Practice makes custom: a closer look at the traditional law of naval blockade.
I. INTRODUCTION II. WHY THE DESUETUDE OF TRADITIONAL BLOCKADE LAW MATTERS i. The Gaza Blockade ii. The Fragmentation of International Law III. THE ARGUMENT THAT TRADITIONAL BLOCKADE RULES ARE CUSTOMARY INTERNATIONAL LAW i. The London Declaration and the San Remo Manual ii. A Critical Assessment of the London Declaration iii. A Critical Assessment of the San Remo Manual IV. THE FORMATION AND MAINTENANCE OF CUSTOMARY INTERNATIONAL LAW V. STATE PRACTICE, OPINIO JURIS, AND NAVAL BLOCKADES i. State practice and opinio juris in arguments for traditional blockade law ii. State practice and opinio juris during blockades a. The World Wars b. The Chinese Civil War, 1949 c. Korean War, 1950-1953 d. Arab-Israeli War, 1967 e. India-Pakistan War 1971 f. Vietnam War, 1972 g. Arab-Israeli War, 1973 h. Iran-Iraq War 1980-1988 i. Israel-Lebanon War 2006 iii. Neutral state responses to blockades since 1945 iv. Military Manuals v. Summary of state practice and opinio juris during blockades a. State Practice b. Opinio Juris vi. Have new customary blockade laws arisen from contemporary state practice? VI CONCLUSION
"Horatio: Is it a custom?
Hamlet: ... --it is a custom/More honour'd in the breach than the observance."
William Shakespeare, The Complete Works of William Shakespeare (London: Wordworth Editions Limited, 2007) at 676.
In September 2011, the Turkish Foreign Minister announced that Turkey will challenge the legality of Israel's naval blockade of the Gaza Strip at the International Court of Justice. (1) The announcement followed the release of the UN Secretary-General mandated Palmer Report, which addressed the legality of the Gaza blockade. (2) Commissions created by Israel, Turkey, and the UN Human Rights Council had previously published reports that discuss the blockade's legal standing. (3)
The four reports have all invoked what has been called the traditional law of naval blockade, which is a collection of nineteenth-century rules governing the wartime blockade of enemy coastlines. (4) The reports rely upon blockade law to different degrees, but all four assume its validity as customary international law.
The thesis of this article is that traditional blockade law has fallen into desuetude and therefore cannot be relied upon. Blockade law has not been followed by state practice nor been understood to govern state practice for nearly a century. The desuetude of traditional blockade law does not mean that naval blockades exist in a legal vacuum; in fact they may be subject to a multiplicity of legal regimes, including the law of the sea, the law of peace (jus ad bellum), international humanitarian law (jus in hello), and international human rights law.
This article begins by explaining why the desuetude of traditional blockade law matters. It then turns to three questions that are central to its thesis. First, what is traditional blockade law and what is the argument for its continued validity? Next, what is customary international law and how is it formed and maintained? Finally, does traditional blockade law meet the requirements of customary international law? The article concludes that traditional blockade rules have been abandoned and can no longer be considered customary international law.
This thesis challenges the common assumption in recent literature that blockade law continues to be binding customary law. (5) The work of several influential authors supports this assumption. (6) Foremost among them is Dr. Wolff Heintschel von Heinegg, who served as a special consultant to the Israeli Commission and was cited extensively in the Palmer Report. (7) This article responds directly to some of Dr. von Heinegg's arguments.
II. WHY THE DESUETUDE OF TRADITIONAL BLOCKADE LAW MATTERS
The relevance of the legal status of nineteenth-century rules governing coastal barricades--a tactic seldom undertaken in contemporary times--may not be self-evident. Yet this topic warrants investigation for two reasons. First, it is critical to determining the legality of the Gaza blockade. Second, it exemplifies how the problems of the fragmentation of international law can be mitigated by an examination of the relevance and validity of different legal regimes. Both points are explored below.
i. The Gaza Blockade
In the words of the Israeli Commission, the Gaza conflict's competing narratives sometimes seem "to present two very different perceptions of reality." (8) To avoid taking sides in this polarized arena, I will set out only the basic, uncontroverted facts of the Gaza blockade.
In September 2007, three months after Hamas took control of the Gaza Strip, Israel declared Gaza a "hostile territory" and imposed restrictions on the passage of goods, oil, electricity and persons to and from its territory. (9) Eleven months later, in August 2008, Israel published a Notice to Mariners calling on shipping to refrain from entering the waters off of the Gaza coast. (10) This was described by Israel's Military Advocate-General as a declaration that the maritime zone of the Gaza coast was a "combat zone" or "exclusion zone." (11) Then, on 3 January 2009, during the Operation Cast Lead conflict, the Israeli Minister of Defense ordered a naval blockade off the coastline of the Gaza Strip. (12) The blockade remained in force after the conclusion of Operation Cast Lead. (13)
Fifteen months later, in the early morning hours of 31 May 2010, Israeli Defence Forces boarded a flotilla of six vessels that was attempting to break the blockade while carrying humanitarian supplies to Gaza. (14) Nine passengers of one of the vessels, the MV Mavi Mara, were killed in the take-over. (15)
This incident triggered the aforementioned four inquiries into the events of 31 May 2010 and the Gaza blockade more generally. On 27 September 2010, a fact-finding mission of the UN Human Rights Council ("HRC") released a report on the incident, based on over 100 interviews with witnesses. (16) It concluded that the blockade was unlawful. (17) This was followed by reports commissioned by the governments of Israel and Turkey, in January and February 2011, which concluded that the blockade was legal and illegal, respectively. In September 2011, a four-person Panel of Inquiry established by the UN Secretary-General released the Palmer Report, named for its chair, Sir. Geoffrey Palmer. It concluded that the blockade was legal, but that Israel's use of force on 31 May 2010 was excessive and unreasonable. (18) All four reports relied, to varying degrees, on the traditional law of blockade. The thesis of this article--that this legal regime is in desuetude--challenges their use of this legal regime and any conclusions that rest on it.
ii. The Fragmentation of International Law
In the absence of a general legislative body, the proliferation of treaties and other forms of international law has resulted in overlap among specialized fields of legal practice. This phenomenon is known as the fragmentation of international law. Among the consequences of fragmentation, in the words of the International Law Commission's ("ILC") report on the subject, is "the loss of an overall perspective on the law." (19) The four blockade reports demonstrate two problems that arise from this loss of perspective.
The first problem is that adjudicators are likely to allocate more attention and analysis to some legal regimes than to others. This can manifest out of a scarcity of resources--the analysis must be divided between regimes, with some inevitably being crowded out. "Cherry-picking" legal regimes may also be a tactical move by the parties, or even the decision-makers, especially when different regimes point to different outcomes.
The reports on the Gaza blockade exemplify this. The HRC Report dedicates one sentence to the traditional rules of naval blockades and three pages to humanitarian law. (20) By contrast, the Israeli Commission is far more interested in traditional blockade law. As Martin Fink writes,
Clearly the [Israeli] Commission takes the traditional law [of blockade] as its central point of departure. It also considers humanitarian aspects to the law of naval blockade, but only as far as the provisions ... [are] mentioned in the [San Remo Manual on International Law Applicable to Armed Conflicts at Sea]. Although it briefly considers the application of human rights, it is however reluctant to view the law of blockade from a wholly humanitarian perspective that reflects the complete scope of humanitarian law. (21)
These two paths of legal reasoning lead the reports to different conclusions: as noted above, the HRC Report found the blockade was unlawful, while the Israeli Commission found that it was legally sound.
