The Geneva Protocol

by David Hunter Miller

CHAPTER XI.

THE JAPANESE AMENDMENT.

During the framing of the Protocol of Geneva by the Committees of the Fifth Assembly of the League of Nations, the language of the document was changed by what has been called the Japanese Amendment; and while the provisions which constitute that amendment as part of the Protocol have been generally considered in the previous discussion in connection with the application of various Articles, still that amendment attained such prominence in the discussions in the Fifth Assembly and since, that it may well be separately reviewed.

The Japanese Amendment related to domestic questions, questions within the domestic jurisdiction of a State; and before coming to its terms, it will be well to see what the situation as to these domestic questions is under the Covenant, taken by itself.

The Covenant, as we have seen,[[1]] provided for the submission to the Council of all disputes between Members of the League which were not otherwise adjusted by some kind of agreement or by some kind of Tribunal. In regard to those disputes submitted to the Council, the eighth paragraph of Article 15 of the Covenant said that if one of the parties claimed, and if the Council found, that the dispute related to a question which by international law was entirely within the jurisdiction of a State, the Council should so report and make not even a recommendation regarding a settlement. In other words, if the dispute related to a domestic question and one of the parties to the dispute raised the point, the Council could not proceed at all to make any recommendation which would bind the parties to the dispute or either of them to anything whatever.

At the same time, under the Covenant, by Article 11, either the Council or the Assembly might consider any circumstance tending to threaten or disturb international peace. The language in this regard is general. It means no more than discussion and suggestion, except perhaps publicity; but under this language of Article 11, the parties were left with their liberty of action in the matter; and indeed, under the Covenant, the Members of the League entered into no commitment against going to war in the case of a dispute about a domestic question.

So we may sum up the provisions of the Covenant as to a dispute regarding a domestic question by saying that while such a dispute might go to the Council,[[2]] still the Council,[2] if the point were raised, could make no recommendation about it; but the Council (or the Assembly) might take the matter into consideration as a subject of discussion when it threatened peace, with the hope and duty to preserve the peace if possible; but in regard to this the parties remained free to act as they might themselves finally determine.

The Protocol of course, as we have also seen,[[3]] makes a great change in this situation because it contains a general agreement by the parties not to resort to war, an agreement which is applicable to disputes about domestic questions to the same extent that it is applicable to disputes about international questions; this general agreement not to go to war includes all questions of both kinds.

Furthermore, the Protocol makes it very much more likely that disputes between Members of the League will go for a hearing to a Committee of Arbitrators than to the Council; we have seen[[4]] that the likelihood of any dispute going to the Council under the new régime, for consideration on the merits, is remote. The functions of the Council regarding disputes are to some extent delegated to the Permanent Court of International Justice, but even more largely to Committees of Arbitrators agreed on or appointed ad hoc.

Now the Japanese amendment is not strictly a single amendment; it is in two parts. The first part is the last (third) paragraph of Article 5 of the Protocol, reading as follows:

"If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article 11 of the Covenant."

We must bear in mind that by the second paragraph of Article 5, any Committee of Arbitrators, in its consideration of a dispute is subject to the same limitations concerning a dispute about a domestic question as are provided for the Council. The method of so limiting the Committee of Arbitrators is that the question of law is decided by the Permanent Court of International Justice, and if that Court decides that the question is domestic, the Committee of Arbitrators simply so declares and proceeds no farther.

What the paragraph of Article 5 above quoted says is that although neither the Council nor a Committee of Arbitrators may consider a dispute regarding a domestic question if the point is raised, still none the less the Council or the Assembly, under Article 11 of the Covenant, may consider the situation in its bearing upon the peace of the world. Now such consideration under Article 11 of the Covenant would have been possible without this statement, so that, to my mind, this portion of the Japanese amendment makes no change in that regard. The paragraph does not change the legal situation at all, but simply makes explicit what was otherwise implied.

The other portion of the Japanese Amendment is the clause which is added to sub-head 1 of the second paragraph of Article 10, beginning with the word "nevertheless."

In order to see just what this other portion of the Japanese Amendment is, I cite here the second paragraph of Article 10 (omitting certain phrases not here material) with the words of the Japanese Amendment italicised:

"In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare:

1. If it * * * has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognizing that the dispute between it and the other belligerent State arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State; nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly, in accordance with Article 11 of the Covenant."

The language of Article 10 of the Protocol is quite involved, I have already discussed it at some length,[[5]] endeavoring to show that its real effect differs greatly from the theory of its framers, a theory borne out, perhaps, by the language of Article 10 considered as language only. I sum up that theory as follows:

Laying down the general principle that a State which resorts to war contrary to the Covenant or to the Protocol is an aggressor, and prescribing a general procedure by which it is for the Council to decide, unanimously of course, whether such a violation has taken place (and in the absence of such unanimous decision to declare an armistice) none the less Article 10 limits or qualifies this general procedure by enumerating certain classes of cases in which the facts would supposedly be so open, so notorious, so impossible to question, that they would create a presumption as to the State which was the aggressor; and such presumption could be upset only by unanimous vote of the Council against it.

I repeat that this is the theory of MM. Benes and Politis; it is not mine.

My own view, heretofore expressed, is that in no case could the supposedly notorious facts create a presumption because there would always be a difference of opinion as to those very facts themselves.

But proceeding on the other theory, and looking only at the language, the presumptions are important; here it is necessary to refer to only one of them.

This presumption arises when a State has "disregarded" a decision by the Council, by the Court or by the Arbitrators following the Court, that a dispute arises out of a domestic question and has also not submitted[[6]] the question to the Council or the Assembly for discussion, under Article 11 of the Covenant.

Before the Japanese amendment, the text was that the presumption arose when a State "disregarded" such a decision to the effect that the dispute arose out of a domestic question.

