Читать книгу The Geneva Protocol - David Hunter Miller - Страница 11

The Protocol is dated at Geneva on October 2nd, 1924. It is drawn up in both French and English and the text of both languages is authentic. It is written in a single original. It was recommended to the Members of the League for acceptance by a resolution[1] unanimously passed in the Assembly by the affirmative vote of 48 Members of the League, and it has been signed by the representatives of various countries.

This recommendation by the Assembly, however, and these signatures, do not, as to any signatories, bring into force the Protocol, which, by its terms, must be ratified, the ratifications to be deposited at the Secretariat of the League at Geneva.

The first preliminary to the coming into force of the Protocol is its formal ratification by at least 13 Members of the League; and these ratifications must include those of at least three of the four Great Powers which are Members—Great Britain, France, Italy and Japan. But even these ratifications do not bring the Protocol into force. The absence of such ratifications by May 1st, 1925, may result in the postponement of the Disarmament Conference from the date provisionally fixed, June 15th, 1925. But this is a matter which I shall discuss later.[2]

If and when the ratifications above mentioned are deposited, a procès-verbal to that effect is drawn up; but this procès-verbal does not, as is usual when a procès-verbal of the deposit of ratifications is drafted, bring into force the Protocol. The date of the coming into force of the Protocol is stated as follows (Article 21):

"as soon as the plan for the reduction of armaments has been adopted by the Conference provided for in Article 17."

In other words, the Protocol will not bind any State that ratifies it unless and until the Conference for the Reduction of Armaments adopts a Plan for such reduction. If such Conference is held and if such Plan is adopted, the Protocol will, on the date of the adoption of the Plan, come into force as among the States which have then ratified it. Such is the effect of the provisions of Article 21 of the Protocol.

Other States, which have not at the date mentioned ratified the Protocol, may thereafter accede to it, as is provided by the third paragraph of Article 3, and of course the obligations of these States will commence with the date of such accession.

Furthermore, provision is made[3] by which the Protocol, even after coming into force, may become, as it says, "null and void." It might well be argued that the becoming "null and void" of the Protocol related back to the date when it came into force.

However this may be, it is important to notice here the provisions in this regard. The Conference for the Reduction of Armaments has, under the hypothesis, adopted a Plan for such reduction. That Conference has also to fix the time within which that Plan is to be carried out. The Council of the League is then to consider whether the Plan for the Reduction of Armaments adopted by the Conference has or has not been carried out within that fixed period. Presumably such consideration by the Council of the League would be had immediately after the expiration of the period fixed by the Conference; the Council, if it then considers that the Plan for the Reduction of Armaments has not been carried out, being limited, however, in such consideration to "the grounds" (French text—"conditions") laid down by the Conference in that respect, then declares that the Plan has not been carried out and the Protocol becomes "null and void."

Accordingly, the Protocol can come into force as a legal obligation only on the date of the adoption by the Conference of the Plan for the Reduction of Armaments; and from that date till the date when the Council of the League of Nations declares that the Plan has or has not been carried out, it may be said that the Protocol is only provisionally in force; it is subject to avoidance.

The question here arises as to what is meant by the language of the Protocol when it speaks of the Plan for the Reduction of Armaments being "carried out," or, in the French text, "execute." This is a question rather difficult of answer. Certainly the expression can hardly refer to the actual physical carrying out of such a Plan; for that might require a very long period. It seems to me that the expression envisages the formalities requisite for such a Plan. The Conference for the Reduction of Armaments which is to draw up a Plan for such reduction is to draw up, in other words, a Treaty or Treaties between the parties to bring about such reduction. Such Treaty, or such Treaties, will of course be voluntary agreements and will of course require ratification subsequent to the holding of the Conference itself. Accordingly, it is my view that the "carrying out" of the Plan for the Reduction of Armaments adopted by the Conference means in the Protocol the ratification of such Plan, that is to say, the transformation of the Plan into a binding agreement. Of course, the precise terms as to ratification, the number of ratifications required, the time of the deposit of ratifications and all such other formalities are for the Conference to decide; the reference here, however, is to those provisions as they may be drafted.

Accordingly, the "grounds" to be laid down by the Conference for the Reduction of Armaments, on which it may be declared by the Council that the Plan for the Reduction of Armaments has not been carried out, will mean, I take it, the laying down of some requirement that the Plan for the Reduction of Armaments be formally ratified within a time stated by a certain number of States, including certain named States; in default whereof, the Council may and will declare the Plan for the Reduction of Armaments not to have been carried out.

It is to be observed that the Protocol in the last paragraph of Article 21 speaks of the possibility of a Signatory failing to "comply" with the reduction of armaments Plan "after the expiration of the period fixed by the Conference."

This refers, I think, to a failure by a particular Signatory to ratify the Plan for the Reduction of Armaments, the effect being, so far as Article 21 is concerned, that such Signatory would be bound by the terms of the Protocol but could not benefit by them.

The language of this last paragraph of Article 21 is, however, broad enough to include the case of a State which had ratified the Treaty containing the Plan for the Reduction of Armaments and had then failed to carry out its agreement regarding such reduction.

It will thus be seen that the Protocol of Geneva is wholly dependent upon the success of the Conference for the Reduction of Armaments; and the success of that Conference depends wholly upon the voluntary agreement then made. There is nothing in the Protocol which requires the States represented at the Conference to agree to any particular plan for the reduction of armaments; the assent which they may give to such plan must be voluntary.

The question of the proceedings of the Disarmament Conference will be discussed hereafter.[4]

However, there is one point that may be mentioned here. The Plan for the Reduction of Armaments drawn up by the Conference or, in other words, the Treaty or Treaties drawn up by that Conference, will not be perpetual in their operation. No plan for disarmament, no treaty regarding reduction of armaments could possibly be perpetual in its detailed provisions. Not only does this follow from the nature of such an agreement, but it is explicitly laid down in Article 8 of the Covenant that any such Plan is to be subject to reconsideration and revision at least every ten years. Accordingly, the Treaty or Treaties for the Reduction of Armaments to be drawn up by the Conference will be in this sense temporary, that they will have a fixed limit of time for their operation, precisely as the Treaty Limiting Naval Armament drawn up at the Washington Conference may be terminated in 1936.[5]

There is no provision made in the Protocol of Geneva for the withdrawal of any State from its obligations, assuming that those obligations come finally into force. On its face the Protocol is therefore perpetual; but it is not really so. The obligations of the Protocol are so intertwined with the obligations of the Covenant that there is no doubt in my mind that the withdrawal from the League by a Member thereof (when bound by the Protocol) would release that State from the obligations of the Protocol as well as from the obligations of the Covenant.

The obligations of the Covenant are terminable by any Member of the League, as to itself, on two years notice. The obligations of the Protocol go much farther than the obligations of the Covenant. The obligations of the Protocol are, by its terms, later to be merged in the Covenant itself, without in any way impairing the withdrawal clause of the latter document.

So clearly it is not to be supposed that the obligations of the Protocol of Geneva, as to a Member of the League, are eternal. If the lesser obligations of the Covenant end as to a particular Member of the League upon withdrawal, surely the greater obligations of the Protocol, as to that League Member, end also.

The foregoing shows the fallacy, as a matter of logic, of the idea that a non-Member of the League may be bound by the Protocol and yet not be a party to the Covenant; for it would mean that a Signatory might be forever bound to a subsidiary instrument (the Protocol) although the primary instrument (the Covenant) was terminable; but I discuss this more at length later.[6]

Furthermore, it should be repeated that the Protocol is intended to be only a temporary document in the sense that, if it comes finally into force, it is contemplated that the Covenant will be amended substantially in accordance with the provisions of the Protocol.

[1] Annex D, p. 210 at p. 211, et seq.

[2] p. 97, et seq. It is settled that that Conference will be postponed.

[3] Article 21.

[4] Infra, p. 97, et seq.

[5] Article XXIII. See Conference on the Limitation of Armament, Government Printing Office, 1922, p. 1603.

[6] p. 10, et seq.