INTERNATIONAL DISPUTES.
So far as concerns disputes of an international nature, the Protocol,
taken in connection with the Covenant, provides for a final and binding
settlement of such disputes between Signatories to the Protocol in
every case whatsoever.
In order to determine the precise effect of the Protocol in this
regard, it is necessary first to examine the provisions of the Covenant.
The provisions of the Covenant which particularly cover this matter are
those of Articles 12, 13 and 15. Let us therefore consider the text of
these Articles,[1] looking in the first place at the text of Articles
12 and 13 and the first paragraph of Article 15, which follow:
ARTICLE 12. "The Members of the League agree that, if
there should arise between them any dispute likely to
lead to a rupture, they will submit the matter either to
arbitration or judicial settlement or to enquiry by the
Council and they agree in no case to resort to war until
three months after the award by the arbitrators or the
judicial decision, or the report of the Council.
"In any case under this Article, the award of the
arbitrators or the judicial decision shall be made within a
reasonable time, and the report of the Council shall be made
within six months after the submission of the dispute."
ARTICLE 13. "The Members of the League agree that,
whenever any dispute shall arise between them which they
recognise to be suitable for submission to arbitration or
judicial settlement, and which cannot be satisfactorily
settled by diplomacy, they will submit the whole subject
matter to arbitration or judicial settlement.
"Disputes as to the interpretation of a treaty, as to
any question of international law, as to the existence of
any fact which, if established, would constitute a breach
of any international obligation, or as to the extent and
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nature of the reparation to be made for any such breach,
are declared to be among those which are generally
suitable for submission to arbitration or judicial settlement.
"For the consideration of any such dispute, the Court
to which the case is referred shall be the Permanent Court
of International Justice, established in accordance with
Article 14, or any tribunal agreed on by the parties to the
dispute or stipulated in any convention existing between
them.
"The Members of the League agree that they will carry
out in full good faith any decision or award that may be
rendered, and that they will not resort to war against a
Member of the League which complies therewith. In the
event of any failure to carry out such an award or
decision, the Council shall propose what steps should be taken
to give effect thereto."
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 {20} 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 {21} 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."
The classes of "legal disputes" mentioned in Article 36 of the Court
Statute are as follows:
"legal disputes concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would
constitute a breach of an international obligation;
(d) The nature or extent of the reparation to be made for
the breach of an international obligation."
In regard to these definitions of classes of disputes, it is necessary
to make some general observations. No matter what definition may be
made in advance as to the classes of disputes which are to be submitted
to the Court, a difference of opinion {22} may exist in any given case
as to whether the particular dispute which has arisen is or is not
within one of the defined classes.
It follows that the mere definition of classes of disputes which, by
agreement in advance, are to be submitted to a particular tribunal, is
not in itself sufficient; any such definition must be accompanied by a
provision for a case when one of the parties to a dispute claims that
the particular dispute is within the defined class and the other party
to the dispute does not admit that the dispute is within the defined
class; some method must be provided for determining that preliminary
question of jurisdiction.
Let me put this concretely: let me suppose that two Members of the
League have agreed to the optional clause and that a dispute arises
between them. One party to the dispute says that the question involved
concerns the interpretation of a treaty and accordingly submits the
question to the Permanent Court of International Justice in accordance
with the procedure under the Statute of that Court. The other party to
the dispute says that the dispute does not in any way concern the
interpretation of the treaty and submits the matter to the Council of
the League under Article 15 of the Covenant.
Clearly there would be here for decision a preliminary point of
jurisdiction and, in so far as the optional clause is concerned, the
matter is covered by the Statute of the Court in the final paragraph of
Article 36, reading as follows:
"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 {23} 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 {24} 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?
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 {25} 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 {26} 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,[10] 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 {27} 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.
It should be added that, under the Protocol, as under the Covenant, the
Assembly may be substituted for the Council in the consideration of a
dispute. It would have in such case the same mediatory powers as the
Council and the same arbitral powers as the Council if all the parties
refused any other form of arbitration.[11]
A very summary statement of the functions of the Council under the
Covenant shows what a radical change is made by the provisions of the
Protocol. Under the present provisions of Article 15 of the Covenant,
a dispute which passes the stage of mediation is considered by the
Council. If the Council is unanimous in making recommendations, their
effect is simply to prevent war, not finally to settle the dispute. If
the Council is not unanimous, its recommendations may have a moral
effect, but have no legal effect whatever.
So far as concerns these provisions of the Protocol, they may be summed
up as follows: they provide that every possible dispute between the
parties to the Protocol which is subject to international cognizance
shall be finally determined by a judicial or arbitral tribunal
resulting in a legally binding decision or award; and the parties to
the Protocol solemnly agree that they will accept any such decision or
any such award as final and that they will carry it out in full good
faith.[12]
[1] As amended.
[2] Article 36, first paragraph.
[3] For a collection of such agreements, see Publications of the
Permanent Court of International Justice, Series D, No. 4.
[4] see the discussion as to this in that Report, _infra_, p. 171.
[5] Doubtless the word "conciliation" is not a term of art in this
regard. But it seems to me that the functions of the Council under
Article 15 of the Covenant go somewhat beyond "mediation" in the strict
sense of the writers. See Nys, Droit International, Vol. II, p. 543;
also Vattel (1853 edition), p. 276. The Protocol (Article 6) calls a
result from these efforts "an amicable settlement." The French speaks
of such efforts as "l'essai de conciliation."
[6] The period of "six months" is mentioned in Article 12 of the
Covenant.
[7] Article 15, Paragraph 4, _et seq._
[8] Protocol, Article 4 (2) c.
[9] by a Committee of Arbitrators.
[10] By a Committee of Arbitrators.
[11] The powers and duties of the Assembly in such case are stated in
the last two paragraphs of Article IS of the Covenant. They are
continued, to the extent stated, by Article 6 of the Protocol.
[12] The question as to what may happen under the Protocol if such a
decision or award is _not_ carried out is discussed _infra_, p. 50, _et
seq._
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