The Geneva Protocol

by David Hunter Miller

CHAPTER XIX.

INTERPRETATION OF THE PROTOCOL.

Article 20 of the Protocol provides that any dispute as to its interpretation shall be submitted to the Permanent Court of International Justice. No provision similar to this is to be found in the Covenant.

The importance of this provision does not consist chiefly in its application to the Protocol. Even if and when the Protocol comes into effect the provision in itself will not be very important, because the Protocol is only a temporary document to be transformed into amendments to the Covenant. If these amendments include the incorporation into the Covenant of a similar provision to the effect that any dispute as to its interpretation shall be submitted to the Permanent Court of International Justice, such an amendment will be of supreme importance. With the Protocol embodied in the Covenant, the latter document will be by far the most important international treaty in existence. If all questions of its interpretation are to be submitted to the Permanent Court, that tribunal will have judicial powers of the most far-reaching character.

It is true that the extension of the powers of the Court so that they would include the interpretation of the Covenant is logical in so far as it relates to the settlement of disputes between Members of the League or other States; but the Covenant contains many other provisions bearing only indirectly upon such disputes. The Covenant provides for the Council and the Assembly and for their meetings, their powers and procedure, powers which under Articles 11 and 19 of the Covenant, for example, are expressed in the most general terms. The Covenant provides for the mandate system for certain territories and for the supervision by the League of numerous international agreements and bureaus of all sorts. Now, in most of these matters the method of interpreting the Covenant has been by consent. Members of the Council or, as the case may be, of the Assembly agree on what they may do and proceed accordingly. If differences of view as to the interpretation of the Covenant in this regard are to be submitted to the Permanent Court, that tribunal would have in some respects a power superior to that of either the Council or the Assembly.

Let me give an instance. The fifth paragraph of Article 4 of the Covenant provides as follows:

"Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a Member at any meeting of the Council during the consideration of matters specially affecting the interest of that Member of the League."

This paragraph gave rise to a difference of opinion as to what States are entitled to sit on the Council when it considered questions arising under Article 213 of the Treaty of Versailles and similar Articles in the other Peace Treaties relating to the investigations by the Council of the armaments of Germany and other countries. When the question came up, the Council took the opinion of Jurists on it and reached a common sense result.[[1]] Under a general clause giving jurisdiction to the Court in all matters of interpretation,[[2]] it would seem that any Member of the League could require a question as to the composition of the Council on a particular occasion to be decided by the Court before the Council could meet. It is obvious that any such method of regulating procedure would give rise to impossibilities which should be avoided.

[[1]] See League of Nations Official Journal, July, 1924, p. 922 and Cmd. 2287 (Miscellaneous No. 20, 1924), p. 16.

[[2]] Many people suppose that the Supreme Court of the United States has such general powers regarding our Constitution, but this is not so. Read, for example, Article I, Section 5 of the Constitution; and see Massachusetts v. Melton, 262 U. S., 447.