A second problem arising from competing legal regimes has to do with fact-selection. The facts that will be relevant for one regime may not be relevant for another. There is a risk that an adjudicator will allow only the facts that are relevant to one regime. Even if the adjudicator goes on to consider the second legal regime, important facts may have already been excluded, resulting in a second analysis that is superficial or incomplete. Imagine that a person is confined to a house with a front door and a back window. Food entering the house through either entrance is restricted. Two legal regimes govern the house: the first prohibits the starvation of the confined person, while the second prohibits improper window restrictions. Under the first legal regime, it would be artificial to consider the window without paying consideration to the door. Under the second regime, however, the door is of no importance at all: only the window matters to the law about windows.
Assume that the judge deciding the case allows only facts relating to the window. She finds no violation of the law against improper window restrictions. She then turns to the law against starvation, and concludes that the window restrictions cannot be said to be illegal because its effects are indistinguishable from the effects of the door restrictions, evidence of which she has opted not to allow.
The Palmer Report approached the Gaza blockade in a similar manner. The report states early in its analysis that it will treat the naval blockade in isolation from the restrictions to Gaza's land borders. That is because the two policies were separate, had been implemented at different times, and because:
the naval blockade as a distinct legal measure was imposed primarily to enable a legally sound basis for Israel to exert control over ships attempting to reach Gaza with weapons and related goods. (22)
The naval blockade is legally "distinct" from land restrictions under the traditional blockade regime. However, from the perspective of international humanitarian law and its prohibition on collectively punishment of civilian populations, the blockade is indivisible from the land barriers. (23)
Because the Palmer Report excluded Gaza land restrictions from the factual context under its consideration, it found it impossible to attribute humanitarian impacts to the blockade:
... the specific impact of the naval blockade on the civilian population in Gaza is difficult to gauge because it is the land crossings policy that primarily determines the amount of goods permitted to reach Gaza. (24)
It commented that as a policy judgment the land restrictions are "unsustainable", but concluded that "it is wrong to impugn the blockade's legality based on another, separate policy." (25)
In contrast, the International Committee of the Red Cross considered the land and water closure of Gaza together and, in a declaration unusual for an organization famous for its neutrality, determined that it violated international law:
The whole of Gaza's civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law. (26)
To some degree, the problems associated with legal analysis and fact selection are unavoidable. Attention to competing legal regimes cannot be parcelled out in precisely equal measure. In the case of the Palmer Report, considering the land restrictions would have entailed a considerable expansion of its scope.
However, this article shows that the problems of fragmentation can be minimized, or even avoided, by examining the legitimacy or the applicability of possible legal regimes. It argues that the authors of the reports did not need to allocate analysis to traditional blockade law, because that law was not binding. In this case, desuetude is a counterweight to the problems of fragmentation.
This is a strong example of why decision-makers faced with multiple legal regimes must heed the LLC's warning and not lose an overall perspective of the law. Which legal regimes address the issues with which an adjudicator should be primarily concerned? In this case, for example, was it more important to determine if the blockade adhered to a checklist of qualifications developed for nineteenth-century square-sailed ships or to determine if the impact on Gaza's 1.5 million residents constituted a collective punishment on a civilian population?
III. THE ARGUMENT THAT TRADITIONAL BLOCKADE RULES ARE CUSTOMARY INTERNATIONAL LAW
i. The London Declaration and the San Remo Manual
Two documents lie at the heart of the claim for the continued relevance of traditional blockade law: the 1909 London Declaration and the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea ("SRM"). The argument is as follows. In the nineteenth-century, certain rules governing naval blockades crystallized into customary law. (27) These rules were codified by ten naval powers in the London Declaration. This document was not ratified and therefore did not become treaty law, however it remains a record of customary law. (28) The provisions of the London Declaration were included in the SRM by a roundtable of international lawyers and naval experts, confirming their continued binding nature. (29) Like the London Declaration, the SRM is not a treaty but a written record of customary law.
Blockade is defined in the SRM as "the blocking of the approach to the enemy coast, or a part of it, for the purpose of preventing ingress and egress of vessels or aircraft of all States." (30) Blockades are a form of warfare and can only be employed during international armed conflicts. (31) The traditional law governing blockades, as recorded in the London Declaration and the SRM, can be summarized as follows. (32) Blockades must (a) be declared, including location and duration, (33) (b) be impartially applied to vessels of all states, (34) (c) not bar access to neutral coasts, (35) (d) be effective, that is maintained by a force sufficient to prevent access to the blockaded coastline, (36) and (e) be enforced by legitimate methods. (37) Merchant vessels that breach or attempt to breach a blockade may be captured, or attacked if they clearly resist capture. (38)
The argument for the customary legal status of blockade law imagines the London Declaration and the SRM to be accurate records of customary international law. This premise is tenuous, as will be shown in the following two sections.
ii. A Critical Assessment of the London Declaration
The London Declaration has been called "the over-ripe product of many disparate parties' calculations of moral advantage and material self-interest." (39) The claim that it is a record of customary international law needs to be qualified in three important respects.
First, the London Declaration went beyond stating accepted customary law. The preamble of the London Declaration states that its provisions "correspond in substance with the generally recognized principles of international law". (40) Yet, as James Garner noted in 1927,
this assertion was not meant to imply that the Declaration was merely a conventional statement of the pre-existing customary law but rather a formulation in accordance with generally recognized principles, of uniform and definitive rules in the place of the hitherto vague and divergent uses. (41)
The transformation of "divergent uses" into "uniform and definitive rules" is bound to overstep some interpretations of existing law. In a subsequent prize law case, the Judicial Committee of Great Britain described the London Declaration as a "provisional agreement embodying certain somewhat sweeping changes in international law." (42) Similarly, the German Prize Court "held that various articles of the Declaration were not simply declaratory of the pre-existing customary law but embodied new principle." (43)
Second, the London Declaration was also not relied upon by national prize courts as a record of international law. Again, Garner records,
the Prize Courts were apparently in agreement that whatever obligatory force the Declaration possessed it was derived not from the formal character of the instrument itself, since it had never been ratified by any of the belligerents, nor even from the assertion in the preamble that its provisions corresponded in substance with the 'generally recognized principles of international law' but solely from the national decrees and orders by which it was put into effect. (44)
In other words, the London Declaration was enforced only insofar as it was adopted in national legislation "and then only subject to the alterations and additions which [national legislation] introduced." (45) The London Declaration itself had no persuasive value as a statement of customary law before European prize courts, at least between 1914 and 1924.
