The Geneva Protocol, by David Hunter Miller

CHAPTER XX. 141
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41. Article 5.--Any signatory which does not submit its disputes to the methods of pacific settlement indicated
above, or which does not comply with the provisional measures referred to in article 2, or which does not
carry out an award of a duly qualified arbitral body, shall, if these acts of non-compliance are likely to disturb
the peace of the world, be declared to be an aggressor and outlawed, the declaration to be made by the
Permanent Court or by the Council acting, if need be, by a majority. When this declaration has been made, the
Council is to call on Members of the League to put into operation the sanctions contained in article 7.
42. Consideration of these proposals and of those contained in two other schemes submitted led to long
discussions in the Committee. These discussions served mainly to bring into relief the different schools of
thought. One favoured the widest possible extension of the jurisdiction of the Permanent Court, even into the
field of disputes of a political nature; the other held that the Court's jurisdiction should be rigidly limited to
disputes of a legal character, while a far-reaching system of arbitration should be established to deal with
political disputes. Strong disinclination was shown towards any increase in the existing powers of the Council.
On the other hand, it was made clear that no decrease of those powers would be tolerated. On one side it was
urged that the Council, when acting as an arbitral body, should make its decisions by a majority vote; on the
other, strong exception was taken to any departure from the unanimity rule. As regards the application of
sanctions, one group held that mere refusal to arbitrate or failure to carry out an award should justify their
application. Another contended equally strongly that sanctions should only be applied when such refusal or
failure was accompanied by a resort to war. The extent to which war was legitimate under the Covenant in
cases relating to domestic jurisdiction was very fully discussed. The net result was a unanimous agreement to
leave paragraph 8 of article 15 untouched.
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43. As regards the filling of the gap in article 15 of the Covenant, little progress was made. On the 19th
September, therefore, the British representative submitted a scheme to the sub-committee, in which he had
endeavoured to meet the differences of opinion which had been expressed. This scheme provided for the
acceptance as compulsory of the jurisdiction of the Permanent Court in the cases covered by article 36,
paragraph 2, of the Statute of the Court, with such reserves as may be consistent therewith. Its main object
was, however, the amendment of the Covenant on the lines of the following text:--
"The undersigned will support the introduction of amendments to article 15 of the Covenant for the purpose of
amplifying paragraphs 4, 5, 6 and 7 of that article on the following lines:--
"If the dispute submitted to the Council is not settled by it as provided in paragraph 3, the Council shall
endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration.
"If the parties cannot agree to do so, the Council shall again take the dispute under consideration, and, if it
reaches a report which is unanimously agreed to by the Members thereof other than the representatives of the
parties to the dispute, the Members of the League agree to accept the recommendations contained in the
report.
"If the Council fails to reach a report which is concurred in by all the members other than the representatives
of the parties to the dispute, and if the parties are still unable to agree to refer the dispute to arbitration, the
Council is empowered to refer the dispute to arbitration on their behalf. One-half of the members of the
tribunal, excluding the president, shall be appointed by the Council, after consultation with one party to the
dispute, and the other half after consultation with the other party to the dispute. The president shall be
appointed by the Council after consultation with the Permanent Court of International Justice if in session, or,
if not in session, with the members of its chamber of summary jurisdiction.