Enclosure in No. 8.

Memorandum on the Protocol for Pacific Settlement of International Disputes.

IT is desired by this memorandum to define as briefly as possible the principal objections which the New Zealand Government has to the Protocol, omitting all minor precise criticisms of the language used by the draftsmen of that document.

But it is desired first to record an emphatic protest against a process under which the British Empire is hurriedly called upon to give its adhesion to momentous novel conditions expressed in a document hastily prepared and vague in expression both as regards its effect and detail.

The League of Nations in 1923 propounded a Treaty of Mutual Assistance and recommended the Nations, members of the League, to agree to that Treaty. We have on record in the Document A.35 1924 IX of the League of Nations, the printed. replies of the principal Nations rejecting that Treaty, and expressing their varying grounds for the refusal.

No outline of the present novel alternative scheme had been before the Council or the Assembly of the League until Mr. Ramsay MacDonald and M. Herriot addressed the Assembly at Geneva, Mr. MacDonald speaking on the 4th and M. Herriot on the 5th September, 1924, and it appears from page 42 of that record that the Assembly on the 6th September passed resolutions directing consideration by the First and Third Committees of the questions there submitted. The First and Third Committees presented a joint report on the 1st October covering this draft Protocol, which the Assembly later adopted.

It is to a document so initiated and so prepared within that space of three weeks, involving wide expansions and grave alterations of the Covenant of the League of Nations, that Great Britain, after a general election and a complete change in its Administration, is asked to give a speedy adhesion and to invite the self-governing Dominions to join it in that act.

In the case of New Zealand, the document itself did not reach the Government until the month of December, though this Government had some knowledge of its general effect in November.

If, as has been contended, the Protocol really defined no greater obligations than are already undertaken by the Nations in the Covenant itself, it might well be the case that, even in the short space of time allowed, Great Britain and the Dominions might have assented. But it is not true that the Protocol creates no new obligations. It is no mere form that we are asked to assent to, but matters of substantive, singular and almost unexampled importance.

On what ground can it be contended that there is such urgency in the proposals as to require adhesion by Great Britain in March, 1925? Is it because the League insists on holding a conference on Disarmament this year and requires the Protocol as a condition

precedent to the Disarmament Conference? If so, the answer is that the Disarmament Conference may well be postponed till next year, and that the British Empire is not to be driven into a decision which its Prime Ministers cannot unitedly consider merely on the grounds that the League of Nations is in a hurry to call a conference at Geneva. And a further answer is that it is absurd to ask the signatory nations to agree now to become bound by such conditions as are expressed in the Protocol on the mere chance that Germany and Russia, for instance, will agree in a scheme of disarmament to be later propounded.

His Majesty's Government has recognized that a Conference of the Prime Ministers of the Empire is essential to ensure due consideration of the course that the Empire should take. It appears to be impossible to hold such a Conference before or during March, 1925. It would seem, therefore, that the only possible course open to His Majesty's Government is to refuse adhesion in March, and it would seem that such a refusal could not be construed as a refusal to concur in any scheme of general compulsory arbitration. The refusal would obviously be limited at present to the ground that His Majesty's Government cannot commit the Empire without due consultation, and that the date fixed allows no time for such consultation. It is earnestly hoped that His Majesty's Government will adopt that course, for New Zealand will never consent to be bound by the Protocol in its present form, and believes that the whole Empire would be endangered if the signature of Great Britain were appended to such a document, dangerous in its effect, crudely and hurriedly drafted, and capable of various interpretations.

Great Britain will always keep faith in letter and spirit with any obligations it signs. If other nations are to be similarly bound to conform to the letter and the spirit, both must be defined with far greater accuracy than has been attempted in the terms of the Protocol. But apart from the form of expression, the intention and effect of the document itself is not in accord with common sense, however much it may accord with visionary doctrines.

The principal objections from the point of view of New Zealand

are :

1. The reference of matters to the Court of International Justice. So far Great Britain has never made a declaration under Article 36 of the Statute of the Court authorizing that Court to determine, without special submission, the matters defined in paragraphs A. B. C. and D. of that Article, and New Zealand never will consent to such a declaration.

But Article 3 of the Protocol binds the signatory States to accept that jurisdiction in all matters. The reference in that Article to reservations is idle and useless as the Protocol is drafted. A reservation would have absolutely no effect in limiting the jurisdiction in matters referred under the Protocol, though it

might limit the jurisdiction in matters of peaceful negotiations. Where a question of international law arises in the course of arbitrations under the Protocol, that is to say, in cases where war is threatened, the permanent Court of International Justice at the Hague is given express jurisdiction, firstly, to decide whether a claim by a nation is a claim in respect of matters within its domestic jurisdiction, and, secondly, to determine all other questions of international law, and signatories are to be bound by such decision.

New Zealand's immigration laws are framed to preserve, as far as possible, British nationality in New Zealand. No foreigner may come to New Zealand to reside without having first made written application from his country of origin. Whatever the jurists at Geneva may think, the law advisers of the Crown in New Zealand believe that there is grave danger that the International Court of Justice at the Hague, consisting mainly of foreigners, might hold that the New Zealand law is contrary to the comity of Nations, and that the New Zealand system is not a question of merely domestic jurisdiction. And our law advisers believe that, if a question arose for determination under the Protocol, the Permanent Court might decide, firstly, that the right of foreigners to reside in New Zealand was not a matter exclusively within the domestic jurisdiction of New Zealand, and, secondly, that as a matter of international law we must admit them or reduce the restrictions on their admission.

