At the same time, under the Covenant, by Article 11, either the Council or the Assembly might consider any circumstance tending to threaten or disturb international peace. The language in this regard is general. It means no more than discussion and suggestion, except perhaps publicity; but under this language of Article 11, the parties were left with their liberty of action in the matter; and indeed, under the Covenant, the Members of the League entered into no commitment against going to war in the case of a dispute about a domestic question.
So we may sum up the provisions of the Covenant as to a dispute regarding a domestic question by saying that while such a dispute might go to the Council,[[2]] still the Council,[2] if the point were raised, could make no recommendation about it; but the Council (or the Assembly) might take the matter into consideration as a subject of discussion when it threatened peace, with the hope and duty to preserve the peace if possible; but in regard to this the parties remained free to act as they might themselves finally determine.
The Protocol of course, as we have also seen,[[3]] makes a great change in this situation because it contains a general agreement by the parties not to resort to war, an agreement which is applicable to disputes about domestic questions to the same extent that it is applicable to disputes about international questions; this general agreement not to go to war includes all questions of both kinds.
Furthermore, the Protocol makes it very much more likely that disputes between Members of the League will go for a hearing to a Committee of Arbitrators than to the Council; we have seen[[4]] that the likelihood of any dispute going to the Council under the new régime, for consideration on the merits, is remote. The functions of the Council regarding disputes are to some extent delegated to the Permanent Court of International Justice, but even more largely to Committees of Arbitrators agreed on or appointed ad hoc.
Now the Japanese amendment is not strictly a single amendment; it is in two parts. The first part is the last (third) paragraph of Article 5 of the Protocol, reading as follows:
"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."
We must bear in mind that by the second paragraph of Article 5, any Committee of Arbitrators, in its consideration of a dispute is subject to the same limitations concerning a dispute about a domestic question as are provided for the Council. The method of so limiting the Committee of Arbitrators is that the question of law is decided by the Permanent Court of International Justice, and if that Court decides that the question is domestic, the Committee of Arbitrators simply so declares and proceeds no farther.
What the paragraph of Article 5 above quoted says is that although neither the Council nor a Committee of Arbitrators may consider a dispute regarding a domestic question if the point is raised, still none the less the Council or the Assembly, under Article 11 of the Covenant, may consider the situation in its bearing upon the peace of the world. Now such consideration under Article 11 of the Covenant would have been possible without this statement, so that, to my mind, this portion of the Japanese amendment makes no change in that regard. The paragraph does not change the legal situation at all, but simply makes explicit what was otherwise implied.
The other portion of the Japanese Amendment is the clause which is added to sub-head 1 of the second paragraph of Article 10, beginning with the word "nevertheless."