In my opinion, the Protocol follows the Covenant in its treatment of these domestic questions and goes no farther. The Covenant provides that if, upon reference to the Council, it is found that a dispute arises "out of a matter which by international law is solely within the domestic jurisdiction," the Council shall report to that effect and shall not even make a recommendation as to its settlement (Article 15, paragraph 8). In practice the Council will doubtless refer this question of law to the Permanent Court for an advisory opinion.[[5]]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision and applies it also to any arbitration which takes place by its terms. It is provided that if one of the parties to the dispute claims that the dispute "or part thereof" arises out of a domestic question, the arbitrators must take the advice of the Permanent Court on the point. The opinion of the Permanent Court is binding on the arbitrators and if the Court holds that the matter is "domestic," the power of the arbitrators to decide the question is at an end and they are confined merely to recording the Court's opinion.
The further provision of Article 5 on this question is the last paragraph of that Article, which reads as follows:[[6]]
"If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11 of the Covenant."
So far as this provision goes, I do not think that it adds anything to the effect of Article 11 of the Covenant. The matter would stand precisely where it does now, even if this last paragraph of Article 5 of the Protocol had been omitted.
Under Article 11 of the Covenant, both the Council and the Assembly have the right to consider any circumstance which threatens to disturb international peace. This does not mean any right of decision or even recommendation in any binding sense. What it does is to give to the Council or to the Assembly the privilege of attempting, by friendly offices, to avert war.
To my mind there is nothing very new in this; indeed, it is rather inherent in the idea of any international association for the prevention of war. After all, there is no doubt that these so-called domestic questions have their international repercussions. The case that was put by way of argument at Geneva was the control of the quinine of the world by the Dutch, which is said to be practically absolute. What would happen if the Dutch put an embargo upon the exportation of this drug? It would be idle to say that such an act, legal as it would be in the strict sense, would not have a profound effect upon civilization generally. Under Article 11,[[7]] such an act could be discussed before the Council with a representative of the Dutch Government present, in an effort to obtain some adjustment, some change in what had been done; but that would be all.
In 1898, the United States went to war with Spain over what was, technically at least, from the point of view of Spain, a domestic question, namely, the internal situation in Cuba. Shortly before hostilities broke out, the six then Great Powers of Europe addressed to the United States a friendly note in the matter, to which this Government replied.[[8]] In principle, I cannot see any difference between such diplomatic correspondence and the discussion of the matter by the Council of the League, a discussion to which presumably Spain and not the United States would have been the party to object, for the question was a Spanish domestic question of which we were complaining.
There are other aspects of the treatment by the Protocol of domestic questions, in connection with the Covenants against War, and with Aggression, under which headings it will be discussed.[[9]]