The Geneva Protocol — John Stuart Mill — John Shaqi
The Geneva Protocol
John Stuart Mill · en
Let me put this concretely: let me suppose that two Members of the
League have agreed to the optional clause and that a dispute arises
between them. One party to the dispute says that the question involved
concerns the interpretation of a treaty and accordingly submits the
question to the Permanent Court of International Justice in accordance
with the procedure under the Statute of that Court. The other party to
the dispute says that the dispute does not in any way concern the
interpretation of the treaty and submits the matter to the Council of
the League under Article 15 of the Covenant.
Clearly there would be here for decision a preliminary point of
jurisdiction and, in so far as the optional clause is concerned, the
matter is covered by the Statute of the Court in the final paragraph of
Article 36, reading as follows:
"In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of
the Court."
In other words, by the Court Statute, it is for the Court to say
whether or not it has jurisdiction in any such case; so that in the
particular case above supposed, where one party was seeking to go to
the Court and the other party was seeking to go to the Council, it
would be for the Court in the first instance to decide as to the
jurisdiction. If the Court decided that it had jurisdiction, the
dispute would come on for decision by the {23} Court; if the Court
decided that it had not jurisdiction, consideration of the dispute
would come on before the Council.
The provision in the last paragraph of Article 36 of the Court Statute
is a wise and necessary one. It avoids conflicts of jurisdiction and
it permits a preliminary and easily realizable method of determining
the question of jurisdiction.
It is unnecessary to consider in further detail the described classes
of legal disputes mentioned in Article 36 of the Court Statute. Any
party to the Protocol may make reservations in acceding to this
optional clause and, as the Report of the First and Third Committees to
the Assembly points out,[4] these reservations may be of a very
extensive character; but the fact that the Signatories to the Protocol
agree to accede, even to some extent, to this so-called compulsory
jurisdiction of the Permanent Court is of great importance.
However, the most important change which the Protocol makes in regard
to the settlement of international disputes concerns the functions of
the Council in the case of a dispute submitted to it.
The only respect in which the functions of the Council in such a case
under the Protocol are _precisely_ the same as the functions of the
Council under the Covenant is that the Council must begin along the
lines of mediation and conciliation.[5]