500.A15A4 General Committee/426: Telegram
The Chairman of the American Delegation (Davis) to the Secretary of State
[Received May 31—4:33 a.m.]
677. 1. Referring to my 675, May 30, 7 p.m., it is important to determine our policy in connection with the definition of an aggressor and the closely related question of nonaggression pact proposed by the President. We had a long conference last night with the British in which they expressed a certain concern with regard to a nonaggression pact in the precise terms suggested by the President although stating they wished to go as far as they could as they had accepted in broad outline the proposal in the President’s message. Their apprehensions are based on the fact that a strict interpretation of the President’s proposal might prevent either of us from sending our ships to Chinese ports or elsewhere for the protection of our citizens although they did not consider that this constituted any aggression. I share certain of these preoccupations and assume it was not the intent of the President’s proposal that we shall not be free to send our ships on errands of mercy where the protection of our citizens required it.
The British are disposed to accept the extension of the no force pact to the entire world and they believe that as quoted in my 676 [675], May 30, 7 p.m., it is phrased in a manner which would not prevent action to protect their citizens abroad. They have, however, [Page 176] not yet received final instructions to accept the pact as so extended.
It is our judgment here that it would be wise to coordinate the nonaggression with the no force pact either as part of the general convention or as a separate instrument to be signed coincident with the disarmament treaty. Unless you are preparing a text for the nonaggression pact we shall be glad to do so and submit it to you for approval.
2. As regards the definition of an aggressor we are inclined to believe that a rigid definition could not fit every conceivable case. While a majority of states would be prepared to accept such a definition the British, Germans and Italians would refuse it. The British are, therefore, endeavoring to find a compromise formula and the suggestion has been made among the delegates here that this formula should be based on the President’s proposal for a nonaggression pact.
We would not be called upon to sign any definition of an aggressor since this would be related to part I of the treaty, nevertheless the British have advised us confidentially that they will not accept a definition for themselves and be bound to apply it unless they have reason to believe that we would apply a similar definition in connection with our unilateral declaration. In consultation with the British we have worked out a formula which is meant to serve as a guide rather than as a conclusive and final determination of an act of aggression. This formula is based on the President’s proposal and its adoption might, of course, be made subject to the conclusion of a nonaggression or no force pact as suggested in part I above. The formula is as follows:
“In determining under article 3 of chapter I of the draft convention the state which has been responsible for a breach of the Pact of Paris (Briand-Kellogg Pact) and in determining under annex Y the state which shall be considered to have resorted to war,
The High Contracting Powers which are parties respectively either to part I of the draft convention or annex Y thereto, or both, agree that they will consider as prima facie evidence of such breach, or of such a resort to war, the fact that a state in violation of treaties, invades with its armed forces the territory of another state, whether by land, sea or air and whether with or without a declaration of war.
In the event that there have been mutual invasions of territory by two or more states, then the fact that any state refuses to evacuate territory which it may have thus invaded, upon being summoned to do so either following conference of the powers pursuant to part I of the draft convention or pursuant to any action or decision taken under annex Y, shall be deemed to be prima facie evidence of the breach or the resort to war hereinbefore mentioned.”
In case the Conference can agree upon a nonaggression-no force pact would you be disposed to accept some such definition as the foregoing [Page 177] and include in our unilateral declaration a statement to the effect that in exercising our independent judgment in determining an aggressor we would take into account the definition of aggression thus determined? I recognize that in accepting any definition we are somewhat limiting our freedom of judgment but I can hardly conceive of a factual situation such as that set forth in the draft quoted above where we would not have to take into account as prima facie evidence the circumstances of invasion of territory. Hence, from a practical point of view I see no objection to the procedure suggested. The only question is as to whether this would raise any political difficulties in connection with the unilateral declaration.
This might be of pressing importance as it is a vital element in the security structure which the French consider essential to their disarmament program. I would, therefore, greatly appreciate as early as possible an indication of your views.
3. There is another possible alternative on which I would like the benefit of your judgment. Our objection to the definitions of aggression (paragraph 5, article 1, my 65844) is that they are too rigid. It would seem that the 5 points would naturally constitute facts the commission of any one of which would be a good illustration in reaching a determination as to an aggression. It might, therefore, be possible to phrase the first paragraph of article No. 1 preceding the definitions so that the states would accept the definitions as criteria or guidance to serve in reaching judgment as to an aggressor. From the Conference point of view it might be simpler to get the acceptability of this change than of the text submitted above since the definitions listed (but without the draft protocol) have already received wide acceptance. In view of the fact that they were introduced by the Russian delegation, the European states, especially those bordering on Russia, are anxious to give the Russians this measure of satisfaction and thereby enhance Russian interest in a convention. In case, however, such a formula were accepted the other states would no doubt expect us to take the same principles into consideration in any determination of an aggressor under our unilateral declaration.
4. There is still a third alternative, namely, that we might take the position that since the intent may be more of a factor in determining an aggressor than some overt act we will not accept in advance any criteria for the determination of an aggressor even though these criteria are solely for guidance rather than an exhaustive and binding rule, of course, leaving states that desire to accept such criteria free to do so. In this event the British and several other delegations would presumably follow our lead and refuse to accept any criteria for determining the aggressor.
[Page 178]We are reluctant to recommend this alternative as our refusal to accept any reasonable criteria for our guidance in determining an aggressor might cast some doubt upon the value of our unilateral declaration that is to say the argument might be advanced here that we would be guided by our own political convenience in interpreting our action rather than by the obvious and patent facts of aggression in a given case.
- Not printed; for text of the draft act, see Conference Documents, vol. ii, p. 683.↩