THE COMING INTO FORCE OF THE PROTOCOL.
The Protocol is dated at Geneva on October 2nd, 1924. It is drawn up
in both French and English and the text of both languages is authentic.
It is written in a single original. It was recommended to the Members
of the League for acceptance by a resolution[1] unanimously passed in
the Assembly by the affirmative vote of 48 Members of the League, and
it has been signed by the representatives of various countries.
This recommendation by the Assembly, however, and these signatures, do
not, as to any signatories, bring into force the Protocol, which, by
its terms, must be ratified, the ratifications to be deposited at the
Secretariat of the League at Geneva.
The first preliminary to the coming into force of the Protocol is its
formal ratification by at least 13 Members of the League; and these
ratifications must include those of at least three of the four Great
Powers which are Members--Great Britain, France, Italy and Japan. But
even these ratifications do not bring the Protocol into force. The
absence of such ratifications by May 1st, 1925, _may_ result in the
postponement of the Disarmament Conference from the date provisionally
fixed, June 15th, 1925. But this is a matter which I shall discuss
later.[2]
If and when the ratifications above mentioned are deposited, a
procès-verbal to that effect is drawn up; but this procès-verbal does
not, as is usual when a procès-verbal of the deposit of ratifications
is drafted, bring into force the Protocol. The date of the coming into
force of the Protocol is stated as follows (Article 21):
"as soon as the plan for the reduction of armaments
has been adopted by the Conference provided for in
Article 17."
In other words, the Protocol will not bind any State that {6} ratifies
it unless and until the Conference for the Reduction of Armaments
adopts a Plan for such reduction. _If_ such Conference is held and
_if_ such Plan is adopted, the Protocol will, on the date of the
adoption of the Plan, come into force as among the States which have
then ratified it. Such is the effect of the provisions of Article 21
of the Protocol.
Other States, which have not at the date mentioned ratified the
Protocol, may thereafter accede to it, as is provided by the third
paragraph of Article 3, and of course the obligations of these States
will commence with the date of such accession.
Furthermore, provision is made[3] by which the Protocol, even after
coming into force, may become, as it says, "null and void." It might
well be argued that the becoming "null and void" of the Protocol
related back to the date when it came into force.
However this may be, it is important to notice here the provisions in
this regard. The Conference for the Reduction of Armaments has, under
the hypothesis, adopted a Plan for such reduction. That Conference has
also to fix the time within which that Plan is to be carried out. The
Council of the League is then to consider whether the Plan for the
Reduction of Armaments adopted by the Conference has or has not been
carried out within that fixed period. Presumably such consideration by
the Council of the League would be had immediately after the expiration
of the period fixed by the Conference; the Council, if it then
considers that the Plan for the Reduction of Armaments has not been
carried out, being limited, however, in such consideration to "the
grounds" (French text--"conditions") laid down by the Conference in
that respect, then declares that the Plan has not been carried out and
the Protocol becomes "null and void."
Accordingly, the Protocol can come into force as a legal obligation
only on the date of the adoption by the Conference of the Plan for the
Reduction of Armaments; and from that date till the date when the
Council of the League of Nations declares that the Plan has or has not
been carried out, it may be said {7} that the Protocol is only
_provisionally_ in force; it is subject to avoidance.
The question here arises as to what is meant by the language of the
Protocol when it speaks of the Plan for the Reduction of Armaments
being "carried out," or, in the French text, "execute." This is a
question rather difficult of answer. Certainly the expression can
hardly refer to the actual _physical_ carrying out of such a Plan; for
that might require a very long period. It seems to me that the
expression envisages the formalities requisite for such a Plan. The
Conference for the Reduction of Armaments which is to draw up a Plan
for such reduction is to draw up, in other words, a Treaty or Treaties
between the parties to bring about such reduction. Such Treaty, or
such Treaties, will of course be voluntary agreements and will of
course require ratification subsequent to the holding of the Conference
itself. Accordingly, it is my view that the "carrying out" of the Plan
for the Reduction of Armaments adopted by the Conference means in the
Protocol the ratification of such Plan, that is to say, the
transformation of the Plan into a binding agreement. Of course, the
precise terms as to ratification, the number of ratifications required,
the time of the deposit of ratifications and all such other formalities
are for the Conference to decide; the reference here, however, is to
those provisions as they may be drafted.
