The Geneva Protocol, by David Hunter Miller

CHAPTER XX. 139
Justice, had been examined in London before the meeting of the Assembly. This examination had shown so
clearly the difficulties which might arise in connection with disputes with neutral Powers arising out of British
naval action in time of war, that the limitation of the acceptance by his Majesty's Government of the optional
clause by the exclusion of disputes arising out of British belligerent action at sea was suggested. To achieve
this it was proposed that His Majesty's Government {231} should make a reservation as to disputes arising out
of action taken in conformity with the Covenant, or at the request, or with the approval, of the Council of the
League.
29. The suggestion was accepted by the British Delegation. As however, the question was clearly one which
affected the Empire as a whole, the Dominion and Indian Delegations were especially consulted in regard to
it. The position as it appeared to the British Delegation was fully explained to them, and it was understood
that they would telegraph to their respective Governments, making clear the nature of the reservation
proposed.
30. The general discussion by the First Committee of the subject of the acceptance of the compulsory
jurisdiction of the Permanent Court of International Justice took place at the third plenary meeting on the 11th
September. The British Delegate reminded the Committee that the views of His Majesty's Government had
already been explained in the Assembly in regard to the optional clause. The Prime Minister had then stated
that the British Government wished to sign a clause of this kind, subject to its being clearly drafted. The
British Delegate proceeded to discuss the position of the British Empire supposing that it accepted the
compulsory jurisdiction of the Court, and was then forced, in support of the Covenant, to go to war at sea. Sea
warfare, he said, inevitably brought a belligerent into sharp conflict with the nationals of foreign Powers
carrying on trade with the enemy State. The British Empire might therefore find itself forced to support before
the International Court the legality of action taken at the request of the League itself. The British Delegation
therefore asked the Committee to consider whether it would be possible, either by amendment of article 36,
paragraph 2, of the Statute of the Court or by the admission of a reservation acceptable to other Members of
the League, to exclude from the acceptance of that clause disputes which arose out of action taken, either in
accordance with the Covenant, or at the request, or with the sanction, of the Council of the League.
{232}
31. The French Delegation were content with the idea of such a reservation, and both the Belgian and
Brazilian Delegations stated that they had no objection to it. The delegate of Brazil, however, said he would
prefer to proceed by way of a reservation rather than by any modification of the text. Though the
representatives of the Netherlands and of Sweden were slightly more critical, it became apparent that no real
objection would be raised to the British reservation.
32. The Belgian Delegate suggested even going further still and excluding, when accepting the optional
clause, the whole of sub-heading (b), which relates to questions of international law. The effect of this would
be to exclude all questions of international law where that law has not yet been codified, as where it has been
codified the dispute becomes one of the interpretation of a Treaty. This, the British Delegation thought, would
be going too far. It would deprive the International Court of the power to build up a case law in the
international field. It would, moreover, have gone further than the Delegation felt necessary, because it was
only in the field of established international law, where there are two distinct schools of thought--the
continental and the Anglo-Saxon--that the difficulties referred to by the British Delegate would arise.
33. As regards the question of amendments to the Covenant, the French representative did not, during the
general discussion in a plenary meeting of the First Committee, specify the nature of the amendments
suggested by the French Delegation. He contented himself with drawing attention to three points. The first
was the last sentence of article 13 of the Covenant, which provides that in the event of any failure to carry out
an arbitration award, the Council shall propose what steps shall be taken to give effect thereto. This the French
Delegation regarded as inadequate. The second was the provision of article 15 by which, if the Council cannot