711.9412Anti-War/158

Memorandum by the Assistant Chief of the Division of Far Eastern Affairs (Peck)

1.
On June 24, 1929, the Chinese Minister, in conversation with the Secretary of State, presented a written account of a discussion said to have been held in the Japanese Privy Council, in which the Japanese Government was said to have stated that “a broad interpretation of the right of self-defense allowed the exercise of that right when Japan’s special interests were affected even though those special interests be outside the territory of the Japanese Empire, and that therefore no reservation regarding Manchuria and Mongolia was necessary” in connection with the Pact. The Chinese Minister asked the Secretary whether the correspondence gave any light on the interpretation of the right of self-defense.
2.
The records of the Department contain no authoritative account of the reported discussions in the Japanese Privy Council referred to above. It is doubtful whether any such authoritative account is accessible to anyone outside of the highest circles of Japanese officials. There is, therefore, no basis for any discussion of what any official of the Japanese Government may have said in a meeting of the Privy Council.
3.
An answer to the question asked by the Chinese Minister may be sought in the correspondence published in a pamphlet entitled “The General Pact for the Renunciation of War—Text of the Pact as Signed—Notes and Other Papers”, printed by the United States Government Printing Office in 1928. It is believed that a copy of this pamphlet has been supplied to the Chinese Minister. The attention of the Chinese Minister may be invited to certain illustrative passages in the correspondence. A list of these passages is attached to this memorandum.
4.
There seems to be a general agreement that there is nothing in the Pact which restricts or impairs in any way the right of self-defense (see, for instance, the note of the American Government of June 23, 1928).21 It is in connection with the circumstances leading up to the necessity for self-defense that the Pact becomes important. Before any question of self-defense can arise, there must be some action which can be construed as an attack. The Pact seeks, very logically, to obviate all occasion for military self-defense by providing that “the High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.” Disputes and conflicts may arise from various causes. Occasionally they are caused by some unauthorized method of employing armed forces, but it is believed that disputes more commonly have their origin in actual or alleged violations of international undertakings. A dispute concerning performance of obligations is. preeminently one that is susceptible of settlement by pacific means, since it generally revolves about a difference of opinion in regard to the nature of the obligations. By enjoining “pacific means” for the settlement of a dispute in regard to international obligations, the Pact would seem to forbid unilateral repudiation of a treaty or other contractual undertaking, especially if such repudiation is enforced by the use of police or of troops. The country using police or troops to give effect to its repudiation of a treaty could not claim that its action was “pacific” simply because these forcible measures were taken within [Page 252]its own boundaries and did not result in the invasion of foreign territory. If a country at any time finds that one of the international agreements to which it has subscribed is distasteful or harmful, it must exhaust all reasonable “pacific means” for altering or terminating the agreement, with the concurrence of the other party, before it can, with any reason, assert that forcible repudiation is an act of self-defense.
5.
The correspondence does not seem to define the nature of the self-defense that is permissible. It seems clear, however, that the vital interests of a nation may be threatened without actual invasion of its territory. For instance, in the hearings before the Committee on Foreign Relations of the United States Senate on December 7, 1928, Secretary Kellogg said: “Certainly; the right of self-defense is not limited to territory in the continental United States, for example. It means that this Government has a right to take such measures as it believes necessary to the defense of the country, or to prevent things that might endanger the country; but the United States must be the judge of that, and it is answerable to the public opinion of the world if it is not an honest defense; that is all.” Mr. Kellogg also said: “I apprehend that the United States has got interests, the peace and security of which are necessary to the defense of the United States. Take the Canal Zone. Self-defense, as I said, is not limited to the mere defense, when attacked, of continental United States. It covers all our possessions, all our rights; the right to take such steps as will prevent danger to the United States.”
6.
Incidentally, it seems true that when a dispute occurs between two of the contracting Powers, no third Power incurs, under the Pact, any legal obligation to contribute to the settlement of the controversy. Secretary of State Kellogg said to the Senate Committee on Foreign Relations in the hearings held December 7, 1928, that, if other countries had believed there were any obligations imposed on the United States beyond the agreement not to go to war, he thought they would have suggested it. He said, they knew, from the notes that he had written, that he was not willing to impose any obligation on the United States. He said that he knew that was out of the question and that not many countries would agree to affirmative obligations if the United States did. However, all of the Powers participating in the Pact, by virtue of the promise given by them, seem to have acquired the right to expect that the other Powers shall live up to the agreement, and the right to make friendly representations to that end.
7.
The General Pact for the Renunciation of War is so new and its provisions are so simple that time must elapse before the nations can come to a common understanding in regard to its practical application to different sets of circumstances. There is no nation or combination of nations, unless it be the entire group of High Contracting [Page 253]Powers, that can authoritatively interpret it, as the Supreme Court interprets the Constitution of the United States. The situation in South Manchuria is especially complicated. Under international agreements, Japan is authorized to maintain troops in South Manchuria, which is Chinese territory, and, by inference, to use them. If Japan is thus authorized to use force to protect what it construes as its rights under these international agreements, and to consider such use of force “pacific”, is China to be debarred from the use of its own forces in its own territory to protect what it regards as China’s rights, on the ground that to do so would not be “pacific”? Apparently the best reply to make to the Chinese Minister’s question is to refer him to the published correspondence and to subsequent correspondence, with the suggestion that he draw his own conclusions.
W. R. P[eck]
[Annex]

