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 cla.s.ses 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 a.s.sembly 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]
This, we may observe, comes directly from the third paragraph of Article 15 of the Covenant, which provides that "the Council shall endeavour to effect a settlement of the dispute." Such language relates to the mediatory and conciliatory functions of friendly governments. The Council is composed of representatives of governments, of governments friendly to the parties to the dispute, because the governments which are Members {24} of the Council as well as the governments which are parties to the dispute have joined in a Covenant of Peace.
Accordingly, the first duty of the Council, in the event of any submission of a dispute, is to mediate and conciliate. These are very valuable functions. They permit of delay. The governments which compose the Council may prolong the consideration of the point at issue.[6] The parties to the dispute have come to the Council for a settlement; and the Council may deliberate during a reasonable period so as to permit pa.s.sions to cool and reason to resume her sway.
Now, as I remarked, these mediatory functions of the Council remain precisely the same under the Protocol as under the Covenant.
Suppose, however, the mediation fails, what is the next duty of the Council? Under the Covenant,[7] the next duty of the Council would be this, to consider the dispute; but under the Protocol (Article 4(1)), the next duty of the Council is to "endeavour to persuade the parties to submit the dispute to judicial settlement or arbitration." This obviously is a very different thing from consideration of the dispute by the Council itself. Instead of considering the dispute, the Council says to the parties: Is there not some kind of a tribunal to which you are willing to refer it?
Still more striking is the fact that, even if this endeavour fail, it does not even then necessarily become the duty of the Council to consider the dispute on its merits. _Either one_ of the parties may demand the setting up of a Committee of Arbitrators. The difference between such a provision as this and the provisions of the Covenant is remarkably great. Under the Covenant, when, as the outcome of the mediation of the Council, the parties do not themselves agree upon a settlement, the Council is inevitably required to consider the merits of the case. Under the Protocol, if the parties do not agree, the dispute goes to the Court or to a tribunal of some kind, if such a reference is agreed on; it next goes to a Committee of Arbitrators if only {25} one of the parties demands it; this means that the Council never gets to consideration of the dispute on the merits, unless the parties to the dispute at the time are unanimous in wishing that this shall happen.
It is obvious that when we have a situation where _any_ party to a dispute may demand the appointment of an arbitral committee, the Council of the League can only consider cases of dispute which all parties thereto, _after_ the dispute has arisen, _unanimously_ agree should be considered by the Council.
The reason why I attach the utmost significance to this change, in connection with some other changes which are to be noticed, is that it is a total departure in theory from the idea of the Covenant that political disputes should be settled by a political body such as the Council of the League of Nations. After all, that was the fundamental idea of Article 15 of the Covenant, that the Council of the League should lay hold of the dispute, at least to the extent of preventing war from arising out of it. _The theory of the Protocol is that every kind of international dispute should be settled either by a Court or by arbitration, that the functions of the Council are those of mediation and conciliation and that the Council is never to consider the merits of the dispute unless the parties thereto at the time of the dispute unanimously wish such consideration_. Even then, as we shall see, a single dissent in the Council regarding the merits is sufficient to render its consideration of no effect, and arbitration again comes into play.
It should be pointed out here that if the dispute goes to a Committee of Arbitrators at the request of one of the parties, any point of law in dispute must be sent by the Committee of Arbitrators to the Permanent Court of International Justice for an opinion.[8]
Now, let us proceed with the duties of the Council. If the dispute has gone to arbitration, the functions of the Council are at an end; but if no party "asks for arbitration,"[9] then and only {26} then the Council takes up the consideration of the dispute. In this case, the Council in fact becomes an arbitral board, _provided_ it can reach a unanimous conclusion; but its deliberations and recommendations have no effect whatever if it cannot reach a unanimous conclusion.
Under the present composition of the Council the arbitral tribunal which it would become in such circ.u.mstances would be composed of from eight to ten members. The Council itself would be a body of at least ten members, possibly eleven, possibly twelve (if the dispute were between two outside parties), but the votes of the disputants would not be counted.
It is clear that unanimity would be somewhat difficult to reach in a tribunal of that size. It must be remembered that under the Protocol no dispute can reach the Council for such an arbitral decision unless (a) the mediatory efforts of the Council have failed and (b) the parties have refused to agree upon any form of arbitration and (c) neither party wishes arbitration.[10] Clearly a dispute which had reached that stage would be one upon which unanimous agreement by an arbitral tribunal of representatives of from eight to ten governments would be improbable.
Furthermore, it seems to me almost certain under the new procedure that one of the parties would demand arbitration,[10] because it would always be in the power of one member of the Council to compel such arbitration. This is a point which, so far as I have observed, has not elsewhere been noticed.
The final provision of the Protocol for the settlement of the dispute is that if the matter goes to the Council for consideration; and if the views of the Council are not unanimous (aside from the parties), there is then a "compulsory" arbitration. The Council proceeds itself to determine the composition, the powers and the procedure of the Committee of Arbitrators.
