The rule is applied also to both cases of compulsory arbitration. If
one of the States parties to the dispute claims that the dispute or
part thereof arises out of a matter which by international law is
solely within its jurisdiction, the arbitrators must on this point take
the advice of the Permanent Court of International Justice through the
medium of the Council, for the question thus put in issue is a legal
question upon which a judicial opinion should be obtained.
The Court will thus have to give a decision as to whether the question
in dispute is governed by international law or whether it falls within
the domestic jurisdiction of the State concerned. Its functions will
be limited to this point and the question will in any event be referred
back to the arbitrators. But, unlike other opinions requested of the
Court in the course of a compulsory arbitration--opinions which for the
arbitrators are purely {184} advisory--in the present case the opinion
of the Court is compulsory in the sense that, if the Court has
recognised that the question in dispute falls entirely within the
domestic jurisdiction of the State concerned, the arbitrators will
simply have to register this conclusion in their award. It is only if
the Court holds that the question in dispute is governed by
international law that the arbitrators will again take the case under
consideration in order to give a decision upon its substance.
The compulsory character of the Court's opinion, in this case,
increases the importance of the double question referred to above, in
connection with Article 4, relating to the calling-in of national
judges, and the application of Article 24 of the Statute of the Court
in matters of advisory procedure.
While the principle of Article 15, paragraph 8, of the Covenant is
maintained, it has been necessary, in order to make its application
more flexible, to call in aid the rule contained in Article 11 of the
Covenant, which makes it the duty of the League of Nations, in the
event of war or a threat of war, to "take any action that may be deemed
wise and effective to safeguard the peace of nations," and obliges the
Secretary-General to summon forthwith a meeting of the Council on the
request of any Member of the League. It is in this way understood that
when it has been recognised that a dispute arises out of a matter which
is solely within the domestic jurisdiction of one of the parties, that
party or its opponent will be fully entitled to call upon the Council
or the Assembly to act.
There is nothing new in this simple reference to Article 11. It leaves
unimpaired the right of the Council to take such action as it may deem
wise and effectual to safeguard the peace of nations. It does not
confer new powers of functions on either the Council or the Assembly.
Both these organs of the League simply retain the powers now conferred
upon them by the Covenant.