DOMESTIC QUESTIONS.
The treatment in the Protocol of so-called domestic questions aroused a
great deal of discussion not only at the Assembly, last September, but
since the adoption there of the text.
It may be remembered that there was a similar public discussion at the
time of the drafting of the Covenant; in that document[1] a domestic
question is defined as "a matter which by international law is solely
within the domestic jurisdiction" of a State.
Among instances of domestic questions which have been mentioned from
time to time, perhaps the two most commonly referred to in this country
are the tariff and immigration. Of course it has been pointed out very
often that even such questions as these, however inherently domestic,
may become international as soon as they are made the subject of a
treaty, as they so frequently are. It should be added that almost any
question, no matter how "domestic" in its nature originally, _may_
become the subject of international cognizance by virtue of a treaty.
There are many treaties of the United States which have related to such
questions as the inheritance of land, the right to administer the
estates of decedents, etc.; a very recent instance is a treaty between
this country and Canada regarding the protection of migratory birds, a
treaty which has been upheld as valid by the Supreme Court.[2]
None the less, the absolute right of a country to regulate these
matters in its own discretion must be recognized as a matter of strict
law. Any country, in the absence of treaty, may, at its pleasure,
exclude foreigners from entering into its territory, for example. I
think no one questions this.[3]
However, as a matter of fact and as a result of the development of the
world's commerce, there is hardly any such question which remains
exclusively domestic. For example, even in our {47} drastic
Immigration Law of 1924,[4] there are various treaty rights of entry
into the country for the purposes of commerce and so on which are
expressly and in terms saved by the statute. Furthermore, there is, I
suppose, hardly a country in the world which does not have various
most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international
discussions and agreements to matters previously undreamed of; the
erection of wireless stations near frontiers is a very practical
instance; there must be some kind of agreement to prevent jamming in
the air. The negotiations about the opium traffic have gone to the
length of discussions as to what areas in certain regions should be
planted with the poppy; a more essentially domestic question than the
crops to be grown within a country could hardly be imagined.
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 {48} 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 {49} 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]
[1] Article 15, paragraph 8.
[2] Missouri _v._ Holland, 252 U. S., 416.
[3] See Moore's Digest, Vol. IV, p. 67, _et seq._, also p. 151, _et
seq._
[4] Act of May 26, 1924.
[5] As in the case of the Tunis and Morocco nationality decrees,
Advisory Opinion No. 4, February 7, 1923.
[6] This is one part of the so-called Japanese Amendment, as to which
see _infra_, p. 64, _et seq._
[7] of the Covenant.
[8] Foreign Relations (U. S.), 1898, pp. 740-741.
[9] See _infra_, p. 50 and p. 54. Also "The Japanese Amendment," p. 64.
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