The Geneva Protocol

by David Hunter Miller

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.