Abstract
This chapter examines aerial blockades, a relatively untested method of warfare. Since sea blockades have long been an element of naval warfare, historical examples of naval blockades are discussed as a means of placing aerial blockades in context. Drawing on the law of naval warfare relevant to blockades, the chapter suggests legal criteria for, and legal limitations on, the maintenance of aerial blockades. It also delves into the practical aspects of mounting such operations. The chapter concludes that aerial blockades are a useful, lawful and practical method of warfare.
Previously published in 2 US Air Force Academy Journal of Legal Studies (1991) 21.
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Notes
- 1.
The initial embargo is set forth in S.C. Res. 661, UN Doc. S/RES/661 (1990), reprinted in 29 I.L.M. 1325 (1990). It provides, in relevant part, that all States are to prevent:
(a) the import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution; (b) any activities by their nationals or in their territories which would promote or are calculated to promote the export or transshipment of any commodities or products from Iraq or Kuwait; and any dealings by their nationals or their flag vessels or in their territories in any commodities or products originating in Iraq or Kuwait and exported therefrom after the date of the present resolution, including in particular any transfer of funds to Iraq or Kuwait for the purposes of such activities or dealings; (c) the sale or supply by their nationals or from their territories or using their flag vessels of any commodities or products, including weapons or any other military equipment, whether or not originating in their territories but not including supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the purposes of any business carried on in or operated from Iraq or Kuwait, and any activities by their nationals or in their territories which promote or are calculated to promote such sale of supply of such commodities or products…
The resolution further insists that all States:
… not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs…
Id. at 1326. The provisional verbatim record for 661 is available at S/PV/2933 (1990). Resolution 661 complements Resolution 660 which condemned the Iraqi invasion and demanded immediate withdrawal. S.C. Res. 660, UN Doc. S/RES/660 (1990), reprinted in 29 I.L.M. 1325 (1990). In Resolution 665 the Security Council authorized the use of naval force in the implementation of 661:
The Security Council… (c)alls upon those Member States cooperating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargos and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990)…
S.C. Res. 665, UN Doc. S/RES/665 (1990), reprinted in 29 I.L.M. 1329 (1990). See also S/PV/2938 (1990). The embargo was extended to the aerial regime by the Security Council in Resolution 670:
The Security Council… (d)ecides that all States, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any license or permit granted before the date of the present resolution, shall deny permission to any aircraft to take off from their territory if the aircraft would cany any cargo to or from Iraq or Kuwait other than food in humanitarian circumstances, subject to authorization by the Council or the Committee established by resolution 661 (1990) and in accordance with resolution 666 (1990), or supplies intended strictly for medical purposes or solely for UNIIMOG.
The resolution also requires States to:
…deny permission to any aircraft destined to land in Iraq or Kuwait, whatever its State of registration, to overfly its territory unless: a. The aircraft lands at an airfield designated by that State outside Iraq or Kuwait in order to permit its inspection to ensure that there is no cargo on board in violation of resolution 661 (1990) or the present resolution, and for this purpose the aircraft may be detained as long as necessary; or b. The particular flight has been approved by the Committee established by resolution 661 (1990); or c. The flight is certified by the United Nations as solely for the purposes of UNIIMOG.
S.C. Res. 670, UN Doc. S/RES/670 (1990), reprinted in 29 I.L.M. 1334, 1335 (1990). See also S/PV/2943 (1990).
- 2.
The inclusion of blockade in the category of economic coercion/warfare could be questioned. For some blockades the term “coercion” may be inappropriate since the purpose might be to simply deprive the enemy of the means to wage war, rather than to coerce him into a particular course of action. Similarly, the term “economic” may be inaccurate since blockade actions may have purely military, rather than economic, objectives. Finally, the possibility of “pacific blockades,” (see text accompanying note 122) might render use of the term “warfare” incorrect. However, such fine distinctions are of little practical significance.
- 3.
See, e.g., the characterization of the current air embargo against Iraq as a blockade in Beeston 1990.
- 4.
US Navy and Marine Corp, The Commander’s Handbook on the Law of Naval Operations (Naval Warfare Publication 9-Rev. A), sec. 7.7.1 (1989) [hereinafter NWP 9].
- 5.
Id. sec. 7.4.1.
- 6.
Id. See also Oppenheim 1952.
- 7.
Colombos 1967. A prize proceeding is a judicial hearing at which the issue is whether property seized by a belligerent can be condemned, i.e., forfeited to the government seizing it. In the United States federal courts have jurisdiction of such matters; in Great Britain the admiralty courts do. Legislative authority for US prize proceedings is set forth at 10 U.S.C. secs. 7651–7681 (1988).
- 8.
See discussion in NWP 9, supra note 4, sec. 7.41.1. There is a difference in the presumption of enemy destination that attaches to the two categories of contraband, absolute and conventional. Absolute contraband is material which is clearly designed to foster the enemy war effort—munitions, uniforms, etc. Conditional contraband consists of cargo which might be put to either peaceful or warlike purposes—fuel, food, construction materials, etc. Id. sec. 7.4.1. The ultimate use of conditional contraband bound for enemy territory must be established factually. By contrast, absolute contraband is presumed to be of use to the war effort. Id. sec. 7.4.1.1. Today, this distinction may be questionable given the wide ranging practices of both sides during the two world wars.
- 9.
The Random House Dictionary 1987. See also 3 Encyclopedia of Public International Law 51 (R. Bernbardt ed. 1982) [hereinafter PIL].
- 10.
Oppenheim 1952, at 768.
- 11.
- 12.
- 13.
There are a number of other procedures which fall within this category, but which are unlikely to be confused with blockades. First are those operations occurring during peacetime which may pose a danger to vessels or aircraft in a particular area. Examples might include naval live fire practice zones or missile splash down areas. Vessels and aircraft are not prohibited from entering the region, but are warned of the danger of doing so via the NOTAM and NOTMAR systems. Course Material, Rules of Engagement Course, Naval War College (no page, undated). NOTAMs are notices to airmen and NOTMARs are notices to mariners. Both are promulgated internationally to warn of potential hazards in specified areas. A second example is an air defense identification zone (ADIZ). ADIZs are established just beyond territorial airspace and are intended to facilitate identification of aircraft seeking to enter the territory of the state in question.
- 14.
Course Material, supra note 13, (no page).
- 15.
See, e.g., DMAHTC Washington DC message 151835Z Mar. 1986, Subj: HYDROLANT 466/86(56). Libya. Gulf of Sidra.
- 16.
See, e.g., USCINCCENT MacDill AFB FL message 231539Z January 84, Subj: NOTAM for Persian Gulf, Strait of Hormuz, and Gulf of Oman. See also the current Department of State Advisory for the Persian Gulf and Red Sea, available through Department of Transportation/Federal Aviation Agency automated flight service stations.
- 17.
See UN Docs. S/14997, S/14998, 8/15018 (1982).
- 18.
Interestingly, the British total exclusion zones established during the Falklands conflict were incorrectly labeled a blockade when Prime Minister Thatcher addressed Parliament on 28 April 1982. O’Connell 1984, 1155 n. 55.
- 19.
These zones were used extensively during the two world wars. See, e.g., British Order in Council of November 17, 1939, Statutory Rules and Orders (UK), No. 1,709 (1939), and British Order in Council of July 31, 1940, Statutory Rules and Orders (UK), No. 1,436 (1940). Current US Navy guidance permits the establishment of such zones:
Within the area or vicinity of naval operations, a belligerent may establish special restrictions upon the activities of neutral vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area. The immediate area or vicinity of naval operations is that area within which hostilities are taking place or belligerent forces are actually operating.
NWP 9, supra note 4, sec. 7.8. Interestingly, the footnote to this section distinguishes between war zones and operational zones:
The belligerent establishment of an immediate area of naval operations should be clearly distinguished from the belligerent practice during World War I and II of establishing ‘operational (or war) zones.’ Operational or war zones refer to areas of the high seas, of widely varying extent which, for substantial periods of time, are barred altogether to neutral shipping or within which belligerents claim the right to exercise a degree of control over neutral vessels not otherwise permitted by the rules of naval warfare. In practice, belligerents have based the establishment of operational or war zones on the right of reprisal against alleged illegal behavior of the enemy.
NWP 9, supra n. 4, sec. 7.8 n. 141. As can be seen, the characterization of the various techniques is unclear. For the purposes of this chapter, though, it is only necessary to distinguish blockades from those techniques with which they may be confused.
- 20.
- 21.
Fenrick 1986, at 92. For example, during the Falklands conflict the British established a “maritime exclusion zone” in a 200 nautical mile radius around the Falkland Islands. Within this area all Argentinian warships and naval auxiliaries were liable to being treated as hostile. See UN Docs. S/14961, S/14963 (1982). Subsequently, a “total exclusion zone” was established, with the same geographical boundaries, in which any ship or aircraft, Argentinian or not, operating in support of Argentinian forces on the Falklands would be deemed hostile. To avoid such treatment, vessels and aircraft had to secure advance approval to transit the area from the British Ministry of Defense. See UN Doc. S/15009 (1982). In response, the Argentinians created their own exclusion zone vis-a-vis British vessels. See UN Doc. S/15018 (1982). Following that action, the British announced that any Argentinian aircraft or warship found more than 12 miles from the Argentinian coast would be treated as hostile. Course Materials, supra note 13, (no page). See also the rules regarding use of force against enemy merchant vessels set out in NWP 9, supra note 4, sec. 8.2.2. Neutral vessels attempting to breach a blockade will generally be treated as enemy merchantmen. Id. sec. 7.5.2.
