The Geneva Protocol

by David Hunter Miller

In my view, which is the view of the vast majority of writers on the question, Third States do not have to respect a pacific blockade. (See Oppenheim, 3rd edition, Vol. II, page 56.) Accordingly, it seems to me that the United States would be entitled to regard such a blockade as not affecting her commerce with Russia.[[6]]

If the United States took such a position, as probably she would, the practical value of such a blockade would be very largely diminished, for I do not think there is any doubt that the Members of the League would admit that the blockade only applied to such Third States outside the League of Nations as might acquiesce in it.

Under the Protocol, precisely the same legal situation as to the blockade of Russia exists as under the Covenant and the same conclusions would follow. However, the probability of such a blockade under the Protocol, without an actual state of war resulting, is much less than under the Covenant. The Protocol provides definitely for military sanctions and it can hardly be doubted, as a matter of reality, that if the sanctions of the Protocol commenced to be applied to a State in or out of the League and that State resisted, the result would be war as between that resisting State and at least those of the Members of the League, like Great Britain, that were taking a real part in the application of the sanctions.

And, as pointed out above, the legal situation is much clearer in the case of war than in the case of this economic and financial boycott of the Covenant. It would be much "easier"[[7]] to go to war than it would be to apply the economic and financial sanctions alone. The world has gotten more or less used, in a legal sense, to the legalities and illegalities of war; but there are no precedents as to the corresponding situations[[8]] in such a blockade as has been suggested; and it is, above all, custom and general agreement that make international law.

I may sum up my views on this point as follows:

If under either the Covenant or the Protocol, the economic sanctions were applied either against a Member of the League or a non-Member of the League and the application of these sanctions did not result in war, the United States legally could, and very likely would, contend that any resulting blockade was not applicable to the United States and the commerce and intercourse of her residents; and this view would be accepted by the Members of the League as being legally sound; and the result of course would be that the practical effect of any such blockade would be very much weakened.

However, if the application of the sanctions either of the Covenant or of the Protocol resulted in war between the State against which the sanctions were applied and the States applying them, the United States could not object to that state of war, although of course it would have its rights as a neutral in such a war as in any other war and these neutral rights would not be affected by any provision of either the Covenant or the Protocol.

The next consideration is the possible application of sanctions against the United States. From the foregoing review of the provisions of the Covenant and of the Protocol it is evident that such action against the United States is possible from a theoretic point of view. It is, however, important here to repeat that there is no possible sanction in either paper against a non-Member of the League except after war breaks out, a war which the non-Member of the League has commenced against a Member or against a Signatory to the Protocol as the case may be. In other words, the sanctions of either paper could only become operative against the United States after the United States had gone to war against a Member of the League.

Continuing the theoretic view of the matter, it would be idle to discuss any difference between one kind of 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 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.