The League of Nations

The Optional Protocol

[Lord Phillimore's eminent qualifications as a jurist need no comment, but we may remind our readers that he %%as Chairman of the Foreign Office Committee which prepared the British draft of the League of Nations Covenant in 1918-19.—En. Spectator.] THE framers of the Covenant, while insisting upon the duty of all States to refer their disputes to some form of impartial arbitrament before proceeding to war, were not definite as to the procedure to be adopted.

In Articles 12, 13, and 15 they spoke of arbitration in general terms ; in Article 14 they sketched the idea of a Permanent Court of International Justice which was to " be competent to hear and determine any dispute of an international character which the parties thereto submit to it."

They were perhaps not very confident that any such Court could be established, because at the Hague Conference of 1907 the attempts at forming a Cdurt had been unsuccessful owing to the demands of the smaller States that they should be represented upon the Court and the claims of the greater ones to have a larger weight in the Court, and the further difficulty of forming a tribunal which should not be unwieldy in number. The Court of Justice, therefore, looms somewhat small in the Covenant, while arbitration is principally insisted upon.

When the Commission appointed by the Council to frame a scheme fora ,Court met at The Hague in the year 1920, the genius of the American representative (Mr. Elihu Root) devised a plan in which I had the honour to collaborate for reconciling the claims of the greater and the smaller States, while providing a tribunal with a number of judges not so excessive as to be unreasonable. When this had been done, the majority of the Commission thought that the Court thus established should be a real Court before which a complaining State could have access and before which it could bring the State complained of.

It will be noticed that the language of Article 14 only pro- vided for a Court which could hear and determine matters

which the parties agreed to submit to it.. In other words, it Was to be a tribunal of arbitration.

Now arbitration differs from judicial proceedings in three respects. First of all, in a judicial proceeding any party who complains goes by himself to the Court and gets the Court to cite or summon the other party to appear, and in this way constitutes by unilateral action a dispute to be settled by the

judge. In the case of an arbitration nothing happens unless both parties agree that their dispute -should be referred for settlement, and when they have got so far they have got a long way towards reconciliation. Again, in an arbitration both parties agree what the dispute is which they wish to have settled, and it is surprisingly difficult (as no one appreciates till the point arises) to get two parties to agree as to the actual substance of the dispute, or at any rate as to the terms in which it is to be stated. The third difference is that with a Court you have a settled tribunal which will decide. In arbi- tration cases you have to agree who should be the arbitrators.

Now it was only in this third respect that the Court sug- gested by the Covenant would be an improvement upon arbi- tration. Our Commission, however, thought that if we got an International Court with a satisfactory constitution which should approve itself to the Council and the Assembly—as in fact it did—we might give to it the powers of a real Court. We proposed to limit its jurisdiction to matters fit for a judge to decide, excluding questions of policy, and for this purpose we adopted in substance a paragraph from Article 13 of the Covenant, which runs as follows :—

-" Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if estab- lished, would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration."

Some Of our members thought that we were going beyond the terms of our reference in doing this, but we pointed out that the acceptance of the Court would have to be a matter

of treaty between the several States parties to the League, just as the original Covenant was an international treaty ; and that you could put into a treaty anything upon which the parties were agreed, and that we hoped that the States might be induced to agree to this extension.

Unfortunately, when the matter got to Geneva, represen- tatives of several States, including those of Great Britain, demurred, and our draft was mutilated by reducing the jurisdiction of the Court to cases which the parties referred to it, with however the addition of all matters, specially pro- vided for in treaties and conventions in force."

That is to say, the parties might have agreed beforehand that they would refer disputes to the Court, and in that case the complaining State could go to the Court and have

the other State cited. Or they might agree ad hoc, as in an arbitration, to refer the dispute to the Court. But in no other cases was the Court to have jurisdiction.

There is some value in the provision as to treaties and conventions in force " ; for several clauses in the group of treaties framed after the War do contain provisions for com- pulsory reference. But for the generality of cases the functions of the Court were reduced to those of an arbitrator.

The matter would have rested here, but fortunately two of the delegates at Geneva, the Norwegian Dr. Hagerup, and the Brazilian Monsieur Fernandes, had also been members of our Commission at The Hague ; and they suggested a plan.

Adhesion to the statute of the Permanent Court of Inter- national Justice had to be expressed by each State signing a protocol. These gentlemen suggested (and the statute accord- ingly provides for) an additional optional clause which, for States which adopt it, raises the jurisdiction of the Court to a complete status. The following are the words of this optional protocol :— " The undersigned, being duly authorized thereto, further declare, on behalf of their Government, that, from this date, they accept as compulsory, ipso facto, and without special Convention, the juris- diction of the Court in conformity with article 36, paragraph 2, of the Statute of the Court, under the following conditions . . ."

Any conditions or reservations can be appended. A usual condition is that of reciprocity. Many of the lesser States have signed this protocol. Germany has recently done so. Canada approves.

It is supposed that the reason why Great Britain has hung back is that her statesmen are afraid that in some way or other the decisions of our prize courts might be called in ques- tion. This fear seems groundless. The international courts of justice will not be a court of appeal from prize courts. On principle the international court must recognize the decisions of prize courts. But if there is any lurking fear of the contrary, Great Britain can qualify her acceptance of the protocol by a reservation in respect of prize cases.

Then it is sometimes said that after all it is not of much importance that the optional protocol should be signed. Any State, member of the League, which has a complaint, may eventually—though through a roundabout process—get the other State brought before the Court.

Under Article 15, which is the ark of the Covenant, a uni- lateral application may in the case of dispute be made by the complaining State to the Council, and it is thereupon the duty of the Secretary-General to get all parties before the Council, and the Council or the Assembly may under the last clause of Article 14 request the Court to " give an advisory opinion."

This is true, and being true shows that if our statesmen have such a fear as that mentioned, all their precautions may be useless. On the other hand, the reluctance of Great Britain to be prepared to submit herself to the Court—only coming there when she is driven to it—brings discredit upon the Court and tends to make suspicious foreigners believe that her

loyalty to the League will never stand the strain when her own interests are involved. It would be a great support to the security of nations and a " beau geste" if we signed the