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.