The theory of the framers of the Protocol of Geneva is that it may be signed and ratified by non-Members of the League of Nations as well as by Members of the League.
Various words of the Protocol (_e. g._, Article 12) indicate this, the Report to the a.s.sembly so states,[1] and the Resolution[2] of the a.s.sembly recommending the Protocol for acceptance by the Members of the League of Nations specifically says that the Protocol shall be "open for signature by all other States" as well as by Members of the League.
Now of course all this is conclusive as to the technical question as to whether a non-Member of the League of Nations _may in fact_ sign the Protocol. Such a State _may_ legally sign, because the other Parties to the Protocol invite such signature. And if any such State should sign, and ratify, it becomes a Party to the Protocol, regardless of logic.
Nevertheless I submit that the whole idea of the possibility of Signatories to the Protocol who are non-Members of the League, is fundamentally contrary to the whole principle, spirit and terms of the Protocol itself.
In the first place, the Protocol is intended as a development of the Covenant; the Protocol is meant to be a temporary paper; its provisions are to be merged in the Covenant itself by amendment of that Doc.u.ment.
How then can a State become a party to this temporary and provisional paper if it is not a party to the permanent and definitive doc.u.ment?
If we examine the detailed provisions of the Protocol, the logical conclusion is equally certain. Surely a non-Member of the League cannot really "make every effort" to secure "introduction into the Covenant of amendments" (Article 1). Is this a matter for non-Members of the League?
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Article 3 of the Protocol contemplates that the Signatories thereto shall accede to the special protocol regarding the second paragraph of Article 36 of the Statute of the Permanent Court. But if we turn to the provisions regarding the Permanent Court we find that such States as Russia and Mexico and Egypt are not ent.i.tled to accede to that special protocol at all, before entering the League.[3] Accordingly, if any one of these three States, non-Members of the League, should sign and ratify the Protocol of Geneva, it could not legally carry out the engagements of Article 3 thereof.
All the provisions of Articles 4 to 6 inclusive of the Protocol of Geneva relate to disputes between the Signatories and contemplate the possible submission of any such dispute to the Council or a.s.sembly of the League of Nations. But such submission can take place only under the provisions of the Covenant; and under Article 17 of the Covenant a non-Member of the League may not come within the provisions of the Covenant except upon invitation by the Council and upon terms stated.
Without going into further detail, I repeat that the obligations contemplated by the Protocol are, in theory, no more than interpretations, or future elaborations, of the obligations of the Covenant. It seems to me logically impossible to suppose that such interpretations or amplifications may be made applicable to States which are free from the obligations in their primary form.
If this matter is looked at realistically and concretely we find that there is hardly any possibility of the Protocol of Geneva being signed by any State which is a non-Member of the League. The United States and Russia will certainly not sign; the admission of Germany and Turkey to the League is contemplated. The only other States[4] of any international consequence outside the {12} League are Mexico and Egypt; and the likelihood of either of these two States becoming a party to the Protocol of Geneva is too remote for serious consideration.
Accordingly, in the subsequent discussion, I shall a.s.sume that, whatever may be the legal possibilities, there is no real possibility of any State which is not a Member of the League of Nations becoming a party to the Protocol of Geneva.
[1] Annex C, p. 156 at p. 167.
[2] Annex D, p. 210 at p. 212.
[3] Under the Resolution of the Council of May 17, 1922, any State may accept the jurisdiction of the Permanent Court by filing a declaration to that effect; but this is not the same thing as acceding to the Protocol of December 16, 1920.
[4] See Membership in the League of Nations, by Manley O. Hudson, A. J.
I. L., July, 1924.
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CHAPTER V.
RELATIONS INTER SE OF THE SIGNATORIES TO THE PROTOCOL.
It is here a.s.sumed that only Members of the League of Nations may become parties to the Protocol of Geneva[1]; the Protocol is a development of the Covenant and it would, in any view, be logically impossible for any State, not a Member of the League, to become a Signatory to the Protocol; on the other hand, Members of the League are, of course, not obligated to sign or to ratify the Protocol of Geneva.