Accordingly, the "grounds" to be laid down by the Conference for the
Reduction of Armaments, on which it may be declared by the Council that
the Plan for the Reduction of Armaments has not been carried out, will
mean, I take it, the laying down of some requirement that the Plan for
the Reduction of Armaments be formally ratified within a time stated by
a certain number of States, including certain named States; in default
whereof, the Council may and will declare the Plan for the Reduction of
Armaments not to have been carried out.
It is to be observed that the Protocol in the last paragraph of Article
21 speaks of the possibility of a Signatory failing to "comply" with
the reduction of armaments Plan "after the expiration of the period
fixed by the Conference."
{8}
This refers, I think, to a failure by a particular Signatory to ratify
the Plan for the Reduction of Armaments, the effect being, so far as
Article 21 is concerned, that such Signatory would be bound by the
terms of the Protocol but could not benefit by them.
The language of this last paragraph of Article 21 is, however, broad
enough to include the case of a State which had ratified the Treaty
containing the Plan for the Reduction of Armaments and had then failed
to carry out its agreement regarding such reduction.
It will thus be seen that the Protocol of Geneva is wholly dependent
upon the success of the Conference for the Reduction of Armaments; and
the success of that Conference depends wholly upon the voluntary
agreement then made. There is nothing in the Protocol which requires
the States represented at the Conference to agree to any particular
plan for the reduction of armaments; the assent which they may give to
such plan must be voluntary.
The question of the proceedings of the Disarmament Conference will be
discussed hereafter.[4]
However, there is one point that may be mentioned here. The Plan for
the Reduction of Armaments drawn up by the Conference or, in other
words, the Treaty or Treaties drawn up by that Conference, will not be
perpetual in their operation. No plan for disarmament, no treaty
regarding reduction of armaments could possibly be perpetual in its
detailed provisions. Not only does this follow from the nature of such
an agreement, but it is explicitly laid down in Article 8 of the
Covenant that any such Plan is to be subject to reconsideration and
revision at least every ten years. Accordingly, the Treaty or Treaties
for the Reduction of Armaments to be drawn up by the Conference will be
in this sense temporary, that they will have a fixed limit of time for
their operation, precisely as the Treaty Limiting Naval Armament drawn
up at the Washington Conference may be terminated in 1936.[5]
{9}
There is no provision made in the Protocol of Geneva for the withdrawal
of any State from its obligations, assuming that those obligations come
finally into force. On its face the Protocol is therefore perpetual;
but it is not really so. The obligations of the Protocol are so
intertwined with the obligations of the Covenant that there is no doubt
in my mind that the withdrawal from the League by a Member thereof
(when bound by the Protocol) would release that State from the
obligations of the Protocol as well as from the obligations of the
Covenant.
The obligations of the Covenant are terminable by any Member of the
League, as to itself, on two years notice. The obligations of the
Protocol go much farther than the obligations of the Covenant. The
obligations of the Protocol are, by its terms, later to be merged in
the Covenant itself, without in any way impairing the withdrawal clause
of the latter document.
So clearly it is not to be supposed that the obligations of the
Protocol of Geneva, as to a Member of the League, are eternal. If the
lesser obligations of the Covenant end as to a particular Member of the
League upon withdrawal, surely the greater obligations of the Protocol,
as to that League Member, end also.
The foregoing shows the fallacy, as a matter of logic, of the idea that
a non-Member of the League may be bound by the Protocol and yet not be
a party to the Covenant; for it would mean that a Signatory might be
forever bound to a subsidiary instrument (the Protocol) although the
primary instrument (the Covenant) was terminable; but I discuss this
more at length later.[6]
Furthermore, it should be repeated that the Protocol is intended to be
only a temporary document in the sense that, if it comes finally into
force, it is contemplated that the Covenant will be amended
substantially in accordance with the provisions of the Protocol.
[1] Annex D, p. 210 at p. 211, _et seq._
[2] p. 97, _et seq._ It is settled that that Conference will be
postponed.
[3] Article 21.
[4] _Infra_, p. 97, _et seq._
[5] Article XXIII. See Conference on the Limitation of Armament,
Government Printing Office, 1922, p. 1603.
[6] p. 10, _et seq._
{10}