IF Great Britain, acting on behalf of the League of Nations, should blockade the territory of a state that had gone to war in contempt of its peace pledge as a member of the League, what would the United States do? Sometimes the question is put thus: Is it conceivable that the American and British navies might some day clash because the United States stood for its full rights as a neutral? These queries, which are not infrequently heard, point to a major problem of American diplomacy.

Great Britain, like other members of the League, has accepted some heavy burdens. Among them is the duty, under certain circumstances, to prevent all financial, commercial or personal intercourse between the nationals of a League member which resorts to war in disregard of the Covenant, "and the nationals of any other state, whether a member of the League or not." The matter of sanctions is broadly dealt with in Article 16 of the Covenant. At Locarno in October 1925, Messrs. Beneš, Briand, Chamberlain, Mussolini, Skrzynski and Vandervelde, informed Germany that Article 16 "must be understood to mean that each state member of the League is bound to coöperate loyally and effectively in support of the Covenant and in resistance to any act of aggression to an extent which is compatible with its military situation and takes its geographical position into account." Now the British Government doubtless would assert the right to judge for itself whether in a given case a British blockade against a covenant-breaking belligerent were essential or desirable; they might be slow to admit that any duty to the League demanded recourse to that particular measure. Nevertheless, it must be assumed that a British Government might sometime regard it as a British duty or privilege, and this possibility causes much perplexity on both sides of the Atlantic. Here is the reason.

America and England are still miles apart in their views as to what international law permits a blockader to do. The issues of 1915-1917 remain unsettled. The United States maintains that a belligerent may not, under cover of blockade, place a screen or barrier before neutral commerce with neutral states near the territory which the belligerent is seeking to blockade. It is contended that innocent traffic with neutral territory is sure to be interfered with if a country such as Great Britain renews the claims which it made during the World War and uses its navy to enforce them. What causes anxiety is not the prospect of a blockade of the kind generally acquiesced in up to 1914, but departures from it which the United States has never admitted to be sound. Thus the operation of any plan which encourages Great Britain, even for a good cause, to exercise what it has heretofore asserted to be the full measure of its rights when at war, is looked upon with something akin to dismay.

If while remaining at peace with a covenant-breaking belligerent Great Britain nevertheless undertook to blockade its territory, a real difficulty might also be anticipated. The United States does not contend that a pacific blockade is necessarily illegal or unjust. But it does maintain that international law confers no privilege on a pacific blockader to enforce its measures against the ships of third states. It does not admit that those ships or their cargoes may be lawfully seized or sequestrated. Our country might therefore be expected to make vigorous objection if Great Britain as a pacific blockader employed its naval power to bar the access of American ships to the ports of the blockaded territory. Nor would the United States be disposed to admit that the high purpose of the blockader or the sinister conduct of the covenant-breaker justified the sacrifice of the normal privileges of merchant-ships on the high seas in time of peace. Those privileges, which were given fresh recognition in a recent decision of the Permanent Court of International Justice, are still highly held in America.

In either of the two circumstances suggested the United States would not admit that Great Britain by the fact of belonging to the League could gain any right of blockade which it otherwise lacked, or that acceptance of the Covenant by numerous countries could take from an outsider such as the United States privileges which it normally enjoyed. It would object primarily to the disregard of an underlying principle. Inconvenience and loss of trade might appear to be of much less concern. It will not do to dismiss these contentions with the suggestion that they would be reactionary or hostile to a new spirit of international coöperation. The fact must be reckoned with that, if occasion arose, they would in all probability be made and stoutly defended by the United States. We should maintain that they rested on a rock foundation, namely that international justice is not promoted by relaxing respect for the principles of international law, and that those principles remain the law until substantially the full membership of the family of nations decrees otherwise.

Must we, then, accept Anglo-American disputes over blockade as normal incidents of the future? What follows is an attempt to suggest how we might escape such an issue. If one can remove from Great Britain (as well as from the League) the feeling that a British blockade is a necessary means of penalizing an aggressive and faithless belligerent, then the danger of an Anglo-American controversy vanishes from the horizon. But this must remain an empty dream unless the United States undertakes itself to provide an effective substitute for the measures which it opposes.

