danger of its obligation being misunderstood as involving a promise to render military assistance or guaranteeing protection by military force to another nation,” 11 Senator Borah, the Chairman of the Foreign Relations Committee, declared: “A consultative pact is a security pact in disguise. In a security pact you state in the pact what you are going to do after you have consulted. In a consultative pact you conceal what you are going to do after you have consulted, but you will be forced by the logic of the hour to do precisely what you expressly agreed to do in the security pact. A consultative pact in which the parties would not go forward and do whatever would be necessary to be done in accordance with the realities of the situation would be a pious fraud-and a fraud which under the exigencies of the hour would be rejected;" 12 and Sena
tor Shipstead stated: “To agree to consult is to agree to decide. To agree to decide is to agree to act. To agree to act is to agree
that we are going into the next war. They call this the road to peace. That is what they called the Triple Alliance, and the Triple Entente, and the Quadruple Alliance.” 13 When at the Disarmament Conference in Geneva, 1933, the question of the commitment of the United States was discussed, Professor John Bassett Moore wrote: "The commitment of the United States to such a 'consultative pact' as is desired at Geneva would, I believe, constitute the gravest danger to which the country has ever been exposed, a danger involving our very independence. . . . It would destroy the last vestige of the power to control our own destiny that has heretofore been the most cherished part of our birthright. ... Of all conceivable devices the 'consultative pact' is the most pernicious. It operates both as an incentive and as a lure. While it encourages the co-partner to do what he might otherwise refrain from doing, it fails, by reason of its indefiniteness, to deter the co-partner's antagonist from doing what he might not otherwise attempt. Numerous examples might be adduced to show this.” 14
Within a universal or quasi-universal security organization mere consultation implying no obligation of any action for the maintenance or restoration of peace may be useful if it is able to crystallize world public opinion concerning an actual or potential aggression and the state responsible for it. However there is seldom, and almost never in a world split into two ideologically hostile camps, only one public opinion. There are almost always at least two opposite ones, and thus, under actual circumstances, the value of this means for the establishment of international security remains problematical.
1. Cf. Russell M. Cooper, American Consultation in World Affairs for the Preservation of Peace, with an Introduction by Dr. James T. Shotwell (New York: The Macmillan Company, 1934), pp. VII, 23; and Philip C. Jessup, International Security. The American Rôle in Collective Action for Peace (New York : Council on Foreign Relations, Inc., 1935), p. 64.
2. According to one interpretation, consultation was implied—although not expressly stipulated—in the Kellogg-Briand Pact. Cf. David Hunter Miller, The Peace Pact of Paris, 1928, pp. 130–1: "Inevitably the Government of the United States will be consulted, if not directly by Geneva, certainly by the Powers most influential at Geneva. Whether such consultation comes in the name of the League of Nations or whether it comes in the name of Members of the League of Nations as Parties with the United States to the Briand-Kellogg Treaty, is quite immaterial; it might take the form of discussions at Washington, or telegraphic exchanges, or a representative of the United States might sit with the Council; the consultation itself is certain and in any form it will be asked in fact by those Powers which are trying to preserve the peace. No Government of the United States could be indifferent to such an appeal; any threatened breach of a treaty
obligation made to the United States must be a matter of grave concern, above all when peace is at stake; of course there would be no legal duty on the part of the United States to intervene; still less would there be any obligation on the part of the United States to use threats; and I do not speak of sanctions because I am considering intervention before a breach and not afterwards; but no Gov. ernment of the United States could refuse to use its influence in such a case in cooperation with the League of Nations to preserve peace and at the same time to preserve the sanctity of our own Treaty."
In June, 1932, both the Republican and the Democratic Parties required in their respective platforms the implementation of the Kellogg-Briand Pact by provisions for consultation in case of a threatened violation of the Treaty. On 8 August 1932 Secretary Stimson declared in an address before the Council on Foreign Relations: “... that consultation between the signatories of the Pact when faced with threat of its violation becomes inevitable. Any effective invocation of the power of world opinion postulates discussion and consultation.
