The Geneva Protocol, by David Hunter Miller

CHAPTER XI. 44
CHAPTER XI.
THE JAPANESE AMENDMENT.
During the framing of the Protocol of Geneva by the Committees of the Fifth Assembly of the League of
Nations, the language of the document was changed by what has been called the Japanese Amendment; and
while the provisions which constitute that amendment as part of the Protocol have been generally considered
in the previous discussion in connection with the application of various Articles, still that amendment attained
such prominence in the discussions in the Fifth Assembly and since, that it may well be separately reviewed.
The Japanese Amendment related to domestic questions, questions within the domestic jurisdiction of a State;
and before coming to its terms, it will be well to see what the situation as to these domestic questions is under
the Covenant, taken by itself.
The Covenant, as we have seen,[1] provided for the submission to the Council of all disputes between
Members of the League which were not otherwise adjusted by some kind of agreement or by some kind of
Tribunal. In regard to those disputes submitted to the Council, the eighth paragraph of Article 15 of the
Covenant said that if one of the parties claimed, and if the Council found, that the dispute related to a question
which by international law was entirely within the jurisdiction of a State, the Council should so report and
make not even a recommendation regarding a settlement. In other words, if the dispute related to a domestic
question and one of the parties to the dispute raised the point, the Council could not proceed at all to make any
recommendation which would bind the parties to the dispute or either of them to anything whatever.
At the same time, under the Covenant, by Article 11, either the Council or the Assembly might consider any
circumstance tending to threaten or disturb international peace. The language in this regard is general. It
means no more than discussion and {65} suggestion, except perhaps publicity; but under this language of
Article 11, the parties were left with their liberty of action in the matter; and indeed, under the Covenant, the
Members of the League entered into no commitment against going to war in the case of a dispute about a
domestic question.
So we may sum up the provisions of the Covenant as to a dispute regarding a domestic question by saying that
while such a dispute might go to the Council,[2] still the Council,[2] if the point were raised, could make no
recommendation about it; but the Council (or the Assembly) might take the matter into consideration as a
subject of discussion when it threatened peace, with the hope and duty to preserve the peace if possible; but in
regard to this the parties remained free to act as they might themselves finally determine.
The Protocol of course, as we have also seen,[3] makes a great change in this situation because it contains a
general agreement by the parties not to resort to war, an agreement which is applicable to disputes about
domestic questions to the same extent that it is applicable to disputes about international questions; this
general agreement not to go to war includes all questions of both kinds.
Furthermore, the Protocol makes it very much more likely that disputes between Members of the League will
go for a hearing to a Committee of Arbitrators than to the Council; we have seen[4] that the likelihood of any
dispute going to the Council under the new régime, for consideration on the merits, is remote. The functions
of the Council regarding disputes are to some extent delegated to the Permanent Court of International Justice,
but even more largely to Committees of Arbitrators agreed on or appointed ad hoc.
Now the Japanese amendment is not strictly a single amendment; it is in two parts. The first part is the last
(third) paragraph of Article 5 of the Protocol, reading as follows:
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