I move: "That the Dáil 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 Dáil on the 18th day of June, 1931, and recommends the Executive Council to take the necessary steps to accede to the said General Act."
I bring this motion before the House with a view to having ratification or accession made to the Act to which reference is made, hoping that in doing this we may take another step along the rather difficult and rather tortuous way that leads to the settlement of disputes by means other than war-like ones. I think it would be well to link this up with the measures which have gone before it, and to indicate what are the obligations that we have accepted as members of the community of nations with regard to the settlement of disputes by other than warlike means, and by that means to point out what is the necessity or the advisability in having a measure of this type accepted. We have incurred obligations with regard to the pacific settlement of disputes in a variety of ways, under the Covenant of the League of Nations, the Kellogg Pact, the Optional Clause with regard to the Permanent Court of International Justice, and in a variety of Treaties which have specific clauses attached to them from time to time.
Under Article 12 of the Covenant, States are bound to bring forward either for judicial settlement, arbitration or inquiry by the Council, all disputes which seem likely to lead to a breach of the peace, anything which seems likely to provoke war. Under, I think, Section 13 of the Covenant, States are also bound to submit to either judicial settlement or arbitration such disputes as they think are suitable for submission in either of these two ways. If they do not feel that a certain dispute is one which is proper for submission either to judicial settlement or to arbitration, then they are bound to bring it before the Council for inquiry. These two obligations under the Covenant are imperfect obligations, first because they are subject to test by the Nations implicated as to whether or not a particular event is likely to provoke war, and on that, of course, argument might proceed. While the argument was proceeding the event which it was sought to prevent might have taken place. The second method of submission to judicial settlement and arbitration is also imperfect, because it, again, depends on the view of the Nations concerned, whether they consider the item suitable for submission in these ways. If they do not so consider it suitable, then that particular type of pacific settlement has broken down.
I said already that under a different Article of the Covenant disputes which the Nations do not consider to be suitable for disposal in this way must be brought before the Council. But imperfection arises in that matter in this way, that on inquiry by the Council, if the Council are unanimous, then a particular result flows, but if the Council are not unanimous the whole scheme of pacific settlement has again broken down. To meet these gaps, and in an endeavour to get the Nations to face up more resolutely to the idea of peaceful means of persuasion, the Kellogg Pact, first spoken of by M. Briand, was brought forward. Under it the Nations, of which we are one, bound themselves to renounce war as an instrument of national policy in regard to disputes. They bound themselves not to resort to other than pacific means for the settlement of disputes. That again, although not so imperfect, because there are no subjective tests which have to be applied, is imperfect in the method of machinery. No machinery was laid down and no procedure was arranged as to how certain disputes might be brought forward.
As I said, in addition to the Covenant of the League and its various clauses, and the Kellogg Pact, we have become signatories from time to time, to various conventions and treaties. Most of the conventions and Treaties concluded at this time have in them a clause allowing for some method of pacific settlement, generally a reference to an arbitral tribunal to be determined ad hoc. We have signed some five or six treaties or con ventions which have a clause of that type in them. In all these Treaties there is the same scheme with regard to pacific settlement. Last year we ratified the Optional Clause. Progress has been made since I spoke in February, 1930. I said then that twenty countries were signing and ratifying the Optional Clause, that twenty had signed, but had not taken the further step of ratification. At the moment the position is that 36 countries have adopted, signed and ratified; 10 have signed but have not yet ratified.
The group with which we are allied in connection with the Optional Clause has grown, to a certain extent, in the last twelve months. The Optional Clause deals with legal disputes, legal disputes having reference to interpretation of the Treaty on any question of international law, the existence of any fact which, if established, would constitute a breach of international obligations, and the nature or extent of the reparation to be made for a breach of international obligation. We signed that, of course, without condition for a period of twenty years, simply demanding reciprocity. In relation to any Nations which have also accepted the Optional Clause, if there is any dispute with regard to a legal matter of the type to which I have referred, then we, and they also, are bound to a reference to the Permanent Court of International Justice. Not so much the flaw as the limitation in this case is, that this applies only to legal disputes, and so the General Act was drawn up.