- 22.
O’Connell 1984, at 1155. In discussing immediate areas of naval operations, a form of exclusion zone, NWP 9 notes that (b)elligerent control over neutral vessels and aircraft within the immediate area of naval operations, a limited and transient claim, is based on a belligerent’s right to attack and destroy his enemy, his right to defend himself without suffering from neutral interference, and his right to ensure the security of his forces.” NWP 9, supra note 4, sec. 7.8 n. 141.
- 23.
See infra sec. 6.1.2.
- 24.
As noted above, the exclusion zones declared during the Falklands conflict were either directed against vessels of the opponent, or, at most, those operating in support of the military operations. See supra note 21.
- 25.
NWP 9, supra note 4, sec. 7.8, which addresses blockades, includes mention of aircraft throughout.
- 26.
This analysis is both historical and contextual. As the Mallisons have noted:
The contemporary legal doctrines of naval blockade are the outcome of a comprehensive process of decision. This ongoing process is not likely to end until international hostilities and war are ended. The process involves not only the value-conserving use of historic legal doctrines, but it involves consideration of those doctrines in relevant historical context, including consideration of the relation between naval tactics and strategy of blockade and the stage of technological development of naval warfare.
Mallison and Mallison 1976, at 44, 52.
- 27.
Note the use of the word “can.” The reader must be careful not to quickly jump to the conclusion that application by analogy “should” occur. It might be plausibly argued that, on the contrary, different principles should be established to govern aerial blockades. However, in the absence of such principles, judgements of state behavior during aerial blockades would in all likelihood rely upon general blockade law.
- 28.
The law of naval warfare developed almost entirely based on practice, i.e., custom. There was no codification of naval law as there was in land warfare. See, e.g., Convention Concerning the Laws and Customs of War on Land (Hague lV), act. 18, 1907, U.S.T.S. No. 539, 36 Stat. 2277, 205 Parry’s T.S. 277, 1 Bevans 631. See also the discussion of the sources of naval warfare law in Tucker 1955, at 26–32. Thus, a historical analysis is essential to determine what rules govern blockades and if they are amenable to application by analogy to aerial blockades. The importance of custom and context to the ascertainment of the laws of war at any particular time was recognized during the Nuremburg trials:
The law of war is to be found not only in treaties, but in the customs and practices of States which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world.
I Trial of Major War Criminals Before the International Military Tribunal 221 (1947). NWP 9 also addresses the issue:
The customary international law of armed conflict derives from the practice of military and naval forces in the field, at sea, and in the air during hostilities. When such a practice attains a degree of regularity and is accompanied by the general conviction among nations that behavior in conformity with that practice is obligatory, it can be said to have become a rule of customary law binding upon all nations. It is frequently difficult to determine the precise point in time at which a use or practice of warfare evolves into a customary rule of law. In a period marked by rapid developments in technology, coupled with the broadening of the spectrum of warfare to encompass insurgencies and state sponsored terrorism, it is not surprising that nations often disagree as to the precise content of an accepted practice of warfare and to its status as a rule of law.
NWP 9, supra note 4, sec. 5.4.1. See also, Akehurst 1974–1975, and Tucker 1955, at 194–195.
- 29.
See infra sec. 6.2.4.
- 30.
It might be suggested that practical limitations should be considered concurrently with the norms which govern aerial blockades. However, though an aerial blockade may be conceptually permissible, it may simply not be doable. A single technological advance may overcome the obstacle and, thus, render the aerial blockade feasible. Therefore, the two topics are considered separately so as to permit the section on norms to have value beyond the current technological state of affairs. Of course, since the norms set forth are contextually derived and should be expected to continue evolving, they must be, to some extent, reconsidered with each application.
- 31.
As noted by Justice Grier in The Prize Cases, “The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force.” The Prize Cases, 67 US (2 Black) 635, 17 L. Ed. 459 (1863), reprinted in Deak 1977, pp. 387–388.
- 32.
There are actually indications that the concept dated back to a fourteenth century collection of rules and custom concerning maritime trade known as the “Consolato del Mare.” The major principle contained in this document was that neither neutral goods on an enemy ship, nor enemy goods on a neutral vessel were subject to seizure. 4 PIL, supra note 9, at 7. However, the majority of commentators date the emergence of neutrality as a concept of international law back to Grotius’ writings of the sixteenthth century. 2 Dep’t. of the Army (DA), International Law (Pamphlet 27-161-2) 253 (1962).
- 33.
Id.
- 34.
McNulty 1980, at 173.
- 35.
Id.
- 36.
The protection of neutral trading rights has even been extended to situations involving domestic unrest. For example, in Judgement of the Lottie May an arbitrator held that the Honduran government could not refuse permission to the British schooner Lottie to put into a port in control of insurgents. According to the judgement, the Honduran government would have had to establish an effective blockade of the port to keep merchantmen out of the area. Judgement of the Lottie May, 15 Rep. Int’l. Arb. Awards 29 (Honduras-Great Britain) (1899) (Beaupre Arb.). There was a similar holding in the Asphalt Co. Arbitration by the Mixed Great Britain-Venezuela Claims Commission. A British asphalt company desired to ship food and supplies from Trinidad to its miners in Venezuela. Permission was refused by the Venezuelan government on the grounds that the port was in the hands of revolutionaries. The Commission held that an effective blockade was required if trade with the port was to be stopped. Asphalt Co. Arbitration, 9 Rep. Int’l. Arb. Awards 389 (Great Britain Venezuela) (1903) (Plumley Arb.). See also extracts from the following cases contained in 1 Repertory of International Arbitral Jurisprudence (V. Coussirat-Coustere and P. Eisemann eds. 1989): Bark Chepica (Chile-United Kingdom) (1895) (Janssen Arb.), at 243, and Orinoco Asphalt Co. (Germany-Venezuela) (1903) (Duffield Arb.), at 245. But see Orinoco Steamship Co. (United States-Venezuela) (1903) (Barge Arb.), at 244.
- 37.
McNulty 1980, at 188.
- 38.
See discussion in Jenkins 1985, at 521. Most important, of course, was the goal of ensuring that neutrals did not contribute to the enemy’s war making ability. NWP 9 sets forth the rights and duties of neutral and belligerents as follows:
Customary international law contemplates that in the absence of an international commitment to the contrary, all nations have the option to refrain from participation in an armed conflict by declaring or otherwise assuming neutral status. The law of armed conflict reciprocally imposes duties and confers rights upon neutral nations and upon belligerents. The principle right of a neutral nation is that of inviolability; its principal duties are those of abstention and impartiality. Conversely it is the duty of a belligerent to respect the former and its right to insist upon the later.
NWP 9, supra note 4, sec. 7.2.
- 39.
Professor Tucker makes the interesting point that perhaps it would be more appropriate to think in terms of competing “interests,” rather than “rights.” Specifically, he cites the interest of the neutral in unimpeded trade and the interest of the belligerent in not having a neutral compensate for the enemy’s weakness at sea. Tucker 1955, at 182. An apt example of the balancing is found in the customary rules set forth in NWP 9, sec. 7.4. As that section notes, though the law of neutrality permits continuing trade with belligerents, neutral states which provide a belligerent war material risk losing their neutral status. At the same time, though, the neutral state is under no obligation to forbid its citizens from engaging in such trade. NWP 9, supra note 4, sec. 7.4. The distinction between state and individual activity highlights the political-economic-military dimensions of the balancing.
- 40.
According to Professor Oppenheim, there is no need to justify blockade operations as other than the natural concomitant of the emergence of neutrality principles:
The fact is that the detrimental consequences of blockade to neutrals stand in the same category as the many other detrimental consequences of war to neutrals… A blockade interferes indeed with the recognized principle of freedom of the sea, and, further, with the recognized freedom of neutral commerce. But all three have developed together, and when the freedom of the sea in time of peace and war, and, further, the freedom of neutral commerce became generally recognized, the exceptional restrictions of blockade became at the same time recognized as legitimate.
Oppenheim 1952, at 775.
- 41.
Tucker 1955, at 283.
- 42.
Colombos 1967, at 714–715.
- 43.
Powers 1958, at 62.
- 44.
McNulty 1980, at 174.
- 45.
Grotius 1853.
For if I cannot defend myself except by intercepting what is sent, necessity, as elsewhere explained, gives us a right to intercept it, but under the obligation of restitution, except there be cause to the contrary.
- 46.
- 47.
- 48.