Finally, the London Declaration was explicitly rejected by World War I combatants a mere five years after it had been signed. In August 1914, the United States urged both belligerents and neutrals in the war to adopt the London Declaration. That same month, the British government replied that it had decided "to adopt generally the rules subject to certain modifications and additions which they judge indispensible to the efficient conduct of their naval operations" (46) The French and Italian governments expressed similar reservations, and the United States withdrew the suggestion on 22 October 1914. (47) Two years later, on 7 July 1916, the Allied powers sent a joint memorandum to all neutral governments officially abandoning the London Declaration. The memorandum stated, "The rules laid down in the Declaration of London could not stand the strain imposed by the test of rapidly changing conditions and tendencies which could not have been foreseen." (48) Germany followed suit and officially abandoned the London Declaration on February 1917. (49)
In summary, the legacy of London Declaration in the decades following its signing was one of neglect and rejection. In 1921, J.A. Hall described the document as having been "ill-fated." (50) Only with the SRM was it resuscitated and held to be an authoritative legal statement on blockade warfare. (51)
iii. A Critical Assessment of the San Remo Manual
The SRM's section on blockade has its own shortcomings. The Explanation that accompanies the SRM describes that "the Round Table engaged in an extensive discussion on the issue of whether the practice of blockade was, on the one hand, entirely archaic or, on the other, remained a viable method of warfare." (52) Although the majority agreed upon the latter, "a minority believed that the traditional rules for formal blockade were in complete desuetude." (53)
The SRM is the result of a majoritarian process rather than consensus, which detracts from its authority. This is especially true because its members specialized in a wide range of subject areas. An expert on the exemption of medical aircraft from attack is not necessarily qualified to vote on the continued legality of traditional blockade rules.
More importantly, a survey of blockade law scholarship shows that the minority opinion in the SRM roundtable is in good historical company. Throughout the post-war period, leading academics have variously described the law of blockade as confused, irrelevant, and non-existent. Here are a few examples:
* In 1957, Robert Tucker, then a professor at Johns Hopkins University and consultant at the Naval War College, wrote, "It is by now a commonplace that the customary rules regulating blockades have been found by belligerents to be unduly restrictive--or, more accurately, almost impossible of application--under modern conditions." (54)
* In 1975, D.P. O'Connell, then the Chichele Professor in Public International Law at the University of Oxford, described as an open question "whether, in light of the United Nations Charter a state of war can legally exist today in which neutral shipping can be denied passage into a belligerent port." (55)
* In the 1988 text The Law of Naval Warfare, editor Natalino Ronzitti wrote that "formal blockade seems to have become an obsolete method of warfare." (56) In the same book, Frits Kalshoven, then Professor of International Humanitarian Law at Leiden University, concluded, "It would seem ... that the rules in the [London] Declaration on blockade in time of war are now mainly of historical interest." (57)
* In a 1992 article in The Yale Law Journal, Michael Fraunces states, "It is now clear that the combination of new technology, new players, and new objectives has steadily shifted blockade practice away from its traditional form. Consequentially, the traditional principles no longer adequately guide state practice." (58)
The suggestion here is not that there was a consensus opinion against traditional blockade law prior to 1994. For one thing, not all of these authors agree on blockade law's obsolescence, only its confusion. Moreover, during these same decades, countervailing academic opinions insisted on blockade law's continued applicability. (59) The point is only that the majority opinion of one group of academics should not be mistaken for an infallible assessment of the law. The literature shows that an alternative roundtable of no-less esteemed scholars might have consigned the traditional blockade provisions of the London Declaration to the historical record.
Customary law is not determined by the competing opinions of experts. Nor, for that matter, is it decided by unratified treaties. Customary law is established by state practice and the beliefs supporting that practice, as the following section describes.
IV. THE FORMATION AND MAINTENANCE OF CUSTOMARY INTERNATIONAL LAW
During the nineteenth century, a number of rules governing the use of naval blockades crystallized into customary international law. Once established, however, customary law does not remain binding ad infinitum. Customary laws not observed or not understood by states to be binding fall into desuetude. Mark Villiger explains it this way:
Desuetude is essentially the inverse process to the formation of a customary rule. The rule continues to exist as long as there is general, uniform and constant practice accompanied by opinio juris. If one of these conditions falls away, for instance, if the practice is no longer widespread ... or if it is inconsistent, the rule will pass out of use. (60)
That customary law can enter desuetude should not be surprising. All rules may fall into disuse, including international treaty law. (61) In the case of customary law, it is natural that the expiration of the custom should bring about the expiration of the law.
Following Villiger's definition, it is important to understand what is required to form customary law in the first place, since this is also the requirement for its maintenance. According to the Statute of the International Court of Justice, the formation of customary international law has two requirements: general practice and opinio juris (the acceptance of that practice as law). (62) State practice, according to the International Court of Justice ("ICJ"), must be "both extensive and virtually uniform." (63) However, occasional derogations from the customary rule will not threaten its legal status, as long as the derogations are treated by states as a breach of the rule rather than the creation of a new rule. (64) The opinio juris requirement demands that this practice is not only the result of self interest or accident, but is understood by states as a legal obligation. On this point the ICJ has held that state practice must arise "as a duty incumbent on [states] and not merely for reasons of political expediency." (65)
Customary law is determined by state practice and opinio juris, not by unratified treaties and academic roundtables. This is not to dismiss the London Declaration and the SRM altogether. They may be important, but only to the extent that they inform state practice and opinio juris.
V. STATE PRACTICE, OPINIO JURIS, AND NAVAL BLOCKADES
i. State practice and opinio juris in arguments for traditional blockade law
The argument for traditional blockade law relies heavily on the London Declaration and the SRM, but it also invokes state practice. Dr. von Heinegg writes that "limitations of the traditional blockade law have, to a considerable extent, been observed in the practice of States since 1945." (66) Similarly, the Explanation accompanying the SRM notes that "the occurrence of a number of incidents subsequent to the Second World War, in which States engaged in actions adopting some or all of the traditional rules of blockade, indicated that the doctrine still had utility as a coercive instrument." (67)
With respect, these analyses underestimate what is required to maintain customary international law. (68) It is not enough that state practice has observed traditional rules to a considerable extent, or that the state practice continues to have some utility. What is needed to maintain customary law is general state practice and opinio juris. Whether traditional blockade law meets these requirements is an open question that demands an examination of the state practice when implementing blockades.
ii. State practice and opinio juris during blockades
What is the record of state practice and opinio juris with regard to naval blockades? This question determines whether nineteenth-century blockade law survives today. Dr. von Heinegg identifies eight examples of state practice that conform "to a considerable extent" to traditional laws of blockades: naval actions taken during the Chinese Civil War, the Korean War, the Indo-Pakistani War of 1971, the Vietnam War, the 1967 and 1973 Arab-Israeli wars, the Iran-Iraq war, and the 2006 Israel-Lebanon war. (69) For the purposes of this analysis, I assume that these are the leading examples of states' regard for traditional blockade law since World War II. Dr. von Heinegg does not claim that these cases are in absolute conformity with the traditional rules. He mentions that the blockades on China and Vietnam were not justified as blockades, and also notes that the two Egyptian blockades on Israel were "deployed at a considerable distance from the area in question." (70) He does not describe further deviations from the traditional blockade rules.
