The Geneva Protocol, by David Hunter Miller

CHAPTER XII. 49
CHAPTER XII.
SANCTIONS.
The Protocol of Geneva provides for sanctions or penalties for its breach by a Signatory.
Before considering the main sanctions which are set up by the Protocol, 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 by a two-thirds majority.
The 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 Protocol could be directed, assuming that hostilities had
not broken out. Accordingly, the measures which could be "decided upon" by 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" by 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 by changing it particularly as the
Council may decide by a two-thirds vote.
In considering the main sanctions provided by the Protocol, 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.
The second condition precedent to the application of the sanctions is the determination of the aggressor.[2]
And in any case the determination by 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 by the Protocol are in theory merely a
development of the sanctions contemplated by Article 16 of the Covenant, it is interesting to note that this
preliminary calling by the Council upon the States to apply the sanctions introduces a new system, at least a
system which develops from the view taken by 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 by resort to war, but that it was for
each State to decide "for itself" whether or not its duty to apply the sanctions provided by Article 16 of the
Covenant had arisen.
{74}
The reason for this development is easy to see. Even though the sanctions of the Protocol may in theory be the
same as those of Article 16 of the Covenant, they are applicable to a very different state of facts. The