INTERPRETATION OF THE PROTOCOL.
Article 20 of the Protocol provides that any dispute as to its
interpretation shall be submitted to the Permanent Court of
International Justice. No provision similar to this is to be found in
the Covenant.
The importance of this provision does not consist chiefly in its
application to the Protocol. Even if and when the Protocol comes into
effect the provision in itself will not be very important, because the
Protocol is only a temporary document to be transformed into amendments
to the Covenant. If these amendments include the incorporation into
the Covenant of a similar provision to the effect that any dispute as
to its interpretation shall be submitted to the Permanent Court of
International Justice, such an amendment will be of supreme importance.
With the Protocol embodied in the Covenant, the latter document will be
by far the most important international treaty in existence. If all
questions of its interpretation are to be submitted to the Permanent
Court, that tribunal will have judicial powers of the most far-reaching
character.
It is true that the extension of the powers of the Court so that they
would include the interpretation of the Covenant is logical in so far
as it relates to the settlement of disputes between Members of the
League or other States; but the Covenant contains many other provisions
bearing only indirectly upon such disputes. The Covenant provides for
the Council and the Assembly and for their meetings, their powers and
procedure, powers which under Articles 11 and 19 of the Covenant, for
example, are expressed in the most general terms. The Covenant
provides for the mandate system for certain territories and for the
supervision by the League of numerous international agreements and
bureaus of all sorts. Now, in most of these matters the method of
interpreting the Covenant has been by consent. Members of the Council
or, as the case may be, of the Assembly agree on what {105} they may do
and proceed accordingly. If differences of view as to the
interpretation of the Covenant in this regard are to be submitted to
the Permanent Court, that tribunal would have in some respects a power
superior to that of either the Council or the Assembly.
Let me give an instance. The fifth paragraph of Article 4 of the
Covenant provides as follows:
"Any Member of the League not represented on the
Council shall be invited to send a Representative to sit as
a Member at any meeting of the Council during the
consideration of matters specially affecting the interest of
that Member of the League."
This paragraph gave rise to a difference of opinion as to what States
are entitled to sit on the Council when it considered questions arising
under Article 213 of the Treaty of Versailles and similar Articles in
the other Peace Treaties relating to the investigations by the Council
of the armaments of Germany and other countries. When the question
came up, the Council took the opinion of Jurists on it and reached a
common sense result.[1] Under a general clause giving jurisdiction to
the Court in all matters of interpretation,[2] it would seem that any
Member of the League could require a question as to the composition of
the Council on a particular occasion to be decided by the Court before
the Council could meet. It is obvious that any such method of
regulating procedure would give rise to impossibilities which should be
avoided.
[1] See League of Nations Official Journal, July, 1924, p. 922 and Cmd.
2287 (Miscellaneous No. 20, 1924), p. 16.
[2] Many people suppose that the Supreme Court of the United States has
such general powers regarding our Constitution, but this is not so.
Read, for example, Article I, Section 5 of the Constitution; and see
Massachusetts _v._ Melton, 262 U. S., 447.
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