INTRODUCTION

WHAT THE PROTOCOL DOES1

BY

MANLEY O. HUDSON

Bemis Professor of International Law, Harvard Law School

The Protocol of Geneva for the Pacific Settlement of International Disputes was opened for signature on October 2, 1924. The full text was not at once made available in America, and the incompleteness of the cabled summaries has been the cause of some misinterpretation. But with the arrival of the official texts, in English and in French,2 it has become possible to form more accurate judgment. The following summary of the Protocol and its effect may prove serviceable to some persons who have not been able to follow the evolution through its various stages.

1. Nature of the Instrument. The Protocol is a new treaty. It supplements, but does not supersede or amend, the Covenant. The signatories to the Protocol pledge themselves to work for amendments, however, which would introduce the fuller provisions of the Protocol into the Covenant.

2. Parties to the Protocol. Forty-seven states represented in the Fifth Assembly of the League of Nations assisted in drafting the Protocol and recommended its acceptance by all members of the League. According to our present information, eleven states have signed: Albania, Belgium, Bulgaria, Czechoslovakia, Esthonia, France, Greece, Latvia, Poland, Portugal, and the Serb-Croat-Slovene State. It is interesting to note that these eleven states which are the first to sign the Protocol are all European States, and include four of the Balkan states.

3. American Participation. The United States has not been invited to sign the Protocol. Only members of the League have been invited to sign. Our Government did not participate in any way in the drafting, but an unofficial group of Americans, represented in Geneva by General Tasker H. Bliss, Mr. David Hunter 'Reprinted with slight corrections from the New York World of October 19, 1924. "The English text was reprinted in the New York Times of October 11, 1924.

Miller, and Professor James T. Shotwell, contributed valuable suggestions, which were made the basis of numerous provisions included in the Protocol. If the United States were a member of the League, she would not be bound to accept the Protocol, but would still have a free choice about it. The Protocol (Art. 17) does provide for an invitation to the United States to be represented at a world Conference on Disarmament to convene at Geneva on June 15, 1925. Acceptance of this invitation and participation in the conference would in no degree involve acceptance of the Protocol.

4. Force of the Protocol. The signatory states will not be bound definitively until they ratify, and even then the instrument will not come into force until it is ratified by three of the four Great Powers-the British Empire, France, Italy and Japan-as well as by ten other members of the League, and until the Conference on Disarmament has adopted a plan for reduction of armaments (Art. 21). The duration of the life of the Protocol, also, is conditioned on the carrying out of the disarmament program. If, within a period to be fixed by the Conference, the Council decides that the plan has not been carried out, the Protocol will cease to have force.

5. The Protocol and the Conference. While the effect of the Protocol is thus dependent on the action of the Conference, the present text is a final one and the Protocol is now a complete treaty. It does not await approval by the Conference, nor is it foreseen that the Conference will in any way change the text. If by May 1, 1925, the requisite number of ratifications has not been received by the Secretary-General of the League, the Conference on Disarmament may be postponed.

6. Origin of the Protocol. It was in the efforts of the League of Nations to get agreement on plans for disarmament that the Protocol had its origin. At every stage of the League's work, it was found that disarmament was conditioned on security. A long step in advance of the Hague Conferences of 1899 and 1907 had been taken in the Covenant of the League. But in some countries the feeling has been growing since 1920 that the Covenant did not go far enough in cementing the solidarity of peoples in opposition to unlawful aggression. In France, particularly, security has been the key-note, and the problem

related itself to the desire for a reparations settlement. The Peace Conference had elaborated a tripartite arrangement between the United States, Great Britain and France, and in spite of the fact that this had been abandoned, it continued to be talked about in France. With a view to increasing international security, a draft treaty of mutual assistance was worked out by the Temporary Mixed Commission on Reduction of Armaments of the League of Nations and was sent by the Council and Assembly, without approval or disapproval but for comment, to all Governments including the United States and Germany and Russia. So many negative replies were received that a new line had to be taken. The settlement of the reparations problem for the time being by the adoption of the Dawes plan by the London Conference of July, 1924, greatly cleared the air. So that when MacDonald and Herriot appeared in Geneva in early September their proposal of a new effort was received with enthusiasm. This took the form of an effort to outlaw war effectively by relating security and disarmament to all-inclusive compulsory arbitration. Just as it had been found that disarmament was conditioned on security, so security was thought to be conditioned on arbitration. This idea had been put forward at the Fourth Assembly in 1923 by Dr. Lange (Norway), but opinion was not then up to it. Work was begun along this line. For five weeks the Assembly's first committee (on legal questions) and its third committee (on disarmament), with forty-seven nations represented in each, continued their collaboration and produced the Protocol. The chief figures in this work were Bénes (Czechoslovakia), Adatci (Japan), Boncour and Briand (France), Henderson (Great Britain), Politis (Greece), and Schanzer (Italy).

