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The Munich Appeasement and the Covenant of the League of Nations

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The Munich Appeasement and the Covenant of the League of Nations INTERNATIONAL COMMUNITY International Community Law Review 9 (2007) 305–315 LAW REVIEW Th e Munich Appeasement and the Covenant of the League of Nations Legal Analysis Stan Starygin Professor of Law and International Relations at Pannasastra University of Cambodia (PUC) and Royal University of Law and Economics (RULE), legal analyst, human rights legal expert. Abstract Th e broadly accepted view holds it is the lack of political will to act through the then existing good offices of the League of Nations that contributed to the creation of sufficient military capacity within Germany to begin World War 2 (WW2). Th is paper will argue that the existence of political will to act through the League to stop Hitler would not have significantly hamstrung his endeavors due to the poorly crafted and, thus, contradictory legislative basis for the collective security of the League. Th is publication will contend that had the legislatively provided basis of collective security been invoked by the League, Ger- many would have likely benefited from its outcomes, and which would not have prevented it from achieving its original objective – the reunification of the German minorities in Greater Germany. Keywords League of Nations; Munich Appeasement; collective security; Covenant of the League of Nations; breach of the peace; international dispute resolution mechanisms; resort to war; just war; arbitration; covenant- breaker; aggression It is broadly held a view that the takeover of Austria, Anschluss, and subsequent occupation of Czechoslovakia1 were direct and foreseeable consequences of the states’ – which by then (1938) had remained members of the League of Nations2 – unwillingness to use the good offices of the League and, instead, opting out to act unilaterally in the formulation of their policy of relations with Hitler’s Germany. It is not the intention of this paper to re-examine the variety of unilateral actions taken during that period to prevent a rupture in the relations with Germany, but, rather, what would have happened, if instead of acting unilaterally the member-states of the League had chosen the road of dispute resolution which they had undertaken an obligation to follow by signing the Covenant of the League of Nations and the Protocol for the Pacific Resolution of International Disputes – the road of collective security. I will argue here that, if this road had been chosen, the fruits it would have borne would not have significantly differed 1) Both of which were members of the League at the time of occupation with Czechoslovakia being one of the original members and Austria having been admitted to the League in 1920 (15 Dec). 2) Germany and Japan withdrew their respective memberships from the League in 1933. © Koninklijke Brill NV, Leiden, 2007 DOI: 10.1163/187197407X231262 IICLRCLR 99,3_f6_305-315.indd,3_f6_305-315.indd 330505 110/9/070/9/07 99:54:07:54:07 AAMM 306 S. Starygin / International Community Law Review 9 (2007) 305–315 from those borne by the unilateral diplomacy which many argue led up to the unleashing of World War Two (WW2). I intend to counterpoint the views of those of the opinion that the fact that the system [of the League of Nations] failed to stop Hitler “was not the fault of the institution, so much as political will of Great Britain, France and Italy (not to speak of the United States and Soviet Union) to contain renewed German aggression”3 and contend that the well- known events preceding and triggering WW2 would have still occurred, one way or another, due to the flawed legal foundation upon which the institutions which were put in place to prevent these events were based. Th e notion of collective security within the League was propounded by Article 16 of its Covenant, which – it is hereby argued – intended to restrict the protec- tion of the League from “resort to war in disregard of its covenants” – which can also be framed as “unlawful war”, “unjust war” or “an act of aggression”4 – to its members. Albeit the wording of Article 16 does not include any specific mention of the qualifications the states were expected to have to benefit from the collective security provisions, it does make a reference to the “covenants under Article 12, 13 and 15. Article 12 in this context is the first article laying down the procedure of dispute resolution, and which opens up with the following language: “mem- bers of the League agree that, if there should arise between them any dispute likely to lead to a rupture [. .]”, and which serves as sufficient proof of the intent of the framers of the League to contain the protection of Article 16, therefore, within the membership of the League, and which was framed by Article 16’s ref- erence to, inter alia, Article 12 which contains the language of “rupture should arise between members of the League”. It is fathomable how an alternative, based upon Article 11,5 can be argued. It is noteworthy, though, that the language of 3) David, J. Bederman, Collective Security, Demilitarization and ‘Pariah’ States, European Journal of International Law (EJIL), 2002, p. 17; in this quote the author primarily refers to the failure of disarma- ment of Germany in accordance with the Treaty of Versailles. 4) Declaration Concerning Wars of Aggression (1927) prohibits “all wars of aggression” without defining the term “war of aggression” itself and, therefore, making provision widely open to interpretation. Defining “war of aggression” seems to have been one of the most formidable issue in public international law and persists to be so to this day (2007) with the newly created International Criminal Court (ICC) having ended up with an undefined “crime of aggression” (Art. 5 (d) of the Rome Statute). Th e states would not commit to an authoritative definition of “war of aggression” at the time of the League – and will not now for the same exact reasons – because should this crime have been defined, 4 (except the UK) out the 5 (UK, France, Italy, Japan, Germany) great powers on the Council had committed acts that had the crime of aggression been defined, could have fit the bill. 5) Th e reality of the League was so that prior to 1935 and in the wake of the Manchurian Incident the League had never gone past the measures under Article 11 for which it was seriously criticized. President of the Office of the Council of the League M. Paul-Boncour admitted to the shortcomings of limiting disputes resolutions solely to the procedure under Art. 11 by stating that “that article [Art. 11] is solely concerned with prevention and conciliation and is so framed that the Council may take a valid decision only with the agreement of the parties themselves [which] means proceding step by step, advancing only by gradual stages” (See Records of the Special Session of the Assembly (convened in virtue of Article 15 of the Covenant at the Request of the Chinese Government (Volume I), League of Nations Official Jour- nal, Special Supplement No. 101, Geneva 1932). IICLRCLR 99,3_f6_305-315.indd,3_f6_305-315.indd 330606 110/9/070/9/07 99:54:08:54:08 AAMM.
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