The Geneva Protocol, by David Hunter Miller

CHAPTER VI. 21
It should be pointed out here that if the dispute goes to a Committee of Arbitrators at the request of one of the
parties, any point of law in dispute must be sent by the Committee of Arbitrators to the Permanent Court of
International Justice for an opinion.[8]
Now, let us proceed with the duties of the Council. If the dispute has gone to arbitration, the functions of the
Council are at an end; but if no party "asks for arbitration,"[9] then and only {26} then the Council takes up
the consideration of the dispute. In this case, the Council in fact becomes an arbitral board, provided it can
reach a unanimous conclusion; but its deliberations and recommendations have no effect whatever if it cannot
reach a unanimous conclusion.
Under the present composition of the Council the arbitral tribunal which it would become in such
circumstances would be composed of from eight to ten members. The Council itself would be a body of at
least ten members, possibly eleven, possibly twelve (if the dispute were between two outside parties), but the
votes of the disputants would not be counted.
It is clear that unanimity would be somewhat difficult to reach in a tribunal of that size. It must be
remembered that under the Protocol no dispute can reach the Council for such an arbitral decision unless (a)
the mediatory efforts of the Council have failed and (b) the parties have refused to agree upon any form of
arbitration and (c) neither party wishes arbitration.[10] Clearly a dispute which had reached that stage would
be one upon which unanimous agreement by an arbitral tribunal of representatives of from eight to ten
governments would be improbable.
Furthermore, it seems to me almost certain under the new procedure that one of the parties would demand
arbitration,[10] because it would always be in the power of one member of the Council to compel such
arbitration. This is a point which, so far as I have observed, has not elsewhere been noticed.
The final provision of the Protocol for the settlement of the dispute is that if the matter goes to the Council for
consideration; and if the views of the Council are not unanimous (aside from the parties), there is then a
"compulsory" arbitration. The Council proceeds itself to determine the composition, the powers and the
procedure of the Committee of Arbitrators.
So, taking all the provisions together, the whole result is that a dispute which is past the stage of mediation
either goes to arbitration outside the Council or must be unanimously decided {27} by the members of the
Council; and this puts it in the power of any one member of the Council to compel an arbitral award by an
outside body.
It should be added that, under the Protocol, as under the Covenant, the Assembly may be substituted for the
Council in the consideration of a dispute. It would have in such case the same mediatory powers as the
Council and the same arbitral powers as the Council if all the parties refused any other form of arbitration.[11]
A very summary statement of the functions of the Council under the Covenant shows what a radical change is
made by the provisions of the Protocol. Under the present provisions of Article 15 of the Covenant, a dispute
which passes the stage of mediation is considered by the Council. If the Council is unanimous in making
recommendations, their effect is simply to prevent war, not finally to settle the dispute. If the Council is not
unanimous, its recommendations may have a moral effect, but have no legal effect whatever.
So far as concerns these provisions of the Protocol, they may be summed up as follows: they provide that
every possible dispute between the parties to the Protocol which is subject to international cognizance shall be
finally determined by a judicial or arbitral tribunal resulting in a legally binding decision or award; and the
parties to the Protocol solemnly agree that they will accept any such decision or any such award as final and
that they will carry it out in full good faith.[12]