The Geneva Protocol

by David Hunter Miller

In other words, war is not like a litigation which ends in the settlement of a particular dispute. Any war, in its settlement, goes far beyond the dispute which brought it about; every war opens up every possible ambition and desire of the victor.[[6]] Did the World War end merely in deciding the question about the rights of Austria and Serbia in connection with the murder of the Archduke? Where was the fate of the German colonies decided—in East Africa and in the Pacific, or on the Western Front?

This whole question is of vital importance in connection with the Protocol of Geneva. If that Protocol comes into force and is accepted by Germany, by Austria, by Hungary and by Bulgaria, it will have this effect at least; it will change what I may call the status of the status quo in regard to these countries to this extent, that in lieu of that status quo being one imposed by force, it will have become one agreed to, at least to the point that it is agreed that the status quo may not be changed by war but only by agreement.[[7]] As a practical example, it will mean, as we now see, that the German effort to regain some of her lost colonies under the mandate system, will again be an effort of negotiation[[8]] and not an effort of force.

All that the Covenant or the Protocol of Geneva attempts to do about the status quo is to say that frontiers shall not be changed as a result of aggression. Indeed, the Protocol[[9]] protects even an aggressor against loss of territory or of independence as a penalty for its aggression; discussion, leading up perhaps to peaceful agreement but to nothing else, is permitted by Articles 11 and 19 of the Covenant, but that is all.

My view is that these provisions are sound and that they should not be extended.

In saying, as I did, that the possibility of change in the status quo is along only two lines, the line of agreement and the line of war, I did not lose sight of the proposals made in various forms that there should be some method under the League of Nations or otherwise by which a tribunal of some sort would be empowered to make such changes from time to time. Most of these proposals envisage plebiscites in one form or another.

These proposals by their advocates are thought to have the advantage of adaptability to changing conditions and to be more conformable to the theory of the consent of the governed as a basis of Government.[[10]]

Of course, changes of frontiers made by any form of tribunal would in a sense be changes of frontiers made by agreement among the parties; for there would be necessarily an agreement in advance setting up such a tribunal and engaging to conform to its conclusions.

It may perhaps be imagined that as between two particular countries some such arrangement is possible along limited lines and relating to a particular area or areas. I doubt even this possibility; but certainly no general agreement in accord with such theories is possible and in my judgment it would be highly undesirable if it were possible.

A tribunal which was charged with the duty of determining changes in frontiers would clearly be a superstate, full-fledged, and in any sense of that much abused term. Obviously, a change of frontier, if it went far enough, might result in the substantial, or even the literal, disappearance of one state by its incorporation within the territories of another. It is inconceivable that any country would agree to such a proposition. Even if it were limited very strictly, it would present enormous difficulties and would certainly arouse fierce passions, as is well illustrated by discussion regarding the tribunal which is now sitting to consider the frontier between Northern and Southern Ireland.