So, taking all the provisions together, the whole result is that a dispute which is past the stage of mediation either goes to arbitration outside the Council or must be unanimously decided {27} by the members of the Council; and this puts it in the power of any one member of the Council to compel an arbitral award by an outside body.
It should be added that, under the Protocol, as under the Covenant, the a.s.sembly may be subst.i.tuted for the Council in the consideration of a dispute. It would have in such case the same mediatory powers as the Council and the same arbitral powers as the Council if all the parties refused any other form of arbitration.[11]
A very summary statement of the functions of the Council under the Covenant shows what a radical change is made by the provisions of the Protocol. Under the present provisions of Article 15 of the Covenant, a dispute which pa.s.ses the stage of mediation is considered by the Council. If the Council is unanimous in making recommendations, their effect is simply to prevent war, not finally to settle the dispute. If the Council is not unanimous, its recommendations may have a moral effect, but have no legal effect whatever.
So far as concerns these provisions of the Protocol, they may be summed up as follows: they provide that every possible dispute between the parties to the Protocol which is subject to international cognizance shall be finally determined by a judicial or arbitral tribunal resulting in a legally binding decision or award; and the parties to the Protocol solemnly agree that they will accept any such decision or any such award as final and that they will carry it out in full good faith.[12]
[1] As amended.
[2] Article 36, first paragraph.
[3] For a collection of such agreements, see Publications of the Permanent Court of International Justice, Series D, No. 4.
[4] see the discussion as to this in that Report, _infra_, p. 171.
[5] Doubtless the word "conciliation" is not a term of art in this regard. But it seems to me that the functions of the Council under Article 15 of the Covenant go somewhat beyond "mediation" in the strict sense of the writers. See Nys, Droit International, Vol. II, p. 543; also Vattel (1853 edition), p. 276. The Protocol (Article 6) calls a result from these efforts "an amicable settlement." The French speaks of such efforts as "l"essai de conciliation."
[6] The period of "six months" is mentioned in Article 12 of the Covenant.
[7] Article 15, Paragraph 4, _et seq._
[8] Protocol, Article 4 (2) c.
[9] by a Committee of Arbitrators.
[10] By a Committee of Arbitrators.
[11] The powers and duties of the a.s.sembly in such case are stated in the last two paragraphs of Article IS of the Covenant. They are continued, to the extent stated, by Article 6 of the Protocol.
[12] The question as to what may happen under the Protocol if such a decision or award is _not_ carried out is discussed _infra_, p. 50, _et seq._
{28}
CHAPTER VII.
THE STATUS QUO.
In many recent discussions of international affairs these two originally innocent Latin words "_status quo_" have attained a really malevolent significance. They seem to be regarded as meaning the same thing as the motto "Whatever is, is wrong," and some who talk about the _status quo_ appear to be in the same mind as Omar when he longed
"To grasp this sorry scheme of things entire ............................. --and then Re-mould it nearer to the heart"s desire."
It may be well to give some critical examination to this question of the _status quo_ and to see what, if anything, is meant by the ideas which lie back of these criticisms.
In the first place, the thought of the critics usually relates to existing international frontiers and, in some instances, to existing international conditions.
Now as to frontiers, if we look at the _status quo_ historically, we find that it is practically universally the result of changes in a previous _status quo_. The cause of these changes may have been war, may possibly have been agreements and may have been something other than either of these.[1] I shall refer to them later. But here it should be observed that there is hardly any region of the globe where the _status quo_ does not result from some one or more of these changes within times comparatively recent.
Of course there are some exceptions to this observation, the Arctic and Antarctic, for example; but in the populated regions of the globe, the _status quo_, so far as frontiers are concerned, is a thing comparatively new.
If we look at this existing situation, this _status quo_ of international frontiers, we find that under modern conditions a {29} comparatively short period of time is all that is necessary to give to the _status quo_ the sanct.i.ty of universal consent, regardless of its origin. Let me give an instance or two of this.
The Southern frontier of the United States, for part of its extent is the direct result of a war between the United States and Mexico, a war which by many, and I am among them, is considered to have been a war of aggression. Now no one but a madman would believe that there ought to be a change in the _status quo_ of the communities now existing in New Mexico, which in 1850 was uninhabited country, by delivering them over to Mexican rule. It is true that, during the World War, Germany proposed to Mexico in the celebrated Zimmerman note[2] that this should be done; but that incident only emphasizes the truth of my remark.
One of the most recent instances of a change in the _status quo_, so far as the United States is concerned, is the case of the Virgin Islands, which were bought from Denmark in 1916.[3] There was a change made by agreement, made for a purchase price which was satisfactory to the ceding country and made after a plebiscite of the inhabitants, who voted almost unanimously for the change. Here, again, for reasons differing from those of the foregoing instance, no one in his senses would consider that the existing _status quo_ was not one of justice and common sense.
Now, if we take the situation generally, we will find, in accordance with the instances that I have mentioned, that the international situation as to frontiers the world over[4] is, as to perhaps 99%, either consecrated by usage which is the equivalent of common consent or at least of common sense, or else is the result of agreement which contains in it both elements.