The Geneva Protocol, by David Hunter Miller

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CHAPTER VIII. 34 "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." So far as this provision goes, I do not think that it adds anything to the effect of Article 11 of the Covenant. The matter would stand precisely where it does now, even if this last paragraph of Article 5 of the Protocol had been omitted. Under Article 11 of the Covenant, both the Council and the Assembly have the right to consider any circumstance which threatens to disturb international peace. This does not mean any right of decision or even recommendation in any binding sense. What it does is to give to the Council or to the Assembly the privilege of attempting, by friendly offices, to avert war. To my mind there is nothing very new in this; indeed, it is rather inherent in the idea of any international association for the prevention of war. After all, there is no doubt that these so-called domestic questions have their international repercussions. The case that was put by way of argument at Geneva was the control of the quinine of the world by the Dutch, which is said to be practically absolute. What would happen if the Dutch put an embargo upon the exportation of this drug? It would be idle to say that such an act, legal as it would be in the strict sense, would not have a profound effect upon civilization generally. Under Article 11,[7] such an act could be discussed before the Council with a representative of the Dutch Government present, in an effort to obtain some adjustment, some change in what had been done; but that would be all. In 1898, the United States went to war with Spain over what {49} was, technically at least, from the point of view of Spain, a domestic question, namely, the internal situation in Cuba. Shortly before hostilities broke out, the six then Great Powers of Europe addressed to the United States a friendly note in the matter, to which this Government replied.[8] In principle, I cannot see any difference between such diplomatic correspondence and the discussion of the matter by the Council of the League, a discussion to which presumably Spain and not the United States would have been the party to object, for the question was a Spanish domestic question of which we were complaining. There are other aspects of the treatment by the Protocol of domestic questions, in connection with the Covenants against War, and with Aggression, under which headings it will be discussed.[9] [1] Article 15, paragraph 8. [2] Missouri v. Holland, 252 U. S., 416. [3] See Moore's Digest, Vol. IV, p. 67, et seq., also p. 151, et seq. [4] Act of May 26, 1924. [5] As in the case of the Tunis and Morocco nationality decrees, Advisory Opinion No. 4, February 7, 1923. [6] This is one part of the so-called Japanese Amendment, as to which see infra, p. 64, et seq. [7] of the Covenant. [8] Foreign Relations (U. S.), 1898, pp. 740-741. [9] See infra, p. 50 and p. 54. Also "The Japanese Amendment," p. 64. {50}
CHAPTER IX. 35 CHAPTER IX. COVENANTS AGAINST WAR. Under the Protocol, the agreement of the parties thereto (Article 2) not to resort to war with one another is, if the terms of the Protocol are carried out, absolute. The only stated exceptions in Article 2 of the Protocol are (1) in case of resistance to acts of aggression and (2) when acting in agreement with the Council or the Assembly under the Covenant or the Protocol. The first exception relates to defence and, if there be no aggression, as there would not be if the Protocol is lived up to, there would never be any need of defence against aggression. The second exception, so far as it relates to a Party to the Protocol against whom force might be used, relates primarily to an aggressor, as defined in the Protocol. Of course this second exception in this regard goes beyond the question of defence, strictly speaking, because it would permit a State, not attacked, to go to the defence of another State attacked if and when the application of the Sanctions of the Protocol is called for by the Council[1]; but if the Parties to the Protocol carry out their agreements as therein expressed, there could never be any war between two or more of them. There appears to be another possibility of the use of force within the language of this second exception; this is the case where a State, against which has gone a decision of the Court or an arbitral award, fails to carry out the decision or award. The provision of the Covenant regarding such a situation is contained in Article 13, where it is said that the Council shall "propose what steps should be taken to give effect" to such decision or award. Obviously such proposals by the Council would not have any binding effect upon the Members of the League. However, under the Covenant, the State in whose favor the decision or award had gone might lawfully have resorted to war against the State refusing to carry out the decision or award, {51} provided merely that it delayed resort to war for three months thereafter, under the language of Article 12 of the Covenant. In other words, if an award or decision was made and a State refused to carry it out, the successful party, under the Covenant agreed merely to refrain from war against the defeated party for a period of three months. The Protocol (Article 4(6)), as interpreted by the Report to the Assembly, still permits the successful party to use force in such a case but only when the Council authorizes the use of force, such authorization being brought within the terms of Article 13 of the Covenant. It is true that the Council is first to exert its influence to secure compliance with the decision or award and that, if the use of this influence fails, the Council may then propose measures short of force before authorizing the use of force itself. Indeed, the Report[2] says that the Council may "institute[3] against the recalcitrant party collective sanctions of an economic or financial order." If this means that the Signatories to the Protocol are obligated to employ such sanctions in such a case when called on by the Council, I can only say that, in my opinion, the statement is not warranted by any language of the Protocol or of the Covenant. However, the final effect of these provisions is that with the authorization of the Council the successful party may use force to execute a judicial decree or arbitral award. Furthermore, the Report to the Assembly says that in such a case the defeated party could not resist, and that, if it did resist, it would become an aggressor against whom all the Sanctions of the Protocol might be brought into play.
