The Geneva Protocol, by David Hunter Miller

CHAPTER VI. 19
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would constitute a breach of an international obligation;
(d) The nature or extent of the reparation to be made for the breach of an international obligation."
In regard to these definitions of classes of disputes, it is necessary to make some general observations. No
matter what definition may be made in advance as to the classes of disputes which are to be submitted to the
Court, a difference of opinion {22} may exist in any given case as to whether the particular dispute which has
arisen is or is not within one of the defined classes.
It follows that the mere definition of classes of disputes which, by agreement in advance, are to be submitted
to a particular tribunal, is not in itself sufficient; any such definition must be accompanied by a provision for a
case when one of the parties to a dispute claims that the particular dispute is within the defined class and the
other party to the dispute does not admit that the dispute is within the defined class; some method must be
provided for determining that preliminary question of jurisdiction.
Let me put this concretely: let me suppose that two Members of the League have agreed to the optional clause
and that a dispute arises between them. One party to the dispute says that the question involved concerns the
interpretation of a treaty and accordingly submits the question to the Permanent Court of International Justice
in accordance with the procedure under the Statute of that Court. The other party to the dispute says that the
dispute does not in any way concern the interpretation of the treaty and submits the matter to the Council of
the League under Article 15 of the Covenant.
Clearly there would be here for decision a preliminary point of jurisdiction and, in so far as the optional clause
is concerned, the matter is covered by the Statute of the Court in the final paragraph of Article 36, reading as
follows:
"In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of
the Court."
In other words, by the Court Statute, it is for the Court to say whether or not it has jurisdiction in any such
case; so that in the particular case above supposed, where one party was seeking to go to the Court and the
other party was seeking to go to the Council, it would be for the Court in the first instance to decide as to the
jurisdiction. If the Court decided that it had jurisdiction, the dispute would come on for decision by the {23}
Court; if the Court decided that it had not jurisdiction, consideration of the dispute would come on before the
Council.
The provision in the last paragraph of Article 36 of the Court Statute is a wise and necessary one. It avoids
conflicts of jurisdiction and it permits a preliminary and easily realizable method of determining the question
of jurisdiction.
It is unnecessary to consider in further detail the described classes of legal disputes mentioned in Article 36 of
the Court Statute. Any party to the Protocol may make reservations in acceding to this optional clause and, as
the Report of the First and Third Committees to the Assembly points out,[4] these reservations may be of a
very extensive character; but the fact that the Signatories to the Protocol agree to accede, even to some extent,
to this so-called compulsory jurisdiction of the Permanent Court is of great importance.
However, the most important change which the Protocol makes in regard to the settlement of international
disputes concerns the functions of the Council in the case of a dispute submitted to it.