Now let us see what the difference between the two is, that is to say, the difference between the text prior to the Japanese amendment and the text with the Japanese amendment.

In either case the decision on the question of law has gone against the complaining State. The proper tribunal has decided that the question is a domestic question and that decision in either case is and remains conclusive.

In either case, the State "disregarding" that decision and going to war is an aggressor. We may see that this is so by supposing that the entire original text as well as the text of this portion of the Japanese amendment was stricken out.[[7]] Then, clearly, the State would be an aggressor under Article 2 of the Protocol and under the first paragraph of Article 10; and there is nothing either in the original text that we are considering or in the Japanese addition thereto which changes that conclusion.[[8]]

The difference then between the original text and the text with the amendment is this: in the original text, a complaining State disregarding such a binding decision as to the domestic character of the question was presumed an aggressor if it went to war either before or after the consideration of the matter by the Council or the Assembly under Article 11 of the Covenant. Under the text as amended, such a State is presumed to be an aggressor only if it resorts to war before such consideration under that Article 11.

In other words, the difference between the original and amended texts would arise only in the following circumstances: State A brings a dispute against State B before a tribunal (Council, Committee of Arbitrators, etc.). The tribunal renders a binding decision that the dispute arises out of a domestic question. The complaining State, bound by that decision, then brings the matter before the Council or the Assembly under Article 11 of the Covenant and no adjustment results; thereupon the complaining State resorts to war.

Under those circumstances, in the original text, the State resorting to war would be presumed an aggressor, a presumption to be upset only by the unanimous vote of the Council against it. Under the amended text, the complaining State would be an aggressor, but there would be no presumption; and the determination that it was an aggressor would come on to be made by the Council, which would either have to vote unanimously that the complaining State was an aggressor, or else proclaim an armistice.

I confess that it is difficult to see why such a refined and subtle and technical distinction about the presumption of aggression should be made. If there is a binding decision by a tribunal that a dispute arises out of a domestic question, surely a complaining State, under the principles of the Protocol, is bound not to go to war, because it is legally wrong in its claim and has been so adjudged. Just why a State going to war under such circumstances should be presumed to be and be an aggressor if it goes to war before a discussion of the matter subsequent to the decision and not be presumed to be an aggressor but merely be an aggressor, if it goes to war after such discussion, is not logically to be explained.

However, the foregoing discussion resulting in such an obscure and technical distinction is, as I intimated, based solely on the language of the Article and on the legalistic theory of its framers as to its meaning and result. Earlier in my discussion,[[9]] I pointed out that I do not agree with the conclusions of MM. Benes and Politis, for I do not think that the presumptions laid down in Article 10 of the Protocol would ever have any material bearing on the decision reached by the Council. In other words, repeating in substance what I said before, I believe that the power to declare an armistice is the only power under Article 10 of the Protocol which the Council would ever exercise, except in a case where a State itself denounced itself as an aggressor.

Furthermore, it seems to me that the very intricacies of the language of Article 10 of the Protocol are themselves a very real indication that my conclusion is correct.

As a matter of reality, I cannot see that the Japanese amendment in any conceivable case would cause any difference in what would happen. We must suppose that war has commenced, for unless there is a resort to war, Article 10 of the Protocol is out of the picture entirely. Assuming then a resort to war, there are, under Article 10, with all its provisions and exceptions and presumptions, only two real possibilities:

a. There is an open and admitted and defiant aggression.

b. There is a difference as to the facts and it follows that it is not possible for the Council at once to reach a unanimous conclusion in the case; accordingly the Council declares an armistice which each belligerent must accept or become an aggressor.

What these two cases come to is obviously one of two alternatives, namely, either some State is going on with its fighting, with its war, regardless of the Council and regardless of the Protocol, or else there is an armistice and the fighting stops. Under the first circumstance, the provisions as to presumptions and as to the decisions of the Council are alike of no consequence; and, in the second case, the war ends with an armistice as soon as it commences.

The drafting of Article 10 of the Protocol is unfortunately obscure; but when the language of the whole Japanese amendment is carefully looked at, it seems to me that it certainly adds nothing to the powers of either the Council or the Assembly in considering disputes arising from domestic questions, and that the legal right of any State to determine and control its own domestic matters remains unquestioned; indeed, it may be said to remain more unquestioned than it is now; for, under the Protocol, that right cannot be questioned by the League, either in Council or in Assembly; it cannot be questioned by the Permanent Court or by Arbitrators; and it cannot be questioned by war. All that is possible is friendly discussion and consideration under Article 11 of the Covenant and that, so far as Members of the League are concerned, is possible now.

Of course it might be argued that the various possible decisions and presumptions under Article 10 of the Protocol might make some difference as to the charging of the costs of the aggression under Article 15 of the Protocol; but the possibilities involved are too remote to be worthy of discussion.

[[1]] Supra, p. 18, et seq.

[[2]] or the Assembly.

[[3]] Supra, p. 50, et seq.

[[4]] Supra, p. 23, et seq.

[[5]] pp. 54-63.

[[6]] The text says "previously." Presumably this means before hostilities broke out. It might mean before the "disregard" of the decision that the dispute was domestic. Precisely how a State could "disregard" such a decision, except by resort to war, is not very clear. The French is "qui aura passé outre à un rapport," etc.

[[7]] That is, all the text above quoted as part of sub-head 1 of the second paragraph of Article 10, beginning "has disregarded a unanimous report of the Council."

[[8]] The Japanese proposal regarding this Article as it first stood, was to strike out all the words referring to the "domestic jurisdiction," etc.; the addition of the clause commencing "nevertheless" was a compromise; it would have been a much simpler result and a better one, I think, to have omitted the whole clause, as the Japanese proposed.

[[9]] pp. 61, 67.