Part 9 (1/2)

In this case, that is to say, in the absence of the presumptions, it is for the Council to determine the aggressor and, in order to come to such a determination, the Council must act unanimously under the general rule of Article 5 of the Covenant.

I have no doubt of this conclusion, which is the conclusion of the Report to the a.s.sembly. It is true that the language of Article 10 of the Protocol is not as clear as it might be, since the duty and power of the Council to determine the aggressor are not directly stated, but rather to be inferred from the language.

What Article 10 of the Protocol says as to this in its last paragraph but two[7] is that, apart from the cases when there is a presumption,

”if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution.”

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So that in those cases where the presumptions hereafter considered do not arise, it is the duty of the Council to determine the aggressor; it must act unanimously in coming to such a determination; as the Report to the a.s.sembly says,

”Where there is no presumption, the Council has to declare the fact of aggression; a decision is necessary and must be taken unanimously”;

and, if the Council is not unanimous, it _must_ enjoin an armistice upon the belligerents.

Before coming to the procedure before the Council, I now enumerate those cases in which, because of the existence of certain facts, a State is ”presumed” to be an aggressor; any such presumption can be upset only by the _unanimous_ decision of the Council to the contrary.

These cases are as follows:

1. If hostilities have broken out and a State has refused to submit the dispute to the procedure for pacific settlement contemplated by the Protocol.

2. If hostilities have broken out and a State has refused to comply with a decision, award, etc.

3. If hostilities have broken out and a State has disregarded a determination that the matter in dispute is a domestic matter _and_ has not submitted the question for discussion by the Council or a.s.sembly under Article 11 of the Covenant.

4. If hostilities have broken out and a State has violated the provisional measures against mobilization, etc., contemplated by Article 7 of the Protocol (and which will be mentioned later).

Certainly the theory of the first three of the four instances above mentioned is the theory stated by Herriot in his speech before the a.s.sembly that the State that refuses arbitration is an aggressor.[8]

In other words, law is subst.i.tuted for force.

Now it is to be observed that in each of the four foregoing {58} cases _hostilities must have broken out_ and in each one of them at least one additional fact must have occurred.

In other words, given certain facts, there is a presumption as to the aggressor; but who is to say, how it is to be determined, whether or not at any particular moment these facts exist? It is not sufficient to say that the facts will be open and notorious, for they might not be. Indeed, if we look critically at each one of what I may call the required facts, we find that doubt might arise.

Take the primary fact, which is always required for any presumption to arise; this fact is that hostilities shall have broken out. One's first impression might be that this could never be a matter of doubt; but this is not so. Take the case of Corfu, for example. Italian officers had been murdered in Greece by somebody; various individuals had been killed at Corfu by a bombardment of the Italian fleet. Had or had not hostilities broken out within the meaning of Article 10 of the Protocol? Surely the point is at least debatable.

Take the next required fact, that a State has refused to submit a dispute to the procedure for pacific settlement. It is very easy to suppose cases where there would be a difference of view as to this. A State might claim, for example, that the matter was a domestic question which it did not have to submit to the procedure for pacific settlement. There might be a difference of opinion as to whether or not the matter had been actually decided by the tribunal. It is not at all uncommon in munic.i.p.al law for parties to disagree as to whether a particular question is or is not _res judicata_; there have been many litigations over this very point; and there have been international arbitrations in which it was raised.[9]

Similarly, difference of opinion might exist as to whether or not a State had disregarded a determination that the matter in dispute was domestic or as to whether or not a State had {59} submitted a question for discussion under Article 11 of the Covenant. Such differences of opinion could easily arise because of the non-formulation in precise terms of just what the dispute was. Parties do not always agree as to what it is they are differing about and they may in fact be at the same time differing as to more than one question. As to whether or not a State had violated the provisional measures against mobilization contemplated by Article 7 of the Protocol, that doc.u.ment itself recognizes that such a question would require investigation, and in such case and in such case only the Protocol gives the Council the power to determine the question of fact, acting by a two-thirds majority.

So we come back to the situation that a presumption as to the aggressor can exist only if certain facts exist; and that the existence of one or more of these facts may very likely be in doubt or dispute and that, with one exception, there is no procedure for determining such questions of fact so as to be able to say with certainty that the presumption _does_ exist.

What is the answer to this difficulty? If we look at the matter technically, we must conclude that none of the presumptions created by Article 10 of the Protocol can ever arise unless the facts[10] were admitted by the two[11] disputants. Such an admission would mean, in other words, that one of the parties openly admitted that it was an aggressor.

If the facts were in dispute or, in other words, if the existence of the presumption was in dispute, the Council could not determine the aggressor on the basis of a presumption requiring the unanimous vote of the Council to upset it; but would be required to determine the aggressor under the general provision which was first mentioned, under which no presumption exists and when the Council is required by affirmative unanimous vote to determine the aggressor.

Here again, however, there would unquestionably be disputed facts; that is to say, unless one of the parties said that it was the aggressor, it would require an elaborate investigation to {60} determine under the language of Article 10 of the Protocol whether a State _had_ resorted to war in violation of its undertaking, or _had_ violated the rules laid down for a demilitarized zone. It is utterly impossible to suppose that the Council could ever immediately determine the aggressor under such circ.u.mstances by unanimous vote; and such determination _must_ be immediate. The language of the text is: ”at once”; and in the French: ”dans le plus bref delai.”

Let us look at the matter concretely and take up the question of procedure, supposing an actual case before the Council. There is a crisis; hostilities have or are supposed to have broken out; there are two States which either are or are thought to be at war; the Council meets. Not only under the realities of the situation, but under the express language of the Protocol, the Council must act instantly; the peace of the world is at stake.