The General Act really applies to all classes of disputes, whether legal or those that could not be brought within the category of legal disputes. It sets out, in four chapters, certain procedure and certain schemes for pacific settlement. Chapter 4 is rather general with regard to procedure. The main chapters are those dealing with conciliation, judicial settlement and arbitration: The scheme under the General Act is that non-legal disputes must go, in the first instance, in relation to people who accept this General Act, to a Conciliation Commission. If they are not then resolved by that Conciliation Commission they must go forward to an arbitral tribunal.
Legal disputes will go to some court to seek some method of judicial settlement, unless prior to a particular date the parties have agreed to submit the dispute to an arbitral tribunal. The difference as between conciliation procedure and the procedure of judicial settlement or arbitration is, of course, that in conciliation a group of commissioners, five in number, get the parties to come together. They get the facts before them, and try to elicit further facts. They will try to get in any arguments that can be adduced with regard to pacific settlement, and endeavour to bring the parties together to arrange a settlement. There is this flaw, that if a settlement cannot be reached, then there is simply a report to that effect, that conciliation has failed. But under the General Act, if conciliation does fail, the matter goes forward to arbitration. The difference between conciliation and arbitration, or judicial settlement, really is that under the one procedure there is no final and binding decision given by anybody. In the case of either arbitration or judicial settlement a decision final and binding on the parties is given.
Chapter I. deals with conciliation. It lays down rather exact procedure in detail, and seems to have blocked any gap that there might be with regard to non-agreement between the parties or as to matters brought forward to the Conciliation Board. Chapter 2 deals with judicial settlement and the procedure to be followed in the case of legal disputes. Chapter 3 deals with arbitration. In accordance with Article 38 accession to the present General Act may be applied completely or may be limited in a way which is precisely defined. Accession may extend either to all the provisions in the Act, to the 4 chapters, or else to those provisions only which relate to conciliation and judicial settlement, or to conciliation only. We propose, first, to accede under (A) of Article 38 to all the provisions of the Act. If we acceded to (C) procedure, which relates only to conciliation and the general provisions concerning that procedure of conciliation, we have then established a particular type of conciliation machinery. We know the precise details of the conciliation Board, who are to be the Commissioners, and so on, if disputes are to be settled in that way, but if we leave it at that, and accede only in relation to Chapters 1 and 4, and if the Conciliation Board fails to get people together and to come to agreement, then we are thrown back again on the somewhat imperfect obligations under the Kellogg Pact, or under the Covenant of the League.
Accession, therefore, to Chapter I, conciliation or to Chapter 4, general procedure, would not seem to bring us very much further. It does not seem to me that the House will have very much difficulty in accepting the somewhat wider scheme than merely accession to a single chapter, with regard to conciliation, because the House has already taken the decision that it would accept in legal matters as final and binding the decision of the Permanent Court of International Justice. There seems to be no reason why, having taken that step with regard to legal disputes, the House should not also be ready to submit either to an arbitration tribunal, or to some method of judicial settlement, disputes which are of a non-legal character. I leave out (B) as a matter not to be considered seriously at all. It allows you to accede to Chapters 1 and 2 which we have already accepted under the Optional Clause agreement except that there is this difference, that on the Optional Clause the matter was precisely stated to refer only to legal disputes of the type mentioned, whereas legal judicial settlement under the General Act would be in relation to disputes where the parties are in conflict as to their respective rights. It is understood from the second paragraph that the disputes referred to include those mentioned in Article 36 of the Permanent Court. While it is still related to legal disputes it does go somewhat wider than those mentioned in Article 36 of the Statute for the Permanent Court. It seems better that we should have the whole procedure with regard to both judicial settlement and arbitration as well as conciliation. Having accepted, or put ourselves in the position that we may accept, the decision of the Permanent Court in regard to legal disputes, there seems to be no reason why we should stop short at this, and refrain from having disputes, whether of the legal type or non-legal type, also submitted, in default of conciliation, to either the process of judicial settlement or arbitration.
