The Geneva Protocol

by David Hunter Miller

However, the final effect of these provisions is that with the authorization of the Council the successful party may use force to execute a judicial decree or arbitral award.

Furthermore, the Report to the Assembly says that in such a case the defeated party could not resist, and that, if it did resist, it would become an aggressor against whom all the Sanctions of the Protocol might be brought into play.

To see how this would work out, let us suppose that in an arbitration between State A and State B, State A obtained an award to the effect that State B should pay to it the sum of twenty million dollars. Thereupon State B refuses to pay the award and, notwithstanding the efforts of the Council, maintains that refusal, thereby violating its agreement in the Protocol (and in the Covenant also) to carry out any such award.

Thereupon the Council authorizes State A to use force to collect the money. It is no answer to this to say that the Council would not authorize the use of force, for we are considering what may be done, not what would be done. State A then begins to use force and, if State B resists at all, the entire machinery of the Sanctions of the Protocol can be brought into play and these include military and naval Sanctions.

Of course, such a result would be highly improbable, but I submit that it ought to be legally impossible. The provisions of the Protocol in this regard go very much farther than they ought to go, and very much farther, in my opinion, than the States of the world are now willing to go.

The case which I have supposed is one of a money judgment. A more difficult case would be one where the award was for the recovery by State A of certain territory in the possession of State B which State B thereupon refused to give up. In such a case there is more to be said for the use of force than in the other.

In any case, the refusal of a State to carry out the judicial decision or the arbitral award after solemnly agreeing to do so is a very serious breach of a treaty; but the idea of the authorization of force to execute such a decision seems to me to present a question of the very gravest character. My own view is against it. I am inclined to think that the penalty of expulsion from the League under the fourth paragraph of Article 16 of the Covenant should be the utmost permissible.

Whether this view of mine be correct or not, certainly the countries of the world are not going to accept any provision by which they will be obligated in advance to join in measures to enforce the result of an arbitration or of a litigation before the Permanent Court. Whether they will agree to a provision permitting the successful party, so to speak, to execute the decision or award on its own account is perhaps doubtful; but certainly they will go no farther, if as far; and this is one of the provisions of the Protocol which will have to be changed before the document becomes a reality.

Subject to the foregoing exceptions, the general covenant under Article 2 of the Protocol not to go to war is, in my opinion all inclusive. It obviously includes all cases where there is a dispute of international cognizance, for in such cases all parties agree upon a final and binding method of decision and agree to carry out the decision. It also includes, as pointed out previously,[[4]] all cases in which one State would seek to change by force the status quo, or to prevent by force a lawful change in the status quo.[[5]] Neither the lawful maintenance of the status quo nor its lawful change would come within the general exceptions of Article 2.

Furthermore, the covenant against war in Article 2 would also exclude the going to war about domestic questions. All that any Signatory agrees to do regarding such a question, if, when raised internationally, it is not settled by negotiation, is to discuss it before the Council or the Assembly.[[6]] A State which did that would have fulfilled all its obligations regardless of any action or inaction as to the domestic question itself; and an attack made on it by any other State would then be aggression under the terms of the Protocol. There is no exception. As the Report to the Fifth Assembly says,[[7]] "Our purpose was to make war impossible, to kill it, to annihilate it." This, if lived up to by the Parties, the paper does, as among them.