For example, see Treaty of Commerce, November 26, 1675, Sweden-The Netherlands, 14 Parry’s T.S. 41, and Convention Concerning the Prohibition of Commerce with France, Aug. 12, 1689, Great Britain-The Netherlands, 18 Parry’s T.8. 479. The strategic aim of the treaties, as well as the expansive approach they took to blockade tactics, is evident in the following extract from the latter treaty:
Forasmuch as that the most Christian King hath declared war against the States General of the United Provinces of the Low Countries, and the other allies of the King of Great Britain; and his majesty having put forth his declaration of war against the said most Christian King, it behoves (the allies) to do as much damage as possibly they can to the common enemy, in order to bring him to agree to a just and equitable peace, and to comply with such conditions as may restore the tranquillity and repose of Christendom; and as it is necessary for this end, that they should make use of all their forces, and more particularly order matters so, as effectually to interrupt and break off all trade and commerce with the most Christian King’s subjects, the said king and his subjects may be debarred of all manner of supplies for the use of war, which otherwise may, by the continuance of it, become very injurious, and be the cause of effusion of much Christian blood; and that said majesty the King of Great Britain and the said lords the States general, the better to attain this end, have ordered their fleets to sail towards the coast of France, and to block up all the ports, havens and roads belonging to the most Christian King.
Id. at 481–482. The treaty also provided that vessels attempting to breach the blockade could be attacked, seized, and condemned in prize. -Id. at 483.
- 49.
3 PlL, supra note 9, at 47.
- 50.
Hall 1921.
- 51.
See, e.g., Maritime Convention, June 28, 1780, Denmark-Russia, 47 Parry’s T.S. 345; Maritime Convention, July 21, 1780, Russia-Sweden, 47 Parry’s T.S. 357; and Convention, May 8, 1781, Prussia–Russia, 47 Parry’s T.S. 463.
- 52.
See, e.g., Maritime Convention, Denmark–Russia, supra note 51, Article m(3):
Que pour determiner ce qui caracterifs un port bloque, on n’accorde cette determination qu’à celui, où i1 y a par la disposition de la Puissance, qui l’attaque avec des vaisseaux arrêtés et suffisamment proches, un danger évident d’entrer.
- 53.
The incidents occurred in the context of the conflict between Great Britain and France/Spain. Hall 1921, at 188–189. The First Armed Neutrality was disbanded upon promulgation of the Treaty of Versailles in 1783.
- 54.
The result was the Second Armed Neutrality, again a series of bilateral agreements. See, e.g., Convention for the Reestablishment of an Armed Neutrality, December 4, 1800, Russia–Sweden, 55 Parry’s T.S. 411; Maritime Convention for an Armed Neutrality, December 5, 1800, Denmark–Russia, 55 Parry’s T.S. 425; and Convention for an Armed Neutrality, December 6, 1800, Prussia–Russia, 55 Parry’s T.S. 427.
- 55.
Powers 1958, at 62. See also, Berlin Decree of 1806, cited in 3 PIL, supra note 9, at 48.
- 56.
Powers 1958, at 62.
- 57.
See, e.g., The Nancy, 1 Act. 57, 12 Eng. Rep. 22 (P.C. 1809), in which a vessel seized for breaching the blockade of Martinique was restored to her owners because the blockading squadron left the area for an expedition to Surinam without leaving an adequate force behind to maintain the blockade.
- 58.
Declaration Respecting Maritime Laws, Mar. 30, 1856, 115 Parry’s T.S. 1, also reprinted in Moore 1906, 561, and DA Pamphlet 27-161-2, supra note 32, at 275 [hereinafter Declaration of Paris]. Specifically, the Declaration provided that, “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.” Id. Article 4.
- 59.
DA Pamphlet 27-161-2, supra note 32, at 276.
- 60.
Letter from Mr. Cass, Secretary of State, to Mr. Mason, Minister to France, June 27, 1859, citing Lord Stowell, in Moore 1906, at 781.
- 61.
A extensive reproduction of documents and correspondence relating to the Declaration of Paris is found in Piggot 1919. Of particular interest with regard to the American position are the First Marcy Note, Apr. 28, 1854, id. at 264, and the Second Marcy Note, July 28, 1856, id. at 393. Marcy was then serving as Secretary of State. The American position is also described in Hyde 1945. For a turn of the century argument by an English commentator that Great Britain should repudiate the Declaration, see Bowles 1900.
- 62.
3 PlL, supra note 9, at 48.
- 63.
See Proclamation Regarding the Blockade of Ports of Certain Southern States, Apr. 19, 1861, in Savage 1934, and Proclamation Regarding the Blockade of Ports of the States of Virginia and North Carolina, April 27, 1861, in id. at 420. Many of the documents and much of the correspondence concerning Civil War blockades are found in this volume.
- 64.
See, e.g., Letter of Secretary of State Seward to British Minister Lyons, in id. at 427.
- 65.
See correspondence reprinted in id. at 416–439.
- 66.
- 67.
See, e.g., The Prize Cases, 67 US (2 Black) 635, 17 L. Eel. 459 (1862); The Springbok, 72 US (5 Wall.) I, 18 L. Eel. 480 (1866); The Peterhoff, 72 US (5 Wall.) 28, 18 L. Eel. 564 (1866); and The Bermuda, 70 US (3 Wall.) 514, 18 L. Eel. 200 (1865).
- 68.
Institute of International Law 1882, pp. 328, 330.
- 69.
- 70.
Convention for the Establishment of an International Prize Court (Hague Xll), October 18, 1907, 205 Parry’s T.S. 381.
- 71.
Hall 1921, at 191.
- 72.
- 73.
At least with regard to blockades. Arguably, it permitted a greater range of activities vis-a-vis contraband.
- 74.
“In accordance with the Declaration of Paris of 1856, a blockade in order to be binding, must be effective––that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline.” Declaration of London, supra note 72, Article 2.
- 75.
“Whatever may be the ulterior destination of a vessel, or of her cargo, she cannot be captured for breach of blockade, if, at the moment, she is on her way to a non-blockaded port.” Id. Article 19.
- 76.
“The blockading forces must not bar access to neutral ports or coasts.” Id. Article 18.
- 77.
Id. preliminary provision.
- 78.
3 PIL, supra note 9, at 250.
- 79.
The British viewed the court as an abdication of national sovereignty. McNulty 1980, at 182.
- 80.
Id.
- 81.
Alford 1967, p. 323. 3 PlL supra note 9, at 250–251.
- 82.
Joint Memorandum to All Neutral Governments, July 7, 1916, excerpted in Hall 1921, at 193.
- 83.
In official communications with the United States, however, the term blockade was used on occasion. In addition, the intent to blockade all commerce with the enemy was clear in those documents. Garner 1915, pp. 830–832. Blockades which were actually declared as such were quite minor operations in which traditional norms could be fairly easily complied with. These included the blockades of German East Africa, the Cameroons, Bulgaria, Asia Minor, and Kiauchau in China. With reference to the issue of technology affecting blockade practices, it should be noted that none of them were instituted in the area of a fortified coastline. McDougal and Feliciano 1961, p. 492.
- 84.
British Order in Council of March 11, 1915, 3 Statutory Rules and Orders 107 (1915), also reprinted in Ritchie 1938, p. 51. The French declaration is at 1915 Journal Officiel 1388. McNulty makes the excellent point that one practical reason for the decision not to label the operations as blockades was that the Allies wished to hinder trade passing to Germany through the Baltic, but did not have sufficient assets to do so in a manner that would comply with the requirement of effectiveness. McNulty 1980, at 181–182.
- 85.
This point is also made in O’Connell 1984, at 1153.
- 86.
Id. at 1152.
- 87.
See, e.g., Declaration of London, supra note 72, Article 37.
- 88.
O’Connell 1984, at 1152.
- 89.
During debates on economic warfare conducted in the House of Lords on May 9, 1944, Lord Nathan stated that the blockades during the First World War “quite certainly made it possible for us to win.” Lord Selboure, the Minister of Economic Warfare, echoed this point by noting that the Germans had acknowledged the same. Lovitt 1944, p. 597.
- 90.
According to the American Secretary of State:
The Government of the United States is, of course, not oblivious to the great changes which have occurred in the conditions and means of naval warfare since the rules hitherto governing legal blockade were formulated. It might be ready to admit that the old form of ‘close’ blockade with its cordon of ships in the immediate offing of the blockaded port is no longer practicable in the face of an enemy possessing the means and opportunity to make an effective defense by use of submarines, mines and aircraft; but it can hardly be maintained that, whatever form of effective blockade can be made use of, it is impossible to conform at least to the spirit and principles of the established rules of war.
Secretary of State Memorandum, March 30, 1915, extracted in Garner 1915, at 833. Other countries lodging strong protests included Denmark, Holland, Norway, and Sweden. Id. at 832.
- 91.
