The Geneva Protocol, by David Hunter Miller

CHAPTER XV. 61
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.
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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
{93} 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