The Geneva Protocol, by David Hunter Miller
The Geneva Protocol, by David Hunter Miller
The Geneva Protocol, by David Hunter Miller
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CHAPTER IV. 12<br />
CHAPTER IV.<br />
PARTIES TO THE PROTOCOL.<br />
<strong>The</strong> theory of the framers of the <strong>Protocol</strong> of <strong>Geneva</strong> is that it may be signed and ratified <strong>by</strong> non-Members of<br />
the League of Nations as well as <strong>by</strong> Members of the League.<br />
Various words of the <strong>Protocol</strong> (e. g., Article 12) indicate this, the Report to the Assembly so states,[1] and the<br />
Resolution[2] of the Assembly recommending the <strong>Protocol</strong> for acceptance <strong>by</strong> the Members of the League of<br />
Nations specifically says that the <strong>Protocol</strong> shall be "open for signature <strong>by</strong> all other States" as well as <strong>by</strong><br />
Members of the League.<br />
Now of course all this is conclusive as to the technical question as to whether a non-Member of the League of<br />
Nations may in fact sign the <strong>Protocol</strong>. Such a State may legally sign, because the other Parties to the <strong>Protocol</strong><br />
invite such signature. And if any such State should sign, and ratify, it becomes a Party to the <strong>Protocol</strong>,<br />
regardless of logic.<br />
Nevertheless I submit that the whole idea of the possibility of Signatories to the <strong>Protocol</strong> who are<br />
non-Members of the League, is fundamentally contrary to the whole principle, spirit and terms of the <strong>Protocol</strong><br />
itself.<br />
In the first place, the <strong>Protocol</strong> is intended as a development of the Covenant; the <strong>Protocol</strong> is meant to be a<br />
temporary paper; its provisions are to be merged in the Covenant itself <strong>by</strong> amendment of that Document. How<br />
then can a State become a party to this temporary and provisional paper if it is not a party to the permanent<br />
and definitive document?<br />
If we examine the detailed provisions of the <strong>Protocol</strong>, the logical conclusion is equally certain. Surely a<br />
non-Member of the League cannot really "make every effort" to secure "introduction into the Covenant of<br />
amendments" (Article 1). Is this a matter for non-Members of the League?<br />
{11}<br />
Article 3 of the <strong>Protocol</strong> contemplates that the Signatories thereto shall accede to the special protocol<br />
regarding the second paragraph of Article 36 of the Statute of the Permanent Court. But if we turn to the<br />
provisions regarding the Permanent Court we find that such States as Russia and Mexico and Egypt are not<br />
entitled to accede to that special protocol at all, before entering the League.[3] Accordingly, if any one of<br />
these three States, non-Members of the League, should sign and ratify the <strong>Protocol</strong> of <strong>Geneva</strong>, it could not<br />
legally carry out the engagements of Article 3 thereof.<br />
All the provisions of Articles 4 to 6 inclusive of the <strong>Protocol</strong> of <strong>Geneva</strong> relate to disputes between the<br />
Signatories and contemplate the possible submission of any such dispute to the Council or Assembly of the<br />
League of Nations. But such submission can take place only under the provisions of the Covenant; and under<br />
Article 17 of the Covenant a non-Member of the League may not come within the provisions of the Covenant<br />
except upon invitation <strong>by</strong> the Council and upon terms stated.<br />
Without going into further detail, I repeat that the obligations contemplated <strong>by</strong> the <strong>Protocol</strong> are, in theory, no<br />
more than interpretations, or future elaborations, of the obligations of the Covenant. It seems to me logically<br />
impossible to suppose that such interpretations or amplifications may be made applicable to States which are<br />
free from the obligations in their primary form.<br />
If this matter is looked at realistically and concretely we find that there is hardly any possibility of the<br />
<strong>Protocol</strong> of <strong>Geneva</strong> being signed <strong>by</strong> any State which is a non-Member of the League. <strong>The</strong> United States and