At many meetings of the Assembly recently when this Act was being discussed we announced that we were in favour of an all-round pacific policy and to limit our accession to any one of the chapters and not accept the Act as a whole would be somewhat in contrariety to what has been said at the League on many occasions by Irish representatives. The whole Act has, so far, been accepted by a number of States: France, Great Britain, Spain, Luxembourg, Belgium and Finland. Norway and Denmark accepted it with some limitations. It has been accepted, with regard to certain parts of Chapters 1, 2 and 3 by Holland and Sweden. Italy has announced its intention to accept the whole Act. Article 39 deals with reservations. The things which are kept alive under the provisions of the General Act are dealt with in this Article. The general principle with regard to these international Conventions is that unless specifically declared the newer one is not in derogation of anything accepted under a previous one, but is in addition to any obligation previously incurred. All that is specifically set out in Article 29, which keeps alive the special procedure laid down in other Conventions in force between the parties.
Paragraph 2 of Article 29 states that "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 obligation to resort to arbitration or judicial settlement which ensure the settlement of the dispute." For instance, if there is a conflict at all as to the generality and wide scope of those in opposition to the Optional Clause, to the group of legal matters, to the Kellogg Pact or the Covenant, the generality of the others would overcome any limitation that is in this although set out to be as general and wide as possible. Article 29 specifically keeps alive any Conventions in force between the parties and sets out a special procedure for settling disputes. It is provided where those Conventions are in force that disputes shall be settled in conformity with the provisions of these Conventions. It refers specifically to the agreement by which conciliation procedure is established or an agreement under which the parties were bound to resort either to arbitration or judicial settlement.
Article 39 deals with reservations. It says in the first paragraph:
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."
I draw attention to the phrase used in the first paragraph that these reservations are supposed to have been "exhaustively enumerated," and then the next paragraph goes on:
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.
Paragraph 3 says:
If one of the parties to a dispute has made a reservation the other parties may enforce the same reservation in regard to that party.
Paragraph 4 says:
In the case of parties who have acceded to the provisions of the present General Act relating to judicial settlement or to arbitration, such reservations as they may have made shall, unless otherwise expressly stated, be deemed not to apply to the procedure of conciliation.
Finally, there is the usual article in a much more precise form this time than in the similar article in the statute of the Permanent Court. Article 41 deals with disputes as to interpretation. It 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.
We propose to sign this. There is no question of imposing a time limit in this matter because, under Article 45, the General Act shall be concluded for a period of five years, dating from its entry into force. It shall then remain in force for further successive periods of five years in the case of contracting parties which do not denounce it at least six months before the expiration of the current period. The General Act, once acceded to, runs in laps of five-year periods. There is no necessity to put in any phrase relating to time as we did in the case where the period was twenty years. I am proposing that we accept the whole Act and that we accept it unconditionally.
The British Government made certain reservations. The reservations are almost identical with the reservations made to their acceptance of the Optional Clause. They have included amongst them a reservation to this effect:
(1) That the following disputes (amongst others) are excluded from the procedure described in the General Act, including the procedure of conciliation:
(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;
There was a reservation almost in precise terms made with regard to the Optional Clause. Dealing with that in the Seanad and here, I expressed grave doubts as to the validity of the reservation in regard to the acceptance of the Statute of the Permanent Court. I read the portion of the Article dealing with reservations that might be made and argued that there was no room for a reservation which excluded disputes between certain specified States or groups of States. I felt that these could not come within the terms of Article 36 or the Statute of the Permanent Court.
I felt there might be some doubt as to the validity of any provision which seeks to exclude disputes between certain definite States or groups of States. Although the reservations are wider in their terms than in the Statute of the Permanent Court of International Justice, the same doubt exists.
In regard to disputes relating to the interpretation or application of the General Act, including those concerning the classification of disputes and the scope of reservations, the Act provides that they shall be submitted to the Permanent Court of International Justice. It will, therefore, when the occasion arises, decide on the validity of reservations with regard to the Commonwealth States; that is, if that matter has ever to be decided.
