PARTIES TO THE PROTOCOL.
The theory of the framers of the Protocol of Geneva is that it may be
signed and ratified by non-Members of the League of Nations as well as
by Members of the League.
Various words of the Protocol (_e. g._, Article 12) indicate this, the
Report to the Assembly so states,[1] and the Resolution[2] of the
Assembly recommending the Protocol for acceptance by the Members of the
League of Nations specifically says that the Protocol shall be "open
for signature by all other States" as well as by Members of the League.
Now of course all this is conclusive as to the technical question as to
whether a non-Member of the League of Nations _may in fact_ sign the
Protocol. Such a State _may_ legally sign, because the other Parties
to the Protocol invite such signature. And if any such State should
sign, and ratify, it becomes a Party to the Protocol, regardless of
logic.
Nevertheless I submit that the whole idea of the possibility of
Signatories to the Protocol who are non-Members of the League, is
fundamentally contrary to the whole principle, spirit and terms of the
Protocol itself.
In the first place, the Protocol is intended as a development of the
Covenant; the Protocol is meant to be a temporary paper; its provisions
are to be merged in the Covenant itself by amendment of that Document.
How then can a State become a party to this temporary and provisional
paper if it is not a party to the permanent and definitive document?
If we examine the detailed provisions of the Protocol, the logical
conclusion is equally certain. Surely a non-Member of the League
cannot really "make every effort" to secure "introduction into the
Covenant of amendments" (Article 1). Is this a matter for non-Members
of the League?
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Article 3 of the Protocol contemplates that the Signatories thereto
shall accede to the special protocol regarding the second paragraph of
Article 36 of the Statute of the Permanent Court. But if we turn to
the provisions regarding the Permanent Court we find that such States
as Russia and Mexico and Egypt are not entitled to accede to that
special protocol at all, before entering the League.[3] Accordingly,
if any one of these three States, non-Members of the League, should
sign and ratify the Protocol of Geneva, it could not legally carry out
the engagements of Article 3 thereof.
All the provisions of Articles 4 to 6 inclusive of the Protocol of
Geneva relate to disputes between the Signatories and contemplate the
possible submission of any such dispute to the Council or Assembly of
the League of Nations. But such submission can take place only under
the provisions of the Covenant; and under Article 17 of the Covenant a
non-Member of the League may not come within the provisions of the
Covenant except upon invitation by the Council and upon terms stated.
Without going into further detail, I repeat that the obligations
contemplated by the Protocol are, in theory, no more than
interpretations, or future elaborations, of the obligations of the
Covenant. It seems to me logically impossible to suppose that such
interpretations or amplifications may be made applicable to States
which are free from the obligations in their primary form.
If this matter is looked at realistically and concretely we find that
there is hardly any possibility of the Protocol of Geneva being signed
by any State which is a non-Member of the League. The United States
and Russia will certainly not sign; the admission of Germany and Turkey
to the League is contemplated. The only other States[4] of any
international consequence outside the {12} League are Mexico and Egypt;
and the likelihood of either of these two States becoming a party to
the Protocol of Geneva is too remote for serious consideration.
Accordingly, in the subsequent discussion, I shall assume that,
whatever may be the legal possibilities, there is no real possibility
of any State which is not a Member of the League of Nations becoming a
party to the Protocol of Geneva.
[1] Annex C, p. 156 at p. 167.
[2] Annex D, p. 210 at p. 212.
[3] Under the Resolution of the Council of May 17, 1922, any State may
accept the jurisdiction of the Permanent Court by filing a declaration
to that effect; but this is not the same thing as acceding to the
Protocol of December 16, 1920.
[4] See Membership in the League of Nations, by Manley O. Hudson, A. J.
I. L., July, 1924.
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