The Geneva Protocol, by David Hunter Miller
The Geneva Protocol, by David Hunter Miller
The Geneva Protocol, by David Hunter Miller
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CHAPTER XIX. 70<br />
CHAPTER XIX.<br />
INTERPRETATION OF THE PROTOCOL.<br />
Article 20 of the <strong>Protocol</strong> provides that any dispute as to its interpretation shall be submitted to the Permanent<br />
Court of International Justice. No provision similar to this is to be found in the Covenant.<br />
<strong>The</strong> importance of this provision does not consist chiefly in its application to the <strong>Protocol</strong>. Even if and when<br />
the <strong>Protocol</strong> comes into effect the provision in itself will not be very important, because the <strong>Protocol</strong> is only a<br />
temporary document to be transformed into amendments to the Covenant. If these amendments include the<br />
incorporation into the Covenant of a similar provision to the effect that any dispute as to its interpretation<br />
shall be submitted to the Permanent Court of International Justice, such an amendment will be of supreme<br />
importance. With the <strong>Protocol</strong> embodied in the Covenant, the latter document will be <strong>by</strong> far the most<br />
important international treaty in existence. If all questions of its interpretation are to be submitted to the<br />
Permanent Court, that tribunal will have judicial powers of the most far-reaching character.<br />
It is true that the extension of the powers of the Court so that they would include the interpretation of the<br />
Covenant is logical in so far as it relates to the settlement of disputes between Members of the League or other<br />
States; but the Covenant contains many other provisions bearing only indirectly upon such disputes. <strong>The</strong><br />
Covenant provides for the Council and the Assembly and for their meetings, their powers and procedure,<br />
powers which under Articles 11 and 19 of the Covenant, for example, are expressed in the most general terms.<br />
<strong>The</strong> Covenant provides for the mandate system for certain territories and for the supervision <strong>by</strong> the League of<br />
numerous international agreements and bureaus of all sorts. Now, in most of these matters the method of<br />
interpreting the Covenant has been <strong>by</strong> consent. Members of the Council or, as the case may be, of the<br />
Assembly agree on what {105} they may do and proceed accordingly. If differences of view as to the<br />
interpretation of the Covenant in this regard are to be submitted to the Permanent Court, that tribunal would<br />
have in some respects a power superior to that of either the Council or the Assembly.<br />
Let me give an instance. <strong>The</strong> fifth paragraph of Article 4 of the Covenant provides as follows:<br />
"Any Member of the League not represented on the Council shall be invited to send a Representative to sit as<br />
a Member at any meeting of the Council during the consideration of matters specially affecting the interest of<br />
that Member of the League."<br />
This paragraph gave rise to a difference of opinion as to what States are entitled to sit on the Council when it<br />
considered questions arising under Article 213 of the Treaty of Versailles and similar Articles in the other<br />
Peace Treaties relating to the investigations <strong>by</strong> the Council of the armaments of Germany and other countries.<br />
When the question came up, the Council took the opinion of Jurists on it and reached a common sense<br />
result.[1] Under a general clause giving jurisdiction to the Court in all matters of interpretation,[2] it would<br />
seem that any Member of the League could require a question as to the composition of the Council on a<br />
particular occasion to be decided <strong>by</strong> the Court before the Council could meet. It is obvious that any such<br />
method of regulating procedure would give rise to impossibilities which should be avoided.<br />
[1] See League of Nations Official Journal, July, 1924, p. 922 and Cmd. 2287 (Miscellaneous No. 20, 1924),<br />
p. 16.<br />
[2] Many people suppose that the Supreme Court of the United States has such general powers regarding our<br />
Constitution, but this is not so. Read, for example, Article I, Section 5 of the Constitution; and see<br />
Massachusetts v. Melton, 262 U. S., 447.<br />
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