Below, I examine each of the eight blockades more fully to determine the degree to which they adhered to traditional blockade rules. First, however, it is important to acknowledge the departures from traditional blockade law during the two world wars.
a. The World Wars
It is not disputed that states departed from the traditional law of blockade during World War I and World War II. (71) The official abandonment of the London Declaration during World War I has been noted above, and there was no return to traditional blockade law in the interwar period. Elmar Rauch writes that "the chaotic state of the law of naval blockade had not changed at all by the outbreak of World War II." (72) The blockades and war zones of World War II continued the systemic derogation from the traditional blockade rules. (73)
Proponents of traditional blockade law argue that these deviations were justified as reprisals. (74) This explanation is unsatisfying. Robert Tucker comments that "it is abundantly clear that these measures of reprisal were intended, in almost every instance, to achieve the purpose of blockade." (75) In any event, reprisals cannot explain away the fact that traditional blockade law was disregarded for the thirty years between 1914 and 1945.
b. The Chinese Civil War, 1949
Between 1949 and 1958 the Nationalist Chinese government in Taiwan maintained a "port closure" against the Communist-controlled mainland. (76) It is doubtful that the Nationalist port closure meets the definition of a blockade. While blockade is a method of warfare specific to international armed conflicts, (77) the Nationalist-Communist conflict is commonly described as a civil war.
In any event, the Nationalists did not justify their action as a blockade. A June 30, 1949 correspondence from the Nationalist government to the United States describes the closure of mainland ports as "enforceable independent of a declaration of blockade, which has never been and is not under the contemplation of the Chinese government." (78) The Nationalists were explicitly not declaring a blockade. Any adherence to the customary blockade law arose not out of opinio juris but of coincidence. In any event, adherence was limited. To enforce the blockade the Nationalists relied on alliances with sympathetic guerrilla forces, which foreign shippers regarded as little better than pirates. (79) Bruce Elleman describes the result in this way:
Taiwan's attempts to enforce the blockade using pro-Nationalist guerrilla forces meant that the blockade was porous; the guerrillas based on the offshore islands were clearly more interested in taking bribes or confiscating foreign shipments than they were in exerting economic pressure on the Communists. Meanwhile, many foreign ship captains paid bribes to guerrillas in order to pass unharmed into port. (80)
These behaviours contravene the traditional blockade law requirements that the blockade be legitimate and effective. The blockade also did not adhere to the requirement that merchant vessels only be attacked upon refusing capture. Incidents of the blockading forces "indiscriminately and wantonly firing on American ships" prompted the complaint of the US Secretary of State. (81)
c. Korean War, 1950-1953
The blockade of the North Korean coast by UN-sponsored, US-led forces between 1950 and 1953 adhered to the traditional blockade law requirements of declaration, impartiality and effectiveness. The blockade was declared by President Truman on July 4, 1950. It was impartial, with the exception of permitting the passage of warships that were not from North Korea. (82) Notwithstanding the account of Malcolm Muir Jr. that "enough supplies were getting through to make [blockade runners'] efforts worthwhile," (83) the effectiveness of the blockade is widely agreed upon. (84)
The North Korean blockade did breach the traditional provision that merchant ships only be attacked upon resisting capture. George Politakis explains that in the first year of the blockade, warships destroyed 213 North Korean civilian fishing junks and sampans and damaged another 147, while capturing only nine. (85) The fishing boats, being engaged in "commercial or private service," fall under the SRM definition of merchant ship. (86) This practice was eventually curtailed by UN Naval Command, which ordered that enemy fishing boats be captured rather than destroyed, but not before the traditional blockade provision had been flagrantly infringed.
While state practice during the blockade largely adhered to traditional blockade law, it is questionable whether this adherence was supported by opinio juris. The legal authority for the blockade of North Korea came from UN Security Council resolutions. (87) Even if traditional blockade law had been active, it would have been at least somewhat displaced by Security Council authorization. This is the opinion of George Walker, who argues that "the traditional law may not apply in blockade operations when Council decisions authorize or direct action." (88) Dr. von Heinegg contends that a blockade authorized by the UN Security Council under Article 42 would not have to observe the effectiveness requirement and would be permitted to interfere with neutral coasts. (89) Although the Security Council resolutions on the Korean War do not invoke blockade specifically, they do use the language of an Article 42 resolution. (90) Consequentially, even if the blockading states believed that traditional blockade law was not in desuetude, they would not have understood themselves to be bound by it. Any adherence to traditional principles likely arose out of coincidence rather than opinio juris.
Traditional blockade law aside, the blockade of North Korea may well have been illegal for humanitarian reasons. The blockade was used to prohibit North Korean civilian fishing; as already noted, hundreds of small wooden fishing boats were destroyed by the blockading forces. Politakis describes the fishing prohibition as legally questionable because "entire coastal communities living on fish were brought to starvation, and sooner or later were forced to flee North Korea because their survival was seriously compromised." (91) By modern standards, it would likely violate Article 54(1) of the 1977 Additional Protocol I, which prohibits the starvation of citizens as a method of warfare. (92)
d. Arab-Israeli War, 1967
On May 23, 1967, just prior to the outbreak of the Six Day War, Egyptian President Gamel Nasser announced the closure of the Straits of Tiran to ships bound for the Israeli port of Eilat. Nasser framed the action as "an affirmation of our rights and our sovereignty over the Gulf of Aqaba. The gulf constitutes Egyptian territorial waters." (93) In other words, Egypt understood the action not as a blockade of an enemy coastline, but as a measure of control over its own waters. The strait closure was not impartial, because it denied entry only to ships flying the Israeli flag. Other ships were subject to contraband controls on strategic goods. The announcement also singled Israeli ships out by specifying that they would be fired at for disregarding orders. (94) Allowing non-Israeli ships that were not carrying contraband access to Eilat also means the action fails the effectiveness requirement. In the end, the Straits were reopened to international shipping after just two weeks on June 7, 1967. (95)
e. India-Pakistan War 1971
During the 1971 India-Pakistan War, India established a blockade against the coast of East Pakistan. Three Pakistani ships were captured, and a Liberian and a Spanish ship were sunk during the blockade. (96) From this, Dr. von Heinegg and others have concluded that the blockade was effective. (97) Other reports suggest that the blockade was haphazard. For example, Hilaire McCoubrey and Nigel White write that the blockade "amounted to little more than random assaults upon merchant shipping." (98) Since the war only lasted thirteen days, the true effectiveness of the blockade is difficult to assess.
Whether India's blockade fulfilled the declaration requirement is also uncertain. D.P. O'Connell observes that although newspapers carried reports that India had proclaimed a blockade, no blockade was formally gazetted. (99) In fact, O'Connell questions the legality of the blockade as a whole:
The utilization of the law of blockade seems to have been more of the order of suggestion than of actuality, but this may have been due to the fact that the war was over before a serious problem for international shipping could arise, and the Indian authorities were no doubt relieved that they were not obliged to make firmer decisions about the legal scope of their naval operations[.] (100)
Although a number of neutral ships were captured and attacked the Indian blockade of East Pakistan, it is not clear that the blockade adhered to any of the traditional blockade requirements.
