Courtesy Reuters

The Geneva Protocol

TWENTY-FIVE years ago the first international Peace Conference met at The Hague, having been called by the Czar as a "happy presage for the century about to open." Its chief accomplishment was the 1899 Convention for the Pacific Settlement of International Disputes, in which twenty-five states recognized the "solidarity which unites the members of the society of civilized nations" and undertook "to use their best efforts to insure the pacific settlement of international differences." A procedure for such settlement was elaborated, but at that time no state was willing to agree to resort to it before going to war.

That was a quarter of a century ago. Today we seem a century removed from the first Hague Conference. A first step was taken at the second Hague Conference in 1907, when the delegates of forty-four states "admitted the principle of compulsory arbitration." But the effort to outlaw war was only begun when in 1919 the Covenant of the League of Nations, now accepted by fifty-five peoples, pronounced "any war or threat of war" to be "a matter of concern to the whole League," and bound each member of the League to refrain from going to war without first submitting its dispute to "arbitration or to inquiry by the Council."

For various reasons, however, this large advance over the work of the Hague Conferences has not been deemed adequate. The disappointment of the hopes engendered by the tripartite arrangement for the defense of France which was drawn up at the Paris Peace Conference, the non-inclusion of Germany, Russia, and the United States in the League, and the troubled polity which followed the war, all combined to prevent the Covenant from producing an adequate sense of security. At each stage of the efforts made in the League of Nations to cope with the problem of disarmament, this psychology of insecurity was encountered, until latterly it has been recognized that the existing state of armaments is more the effect than the cause of international tension.

By 1922 the Third Assembly of the League had begun to connect the subject of reduction of land armaments with a treaty of mutual guarantee. In 1923 a draft of such a treaty was laid before the Fourth Assembly by the Temporary Mixed Commission on Reduction of Armaments, and it was decided to submit this draft to the Governments for their consideration. The numerous replies received at Geneva during the early months of 1924--including replies from Germany, Russia, and the United States--revealed wide divergences of view as to the methods by which a sense of security might be quickened and additional stones might be laid in the bulwark which the world is gradually building against war. The draft treaty had been approved in principle by eighteen governments, but the misgivings and disagreement expressed by certain governments called for a new beginning.

When the Fifth Assembly addressed itself to the problem early in September, 1924, the prime ministers of France and Great Britain were present, advocating the compulsory arbitration or adjudication of all international disputes, and as the Third Assembly had linked disarmament with security the Fifth Assembly began to link security with arbitration. With the results of the five years' work before them, the delegates to the Fifth Assembly labored for five weeks to produce a new protocol on pacific settlement, based on the inter-relation of disarmament, security and arbitration. This Protocol is not planned to supersede the Covenant. It merely implements its provisions. To the extent that signatories of the Protocol are adding to their obligations as set out in the Covenant, eventual amendments of the latter instrument are contemplated. But the Covenant and the Protocol are planned to stand together. A state might accept the former without being bound in any way by the latter; but it is hardly conceivable that the Protocol will be accepted by any state which does not in some degree accept the Covenant.

The principal provisions of the Protocol embody: (1) a declaration that aggressive war is an international crime; (2) a definition of aggression as a resort to war without submission to adjudication or arbitration as stipulated; (3) an undertaking to employ police measures against aggressors; and (4) a plan for a world disarmament conference, on the success of which the Protocol depends.

(1) In the preamble of the Protocol the signatories recognize the "solidarity of the members of the international community" in much the same terms as were used by the two Hague Conferences; but they go further in "asserting that a war of aggression constitutes a violation of this solidarity and an international crime." This is the first time in history that responsible statesmen have gone so far in an effort to "outlaw" war. Piracy has long been regarded as an international crime. International courts for its punishment have not existed, but during the past century the interdiction has effectively added to the safety of the seas. Now war is to be branded in the same way.

