The Geneva Protocol, by David Hunter Miller

CHAPTER XIII. 55
CHAPTER XIII.
SEPARATE DEFENSIVE AGREEMENTS.
The general character of the Protocol of Geneva is such that separate defensive agreements between the
parties to it lose substantially all of their former importance. The Protocol itself is, among other things, a
general defensive agreement; and under such an agreement, faithfully lived up to, substantially the only part
that could be played by separate agreements would be to make more detailed and more regional, perhaps, in
their obligation and execution, the general obligations binding all signatories.
The possibility of these separate defensive agreements is mentioned in Article 13 of the Protocol. It is laid
down that they must be public; furthermore, action under them cannot take place until the Council "has called
upon the signatory States to apply sanctions." Finally, there is a most significant provision which illustrates
the relatively unimportant character of such separate agreements under the Protocol--any such agreement must
remain open to all Members of the League which desire to accede thereto.
This last mentioned provision takes away every possible idea that such defensive agreements under the
Protocol could be anything like the former "defensive" alliances. Obviously, a defensive agreement which is
open to any Member of the League is merely a part of the general agreement; particularly is this so when the
performance of the agreement depends and is conditioned upon the request of the Council.
Indeed, in view of the other provisions of the Protocol, it is very difficult to see any substantial difference
between these so-called defensive agreements and the undertakings[1] which, by Article 13, States which are
signatory to the Protocol may voluntarily give to the Council regarding the armed forces which might be used
in the application of the sanctions. I say that the {83} two things are similar for this reason: if in a given case
the Council decides that the military sanctions are to be applied any Signatory is then entitled, at least if it
chooses, to use the whole of its armed forces against the aggressor. This being so, the use of a specified
portion of these forces in any given case comes to just the same thing whether it arises from the general
agreement to apply sanctions or from a particular undertaking with the Council or from a particular agreement
with another Signatory.
We may go to this length in thinking of these defensive agreements hereafter; in view of the fact that they
must be public that any Member of the League may adhere to them and that they cannot be performed until
the Council of the League says so, there could be in such a paper no effective provision which would go
beyond the engagements under the Protocol itself.
Article 13 of the Protocol says that these separate agreements may be acceded to by any Member of the
League of Nations. This language would include a Member of the League which was not a signatory of the
Protocol. Under Article 13, it is only the States signatory to the Protocol which may make separate
agreements. The point is doubtless of no real importance; but it cannot be intended that these separate
agreements, if any be made, shall be acceded to by States other than those bound by the Protocol, for any such
separate agreement would be in reality a paper subsidiary to the Protocol.
[1] Whether these "undertakings" would have the same legal quality as a treaty is at least doubtful.
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