Part 13 (1/2)

[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 a.s.sembly it was a.s.serted that ”no forcible invasion” is possible without a violation of Article 10 of the Covenant; but in certain circ.u.mstances war is permissible under the Covenant (Article 15, Paragraph 7); and with a permissible war, there could be a permissible invasion. See Oppenheim, 3rd edition, Vol. 1, page 739.

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

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CHAPTER XV.

THE PROTOCOL AS TO NON-SIGNATORIES.

At the beginning of this discussion[1] it was pointed out that upon the coming into force of the Protocol, there would, in theory at least, and from the point of view of its provisions, be three cla.s.ses of Powers in the world, to wit, the parties to the Protocol, the Members of the League not parties to the Protocol and the non-Members of the League, the last named of course being also not parties to the Protocol.

It should also be mentioned again that the possibility of this second cla.s.s of States, namely, the Members of the League not parties to the Protocol, is a temporary possibility only. For certainly if the Protocol comes finally into force, its provisions will in due course be embodied in the Covenant, as indeed is contemplated by Article 1 of the Protocol; and thereupon those Members of the League who have not ratified the Protocol will either become parties to the amended Covenant or will, under the provisions of Article 26 of the Covenant, cease to be Members of the League.

However, temporarily, there will doubtless be certain Members of the League of Nations who do not ratify the Protocol and the relation of these States to others during this provisional period is to be considered.

So far as concerns the relations _inter se_ of this temporary or provisional cla.s.s of States (those which remain Members of the League without ratifying the Protocol) it may be said at once that these relations, from this point of view, will continue to be governed by the Covenant and by the Covenant alone. The Protocol does not make or purport to make any change in this regard; so that, as among those States, we might envisage during this temporary period the theoretic possibility of a war not forbidden by the Covenant, just as we might envisage the possibility, during that period, of a dispute among those Powers remaining {87} unsettled. It is, I suppose, fair to add that both of these speculations are here of juristic interest only.

Similarly, the relations of non-Members of the League _inter se_ will continue, as they are now, to be governed neither by the Covenant nor by the Protocol. These States would not have bound themselves by either doc.u.ment and so far as concerns their relations with each other, neither the Covenant nor the protocol attempts to regulate them.

The only provision of either doc.u.ment which has any bearing in this regard is to be found in Article 17 of the Covenant, which says in substance that in case of a dispute between States not Members of the League, such non-Members shall be invited to become _ad hoc_ members upon conditions laid down by the Council. If they refuse, the Council, under the last paragraph of Article 17 of the Covenant, may take measures toward the prevention of hostilities; but these measures would be in the nature of good offices or mediation only and could be accepted or rejected by the two non-Members of the League as they saw fit; they could decline them wholly and go to war at their pleasure.

There is indeed one question which suggests itself to the mind under Article 17 of the Covenant concerning a dispute between two non-Members of the League. Suppose they should be both invited for the purpose of settling the dispute to become members _ad hoc_, and one of them accepted the invitation and the other refused, would the dispute then be considered as being a dispute between a Member and a non-Member?

The real answer to this question probably is that on issuing the invitation the Council would make it a condition that both parties to the dispute should accept it. The legal answer as to the possibility of the case supposed is a matter of some doubt. I incline to the view that the invitation contemplated by Article 17 of the Covenant in a case when the dispute is between two non-Members, is a joint invitation and a joint invitation only. I do not think that it is intended that a non-Member of the League may temporarily seek the protection and guarantees of the Covenant against another non-Member.

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However, the question is of interest only from the point of view of the meaning of language; if the possibility should arise, it would doubtless be taken care of by the Council.

Another and also comparatively unimportant point may be here noticed and that is in regard to the relations between the signatories to the Protocol and the Members of the League not signatory thereto, another phase of the temporary situation heretofore considered. As to this, it may be said very briefly that such relations would continue to be governed wholly by the Covenant. The Members of the League which do not ratify the Protocol could not during this temporary period be regarded as being in any way affected by what, as to them, would be in the nature of proposed amendments to the text of the Covenant itself.

These non-Signatories of the Protocol would therefore continue to look only to the Covenant for the regulation of their relations with any Member of the League. The Protocol does not contemplate a League within a League; it simply contemplates, during this temporary phase, a situation where certain Members of the League had a.s.sumed certain obligations without any constraint or effect whatever upon such Members as might not choose to a.s.sume them.

The really vital question is as to the effect of the Protocol and of the Covenant upon non-Members of the League in their relations with Signatories to the Protocol.

Even a.s.suming that the plans now proposed for the admission of Germany to the League are carried out, there will remain for a considerable period two Great Powers, the United States and Russia, outside the League; and there are two other States of occasional international importance, the admission of which to the League is not, so far as I know, presently contemplated, these being Mexico and Egypt.

Accordingly, the possible effect of the Covenant and the Protocol on non-Members of the League is one of very great consequence. It is a question which is being actively discussed in so far as it may have a bearing on the relations between Great Britain and the United States.

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It is unquestionably true that the Protocol may have a real effect on non-Members of the League. Of course there is a legal formula which correctly says that a treaty cannot bind States not parties thereto, _res inter alios acta_; but even in the strictest legal sense this formula is only part of the truth in international matters. Any one who questions this will be convinced by reading Roxburgh's International Conventions and Third States.[2] A treaty between State A and State B may harm State C or it may benefit State C, as the Treaty of Versailles benefited Denmark by the cession of Slesvig, though Denmark was a neutral and not a party to the Treaty of Peace.[3]

Let us consider the matter first from the point of view of the Covenant. There are sanctions which may be applied under the Covenant and the application of these sanctions might affect a non-Member of the League either because they were applied against that particular non-Member or because they were applied against some other State.