THE TREATY PROVIDING FOR AMERICAN ASSISTANCE TO FRANCE IN CASE OF UNPROVOKED AGGRESSION

BY GERMANY AGAINST THE LATTER

SECOND only to the proposed Covenant of the League of Nations in its claims upon the interest and attention of the American people and the Senate of the United States, and of far more importance and interest to them than the terms of the proposed treaty with Germany, outside of the section of that treaty which contains the Covenant of the League of Nations, is the proposed treaty with France. This document was submitted to the Senate by President Wilson on July 29th, with a view to securing the consent of the Senate to its ratification.

In addition to the analysis which needs to be made first of all of the terms of the treaty themselves, the proposed agreement suggests several reflections along different lines of thought, especially in regard to its relation to the proposed League of Nations and its relation to American constitutional law and diplomatic policy.

A reading of the text suggests that the pact was drawn with great care. The American plenipotentiaries were, evidently, extremely cautious, and insisted upon reducing the obligations assumed by the United States, by virtue of this treaty, to the very lowest points consistent with the accomplishment of the objects in view. In the third paragraph of the preamble it is a fear, more or less mutual, on the part of the contracting Powers, that the protective measures taken with respect to the left bank of the Rhine are incapable of assuring immediately to France and America adequate security and protection, which is given as the basis of the agreement. It is noteworthy that in the proposed British agreement it is said that "there is a danger" that the eventuality feared by the American and French negotiators may come to pass. In the final paragraph of Article I a double conjuncture of circumstances is required to bring the agreement into

operation: first, the failure, earlier apprehended or feared as possible, of the demilitarization provisions of the Versailles Treaty to give France appropriate security and protection, and, in addition, an unprovoked act of aggression on the part of Germany. By Article II the effectiveness of the treaty is made to depend upon the prior ratification of a similar treaty between Great Britain and the French Republic, and by Article III it is made dependent upon a certain specific sort of approval by the Council of the League of Nations. Ratification by the French Chambers, otherwise unnecessary, is required by Article IV. Finally, it is provided in Article III that the treaty shall be void upon and after a decision by the Council of the League that "the league itself affords sufficient protection." The result is a treaty as innocuous as possible within the limits of its inherent nature and effects.

The terms of the treaty do more than reveal the caution of some, at least, of the negotiators. They suggest certain questions upon other points. The accuracy of the first two considerations contained in the first paragraph of the preamble and the eliptical character of the reference, in the same paragraph, to the German aggression of 1914 might be called in question without seriously affecting the body of the agreement based upon them.

The apparent attempt, in the third paragraph, to represent the menace of aggression, and the protective stipulations of the Versailles. Treaty regarding the Rhine areas, as bearing mutually upon France and America seems somewhat far-fetched, especially by comparison with the candid admission of the true state of affairs in the end of Article I.

There has been some comment upon the difference between the words expressing the obligation of America to go to the aid of France. in the circumstances anticipated by the treaties and the analogous words in the British treaty, inasmuch as it is said that the United States "will be bound (seront tenues)" to come to the aid of France in such case, while Great Britain "consents (consent)" to do likewise. It is true that the former phrase emphasizes the idea of an unescapable obligation while the latter presents the idea of free and willing agreement. On the other hand, the phrase of the American treaty

might be looked upon as less likely to involve further negotiation and questioning, as being automatically operative, while the British term seemed further removed from actual effective operations.

The most pertinent questions which can be asked in respect to the proposed treaty are probably those regarding its relation to the proposed League of Nations. It is, by virtue of the first sentence of Article III, absolutely dependent for its effective existence upon the adoption of the proposed League Covenant, virtually as it stands in the Versailles Treaty or, at least, with the proposed Council organization still untouched. Otherwise the requisite approval could not be given.

Having been so approved, the treaty is intended to operate in partial and temporary execution of the principles of the proposed Covenant regarding protection against aggression. There is more significance properly attaching to the unconscious implications of the closing words of Article III in definition of the purpose of the treaty than to the lengthy explications of the preamble. In this character there are two elements deserving separate attention.

