The Geneva Protocol, by David Hunter Miller

CHAPTER XI. 47
meaning and result. Earlier in my discussion,[9] I pointed out that I do not agree with the conclusions of MM.
Benes and Politis, for I do not think that the presumptions laid down in Article 10 of the Protocol would ever
have any material bearing on the decision reached by the Council. In other words, repeating in substance what
I said before, I believe that the power to declare an armistice is the only power under Article 10 of the
Protocol which the Council would ever exercise, except in a case where a State itself denounced itself as an
aggressor.
Furthermore, it seems to me that the very intricacies of the language of Article 10 of the Protocol are
themselves a very real indication that my conclusion is correct.
As a matter of reality, I cannot see that the Japanese amendment in any conceivable case would cause any
difference in what would happen. We must suppose that war has commenced, for unless there is a resort to
war, Article 10 of the Protocol is out of the picture entirely. Assuming then a resort to war, there are, under
Article 10, with all its provisions and exceptions and presumptions, only two real possibilities:
a. There is an open and admitted and defiant aggression.
b. There is a difference as to the facts and it follows that it is not possible for the Council at once to reach a
unanimous conclusion in the case; accordingly the Council declares an armistice which each belligerent must
accept or become an aggressor.
What these two cases come to is obviously one of two alternatives, namely, either some State is going on with
its fighting, with its war, regardless of the Council and regardless of the Protocol, or else there is an armistice
and the fighting stops. Under the first circumstance, the provisions as to presumptions and as to the decisions
of the Council are alike of no {71} consequence; and, in the second case, the war ends with an armistice as
soon as it commences.
The drafting of Article 10 of the Protocol is unfortunately obscure; but when the language of the whole
Japanese amendment is carefully looked at, it seems to me that it certainly adds nothing to the powers of
either the Council or the Assembly in considering disputes arising from domestic questions, and that the legal
right of any State to determine and control its own domestic matters remains unquestioned; indeed, it may be
said to remain more unquestioned than it is now; for, under the Protocol, that right cannot be questioned by
the League, either in Council or in Assembly; it cannot be questioned by the Permanent Court or by
Arbitrators; and it cannot be questioned by war. All that is possible is friendly discussion and consideration
under Article 11 of the Covenant and that, so far as Members of the League are concerned, is possible now.
Of course it might be argued that the various possible decisions and presumptions under Article 10 of the
Protocol might make some difference as to the charging of the costs of the aggression under Article 15 of the
Protocol; but the possibilities involved are too remote to be worthy of discussion.
[1] Supra, p. 18, et seq.
[2] or the Assembly.
[3] Supra, p. 50, et seq.
[4] Supra, p. 23, et seq.
[5] pp. 54-63.
[6] The text says "previously." Presumably this means before hostilities broke out. It might mean before the
"disregard" of the decision that the dispute was domestic. Precisely how a State could "disregard" such a