The Geneva Protocol, by David Hunter Miller

CHAPTER VIII. 33
CHAPTER VIII.
DOMESTIC QUESTIONS.
The treatment in the Protocol of so-called domestic questions aroused a great deal of discussion not only at the
Assembly, last September, but since the adoption there of the text.
It may be remembered that there was a similar public discussion at the time of the drafting of the Covenant; in
that document[1] a domestic question is defined as "a matter which by international law is solely within the
domestic jurisdiction" of a State.
Among instances of domestic questions which have been mentioned from time to time, perhaps the two most
commonly referred to in this country are the tariff and immigration. Of course it has been pointed out very
often that even such questions as these, however inherently domestic, may become international as soon as
they are made the subject of a treaty, as they so frequently are. It should be added that almost any question, no
matter how "domestic" in its nature originally, may become the subject of international cognizance by virtue
of a treaty. There are many treaties of the United States which have related to such questions as the
inheritance of land, the right to administer the estates of decedents, etc.; a very recent instance is a treaty
between this country and Canada regarding the protection of migratory birds, a treaty which has been upheld
as valid by the Supreme Court.[2]
None the less, the absolute right of a country to regulate these matters in its own discretion must be
recognized as a matter of strict law. Any country, in the absence of treaty, may, at its pleasure, exclude
foreigners from entering into its territory, for example. I think no one questions this.[3]
However, as a matter of fact and as a result of the development of the world's commerce, there is hardly any
such question which remains exclusively domestic. For example, even in our {47} drastic Immigration Law of
1924,[4] there are various treaty rights of entry into the country for the purposes of commerce and so on
which are expressly and in terms saved by the statute. Furthermore, there is, I suppose, hardly a country in the
world which does not have various most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international discussions and agreements to matters
previously undreamed of; the erection of wireless stations near frontiers is a very practical instance; there
must be some kind of agreement to prevent jamming in the air. The negotiations about the opium traffic have
gone to the length of discussions as to what areas in certain regions should be planted with the poppy; a more
essentially domestic question than the crops to be grown within a country could hardly be imagined.
In my opinion, the Protocol follows the Covenant in its treatment of these domestic questions and goes no
farther. The Covenant provides that if, upon reference to the Council, it is found that a dispute arises "out of a
matter which by international law is solely within the domestic jurisdiction," the Council shall report to that
effect and shall not even make a recommendation as to its settlement (Article 15, paragraph 8). In practice the
Council will doubtless refer this question of law to the Permanent Court for an advisory opinion.[5]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision and applies it also to any arbitration
which takes place by its terms. It is provided that if one of the parties to the dispute claims that the dispute "or
part thereof" arises out of a domestic question, the arbitrators must take the advice of the Permanent Court on
the point. The opinion of the Permanent Court is binding on the arbitrators and if the Court holds that the
matter is "domestic," the power of the arbitrators to decide {48} the question is at an end and they are
confined merely to recording the Court's opinion.
The further provision of Article 5 on this question is the last paragraph of that Article, which reads as
follows:[6]