But it is quite possible to imagine an international question regarding a frontier which is not in any way justiciable; such, {16} for example, was the question as to where the frontier between Poland and Russia should be drawn after the World War.[4] That some frontier had to be drawn was obvious; but there was no possible legal basis for determining _where_ it should be drawn. The question was one of judgment, to be settled by agreement between the parties, if possible; or otherwise, if it was to be peacefully settled, by reference to some sort of tribunal which would decide according to principles[5] of equity, impossible to express in any precise legal formula. In other words, the question was an international political one.

Again, suppose that the frontier between the two States has been settled by agreement and that there is no doubt whatever where it is.

One of the two States desires to have that frontier changed; in other words, desires that there shall be a cession of territory. Here is a question of the _status quo_. In a sense it may be called international, because it relates to an international frontier; but it not only falls wholly outside any idea of justiciable questions in the international sense, but also outside any idea of being a political question which any tribunal whatever could decide on _any_ basis. In other words, it is within that cla.s.s of cases of an international nature in regard to which two States _may_, if they choose, negotiate, but in regard to which either one of them may at its pleasure refuse even to consider negotiations.

In any condition of international affairs which it is possible to visualize under the present State system, this must continue to be so.

The State system presupposes necessarily the existence of States. One of the inherent conditions of the existence of a State is its right to the possession of its own undisputed territory as against any other State,[6] which does not mean, I mention in pa.s.sing, as against a revolutionary movement _within_ the State; that is another story. The putting in question of this undisputed {17} right of one State to hold its own territory as against another State would mean the putting in question of the existing State order as a whole.

Further, while I have included domestic questions as a separate cla.s.s of questions in the above list, I think that logically many of them fall within the thought of questions which concern the _status quo_. I do not dispute that these domestic questions may at times have an international aspect; but they are questions which each State has an absolute right under law to regulate according to its own pleasure, and it is for this reason that they fall within the cla.s.s of cases which are, in theory, not to be questioned internationally. Of course a State may, if it chooses, negotiate regarding them, just as it may, if it chooses, negotiate about the cession of part of its territory. But it may also, if it chooses, so to speak end the negotiations by refusing to commence them at all.

However, it is proper, none the less, to consider these domestic questions as a separate group, for the reason that there is a possibility of development toward their international consideration within the present State system. I shall pursue that thought further a little later.

[1] Those who framed the Protocol have a different opinion. See the discussion, _supra_, p. 10, _et seq._

[2] _cf._ the expression in Article 34 of the Court Statute "States or Members of the League of Nations."

[3] The exact position of the British Dominions within the League is not yet wholly settled. See the recent British and Irish notes regarding the Irish Treaty, London Times, December 16 and 24, 1924.

[4] See Treaty of Versailles, Article 87, third paragraph.

[5] Such as, perhaps, the idea of self determination, the economic situation of the inhabitants, etc.

[6] See the Declaration of the Rights and Duties of Nations adopted by the American Inst.i.tute of International Law, specially Paragraph IV, A.

J. I. L., Vol. X, pp. 212, 213.

{18}

CHAPTER VI.

INTERNATIONAL DISPUTES.

So far as concerns disputes of an international nature, the Protocol, taken in connection with the Covenant, provides for a final and binding settlement of such disputes between Signatories to the Protocol in every case whatsoever.

In order to determine the precise effect of the Protocol in this regard, it is necessary first to examine the provisions of the Covenant.

The provisions of the Covenant which particularly cover this matter are those of Articles 12, 13 and 15. Let us therefore consider the text of these Articles,[1] looking in the first place at the text of Articles 12 and 13 and the first paragraph of Article 15, which follow:

ARTICLE 12. "The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report of the Council.

"In any case under this Article, the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute."

ARTICLE 13. "The Members of the League agree that, whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement, and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration or judicial settlement.

"Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if established, would const.i.tute a breach of any international obligation, or as to the extent and {19} 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 or judicial settlement.

"For the consideration of any such dispute, the Court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.

"The Members of the League agree that they will carry out in full good faith any decision or award that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto."

ARTICLE 15 (first paragraph). "If there should arise between the Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof."

Looking at these provisions in their entirety, it will be seen that the engagements taken by the Members of the League relate to "any dispute likely to lead to a rupture." This is the language of both Articles 12 and 15. We may say that this means any dispute whatever, any serious dispute from the point of view of international peace. We may lay aside trifling disputes which cannot lead to serious differences between States, whether or not they drag on through years of diplomatic negotiation. Accordingly, we may say that the Covenant in these provisions covers any international dispute whatever as to international questions in the sense above mentioned.

Further examining the provisions above quoted, we see that {20} the Members of the League agree in every such possible case to do one of three things: they agree to submit all disputes either (a) to arbitration or (b) to judicial settlement or (c) to the Council. They do _not_ agree to submit any particular case or any particular cla.s.s of cases to arbitration; they do _not_ agree to submit any particular case or any particular cla.s.s of cases to judicial settlement; but they do specifically agree that all cases that are not submitted to the one or to the other, go to the Council. The effect of such submission to the Council will be discussed hereafter; at the moment it is only necessary to point out that under these provisions the submission to the Council is _obligatory_. That submission _must_, under Article 15, take place, in the absence of submission to arbitration or to the Court. But the submission to arbitrators or to the Court is voluntary.

The first change made in this scheme of the Covenant is that Parties to the Protocol agree to accept the so-called "compulsory" jurisdiction of the Permanent Court of International Justice in the cases mentioned in paragraph 2 of Article 36 of the Statute of the Court. Thus, in such cases the dispute between the Parties would go, as a matter of right, at the demand of either one of them, to the Court, where it would be finally determined. To that extent the jurisdiction of the Council is lessened.

Under the Protocol, this acceptance of the so-called compulsory jurisdiction of the Permanent Court of International Justice is to take place by the signatory States within a month after the coming into force of the Protocol, which, as we have seen, would mean within a month after the adoption by the Conference on Reduction of Armaments of the plan for such reduction.

The Parties to the Protocol thus agree to accept this so-called compulsory jurisdiction of the Permanent Court; but it is provided that they may do so with appropriate reservations.

Accordingly, it is desirable to consider summarily just what this so-called compulsory jurisdiction of the Permanent Court of International Justice is.

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 cla.s.ses 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 cla.s.ses 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 cla.s.ses 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 cla.s.ses 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 cla.s.ses 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 const.i.tute 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 cla.s.ses of disputes, it is necessary to make some general observations. No matter what definition may be made in advance as to the cla.s.ses 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 cla.s.ses.

It follows that the mere definition of cla.s.ses 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 cla.s.s and the other party to the dispute does not admit that the dispute is within the defined cla.s.s; some method must be provided for determining that preliminary question of jurisdiction.

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."