f. Vietnam War, 1972
In May 1972, the United States mined the North Vietnamese harbour of Haiphong. (101) The action was not described as a blockade. (102) It did, however, adhere to some of the traditional blockade requirements. President Nixon made a formal declaration on May 8, 1972, and by definition heavily mined areas are both impartial and effective. (103) The mining of Haiphong halted all major maritime transport to North Vietnam until the mines were removed in early 1973 following the signing of the Paris Peace Treaty. (104)
The mining of Haiphong breached the traditional requirement that blockades be enforced by legitimate means. In the nineteenth century, this entailed "a line of vessels stationed in the immediate vicinity of the blockaded coast". (105) Proponents of customary blockade law argue that this requirement has been relaxed in respect of advances in military technology. (106) Even so, a blockade may not be enforced by mines alone. Dr. von Heinegg and the SRM Explanation insist that certain categories of vessels must be allowed ingress and egress through blockades, which is not possible when blockades are formed only of mines. (107)
The legality of the mining of Haiphong is also doubtful because the United States had not declared war against North Vietnam. Indeed, the Judge Advocate General of the United States Navy questioned the legality of mining on these grounds. (108)
g. Arab-Israeli War, 1973
During the 1973 Yom Kippur War, neutral ships bound for Israel were interfered with in the Strait of Bab-al-Mandeb off the coast of Yemen. (109) No blockade or similar measure was declared by either Egypt or Yemen. (110) D.P. O'Connell, describing the action as "some sort of blockade", writes:
Whether this was conducted by units of the Egyptian navy or not was apparently deliberately obscured, perhaps because the Egyptian government had not made up its mind whether the appropriate concept was that of distant blockade of Israel as an enemy with whom Egypt was at war ... (111)
In short, any action against neutral ships in Bab-al-Mandeb in no way resembled a blockade adhering to traditional requirements.
h. Iran-Iraq War 1980-1988
On September 22, 1980, Iran declared a prohibition on shipping to Iraq, a prohibition it would maintain throughout the eight year conflict. (112) This prohibition has been described as an effective blockade by several authors. (113)
As a preliminary point, it is debatable whether Iran's prohibition can be defined as a blockade, since the measures announced were roughly coterminous with its own territorial sea limits. (114) This point aside, Iran's interference with shipping to Iraq fails to conform to the traditional blockade laws in several respects. (115) First, Iran never formally declared a blockade or invoked the term blockade during the conflict. (116) Second, there are questions about the impartiality with which the blockade was enforced. Politakis observes that Iran targeted Saudi and Kuwaiti merchantmen "to hit the countries supporting the Iraqi war effort." (117) Finally, there are numerous incidents of Iran having attacked neutral merchants without having taken the initial measure of attempting their capture. (118)
i. Israel-Lebanon War 2006
Israel blockaded the coast of Lebanon between July 13 and September 7, 2006. (119) By all reports the blockade was faithful to the traditional laws of blockade in that it was declared, impartial, and effective. (120) However, two caveats regarding the blockade's legality warrant mention.
First, it is unclear that the blockade was conducted in an international armed conflict, since Israel was attacking Hezbollah rather than the state of Lebanon. James Kraska comments that "the 2006 Lebanon War involved an Israeli blockade of the coast of Lebanon, but arguably the contest was a transnational [non-international armed conflict] rather than an [international armed conflict] since the IDF was fighting Hezbollah, a non-state irregular force, and not the national armed forces of Lebanon." (121) Assessing the legality of a blockade in a non-international armed conflict is beyond the scope of this article, but this particularity may limit the precedential value of the Lebanon blockade.
The second caveat is that Israel's blockade violated humanitarian law according to some assessments. A Human Right Council commission of inquiry found that "the impact of the blockade on human life, on the environment and on the Lebanese economy seems to outweigh any military advantage Israel wished to obtain through this action." (122) This language suggests a violation of s. 102(b) of the SRM, one of its humanitarian blockade provisions. Whether that section is binding customary law is unclear. However, the Israeli blockade may have also violated Article 54 of the Additional Protocol I, which prohibits starvation of civilians as a means of warfare. As Said Ladki argues, the "blockade ultimately destabilized Lebanon's food supply. Lebanon became the world largest recipient of foreign food aid and wholly dependent on food aid donors." (123)
iii. Neutral state responses to blockades since 1945
Dr. von Heinegg emphasises that the blockades considered above were not widely protested by neutral states. He reasones that this was because neutral states "obviously accepted the legality of the blockades." (124) Two points warrant mention in response. First, neutral states have protested the legality of several blockades but, as Dr. von Heinegg suggests, their protests have been limited to jus ad bellum. Dr. von Heinegg only provides the example of the British protest of Iran's blockade, (125) but the United States and Britain protested the Egypt's 1967 blockade, (126) China and Russian protested the mining of Haiphong, (127) and both France and Russia objected to Israel's blockade of Lebanon as a disproportionate use of force. (128)
However, Dr. von Heinegg rightly observes that these protests have not been under jus in bello or the traditional law of blockade. There are several possible explanations for this. One is that neutral states did not believe that these blockades violated traditional blockade law. This is the position of Dr. von Heinegg. The problem with this argument is that nearly all of the blockades documented above have violated the traditional rules. An alternative, more compelling explanation for the silence of neutral states is that they did not believe that traditional blockade rules were binding international law. After all, the principles of the London Declaration had been completely disregarded for the three decades between 1914 and 1945, and had not obviously been revived since. Academics had declared the traditional law in desuetude. At least before the publication of the SRM, it would have been strange to invoke a custom so thoroughly discredited.
The silence of neutral states reinforces the thesis that traditional blockade law has fallen into desuetude. The ICJ has held that for a rule to be considered customary law, "instances of State conduct inconsistent with [the] given rule should generally have been treated as breaches of that rule." (129) Systemic deviations from the traditional rules of naval blockade over the past century have been met with silence, even from states who have criticized those blockades on other grounds. This is a clear indicator that that traditional blockade rules are no longer customary law.
iv. Military Manuals
Dr. von Heinegg and the SRM reference state military manuals as evidence of the continued relevance of traditional blockade law. (130) Dr. von Heinegg lists the manuals of the United States, United Kingdom, Germany, and Canada as recognizing the customary character of the 1909 London Declaration. (131) It is worth noting that the US Manual, while asserting the continued usefulness of blockades, concedes that there is a "trend in belligerent practices (during general war) away from the establishment of blockades that conform to the traditional rules." (132) Even so, the inclusion of traditional blockade rules in modern military manuals supports the argument that they are customary law, if they qualify as state practice or opinio juris.
The role of state practice in forming customary law affirms the adage that actions speak louder than words. Mark Villiger makes it clear that written statements of any kind require an accompanying action to support the development of customary law:
For written rules to have any value in formative process of customary law, further instances of material practice, in conjunction with the written rules, are required. It is not the written text which contributes towards customary law, but the instances whereby States apply these rules in a concrete case, or refer to them, or vote upon them, which do so. (133)
Sir Robert Jennings' commentary on the irrelevance of bilateral agreements to the formation of customary law on continental shelf boundaries supports Villager's statement: "It would be absurd to try to arrive at the general law of continental shelf boundaries by looking at [bilateral state agreements] for 'usage' and 'opinio juris.'" (134)
Even if military manuals could be evidence of state practice, the manuals of four states do not establish a general practice. Nor are the commitments of Germany and three Anglo-American states representative of the world's diverse political and socio-economic systems. (135) In conclusion, military manuals alone do not qualify as state practice, but even if they did, many more would be required to ensure the continuation of customary blockade law.
