Читать книгу The Geneva Protocol - David Hunter Miller - Страница 18

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 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, 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 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]

[1] As amended.

[2] Article 36, first paragraph.

[3] For a collection of such agreements, see Publications of the Permanent Court of International Justice, Series D, No. 4.

[4] see the discussion as to this in that Report, infra, p. 171.

[5] Doubtless the word "conciliation" is not a term of art in this regard. But it seems to me that the functions of the Council under Article 15 of the Covenant go somewhat beyond "mediation" in the strict sense of the writers. See Nys, Droit International, Vol. II, p. 543; also Vattel (1853 edition), p. 276. The Protocol (Article 6) calls a result from these efforts "an amicable settlement." The French speaks of such efforts as "l'essai de conciliation."

[6] The period of "six months" is mentioned in Article 12 of the Covenant.

[7] Article 15, Paragraph 4, et seq.

[8] Protocol, Article 4 (2) c.

[9] by a Committee of Arbitrators.

[10] By a Committee of Arbitrators.

[11] The powers and duties of the Assembly in such case are stated in the last two paragraphs of Article IS of the Covenant. They are continued, to the extent stated, by Article 6 of the Protocol.

[12] The question as to what may happen under the Protocol if such a decision or award is not carried out is discussed infra, p. 50, et seq.