The Geneva Protocol, by David Hunter Miller

CHAPTER VI. 20
The only respect in which the functions of the Council in such a case under the Protocol are precisely the
same as the functions of the Council under the Covenant is that the Council must begin along the lines of
mediation and conciliation.[5]
This, we may observe, comes directly from the third paragraph of Article 15 of the Covenant, which provides
that "the Council shall endeavour to effect a settlement of the dispute." Such language relates to the mediatory
and conciliatory functions of friendly governments. The Council is composed of representatives of
governments, of governments friendly to the parties to the dispute, because the governments which are
Members {24} of the Council as well as the governments which are parties to the dispute have joined in a
Covenant of Peace.
Accordingly, the first duty of the Council, in the event of any submission of a dispute, is to mediate and
conciliate. These are very valuable functions. They permit of delay. The governments which compose the
Council may prolong the consideration of the point at issue.[6] The parties to the dispute have come to the
Council for a settlement; and the Council may deliberate during a reasonable period so as to permit passions
to cool and reason to resume her sway.
Now, as I remarked, these mediatory functions of the Council remain precisely the same under the Protocol as
under the Covenant.
Suppose, however, the mediation fails, what is the next duty of the Council? Under the Covenant,[7] the next
duty of the Council would be this, to consider the dispute; but under the Protocol (Article 4(1)), the next duty
of the Council is to "endeavour to persuade the parties to submit the dispute to judicial settlement or
arbitration." This obviously is a very different thing from consideration of the dispute by the Council itself.
Instead of considering the dispute, the Council says to the parties: Is there not some kind of a tribunal to
which you are willing to refer it?
Still more striking is the fact that, even if this endeavour fail, it does not even then necessarily become the
duty of the Council to consider the dispute on its merits. Either one of the parties may demand the setting up
of a Committee of Arbitrators. The difference between such a provision as this and the provisions of the
Covenant is remarkably great. Under the Covenant, when, as the outcome of the mediation of the Council, the
parties do not themselves agree upon a settlement, the Council is inevitably required to consider the merits of
the case. Under the Protocol, if the parties do not agree, the dispute goes to the Court or to a tribunal of some
kind, if such a reference is agreed on; it next goes to a Committee of Arbitrators if only {25} one of the parties
demands it; this means that the Council never gets to consideration of the dispute on the merits, unless the
parties to the dispute at the time are unanimous in wishing that this shall happen.
It is obvious that when we have a situation where any party to a dispute may demand the appointment of an
arbitral committee, the Council of the League can only consider cases of dispute which all parties thereto,
after the dispute has arisen, unanimously agree should be considered by the Council.
The reason why I attach the utmost significance to this change, in connection with some other changes which
are to be noticed, is that it is a total departure in theory from the idea of the Covenant that political disputes
should be settled by a political body such as the Council of the League of Nations. After all, that was the
fundamental idea of Article 15 of the Covenant, that the Council of the League should lay hold of the dispute,
at least to the extent of preventing war from arising out of it. The theory of the Protocol is that every kind of
international dispute should be settled either by a Court or by arbitration, that the functions of the Council
are those of mediation and conciliation and that the Council is never to consider the merits of the dispute
unless the parties thereto at the time of the dispute unanimously wish such consideration. Even then, as we
shall see, a single dissent in the Council regarding the merits is sufficient to render its consideration of no
effect, and arbitration again comes into play.