The Geneva Protocol

by David Hunter Miller

Suppose another case; suppose that Russia attacked Poland and that the British deemed it their duty to apply the economic blockade against Russia. We are speaking here in both of these cases merely of the provisions of the Covenant; and the question raised is what attitude might the United States take in such a case as one of these.

I have suggested two instances for the reason that there is a slight difference between them. That difference lies in the fact that in the first instance supposed, Italy, as a Member of the League, would have agreed to the application of the sanctions; they would have been applied by the British as a result of Italy breaking her treaty. But in the second instance, Russia never having agreed to the Covenant, the sanctions would be applied by the British solely as a result of the British agreement to apply them and not because of any legal breach by Russia, however morally wrong her attack on Poland might be.

I do not think that the difference between the two supposed cases would make any difference legally in the attitude that the United States might take in the one case or the other. The blockade would arise from the provisions of the Covenant in either case. To that document the United States is not a party. In each case our correct legal position would be that our international rights were not limited by the agreement of others.

Accordingly, let us consider the case of the blockade of Russia by the British, recalling that, under the hypothesis, Russia has attacked Poland and that the economic and financial blockade of the first paragraph of Article 16 of the Covenant has come into full force. Now, so far as that blockade cut off relations between Great Britain and Russia, it would be none of our business. But the language of Article 16 includes

"the prevention of all financial, commercial or personal intercourse between the nationals (residents)[[5]] of the Covenant-breaking State (Russia, under the hypothesis; see Covenant, Article 17) and the nationals (residents) of any other State, whether a Member of the League or not."

What this would mean would be that all intercourse between Russia and the United States would be cut off by the British Fleet so far as they could do it. The questions suggested are: Could the United States protest; and would we protest?

The first question is a question of law. Would the United States have the right under international law to object to such a blockade? As a preliminary to the answer to this question, it must be pointed out that a blockade of Russia by the British might result in two different situations. Russia could undoubtedly regard such a blockade as being war, and if she did, no other country, neither the United States nor any other country, could then object to the blockade. The reason for that is that, without going into the much debated question as to the "legality" of war, under present international law it can at least be said that a neutral may not object to the belligerent status of two countries at war with each other. Of course a neutral may object to the manner of carrying on the war, or to particular incidents during the fighting; a neutral may protest that a particular blockade is not binding because not effective, and so on; but these things are not immediately important here. The important thing here is that if the blockade resulted in war, we could not object to the fact of war and its incidents.

On the other hand, a blockade might continue merely as a blockade, without the technical status of war arising. This is, I suppose, not very likely in the case of the blockade of a Great Power, but still it is legally possible under the terms of the Covenant.

The situation created would be new under international law. It would have to be considered as arising wholly from treaty and consequently not a situation binding on Third States, but as to them simply a situation in which their rights were governed by the principles of international law. Under these rules, the nearest approach to such a situation is the so-called pacific blockade of the past.