Part 3 (1/2)

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.