But consideration of the minor interests of New Zealand in this respect is negligible as compared with admission of the Permanent Court as the deciding factor in Great Britain's belligerent rights at sea. It seems to us idle to contend, as has been contended, that, inasmuch as such questions would only effectively arise during actual war, and as the assumption is that Great Britain will only wage war with the consent of the League, therefore the point may be waived. That seems to us idle because the question would be raised by neutrals whose vessels were stopped and searched for contraband. It is with regard to the rights of His Majesty's ships against neutrals when Great Britain is at war that difference exists between the opinions of foreign jurists and the decisions of the English Courts. And it seems obvious that the effect of adhesion to the Protocol would be deliberately to accept a foregone conclusion against the exercise of privileges in war which are essential to the defence of the Empire.

2. The Protocol, it is true, partly cuts down the rights and duties of signatory nations expressed in Article 8 of the Covenant, but that reduction of obligation is objectionable. Provision is made in the Protocol for suspension of operations by nations about to go to war, and for non-mobilization, etc., and it authorizes defence against acts of aggression by a nation attacked. The definition of aggression in Article 10 is not, and obviously is not intended to be, exclusive, and it may be assumed that any attack on territorial integrity or political independence as mentioned in

Article 10 of the Covenant would still be aggression under the Protocol, but there is absolutely no provision in the Protocol enabling or entitling a nation which is not itself attacked by aggression to come at once to the assistance of a friendly nation which is so attacked. Indeed the effect of the Protocol is to prevent such nations from entering upon war to aid another nation against actual attack on its territories, until such time (probably far too late for effect) as the Council, after the tedious procedure directed, is at liberty to authorize assistance. This may be intentional, but if it is intentional Great Britain will surely not consent to such a limitation to its rights and duties to France and Belgium as is expressed in Article 10 of the Covenant and subjected to such ludicrous limitation by the Protocol.

3. The object and effect of Articles 11 and 13 of the Protocol is to create for the Council of the League an entirely new power and authority in warfare between Signatories to the League. It is not true to say that those Articles merely define the effect of Article 16 of the Covenant. It does not appear necessary to emphasize this by quotation, the intention and the effect is apparent, and those Articles require drastic amendment.

4. Reference has already been made to the Document A.35 1924 IX of the League of Nations, containing a reprint of the replies received from the various Governments to the proposal for the Treaty of Mutual Assistance. The reply of His Majesty's Government is to be found on pages 15, 16 and 17 of that Document, and it is no exaggeration to say that the whole of that criticism is equally applicable to the terms and effect of the Protocol. If His Majesty's present Government agrees with that criticism of the late Government, it will find in paragraph 12 on page 17 a concise statement of the point of objection last taken in this memorandum, and it is convenient to paraphrase the further language of the succeeding paragraph 13, as summarizing New Zealand's objection to the Protocol: "For the reasons which have been enumerated, the draft" Protocol "in the eyes of His Majesty's Government" of New Zealand "holds out no serious prospect of advantage sufficient to compensate the world for the immense complication of international relations which it would create, the uncertainty of the practical effect of its clauses, and the consequent difficulty of conducting national policy."

This memorandum may well conclude with a request to be informed whether the words just quoted do not apply with even greater force to the Protocol, and with a statement that the New Zealand Government is unable to understand any necessity for creating such obligations as the Protocol invents merely for the purpose of facilitating an International Conference on disarmament at Geneva.

Wellington,

W. F. MASSEY,

Prime Minister.

6th January, 1925.

NOTE.-Copy of memorandum sent to Canada, the Commonwealth of Australia, the Union of South Africa, the Irish Free State, and Newfoundland by despatch, 17th February, 1925.

No. 9.

The Secretary of State for the Colonies to the Governors-General of Canada, the Commonwealth of Australia, New Zealand, the Union of South Africa, and the Irish Free State, and the Governor of Newfoundland.

[TELEGRAM.]

3RD MARCH. Following from Prime Minister for [Not to Irish Free State your Prime Minister] [To Irish Free State: President of Executive Council]:

Begins: Cabinet, after most careful and exhaustive inquiry, have come to the conclusion that they cannot accept the Geneva Protocol or recommend its acceptance to the other Governments of the Empire. In this conclusion they have been confirmed by the general agreement revealed in the communications so far received from the Dominion Governments. We feel that in view of the forthcoming session of the Council of the League of Nations, which begins on 9th March, a definite statement can no longer be withheld, and the Foreign Secretary has been authorized by the Cabinet to make a statement, text of which will, I hope, be ready for transmission to you in a separate telegram* as soon as its terms have been finally approved at meeting of Cabinet which is to be held to-morrow.

I trust that this course and the tenour of the statement will meet with your general approval. I am very sorry not to have been able to communicate with you earlier, particularly in view of impending meeting of Council, but I am sure that you will appreciate that the important questions of policy involved rendered full consideration inevitable. Similar message sent to other Prime Ministers. BALDWIN. Ends.

-AMERY.

No. 10.

The Secretary of State for the Colonies to the Governors-General of Canada, the Commonwealth of Australia, New Zealand, and the Union of South Africa, and the Governor of Newfoundland.

[TELEGRAM.]

4TH MARCH. Referring to message from Prime Minister, 3rd March. Geneva Protocol. Following is text of communication referred to :

Begins (Here follows text as printed in Cmd. 2368.) Ends.