One major effort to codify blockade law came during the inter-war years. In 1927 and 1928 various groups of scholars were formed under the auspices of the Harvard law faculty as “The Research in International Law.” The purpose of this effort was to prepare draft conventions on various topics for the first Conference for the Codification of International Law which was scheduled to meet at the Hague in 1930. Since the work was proceeding successfully, a decision was made in 1935 to continue the codification efforts. As a result, the Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War was prepared under the direction of two great legal scholars of the time, PhiIip Jessup and Oliver Lissitzyn. Though it was never adopted by the international community, the document is of enormous value as an indication of what the most distinguished American scholars of the time felt blockade was, and should be. Interestingly, the provisions set forth resemble in great part those contained in the current US Navy guidance in the area. The Harvard Research 1939.
- 92.
See, e.g., British Order in Council of November 17, 1939, Statutory Rules and Orders, No. 1709 (1939).
- 93.
McDougal and Feliciano 1961, at 491.
- 94.
Powers 1958, at 65. It should be noted that the British justified the broad blockade tactics on the basis of retaliation for Germany’s unrestricted submarine warfare. Mallison and Mallison 1976, at 48. This, of course, impacts on the determination, as the same justification had during World War I, of whether the measures employed were justified as an expansion of blockade in response to changed circumstances.
- 95.
The system is described in Lovitt 1944.
- 96.
Other methods of economic warfare employed by the allies included the purchase of strategic material surplus from neutral countries, blocking foreign bank accounts or only allowing their assets to be used for innocent purchases, and blacklisting neutral firms that traded with the enemy. Id. at 597.
- 97.
The system is described at length in Ritchie 1938. This book also reprints related World War I diplomatic agreements, orders in council, and contraband proclamations.
- 98.
3 PIL, supra note 9, at 50.
- 99.
Two situations which are not of immediate relevance are the Cuban missile crisis and the Falklands conflict. The quarantine used during the Cuban missile crisis is of limited value to blockade analysis since it was designed only to interdict the delivery of offensive weapons systems. See Presidential Proclamation 3504, 47 Dep’t. of St. Bull. 717 (1962). Therefore, the operation was not a blockade, but rather more along the lines of an anti-contraband procedure. For discussion on this issue, see Mallison 1962, and Christol and Davis 1963. Similarly, during the Falklands War exclusion and bubble zones were used, not blockades.
- 100.
UN Doc. S/1580 (1950). The UN was informed on July 6, 1950 that the President had ordered a blockade of the entire Korean coast in support of UN actions pursuant to Security Council Resolutions 1501 and 1511. The blockade did not include the port of Rashin which served as a warm water port for Soviet naval forces. Mallison and Mallison 1976, at 49.
- 101.
Id. at 49.
- 102.
McDougal and Feliciano 1961, at 492.
- 103.
Mallison and Mallison 1976, at 49.
- 104.
Professor O’Connell notes that the blockade was of short duration, Pakistani ports were not invested, and there was no visitation on the high seas. Thus, he doubts whether this blockade offers any insight into evolving blockade law. O’Connell 1984, at 1154–55.
- 105.
Mallison and Mallison 1976, at 51.
- 106.
The closure was apparently with the consent of Ethiopia, Somalia, Yemen, and South Yemen. The Egyptians simultaneously closed the Suez Canal to traffic bound for Israel. Id.
- 107.
Id.
- 108.
NWP 9, supra note 4, sec. 7.7.5 argues that the mining of the Vietnamese harbors “was undertaken in conformity with the traditional blockade criteria of establishment, notification, effectiveness, limitation, and impartiality.”
- 109.
- 110.
The issue of using mines during blockades is well analyzed in Swayze 1977.
- 111.
Clark 1973, pp. 162–165.
- 112.
Swayze 1977, at 150. The Soviet response was actually quite mild, and a visit to the Soviet Union by President Nixon commencing May 22, 1972 took place as planned.
- 113.
Charter of the United Nations, June 26, 1945, Article 39, 59 Stat. 1031, 1 U.N.T.S. xvi, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N. 1043 [hereinafter UN Charter].
- 114.
Id. Article 41.
- 115.
Id. Article 42.
- 116.
Id. As noted earlier, the operations in the Persian Gulf pursuant to Resolutions 665 and 670 are not blockades. Instead, they are enforcement actions designed to effectuate an Article 41 sanction of interrupting economic relations. However, since Article 41 does not contemplate the use of force they have been labelled “Article 41 ½” actions.
- 117.
NWP 9, supra note 4, sec. 7.7.2.1 n. 130. Though not formally an Article 42 blockade operation, in April 1966 Great Britain was authorized by Security Council Resolution 221 to use force to prevent oil for Southern Rhodesia from being delivered to the port of Beria. She was further authorized to arrest vessels leaving the area if they had unloaded oil at the port. Patrols were maintained by Great Britain until 1975 and proved fairly successful. See discussion in O’Connell 1984, at 1158.
- 118.
UN Charter, supra note 113, Article 49. See also id. Article 2(5).
- 119.
For a discussion of neutrality in light of the UN Charter, see Leckow 1988, at 629–630.
- 120.
UN Charter, supra note 113, Article 2(4).
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purposes of the United Nations.
The issue of the effect of this provision is the source of much controversy. For example, to what extent is it operative in the absence of the international enforcement mechanisms originally envisioned when the United Nations was first formed? Since states, at least until recently, have no UN policeman to turn to in order to guard their rights, should the surrender of military self-help competence under Article 2(4) still be deemed to bind them? Further, how broadly should the self defense exception of Article 51 be read? Does self defense include anticipatory self defense? If so, how imminent must the threat be? Is blockade an appropriate anticipatory self defense measure? Is blockade a threat against territorial integrity or political independence? If not, is it nevertheless inconsistent with the purposes of the UN? This entire subject area is a fertile source for research and thought, but unfortunately space limitations preclude adequate treatment here.
- 121.
DefInition of Aggression, G.A. Res. 3314(XXIX), annex, Article 3(c), UN Doc. GA/RES/3314(XXIX) (1974), reprinted in 1974 Y.B.U.N. 647.
- 122.
The issue of pacific blockades is quite complex and beyond the scope of this chapter. Blockades are characterized by many as an act of war, and thus available only to belligerents. See, e.g., 3 PIL, supra note 9, at 47; Wright 1963; Statement by US UN Representative Warren Austin, May 22, 1948, 18 Dep’t. St. Bull. 695, 697 (1948); Presidential (Eisenhower) News Conference, December 2, 1954, 31 Dep’t. St. Bull. 887, 889 (1954); “Situation in Cuba,” Testimony of Secretary of State Dean Rusk Before the Committee on Foreign Relations and Committee on Armed Services, US Senate, 87th Cong., 2d Session 35, 60-61 (1962). However, their use is by no means unprecedented. One turn of the century study analyzed 21 pacific blockades. Interestingly, only five resulted in a state of war. Hogan 1908. The best approach is one which focuses on a blockade’s potential for minimizing use of force. For example, one commentator has argued that the use of a blockade in 1938 by the Allies might have contributed to stopping Hitler before he conquered and enslaved most of Europe. Thomas 1980, at 199–200. Another has noted that “as a minimum exercise of coercion in situations in which maximum exercises of coercion might reasonably be expected, the pacific blockade does appear to have had virtues as a convenient short circuit for what might prove to be application of greater coercive power.” Alford 1967, at 50.
- 123.
UN Charter, supra note 113, Article 51. This article also authorizes collective self defense measures. The analysis that follows, therefore, would extend to nations involved in a collective action.
- 124.
Doing so is not an unprecedented exercise. Since the inception of warfare, the rules which govern conflict have been a reflection of the context in which they emerged. As that context evolved, so too have the rules. For example, during the era of “limited war” (1648–1792), wars were fought by professionals, and civilians were often affected very little. However, with the emergence of “total war” in the twentieth century, entire populations became caught up in conflicts. See the discussion of phases of warfare from 1648 in DA Pamphlet 27-161-2, supra note 32, at 5–11. Thus, it became the practice to target civilian population centers with “military importance.” At the same time, the potential for use of the “total war” concept as a justification for causing unnecessary suffering generated extensive efforts to provide norms for military actions affecting civilians. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287. As the context changes, therefore, so too will the rules.
- 125.
Though economic factors played a part in prior conflicts, it was during the Napoleonic Wars that economic warfare emerged as a separate technique. By World War I the extent both of economic mobilization required to fight a war and of state control of economics had reached a point where economic warfare took on major strategic dimensions. See DA Pamphlet 27-161-2, supra note 32, at 11. Note that from the Napoleonic Wars forward, blockade practices expanded tremendously in terms of scope and tactics.
- 126.
NWP 9 notes that “(t)he increasing emphasis in modern warfare on seeking to isolate completely the enemy from outside assistance and resources by targeting enemy merchant vessels as well as warships, and on interdicting all neutral commerce with the enemy, is not furthered substantially by blockades established in strict conformity with the traditional rules.” NWP 9, supra note 4, sec. 7.7.5.
- 127.
The change in the nature of warfare in the twentieth century is noted by John McNulty:
As law grew out of touch with the realities of power and politics, states which had the naval strength and the national will to survive began to ignore, corrupt, or circumvent the principles so carefully constructed by the scholars and legalists… Principle yielded to power and necessity, and the emergence of the twentieth century concept of total war sounded the tocsin for any carefully drawn rule which conflicted with the necessities of such conflict.