That the Pact thus necessarily carries with it the implication of consultation has perhaps not been fully appreciated by its well-wishers who have been so anxious that it be implemented by a formal provision for consultation. But with the clarification which has been given to its significance by the developments of the last three years, and the vitality with which it has been imbued by the positive construction put upon it, the misgivings of those well-wishers should be put at rest. That the American people subscribe to this view is made clear by the fact that each of the platforms recently adopted by the two great party conventions at Chicago contains planks endorsing the principle of consultation." Henry L. Stimson, The Pact of Paris: Three Years of Development, Department of State, Publication No. 357, Washington, 1932, pp. 11–12.
On 11 August 1932 President Hoover, in accepting the Republican nomination, stated : "... we have given leadership in transforming the Kellogg-Briand Pact from an inspiring outlawry of war to an organized instrument for peaceful settlements backed by definite mobilized world public opinion against aggression. We shall, under the spirit of that pact, consult with other nations in times of emergency to promote world peace. We shall enter no agreements committing us to any future course of action or which call for use of force in order to preserve peace.” New York Times, 12 August 1932.
And on 26 October, in a speech delivered at Pittsburgh, Secretary Stimson declared: “Whenever a breach of the treaty is threatened by approaching hostilities, it implies a duty of consultation among the other parties in order that public opinion may be mobilized against the impending disaster of war." Henry L. Stimson, The Work of the United States Government in the Promotion of Peace During the Past Three Years, Department of State, Publication No. 398, Washington, 1932, p. 11.
On 22 May 1933 Mr. Norman Davis, in his capacity as the chairman of the American Delegation to the Disarmament Conference in Geneva, accepted a British plan for disarmament which contained a provision to the effect that "in the event of a breach or threat of breach of the Pact of Paris, a conference between the High Contracting Parties shall at once meet at the request of any five of them, provided that at least one of the governments mentioned by name in Article 4 joins in that request.” (Series of League of Nations Publications. IX Disarmament, 1933, IX, 2, Conference Document 157, p. 2.) He declared that the United States is: “ willing to consult with the other States in case of a threat to peace, with a view of averting conflict. Further than that, in the event that the States, in conference, determine that a State had been guilty of a breach
of the peace in violation of its international obligations and take measures against the violator, then, if the U. S. concurred in the judgment rendered as to the responsible and guilty party, it would refrain from any action tending to defeat such collective effort which the States might thus make to restore peace." Series of League of Nations Publications. IX Disarmament, 1933, IX, 10, p. 475.
On 24 May the United Kingdom presented a revised text of its draft convention which contained the following provisions : "I. In the event of a breach or threat of breach of the Pact of Paris, either the Council or Assembly of the League of Nations or one of the parties to the present Convention who are not members of the League of Nations may propose immediate consultation between the Council or Assembly and any of the said parties to the present Convention. II. It shall be the object of such consultation, (a) in the event of a threat of a breach of the Pact to exchange views for the purpose of preserving the peace and averting a conflict; (b) in the event of a breach of the Pact to use good offices for the restoration of peace; and (c) in the event that it proves impossible thus to restore the peace, then to determine which party or parties to the dispute are to be held responsible. III. The provisions of the above article do not in any way prejudice the rights and obligations of the members of the League, nor conflict with nor limit the powers and duties of the Assembly and Council under the Covenant." Records of the Conference for the Reduction and Limitation of Armaments. Series B. Minutes of the General Commission, Vol. II. Series of League of Nations Publications, IX, Disarmament, 1933, IX, 10, p. 494.
