The Geneva Protocol, by David Hunter Miller

CHAPTER XX. 144
Article 5.
55. Article 5 was inserted as the result of a unanimous decision of the sub-committee to leave untouched
paragraph 8 of article 15 of the Covenant, which safeguards the rights of States Members in regard to matters
of domestic jurisdiction. The whole British Empire Delegation held the view that when the Arbitration
Commissions were faced with such questions, they should be bound to refer them to the Permanent Court, and
that the opinion of the Court should be binding. As the Permanent Court itself is bound to apply international
law, and paragraph 8 of article 15 refers to questions which by international law are solely within the
domestic jurisdiction of the State concerned, this provision ensures that a uniform rule will be applied by the
Council, the Permanent Court and the arbitral bodies to be set up under the new system.
56. The last sentence of article 5 was added to meet certain difficulties raised by the Japanese Delegation.
They pointed out that the second gap in the Covenant, referred to by the French Delegation during the general
discussion, had not been filled. On the 24th September, they accordingly proposed an amendment to article 5,
which appeared to have the effect of giving the Council power, in cases relating to domestic jurisdiction, to
recommend the parties to adopt some solution which would ensure a pacific settlement of the dispute. After
the discussion in the sub-committee, the Japanese Delegation modified this proposal and suggested that the
following words be added as the final paragraph of article 5:--
"The above provisions do not prejudice the duty of the Council to endeavour to bring the parties to an
agreement so as to ensure the maintenance of peace and a good understanding between nations."
This proposal came up before the plenary session of the First Committee on the 25th September. The British
Delegation asked for a postponement of the discussion. Immediate steps were {242} taken to consult the
Dominion and Indian Delegations, and in the subsequent negotiations the closest co-operation with them was
maintained.
57. It transpired that the Japanese Delegation, if they failed to secure acceptance of this amendment to article
5, intended to press for the exclusion from article 10 of the sentence at the end of paragraph 2 (1), which
included in the definition of an "aggressor" a State which resorted to war and disregarded a unanimous report
of the Council or a judicial sentence or an arbitral award recognising that the dispute arose out of a matter
within the domestic jurisdiction of the other State concerned. They pointed out that it was unjust that in such
cases the League, while refusing pacific means of settlement to an injured State, should denounce that State as
an aggressor if it took steps to defend its legitimate interests by force.
58. The possible effect of this alternative amendment was regarded by many Delegations with great concern.
It would have suggested the legitimacy of a resort to war in connection with a dispute arising out of some
domestic matter as to which the Council could give no help and make no recommendation for its solution.
59. In these circumstances the British Empire Delegation was agreed that the best course was to endeavour to
find a solution by enlarging article 19 of the Protocol, so as to make it clear that the existing power of the
Council, under article 11 of the Covenant, of endeavouring to achieve a pacific settlement in any case where
the peace of the world was endangered, was not prejudiced by the provisions of the Protocol. Though the
discussions of the matter remained very friendly in tone this proposal did not prove acceptable to the Japanese
Delegation. Accordingly, when the amendment came before the plenary meeting of the First Committee on
the 28th September, the Japanese Delegation withdrew their amendment to article 5 and proposed the
amendment to article 10. At the suggestion of the French Delegate the question was referred back to the
sub-committee.
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60. Late on the 29th September the basis of solution was found. It was immediately submitted to the