The temporary character of the pact is emphasized by the provision of Article III for its obsolescence upon the achievement of a certain set of circumstances in addition to the recurrent phrase "at first" in the paragraph of the preamble. The President told the Senate on July 10th that its "object is the temporary protection of France. On July 29th the President said that it was intended as a "temporary supplement" to the Treaty of Versailles for "the years immediately ahead," and he referred to the provision that the treaty should remain in force "only until, upon the application of one of the parties to it, the Council of the League . . . shall agree that the provisions of the Covenant of the League afford her sufficient protection." It is fairly certain that the President expects this arrangement ad interim to be of comparatively short duration, and the French and British views of the matter tend to confirm this. The Temps has described the function of the proposed treaty as follows: "Tant que la Société des nations n'assurera pas par elle-même ‘une protection suffisante' toute velléité d'aggression allemande sera tenue en échec . . This seems to agree with the interpretation of the President. This is worthy of all the

more attention because the British Prime Minister said, in the House of Commons, on July 21st, that the French treaty was "provisional in its character. On the face of it, it is a guarantee that lasts until France feels that the League of Nations is sufficiently established that she can depend on its workings;" he referred to the Versailles Treaty as the "more permanent" document.

There is one phase of this matter which is somewhat complicated and deserves to be closely examined. By Article III this treaty cannot come into operation until the Council has been established under the League; for otherwise the necessary approval could not be given. By Article III, likewise, the treaty is to lapse as soon as the League is decided to be firmly established (unless, indeed, it is to be assumed that even though fully established, the League is incapable of adequately protecting France because of inherent defects, an assumption impossible to make in view of the utterances just quoted). Hence the period of its vigor is closely circumscribed. It seems that, by insisting upon restrictions upon the date of its coming into effect and upon the length of its life, the treaty has been reduced to a minimum period of operation.

In the next place, the extent of the obligation under this treaty is, in some sort, less than the extent of the obligation under the proposed League Covenant. Throughout the clauses of Articles 12, 13, 15, and, especially, Article 16 of the proposed Covenant the pledge of the members of the League runs to the prevention of any aggression made previous to the requisite delay and discussion by the League, irrespective both of which nation possesses the advantage in the merits of the case on its substantive side and of the motives of aggression. In this treaty, however, only unprovoked aggression is provided against. It is also true that Article 10 of the proposed Covenant guarantees against all aggression (unprovoked or not), but what is here guaranteed is territorial integrity and political independence alone, and hence the scope of Article 10 is, in the end, less than that of the French treaty. Indeed, given the limited object of the guarantee in Article 10, it is hard to see either how this article could be invoked to interfere with an attack declared to be directed solely at objects short of conquest or why the article should have received so much more critical

attention than the first clause of Article 16. Article 10 is the embodiment of a more limited obligation than Article 16 or Article I of the French treaty.

While it is a temporary agreement in partial execution of the principles of the proposed League, the French treaty is not a "substitute" for the League except in point of time and it is a "supplement" to the League only in the sense that it supplies action which is properly the function of the League until the latter can come upon the scene in its own name. Once fully set up, the League is complete by itself without this treaty, and this treaty is not intended to stand permanently as an addition to the League, as has been seen. It is a simple technicological fact that it takes time to set up political machinery and set it in operation. The sort of protection of which France feels a need cannot be provided short of some mechanism either to place military assistance in northeastern France in very quick time, in case of a sudden attack from Germany, or to effect general and permanent disarmament. It will take time to achieve either of these under the proposed Covenant. In one case, as the President pointed out to the Senate on July 29th, the action of the League depends upon (a) action of the Council advising military assistance, and (b) action of the members in acceptance of that advice. Such assistance is very far removed until, at the very least, the Council is organized and set in steady operation. As for disarmament under Article 8 of the Covenant, that will be likely to require several years of investigations, reports, consultations, recommendations, revisions and legislative action before dependable results are obtained. This unpolitical and mechanical situation lies at the bottom of the French treaty.

The word "immediately" in the last paragraph of Article I might be taken to refer to action by the United States in a quicker fashion than that provided by the mechanism of the League, conceived as coëxisting along with this treaty. This can, however, only be true of such period as intervenes between the formal establishment of the League and that point in time when it may be found by the Council to furnish "sufficient protection," in the words of Article III—a point which must, by bare logic, be assumed to be neither purely hypothetical nor indefinitely remote. The word might better be taken as purely