The phraseology of the Protocol, if not the conception, has undoubtedly been influenced by the insistence in America on the outlawry of war. The American phrase had already found place in the first article of the draft treaty of mutual assistance of 1923. But whereas Senator Borah's program of outlawry, as set forth in a resolution introduced into the Senate on February 13, 1923, made no reference to the utilization of existing international machinery, the Protocol is built entirely on resort to the Permanent Court of International Justice and the Council and Assembly of the League. In other words, the signatories of the Protocol do not stop with a fiat that aggressive war is a crime. They proceed to elaborate provisions which may prevent that crime from being committed.

(2) It was a more difficult task to define what the ban on aggressive war should cover. When is a state to be deemed an aggressor? Here a group of American citizens, represented by General Tasker H. Bliss, Mr. David Hunter Miller, and Professor James T. Shotwell came to the assistance of the Fifth Assembly with a suggestion that resort to war without previously following a specified procedure of pacific settlement should be deemed aggression. The Protocol is based on this conception. It brands as an aggressor any state which resorts to war in violation of the undertakings contained in the Covenant or in the Protocol. Moreover, in the event of hostilities begun, it creates a presumption that a state is an aggressor unless a unanimous decision of the Council shall otherwise declare, if a state has violated any of these undertakings. The definition and the presumption called for elaborate detail in outlining the obligatory procedure.

First of all, the signatories agree to accept, within one month after the Protocol comes into force, the compulsory jurisdiction of the Permanent Court of International Justice with reference to "legal disputes." In general, such disputes would relate to (a) the interpretation of a treaty, (b) any question of international law, (c) any breach of an international obligation, or (d) reparation for such a breach. But the Protocol (Art. 3) does not prejudice "the right of any state" to make compatible reservations when it accedes to the Court Protocol of December 16, 1920, and the wording of Article 36 of the Court Statute leaves a wide range for such compatibility.

Compulsory jurisdiction of the Court had been proposed in the draft of its Statute which was framed by a committee of jurists in 1920. At that time, it was felt by some states to go too far. But between 1920 and 1924 the optional provision for such jurisdiction had been signed by twenty-two states, including Brazil and China but none of the so-called Great Powers. As a result of the Protocol of Geneva, it has now been signed by France, on condition that a denunciation may be made if the Protocol does not become operative. And Mr. Arthur Henderson announced at Geneva that Great Britain had in mind acceptance of the optional provision with a reservation as to legal disputes concerning the use of the British navy in operations sanctioned by the League and in support of the Covenant.

(2) Secondly, the signatories of the Protocol of Geneva agree to arbitrate all non-legal disputes. The Covenant had already provided that any dispute "likely to lead to a rupture" should be submitted either to arbitration or to inquiry by the Council. The arbitration envisaged by the Covenant (Art. 13) may be entirely outside the League. The signatories of the Protocol remain free to resort to any arbitration they choose. It is only when other arbitration is not resorted to that members of the League are bound by the Covenant (Art. 15) to submit a dispute to the Council, and the Protocol now "renders more complete" the provisions of the Covenant for the Council's proceeding.

The Council will first endeavor to effect a settlement. Failing that, the Council will endeavor to persuade the parties to agree to arbitrate. Failing that, and if one party so requests, a committee of arbitrators will be set up with the Council's assistance. Failing that, the Council shall endeavor to recommend a settlement by unanimous vote (not counting the votes of the disputants) and such a recommendation will become obligatory. Failing such unanimity, however, the Council must submit the dispute to arbitration, itself determining the conditions thereof.

A judicial sentence, an arbitral award, or a unanimous Council recommendation at any of these stages becomes binding on the signatory states. The scheme thus seems to be war-tight in its provision of a peaceful procedure for settling disputes.

But one possible qualification must be noted. Some questions still remain outside the category of adjudicable and arbitrable questions. Two decades ago, arbitration treaties were not permitted to apply to questions of "national honor and vital interest." That phrase is now obsolescent. In its place, the Covenant of the League of Nations provides that in a dispute concerning "a matter which by international law is solely within the domestic jurisdiction" of a state, the Council shall make no recommendation as to settlement. This provision was put into the Covenant as a result of American insistence at Paris. The Protocol expressly provides that it shall remain intact, and the Council is as incompetent now as before to make any binding recommendation for settling a dispute which it finds to relate to a domestic matter. Or if a dispute is being arbitrated, the arbitrators are precluded from proceeding further once the court has given an advisory opinion that it relates to a domestic matter.

