The Geneva Protocol — John Stuart Mill — John Shaqi
The Geneva Protocol
John Stuart Mill · en
In order to dispel any doubt which may arise from the {185} parallel
which has been drawn between Article 15, paragraph 8, and Article 11 of
the Covenant, a very clear explanation was given in the course of the
discussion in the First Committee. Where a dispute is submitted to the
Council under Article 15 and it is claimed by one party that the
dispute arises out of a matter left exclusively within its domestic
jurisdiction by international law, paragraph 8 prevents the Council
from making any recommendations upon the subject if it holds that the
contention raised by the party is correct and that the dispute does in
fact arise out of a matter exclusively within that State's jurisdiction.
The effect of this paragraph is that the Council cannot make any
recommendation in the technical sense in which that term is used in
Article 15, that is to say, it cannot make, even by unanimous report,
recommendations which become binding on the parties in virtue of
paragraph G.
Unanimity for the purpose of Article 15 implies a report concurred in
by all the members of the Council other than the parties to the
dispute. Only a report so concurred in is one which the parties to the
dispute are bound to observe, in the sense that, if they resort to war
with any party which complies with the recommendations, it will
constitute a breach of Article 16 of the Covenant and will set in play
the sanctions which are there referred to.
On the other hand, Article 11 is of different scope: first, it operates
only in time of war or threat of war; secondly, it confers no right on
the Council or on the Assembly to impose any solution of a dispute
without the consent of the parties. Action taken by the Council or the
Assembly under this article cannot become binding on the parties to the
dispute in the sense in which recommendations under Article 15 become
binding, unless they have themselves concurred in it.
One last point should be made clear. The reference which is made to
Article 11 of the Covenant holds good only in the eventuality
contemplated in Article 15, paragraph 8, of the Covenant. It is
obvious that when a unanimous decision of the {186} Council or an
arbitral award has been given upon the substance of a dispute, that
dispute is finally settled and cannot again be brought either directly
or indirectly under discussion. Article 11 of the Covenant does not
deal with situations which are covered by rules of law capable of
application by a judge. It applies only to cases which are not yet
regulated by international law. In fact, it demonstrates the existence
of loop-holes in the law.