The Geneva Protocol, by David Hunter Miller

CHAPTER X. 40
Certainly the theory of the first three of the four instances above mentioned is the theory stated by Herriot in
his speech before the Assembly that the State that refuses arbitration is an aggressor.[8] In other words, law is
substituted for force.
Now it is to be observed that in each of the four foregoing {58} cases hostilities must have broken out and in
each one of them at least one additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the aggressor; but who is to say, how it is to be
determined, whether or not at any particular moment these facts exist? It is not sufficient to say that the facts
will be open and notorious, for they might not be. Indeed, if we look critically at each one of what I may call
the required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to arise; this fact is that hostilities shall
have broken out. One's first impression might be that this could never be a matter of doubt; but this is not so.
Take the case of Corfu, for example. Italian officers had been murdered in Greece by somebody; various
individuals had been killed at Corfu by a bombardment of the Italian fleet. Had or had not hostilities broken
out within the meaning of Article 10 of the Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a dispute to the procedure for pacific settlement.
It is very easy to suppose cases where there would be a difference of view as to this. A State might claim, for
example, that the matter was a domestic question which it did not have to submit to the procedure for pacific
settlement. There might be a difference of opinion as to whether or not the matter had been actually decided
by the tribunal. It is not at all uncommon in municipal law for parties to disagree as to whether a particular
question is or is not res judicata; there have been many litigations over this very point; and there have been
international arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a State had disregarded a determination that
the matter in dispute was domestic or as to whether or not a State had {59} submitted a question for
discussion under Article 11 of the Covenant. Such differences of opinion could easily arise because of the
non-formulation in precise terms of just what the dispute was. Parties do not always agree as to what it is they
are differing about and they may in fact be at the same time differing as to more than one question. As to
whether or not a State had violated the provisional measures against mobilization contemplated by Article 7 of
the Protocol, that document itself recognizes that such a question would require investigation, and in such case
and in such case only the Protocol gives the Council the power to determine the question of fact, acting by a
two-thirds majority.
So we come back to the situation that a presumption as to the aggressor can exist only if certain facts exist;
and that the existence of one or more of these facts may very likely be in doubt or dispute and that, with one
exception, there is no procedure for determining such questions of fact so as to be able to say with certainty
that the presumption does exist.
What is the answer to this difficulty? If we look at the matter technically, we must conclude that none of the
presumptions created by Article 10 of the Protocol can ever arise unless the facts[10] were admitted by the
two[11] disputants. Such an admission would mean, in other words, that one of the parties openly admitted
that it was an aggressor.
If the facts were in dispute or, in other words, if the existence of the presumption was in dispute, the Council
could not determine the aggressor on the basis of a presumption requiring the unanimous vote of the Council
to upset it; but would be required to determine the aggressor under the general provision which was first
mentioned, under which no presumption exists and when the Council is required by affirmative unanimous
vote to determine the aggressor.