McNulty 1980, at 189.
- 128.
See discussion at NWP 9, supra note 4, sec. 7.7.5. As this section notes, advanced weaponry makes close in blockade almost impossible in all but local or limited conflicts.
- 129.
See supra sec. 6.1.1.
- 130.
This point was explicitly made by the British in replies to American complaints concerning the scope of the British operations. Garner 1915, at 841.
- 131.
The Economist, Sept. 8, 1990, at 46. Two million Berliners were supplied for 10 months in 1948–1949. With regard to the Iraqi situation, the Economist has estimated that the Iraqis, using captured Kuwaiti aircraft as well as their own, can fly in rationed items from Libya by keeping their aircraft aloft 18 h a day for 23 days a month. Id.
- 132.
Or alternatively, by the method of warfare. Professor Tucker notes:
The application ‘by analogy’ of the requirements lawful combatants must meet in naval or land warfare is objectionable if only for the reason that aerial warfare is a distinct form of waging war, which cannot be easily assimilated to the older forms of warfare. The differences existing between land and naval warfare with respect to the identification of legitimate combatants should constitute a warning against attempts to apply to aerial warfare rules operative to troops on land or to vessels at sea.
R. Tucker, supra note 12, at 44. It would seem that a blanket prohibition precluding application by analogy operates too broadly. One must instead query whether the basic purposes of a particular rule or set of rules can be accomplished using another means of warfare. Some rules certainly may not be amenable to analogous application. For example, it is generally accepted that an aircraft may pursue a disabled opponent to destruction regardless of seeming attempts to surrender, since that opponent may continue to pose a threat. Dep’t. of the Air Force, International Law-The Conduct of Armed Conflict and Air Operations (AFP 110-31), para 4-1d (1976). The same is not the case with regard surrender in land warfare. Hague IV, supra note 28, Article 23(c). However, this example is merely illustrative of the occasional inappropriateness of application by analogy, not of its invalidity in every situation; NWP 10-2, the predecessor to NWP 9, noted that there was no body of law which applied specifically to aerial combat. Therefore, naval commanders were instructed to generally follow maritime rules unless instructed otherwise in the text. Dep’t. of the Navy, Law of Naval Warfare (NW1P 10-2), sec. 250 (1955).
- 133.
See, e.g., Geneva Convention on the High Seas, Apr. 29, 1958, Article 2, 450 U.N.T.S. 82. 13 U.S.T. 2312, T.I.A.S. 5200, and United Nations Convention on the Law of the Sea, December 10. 1982, Article 87, UN Doc. A/CONF 62/122, reprinted in 21 I.L.M. 1261 (1982), and Basic Documents in International Law 127, (I. Brownlee ed. 3d ed. 1983). Airspace over land and territorial sea is under the complete sovereignty of the subadjacent nation. Convention on International Civil Aviation (Chicago Convention), Article 1, Dec. 7, 1944, 15 U.N.T.S. 295, 61 Stat. (2) 1180, 3 Bevans 944. For a discussion of international standards regarding sovereignty over airspace, see Phelps 1985, 266–274, and 11 PIL, supra note 9, at 297–299.
- 134.
The Harvard Research did briefly consider the possibility for aerial blockade enforced by aircraft. However, it concluded that such a blockade could not be effectively maintained and, therefore, omitted mention of the topic from the Draft convention. The Harvard Research 1939, commentary to Article 72 (pp. 713–714). See also Spaight 1947; Moore 1924, and Smith 1936. A contrary result was reached on the previous decade during preparation of the 1923 Draft Hague Rules of Aerial Warfare. Though never formally adopted, Article 5 of the Draft provided that “(a) neutral private aircraft is liable to capture if it… (i) engages in breach of a blockade duly established and effectively maintained.” Greenspan 1959. Essentially, the Draft treated aircraft in accordance with the prevailing rules of naval warfare. See discussion in Spaight, supra, at 409. Interestingly, the Dutch delegation opposed Article 5 on the basis that aerial blockades could not be effective. Ultimately, though, the Commission of Jurists rejected this argument and determined that while naval blockades would not be rendered ineffective by the lack of a related aerial blockade, if an aerial blockade was established, the law of naval warfare would apply by analogy. The Harvard Research, supra note 91, at 781, and Colombos 1967, 737.
- 135.
See, e.g., Olden v. McChesney, 5 S. and R. 71 (Pa. Sup. Ct. 1819), reprinted in Deak 1978:
There is no necessity for perfect uniformity in maintaining a blockade, because there may be a particular reason for permitting particular vessels to go in, or out. But the blockade should be preserved in so steady a manner, as not to give neutrals just cause for supposing that it is raised. This they must suppose, if ships are capriciously permitted to enter or depart… All that can be said of the law is that a neutral ship ought not to be condemned for breach of blockade if other ships under the same circumstances have been permitted to depart.
Id. at 469–470. See also The Rolla, 6 C. Rob. 364, 165 Eng. Rep. 963 (1807).
- 136.
See, e.g., NWP 9, supra note 4, sec. 7.7.2.4:
A blockade must be applied impartially to the vessels and aircraft of all nations. Discrimination by the blockading belligerent in favor of or against the vessels and aircraft of particular nations, including those of its own or those of an allied nation, renders the blockade illegal.
(Citing Declaration of London, supra note 72, Article 5). See also NWIP 10-2, supra note 132s. 63s(f), and Dep’t. of the Navy, Instructions for the Navy of the United States Governing Maritime Warfare, sec. 3, para 26 (1918).
- 137.
- 138.
Declaration of London, supra note 72, Article 5.
- 139.
Indeed, even with regard to ships flying the same flag, enforcement must be consistent across the board. Obviously, though, the principle is designed primarily to avoid the dangers of discrimination addressed above, since there would seldom be a reason to selectively enforce against ships of the same nation.
- 140.
In fact, this is precisely what happened in 1854 when allied forces blockading the mouth of the Danube only operated against vessels travelling to Russian ports. The purpose was merely to arrest resupply of the Russian forces by sea. Oppenheim 1952, at 771.
- 141.
NWP 9, supra note 4, sec. 7.7.3; Colombos 1967, at 724; Declaration of London, supra note 72, Article 6.
- 142.
NWP 9, supra note 4, sec. 7.7.3, citing International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para 2095–2096 (1987).
- 143.
This has been done for the aerial embargo of Iraq and Kuwait. See S.C. Res. 670, supra note 1, paras 3–4.
- 144.
NWP 9, supra note 4, sec. 7.7.3, specifically mentions aircraft. See also Declaration of London, supra note 72, Article 7; The Hurtige Hane, 3 C. Rob. 324, 165 Eng. Rep. 480 (1799); The Fortuna, 5 C. Rob. 27, 1 Eng. Pr. Cas. 417, 165 Eng. Rep. 685 (1803); The Elizabeth, Edwards 198, 165 Eng. Rep. 1081 (1810); The Panaghia Rhomba, 12 Moore 168, 14 Eng. Rep. 874 (P.C. 1858); The Diana, 74 US (7 Wall.) 354, 19 L. Bd. 165 (1868); The Nuestra Senora de Regala, 84 US (17 Wall.) 29, 21 L. Bd. 596 (1872).
- 145.
NWP 9, supra note 4, sec. 7.7.2.1; 3 PIL, supra note 9, at 47.
- 146.
NWP 9, supra note 4, sec. 7.7.2.2.
- 147.
Id. sec. 7.7.2.1.; The Hendrick and Maria, 1 C. Rob. 146, 165 Eng. Rep. 129 (1799); The Rolla, 6 C. Rob. 364, 165 Eng. Rep. 963 (1807).
- 148.
NWP 9, sec. 7.7.2.1 n. 130.
- 149.
Id. sec. 7.7.2.1; Colombos 1967, at 722.
- 150.
Oppenheim 1952, at 717. For example, during the First World War, the grace period was 10 days during the blockade of Austria-Hungary and Albania, four days in the case of the German East Africa blockade three days with regard to the Turkish coast of Asia Minor, and two days in the blockade of Cameroon and Bulgaria. Colombos 1967, at 723.
- 151.
NWP 9, supra note 4, sec. 7.7.2.2. See also Declaration of London, supra note 72, Articles 11–12.
- 152.
NWP 9, supra note 4, sec. 7.7.2.2. Sample notification forms are included in NWP 9 at Annexes AS7-8 and 7-9.
- 153.
Oppenheim 1952, at 783.
- 154.
- 155.
Declaration of London, supra note 72, Articles 14–16. NWP 9, supra note 4, sec. 7.7.4.
- 156.
Complementing the use of force criteria should be comment on what acts the blockading force will deem evidence of hostile intent justifying self-defense. For example, illumination by fire control radar would certainly indicate hostile intent.
- 157.
NWP 9, supra note 4, sec. 7.7.2.5. See also Declaration of London, supra note 72, Article 18.
- 158.
See supra note 94.
- 159.
NWP 9, supra note 4. sec. 7.7.4:
Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or airfield with the intention of evading the blockade. It is immaterial that the vessel or aircraft is at the time of interception bound for neutral territory, if its ultimate destination is the blockaded area. There is a presumption of attempted breach of blockade where vessels or aircraft are bound for a neutral port or airfield serving as a point of transit to the blockaded area.