But the Protocol of Geneva includes an additional provision, inserted at the instance of the Japanese, that a decision that a matter in dispute is domestic need not prevent "consideration of the situation" by the Council or Assembly of the League under Article 11 of the Covenant--that is, under the power there given in the event of war or threatened war, to "take any action that may be deemed wise and effectual to safeguard the peace of nations." A state is to be presumed an aggressor if it goes to war in disregard of a proper finding that a matter in dispute is domestic, and if after such a finding it fails to submit the dispute to the Council for "consideration of the situation." If, on the other hand, a state does make such submission and does await the Council's consideration, is it an aggressor within the meaning of that term as used in the Protocol if it thereafter goes to war? The presumption of aggression (Art. 10) does not then apply, but the state may still be violating its undertaking (Art. 2) not to resort to war except in case of resistance to acts of aggression or when assisting in international police work against an aggressor. M. Politis (Greece), who acted as a rapporteur for the first committee of the Assembly, was explicit in his report in saying that "no breach in the barrier set up by the Protocol against aggressive war" has been opened up; and he declared that "a war undertaken against a state whose exclusive jurisdiction has been formally recognized is an international crime to be avenged collectively by the signatories of the Protocol." It would seem, therefore, that a state which, after awaiting the Council's consideration of the situation, goes to war over a dispute held to concern "a matter which by international law is solely within the domestic jurisdiction" of another state, may be found to be an aggressor, though the presumption of aggression does not automatically apply to it.

What is the action which the Council may take in its "consideration of the situation?" Obviously, it is in the nature of good offices and mediation. The Council is prohibited from making any binding recommendation, but it may still attempt to persuade the parties to continue discussion and to refrain from hostilities. In this respect the Protocol's provision for the Council's "considering the situation" is not new or startling. "It does not confer new powers or functions on either the Council or the Assembly," as M. Politis explained. Indeed, it merely recognizes what the Hague Conferences recognized in 1899 and in 1907, that it is "expedient and desirable that one or more Powers, strangers to the dispute, should, on their own initiative and as far as circumstances may allow, offer their good offices or mediation to the states at variance."

(3) In a third field, also, the Protocol would lend precision to the provisions of the Covenant. The latter instrument makes provision (Art. 16) for police measures to be taken against a state which resorts to war in disregard of its obligation to submit to arbitration or inquiry by the Council. Such measures would include "the severance of all trade or financial relations," and the prohibition of intercourse with nationals of the offending state. The Council is empowered to recommend what effective military, naval or air force each state should contribute for putting down the aggression, though no state is bound to accept that recommendation. Moreover, according to the decision of the Second Assembly, each state is left to decide for itself whether the Covenant has been violated.

The Protocol would give the Council power to determine the fact of aggression, and to call on the signatories to apply the sanctions. Thereafter, each signatory would be entitled to become a belligerent against the aggressor, though not bound to do so. Each signatory would be bound, however, to "cooperate loyally and effectively" in resistance to the aggressor, "in the degree which its geographical position and its particular situation as regards armaments allow." And each would be bound to "come to the assistance" of the victim of aggression, though free to say for itself what the nature of this assistance should be.

In anticipation of such a situation, the Protocol envisages the possibility of an undertaking which a state may give to the Council that in certain events it would be willing to make a particular use of its forces. Thus Great Britain might give an undertaking to the Council that in the event of Germany's being found by the Council to be an aggressor against France, the British fleet would be used to protect the French channel ports. And the possibility is also foreseen that two states might enter into a treaty to come each to the other's assistance in a particular manner; but the Protocol would recognize such agreements only if they were registered with the League of Nations and if they were held open to adhesion by any other state which is a member of the League. This is a novel effort to avoid the evil effect of special military alliances.

