The Geneva Protocol

by David Hunter Miller

"In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."

In other words, by the Court Statute, it is for the Court to say whether or not it has jurisdiction in any such case; so that in the particular case above supposed, where one party was seeking to go to the Court and the other party was seeking to go to the Council, it would be for the Court in the first instance to decide as to the jurisdiction. If the Court decided that it had jurisdiction, the dispute would come on for decision by the Court; if the Court decided that it had not jurisdiction, consideration of the dispute would come on before the Council.

The provision in the last paragraph of Article 36 of the Court Statute is a wise and necessary one. It avoids conflicts of jurisdiction and it permits a preliminary and easily realizable method of determining the question of jurisdiction.

It is unnecessary to consider in further detail the described classes of legal disputes mentioned in Article 36 of the Court Statute. Any party to the Protocol may make reservations in acceding to this optional clause and, as the Report of the First and Third Committees to the Assembly points out,[[4]] these reservations may be of a very extensive character; but the fact that the Signatories to the Protocol agree to accede, even to some extent, to this so-called compulsory jurisdiction of the Permanent Court is of great importance.

However, the most important change which the Protocol makes in regard to the settlement of international disputes concerns the functions of the Council in the case of a dispute submitted to it.

The only respect in which the functions of the Council in such a case under the Protocol are precisely the same as the functions of the Council under the Covenant is that the Council must begin along the lines of mediation and conciliation.[[5]]

This, we may observe, comes directly from the third paragraph of Article 15 of the Covenant, which provides that "the Council shall endeavour to effect a settlement of the dispute." Such language relates to the mediatory and conciliatory functions of friendly governments. The Council is composed of representatives of governments, of governments friendly to the parties to the dispute, because the governments which are Members of the Council as well as the governments which are parties to the dispute have joined in a Covenant of Peace.

Accordingly, the first duty of the Council, in the event of any submission of a dispute, is to mediate and conciliate. These are very valuable functions. They permit of delay. The governments which compose the Council may prolong the consideration of the point at issue.[[6]] The parties to the dispute have come to the Council for a settlement; and the Council may deliberate during a reasonable period so as to permit passions to cool and reason to resume her sway.

Now, as I remarked, these mediatory functions of the Council remain precisely the same under the Protocol as under the Covenant.

Suppose, however, the mediation fails, what is the next duty of the Council? Under the Covenant,[[7]] the next duty of the Council would be this, to consider the dispute; but under the Protocol (Article 4(1)), the next duty of the Council is to "endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration." This obviously is a very different thing from consideration of the dispute by the Council itself. Instead of considering the dispute, the Council says to the parties: Is there not some kind of a tribunal to which you are willing to refer it?