Memorandum by the Assistant Chief of the Division of Far Eastern Affairs (Peck)

Illustrative Passages Dealing With the Question of the Right of Self-Defense Found in Correspondence Between Certain Powers Signatory to the General Pact for the Renunciation of War

1.
The French Ambassador to the Secretary of State, March 30, 1928, page 17, the paragraph beginning “My Government likewise gathers”.22
2.
The German Minister of Foreign Affairs to the American Ambassador, April 27, 1928, page 24, the paragraph beginning “The German Government proceeds”.23
3.
The British Secretary of State for Foreign Affairs to the American Ambassador, May 19, 1928, page 26, paragraph 4.24
4.
The Japanese Minister for Foreign Affairs to the American Ambassador, May 26, 1928, page 31, the paragraph beginning “The proposal of the United States is understood”.25
5.
The British Secretary of State for Foreign Affairs to the American Chargé d’Affaires, June 15, 1928, page 35, the paragraph beginning “In expressing their willingness to be a party to the proposed treaty, His Majesty’s Government in the Union of South Africa took it for granted”.26
6.
Note of the Government of the United States to certain other governments, June 23, 1928, page 36, paragraph beginning “(1) Self-Defense.”27 In the same document, page 38, the second paragraph.
7.
The Polish Vice Minister for Foreign Affairs to the American Minister, July 8 [17?] 1928, page 42, the last paragraph.28
8.
The French Minister of Foreign Affairs to the American Ambassador, dated July 14, 1928, page 44, the paragraph beginning “Nothing in the new treaty restrains”.29
9.
The Italian Minister of Foreign Affairs to the American Ambassador, July 15, 1928, page 46, the second paragraph.30
10.
The Belgian Minister of Foreign Affairs to the American Ambassador, July 17, 1928, page 46, the paragraph beginning “The text prepared”.31
11.
The British Secretary of State for Foreign Affairs to the American Chargé d’Affaires, page 48, the paragraph beginning, “I am entirely in accord”.32
12.
The British Secretary of State for Foreign Affairs, on behalf of the Commonwealth of Australia, to the American Chargé d’Affaires, July 18, 1928, page 49, paragraph 2.33
13.
The Czechoslovak Minister of Foreign Affairs to the American Minister, July 20, 1928, page 52, paragraph 3.34
  1. See telegram No. 179, June 20, 1928, 6 p.m., to the Ambassador in France, Foreign Relations, 1928, vol. i, p. 90.
  2. Foreign Relations, 1928, vol. i, p. 15.
  3. ibid., p. 42.
  4. See telegram No. 114, May 19, 1928, 1 p.m., from the Ambassador in Great Britain, ibid., p. 66.
  5. See telegram No. 66, May 26, 1928, 11 a.m., from the Ambassador in Japan, ibid., p. 75.
  6. Ibid., p. 89.
  7. See telegram No. 179, June 20, 1928, 6 p.m., to the Ambassador in France, Foreign Relations, 1928, vol. i, p. 90.
  8. Ibid., p. 119.
  9. See telegram No. 193, July 14, 1928, 5 p.m., from the Ambassador in France, ibid., p. 107.
  10. See telegram No. 72, July 15, 1928, 2 p.m., from the Ambassador in Italy, ibid., p. 108.
  11. Ibid., p. 117.
  12. Dated July 18, 1928, ibid., p. 112.
  13. Ibid., p. 114.
  14. See telegram No. 62, July 20, 1928, 10 a.m., from the Minister in Czechoslovakia, ibid., p. 121.