CHAPTER XI. 48 decision, except <strong>by</strong> resort to war, is not very clear. <strong>The</strong> French is "qui aura passé outre à un rapport," etc. [7] That is, all the text above quoted as part of sub-head 1 of the second paragraph of Article 10, beginning "has disregarded a unanimous report of the Council." [8] <strong>The</strong> Japanese proposal regarding this Article as it first stood, was to strike out all the words referring to the "domestic jurisdiction," etc.; the addition of the clause commencing "nevertheless" was a compromise; it would have been a much simpler result and a better one, I think, to have omitted the whole clause, as the Japanese proposed. [9] pp. 61, 67. {72}
CHAPTER XII. 49 CHAPTER XII. SANCTIONS. <strong>The</strong> <strong>Protocol</strong> of <strong>Geneva</strong> provides for sanctions or penalties for its breach <strong>by</strong> a Signatory. Before considering the main sanctions which are set up <strong>by</strong> the <strong>Protocol</strong>, it may be mentioned that there are certain provisional measures which may be taken which fall short of the chief sanctions. Under Article 7, in the event of a dispute between Signatories they agree, pending its settlement, not to increase their armaments, take mobilization measures, etc., and the Council is given the right, upon complaint being made, to make enquiries and investigations as to the maintenance of these agreements, and to decide upon measures in regard thereto, so as to end a threatening situation. Similar powers are given to the Council under Article 8 concerning threats of aggression or preparations for war, and in all these cases, the Council may act <strong>by</strong> a two-thirds majority. <strong>The</strong> preventive measures which the Council may take as to such preliminary matters are not precisely defined. It is to be pointed out, however, that a State violating the engagements of Article 7 or Article 8 would not be an aggressor against which the main sanctions of the <strong>Protocol</strong> could be directed, assuming that hostilities had not broken out. Accordingly, the measures which could be "decided upon" <strong>by</strong> the Council would perhaps be limited to those of warning, of advice and of publicity; certainly they could not be measures of force; and in my opinion, they could not go as far as sanctions of any kind, economic or otherwise; the General Report[1] speaks of "the evacuation of territories" as a possibly appropriate measure; this indicates that the "measures" are to be "taken" <strong>by</strong> the State guilty of violation of the agreements mentioned; certainly there would be no obligation on the part of any Signatory to take any steps against a violation of these agreements of Articles 7 and 8; but the {73} language is very vague and all doubt should be set at rest <strong>by</strong> changing it particularly as the Council may decide <strong>by</strong> a two-thirds vote. In considering the main sanctions provided <strong>by</strong> the <strong>Protocol</strong>, the first point to be emphasized is that they cannot come into play until a state of war, in the real sense, exists; hostilities must have broken out, so that the world is confronted with fighting actually taking place. It is true that there is a theoretical exception to this in the fact that a violation of the rules of a demilitarized zone is equivalent to a resort to war; but this exception is more apparent than real for the violation of a demilitarized zone would be only a brief prelude to hostilities. <strong>The</strong> second condition precedent to the application of the sanctions is the determination of the aggressor.[2] And in any case the determination <strong>by</strong> the Council as to which State is the aggressor must have taken place before the sanctions are to be applied. This is laid down in the last paragraph of Article 10, which provides that the Council shall "call upon" the Signatories to apply the sanctions.[3] As the sanctions contemplated <strong>by</strong> the <strong>Protocol</strong> are in theory merely a development of the sanctions contemplated <strong>by</strong> Article 16 of the Covenant, it is interesting to note that this preliminary calling <strong>by</strong> the Council upon the States to apply the sanctions introduces a new system, at least a system which develops from the view taken <strong>by</strong> the Assembly under Article 16 of the Covenant in 1921; for in the elaborate resolutions then adopted,[4] it was stated, among other things, that the Council was to give merely an "opinion" as to whether there had been a breach of the Covenant <strong>by</strong> resort to war, but that it was for each State to decide "for itself" whether or not its duty to apply the sanctions provided <strong>by</strong> Article 16 of the Covenant had arisen. {74} <strong>The</strong> reason for this development is easy to see. Even though the sanctions of the <strong>Protocol</strong> may in theory be the same as those of Article 16 of the Covenant, they are applicable to a very different state of facts. <strong>The</strong>
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CHAPTER IV. 175 The Foundation's pr