Читать книгу The Geneva Protocol - David Hunter Miller - Страница 17

So far as concerns disputes of an international nature, the Protocol, taken in connection with the Covenant, provides for a final and binding settlement of such disputes between Signatories to the Protocol in every case whatsoever.

In order to determine the precise effect of the Protocol in this regard, it is necessary first to examine the provisions of the Covenant.

The provisions of the Covenant which particularly cover this matter are those of Articles 12, 13 and 15. Let us therefore consider the text of these Articles,[1] looking in the first place at the text of Articles 12 and 13 and the first paragraph of Article 15, which follow:

ARTICLE 12. "The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report of the Council.

"In any case under this Article, the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute."

ARTICLE 13. "The Members of the League agree that, whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement, and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration or judicial settlement.

"Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if established, would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement.

"For the consideration of any such dispute, the Court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.

"The Members of the League agree that they will carry out in full good faith any decision or award that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto."

ARTICLE 15 (first paragraph). "If there should arise between the Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof."

Looking at these provisions in their entirety, it will be seen that the engagements taken by the Members of the League relate to "any dispute likely to lead to a rupture." This is the language of both Articles 12 and 15. We may say that this means any dispute whatever, any serious dispute from the point of view of international peace. We may lay aside trifling disputes which cannot lead to serious differences between States, whether or not they drag on through years of diplomatic negotiation. Accordingly, we may say that the Covenant in these provisions covers any international dispute whatever as to international questions in the sense above mentioned.

Further examining the provisions above quoted, we see that the Members of the League agree in every such possible case to do one of three things: they agree to submit all disputes either (a) to arbitration or (b) to judicial settlement or (c) to the Council. They do not agree to submit any particular case or any particular class of cases to arbitration; they do not agree to submit any particular case or any particular class of cases to judicial settlement; but they do specifically agree that all cases that are not submitted to the one or to the other, go to the Council. The effect of such submission to the Council will be discussed hereafter; at the moment it is only necessary to point out that under these provisions the submission to the Council is obligatory. That submission must, under Article 15, take place, in the absence of submission to arbitration or to the Court. But the submission to arbitrators or to the Court is voluntary.

The first change made in this scheme of the Covenant is that Parties to the Protocol agree to accept the so-called "compulsory" jurisdiction of the Permanent Court of International Justice in the cases mentioned in paragraph 2 of Article 36 of the Statute of the Court. Thus, in such cases the dispute between the Parties would go, as a matter of right, at the demand of either one of them, to the Court, where it would be finally determined. To that extent the jurisdiction of the Council is lessened.

Under the Protocol, this acceptance of the so-called compulsory jurisdiction of the Permanent Court of International Justice is to take place by the signatory States within a month after the coming into force of the Protocol, which, as we have seen, would mean within a month after the adoption by the Conference on Reduction of Armaments of the plan for such reduction.

The Parties to the Protocol thus agree to accept this so-called compulsory jurisdiction of the Permanent Court; but it is provided that they may do so with appropriate reservations.

Accordingly, it is desirable to consider summarily just what this so-called compulsory jurisdiction of the Permanent Court of International Justice is.

All that the word "compulsory" in this connection means is "agreed to in advance." The general provisions of the Court Statute[2] describe the jurisdiction of the Court as extending to any case which the Parties, either after it has arisen or by "treaties and conventions in force,"[3] choose to submit. The so-called optional clause relating to the so-called compulsory jurisdiction in effect provides that as to certain defined classes of cases the parties agree, now, in advance of any dispute, that disputes of those particular characters will be submitted to the Court.

The definition of these classes of disputes is found in Article 36 of the Statute of the Court, and in this regard follows generally in its language the provisions of the second paragraph of Article 13 of the Covenant, which declares that these particular classes of disputes are "among those which are generally suitable for submission to arbitration or judicial settlement."

By the so-called optional clause relating to the Court Statute, it is these classes of disputes as to any or all of which the jurisdiction of the Court may be accepted as "compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation."

The classes of "legal disputes" mentioned in Article 36 of the Court Statute are as follows:

"legal disputes concerning:

(a) The interpretation of a treaty;

(b) Any question of international law;

(c) The existence of any fact which, if established, would constitute a breach of an international obligation;

(d) The nature or extent of the reparation to be made for the breach of an international obligation."

In regard to these definitions of classes of disputes, it is necessary to make some general observations. No matter what definition may be made in advance as to the classes of disputes which are to be submitted to the Court, a difference of opinion may exist in any given case as to whether the particular dispute which has arisen is or is not within one of the defined classes.

It follows that the mere definition of classes of disputes which, by agreement in advance, are to be submitted to a particular tribunal, is not in itself sufficient; any such definition must be accompanied by a provision for a case when one of the parties to a dispute claims that the particular dispute is within the defined class and the other party to the dispute does not admit that the dispute is within the defined class; some method must be provided for determining that preliminary question of jurisdiction.

Let me put this concretely: let me suppose that two Members of the League have agreed to the optional clause and that a dispute arises between them. One party to the dispute says that the question involved concerns the interpretation of a treaty and accordingly submits the question to the Permanent Court of International Justice in accordance with the procedure under the Statute of that Court. The other party to the dispute says that the dispute does not in any way concern the interpretation of the treaty and submits the matter to the Council of the League under Article 15 of the Covenant.

Clearly there would be here for decision a preliminary point of jurisdiction and, in so far as the optional clause is concerned, the matter is covered by the Statute of the Court in the final paragraph of Article 36, reading as follows:

"In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."

In other words, by the Court Statute, it is for the Court to say whether or not it has jurisdiction in any such case; so that in the particular case above supposed, where one party was seeking to go to the Court and the other party was seeking to go to the Council, it would be for the Court in the first instance to decide as to the jurisdiction. If the Court decided that it had jurisdiction, the dispute would come on for decision by the Court; if the Court decided that it had not jurisdiction, consideration of the dispute would come on before the Council.

The provision in the last paragraph of Article 36 of the Court Statute is a wise and necessary one. It avoids conflicts of jurisdiction and it permits a preliminary and easily realizable method of determining the question of jurisdiction.

It is unnecessary to consider in further detail the described classes of legal disputes mentioned in Article 36 of the Court Statute. Any party to the Protocol may make reservations in acceding to this optional clause and, as the Report of the First and Third Committees to the Assembly points out,[4] these reservations may be of a very extensive character; but the fact that the Signatories to the Protocol agree to accede, even to some extent, to this so-called compulsory jurisdiction of the Permanent Court is of great importance.

However, the most important change which the Protocol makes in regard to the settlement of international disputes concerns the functions of the Council in the case of a dispute submitted to it.

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 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 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.

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]