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Page 5 and 6: CHAPTER I. 5 CHAPTER I. THE PROTOCO
Page 7 and 8: CHAPTER II. 7 CHAPTER II. POINTS OF
Page 9 and 10: CHAPTER III. 9 CHAPTER III. THE COM
Page 11 and 12: CHAPTER III. 11 Armaments to be dra
Page 13 and 14: CHAPTER IV. 13 Russia will certainl
Page 15 and 16: CHAPTER V. 15 The first point to be
Page 17 and 18: CHAPTER VI. 17 CHAPTER VI. INTERNAT
Page 19 and 20: CHAPTER VI. 19 (a) The interpretati
Page 21 and 22: CHAPTER VI. 21 It should be pointed
Page 23 and 24: CHAPTER VII. 23 CHAPTER VII. THE ST
Page 25 and 26: CHAPTER VII. 25 As a preliminary, l
Page 27 and 28: CHAPTER VII. 27 shall not be change
Page 29 and 30: CHAPTER VII. 29 Of course some coun
Page 31 and 32: CHAPTER VII. 31 And it must not be
Page 33: CHAPTER VIII. 33 CHAPTER VIII. DOME
Page 37 and 38: CHAPTER IX. 37 [2] Annex C, p. 180;
Page 39 and 40: CHAPTER X. 39 The view of the Repor
Page 41 and 42: CHAPTER X. 41 Here again, however,
Page 43 and 44: CHAPTER X. 43 [8] September 5, 1924
Page 45 and 46: CHAPTER XI. 45 "If the question is
Page 47 and 48: CHAPTER XI. 47 meaning and result.
Page 49 and 50: CHAPTER XII. 49 CHAPTER XII. SANCTI
Page 51 and 52: CHAPTER XII. 51 Now what Article 11
Page 53 and 54: CHAPTER XII. 53 the mutually suppor
Page 55 and 56: CHAPTER XIII. 55 CHAPTER XIII. SEPA
Page 57 and 58: CHAPTER XIV. 57 [1] September 25, 1
Page 59 and 60: CHAPTER XV. 59 However, the questio
Page 61 and 62: CHAPTER XV. 61 from treaty and cons
Page 63 and 64: CHAPTER XV. 63 unless the United St
Page 65 and 66: CHAPTER XVI. 65 We can look back on
Page 67 and 68: CHAPTER XVII. 67 CHAPTER XVII. DEMI
Page 69 and 70: CHAPTER XVIII. 69 CHAPTER XVIII. SE
Page 71 and 72: CHAPTER XX. 71 CHAPTER XX. THE "AME
Page 73 and 74: CHAPTER XX. 73 the growth and devel
Page 75 and 76: CHAPTER XX. 75 B. THE PROTOCOL OF G
Page 77 and 78: CHAPTER XX. 77 represented at the m
Page 79 and 80: CHAPTER XX. 79 diplomacy, they will
Page 81 and 82: CHAPTER XX. 81 Upon such invitation
Page 83 and 84: CHAPTER XX. 83 (f) will endeavour t
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CHAPTER XX. 85 Covenant of amendmen
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CHAPTER XX. 87 {137} (b) If within
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CHAPTER XX. 89 l'examen du différe
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CHAPTER XX. 91 For the purposes of
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CHAPTER XX. 93 nature, les ouvertur
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CHAPTER XX. 95 ARTICLE 14. The Coun
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CHAPTER XX. 97 Council shall draw u
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CHAPTER XX. 99 INTRODUCTION. After
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CHAPTER XX. 101 footing. Armaments
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CHAPTER XX. 103 An agreement has be
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CHAPTER XX. 105 signatory States wh
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CHAPTER XX. 107 with the Council or
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CHAPTER XX. 109 (a) Compulsory arbi
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CHAPTER XX. 111 must comply is that
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CHAPTER XX. 113 by the Council. In
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CHAPTER XX. 115 which resorts in an
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CHAPTER XX. 117 themselves decide w
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CHAPTER XX. 119 reduction of armame
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CHAPTER XX. 121 At the time when th
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CHAPTER XX. 123 (b) The elimination
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CHAPTER XX. 125 and published by th
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CHAPTER XX. 127 {209} But this abso
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CHAPTER XX. 129 Welcomes warmly the
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CHAPTER XX. 131 RESOLUTION OF THE C
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CHAPTER XX. 133 2. Certain Governme
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CHAPTER XX. 135 of armaments may re
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CHAPTER XX. 137 18. The above brief
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CHAPTER XX. 139 Justice, had been e
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CHAPTER XX. 141 {235} 41. Article 5
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CHAPTER XX. 143 48. Article 1 was d
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CHAPTER XX. 145 representatives of
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CHAPTER XX. 147 72. The draft of a
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CHAPTER XX. 149 the parties makes p
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CHAPTER XX. 151 financial sanctions
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CHAPTER XX. 153 reduction of armame
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CHAPTER XX. 155 After the work of t
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CHAPTER II. 157 CHAPTER II. ACTS OF
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CHAPTER IV. 159 CHAPTER IV. DECREES
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CHAPTER IV. 161 2. The said Commiss
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CHAPTER IV. 163 by the acceptance o
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CHAPTER IV. 165 [Sidenote: Numbers
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CHAPTER IV. 167 If a Member of the
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CHAPTER IV. 169 effectively in supp
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CHAPTER IV. 171 Page numbers in thi
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CHAPTER IV. 173 must, at no additio
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CHAPTER IV. 175 The Foundation's pr
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The Geneva Protocol, by David Hunter Miller

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