CHAPTER V.

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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