Accordingly, if the Protocol shall come into force, the Powers of the world, from the point of view of the Protocol, will, at least theoretically, be divided into three cla.s.ses:
1. Members of the League of Nations who are parties to the Protocol.
2. Members of the League of Nations who are not parties to the Protocol.
3. Non-Members of the League of Nations who are not parties to the Protocol.
From this it follows, again looking at the matter from the point of view of the Protocol of Geneva, that the international relations of the various countries of the world would fall into the following six cla.s.ses:
1. Relations _inter se_ of the Signatories to the Protocol.
2. Relations _inter se_ of the Members of the League not Signatories to the Protocol.
3. Relations _inter se_ of non-Members of the League.
4. Relations of the Signatories to the Protocol with the Members of the League not Signatories thereto.
5. Relations of Members of the League not Signatories to the Protocol with States non-Members of the League.
6. Relations of the Members of the League Signatories to the Protocol with States non-Members of the League.
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It is proposed in this discussion first to consider the first of the above six cla.s.ses, namely, the relations of the Signatories to the Protocol, _inter se_; and this discussion will proceed primarily on the a.s.sumption that the obligations of the Protocol are carried out.
In numerous places the Protocol speaks of the parties thereto as "the signatory States," _e. g._, Articles 1, 2, 3, 8, 11, etc. It is curious this is so in view of the meticulous insistence by the British Dominions at the Peace Conference, on the use, throughout the text of the Covenant generally, of the expression "Members of the League"
instead of "States Members of the League."[2]
Certainly it is contemplated that ratification of the Protocol may be made on behalf of the British Dominions. Accordingly, I think that the use in the Protocol of the expression "signatory States" is probably an inadvertence, as in no proper international sense of the word are the British Dominions States, despite the fact that they have an international status under the League of Nations and even otherwise.[3]
The first point to be noticed is that under Article 2 of the Protocol there is a very general and a very sweeping obligation on the part of the Signatories not to resort to war. This is a point of the utmost importance. The obligation goes very much farther than anything in the Covenant; the language of this obligation will be examined in detail hereafter.
Before coming to that, however, it is well to look at the provisions of the Protocol regarding the settlement of international disputes. War is one method for the settlement of such disputes, and, in order to make effective the obligation of the Signatories not to resort to war, subst.i.tute methods of settlement are provided.
It is very natural and proper that this should be done. A mere obligation not to resort to war, without more, would almost imply that disputes between the parties to the obligation should {15} find _some_ other method of settlement. For if some other method could not be found, feelings due to the continuance of the dispute might well arouse such pa.s.sions in one country or another as to sweep away the obligation for peace. The two questions of the ending of war and the settlement of disputes between States are not only logically but realistically very closely related.
Disputes between States are often regarded as comprising those that relate to international questions and those that relate to domestic questions, the former being divided into justiciable and non-justiciable disputes.
I prefer, however, _for this discussion_, to cla.s.sify possible international disputes in three kinds, namely:
1. Disputes as to international questions.
2. Disputes as to domestic questions.
3. Disputes as to _status quo_.
I am aware of the fact that such cla.s.sification as the foregoing is overlapping. Disputes as to the _status quo_ will to some extent fall within the two cla.s.ses first mentioned; they may relate therefore to questions which are international or which are domestic in their nature. However, I think the cla.s.sification is justified, at least for reasons of convenience, and also, in my opinion, for reasons which go very much deeper.
Let me ill.u.s.trate this by reference to questions arising from frontiers. The existence and the location of a frontier are essentially questions of international import. The location of a frontier may, in a given case, not only be an international question in the sense that it should be settled internationally, but also in the sense that it is justiciable, according to the usual idea of justiciable questions. This would be so in a case where the location of the frontier depended wholly upon the interpretation of a treaty between the two neighboring States.