7. Plan of the Protocol. The basic thing in the Protocol is the branding of aggressive war an international crime. This idea is American in origin. It is directly traceable through the draft treaty for mutual assistance to the program advocated in the United States by Borah, Dewey and Levinson. But the Protocol does not stop with a mere declaration. It goes beyond that fiat. It elaborates obligations and procedure which are designed to prevent the crime from being committed. The following topics may be enumerated: (a) compulsory jurisdiction of the International Court over legal disputes; (b) compulsory arbitration of

all other disputes; (c) prevention of hostile preparations for war; (d) demilitarization of certain zones; (e) definition of aggression; (f) sanctions applicable against aggressors; (g) penalty for aggression; and (h) the conference on disarmament.

8. Compulsory Jurisdiction of the International Court. The Permanent Court of International Justice has long had a large measure of compulsory jurisdiction, given to it by special treaties. In addition, twenty states have signed the so-called "optional clause" attached to the Court Protocol declaring that they recognize as compulsory ipso facto the Court's jurisdiction in certain classes of legal disputes described in Article 36 of the Court Statute, concerning (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact as to breach of an international obligation; and (d) reparation for such a breach. These twenty states have not heretofore included any of the so-called Great Powers, though Brazil and China are among them. But so far has opinion advanced since 1920 that the Protocol of Geneva (Art. 3) now requires each signatory to accept the "optional clause" within one month after it comes into effect. M. Briand signed the "optional clause" for France at the same time that he signed the Protocol of Geneva, on October 2, 1924. The Protocol recognizes the propriety of "compatible" reservations, and Mr. Arthur Henderson announced at Geneva that Great Britain had in mind a reservation as to disputes concerning the use of the British navy in operations sanctioned by the League and in support of the Covenant.

9. Compulsory Arbitration of Non-Legal Disputes. If a dispute relates to a non-legal question, the disputants are free under Article 13 of the Covenant to submit it to arbitration, the arbitrators and the procedure to be of their own choosing. If this is not done, however, Article 15 of the Covenant requires that the dispute be submitted to the Council. The Protocol (Art. 4) now "renders more complete", so far as the signatories are concerned, certain provisions of Article 15 of the Covenant with reference to the Council's procedure. The Council will (1) endeavor to settle the dispute; (2) failing settlement, endeavor to persuade the parties to arbitrate, new provision being made for escape from a deadlock in the choice of arbitrators; (3) failing arbitration, endeavor to reach agreement on a unanimous recommendation

(in which the disputant states need not join); and (4) failing such agreement, submit the matter to arbitration by arbitrators which the Council itself may choose. An award or recommendation made at any of these stages becomes binding on the disputant states which have accepted the Protocol (Art. 4, par. 6.)

10. Domestic Questions. The Covenant excludes domestic matters from the Council's jurisdiction, and leaves it to the Council to say what is "domestic." In five busy years of the Council's activity, the question has arisen twice. In the Aaland Islands case, which arose before the Court was set up, the Council created a special commission of jurists to say whether the dispute involved a domestic matter. In the Tunis-Morocco nationality case between Great Britain and France, the Council asked the Permanent Court of International Justice for an advisory opinion. The Court had no difficulty in saying that contrary to the contention of France that matter was not domestic. The judges were of the unanimous opinion that this provision of the Covenant did not admit of "an extensive interpretation", and they recognized that "the question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question: it depends upon the development of international relations."

Under the new Protocol (Art. 5) the Covenant is not changed and the Council remains incompetent to recommend a settlement of any dispute which it finds to involve a domestic matter. If a state claims that a dispute in course of arbitration relates to a domestic matter, the question is to be referred to the Court and if the Court upholds the claim the arbitration will thereupon cease. Neither the arbitrators nor the Council are thereafter capable of handling the dispute. But the Protocol provides that a decision by the Council that a matter before it is domestic, or an opinion by the Court that a matter in course of arbitration is domestic, shall not prevent "consideration of the situation" created, either by the Council or by the Assembly acting under the general powers conferred by Article 11 of the Covenant where it is laid down that "any war or threat of war" is a "matter of concern to the whole League" and where it is "declared to be the friendly right of each member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever