Vol. 14 No. 26
On behalf of Senator Milroy, I move:
That the Seanad approves of the General Act for the Pacific Settlement of International Disputes, annexed to the Resolution adopted by the Assembly of the League of Nations on the 26th day of September, 1928, a copy of which General Act was laid on the Table of the Seanad on the 24th day of June, 1931, and recommends the Executive Council to take the necessary steps to accede to the said General Act.
I second.
I am very disappointed that we have not had a statement in support of the motion as to what is meant, and what is involved. I think the occasion is one on which we might have had a statement expressive of a feeling of gratification that we have arrived at a stage in international affairs in regard to the promotion of peace and of arbitration between nations by which it is possible to accede to an international document of this nature. We have participated in certain movements beginning with our entry into the League which links us up as a Free State with the progressive nations of the world, and some unprogressive ones, in a great international effort for co-operation to prevent war. This General Act marks one very important phase of that general movement, and as I said last night, it would be a pity if this motion were to be passed in a perfunctory way. I am sorry now that the motion was not taken last night, because then we might have had a larger attendance than we have to-day.
There has been a very long agitation and a great deal of international diplomacy in regard to the question which culminates in this General Act. When one looks into the problem and the discussions surrounding it, one finds that a great step forward has been made, when it is possible for a number of countries to commit themselves to submission to the decision of an international court of law or arbitration in any dispute in which they may be involved. We entered into the Covenant of the League, which committed us to certain action in the direction of peace and international co-operation. We entered into the Kellogg Pact, which takes us a little further on that road. We signed what is known as the Optional Clause, by which we undertook to submit juridical problems and questions in dispute to a court outside this country. We are now going further. We are not confining our undertaking merely to these disputes which might be dealt with in law courts under conditions which govern international law, but we are committing ourselves to submit to an outside international authority any dispute of any kind, political or otherwise, in which we may find ourselves involved. That is the important feature of it. We are renouncing our national sovereignty to that extent in the sense that it is frequently used: the right to impose our views by force of arms on other countries. We are saying that we are prepared to submit our disputes to an international authority, that we will argue our case, and accept the decision given, even though we may be convinced in our hearts and conscience that the decision is a wrong one. We agree to accept the decision, and other countries are agreeing in the same way. I think that is a great step forward in the direction of co-operation and collaboration.
Before we pass the motion I would like to hear what the views of the Ministry are in regard to accession to this General Act. Is it proposed to accede to all the provisions of the Act as defined in Article 38, that is, to chapters 1, 2, 3 and 4 or to make reservations of any kind? The serious nature of this motion depends to some extent on the reservations, if any, that we contemplate. There is nothing in the motion which indicates the intention of the Ministry in that respect. I do not profess for a moment to be competent to discuss the merits of this motion and this General Act in the way that it ought to be discussed in this House. It would seem to me to be a very great pity if the motion were to be allowed to pass the two Houses without any indication being given by the Ministry with regard to possible reservations and without some testimony to the work of those great advocates and practitioners in the art of peacemaking that has been going on for at least a hundred years, which finds its culmination in this General Act for the International Settlement of Disputes. I hope that we may get from the Minister a general statement of the views of the Government on the matter and some indication as to how many States have subscribed up to date to this General Act, what reservations have been made to it by Great Britain and the Dominions particularly, and what reservations have been made by other countries which have acceded to it.
Senator Johnson, speaking on this subject, has asked what the Government's intentions are with regard to accession to the General Act; whether there are only particular sections to which we may accede, or whether the accession is to be complete and comprehensive. We intend it to be comprehensive. We want to accede to the whole Act. There is no need for any expression as to a time limit. This runs in periods of five years, and, if it is not intended to be recognised further, notice may be given within six months before the expiration of the five years' period. We are going to accede simpliciter. The accession to the Act as a whole is in complete accord with what Irish delegations have from time to time said at the Assembly of the League and elsewhere. We have adopted the policy in general of all-round conciliation and all-round pacificatory settlement of disputes. It has been a hard task to get the various nations to band themselves together in a type of agreement bearing on the pacific settlement of disputes and completely free from flaws.
Senator Johnson has outlined some of the ways in which we have incurred obligations. We have incurred obligations arising out of the Covenant, the Kellogg Pact, as a signatory to the Optional Clause, and under a variety of Treaties which we have signed from time to time. If disputes arise on specific points set out in these Treaties, recourse must be had to arbitration or to other proceedings of a particular type. Under Articles of the Covenant nations are obliged to bring forward for judicial settlement, arbitration or inquiry by the Council, any disputes which may seem likely to lead to a rupture or provoke war. If it is felt that a particular dispute is not one which is proper for submission to judicial settlement or arbitration, nations are obliged to submit it to the Council. In these obligations there are certain little imperfections. For instance, a flaw exists in the sense that there is a subjective test by the nations implicated. There may be, for example, a dispute which is likely to lead to rupture. The question could be asked: What disputes are there that would be likely to lead to rupture? Nations could avoid their responsibility under that clause by declaring that a particular dispute, in their opinion, is not such as would pass the subjective test. A great deal would depend on the view of the nations concerned. If they do not consider a dispute suitable for submission, then that particular type of pacific settlement has to be set aside.
