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 Assembly may be substituted 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 passes 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]