Mr. Norman Davis also accepted the new British plan and declared on 24 May: “Recognizing that any breach or threat of breach of the Pact of Paris (the Briand-Kellogg Pact) is a matter of concern to all the signatories thereto, the Government of the United States of America declares that, in the event of a breach or threat of breach of this Pact, it will be prepared to confer with a view to the maintenance of peace in the event that consultation for such purpose is arranged pursuant to Articles and ... of Part I of the Disarmament Convention.. ." (Ibid., pp. 495-6.) The consultation referred to in the British draft convention and in the American declaration evidently had a preventive as well as repressive character in that it would take place not only in case of a threat of a breach but also in case of an actual breach of the Pact of Paris.
The Argentine Anti-War Treaty of non-aggression signed at Rio de Janeiro 10 October 1933, to which the United States was a contracting party, contained in Article 3 the following provision: "In case of noncompliance by any state engaged in a dispute, with the obligations contained in the foregoing articles, the contracting states undertake to make every effort for the maintenance of peace. To that end they will adopt in their character as neutrals a common and solidary attitude; they will exercise the political, juridical or economic means authorized by international law; they will bring the influence of public opinion to bear but will in no case resort to intervention either diplomatic or armed; subject to the attitude that may be incumbent on them by virtue of other collective treaties to which such states are signatories." The first two Articles of the Treaty were similar to the first two Articles of the Kellogg-Briand Pact. Cf. Jessup, International Security, p. 76.
3. Cf. Cooper, op. cit., pp. 348 ff.
4. Article 4, paragraph 5, of the Covenant of the League of Nations expressly provided that any member of the League not represented on the Council should be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters especially affecting the interests
of that member of the League. Thus, consultation among the disinterested members was secured along with consultation with the interested member. Article 31 of the Charter of the United Nations stipulates that any member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the latter considers that the interests of that member are specially affected. Article 32 provides that any member of the United Nations which is not a member of the Security Council, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute.
5. According to Article 32 of the Charter, a state which is not a member of the United Nations, if it is a party to a dispute under consideration by the Council, shall be invited to participate, without vote, in the discussion.
6. Cf. Cooper, op. cit., p. 352.
7. There are still a number of states not members of the United Nations, and, according to Article 2, paragraph 6, of the Charter, the Organization shall ensure that these states act in accordance with the Principles of the Charter so far as this may be necessary for the maintenance of international peace and security. As far as the principle of settling disputes by peaceful means is concerned, consultation with the non-member state involved in a dispute is secured by Article 32. With respect to enforcement measures to be directed against a non-member state in case of threat to or breach of the peace, no previous consultation with this state is provided for by the Charter; nor is any consultation with a non-member state obligatory which, according to the principle laid down in Article 2, paragraph 5, is supposed to give the United Nations every assistance in any action the Organization takes in accordance with the Charter and to refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. However, it may be assumed that consultation with the non-member state, especially in the latter case, is not excluded.
8. Cooper, op. cit., p. 349. 9. Ibid., p. 352.
10. The first treaties by which the United States legally committed itself to consult with other states under certain conditions were the Four-Power Treaty, signed 13 December 1921 by the United States, the British Empire, France and Japan concerning insular possessions in the Pacific and the Nine-Power Treaty, signed 6 February 1922 by the United States, Belgium, the British Empire, China, France, Italy, Japan, the Netherlands and Portugal concerning the principles and policies to be followed in matters concerning China. Recently, the United States accepted special obligations of consultation in defense treaties such as the North Atlantic Treaty signed at Washington on 4 April 1949 which contains in Article 4 the following provision : "The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened"; the Security Treaty concluded by Australia, New Zealand, and the United States of America, signed at San Francisco on 1 September 1951, Article III of which stipulates : “The Parties will consult together whenever in the opinion of any of them the territorial integrity, political independence or security of any of the Parties is threatened in the Pacific”; the South-East Asia Collective Defense Treaty, signed on 8 September 1954 by the United States, Great Britain, France, Australia, New Zealand, the Philippines, Thailand and Pakistan, which contains the following provisions : Article 4, paragraph 2: “If, in the opinion of any of the