The Geneva Protocol

by David Hunter Miller

All that the Covenant did was to forbid some wars, to provide for delay in every case, and otherwise to rely wholly upon voluntary arbitration and, in cases where they could be obtained, upon unanimous recommendations of the Council. The framers of the Covenant were most careful to avoid the idea of compulsory arbitration, for all that even the unanimous recommendation of the Council could do was to prevent hostilities.

Under the "amended" Covenant, the defensive alliance of the Members of the League becomes complete. It is intended to see to it that arbitral decrees are carried out; to see to it that the status quo remains untouched, except by voluntary agreement; and to see to it that the violator is met by the combined forces of other States.

Contrast the provisions of the Covenant, which contemplate no concerted action, unless agreed to at the time, other than economic and financial pressure; and the preservation of the status quo only so far as Article 10 of the Covenant extends.

It would be unfair and untrue to call this new system a super-state, for it is nothing of the sort; but it would be in a sense untrue also to say that this new system is merely a development of the Covenant itself; it is the sort of change that one might call a development if it had taken two or three generations or a century to bring it about; but not properly to be called a development when it all comes at once.

The natural conclusion to be reached is that such a complete change cannot be realized at this time, and that is the sound conclusion. That a system of law should be built up governing the international relations of the States of the world, by which their differences should be adjusted by the orderly processes of legality, excluding as a method of adjustment the chaos of war, may be admitted. Thus far, the changes proposed by the Protocol of Geneva are desirable; the question is merely as to the length to which the countries of the world are willing to go in this direction at this time; and I include as a part of this development, the outlawry of war, the agreement that war is not to be resorted to by any State, that it should disappear from international relations, except in so far as force must necessarily remain as defence.

It is to be hoped that this part of the Protocol may stand; and it must be admitted that there is inherently and ipso facto to some extent a consecration of the legality of the status quo by the outlawry of war and by peaceful settlement of disputes by legal means.

On the other hand, various features of what I may call the defensive alliance portion of the Protocol seem to me to be impossible and at this time inadvisable. They are supposed to flow logically from the system of compulsory arbitration; and certainly the problem which they attempt to solve does follow logically from any system of compulsory arbitration and outlawry of war. If we assume war to be outlawed and a system by which there is to be a legal settlement of disputes in place of war, the question of course arises: Well, what is to happen in a given case if some State which has accepted this system and has agreed to it should refuse to abide by it, should not carry out an award or decision or should even take up arms against it, what then?

The Continental mind very logically answers this question by saying there must be a system of execution of decrees and that if you outlaw war, you must have a combination for defence. This is true from the point of view of logic; but it is not true from the point of view of life. Compulsory arbitration and outlawry of war are untried ideas, and we cannot say now, under all circumstances, what should be done in the course of their working, if they are put to work; much less can Nations now bind themselves as to a definite and complete course of action under all possible and varying future circumstances. That such a system of concerted action against aggression as is proposed by the Protocol of Geneva may perhaps in time be worked out along with the growth and development of the ideas of outlawry of war and of arbitration, may be admitted. That it can be done now is, to my mind, contrary to the realities of life and to the lessons of history.

There is another phase of this last discussion which should be particularly noticed. It is impossible for any such agreement for concerted action not to have a direct bearing upon countries which are not parties to the agreement; in other words, Russia and the United States. We must admit at least the theoretic possibility of a conflict between one of the Members of the League and one of these two Great Powers, insisting, if we will, that such a possibility is highly remote so far as the United States is concerned, and utterly unknowable so far as Russia is concerned; but none the less a possibility.

And certainly, in view of that possibility, any provisions of a document which looks toward force as a last resort of defence should, in my judgment, be drawn with the utmost care to avoid the idea of a possible conflict between the parties to the document on the one hand and an outside State on the other. Outlawry of war and arbitration are things to be agreed upon and not to be compelled against those who are unwilling to agree; for the breach of such an agreement is a much more serious and a very different thing than a refusal to arbitrate, or even than going to war when there is no agreement.