v. Summary of state practice and opinio juris during blockades a. State Practice
In 1992, Hilaire McCoubrey and Nigel White wrote that "since 1945 a number of 'blockades' have been claimed but none of these can be said to have met the classical criteria." (136) This statement holds true today. The historical record of naval blockades relied upon by Dr. von Heinegg reveals that there is no extensive and virtually uniform practice that aligns with the traditional customary law. Several blockade-like actions did not meet the legal definition of a blockade because they did not target an enemy coastline (Egypt 1967, Egypt 1973, arguably Iran 1980) or were not part of an international armed conflict (China 1949, arguably Vietnam 1972, arguably Lebanon 2006). Blockades regularly failed to meet the declaration requirement, either because the declaration was not official (India 1971), because what was declared was explicitly not a blockade (China 1949, Vietnam 1972, Iran 1980), or because there was no declaration at all (Egypt 1973). The requirement of impartiality was not met in two of the blockades (Egypt 1967, Iran 1980) and was only met to a limited degree in the case of another (Korea 1950). Two blockades were not enforced by legitimate means (China 1949, Vietnam 1972). The criterion of effectiveness was more widely met, with only one flagrant violation (China 1949). However, three other blockades were carried out over a period of two weeks or less, and so cannot be said to have been properly tested (Egypt 1967, India 1971, Egypt 1973). The prohibition on attacking merchant vessels before attempting capture was violated by three blockades (China 1949, Korea 1950, Iran 1980). The two blockades that were in closest conformity with the traditional blockade rules likely violated humanitarian blockade law (Korea 1950, Lebanon 2006). The only traditional rule that was uniformly respected was that neutral coastlines cannot be blockaded. However, this rule exists independently of blockade law, since the use of force against a neutral state is prohibited by article 2(4) of the UN Charter. (137) Again, this survey does not include the two World Wars where state practice derogated from traditional blockade law in its entirety.
Neutral states have not objected to these manifold violations of traditional blockade rules. Although neutral states have protested several blockades on other grounds, they have not invoked traditional blockade law, the London Declaration, or the SRM.
While several state military manuals include traditional blockade rules, they cannot be considered state practice without some accompanying action. In any event, the military manuals referenced are too few and too unrepresentative to be evidence of a general practice.
b. Opinio Juris
In those instances where states have acted in accordance with traditional blockade rules, it is unlikely that they have done so out of a sense of legal obligation. Dr. von Heinegg does not mention a case where a blockading state referenced traditional laws of blockade or the London Declaration, and no such examples have arisen in the course of researching this article. It is more likely that states have occasionally adhered to traditional blockade rules because it suited them to do so. After all, it will frequently be in the interests of the blockading power that their blockades are declared, impartial, and effective. (138)
What the historical record does show is considerable confusion about the legal principles that govern blockades. In the words of the Palmer Report, "Because [blockades] are not common, there tends to be a lack of general knowledge in the international community about their characteristics and features." (139) Contraband measures and war zones are often mischaracterized as blockades, which can compound the confusion. For example, contraband measures taken by the US against Cuba in 1962, by Britain against Rhodesia between 1966 and 1975, (140) and by Russia against Georgia in 2008 (141) have all been mistaken for blockades. So have war zones declared by Iraq during the Iraq-Iran war, (142) and Britain and Argentina in 1982 Falklands War. (143)
The uncertainty around blockade law is exemplified by the anecdotal example of a 1971 meeting of the Washington Special Action Group. At the meeting Henry Kissinger asked about the legal basis for the Indian blockade of East Pakistan. (144) No one present was able to properly answer his question. John Moore attributes this to there having been no "strict legal specialist" on hand, but this article demonstrates that no specialist could have confidently answered Kissinger's question. Traditional blockade rules had not been followed since before World War I, and blockade law was in desuetude.
vi. Have new customary blockade laws arisen from contemporary state practice?
The fact that the London Declaration blockade rules have not been followed during the last century does not exclude the possibility that new customary blockade laws have formed over the same period. The above cases show, however, that not only have contemporary blockades departed from the old rules, they have departed in radically divergent ways. Contemporary blockades range from systematic sealing-off of an enemy coast (Lebanon 2006) to sporadic and deliberately unclaimed attacks (Egypt 1973). They have relied upon mines (Vietnam 1972) and mercenaries (China 1949). In certain instances, they specifically targeted only the vessels of the enemy (Egypt 1967), the allies of the enemy (Iran 1980), all ships except the naval vessels of the enemy (Korea 1951), and all ships. They have been conducted during internal conflicts (China 1949), undeclared wars (Vietnam 1972), conflicts between a state and a non-state actor (Lebanon 2006), and inter-state wars. The blockades of the past century exhibit neither general state practice nor opinio juris. Traditional blockade rules have not evolved into new laws; they have simply passed out of usage.
This article argued that traditional blockade law is in desuetude and the four reports on the Gaza blockade were mistaken to rely on it. Where there are multiple legal regimes, courts and other decision-makers must be careful not to lose their overall perspective on the law. In the example of the Gaza blockade, the issue of whether the blockade meets the traditional rules involves an analysis that has fallen over the cliff of desuetude.
If the legality of the Gaza blockade does come before the International Court of Justice, as the Turkish Foreign Minister has promised, the Court will have to decide which legal regimes it will rely upon in its analysis. Because traditional blockade law is in desuetude, it should not enjoy the Court's attention. There are numerous active legal regimes engaged by the Gaza blockade, including the international humanitarian law and its prohibition on collective punishment of civilian populations. The blockade's legality should not turn on a custom long dead.
(1) David Batty, "Turkey to challenge Gaza blockade at International Court of Justice," The Guardian, 3 September 2011.
(2) Sir Geoffrey Palmer et al, "Report of the Secretary-General's Panel of Inquiry on the 31 May 2010 Flotilla Incident", UN News Centre (September 2011), online: <http://www.un.org/ News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf> [Palmer Report].
(3) The Turkel Commission, The Public Commission to Examine the Maritime Incident of 31 May 2010 (Israel: January 2011), online: <http://www.turkel-committee.gov.il/files/ wordocs//8707200211english.pdf> [Israeli Commission]; Turkish National Commission of Inquiry, Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010 (Ankara: February 2011), online: <http://www.mfa.gov.tr/data/Turkish%20 Report%20Final%20-%20UN%20Copy.pdf> [Turkish Commission]; United Nations Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance (September 27, 2010), online: <http://www2.ohchr.org/english/bodies/hrcouncil/ docs/15session/A.HRC.15.21_en.pdf> [HRC Report].
(4) Palmer Report, supra note 2 at 70-71; 80-90; Israeli Commission, ibid at paras 56-97; Turkish Commission, ibid at 60-62; HRC Report, ibid at 12, para 51.
(5) See e.g. Martin David Fink, "Contemporary Views on the Lawfulness of Naval Blockades" (2011) 1 Aegean Review of the Law of the Sea and Maritime Law at 191-215; James Kraska, "Rule Selection in the Case of Israel's Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea" (2011) Yearbook of International Humanitarian Law--2010 at 367; Andrew Sanger, "The Contemporary Law of Blockade and the Gaza Freedom Flotilla" (2011) Yearbook of International Humanitarian Law--2010 at 397.
(6) Wolff Heintschel von Heinegg, "Naval Blockade" (2000) 75 US Naval War College International Law Studies Series 203 [von Heinegg, "Naval Blockade"]; Wolff Heintschel von Heinegg, "Current State of the Law of Naval Warfare: A Fresh Look at the San Remo Manual" US Naval War College International Law Studies 82 (2006) 82 US Naval War College International Law Studies 269 [von Heinegg, "Fresh Look"]; Wolff Heintschel von Heinegg, "Blockade" in Max Planck Encyclopedia of Public International Law, Rudiger Wolfrum ed, online: (2008) Oxford University Press <http://opil.ouplaw.com/home/EPIL>, updated April 2009 [von Heinegg, "Blockade"]. See also SV Mallison and VT Mallison Jr., "Survey of the International Law of Naval Blockade" (1976) 102 US Naval Institute Proceedings 43; Thomas David Jones, "The International Law of Maritime Blockade--A Measure of Naval Economic Interdiction" (1983) 26 Howard Law Journal 759.
