The Geneva Protocol, by David Hunter Miller

CHAPTER XX. 145
representatives of the Dominions and India, and was fully considered by them at two further meetings on the
following day. After slight modifications the text of two amendments proved acceptable to the British Empire
Delegation, and after being accepted by the Japanese and French Delegations, these amendments were
adopted by the First Committee. They involved the addition to the last sentence of article 5 of the words "this
decision shall not prevent consideration of the situation by the Council or the Assembly under article 11 of the
Covenant," and the addition at the end of paragraph 2 (1) of article 10 of the words "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."
61. In the opinion of the British Empire Delegation these amendments conferred no new powers or functions
on either the Council or the Assembly. They merely served to make clear the relationship between paragraph
8 of article 15 and article 11 of the Covenant. Article 11 of the Covenant only operates in time of war or threat
of war, and it confers no right on the Council or the Assembly to impose a solution of a dispute without the
consent of the parties. The Council or the Assembly may mediate and conciliate, but they cannot make
recommendations which are binding under paragraph 6 of article 15 of the Covenant. When these
amendments were adopted at the final plenary meeting of the First Committee on the 30th September, the
British representative made a statement on the above lines. This interpretation proved generally acceptable,
and it was agreed to incorporate it in the report to be submitted to the Assembly.
62. At the final plenary meeting of the First Committee the British representative drew attention to the
difficulty in which many Delegations were placed, in that they had had no {244} opportunity to consult their
Governments in regard to these amendments. The Delegations of Australia and several other countries
thereupon stated that, though they accepted the texts, they could not commit their Governments in any way.
Article 6.
63. Article 6. When the system of compulsory arbitration, contained in article 4, had been established, the
British representative pointed out that under paragraphs 9 and 10 of article 15 of the Covenant a dispute might
still be referred to the Assembly. Article 6 was therefore drafted to ensure that the provisions referring to the
actions and powers of the Council should apply to the Assembly under the new system. After considerable
discussion it was decided to reserve questions of procedure to the Council as being a more suitable body.
Article 10.
64. Article 10, which contains the definition of an aggressor, provided one of the most difficult tasks of the
First Committee. By the 23rd September a number of drafts had been considered but no satisfactory text had
been found. The original idea was that it should be the duty of the Council to determine the aggressor, but the
question then arose as to whether, in making this decision, the Council should act unanimously or by majority
vote. Adherence to the unanimity rule would have made it possible for one State to prevent a decision being
reached. Procedure by a majority vote might have resulted in a State being obliged to apply sanctions against
its own judgment. The only way out of this difficulty was to avoid a decision by the Council at all, and to
make the test of aggression automatic, when once certain conditions had been found to obtain. This is
achieved by establishing a presumption which is to hold good until the Council has made a unanimous
decision to the contrary. If the presumption stands it is considered sufficient to justify the application of
sanctions. Even then it was thought that there would have to be something in the nature of a {245}
"declaration of aggression" in order to initiate the enforcement of sanctions, and that this declaration would
have to be made by unanimity. Objections were raised to this, but these objections were finally satisfied by the
insertion of paragraph 3, according to which the Council, if it cannot at once determine the aggressor is
bound, as a matter of course, to enjoin an armistice upon the belligerents.
65. The Japanese Delegation were opposed to any presumption of aggression arising against a state which was
involved in a dispute covered by paragraph 8 of article 15 of the Covenant, and found as the result that,