The Geneva Protocol — John Stuart Mill — John Shaqi
The Geneva Protocol
John Stuart Mill · en
None the less, the absolute right of a country to regulate these
matters in its own discretion must be recognized as a matter of strict
law. Any country, in the absence of treaty, may, at its pleasure,
exclude foreigners from entering into its territory, for example. I
think no one questions this.[3]
However, as a matter of fact and as a result of the development of the
world's commerce, there is hardly any such question which remains
exclusively domestic. For example, even in our {47} drastic
Immigration Law of 1924,[4] there are various treaty rights of entry
into the country for the purposes of commerce and so on which are
expressly and in terms saved by the statute. Furthermore, there is, I
suppose, hardly a country in the world which does not have various
most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international
discussions and agreements to matters previously undreamed of; the
erection of wireless stations near frontiers is a very practical
instance; there must be some kind of agreement to prevent jamming in
the air. The negotiations about the opium traffic have gone to the
length of discussions as to what areas in certain regions should be
planted with the poppy; a more essentially domestic question than the
crops to be grown within a country could hardly be imagined.
In my opinion, the Protocol follows the Covenant in its treatment of
these domestic questions and goes no farther. The Covenant provides
that if, upon reference to the Council, it is found that a dispute
arises "out of a matter which by international law is solely within the
domestic jurisdiction," the Council shall report to that effect and
shall not even make a recommendation as to its settlement (Article 15,
paragraph 8). In practice the Council will doubtless refer this
question of law to the Permanent Court for an advisory opinion.[5]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision
and applies it also to any arbitration which takes place by its terms.
It is provided that if one of the parties to the dispute claims that
the dispute "or part thereof" arises out of a domestic question, the
arbitrators must take the advice of the Permanent Court on the point.
The opinion of the Permanent Court is binding on the arbitrators and if
the Court holds that the matter is "domestic," the power of the
arbitrators to decide {48} the question is at an end and they are
confined merely to recording the Court's opinion.
The further provision of Article 5 on this question is the last
paragraph of that Article, which reads as follows:[6]
"If the question is held by the Court or by the Council
to be a matter solely within the domestic jurisdiction of
the State, this decision shall not prevent consideration of
the situation by the Council or by the Assembly under
Article 11 of the Covenant."