Читать книгу The Geneva Protocol - David Hunter Miller - Страница 9

There are various possible points of approach to the consideration of the Protocol of Geneva. In view of the importance of the document, doubtless all such methods are useful. Indeed, in the discussion of such a paper, it is perhaps hardly possible exclusively to adopt only one angle of view, such as the historical, the political, etc. My own consideration of the paper, however, is to be primarily from the legal viewpoint; without attempting wholly to avoid other points of view I shall seek not to stress them.

The Protocol is an elaborate and technical international document; and even in attempting to consider it primarily from the legal viewpoint there are various methods or arrangements of such a discussion. The general starting point which seems to me to be most desirable is that of the legal effect of the Protocol upon the international relations of the States which become parties to it, both as among themselves and as to States not parties.

It will of course in this connection be necessary to consider the obligations fixed by the Protocol in the event of its breach, as well as those which are imposed by its acceptance and performance. These latter may, however, very properly be first considered.

Accordingly, the first discussion will relate to the obligations of the States which become parties to the Protocol as among themselves, particularly in connection with the due performance of these obligations by those parties.

Before coming to this first discussion, however, there are certain general observations which may be made.

In the first place the paper is called a Protocol. The precise reason for the use of this term does not appear; but it is probably due to the fact that the Protocol of Geneva is in a sense supplementary to other international agreements such as the Covenant of the League of Nations and the Statute of the Permanent Court of International Justice; and perhaps because the Protocol is intended to be preliminary to amendments to the Covenant (Article I, paragraph 1, of the Protocol).

Allusion is made to this provisional character of the Protocol of Geneva in the Report[1] made by the First and Third Committees to the Fifth Assembly of the League of Nations, where it is said:

"When the Covenant has been amended in this way some parts of the Protocol will lose their value as between the said States: some of them will have enriched the Covenant, while others, being temporary in character, will have lost their object.

The whole Protocol will remain applicable to relations between signatory States which are Members of the League of Nations and signatory States outside the League,[2] or between States coming within the latter category.

It should be added that, as the League realizes its aim of universality, the amended Covenant will take the place, as regards all States, of the separate régime of the Protocol."

Of course, as is pointed out in some detail by Satow (Diplomatic Practice, Second Edition, Vol. II, pages 270 et seq.), the word "protocol" is used with quite a number of different meanings. In the present case the meaning of the word is nothing more nor less than treaty or convention.

It is naturally impossible to consider or discuss the effect of the Protocol of Geneva without constant reference to the text of the Covenant, to which the Protocol refers throughout. It is also necessary to consider to some extent the Statute of the Permanent Court of International Justice and even certain of the provisions of the Treaties of Peace, other than the Covenant.

Moreover, as any consideration of the legal situation created by the Protocol must assume that the document has come into force, it will be interesting to sum up the provisions of the Protocol in that regard, particularly as they are somewhat unusual.

[1] The English text of this Report is Annex C, p. 156.

[2] From the theory that the Protocol may properly be signed by non-Members of the League, I dissent. See infra, p. 10., et seq.