The Geneva Protocol, by David Hunter Miller
The Geneva Protocol, by David Hunter Miller
The Geneva Protocol, by David Hunter Miller
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CHAPTER XX. 113<br />
<strong>by</strong> the Council.<br />
In any event, as in the case where the Council alone intervenes, a definitive and binding solution of the<br />
dispute is reached.<br />
7.--DOMESTIC JURISDICTION OF STATES.<br />
Article 5.<br />
<strong>The</strong> present <strong>Protocol</strong> in no way derogates from the rule of Article 15, paragraph 8, of the Covenant, which<br />
protects national sovereignty.<br />
In order that there might be no doubt on this point, it appeared advisable to say so expressly.<br />
Before the Council, whatever be the stage in the procedure set up <strong>by</strong> the <strong>Protocol</strong> at which the Council<br />
intervenes, the provision referred to applies without any modification.<br />
<strong>The</strong> rule is applied also to both cases of compulsory arbitration. If one of the States parties to the dispute<br />
claims that the dispute or part thereof arises out of a matter which <strong>by</strong> international law is solely within its<br />
jurisdiction, the arbitrators must on this point take the advice of the Permanent Court of International Justice<br />
through the medium of the Council, for the question thus put in issue is a legal question upon which a judicial<br />
opinion should be obtained.<br />
<strong>The</strong> Court will thus have to give a decision as to whether the question in dispute is governed <strong>by</strong> international<br />
law or whether it falls within the domestic jurisdiction of the State concerned. Its functions will be limited to<br />
this point and the question will in any event be referred back to the arbitrators. But, unlike other opinions<br />
requested of the Court in the course of a compulsory arbitration--opinions which for the arbitrators are purely<br />
{184} advisory--in the present case the opinion of the Court is compulsory in the sense that, if the Court has<br />
recognised that the question in dispute falls entirely within the domestic jurisdiction of the State concerned,<br />
the arbitrators will simply have to register this conclusion in their award. It is only if the Court holds that the<br />
question in dispute is governed <strong>by</strong> international law that the arbitrators will again take the case under<br />
consideration in order to give a decision upon its substance.<br />
<strong>The</strong> compulsory character of the Court's opinion, in this case, increases the importance of the double question<br />
referred to above, in connection with Article 4, relating to the calling-in of national judges, and the application<br />
of Article 24 of the Statute of the Court in matters of advisory procedure.<br />
While the principle of Article 15, paragraph 8, of the Covenant is maintained, it has been necessary, in order<br />
to make its application more flexible, to call in aid the rule contained in Article 11 of the Covenant, which<br />
makes it the duty of the League of Nations, in the event of war or a threat of war, to "take any action that may<br />
be deemed wise and effective to safeguard the peace of nations," and obliges the Secretary-General to<br />
summon forthwith a meeting of the Council on the request of any Member of the League. It is in this way<br />
understood that when it has been recognised that a dispute arises out of a matter which is solely within the<br />
domestic jurisdiction of one of the parties, that party or its opponent will be fully entitled to call upon the<br />
Council or the Assembly to act.<br />
<strong>The</strong>re is nothing new in this simple reference to Article 11. It leaves unimpaired the right of the Council to<br />
take such action as it may deem wise and effectual to safeguard the peace of nations. It does not confer new<br />
powers of functions on either the Council or the Assembly. Both these organs of the League simply retain the<br />
powers now conferred upon them <strong>by</strong> the Covenant.<br />
In order to dispel any doubt which may arise from the {185} parallel which has been drawn between Article