The Geneva Protocol Part 12

"The Members of the League "In accordance with paragraph agree, further, that they will 3 of Article 16 of the mutually support one another Covenant the signatory States in the financial and economic give a joint and several measures which are taken undertaking to come to the under this Article, in order to a.s.sistance of the State attacked minimize the loss and or threatened, and to give each inconvenience resulting from the other mutual support by means above measures, and that they of facilities and reciprocal will mutually support one exchanges as regards the another in resisting any special provision of raw materials and measures aimed at one of their supplies of every kind, openings number by the Covenant-breaking of credits, transport and transit, State, and that they and for this purpose to take all will take the necessary steps to measures in their power to afford pa.s.sage through their preserve the safety of territory to the forces of any communications by land and by sea of the Members of the League of the attacked or threatened which are co-operating to State."

protect the covenants of the League."

There are certain other provisions of the Protocol regarding sanctions which should be mentioned at least for the sake of completeness.

It is the Council[10] which declares that sanctions are at an end and that "normal conditions be re-established" (Article 14).

To the "extreme limit of its capacity," all costs of an aggression are to be borne by the aggressor (Article 15). The language concerning the extent of the liability involved is very sweeping, going much farther than the categories of damage mentioned in Annex I of the Reparation clauses of the Treaty of Versailles.

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The plans to be drawn up by the council for the detailed application of the economic and financial sanctions are to be "communicated" to the Signatories--in other words, they are advisory, not binding (Article 12).

Here it should be said that the final words of this Article 12 mention "the Members of the League and the other signatory States." These words imply the possibility of States signatory to the Protocol which are non-Members of the League. As pointed out above,[11] no such possibility exists, in my opinion. Even if such a theoretic possibility existed, it would be absurd to suppose that any State would sign the Protocol, with obligations going beyond those of the Covenant, while still being outside the privileges of the Covenant; however, the question is of no special importance here.

The main sanctions of the Protocol, _as among the Parties to the Protocol_, may be thus summed up: a war of aggression is an international crime; a Signatory which either avows itself an aggressor or refuses an armistice after hostilities have broken out, commits this crime; and accordingly the other Signatories, upon the call of the Council, unite in the defence of the Signatory which is not the aggressor, according to their respective capacities; which means that if and to the extent that they are able to do so, they contribute by force to the defence against the aggression, as well as by economic and financial measures.

But in view of the other agreements of the Protocol regarding pacific settlement of disputes and its covenants against war, the chief sanctions of the Protocol would never come into play against a Signatory, unless that State finally decided to defy the public opinion of the world and to make into a sc.r.a.p of paper its own solemn written pledge.

[1] Annex C, p. 156 at p. 196.

[2] If there were two parties to the conflict, either one or both might be aggressor. See Article 11 of the Protocol.

[3] I think this means upon _all_ the Signatories. The system of the Protocol is flexible as to the _extent_ to which the Sanctions are to be applied by a particular signatory; but all Signatories come under the same legal obligation.

[4] On October 4, 1921. Official Journal, October, 1921, Special Supplement No. 6, p. 24.

[5] See League of Nations Official Journal, October, 1921, Special Supplement No. 6, pp. 14-15, 24-26, also October, 1924, Special Supplement No. 21, p. 9.

[6] Except as to the possibilities of Article 10 of the Covenant, as to which see _infra_, p. 84, _et seq._

[7] The debates in the Third Committee of the Fifth a.s.sembly are of interest in this regard.

[8] The French is "engagements."

[9] Annex C, p. 156 at p. 197, _et seq._

[10] by unanimous vote.

[11] p. 10, _et seq._

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CHAPTER XIII.

SEPARATE DEFENSIVE AGREEMENTS.

The general character of the Protocol of Geneva is such that separate defensive agreements between the parties to it lose substantially all of their former importance. The Protocol itself is, among other things, a general defensive agreement; and under such an agreement, faithfully lived up to, substantially the only part that could be played by separate agreements would be to make more detailed and more regional, perhaps, in their obligation and execution, the general obligations binding all signatories.

The possibility of these separate defensive agreements is mentioned in Article 13 of the Protocol. It is laid down that they must be public; furthermore, action under them cannot take place until the Council "has called upon the signatory States to apply sanctions." Finally, there is a most significant provision which ill.u.s.trates the relatively unimportant character of such separate agreements under the Protocol--any such agreement must remain open to all Members of the League which desire to accede thereto.

This last mentioned provision takes away every possible idea that such defensive agreements under the Protocol could be anything like the former "defensive" alliances. Obviously, a defensive agreement which is open to any Member of the League is merely a part of the general agreement; particularly is this so when the performance of the agreement depends and is conditioned upon the request of the Council.