(7) Israeli Commission, supra note 3 at 6; Palmer Report, supra note 2.
(8) Israeli Commission, ibid at 73.
(9) HRC Report, supra note 3 at 7; Israeli Commission, ibid at 31.
(10) HRC Report, ibid at 8; Israeli Commission, ibid at 34.
(11) Israeli Commission, ibid at 35.
(12) HRC Report, supra note 3 at 8; Israeli Commission, ibid at 36.
(13) Israeli Commission, ibid at 37.
(14) HRC Report, supra note 3 at 24-28; Israeli Commission, ibid at 113-116.
(15) HRC Report, ibid at 27; Israeli Commission, ibid at 114.
(16) HRC Report, ibid at 1.
(17) Ibid at 55.
(18) Palmer Report, supra note 2 at 4.
(19) Ibid at 11.
(20) HRC Report, supra note 3 at 13-16.
(21) Fink, supra note 5 at 209.
(22) Palmer Report, supra note 2 at 39.
(23) International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, art 33.
(24) Ibid at 43.
(25) Ibid at 43-44.
(26) International Committee of the Red Cross, "Gaza closure: not another year!" Resource Centre (14 June 2010), online: ICRC <http://www.icrc.org/eng/resources/documents/update/ palestine-update-140610.htm>.
(27) Palmer Report, supra note 2 at 83.
(28) Ibid at 82.
(29) Ibid at 81.
(30) Louise Doswald-Beck, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (New York: Cambridge UP, 1995) at 176 [SRM].
(31) von Heinegg, "Blockade", supra note 6 at para 25.
(32) In addition to these traditional blockade law provisions, the San Remo Manual also includes three humanitarian provisions not found in the London Declaration (art 102-104). These provisions adjust blockade law in respect of the humanitarian law that have developed over the last century. An assessment here of the legality of these humanitarian blockade provisions is unnecessary. To the extent that they are faithful to the Geneva Conventions and the Additional Protocols they must be customary law, since those treaties have customary legal status. To the extent that the SRM humanitarian provisions go beyond existing humanitarian law--the SRM includes "some progressive development" of the law--they will not have crystallized into customary law. For these reasons this article is concerned only with assessing whether the traditional blockade provisions contained in both the London Declaration and the San Remo Manual are, in fact, customary international law.
(33) "1909 London Declaration Concerning The Laws of Naval War" in N Ronzitti, ed, The Laws of Naval Warfare (Dordrecht: Martinus Nijhoff, 1988) 223 at art 8-16 [London Declaration]; SRM, supra note 30, art 93-94.
(34) London Declaration, ibid, art 5; SRM, ibid, art 100.
(35) London Declaration, ibid, art 18; SRM, ibid, art 99.
(36) London Declaration, ibid, art 2-3; SRM, ibid, art 95. This provision originates with the Paris Declaration Respecting Marine Law, 16 April 1856, art 4 of which reads "Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy." See Ronzitti, infra note 56 at 64
(37) SRM, ibid, art 97.
(38) London Declaration, supra note 33, art 20; SRM, ibid, art 98.
(39) Geoffrey Best, Humanity in Warfare: The Modern History of International Laws in Armed Conflict (London: Weidenfeld and Nicolson, 1980) at 247.
(40) London Declaration, supra note 33 at 227.
(41) James Wilford Garner, Prize Law during the World War: A Study of the Jurisprudence of the Prize Courts, 1914-1924 (New York: MacMillian, 1927) at 161.
(44) Ibid at 159 [emphasis added]. The Prize Courts considered on this point include the British, the French, the German, and the Austria-Hungarian.
(46) Elmar Rauch, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare (Berlin: Duncker and Humbolt, 1984) at 83-84 [emphasis added].
(48) JA Hall, The Law of Naval Warfare (London: Chapman and Hall, 1921) at 193.
(49) George P Politakis, Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality (London: Kegan Paul International, 1998) at 65.
(50) Hall, supra note 48 at 192.
(51) von Heinegg, "Blockade", supra nota 6 at para 8.
(52) SRM, supra note 30 at 176.
(54) Robert W Tucker, The Law of War and Neutrality at Sea (Washington DC: United States Government Printing Office 1957) at 285. This text enjoys continued relevance: it was reprinted in both 2006 and 2008 by The Lawbook Exchange.
(55) DP O'Connell, The Influence of Law on Sea Power (Manchester: Manchester UP, 1975) at 130. O'Connell's "seminal works" have been described by Natalino Ronzitti as the sole exception to the neglect of the law of naval warfare in his era; Ronzitti, infra note 56 at 1.
(56) Natalino Ronzitti, "The Crisis in the Law of Naval Warfare" in Natalino Ronzitti, ed, The Law of Naval Warfare (Dordrecht: Martinus Nijhoff Publishers, 1988) at 9.
(57) Frits Kalshoven, "1909 London Declaration: Commentary" in Natalino Ronzitti, ed, The Law of Naval Warfare (Dordrecht: Martinus Nijhoff Publishers, 1988) at 274.
(58) Michael G Fraunces, "The International Law of Blockade: New Guiding Principles in Contemporary State Practice" (1992) 101 Yale LJ at 908. The article goes on to propose three new customary laws of blockade.
(59) Mallison & Mallison, supra note 6; Jones, supra note 6.
(60) Mark E Villiger, Customary Law and Treaties (Dordrecht: Martinus Nijhoff Publishers, 1997) at 55.
(61) See e.g. Anthony Aust, Modern Treaty Law and Practice (New York: Cambridge UP, 2007) at 306-307.
(62) United Nations, Statute of the International Court of Justice, ICJ 1946 Art 38(b) describes "international custom, as evidence of a general practice accepted as law" as a source of law that the Court can draw upon.
(63) North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), 1969 ICJ Reports 43 at para 74.
(64) Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), 1986 ICJ Reports 98 at para 186 ["Nicaragua"].
(65) Asylum Case (Colombia v Peru), 1950 ICJ Reports 266 at 277.
(66) von Heinegg, "Naval Blockade" supra note 6 at 211; von Heinegg, "Blockade" supra note 8 at para 15.
(67) SRM, supra note 30 at 176.
(68) Both were authored by Dr. von Heinegg, who co-wrote the SRM Explanation. See SRM, ibid.
(69) von Heinegg, "Naval Blockade", supra note 6 does not, of course, include mention of the 2006 Israel-Lebanon War. Von Heinegg, "Blockade", supra note 6 excludes mention of the Chinese Civil War and the Egyptian actions in 1967 and 1973.
(70) von Heinegg, "Naval Blockade", ibid at 211-212; von Heinegg, "Blockade", ibid at para 18.
(71) von Heinegg, "Naval Blockade", ibid at 209.
(72) Rauch, supra note 46 at 87.
(73) Tucker, supra note 54 at 296-315.
(74) von Heinegg, "Naval Blockade", supra note 6 at 211.
(75) Tucker, supra note 54 at 285.