The United States is already in a position where it can do something; but it needs to be able to do a great deal more. Through the Treaty for the Renunciation of War signed at Paris on August 27, 1928, and approved by our Senate on January 15, 1929, we are winning the pledges of very many states that the settlement of conflicts between the contracting parties "shall never be sought except by pacific means," and that war is renounced as an instrument of national policy. If that pledge to us were broken we should as a nation feel a sense of outrage. Indignation might arouse our people to give moral and material support to the enemy of the treaty-breaking belligerent. But when it came to governmental action, the United States would not be free. It would still be obliged to abstain from acts of partiality. It could not lawfully, while still remaining at peace, withhold from the treaty-breaker aid of the sort which it permitted its enemies to extract from American territory. In a word, the United States could not in many practical ways penalize the wrong-doer without violating its duties as a neutral. What seemingly escapes the eyes of many people is the fact that a breach of contract on the part of the faithless belligerent could not lessen our duty as a neutral to deal impartially with it as well as with its enemy. As the Secretary-General of the League of Nations well said in 1927: "A belligerent's rights towards neutrals do not depend upon the legality or illegality of its conduct in resorting to war." The Treaty of Paris of August 27, 1928, does not purport to cover the matter.

But between states which have subscribed to the Covenant of the League of Nations the situation is quite different. Considerable latitude is yielded to members in applying sanctions against a covenant-breaking belligerent; and they are not necessarily obliged to become its enemy. The covenant-breaker has agreed in advance to the League system of applying penalties under the conditions set forth in the Covenant. Between League members the strict obligations of neutrality may cease to exist.

The power of the United States for peace would be enormously strengthened if it could acquire a relationship to a contracting state which breaks its pledge under the Treaty of Paris analogous to that which a member of the League possesses with respect to another member which breaks the Covenant. We too need a modification of the laws of neutrality applicable to states which contract with us for the amicable adjustment of differences and for the renunciation of war. We need to attain a position where as a neutral, without violating any obligation to anybody, we may withhold aid and comfort at any time from a state which breaks its pledge to us and embarks upon a belligerent program which it has agreed with us to renounce. If we desire to be able to penalize that state without becoming its enemy, we must obtain from it the assurance that our inflicting of specified penalties upon it as a covenant-breaker is not necessarily to be deemed an unfriendly act, still less an unneutral one.

A slight addition to the Treaty of Paris might afford us the necessary latitude, or possibly a fresh supplementary convention would be preferable. But the method and form of agreement are unimportant. The main point is that there should be an agreement and that it should at least permit a contracting party, such as the United States, to cut off intercourse between its own territory and that of the treaty-breaking belligerent without itself becoming a party to the conflict. The United States would then be enabled without danger of subsequent embarrassment to offer a feasible substitute for a particular measure -- blockade -- which seems to it to be highly objectionable.

The depth of the American interest in deterring recourse to blockade is not yet clearly understood abroad or at home. We are as much concerned with the methods by which other states may attempt to penalize a covenant-breaking belligerent with which we remain at peace as we are with the fact that it is to be penalized. Our readiness to coöperate with the countries of every continent for the maintenance of peace implies no acquiescence in the employment of sanctions which we oppose. There is no warrant for believing that in consequence of the Treaty of Paris the United States might be disposed to acquiesce in the establishment of a British blockade in behalf of the League of Nations. The facts are likely to be quite the reverse. American coöperation with other states for the sake of peace, especially in the penalizing of treaty-breaking belligerents, is likely to be proportional to the readiness of those states to utilize sanctions that harmonize with American thought. Thus the constructive contribution which the United States may be expected to offer for the solution of the general problem will call for the use of methods which perhaps differ widely from those heretofore accepted in many quarters as feasible and necessary. We should not, of course, oppose the performance of legal duties which other states have contracted with each other under the Covenant. Nevertheless, the United States, aware of the influence of its own action upon the success of particular contestants in future wars, may deem it reasonable to demand that the exercise of that influence as an obstacle to a treaty-breaker should depend upon the readiness of countries with which we may be aligned to refrain from conduct which we deplore.

The matter of a British blockade is in point. The United States might address Great Britain somewhat as follows:

"We do not agree with you as to the rights of a blockader. Under Article 16 of the Covenant of the League you enjoy large discretion as to choice of means to use against a declared aggressor. Do not resort to blockade, whether you remain technically at peace or whether you go to war; at any rate, do not use your naval force to assert what you deem to be your rights as a blockader against American shipping. We in turn will agree that if a country breaks its covenant under our multilateral treaty and goes to war in contempt of its pledge to us, we shall endeavor to prevent all commercial intercourse through the American merchant marine, and all such intercourse between American territory and that of the treaty-breaker. But this must be done by American authority and not by a British fleet."

