The Geneva Protocol, by David Hunter Miller

CHAPTER XII. 50
sanctions of Article 16 of the Covenant were to be applied to any Member of the League which resorted to
war in disregard of certain provisions of the Covenant in Articles 12, 13 and 15, and the difficulty of
determining whether or not, in a given case, a resort to war was a violation of those other Articles of the
Covenant was not solved, particularly as the Covenant does not preclude a resort to war in every case. Under
the Protocol, however, every resort to war by the parties to it is forbidden (except by way of defense or in aid
of defense or perhaps in execution of a judgment of some tribunal), and a procedure which, in theory at least
and probably in practice, would always determine the aggressor, is provided. For if my view is correct, an
"aggressor" is a State which openly and wilfully defies the other Signatories when summoned by the Council
under Article 10 of the Protocol. Consequently, it is now for the Council, upon the determination of the
aggressor, to call for the application of the sanctions.
Of course, in all cases of a serious decision such as this would be, the Council is not an outside body "calling"
upon Governments to do something. The words used lead one almost unconsciously to visualize the Council
as a sort of entity like a Court, laying down a rule of conduct for some one; but this is a false vision; for in any
such case the Council is a group of representatives of Governments agreeing, in the first instance, as such
representatives of their own Governments, upon a course of action to be taken by those very Governments
pursuant to a treaty obligation. We must think of any such action by the Council as meaning primarily that the
British representative and the French representative, and so on, agree that the respective countries which they
represent will follow a certain course of action in accord. If the Council were composed of all the Members of
the League, it would be proper to describe its action under such a provision as this as being a conference of
the parties to the {75} treaty to decide as to what, if anything, those parties should do, and to come to such
decision unanimously, if any decision is to be reached. It is only as to the Governments which are not
represented on the Council that the Council "calls" for action; so far as the Governments represented on the
Council are concerned, what they do is to agree upon a course of action.
In theory, as I have said, the sanctions of the Protocol are no more than a development of those of Article 16
of the Covenant. The language of the Protocol indeed, in Article 11, incorporates the provisions of Article 16
of the Covenant by reference.
No provisions of the Covenant have been more debated since it was written than those of Article 16. In 1921,
various amendments to this Article of the Covenant were proposed, none of which has gone into force; and, as
mentioned above, the Assembly then adopted various interpretative resolutions regarding Article 16 which,
with the proposed amendments (one of which was textually modified in 1924), are provisionally in force.[5]
It is unnecessary to attempt any detailed consideration of the exact legal effect of Article 16 of the Covenant
at the present time in view of these interpretative resolutions and proposed amendments; in general they are
intended to make the system of the economic blockade more flexible in its application so far as may be
consistent with the purpose of the first paragraph of Article 16 of the Covenant, namely, to institute a
complete economic and financial boycott of an aggressor.
This first paragraph of Article 16 of the Covenant says also that the aggressor shall ipso facto be deemed to
have committed an act of war against the other Members of the League; this provision does not create a state
of war; it simply gives the other Members of the League the right to consider themselves at war with the
aggressor if they see fit; this provision is supplemented by the language of Article 10 of the Protocol which
gives to any signatory State called upon to apply sanctions the privilege of exercising the rights of a
belligerent, if it chooses.
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Paragraph 2 of Article 16 of the Covenant made it the duty of the Council to "recommend" to the various
governments what armed forces they should severally contribute for use in protecting the covenants of the
League.