(76) Bruce A Elleman, "The Nationalists' Blockade of the PRC" in Bruce E Elleman & SCM Paine, eds, Naval Blockades and Seapower: Strategies and Counter-Strategies, 1805-2005 (New York: Routledge, 2006) 133 at 133.
(77) von Heinegg, "Blockade", supra note 6 at para 25: "It is to be emphasized that blockade is a method of warfare recognized to apply in international armed conflicts only."
(78) LH Woolsey, "Closure of Ports by the Chinese Nationalist Government" (1950) 22 The American Journal of International Law 44 at 350.
(79) Elleman, supra note 76 at 138.
(80) Ibid at 142.
(81) Note from the State Department to the Nationalist Government, December 2, 1949, described in Woolsey, supra note 78 at 351.
(82) Politakis, supra note 49 at 65.
(83) Malcolm Muir Jr, "A Failed Blockade: Air and Sea Power in Korea 1950-53" in Bruce E Elleman & SCM Paine, eds, Naval Blockades and Seapower: Strategies and Counter-Strategies, 1805-2005 (New York: Routledge, 2006) at 147.
(84) David Rees, Korea: The Limited War (New York: St Martin's Press, 1964) at 370; Politakis, supra note 49 at 65.
(85) Politakis, ibid at 66.
(86) SRM, supra note 30, s 13(i): "merchant vessel means a vessel, other than a warship, an auxiliary vessel, or a State vessel such as a customs or police vessel, that is engaged in commercial or private service".
(87) United Nation Security Council, Resolution 82 (1950) of 25 June 1950, S/RES/82 (1950); United Nation Security Council, Resolution 83 (1950) of 27 June 1950, S/RES/83; United Nation Security Council, Resolution 84 (1950) of 7 July 1950, S/RES/84.
(88) George K Walker, The Tanker War, 1980-99: Law and Policy, vol 74 (Newport: Naval War College International Law Studies, 2000) at 389.
(89) von Heinegg "Blockade", supra note 6 at para 55.
(90) Although these Resolutions do not mention blockade specifically, Resolution 83, supra note 87 authorizes "such assistance ... as may be necessary to repel the armed attacked and to restore international peace and security in the area."
(91) Politakis, supra note 49 at 66.
(92) International Committee of the Red Cross, supra note 23.
(93) Politakis, supra note 49 at 73-74.
(96) Walker, supra note 88 at 126.
(97) von Heinegg, "Blockade", supra note 6 at 211; Jones, supra note 6 at 769.
(98) Hilaire McCoubrey & Nigel L White, International Law and Armed Conflict, (Aldershot: Dartmouth Publishing, 1992) at 305.
(99) O'Connell, supra note 55 at 130.
(101) Spencer C Tucker, "Naval Blockades during the Vietnam War" in Bruce E Elleman & SCM Paine, eds, Naval Blockades and Seapower: Strategies and Counter-Strategies, 1805-2005 (New York: Routledge, 2006) 169 at 175-176.
(102) United States, Department of the Navy, The Commander's Handbook on the Law of Naval Operations, July 2007 at 7-11, online: US Naval War College <http://www.usnwc. edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/1-14M_(Jul_2007)_(NWP)> ["United States Navy Manual"].
(103) Spencer C Tucker, supra note 101 at 174.
(104) Ibid at 176, 178.
(105) Robert W Tucker, supra note 54 at 285.
(106) von Heinegg, "Blockade", supra note 6 at para 37.
(107) von Heinegg, "Naval Blockade", supra note 6 at 215; SRM, supra note 30 at 178.
(108) Jones, supra note 6 at 773.
(109) O'Connell, supra note 55 at 102.
(110) Politakis, supra note 49 at 74.
(111) O'Connell, supra note 55 at 101.
(112) Andrea de Guttrey & Natalino Ronzitti, The Iran-Iraq War (1980-1988) and the Law of Naval Warfare (Cambridge: Grotius Publications, 1993) at 23.
(113) Ibid at 22; von Heinegg, "Naval Blockade" supra note 6 at 212.
(114) Politakis, supra note 49 at 91.
(115) For a more comprehensive discussion of this topic, see Walker, supra note 88 at 391-394.
(116) Ibid at 393.
(117) Politakis, supra note 49 at 95.
(118) Kraska, supra note 5 at 374; Walker supra note 88 at 393-394.
(119) von Heinegg, "Blockade" supra note 6 at para 20.
(120) Matthew L Tucker, "Mitigating Collateral Damage to the Natural Environment in Naval Warfare: An Examination of the Israeli Naval Blockade of 2006" (2009) 57 Naval Law Review 161 at 166.
(121) Kraska, supra note 5 at 394. See also Leslie C Green, The Contemporary Law of Armed Conflict (Manchester: Manchester UP, 2008) at 205 ("During Israel's push into Lebanon in 2006 in order to crush Hezbollah it placed the whole of Lebanon's coast under blockade, even though there was no war in the technical sense between Israel and Lebanon.").
(122) United Nation Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, November 23, 2006, A/HRC/3/2 at 64.
(123) Said M Ladki, Hala Atallah & Farah Hamam, "The Summer 2006 Lebanese Food Crisis: A Quality of Life Perspective" (2008) 11 Journal of Foodservice Business Research 96.
(124) von Heinegg, "Blockade" supra note 6 at para 22.
(125) von Heinegg, "Naval Blockade" supra note 6 at 212; von Heinegg, "Blockade" ibid at para 22.
(126) Politakis, supra note 49 at 73-74.
(127) Spencer C Tucker, supra note 101 at 175.
(128) Matthew L Tucker, supra note 120 at 167.
(129) Nicaragua, supra note 64 at para 186.
(130) SRM, supra note 30 at 176.
(131) von Heinegg, "Blockade" supra note 6 at para 23. Canada is included in von Heinegg, "Naval Blockade" supra note 6 at 212.
(132) United States Navy Manual, supra note 102 at para 7.7.5.
(133) Villiger, supra note 60 at 26. But see MH Mendelson, who lists manuals of military law as a potential form of state practice; MH Mendelson, "The Formation of Customary International Law" (1998) 272 Recueil des cours 155 at 204.
(134) Robert Jennings, "What is International Law and How Do We Tell It When We See It?" (1981) 31 Swiss Yearbook of International Law 59 at 68.
(135) Villiger, supra note 60 at 29.
(136) McCoubrey & White, supra note 98 at 304.
(137) Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 at art. 2(4).
(138) von Heinegg "Naval Blockade", supra note 6 at 214.
(139) Palmer Report, supra note 2 at 70.
(140) See e.g. Kraska, supra note 5 at 374.
(141) von Heinegg, "Naval Blockade" supra note 6 at para 21 ("... the Russian measure--although widely characterized a blockade--was merely a limited exercise of the right of contraband control.")
(142) Kraska, supra note 5 at 374.
(143) McCoubrey & White, supra note 98 at 305.
(144) John Norton Moore, "Law and National Security" (1973) 15 Foreign Affairs 413.
IAN KENNEDY, The author thanks Professor Yaacov Bar-Siman-Tov of the Hebrew University of Jerusalem, Professor Jutta Brunnee of the University of Toronto, and the University of Toronto Faculty of Law Review editorial team.
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|Publication:||University of Toronto Faculty of Law Review|
|Date:||Mar 22, 2012|
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