- 160.
Id. The footnote to this section states that provisions to the contrary in the Declaration of London have been rendered obsolete through practice. Id. sec. 7.7.4 n. 137.
- 161.
See, e.g., The Christopher, 2 C. Rob. 210, 165 Eng. Rep. 291 (1800) citing The Betsy in 1; The Drummond, 1 Dods 103, 165 Eng. Rep. 1248 (1811); The Nancy, 1 Act. 57, 12 Eng. Rep. 22 (P.C. 1809); The Olinde Rodriguez, 174 US 510, 19 S. Ct. 851, 43 L. Bd. 1065 (1899).
- 162.
Declaration of London, supra note 72, Article 22.
- 163.
Declaration of Paris, supra note 58, Article 4.
- 164.
NWP 9, supra note 4, sec. 7.7.2.3. In the exchange of notes between Great Britain and the United States concerning World War I British measures, both sides agreed that the principle had achieved universal acceptance. Garner 1915, at 842.
- 165.
“In order to be effective, it must be maintained by a surface, air, or subsurface force or other mechanism that is sufficient to render ingress or egress of the blockaded area dangerous.” NWP 9, supra note 4, sec. 7.7.2.3.
- 166.
Declaration of London, supra note 72, Article 3; Colombos 1967, at 718; Jones, supra note 66, at 763. For example, in Hooper v. United States, the Court of Claims held a blockade not to be effective based on the extent of continuing trade in the area. Hooper v. US, 22 Ct. Cl. 408 (1887).
- 167.
Alford 1967, at 352. However, continuity is unbroken if the blockade is discontinued due to adverse weather conditions or because the blockading force is in pursuit of a breaching vessel or aircraft. See, e.g., Id. at 353; The Frederick Molke, 1 C. Rob. 86, 1 Eng. Pr. Cas. 58, 165 Eng. Rep. 106 (1798); The Columbia, 1 C. Rob. 154, 1 Eng. Pr. Cas. 89, 165 Eng. Rep. 132 (1799).
- 168.
The Drummond, The Betsy, and The Nancy, supra note 161.
- 169.
The reader must be cautioned not to make the “calculation” using the number which have been dissuaded from attempting to breach. The issue is one of danger, i.e., likelihood of intercept. Successful breach is, therefore, an empirical indicator of effectiveness. Only in the absence of any attempt to breach will dissuasion become relevant to the calculation.
- 170.
NWP 9, supra note 4, sec. 7.7.4. Oppenheim notes that there are four views on when a breach occurs. Some commentators require the use of force or ruse to break through the blockade. Others relax the requirement and require no force or ruse. A third view is that breach occurs when a vessel is moving in the direction of a blockaded area, though its papers indicate it should be headed elsewhere. Finally, there is the continuous voyage doctrine. Oppenheim 1952, at 785–786.
- 171.
See discussion supra sec. 6.2.2.
- 172.
NWP 9, supra note 4, sec. 7.9. Capture is also permissible in the event of refusal to identify oneself and resisting visit and search. Id.
- 173.
Oppenheim 1952, at 788.
- 174.
Id. at 789. See, e.g., The Imina, 3 C. Rob. 167, 1 Eng. Pr. Cas. 289, 165 Eng. Rep. 424 (1880).
- 175.
See Oppenheim 1952, at 789; 3 PlL, supra note 9, at 49; Declaration of London, supra note 72, Articles 17, 20. In the view of Nicholas Poulantzas, the laws of hot pursuit at sea should apply by analogy to aerial pursuit over the high seas. He argues, correctly so, that aerial pursuit over the high seas is not analogous to hot pursuit on land because of the differences in the nature of sovereignty over land and airspace above the high seas. See Poulantzas 1969, pp. 271–345.
- 176.
A very good argument can be made that pursuit continues if the breaching vessel is monitored by some technological means from the time the pursuing vessel or aircraft breaks off.
- 177.
Of course, this scenario depends on the unavailability of additional interceptors. The problem is not so much the number of aircraft involved in the initial intercept (since a single fighter can engage multiple targets simultaneously), as it is being pulled out of weapon systems range. Whether blockading forces can maintain sufficient aircraft in combat air patrols (CAP) and sitting alert to preclude this possibility for any extended length of time is doubtful. It is even more doubtful if the aircraft are being used to support non-blockade related operations as well.
- 178.
NWP 9, supra note 4, sec. 7.9. US prize proceeding involving aircraft and ships are governed by 10 U.S.C. sec. 7651–7681. Interestingly, until 1939 British prize courts were not authorized to handle cases involving aircraft. In that year a new Prize Act was passed which allowed for condemnation of aircraft, using the procedures and principles applicable to maritime capture. Spaight 1947, at 411. However, there is only one known prize case considering the capture of an aircraft (during World War Two), and it is not on point for it did not involve a breach of blockade or seizure for carrying contraband. Id.
- 179.
This has been an accepted principle throughout the twentieth century. See, e.g., NWP 9, supra note 4, sec. 7.3.7; 1923 Draft Rules of Aerial Warfare, supra note 134, Article 40; Convention Concerning the Rights and Duties of Neutral Powers and Persons in War on Land (Hague V), October 18, 1907, Articles 1–2, 205 Parry’s T.S. 299, U.S.T.S. 540, 36 State 2310, 1 Bevans 723. The circumstances in which a belligerent aircraft can enter neutral airspace include: innocent passage above international straits and archipelagic sea lanes, when unarmed if the neutral nations so permits and applies any conditions impartially, when on medical missions, and in force majeure situations. NWP 9, supra note 4, sec. 7.3.7. The concept of sovereignty over airspace was recognized in the 1919 Paris Convention for the Regulation of Aerial Navigation, Article 1, 11 L.N.T.S.173. That article was inserted verbatim in the 1944 Chicago Convention. Convention on International Civil Aviation (Chicago Convention), December 7, 1944, Article 1, 15 U.N.T.S. 295, T.I.A.S. 159161 Stat. (2) 1180, 3 Bevans 944.
- 180.
NWP 9, supra note 4, sec. 7.3.7.1; AFP 110-31, supra note 132, para 2-6c; 1923 Draft Rules, supra note 134, Article 42; 3 PIL, supra note 9, at 9. For a discussion of the issue of belligerent aircraft entering neutral airspace, see Spaight 1947, at 420–460. An excellent analysis of the development of the principle of sovereignty over airspace is found in Phelps 1985, pp. 266–274.
- 181.
NWP 9, supra note 4, sec. 7.3; Hague V, supra note 179, Article 1; Convention Respecting the Rights and Duties of Neutral Powers in Maritime War (Hague XIIl), October 7, 1918, Article 2, 205 Parry’s T.S. 395, U.S.T.S. 545, 36 Stat. 2415, 1 Bevans 723.
- 182.
NWP 9, supra note 4, sec. 7.3.2.3. See also Hague XIII, supra note 181, Articles 21–22.
- 183.
Id. Article 23.
- 184.
See The Steamship Appam, 243 US 124, 37 S. Ct. 337, 61 L. Ed. 633 (1917), in which a British steamship seized by a German warship was taken to Hampton Roads. The court ordered the ship released to its British owners.
- 185.
NWP 7.3.2.3; Hague XIII, supra note 181, Article 3.1.
- 186.
See, e.g., NWP 9, supra note 4, sec. 7.9; Tucker 1955, at 336–337 and n. 11.
- 187.
NWP 9, supra note 4, sec. 7.5.2. Note that a lesser degree of force is authorized against enemy passenger vessels or aircraft (or those neutral vessels or aircraft which have acquired enemy character). Generally, they are exempt from destruction unless they are being used for a military purpose, such as transporting troops or supplies, or have failed to comply with the instructions of intercepting aircraft or vessels. NWP 9, supra note 4, sec. 8.2.3.
- 188.
AFP 110-31, supra note 132, sec. 1-3a; NWP 9, supra note 4, sec. 5-2.
- 189.
Professor McDougal and Justice Feliciano have argued that the concept of unnecessary destruction is operative in blockade situations. McDougal and Feliciano 1961, at 494–495.
- 190.
Id.
- 191.
Virtually all fighter pilots will attest to the difficulty of disabling, but not destroying, an airborne aircraft. One attempt to do so occurred in February 1973 when a Libyan airliner entered airspace over Israeli occupied territory. The airliner crashed with the loss of 108 lives. McCarthy 1984. Similarly, an attempt by Soviet airliners to “warn” an Air France airliner which had reportedly stayed over East Germany in April 1952 resulted in the wounding of passengers. Lissitzyn 1953.
- 192.
One commentator, reviewing such documents as Protocol I Additional to the Geneva Conventions and the Statute of the International Court of Justice, has concluded that:
Every legal order recognizes that in the pursuit of even the most honorable of interests, there comes a point when the consequences incurred are so grim that they outweigh any possible benefits and oblige the individual, even If he has the law on his side, to stand down: obedience to the law may certainly be a very high value indeed, but it is never a purpose unto itself.