M. Benes (Czechoslovakia), as rapporteur of the third committee before the Assembly, stated that "no burden has been imposed on states beyond the sanctions already provided for in the Covenant." If a state should fail to "cooperate loyally and effectively," no sanctions are to be operative against it. M. Benes states the gist of this part of the Protocol to be: "Each state is the judge of the manner in which it shall carry out its obligations but not of the existence of those obligations."

The possible application of the sanctions to states which are not signatories of the Protocol has been envisaged. The Covenant provides (Art. 17) that in the event of a dispute between a member of the League and a state which is not a member, the latter shall be invited to accept the obligations of membership for the purposes of such dispute, on conditions which the Council may deem just; and that if the invitation is declined, the sanctions provided for (Art. 16) may be enforced against it. The Protocol provides for a similar invitation to be sent to such a non-member state, inviting acceptance of the obligations of the Protocol for the purposes of the single dispute. It does not go beyond what was already in the Covenant in this respect.

If the application of police sanctions should involve military operations, the Protocol would fix upon the aggressor "up to the extreme limit of its capacity" the cost of such operations, as well as the duty to make reparation for all losses suffered by combatant as well as by civilian individuals. If this should not have the effect of deterring a would-be aggressor, it might furnish the gauge for reparations which was so sadly lacking in 1919.

(4) It is only the fourth aspect of the Protocol which deals with the third link in the chain of arbitration, security and disarmament. The Assembly found the framing of the Protocol such a large undertaking that it could not attempt at the same time to work out plans for disarmament. Moreover, various preliminary studies were necessary, and had not yet been made. The Protocol therefore provides (Art. 17) that an International Conference for the Reduction of Armaments shall be convened in Geneva on June 15, 1925, to which all states are to be invited. A program for reduction and limitation is to be drawn up by the Council for consideration at this Conference, and must be communicated to the Governments by March 15, 1925. To this end, the Temporary Mixed Commission on Reduction of Armaments has already been reconstituted, and various suggestions as to the work of the Conference were made by the Assembly itself.

The success of the Conference conditions the coming into force of the Protocol. If by May 1, 1925, ratifications have not been deposited by three of the four Powers--France, Great Britain, Italy, and Japan--as well as by ten other members of the League, the adjournment of the Conference to some later date is provided for. In no event is the Protocol to become binding until such ratifications are deposited and until the Conference has adopted a plan for the reduction of armaments. Thereafter, the Protocol shall cease to have effect when the Council declares (on grounds to be determined by the Conference) that the plan has not been carried out.

The Protocol received the blessing of forty-eight states represented in the Fifth Assembly on October 2, 1924, when their delegates voted unanimously to "welcome" it "warmly" and to recommend its acceptance to "the earnest attention of all members of the League." On the same date, it was opened for signature to all states of the world, and signatures were promptly affixed on behalf of Albania, Belgium, Brazil, Bulgaria, Chile, Czechoslovakia, Esthonia, France, Greece, Latvia, Poland, Portugal and the Serb-Croat-Slovene State. (The American press has also reported signature by Paraguay.) Before the end of October, Czechoslovakia had effected her ratification.

It remains now to be seen whether other states are prepared to put the Protocol into effect. Without Great Britain's cooperation it seems doubtful whether anything can be done; and the British action seems to be conditioned on the participation of the various Dominions and the Irish Free State quite as much as on the views of the new Conservative Government. At the time of writing there has been no clear indication either of the attitude of the Dominions or of the attitude of the new Government.

MM. Benes and Politis reported to the Assembly: "Our purpose was to make war impossible, to kill it, to annihilate it. . . . The plan drawn up leaves no loophole; it prohibits war of every description and lays down that all disputes shall be settled by pacific means. . . . If we succeed, the League of Nations will have rendered an inestimable service to the whole modern world." Perhaps the Protocol will have influence, however, even if it fails to realize such large ambitions. For whatever its fate during the next twelvemonth, its provisions are bound to affect the place which war will have in international law as it is to be developed in the future. Even if no further progress were made immediately, the drafting of the Protocol is in itself a fitting celebration of the third centenary of the publication of Grotius' classic "De Jure Belli ac Pacis."

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