Читать книгу The Geneva Protocol - David Hunter Miller - Страница 15

It is here assumed 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 classes:

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 classes:

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.

It is proposed in this discussion first to consider the first of the above six classes, namely, the relations of the Signatories to the Protocol, inter se; and this discussion will proceed primarily on the assumption 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, substitute 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 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 passions 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 classify 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 classification as the foregoing is overlapping. Disputes as to the status quo will to some extent fall within the two classes first mentioned; they may relate therefore to questions which are international or which are domestic in their nature. However, I think the classification is justified, at least for reasons of convenience, and also, in my opinion, for reasons which go very much deeper.

Let me illustrate 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.

But it is quite possible to imagine an international question regarding a frontier which is not in any way justiciable; such, for example, was the question as to where the frontier between Poland and Russia should be drawn after the World War.[4] That some frontier had to be drawn was obvious; but there was no possible legal basis for determining where it should be drawn. The question was one of judgment, to be settled by agreement between the parties, if possible; or otherwise, if it was to be peacefully settled, by reference to some sort of tribunal which would decide according to principles[5] of equity, impossible to express in any precise legal formula. In other words, the question was an international political one.

Again, suppose that the frontier between the two States has been settled by agreement and that there is no doubt whatever where it is. One of the two States desires to have that frontier changed; in other words, desires that there shall be a cession of territory. Here is a question of the status quo. In a sense it may be called international, because it relates to an international frontier; but it not only falls wholly outside any idea of justiciable questions in the international sense, but also outside any idea of being a political question which any tribunal whatever could decide on any basis. In other words, it is within that class of cases of an international nature in regard to which two States may, if they choose, negotiate, but in regard to which either one of them may at its pleasure refuse even to consider negotiations.

In any condition of international affairs which it is possible to visualize under the present State system, this must continue to be so. The State system presupposes necessarily the existence of States. One of the inherent conditions of the existence of a State is its right to the possession of its own undisputed territory as against any other State,[6] which does not mean, I mention in passing, as against a revolutionary movement within the State; that is another story. The putting in question of this undisputed right of one State to hold its own territory as against another State would mean the putting in question of the existing State order as a whole.

Further, while I have included domestic questions as a separate class of questions in the above list, I think that logically many of them fall within the thought of questions which concern the status quo. I do not dispute that these domestic questions may at times have an international aspect; but they are questions which each State has an absolute right under law to regulate according to its own pleasure, and it is for this reason that they fall within the class of cases which are, in theory, not to be questioned internationally. Of course a State may, if it chooses, negotiate regarding them, just as it may, if it chooses, negotiate about the cession of part of its territory. But it may also, if it chooses, so to speak end the negotiations by refusing to commence them at all.

However, it is proper, none the less, to consider these domestic questions as a separate group, for the reason that there is a possibility of development toward their international consideration within the present State system. I shall pursue that thought further a little later.

[1] Those who framed the Protocol have a different opinion. See the discussion, supra, p. 10, et seq.

[2] cf. the expression in Article 34 of the Court Statute "States or Members of the League of Nations."

[3] The exact position of the British Dominions within the League is not yet wholly settled. See the recent British and Irish notes regarding the Irish Treaty, London Times, December 16 and 24, 1924.

[4] See Treaty of Versailles, Article 87, third paragraph.

[5] Such as, perhaps, the idea of self determination, the economic situation of the inhabitants, etc.

[6] See the Declaration of the Rights and Duties of Nations adopted by the American Institute of International Law, specially Paragraph IV, A. J. I. L., Vol. X, pp. 212, 213.