The Geneva Protocol

by David Hunter Miller

ARTICLE 15 (first paragraph). "If there should arise between the Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof."

Looking at these provisions in their entirety, it will be seen that the engagements taken by the Members of the League relate to "any dispute likely to lead to a rupture." This is the language of both Articles 12 and 15. We may say that this means any dispute whatever, any serious dispute from the point of view of international peace. We may lay aside trifling disputes which cannot lead to serious differences between States, whether or not they drag on through years of diplomatic negotiation. Accordingly, we may say that the Covenant in these provisions covers any international dispute whatever as to international questions in the sense above mentioned.

Further examining the provisions above quoted, we see that the Members of the League agree in every such possible case to do one of three things: they agree to submit all disputes either (a) to arbitration or (b) to judicial settlement or (c) to the Council. They do not agree to submit any particular case or any particular class of cases to arbitration; they do not agree to submit any particular case or any particular class of cases to judicial settlement; but they do specifically agree that all cases that are not submitted to the one or to the other, go to the Council. The effect of such submission to the Council will be discussed hereafter; at the moment it is only necessary to point out that under these provisions the submission to the Council is obligatory. That submission must, under Article 15, take place, in the absence of submission to arbitration or to the Court. But the submission to arbitrators or to the Court is voluntary.

The first change made in this scheme of the Covenant is that Parties to the Protocol agree to accept the so-called "compulsory" jurisdiction of the Permanent Court of International Justice in the cases mentioned in paragraph 2 of Article 36 of the Statute of the Court. Thus, in such cases the dispute between the Parties would go, as a matter of right, at the demand of either one of them, to the Court, where it would be finally determined. To that extent the jurisdiction of the Council is lessened.

Under the Protocol, this acceptance of the so-called compulsory jurisdiction of the Permanent Court of International Justice is to take place by the signatory States within a month after the coming into force of the Protocol, which, as we have seen, would mean within a month after the adoption by the Conference on Reduction of Armaments of the plan for such reduction.

The Parties to the Protocol thus agree to accept this so-called compulsory jurisdiction of the Permanent Court; but it is provided that they may do so with appropriate reservations.

Accordingly, it is desirable to consider summarily just what this so-called compulsory jurisdiction of the Permanent Court of International Justice is.

All that the word "compulsory" in this connection means is "agreed to in advance." The general provisions of the Court Statute[[2]] describe the jurisdiction of the Court as extending to any case which the Parties, either after it has arisen or by "treaties and conventions in force,"[[3]] choose to submit. The so-called optional clause relating to the so-called compulsory jurisdiction in effect provides that as to certain defined classes of cases the parties agree, now, in advance of any dispute, that disputes of those particular characters will be submitted to the Court.

The definition of these classes of disputes is found in Article 36 of the Statute of the Court, and in this regard follows generally in its language the provisions of the second paragraph of Article 13 of the Covenant, which declares that these particular classes of disputes are "among those which are generally suitable for submission to arbitration or judicial settlement."

By the so-called optional clause relating to the Court Statute, it is these classes of disputes as to any or all of which the jurisdiction of the Court may be accepted as "compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation."