Saturday Night Club Speech, 1935

By Zev Macklin

In October 1937, lawyer John Humphrey gave a speech to the Saturday Night Club on the topic of the strengths and weaknesses of the League of Nations (“the League”) and its Covenant. Humphrey discusses the potential role that the League can play in preventing war and advances significant critiques and advances valid critiques of its Covenants. However, his reading of the Covenants is at times inaccurate, and his proposed solutions fail to remedy the problems that he identifies.

In his examination of Articles XII to XV of the Covenant, which established a process for nations to peacefully settle disputes, Humphrey identifies a key problem with the process and recommends an alternative. According to the Covenant, members are obliged to submit disputes to “arbitration or judicial settlement or to inquiry by the Council,” and if the council fails to reach a unanimous decision within three months, the disputing states may act freely. However, Humphrey argues that states should be obligated to submit their disputes to arbitration or judicial settlement, and that the decision can  be submitted to the Council if, and only if the decision is “obviously unfair” or relevant international law is nonexistent or obsolete. Humphrey’s claim is based on his belief that decisions reached by an arbitrator or international tribunal are governed by international law, whereas decisions reached by the Council would “inevitably be influenced by political considerations.” He further argues that if there are valid grounds to submit a decision to the Council, then the Council should have the power to overrule the law, just as a “national legislature has the power to upset the decisions of national courts.” Humphrey’s proposed change to the dispute settlement process is based on a false characterization of national courts, and does not solve the problem of political considerations influencing decisions. At the time of Humphrey’s speech, national legislators in Canada could change the law, but if the decision was based on the British North America Act, change was difficult and its extent limited. Even today, it almost impossible for legislators to alter decisions that are based on the Constitution. Humphrey’s proposed remedy to the subordination of international law to political considerations is not a valid solution, as the final decision would remain in the hands of the Council. In order to avoid this issue, decisions reached by arbitrators or international tribunals must become more difficult to change, so that judicial decisions remain independent from politics.

In October 1937, Italy broke the Covenant of the League of Nations by invading Ethiopia – a fellow member of the League of Nations – and began the Second Italo-Ethiopian War. Humphrey maintains that decisive action against Italy would increase the League’s prestige, and warns that a failure to do so would render the League “hardly worth the paper on which the Covenant is written” (Page 2). Humphrey delivered his speech in the context of international instability and volatility; thus, his recommendations for how the League can prevent war addressed a central preoccupation of free and democratic states worldwide. However, Humphrey’s discussion focuses on war against member states of League, and does not take into account cases of war against colonies. When Italy colonized Libya, a non-member state, in the 1920s, their actions were not condemned as they were in 1937, which reflects a general prioritization of the protection of member states, despite the fact that Article XI of the Covenant states that membership is not grounds for such discrimination.

Regarding Article XVI of the Covenant, which describes the League’s response to States that “resorted to war,” Humphrey advances an interesting argument that is as relevant today as it was when he gave the speech. Humphrey criticizes the use of the term “war,” claiming that it is a restrictive and technical term which allows states to claim that their actions did not constitute war.  He cites two such cases: Italy’s invasion of Ethiopia, which Mussolini defended as merely being “policing”, and Japan’s invasion of Manchuria. Humphrey’s critique of the narrow definition of “war” suggests that it is impossible for any international organization to completely outlaw war. Although Humphrey suggests that the usage of the term “war” should be revised to close the loophole that states use to justify acts of war, his solution is unsatisfactory: following the creation of the UN, “war” was replaced with a broader term, “aggression,” but the loophole remains. As can be seen in the US-led intervention in Iraq and Afghanistan, where states justified war as an act of “self-defense,” a change in wording does not resolve this issue.

Although Humphrey identifies several important problems with the Covenant, which manifested themselves in various international disputes around the time that he gave his speech, the solutions that he proposes do not resolve the issues. Despite this, Humphrey’s speech is valuable since his concerns reflect the international political situation in 1937 and provide background in understanding the changes that were made in later years regarding issues of sovereignty and war.

 

 

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