The Geneva Protocol

by David Hunter Miller

Still more striking is the fact that, even if this endeavour fail, it does not even then necessarily become the duty of the Council to consider the dispute on its merits. Either one of the parties may demand the setting up of a Committee of Arbitrators. The difference between such a provision as this and the provisions of the Covenant is remarkably great. Under the Covenant, when, as the outcome of the mediation of the Council, the parties do not themselves agree upon a settlement, the Council is inevitably required to consider the merits of the case. Under the Protocol, if the parties do not agree, the dispute goes to the Court or to a tribunal of some kind, if such a reference is agreed on; it next goes to a Committee of Arbitrators if only one of the parties demands it; this means that the Council never gets to consideration of the dispute on the merits, unless the parties to the dispute at the time are unanimous in wishing that this shall happen.

It is obvious that when we have a situation where any party to a dispute may demand the appointment of an arbitral committee, the Council of the League can only consider cases of dispute which all parties thereto, after the dispute has arisen, unanimously agree should be considered by the Council.

The reason why I attach the utmost significance to this change, in connection with some other changes which are to be noticed, is that it is a total departure in theory from the idea of the Covenant that political disputes should be settled by a political body such as the Council of the League of Nations. After all, that was the fundamental idea of Article 15 of the Covenant, that the Council of the League should lay hold of the dispute, at least to the extent of preventing war from arising out of it. The theory of the Protocol is that every kind of international dispute should be settled either by a Court or by arbitration, that the functions of the Council are those of mediation and conciliation and that the Council is never to consider the merits of the dispute unless the parties thereto at the time of the dispute unanimously wish such consideration. Even then, as we shall see, a single dissent in the Council regarding the merits is sufficient to render its consideration of no effect, and arbitration again comes into play.

It should be pointed out here that if the dispute goes to a Committee of Arbitrators at the request of one of the parties, any point of law in dispute must be sent by the Committee of Arbitrators to the Permanent Court of International Justice for an opinion.[[8]]

Now, let us proceed with the duties of the Council. If the dispute has gone to arbitration, the functions of the Council are at an end; but if no party "asks for arbitration,"[[9]] then and only then the Council takes up the consideration of the dispute. In this case, the Council in fact becomes an arbitral board, provided it can reach a unanimous conclusion; but its deliberations and recommendations have no effect whatever if it cannot reach a unanimous conclusion.

Under the present composition of the Council the arbitral tribunal which it would become in such circumstances would be composed of from eight to ten members. The Council itself would be a body of at least ten members, possibly eleven, possibly twelve (if the dispute were between two outside parties), but the votes of the disputants would not be counted.

It is clear that unanimity would be somewhat difficult to reach in a tribunal of that size. It must be remembered that under the Protocol no dispute can reach the Council for such an arbitral decision unless (a) the mediatory efforts of the Council have failed and (b) the parties have refused to agree upon any form of arbitration and (c) neither party wishes arbitration.[[10]] Clearly a dispute which had reached that stage would be one upon which unanimous agreement by an arbitral tribunal of representatives of from eight to ten governments would be improbable.

Furthermore, it seems to me almost certain under the new procedure that one of the parties would demand arbitration, because it would always be in the power of one member of the Council to compel such arbitration. This is a point which, so far as I have observed, has not elsewhere been noticed.

The final provision of the Protocol for the settlement of the dispute is that if the matter goes to the Council for consideration; and if the views of the Council are not unanimous (aside from the parties), there is then a "compulsory" arbitration. The Council proceeds itself to determine the composition, the powers and the procedure of the Committee of Arbitrators.

So, taking all the provisions together, the whole result is that a dispute which is past the stage of mediation either goes to arbitration outside the Council or must be unanimously decided by the members of the Council; and this puts it in the power of any one member of the Council to compel an arbitral award by an outside body.