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The Test of Aggression in the Italo-Ethiopian War

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
Quincy Wright*
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Of the Board of Editors
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Extract

The Italo-Ethiopian dispute has, at the time of writing, been dealt with by six distinct procedures in addition to direct diplomatic communication between the parties

(1) Mediation by the League of Nations Council under Article 11, paragraph 2, of the Covenant pursuant to the application of Ethiopia on January 15,1935. Under this procedure the Council received numerous communications from Italy and Ethiopia, considered the question during its meetings on January 17, April 15, May 25, July 31-August 3 and September 4-5, and passed several resolutions with the object of facilitating arbitration of the Wal Wal incident.

Type
Research Article
Information
American Journal of International Law , Volume 30 , Issue 1 , January 1936 , pp. 45 - 56
Copyright
Copyright © American Society of International Law 1936

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References

1 For condensed accounts of this dispute see, League of Nations, Report of the Council under Art. 15, par. 4 of the Covenant, Oct. 7, 1935 (1935, VII, 16); Supplement to this Journal, p. 1. Geneva Special Studies, 1935, Vol. 6, Nos. 4,6,8; Foreign Policy Association Reports, 1935, Vol. 11, Nos. 14,18, 20; Royal Institute of International Affairs, Bulletin of International News, 1935, Vol. 12, Nos. 2–10; International Conciliation, Nov. 1935, No.314.

2 League of Nations Treaty Series, Vol. 94, p. 413.

3 > Text in this Journal, Vol. 29 (1935), pp. 690-698.

4 British and Foreign State Papers, Vol. 99, p. 486.

5 Ethiopia had already made a request for consideration of the dispute under this article on March 17, 1935.

6 League of Nations, Dispute between Ethiopia and Italy, Report of the Committee of Five to the Council (1935, VII, 15), Supplement to this Journal, p. 27.

7 League of Nations, Report of the Council under Art. 15, par. 4 of the Covenant, Oct. 7, 1935 (1935, VII, 16); Supplement to this JOTJBNAL, p. 1.

8 League of Nations, Dispute between Ethiopia and Italy, Memorandum of the Italian Government, I Report, II Documents (1935, VII, 11).

9 Dispute between Ethiopia and Italy, Preliminary Observations on the Italian Memorandum, Sept. 14, 1935 (C.358.M.183, 1935, VII).

10 League of Nations Official Journal, Spl. Supp. No. 6, Oct. 1921, Resolutions and Recommendations adopted by the Assembly during its Second Session, pp. 24–26. Reprinted in Reports and Resolutions on the Subject of Article 16 of the Covenant (League of Nations Publications, 1927, V, 14), p. 42; Q. Wright, “The Future of Neutrality,” International Conciliation, Sept. 1928, No. 242, pp. 75–77.

11 League of Nations, 89th Session of the Council, Oct. 8, 1935, Minutes, 7th Meeting, pp. 7–9; supplement to this Journal, p. 37.

12 Sir Williams, John Fischer , “The League of Nations and Unanimity,” this Journal, Vol. 19 (1925), p. 481ff Google Scholar, reprinted in Williams, Chapters on Current International Law and the League of Nations, London, 1929, p. 431ff.

13 League of Nations, Dispute between Ethiopia and Italy, Coordination Committee, Principal Documents (General, 1935, 6, 7, 8); Supplement to this Journal, p. 53. Germany ceased to be a member of the League on October 21, 1935. The belligerents, Italy and Ethiopia, are not considered in these figures. Of the remaining 56 members of the League, four (Dominican Republic, Guatemala, Paraguay and Salvador) were not represented in the 16th Assembly, but Salvador and Guatemala accepted all of the recommendations in regard to sanctions. Albania, Austria, Dominican Republic, Hungary, and Paraguay had not accepted any of these recommendations on Nov. 1, although the Dominican Republic had them under consideration. Nicaragua and Venezuela had not accepted but had under consideration the third and fourth recommendations on that date.

14 “It is the duty of each member of the League to decide for itself whether a breach of the Covenant has been committed. The fulfillment of their duties under Article 16 is required from members of the League by the express terms of the Covenant, and they cannot neglect them without breach of their treaty obligations.” (Assembly Resolutions, 1921, sec. 4.) “Application of sanctions by a State having a commercial treaty with Italy may, to a greater or less degree, prevent the execution of the treaty. Italy would, however, have no legal right tp complain, since the situation so created would be the result of the provisions of the Covenant, which is legally binding on both Italy and the other State and prevails over the treaty in question. … Since the contracting parties are members of the League, it is clear that the treaty (of friendship and non-aggression) must be interpreted subject to Articles 16 and 20 of the Covenant. It follows that application of sanctions by one of the contracting parties against the other is entirely legitimate, even if the treaty contains no reservation regarding the provisions of the Covenant or if one of the contracting parties was not a member of the League of Nations at the moment when it concluded the treaty.” (Reports by the Legal Subcommittee, Coordination Committee, Principal Documents, First Session, Oct. 1119, 1935 (General, 1935,6), p. 10; Supplement to this Journal, p. 48.

15 “The unilateral action of the defaulting State cannot create a state of war (presumably against members of the League other than its victim); it merely entitles the other members of the League to resort to acts of war or tp declare themselves in a state of war with the covenant-breaking State; but it is in accordance with the spirit of the Covenant that the League of Nations should attempt, at least at the outset, to avoid war, and to restore peace by economic pressure.” (Assembly Resolutions, 1921, sec. 3.) “The League has two main tasks. First to avert war by just and peaceful settlement of all disputes. Secondly, if we fail in our first objective, to stop war. It is with the second of these two tasks that we, as members of the Assembly, are now concerned.” (Mr. Eden, United Kingdom, Records, 16th Assembly, 15th Plenary Meeting, Oct. 10, 1935, p. 5.) “Hitherto, no one, apart from one of the parties directly concerned, has alluded to sanctions involving the use of force in the strict sense of that term. The Swiss delegation takes note of this important fact. The other category of sanctions is that of economic and financial sanctions. By their nature and purpose, such sanctions are not designed to be and, in our eyes, do not constitute hostile acts. They aim at exercising moral and particularly material pressure on one of the parties in order to induce it to restore peace. … We do not consider ourselves bound to take part in sanctions which, by their nature and effect, would expose our neutrality to real dangers— dangers which we must judge in the full exercise of our sovereignty.” (M. Motta, Switzerland, ibid., p. 6.) “The measures to be taken will be only provisional and designed simply to bring about the restoration of peace.” (M. de Porto Seguro, Chile, ibid., 16th Plenary Meeting, p. 2.) “The sanctions envisaged under the Covenant involve no punitive intention, no element capable of wounding the pride of any nation which, under the influence of impulsive but transitory feelings, may embark upon a war. They are simply a form of pressure intended to bring back as soon as possible to the path of peace the party which has left it.” (M. Zaldumbide, Ecuador, ibid., p. 3.)

16 “It is not possible to decide beforehand, and in detail, the various measures of an economic, commercial and financial nature to be taken in each case where economic pressure is to be applied.” (Assembly Resolutions, 1921, sec. 10.) See also, infra, note 18.

17 See remarks of Swiss representative, supra, note IS. Many of the Assembly orators expressed their continuing friendship for Italy, although participating in sanctions, and hoped that conciliation might be successful in settling the problem. The Assembly resolution of 1921 stated: “The interruption of diplomatic relations may, in the first place, be limited to the withdrawal of the heads of missions.” (Sec. 11.) “Consular relations may possibly be maintained.” (Sec. 12.) Up to Dec. 1, 1935, there had been no proposal for severance of either diplomatic or consular relations between the sanctioning Powers and Italy.

18 “All States must be treated alike as regards the application of the measures of economic pressure, with the following reservations: (a) It may be necessary to recommend the execution of special measures by certain States, (b) If it is thought desirable to postpone, wholly or partially, in the case of certain States, the effective application of the economic sanctions laid down in Article 16, such postponement shall not be permitted except in so far as it is desirable for the success of the common plan of action, or reduces to a minimum the losses and embarrassments which may be entailed in the case of certain members of the League by the application of the sanctions.” (Assembly Resolutions, 1921, sec. 9.) See also mutual assistance proposal of the Coordination Committee, Oct. 19,1935, in accord with Art. 16, par. 3, of the Covenant.

19 Assembly Resolutions, 1921, sec. 4, supra, note 14. Sanctions are only applicable against a State which has “resorted to war” in disregard of its covenants under “Articles 12,13 or 15.” After German repudiation of the armament clauses of the Treaty of Versailles in the spring of 1935, a League committee was appointed to consider the measures to be taken against a State which repudiated treaty obligations. (League of Nations Monthly Summary, 1935, Vol. 15, pp. 114,146.) If a breach of treaty endangers the peace, the League may take action under Art. 11 of the Covenant which, according to the Assembly resolution of 1927, may have a coercive character provided it “does not imply recourse to war.” Infra, note 23.

