The Geneva Protocol, by David Hunter Miller

CHAPTER XV. 62
sanction and another in such a case. If the United States went to war with State A, a Member of the League,
and any other State undertook to {94} apply economic or any other sanctions on behalf of State A and against
the United States, it would here be regarded simply as an act of war, creating two or more enemies instead of
one.
Perhaps from the common sense outlook, such contingencies are not worthy of discussion, for what they
would mean if they happened would be either that there was another world war, in which case the provisions
of no document would be very important, or else there would be some kind of a minor war such as that
between the United States and Spain, in which the other Powers of the world would find some way of keeping
their hands off, regardless of legalistic arguments based on the Covenant or on the Protocol or on both.
It may be suggested that in the foregoing discussion I have omitted any thought of the possibility of war
between the United States and Japan; but I have kept that possibility in mind. Its theoretical possibilities, so
far as they might exist by reason of the United States attacking Japan have been considered above.
Let us consider the opposite possibility, an attack by Japan on the United States.
Suppose, then, that Japan attempted to raise before the League the question of the treatment of her nationals
by the United States; there is no way in which such a question could be considered by the League except
under the vague general clauses of Article 11 of the Covenant; all that the League could do, even in theory,
would be to ask if the United States cared to discuss the matter; and the United States would presumably
decline to take part in any such discussion. Further, it may be supposed that the United States would not have
the slightest desire to commence a war in the matter as the United States is satisfied with the situation as it
is--it is Japan which is dissatisfied. The United States would merely refuse to discuss a question which it
deemed domestic.
Suppose then that Japan went to the length of declaring war on the United States for this cause. While
immaterial from the point of view of the United States, I cannot see that such a war would violate the
Covenant in its letter; of course it would {95} violate its spirit of peace; but I do not think there is any specific
provision of the Covenant which, in terms, forbids it.
The Protocol in this regard goes farther in its language. The general covenant not to resort to war in Article 2
includes such a resort to war, not only against a signatory, but also against a State which "accepts all the
obligations hereinafter set out"; in other words, against a sort of ad hoc adherent to the Protocol (Article 16),
but we may assume that these last words would not include the United States.
The preamble asserts that a war of aggression constitutes a violation of the solidarity of the members of the
international community, and also an international crime. Article 10 of the Protocol says that every State
which resorts to war in violation of the undertakings contained in the present Protocol is an aggressor; and in
Article 8 the document goes to its greatest length, so far as non-Signatories are concerned, by saying that the
signatory States undertake to abstain from any act which might constitute a threat of aggression against
another State. These last words "against another State" are the important words, because they include every
State in the world, not only a Signatory. Furthermore, in that same Article 8 any Signatory can bring to the
notice of the Council its view that "another State" is making preparations for war, which of course would
include another Signatory.
So it is perhaps arguable that under the Protocol an attack by a Signatory against a State which is not a
Signatory might be an aggression and that the sanctions of the Protocol might be brought into play in favor of
the non-Signatory. If that view be correct, then, in the case supposed, namely, an attack by Japan upon the
United States, it would seem that, if the matter were brought before the Council by any Signatory (as it
undoubtedly would be) the Council might declare Japan to be an aggressor under the Protocol; and it would
then become the duty of the other Signatories to apply against Japan all the sanctions of the Protocol, at least