RELATIONS INTER SE OF THE SIGNATORIES TO THE PROTOCOL.
It is here assumed that only Members of the League of Nations may
become parties to the Protocol of Geneva[1]; the Protocol is a
development of the Covenant and it would, in any view, be logically
impossible for any State, not a Member of the League, to become a
Signatory to the Protocol; on the other hand, Members of the League
are, of course, not obligated to sign or to ratify the Protocol of
Geneva.
Accordingly, if the Protocol shall come into force, the Powers of the
world, from the point of view of the Protocol, will, at least
theoretically, be divided into three classes:
1. Members of the League of Nations who are parties to the
Protocol.
2. Members of the League of Nations who are not parties to the
Protocol.
3. Non-Members of the League of Nations who are not parties to
the Protocol.
From this it follows, again looking at the matter from the point of
view of the Protocol of Geneva, that the international relations of the
various countries of the world would fall into the following six
classes:
1. Relations _inter se_ of the Signatories to the Protocol.
2. Relations _inter se_ of the Members of the League not
Signatories to the Protocol.
3. Relations _inter se_ of non-Members of the League.
4. Relations of the Signatories to the Protocol with the Members
of the League not Signatories thereto.
5. Relations of Members of the League not Signatories to the
Protocol with States non-Members of the League.
6. Relations of the Members of the League Signatories to the
Protocol with States non-Members of the League.
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It is proposed in this discussion first to consider the first of the
above six classes, namely, the relations of the Signatories to the
Protocol, _inter se_; and this discussion will proceed primarily on the
assumption that the obligations of the Protocol are carried out.
In numerous places the Protocol speaks of the parties thereto as "the
signatory States," _e. g._, Articles 1, 2, 3, 8, 11, etc. It is
curious this is so in view of the meticulous insistence by the British
Dominions at the Peace Conference, on the use, throughout the text of
the Covenant generally, of the expression "Members of the League"
instead of "States Members of the League."[2]
Certainly it is contemplated that ratification of the Protocol may be
made on behalf of the British Dominions. Accordingly, I think that the
use in the Protocol of the expression "signatory States" is probably an
inadvertence, as in no proper international sense of the word are the
British Dominions States, despite the fact that they have an
international status under the League of Nations and even otherwise.[3]
The first point to be noticed is that under Article 2 of the Protocol
there is a very general and a very sweeping obligation on the part of
the Signatories not to resort to war. This is a point of the utmost
importance. The obligation goes very much farther than anything in the
Covenant; the language of this obligation will be examined in detail
hereafter.
Before coming to that, however, it is well to look at the provisions of
the Protocol regarding the settlement of international disputes. War
is one method for the settlement of such disputes, and, in order to
make effective the obligation of the Signatories not to resort to war,
substitute methods of settlement are provided.
It is very natural and proper that this should be done. A mere
obligation not to resort to war, without more, would almost imply that
disputes between the parties to the obligation should {15} find _some_
other method of settlement. For if some other method could not be
found, feelings due to the continuance of the dispute might well arouse
such passions in one country or another as to sweep away the obligation
for peace. The two questions of the ending of war and the settlement
of disputes between States are not only logically but realistically
very closely related.
Disputes between States are often regarded as comprising those that
relate to international questions and those that relate to domestic
questions, the former being divided into justiciable and
non-justiciable disputes.
I prefer, however, _for this discussion_, to classify possible
international disputes in three kinds, namely:
1. Disputes as to international questions.
2. Disputes as to domestic questions.
3. Disputes as to _status quo_.
I am aware of the fact that such classification as the foregoing is
overlapping. Disputes as to the _status quo_ will to some extent fall
within the two classes first mentioned; they may relate therefore to
questions which are international or which are domestic in their
nature. However, I think the classification is justified, at least for
reasons of convenience, and also, in my opinion, for reasons which go
very much deeper.
Let me illustrate this by reference to questions arising from
frontiers. The existence and the location of a frontier are
essentially questions of international import. The location of a
frontier may, in a given case, not only be an international question in
the sense that it should be settled internationally, but also in the
sense that it is justiciable, according to the usual idea of
justiciable questions. This would be so in a case where the location
of the frontier depended wholly upon the interpretation of a treaty
between the two neighboring States.
But it is quite possible to imagine an international question regarding
a frontier which is not in any way justiciable; such, {16} for example,
was the question as to where the frontier between Poland and Russia
should be drawn after the World War.[4] That some frontier had to be
drawn was obvious; but there was no possible legal basis for
determining _where_ it should be drawn. The question was one of
judgment, to be settled by agreement between the parties, if possible;
or otherwise, if it was to be peacefully settled, by reference to some
sort of tribunal which would decide according to principles[5] of
equity, impossible to express in any precise legal formula. In other
words, the question was an international political one.
Again, suppose that the frontier between the two States has been
settled by agreement and that there is no doubt whatever where it is.
One of the two States desires to have that frontier changed; in other
words, desires that there shall be a cession of territory. Here is a
question of the _status quo_. In a sense it may be called
international, because it relates to an international frontier; but it
not only falls wholly outside any idea of justiciable questions in the
international sense, but also outside any idea of being a political
question which any tribunal whatever could decide on _any_ basis. In
other words, it is within that class of cases of an international
nature in regard to which two States _may_, if they choose, negotiate,
but in regard to which either one of them may at its pleasure refuse
even to consider negotiations.
In any condition of international affairs which it is possible to
visualize under the present State system, this must continue to be so.
The State system presupposes necessarily the existence of States. One
of the inherent conditions of the existence of a State is its right to
the possession of its own undisputed territory as against any other
State,[6] which does not mean, I mention in passing, as against a
revolutionary movement _within_ the State; that is another story. The
putting in question of this undisputed {17} right of one State to hold
its own territory as against another State would mean the putting in
question of the existing State order as a whole.
Further, while I have included domestic questions as a separate class
of questions in the above list, I think that logically many of them
fall within the thought of questions which concern the _status quo_. I
do not dispute that these domestic questions may at times have an
international aspect; but they are questions which each State has an
absolute right under law to regulate according to its own pleasure, and
it is for this reason that they fall within the class of cases which
are, in theory, not to be questioned internationally. Of course a
State may, if it chooses, negotiate regarding them, just as it may, if
it chooses, negotiate about the cession of part of its territory. But
it may also, if it chooses, so to speak end the negotiations by
refusing to commence them at all.
However, it is proper, none the less, to consider these domestic
questions as a separate group, for the reason that there is a
possibility of development toward their international consideration
within the present State system. I shall pursue that thought further a
little later.
[1] Those who framed the Protocol have a different opinion. See the
discussion, _supra_, p. 10, _et seq._
[2] _cf._ the expression in Article 34 of the Court Statute "States or
Members of the League of Nations."
[3] The exact position of the British Dominions within the League is
not yet wholly settled. See the recent British and Irish notes
regarding the Irish Treaty, London Times, December 16 and 24, 1924.
[4] See Treaty of Versailles, Article 87, third paragraph.
[5] Such as, perhaps, the idea of self determination, the economic
situation of the inhabitants, etc.
[6] See the Declaration of the Rights and Duties of Nations adopted by
the American Institute of International Law, specially Paragraph IV, A.
J. I. L., Vol. X, pp. 212, 213.
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