The Geneva Protocol

by David Hunter Miller

It may be suggested that in the foregoing discussion I have omitted any thought of the possibility of war between the United States and Japan; but I have kept that possibility in mind. Its theoretical possibilities, so far as they might exist by reason of the United States attacking Japan have been considered above.

Let us consider the opposite possibility, an attack by Japan on the United States.

Suppose, then, that Japan attempted to raise before the League the question of the treatment of her nationals by the United States; there is no way in which such a question could be considered by the League except under the vague general clauses of Article 11 of the Covenant; all that the League could do, even in theory, would be to ask if the United States cared to discuss the matter; and the United States would presumably decline to take part in any such discussion. Further, it may be supposed that the United States would not have the slightest desire to commence a war in the matter as the United States is satisfied with the situation as it is—it is Japan which is dissatisfied. The United States would merely refuse to discuss a question which it deemed domestic.

Suppose then that Japan went to the length of declaring war on the United States for this cause. While immaterial from the point of view of the United States, I cannot see that such a war would violate the Covenant in its letter; of course it would violate its spirit of peace; but I do not think there is any specific provision of the Covenant which, in terms, forbids it.

The Protocol in this regard goes farther in its language. The general covenant not to resort to war in Article 2 includes such a resort to war, not only against a signatory, but also against a State which "accepts all the obligations hereinafter set out"; in other words, against a sort of ad hoc adherent to the Protocol (Article 16), but we may assume that these last words would not include the United States.

The preamble asserts that a war of aggression constitutes a violation of the solidarity of the members of the international community, and also an international crime. Article 10 of the Protocol says that every State which resorts to war in violation of the undertakings contained in the present Protocol is an aggressor; and in Article 8 the document goes to its greatest length, so far as non-Signatories are concerned, by saying that the signatory States undertake to abstain from any act which might constitute a threat of aggression against another State. These last words "against another State" are the important words, because they include every State in the world, not only a Signatory. Furthermore, in that same Article 8 any Signatory can bring to the notice of the Council its view that "another State" is making preparations for war, which of course would include another Signatory.

So it is perhaps arguable that under the Protocol an attack by a Signatory against a State which is not a Signatory might be an aggression and that the sanctions of the Protocol might be brought into play in favor of the non-Signatory. If that view be correct, then, in the case supposed, namely, an attack by Japan upon the United States, it would seem that, if the matter were brought before the Council by any Signatory (as it undoubtedly would be) the Council might declare Japan to be an aggressor under the Protocol; and it would then become the duty of the other Signatories to apply against Japan all the sanctions of the Protocol, at least unless the United States objected to such a course and preferred to go it alone.

However, there is at least grave doubt as to all this. The provisions of Article 16 of the Protocol and of Article 17 of the Covenant rather indicate that a State which pays no attention to an invitation to become an ad hoc Member or Signatory takes its chances as they exist dehors the Covenant or the Protocol. I think myself that this is the better view. To suppose otherwise would be to suppose that States outside the League (or the Protocol) had all the advantages of States within, and none of the burdens or obligations, a difficult thing to envisage.

So, on the whole, I conclude that an attack by Japan upon the United States because of a "domestic" or other question would permit the Members of the League, both under the Covenant and under the Protocol, to be interested onlookers and nothing more.