The Geneva Protocol — John Stuart Mill — John Shaqi
The Geneva Protocol
John Stuart Mill · en
All that the word "compulsory" in this connection means is "agreed to
in advance." The general provisions of the Court {21} 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 {22} 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.