The Geneva Protocol — John Stuart Mill — John Shaqi
The Geneva Protocol
John Stuart Mill · en
Nevertheless, consideration has been given to the possibility that the
arbitrators need not necessarily be jurists. It has therefore been
decided that, when called upon to deal with points of law, they shall,
if one of the parties so desires, request, through the medium of the
Council, the advisory opinion of the Permanent Court of International
Justice, which must, in such a case, meet with the utmost possible
despatch. The opinion of the Court is obtained for the assistance of
the arbitrators; it is not legally binding upon them, although its
scientific authority must, in all cases, exercise a strong influence
upon their judgment. With a view to preventing abusively frequent
consultations of this kind, it is understood that the opinion of the
Court in regard to disputed points of law can only be asked on a single
occasion in the course of each case.
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The extension which, in the new system of pacific settlement of
disputes, has been given to the advisory procedure of the Court has
suggested the idea that it might be desirable to examine whether, even
in such cases, it might not be well to adopt the system of adding
national judges which at present only obtains in litigious proceedings,
and also that of applying to the advisory procedure the provisions of
Article 24 of the Statute of the Court relating to withdrawal of judges.
If the parties have not been able to come to an understanding on all or
on some of the points necessary to enable the arbitration to be carried
out, it lies with the Council to settle the unsettled points, with the
exception of the formulation of the questions to be answered, which the
arbitrators must seek in the claims set out by the parties or by one of
them if the others make default.
In cases where the selection of arbitrators thus falls upon the
Council, it has appeared necessary--however much confidence may be felt
in the Council's wisdom--to lay down for the selection of the
arbitrators certain rules calculated to give the arbitration the
necessary moral authority to ensure that it will in practice be
respected.
The first rule is that the Council shall, before proceeding to the
selection of arbitrators, have regard to the wishes of the parties. It
was suggested that this idea should be developed by conferring on the
parties the right to indicate their preferences and to challenge a
certain number of the arbitrators proposed by the Council.