Jahn 1984, 455.
- 193.
Tucker, writing in 1955, noted:
Of course, if a neutral aircraft attempts to flee upon being summoned, or offers any form of resistance to a belligerent military aircraft, then the latter is entitled to resort to force, and even––if necessary––to destroy the aircraft.
Tucker 1955, at 355 n. 62. However, he also noted in the same work that while “(t)here is no apparent reason why aerial warfare should be thought of as an exception… it has frequently been contended that given the special circumstances attending aerial hostilities the scope of the immunity from direct attack granted non-combatants necessarily must prove more restrictive than elsewhere.” Id. at 110. Spaight makes a similar argument, explicitly including in the possibility the downing of a civil airliner that refuses to comply with instructions to land or proceed to a designated place. Spaight 1947, at 399. Article 50 of the 1923 Draft Rules of Aerial Warfare, supra note 134, and Article 111 of the Harvard Research, The Harvard Research 1939, also contemplate the use of force against non-military aircraft which fail to follow instructions of interceptors.
- 194.
See “Note to Yugoslav Charge D’Affaire,” 15 Dep’t. St. Bull 417 (1946): “Message from Ambassador Patterson,” 15 Dep’t. St. Bull. 418 (1946); “Facts Relating to Flights of American Planes Over Yugoslav Territory,” 15 Dep’t. St. Bull. 501 (1946); Majid 1986, 201. Compensation of $30,000 per person killed was paid, though the payments were labeled ex gratia. Id. It is interesting to note that the American explanation of the overflights was that both were due to navigational errors caused by weather. The United States did not assert that a use of force response was illegal under international law per se. See documents cited in this endnote.
- 195.
1956 I.C.J. Pleadings, Aerial Incident of October 7, 1952 (US v. USSR); 1959 I.C.J. Pleadings, Aerial Incident of November 7, 1954 (US v. USSR).
- 196.
1956 I.C.J. Pleadings, Aerial Incident of March 10, 1953 (US v. Czech.).
- 197.
1958 I.C.J. Pleadings, Aerial Incident of September 4, 1954 (US v. USSR).
- 198.
Phelps 1985, at 278, citing Keesings Contemporary Archives 13733 (1954). In their note to the British, the Chinese asserted that the attack was accidental and apologized for it. Additionally, the note suggested that if the aircraft had been a military transport not on an aggressive mission, the Chinese would not have fired on it. In other words, they appeared to take Tito’s approach. See Id.
- 199.
See memorials cited at notes 195–197.
- 200.
Phelps 1985, at 287.
- 201.
In the Yugoslavian and Chinese cases, suggestions by the guilty states that they would employ a more restrictive test cannot be viewed as establishing any binding principle. First, the political context must be considered. In 1946 tensions were starting to emerge between the independently minded Yugoslavs and the Soviets. Thus, it would not have been politically wise to alienate the West. Similarly, in 1954 the Korean War had been over for a very short period. Again, antagonizing the West would not have been fruitful. In both cases it was much more profitable politically to admit responsibility and allege accident. At the same time, it is instructive to look at the responses of the rest of the world. There is no indication that there was anything approaching a consensus that states could never use force in responding to aerial intrusions.
- 202.
- 203.
See 1959 I.C.J. Pleadings, Aerial Incident of July 27, 1955 (Isr. v. Bul., US v. Bul., UK v. Bul.).
- 204.
Case Concerning the Aerial Incident of July 27th, 1955 (Isr. v. Bul.) 1959 I.C.J. 127.
- 205.
Corfu Channel Case (UK v. Alb.), 1949 I.C.J. 4. Also cited as support was an arbitral award, Garcia v. US (Mex. v. US), 4 U.N.R. Int’l Arb. Awards 119, 123 (1928). The case, heard by the US Mexican Claims Commission, involved the shooting by US law enforcement officials of a young child crossing into the United States on a raft. The act was held illegal under international law on the basis that “the importance of preventing or repressing the delinquency by firing (must be) in reasonable proportion to the danger arising from it to the lives of the culprits…” Memorial of Great Britain, 1959 I.C.J. Pleadings, supra note 203, at 362. In other words, the principle of proportionality applies.
- 206.
Memorial of Israel, 1959 I.C.J. Pleadings, supra note 203, at 84–85; Memorial of the United States, 1959 I.C.J. Pleadings, supra note 203, at 214–215; Memorial of Great Britain, 1959 I.C.J. Pleadings, supra note 203, at 358.
- 207.
Id. 358.
- 208.
Memorial of the United States, 1959 I.C.J. Pleadings, supra note 203, at 242.
- 209.
Referring to humanity, the Israeli memorial noted:
In all systems of law, including international law, this is the test for measuring the degree of violence which may justifiably be used to protect rights recognized by the law, and particularly the degree of violence used when performing acts by their very nature dangerous. In the Corfu Channel case the Court relied on this principle as a basis for the international responsibility of Albania when mine fields laid in Albanian waters constituting an international strait caused damage to units of the Royal Navy and death to members of its military personnel. The Court was merely applying an already existing principle of international law to the particular circumstances of that case.
Memorial of Israel, 1959 I.C.J. Pleadings, supra note 203, at 84–85.
- 210.
Donahue 1989, at 59.
- 211.
Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 2 Bevans 983, 137 L.N.T.S. 11.
- 212.
- 213.
28 ICAO Bull. 13 (July 1973).
- 214.
Donahue 1989, at 60.
- 215.
N.Y. Times, Febraury 26, 1973, at 1, col. 4.
- 216.
Majid 1986, at 203.
- 217.
Cheng 1985, at 49. The sensitive areas were Petropavlovsk Naval Base on the Kamchatka Peninsula and Korsakov Naval Base and Dolinsk-Sokol Air Base on Sakhalin Island. Id. The Soviet report on the incident claimed that the radar blips of a US RC-135 and KAL 007 merged for a period, and that when they separated one aircraft headed towards Alaska, while the other flew towards the Soviet Union. Thus, the Soviets believed the aircraft was a RC-135. Further, it alleged that the aircraft was flying with its navigational and strobe lights off and its cabin lights extinguished. Supposedly, the aircraft ignored Soviet instructions over Kamchatka to turn back. When it reentered Soviet airspace over Sakhalin, Soviet interceptors again tried to turn the aircraft using standard intercept procedures, i.e., rocking wings, flashing lights on and off, and contacting the aircraft by radio. When they received no response, tracers were fired. Again there was reportedly no response, and the aircraft was downed with rockets. Preliminary Information on the Progress of the USSR Investigation (Soviet Report), at Report of ICAO Fact-Finding Investigation (December 1983), app. F, para 2.1–2.4, reprinted in 23 I.L.M. 865, 911-914. The evidence appears to be to the contrary. The transmissions of the Soviet interceptors were monitored and taped throughout the encounter. The transcripts indicate that the Soviet pilots noted that the navigation and anti-collison lights were on, and no attempts were made to order KAL 007 to land. Cheng 1985, at 54. The ICAO report concluded that there had been insufficient efforts to identify the aircraft visually. ICAO Report, supra, para 2.12.10. For a discussion of the conflicting claims in the context of an incident study, see Morgan 1988, at 218–225.
- 218.
UN Doc. S/PV.2470 (1983), reprinted in 22 I.L.M. 1114 (1983).
- 219.
The text of the draft resolution (S/15966/Rev.l) is reprinted at 22 I.L.M. 1148 (1983). Poland also voted against the resolution, and the P.R.C., Guyana, Nicaragua, and Zimbabwe abstained. UN Doc. S/PV.2476 (1983) reprinted in 22 I.L.M. 1138, 1144 (1983).
- 220.
ICAO Council Resolution, reprinted in 22 I.L.M. 1149, 1150 (1983). Czechoslovakia and the USSR voted against the resolution, and India, Algeria, and China abstained. Id. at 1150. The resolution was subsequently endorsed by the ICAO assembly. The vote was 65 to 10 with 26 abstentions. Id. at 1149.
- 221.
Id. at 1151. See also ICAO Council Resolution, reprinted in 22 I.L.M. 1152 (1983).
- 222.
ICAO Council Resolution, Mar. 6, 1984, reprinted in 23 I.L.M. 937 (1984).
- 223.
Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), May 10, 1984, reprinted in 23 I.L.M. 705 (1984).
- 224.
Id. at 706.
- 225.
- 226.
Majid 1986, at 210.
- 227.
IFALPA Press Statement, September 6, 1983, reprinted in 22 I.L.M. 1218 (1983).
- 228.
Donahue 1989, at 63.
- 229.
See, e.g., Notes for a Statement by the Deputy Prime Minister and Secretary of State for External Affairs (Canada), September 5, 1983, reprinted in 22 I.L.M. 1199 (1983); Statement by Mr. Masaharu Gotada, Chief Cabinet Secretary, (Japan), Sept. 9, 1983, reprinted in 22 I.L.M. 1201 (1983); Civil Aeronautics Board Show Cause Order 83-9-43, September 8, 1983, reprinted in 22 I.L.M. 1208 (1983); and Civil Aeronautics Board Order 83-9-58, September 12, 1983, reprinted in 22 I.L.M. 1213 (1983).
