The Geneva Protocol, by David Hunter Miller

CHAPTER XI. 45
"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."
We must bear in mind that by the second paragraph of Article 5, any Committee of Arbitrators, in its
consideration of a dispute is subject to the same limitations concerning a dispute about a domestic question as
are provided for the Council. The method of so limiting the Committee of Arbitrators is that the question of
law is decided by the Permanent Court of International Justice, and if that Court decides that the question is
domestic, the Committee of Arbitrators simply so declares and proceeds no farther.
What the paragraph of Article 5 above quoted says is that although neither the Council nor a Committee of
Arbitrators may consider a dispute regarding a domestic question if the point is raised, still none the less the
Council or the Assembly, under Article 11 of the Covenant, may consider the situation in its bearing upon the
peace of the world. Now such consideration under Article 11 of the Covenant would have been possible
without this statement, so that, to my mind, this portion of the Japanese amendment makes no change in that
regard. The paragraph does not change the legal situation at all, but simply makes explicit what was otherwise
implied.
The other portion of the Japanese Amendment is the clause which is added to sub-head 1 of the second
paragraph of Article 10, beginning with the word "nevertheless."
In order to see just what this other portion of the Japanese Amendment is, I cite here the second paragraph of
Article 10 (omitting certain phrases not here material) with the words of the Japanese Amendment italicised:
"In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a
decision of the Council, which must be taken unanimously, shall otherwise declare:
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1. If it * * * has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award
recognizing that the dispute between it and the other belligerent State arises out of a matter which by
international law is solely within the domestic jurisdiction of the latter State; 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."
The language of Article 10 of the Protocol is quite involved, I have already discussed it at some length,[5]
endeavoring to show that its real effect differs greatly from the theory of its framers, a theory borne out,
perhaps, by the language of Article 10 considered as language only. I sum up that theory as follows:
Laying down the general principle that a State which resorts to war contrary to the Covenant or to the Protocol
is an aggressor, and prescribing a general procedure by which it is for the Council to decide, unanimously of
course, whether such a violation has taken place (and in the absence of such unanimous decision to declare an
armistice) none the less Article 10 limits or qualifies this general procedure by enumerating certain classes of
cases in which the facts would supposedly be so open, so notorious, so impossible to question, that they would
create a presumption as to the State which was the aggressor; and such presumption could be upset only by
unanimous vote of the Council against it.
I repeat that this is the theory of MM. Benes and Politis; it is not mine.
My own view, heretofore expressed, is that in no case could the supposedly notorious facts create a
presumption because there would always be a difference of opinion as to those very facts themselves.