The Geneva Protocol

by David Hunter Miller

"(a.) To consider, in view of possible amendments, the articles in the Covenant relating to the settlement of disputes;

"(b.) To examine within what limits the terms of article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice might be rendered more precise, and thereby facilitate the more general acceptance of the clause;

"and thus strengthen the solidarity and security of the nations of the world by settling by pacific means all disputes which may arise between States."

28. The British Delegation commenced their labours by considering the second of these two tasks, as it was a British suggestion emanating from the Prime Minister himself. The question of the acceptance by His Majesty's Government of the principle of compulsory arbitration for legal disputes, as provided in the optional clause referred to in article 36, paragraph 2, of the Statute establishing the Permanent Court of International Justice, had been examined in London before the meeting of the Assembly. This examination had shown so clearly the difficulties which might arise in connection with disputes with neutral Powers arising out of British naval action in time of war, that the limitation of the acceptance by his Majesty's Government of the optional clause by the exclusion of disputes arising out of British belligerent action at sea was suggested. To achieve this it was proposed that His Majesty's Government should make a reservation as to disputes arising out of action taken in conformity with the Covenant, or at the request, or with the approval, of the Council of the League.

29. The suggestion was accepted by the British Delegation. As however, the question was clearly one which affected the Empire as a whole, the Dominion and Indian Delegations were especially consulted in regard to it. The position as it appeared to the British Delegation was fully explained to them, and it was understood that they would telegraph to their respective Governments, making clear the nature of the reservation proposed.

30. The general discussion by the First Committee of the subject of the acceptance of the compulsory jurisdiction of the Permanent Court of International Justice took place at the third plenary meeting on the 11th September. The British Delegate reminded the Committee that the views of His Majesty's Government had already been explained in the Assembly in regard to the optional clause. The Prime Minister had then stated that the British Government wished to sign a clause of this kind, subject to its being clearly drafted. The British Delegate proceeded to discuss the position of the British Empire supposing that it accepted the compulsory jurisdiction of the Court, and was then forced, in support of the Covenant, to go to war at sea. Sea warfare, he said, inevitably brought a belligerent into sharp conflict with the nationals of foreign Powers carrying on trade with the enemy State. The British Empire might therefore find itself forced to support before the International Court the legality of action taken at the request of the League itself. The British Delegation therefore asked the Committee to consider whether it would be possible, either by amendment of article 36, paragraph 2, of the Statute of the Court or by the admission of a reservation acceptable to other Members of the League, to exclude from the acceptance of that clause disputes which arose out of action taken, either in accordance with the Covenant, or at the request, or with the sanction, of the Council of the League.

31. The French Delegation were content with the idea of such a reservation, and both the Belgian and Brazilian Delegations stated that they had no objection to it. The delegate of Brazil, however, said he would prefer to proceed by way of a reservation rather than by any modification of the text. Though the representatives of the Netherlands and of Sweden were slightly more critical, it became apparent that no real objection would be raised to the British reservation.

32. The Belgian Delegate suggested even going further still and excluding, when accepting the optional clause, the whole of sub-heading (b), which relates to questions of international law. The effect of this would be to exclude all questions of international law where that law has not yet been codified, as where it has been codified the dispute becomes one of the interpretation of a Treaty. This, the British Delegation thought, would be going too far. It would deprive the International Court of the power to build up a case law in the international field. It would, moreover, have gone further than the Delegation felt necessary, because it was only in the field of established international law, where there are two distinct schools of thought—the continental and the Anglo-Saxon—that the difficulties referred to by the British Delegate would arise.

33. As regards the question of amendments to the Covenant, the French representative did not, during the general discussion in a plenary meeting of the First Committee, specify the nature of the amendments suggested by the French Delegation. He contented himself with drawing attention to three points. The first was the last sentence of article 13 of the Covenant, which provides that in the event of any failure to carry out an arbitration award, the Council shall propose what steps shall be taken to give effect thereto. This the French Delegation regarded as inadequate. The second was the provision of article 15 by which, if the Council cannot reach a unanimous decision, the parties to a dispute which is submitted to the Council recover their liberty of action. Here, he said, was a gap in the Covenant which must be filled. Was the position to be perpetuated, he asked, by which any one member of the Council could completely prevent a peaceful settlement of a dispute? The third was paragraph 8 of article 15, which provides that in matters within the domestic jurisdiction of a State the Council can make no recommendation. The French Delegation asked the Committee to consider whether it would not be possible to discover a method of friendly conciliation over matters relating to domestic jurisdiction.