Indeed, in view of the other provisions of the Protocol, it is very difficult to see any substantial difference between these so-called defensive agreements and the undertakings[1] which, by Article 13, States which are signatory to the Protocol may voluntarily give to the Council regarding the armed forces which might be used in the application of the sanctions. I say that the {83} two things are similar for this reason: if in a given case the Council decides that the military sanctions are to be applied any Signatory is then ent.i.tled, at least if it chooses, to use the whole of its armed forces against the aggressor. This being so, the use of a specified portion of these forces in any given case comes to just the same thing whether it arises from the general agreement to apply sanctions or from a particular undertaking with the Council or from a particular agreement with another Signatory.

We may go to this length in thinking of these defensive agreements hereafter; in view of the fact that they must be public that any Member of the League may adhere to them and that they cannot be performed until the Council of the League says so, there could be in such a paper no effective provision which would go beyond the engagements under the Protocol itself.

Article 13 of the Protocol says that these separate agreements may be acceded to by any Member of the League of Nations. This language would include a Member of the League which was not a signatory of the Protocol. Under Article 13, it is only the States signatory to the Protocol which may make separate agreements. The point is doubtless of no real importance; but it cannot be intended that these separate agreements, if any be made, shall be acceded to by States other than those bound by the Protocol, for any such separate agreement would be in reality a paper subsidiary to the Protocol.

[1] Whether these "undertakings" would have the same legal quality as a treaty is at least doubtful.

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CHAPTER XIV.

THE PROTOCOL AND ARTICLE TEN OF THE COVENANT.

It is to be remembered that in this portion of the discussion consideration is given only to the relations _inter se_ of the Signatories to the Protocol.

As among these States the famous Article 10 of the Covenant will have lost all its significance.

Article 10 of the Covenant has two distinct aspects. The more important of these is the undertaking by the Members of the League to "preserve as against external aggression the territorial integrity and existing political independence" of other Members. Because of these guarantees Article 10 was objected to in this country and in Canada chiefly for the reason that it might involve the use of armed force by the guarantor States. The further idea that this use of armed force would necessarily come into play upon a decision of the Council of the League of Nations was largely fallacious and was practically removed by the resolution of the a.s.sembly regarding Article 10.[1]

The other side of these guarantees of Article 10, which has perhaps not always been very well appreciated, is that the obligation of a guarantor State under Article 10 _may_ be very limited indeed and may even be nothing at all, even in the case of a wilful attack. Article 10 goes only to two things, territorial integrity and political independence. If an aggressor State respects these two things it can do otherwise what it chooses, so far as the guarantor States are concerned. For example, under Article 10 alone _and taking nothing else into consideration_, one State could attack another, destroy every building in the country, blow up every mine, and lay waste every field, and then retire, saying: The territorial integrity of the country attacked is now preserved, and its remaining inhabitants retain their full political independence. Under such circ.u.mstances, no guarantor State under Article 10 of the Covenant of the League of Nations would be obliged to do anything.

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Now I say that under the Protocol any significance of Article 10, as among the parties to the Protocol, has disappeared; clearly this is so.

Article 10, so to speak, waited, or at least might wait till the end of the war.[2] If the aggressor State did not in the Treaty of Peace or otherwise annex any territory and left the attacked State independent, Article 10 did nothing at all.[3] But the Protocol commences to work even before any war commences and certainly at its commencement; there must be no attack.[4] It is not a question of the final result of the attack; it is merely a question of the existence of the aggression; and it is _then_ that all the other parties to the Protocol come to the defence of the attacked State. The lesser Article 10 of the Covenant is swallowed up in the greater Protocol.

The other aspect of Article 10 of the Covenant was the undertaking by each Member of the League to _respect_ the territorial integrity and political independence of the other Members. This, of course, is an undertaking in regard only to the acts of the State giving it. Such a self-denying clause would be implied in the Covenant if it were not expressed and equally, of course, it is inherent in the Protocol.

Indeed, in the Protocol it was thought necessary to insert a provision regarding the political independence and territorial integrity, not of the attacked State but of the aggressor. All that is left now of Article 10, so far as the signatories to the Protocol _inter se_ are concerned, is to be found in the second paragraph of Article 15 of the Protocol, which says that the territorial integrity and the political independence of the aggressor State shall not be affected by the application of the sanctions of the Protocol.

A development of the Covenant by which Article 10 becomes unimportant, except as a measure of protection _for_ an aggressor, is perhaps the most remarkable and unforeseen of all possible developments.