Читать книгу The Geneva Protocol - David Hunter Miller - Страница 13

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 Assembly so states,[1] and the Resolution[2] of the Assembly 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 Document. 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 document?

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?

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 entitled 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 Assembly 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 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 assume 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.