The Geneva Protocol, by David Hunter Miller

CHAPTER XI. 46
But proceeding on the other theory, and looking only at the language, the presumptions are important; here it
is necessary to refer to only one of them.
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This presumption arises when a State has "disregarded" a decision by the Council, by the Court or by the
Arbitrators following the Court, that a dispute arises out of a domestic question and has also not submitted[6]
the question to the Council or the Assembly for discussion, under Article 11 of the Covenant.
Before the Japanese amendment, the text was that the presumption arose when a State "disregarded" such a
decision to the effect that the dispute arose out of a domestic question.
Now let us see what the difference between the two is, that is to say, the difference between the text prior to
the Japanese amendment and the text with the Japanese amendment.
In either case the decision on the question of law has gone against the complaining State. The proper tribunal
has decided that the question is a domestic question and that decision in either case is and remains conclusive.
In either case, the State "disregarding" that decision and going to war is an aggressor. We may see that this is
so by supposing that the entire original text as well as the text of this portion of the Japanese amendment was
stricken out.[7] Then, clearly, the State would be an aggressor under Article 2 of the Protocol and under the
first paragraph of Article 10; and there is nothing either in the original text that we are considering or in the
Japanese addition thereto which changes that conclusion.[8]
The difference then between the original text and the text with the amendment is this: in the original text, a
complaining State disregarding such a binding decision as to the domestic character of the question was
presumed an aggressor if it went {69} to war either before or after the consideration of the matter by the
Council or the Assembly under Article 11 of the Covenant. Under the text as amended, such a State is
presumed to be an aggressor only if it resorts to war before such consideration under that Article 11.
In other words, the difference between the original and amended texts would arise only in the following
circumstances: State A brings a dispute against State B before a tribunal (Council, Committee of Arbitrators,
etc.). The tribunal renders a binding decision that the dispute arises out of a domestic question. The
complaining State, bound by that decision, then brings the matter before the Council or the Assembly under
Article 11 of the Covenant and no adjustment results; thereupon the complaining State resorts to war.
Under those circumstances, in the original text, the State resorting to war would be presumed an aggressor, a
presumption to be upset only by the unanimous vote of the Council against it. Under the amended text, the
complaining State would be an aggressor, but there would be no presumption; and the determination that it
was an aggressor would come on to be made by the Council, which would either have to vote unanimously
that the complaining State was an aggressor, or else proclaim an armistice.
I confess that it is difficult to see why such a refined and subtle and technical distinction about the
presumption of aggression should be made. If there is a binding decision by a tribunal that a dispute arises out
of a domestic question, surely a complaining State, under the principles of the Protocol, is bound not to go to
war, because it is legally wrong in its claim and has been so adjudged. Just why a State going to war under
such circumstances should be presumed to be and be an aggressor if it goes to war before a discussion of the
matter subsequent to the decision and not be presumed to be an aggressor but merely be an aggressor, if it
goes to war after such discussion, is not logically to be explained.
However, the foregoing discussion resulting in such an {70} obscure and technical distinction is, as I
intimated, based solely on the language of the Article and on the legalistic theory of its framers as to its