Under one Article of the Covenant, if there are disputes which nations consider are not suitable for judicial settlement or arbitration, they may be referred to the Council for inquiry. Here there is another flaw. If the Council are unanimous, then there is a definite result to look forward to; but if the Council are not unanimous, the whole method of pacific settlement again falls through. By reason of these gaps, these imperfections, the different nations moved on to the Kellogg Pact, which embodies a general renunciation of war as an instrument of national policy in the settlement of disputes. Under that Pact nations bound themselves to resort only to pacific means. It is a comprehensive document, but it, too, has a flaw inasmuch as there is no procedure of a distinct type established for the purpose of bringing disputes forward. Under the Optional Clause there is machinery arranged, but it is limited to legal disputes or disputes of a juridical character.
The General Act was finally thought of. This General Act applies to all classes of disputes. We propose to accept it, not merely in the chapter relating to conciliation, but also in the chapters relating to judicial settlement and arbitration. In the different chapters there is laid down a certain procedure and certain schemes for the pacific settlement of international disputes. Under the General Act the method is that a dispute must come forward for settlement by conciliation, judicial settlement or arbitration. Legal disputes will go forward for judicial settlement if the parties have not as an alternative agreed to have resort to an arbitral tribunal. Nonlegal disputes will go eventually for arbitration if not previously settled through conciliatory methods. The ordinary distinction between conciliation and other methods holds here. The conciliatory method is to try to get the different parties together and endeavour to get the points in dispute pacifically settled. If a settlement be not effected, then in the case of the non-legal dispute there has to be recourse to arbitration. The legal type of dispute will go for judicial settlement, as I have already indicated, in cases where arbitration proceedings have not been arranged by the parties.
We consider this method of binding ourselves to all the nations in the world—and, of course, they also will bind themselves to us—to be a much better substitute for the old method of using the pause between wars for the purpose of forming alliances amongst individual nations, alliances which, as history has too often shown, only lead to further groupings for fresh wars. We prefer this system of holding out the hand of peace to every country disposed to accept this general pacific obligation in the same spirit as that in which we accept it. The whole Act has been accepted by France, Spain, Great Britain, Australia, New Zealand, Denmark, Finland, Luxembourg, India, Norway and Belgium. Italy has announced its intention to accede, but it has not yet done so. Holland and Sweden have acceeded to Chapters 1, 2 and 4.
Reservations would require to be dealt with in much more detail than I am, at the moment, able to deal with them. Some countries have put in, as if by way of reservation, what is really not a reservation at all, to my mind. Some of the attempted reservations amount to little more than an underlining of what is already in the Act. Article 29 has been almost written in again in acceptance by one country. Article 29 is an important Article for the Seanad to notice. It occurs in Part IV, dealing with the General Provisions, and it establishes that:
1. Disputes for the settlement of which a special procedure is laid down in other conventions in force between the Parties to the dispute shall be settled in conformity with the provisions of those conventions.
2. The present General Act shall not affect any agreements in force by which conciliation procedure is established between the Parties or they are bound by obligations to resort to arbitration or judicial settlement which ensure the settlement of the dispute....
In other words, it keeps alive existing undertakings. Certain countries have thought fit to direct special attention to the fact that they are keeping alive previously established conventions. I do not think that amounts to a reservation. We intend to make no reservations with regard to our acceptance of the General Act. As I have said, we intend to accept it simpliciter. The British Government made their declaration dependent upon reservations definitely of the same type as those previously declared in regard to the Optional Clause. The Article dealing with allowed reservations is Article 39, which says:
1. In addition to the power given in the preceding article, a Party, in acceding to the present General Act, may make his acceptance conditional upon the reservations exhaustively enumerated in the following paragraph. These reservations must be indicated at the time of accession.
Paragraph 2 is an important one. It sets out:
2. These reservations may be such as to exclude from the procedure described in the present Act:
(a) Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute;
(b) Disputes concerning questions which by international law are solely within the domestic jurisdiction of States.
(c) Disputes concerning particular cases or clearly specified subject-matters, such as territorial status, or disputes falling within clearly defined categories.
Those are the allowed types of reservation. The British Government have made the same reservations as those which they made to the Optional Clause. The important one, from our point of view, is the following.
(iii) Disputes between His Majesty's Government in the United Kingdom and the Government of any other member of the League which is a member of the British Commonwealth of Nations, all of which disputes shall be settled in such a manner as the Parties have agreed or shall agree;
Previously, I made the point here on the Optional Clause that such a reservation as that was quite clearly ultra vires when looked at in conjunction with the Optional Clause permission in relation to reservations. The permitted types of reservation are somewhat wider under the General Act. I am still of opinion, however, that a reservation of that type, which proceeds by way of advertence to Parties and not to types of disputes, is clearly without the terms of Article 39.
Is it suggested that it comes under paragraph (b)?
It has never been precisely declared. On that point, I am in the region of conjecture. I have never heard it so declared and I gather that the paragraph under which this is attempted to be brought is (c) (2) of 39. Again, as in the Optional Clause, there is an article which provides for settlement of disputes as to interpretation. Article 41 states:
Disputes relating to the interpretation or application of the present General Act, including those concerning the classification of disputes and the scope of reservations, shall be submitted to the Permanent Court of International Justice.
There is still the procedure of going to that Court, if we want to establish our rights, or in the event of any dispute arising which seems to be blocked by these reservations. I think I have dealt with most of the points which have been raised.
We consider this to be the proper method of trying to get an approach to harmonious methods in the world and we consider that it is far better than the old method of alliances with individual countries. It is in that spirit that we offer this Act for acceptance.
