POINTS OF APPROACH.
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 {4} 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._
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