20 The 51 States applying sanctions and Ethiopia.

21 Supra, note 11.

22 Supra, note 7.

23 League of Nations Monthly Summary, October, 1927, Vol. 7, p. 308; January, 1928, Vol. 7, pp. 356, 376–378; Conwell-Evans, The League Council in Action, Oxford, 1929, pp. 282–285.

24 United States Department of State Press Releases, Oct. 5,1935, p. 252.

25 For distinction between “act of war” and “state of war” see Wright, Q., “Changes in the Conception of War,” this Journal, Vol. 18 (1924), pp. 756, 763.Google Scholar

26 See SirWilliams, John Fischer, “The Covenant of the League of Nations and War,” Cambridge Law Journal, 1933, Vol. 5, pp. 1-21 CrossRefGoogle Scholar, reprinted in Some Aspects of the Covenant of the League of Nations, Oxford, 1934, p. 292ff.

27 The writer suggested in 1932, “In case a State using military force disclaims an intention to make war and the victim can not or does not recognize war, a state of war does not exist until such time as third States recognize that it does. … Probably recognition by the League of Nations Council or Assembly that de facto hostilities have become legal war would be adequate evidence that legal war existed so far as the members of the League are concerned. ” (“When Does War Exist?” this Journal, Vol. 26 (1932), pp. 366–367.) See also, ibid., Vol. 18 (1924), pp. 758–760.

28 “In the future, legal war is unlikely to exist unless the Council or the Assembly of the League recognizes de facto hostilities as war. It may be assumed that League organs will withhold such recognition until they believe that circumstances are opportune for giving effect to Article 16 of the Covenant. In other words, recognition of war and recommendation that the sanctions of Article 16 should be applied would be effected by the same act of the League Council or Assembly.” (Q. Wright, “Collective Rights and Duties for the Enforcement of Treaty Obligations,” Proceedings, American Society of International Law, April, 1932, pp. 116–117.)

29 This Journal, Vol. 29 (1935), p. 381ff.

30 The arbitration commission was unable to determine who fired the first shot in the Wal Wal incident. This Journal, Vol. 29 (1935), p. 697.

31 “A third school suggests the following traditional method—first, inviting both parties to accept a truce under League control and then declaring the one that refused as the aggressor.” New York Times, Oct. 5,1935.

32 Records, 16th Assembly, 15th Plenary Meeting.

33 Wright, Q., “The Meaning of the Pact of Paris,” this Journal, Vol. 27 (1933), p. 60S Google Scholar; “The Concept of Aggression in International Law,” ibid., Vol. 29 (1935), p. 375ff; Budapest Articles of Interpretation, The International Law Association, Report of the 38th Conferences, p. 67.

34 Vanderpol (La Doctrine Scolastique du Droit de Guerre, Paris, 1919, p. 1) believes that, in the Middle Ages, Catholic doctrine considered war just only when the State against which it was waged had been guilty of a fault deserving punishment. Robert Regout (La doctrine de la guerre juste de Saint Augustin à nos jours d’après les théologiens et les canonistes catholiques, Paris, 1935), differing from this, finds that from the beginning the Catholic doctrine held that a war might be just if intended to repair an injustice, even if the State responsible for the injustice was not “at fault.” It is clear that Victoria, Grotius, and later writers admitted this conception of just war, i.e., reparation, as well as defense or punishment might be just causes of war. See Wright, , “The Outlawry of War,” this Journal, Vol. 19 (1925), pp. 89–94.Google Scholar

35 Regout, op. eit., pp. 22, 313–14.

36 Supra, note 33.

37 “Grotius, surveying the history of man, sought to ameliorate the evils of an institution which he could not destroy. Time has vindicated his fruitful choice. His successors have been guided by his example.” J. B. Moore, International Law and Some Current Illusions, 1924, p. 37. See also Wright, , “Changes in the Conception of War,” this Journal, Vol. 18 (1924), p. 757 Google Scholar.

38 That this distinction was not important in the medieval concept is indicated by the fact that the discussion of just war dealt mainly with the justice of “offensive war.” See Regout, op. cit., p. 309.

39 For analysis of the effect of these statements, see Wright, “Meaning of the Pact of Paris,” this Journal, Vol. 27 (1933), p. 42ff.

40 Ibid., p. 44ff.; “The Concept of Aggression in International Law,” this Journal, Vol. 29 (1935), p. 387; Lauterpacht, The Function of Law in the International Community, Oxford, 1933, pp. 177–182.