The Geneva Protocol

by David Hunter Miller

This recommendation by the Assembly, however, and these signatures, do not, as to any signatories, bring into force the Protocol, which, by its terms, must be ratified, the ratifications to be deposited at the Secretariat of the League at Geneva.

The first preliminary to the coming into force of the Protocol is its formal ratification by at least 13 Members of the League; and these ratifications must include those of at least three of the four Great Powers which are Members—Great Britain, France, Italy and Japan. But even these ratifications do not bring the Protocol into force. The absence of such ratifications by May 1st, 1925, may result in the postponement of the Disarmament Conference from the date provisionally fixed, June 15th, 1925. But this is a matter which I shall discuss later.[[2]]

If and when the ratifications above mentioned are deposited, a procès-verbal to that effect is drawn up; but this procès-verbal does not, as is usual when a procès-verbal of the deposit of ratifications is drafted, bring into force the Protocol. The date of the coming into force of the Protocol is stated as follows (Article 21):

"as soon as the plan for the reduction of armaments has been adopted by the Conference provided for in Article 17."

In other words, the Protocol will not bind any State that ratifies it unless and until the Conference for the Reduction of Armaments adopts a Plan for such reduction. If such Conference is held and if such Plan is adopted, the Protocol will, on the date of the adoption of the Plan, come into force as among the States which have then ratified it. Such is the effect of the provisions of Article 21 of the Protocol.

Other States, which have not at the date mentioned ratified the Protocol, may thereafter accede to it, as is provided by the third paragraph of Article 3, and of course the obligations of these States will commence with the date of such accession.

Furthermore, provision is made[[3]] by which the Protocol, even after coming into force, may become, as it says, "null and void." It might well be argued that the becoming "null and void" of the Protocol related back to the date when it came into force.

However this may be, it is important to notice here the provisions in this regard. The Conference for the Reduction of Armaments has, under the hypothesis, adopted a Plan for such reduction. That Conference has also to fix the time within which that Plan is to be carried out. The Council of the League is then to consider whether the Plan for the Reduction of Armaments adopted by the Conference has or has not been carried out within that fixed period. Presumably such consideration by the Council of the League would be had immediately after the expiration of the period fixed by the Conference; the Council, if it then considers that the Plan for the Reduction of Armaments has not been carried out, being limited, however, in such consideration to "the grounds" (French text—"conditions") laid down by the Conference in that respect, then declares that the Plan has not been carried out and the Protocol becomes "null and void."

Accordingly, the Protocol can come into force as a legal obligation only on the date of the adoption by the Conference of the Plan for the Reduction of Armaments; and from that date till the date when the Council of the League of Nations declares that the Plan has or has not been carried out, it may be said that the Protocol is only provisionally in force; it is subject to avoidance.

The question here arises as to what is meant by the language of the Protocol when it speaks of the Plan for the Reduction of Armaments being "carried out," or, in the French text, "execute." This is a question rather difficult of answer. Certainly the expression can hardly refer to the actual physical carrying out of such a Plan; for that might require a very long period. It seems to me that the expression envisages the formalities requisite for such a Plan. The Conference for the Reduction of Armaments which is to draw up a Plan for such reduction is to draw up, in other words, a Treaty or Treaties between the parties to bring about such reduction. Such Treaty, or such Treaties, will of course be voluntary agreements and will of course require ratification subsequent to the holding of the Conference itself. Accordingly, it is my view that the "carrying out" of the Plan for the Reduction of Armaments adopted by the Conference means in the Protocol the ratification of such Plan, that is to say, the transformation of the Plan into a binding agreement. Of course, the precise terms as to ratification, the number of ratifications required, the time of the deposit of ratifications and all such other formalities are for the Conference to decide; the reference here, however, is to those provisions as they may be drafted.