Two particular objections to this plan may be expected. The first is that in many situations we may not see eye to eye with the British Government as to the reasonableness of penalizing a particular belligerent. The United States may doubt whether the state in question has in fact gone to war in violation of any pledge to any country. Such cases may arise; their probable frequency cannot be estimated. Nevertheless, it is also true that in consequence of the Treaty of Paris there are likely to be many instances when the United States and Great Britain (as well as its fellow-members of the League) have no difference of opinion as to the wrong done each of them by the same belligerent acts of the covenant-breaker, and as to the desirability of applying sanctions against that state. The plan proposed would take cognizance of this existing alignment rather than create a fresh one, and would make practical use of it by a means not obnoxious to American sentiment. It would serve to harness together for the cause of peace great potentialities that still remain unutilized.

A second possible objection turns upon the practical difficulty of our cutting off, by our own authority, intercourse between American territory and that of the proscribed belligerent. Though this difficulty ought not to be minimized it is far from being insurmountable. Once admitted that the United States is interested not only in witnessing the downfall of the treaty-breaker, but also in giving up something in order to bring about that result, the responsibilities may not appear too heavy to be assumed. The point to be emphasized is that if the United States should use the means at its disposal to prevent the departure from its territory of persons and things which it had reason to believe were destined for the territory of the treaty-breaking belligerent, it would strike a powerful and perhaps a decisive blow against it. And in return for the assurance that that blow would be struck, other maritime states, and notably Great Britain, might be willing to make the desired sacrifice.

The suggested procedure finds its root in a practice not unfamiliar to American diplomacy. An agreement not to exercise what are deemed to be rights or privileges, rather than an agreement to give them up (especially when there is controversy as to what they entail), has frequently proved to offer a practical way out of some difficulty. More than once Anglo-American relations have profited by the use of this method. The convention of January 11, 1909, concerning the boundary waters between the United States and Canada is a case in point. While each party reserved "the exclusive jurisdiction and control" over the use and diversion of all waters on its own side of the boundary line which in their natural channels would flow across the boundary or into boundary waters, an agreement was reached restricting further obstructions or diversions affecting the natural level or flow of boundary waters except with the approval of an International Joint Commission. In this way Canada and the United States simply undertook not to exercise rights which neither was prepared to agree to abandon. Again, the liquor treaty signed by Secretary Hughes and Sir Auckland Geddes on January 23, 1924, marked sacrifices following the same general theory. We agreed not to exercise our right to keep sealed cargoes of intoxicating liquors outside of American territorial waters, and Great Britain on its part agreed not to object to our seizures of British vessels on the high seas adjacent to our territorial waters under circumstances when it did not admit that international law clothed us with the privilege of seizure. Each country thus promised not to assert what it believed to be its rights, because of the sacrifice which the other was willing to yield. Our relations with Japan have furnished a still more impressive instance. By the "Gentlemen's Agreement" of 1908, Japan undertook to prevent the emigration of Japanese laborers bound for the United States, while we on our part abstained from exercising our right to enact a rigid law designed to keep them out. There was solid reason for the agreement. We gave up something in order to save the pride of a friendly nation; and that nation by its own acts saved us from what we conceived would be economic harm.

The day has not yet come when we may expect Great Britain to agree to accept our theory as to the law of blockade, nor are we willing to yield to British theories enunciated in the World War. We therefore are not likely to succeed in reaching an agreement by means of diplomatic discussions as to just what the law is or what it ought to be. Nevertheless, the time may be at hand when an Anglo-American agreement that would result in dispensing with blockade may become feasible. As a preliminary we in the United States need to widen our sense of natural alignment with other nations opposed to covenant-breaking belligerents. But, as this article points out, we also need something more concrete -- an assurance on the part of countries accepting the Treaty of Paris that a contracting party, such as the United States, may in certain ways proceed to penalize a treaty-breaking belligerent without becoming its enemy. With such a bulwark, we can take the next step and confidently enter into negotiations with Great Britain respecting blockades and the limitation of naval armaments.

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  • CHARLES CHENEY HYDE, Hamilton Fish Professor of International Law and Diplomacy at Columbia University; formerly Solicitor for the Department of State
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