The Geneva Protocol

by David Hunter Miller

CHAPTER XIV.

THE PROTOCOL AND ARTICLE TEN OF THE COVENANT.

It is to be remembered that in this portion of the discussion consideration is given only to the relations inter se of the Signatories to the Protocol.

As among these States the famous Article 10 of the Covenant will have lost all its significance.

Article 10 of the Covenant has two distinct aspects. The more important of these is the undertaking by the Members of the League to "preserve as against external aggression the territorial integrity and existing political independence" of other Members. Because of these guarantees Article 10 was objected to in this country and in Canada chiefly for the reason that it might involve the use of armed force by the guarantor States. The further idea that this use of armed force would necessarily come into play upon a decision of the Council of the League of Nations was largely fallacious and was practically removed by the resolution of the Assembly regarding Article 10.[[1]]

The other side of these guarantees of Article 10, which has perhaps not always been very well appreciated, is that the obligation of a guarantor State under Article 10 may be very limited indeed and may even be nothing at all, even in the case of a wilful attack. Article 10 goes only to two things, territorial integrity and political independence. If an aggressor State respects these two things it can do otherwise what it chooses, so far as the guarantor States are concerned. For example, under Article 10 alone and taking nothing else into consideration, one State could attack another, destroy every building in the country, blow up every mine, and lay waste every field, and then retire, saying: The territorial integrity of the country attacked is now preserved, and its remaining inhabitants retain their full political independence. Under such circumstances, no guarantor State under Article 10 of the Covenant of the League of Nations would be obliged to do anything.

Now I say that under the Protocol any significance of Article 10, as among the parties to the Protocol, has disappeared; clearly this is so. Article 10, so to speak, waited, or at least might wait till the end of the war.[[2]] If the aggressor State did not in the Treaty of Peace or otherwise annex any territory and left the attacked State independent, Article 10 did nothing at all.[[3]] But the Protocol commences to work even before any war commences and certainly at its commencement; there must be no attack.[[4]] It is not a question of the final result of the attack; it is merely a question of the existence of the aggression; and it is then that all the other parties to the Protocol come to the defence of the attacked State. The lesser Article 10 of the Covenant is swallowed up in the greater Protocol.

The other aspect of Article 10 of the Covenant was the undertaking by each Member of the League to respect the territorial integrity and political independence of the other Members. This, of course, is an undertaking in regard only to the acts of the State giving it. Such a self-denying clause would be implied in the Covenant if it were not expressed and equally, of course, it is inherent in the Protocol.

Indeed, in the Protocol it was thought necessary to insert a provision regarding the political independence and territorial integrity, not of the attacked State but of the aggressor. All that is left now of Article 10, so far as the signatories to the Protocol inter se are concerned, is to be found in the second paragraph of Article 15 of the Protocol, which says that the territorial integrity and the political independence of the aggressor State shall not be affected by the application of the sanctions of the Protocol.

A development of the Covenant by which Article 10 becomes unimportant, except as a measure of protection for an aggressor, is perhaps the most remarkable and unforeseen of all possible developments.

[[1]] September 25, 1923. Technically, the resolution was not adopted, the vote not being unanimous, 29 in favor, one, Persia, opposed, and 22 absent or abstaining. League of Nations Official Journal, October, 1923, Special Supplement No. 11, p. 34.

[[2]] i. e., so far as the Guarantor States are concerned.

[[3]] In the debates of the First Committee of the Fourth Assembly it was asserted that "no forcible invasion" is possible without a violation of Article 10 of the Covenant; but in certain circumstances war is permissible under the Covenant (Article 15, Paragraph 7); and with a permissible war, there could be a permissible invasion. See Oppenheim,

[[4]] i. e., no aggression, in the sense intended by the Protocol.