- 230.
Even if Article 3 bis was read not as declaratory of international law, but rather as newly prescriptive, it would not have determinative bearing on the issue because it would be limited to the context in which it arose––peacetime actions. It is only by characterizing it as declarative, in light of the absence of comparable provisions in other treaties, that it can be deemed to have bearing by analogy beyond the specific situations envisaged in the Chicago Convention. Indeed, even with regard to ships flying the same flag, enforcement must be consistent across the board. Obviously, though, the principle is designed primarily to avoid the dangers of discrimination addressed above, since there would seldom be a reason to selectively enforce against ships of the same nation.
- 231.
See NWP 9, supra note 4, sec. 7.4.2, regarding the use of aircerts in contraband operations. During the Cuban Missile Crisis three clearance systems were operative. Vessels departing American ports could obtain a clearcert from US customs authorities if they were destined for Cuba or would be passing near the island. Those departing from foreign ports which were only going to transit the affected zone could file a “notice of transit” with the American consulate at the last port of departure. If the vessel was bound for Cuba, and was not transporting offensive weapons or other prohibited material, the American consulate would issue a clearcert. “US Acts to Avoid Delays for Shipping Transiting Waters in Vicinity of Cuba” (Press Release # 644), 47 Dep’t. St. Bull. 747 (1962).
- 232.
A critical force majeure issue is what to do if an interceptor directs a “captured” breaching aircraft to a particular recovery airfield, but the aircraft replies that it has neither sufficient fuel to reach that destination, nor sufficient fuel to turn back and fly to an airfield outside enemy territory. Professor Tucker, relying on the 1923 Hague Rules of Aerial Warfare requirement that the diversion field be suitable and reasonably accessible (Article 50), has suggested that the aircraft should be allowed to continue on. Tucker 1955, at 355. This would appear to be the best approach politically and legally.
- 233.
The Advisory for current (November 1990) operations in the Persian Gulf and Red Sea is an excellent example of the specificity with which such notifications should be made:
The United States has requested that the following information be disseminated. US military forces are operating north of the 20 degree north latitude in the area of the Arabian Sea, Gulf of Oman, Strait of Hormuz, and the gulf west of the Strait of Hormuz. US forces are also operating north of 22 degrees latitude in the area of the Red Sea. The timely and accurate identification of aircraft in this area is essential to preclude the inadvertent use of military force against civilian aircraft… To better enable US military forces to identify aircraft, all aircraft flying within or entering this area should maintain a continuous listening watch on one or both of the international emergency frequencies (VHF 121.5 and/or UHF 243.0 MHz). Aircraft equipped with a civil weather avoidance radar and/or an operational civil type radar transponder should operate both continuously when transiting these areas.
Unidentified aircraft and those whose intentions are unclear to US military forces will be contacted using the English language on VHF 121.5 and/or UHF 243.0 MHz and requested to identify themselves and to state their intentions. Such contacts may originate from military surface and/or airborne units. US radio communications will use standard phraseology and will specify the aircraft’s flight information, as available, to include: heading, flight level or altitude, SSR/IFF squawk, geographical coordinates, and ground speed. Aircraft receiving advisory calls should acknowledge receipt and understanding of the warnings on the frequency received, and provide the information requested.
…[F]ailure to respond to radio transmissions or to respond to or comply with the advice given may place the aircraft at risk. Aircraft transiting the area mentioned may minimize their exposure to the advisory procedure by maintaining an altitude above FL 250, by avoiding off-airways routing, by executing all climbs and descents within national airspace and by avoiding abrupt and unusual changes in heading and/or altitude which may be constructed as inconsistent with normal aircraft flight patterns.
Department of State Advisory, supra note 16.
- 234.
An example of a NOTAM for an area in which there is a risk of the use of force is USCINCCENT MacDilI AFB FL Message, supra note 16.
US Naval Forces operating in international waters within the Persian Gulf, Strait of Hormuz, and the Gulf of Oman are taking additional defensive precautions against terrorist threats. Aircraft at altitudes less than 2000 feet AGL which are not cleared for approach/departure to or from a regional airport are requested to avoid approaching closer than 5 NM to US Naval Forces. It is also requested that aircraft approaching within 5 NM establish and maintain radio contact with US Naval Forces on 121.5 MHz VHF or 243.0 MHz UHF. Aircraft which approach within 5 NM at altitudes less than 2000 feet AGL whose intentions are unclear to US Naval Forces may be held at risk by US defensive measures.
NOTAMs are issued IAW AR 95-10/OPNAVINST 3721.20/AFR 55-16.
- 235.
See, e.g., Convention on International Civil Aviation (cited supra note 179), annex 2 (Rules of the Air), sec. 3.8.1d, reprinted in 22 I.L.M. 1154 (1983). See also frequencies used in State Department Advisory, supra note 233, and NOTAM, supra note 234.
- 236.
Annex 2, supra note 235, sec. 3.8.
- 237.
Id. sec. 3.8.1a.
- 238.
Id. sec. 3.8.1b.
- 239.
Id. sec. 3.8.1c. If radio contact is established, but there are language difficulties, a series of short common phrases are provided in the Annex––wilco, cannot, repeat, am lost, mayday, land, descend, follow, you land, and proceed. Id. sec. 3.8.2.
- 240.
Id. sec. 3.8.Id.
- 241.
Id. sec. 3.8.3.
- 242.
Id. sec. 3.8.4.
- 243.
Convention on International Civil Aviation (cited supra note 179), app. A, reprinted in 22 I.L.M. 1176 (1983). There are three signals that can be made by the intercepting aircraft. In order to indicate an intercept, the intercepting aircraft rocks its wings (flashes navigational lights at night) and makes a slow level turn to the desired heading. The intercepted aircraft acknowledges by rocking its own wings (or flashing navigation lights at night). The proceed instruction is made by an abrupt breakaway maneuver and acknowledged by rocking wings. To direct a landing, the interceptor circles the field, lowers its landing gear, and overflies the runway in the direction of the desired landing. Acknowledgment is by lowering the landing gear and landing. Id. para 2.1. The intercepted aircraft also has use of three standard signals. To indicate that the designated airfield is insufficient, the landing gear is raised and the aircraft continues circling the airfield (flashing landing lights at night). A cannot comply message is conveyed by switching all lights on and off in a manner that is distinct from regular flashing. Finally, in distress is signaled by an irregular flashing of all available lights. Id. para 2.2.
- 244.
Dep’t. of Defense, Flight Information Publication: General Planning, sec. 6-6 (Aug. 23, 1990 ed). See also NWP. 9, supra note 4, sec. 2.5.2.2, concerning FIRs.
- 245.
NWP 9, supra note 4, sec. 2.5.2.3. Though some states require all aircraft entering the zone to identify themselves regardless of an intent to penetrate national airspace, the United States does not recognize this right. Id. Procedures to be followed in US ADlZs are set forth in United States Control of Air Traffic Regulations, 14 C.F.R. part 99 (1985).
- 246.
See, e.g., DMAHTC message, supra note 15; USCINCCENT message, supra note 16; State Department Advisory, supra note 16.
- 247.
See, e.g., NWP 9, supra note 4, sec. 7.8.
- 248.
One argument might be that the volume of traffic seeking to pass through the area will be quite low since insurance costs for aircraft operating near an area of hostilities can be expected to skyrocket. Even in the case of state owned aircraft, the mere presence of hostilities may be a disincentive to operating in the area. If factors such as these kept the number of aircraft entering the area low, an aircert program might prove viable.
- 249.
Such routes would not be dissimilar to Air Traffic Service Routes currently used by civil, and often military, aviation. See General Planning, supra note 244, sec. 6-14. That a system of corridors is workable is illustrated by those until recently employed for transit to and from Berlin.
- 250.
For example, AWACSs and E-2s can probably effectively monitor an area in a 200 NM radius around the aircraft. Thus, multiple missions will have to be ongoing simultaneously during larger operations. Similarly, given range constraints of carrier based interceptors, aircraft sitting alert would not have an effective area of operations extending much beyond a 300 NM radius of the carrier.
- 251.
Supporting intelligence will also be critical for it will allow the blockading force to focus it efforts where they are likely to do the most good.
- 252.
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Abbreviations
- ADIZ
-
Air defense identification zone
- AIP
-
Aeronautical information publication
- AWACS
-
Airborne warning and control system
- CAP
-
Combat air patrol
- ELINT
-
Electronic intelligence
- FIR
-
Flight information regions
- ICAO
-
International civil aviation organization
- IFF
-
Identify friend or foe
- IFALPA
-
International federation of airline pilots associations
- NOTAM
-
Notice to airmen
- NOTMAR
-
Notices to mariners
- SIGINT
-
Signals intelligence
- USSR
-
Union of Soviet Socialist Republics
- VFR
-
Visual flight rules
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Schmitt, M.N. (2011). Aerial Blockades in Historical, Legal, and Practical Perspective. In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_6
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