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The sighting, a century apart, of Confederate sail, above, or of suspected North Vietnamese junks signaled only the beginning of yet another round in the ancient grim game between those who would enforce—and those who would risk all to run—a naval blockade.
l
con-
venti,
°ns written by conferences such as those associated C . c^e names of Hague and Geneva. The law con- en • *n^ blockade, however, has been developed almost ,refv by a customary process of decision.1 The naval p .lcs and strategy of blockade, if accepted over a he tlme by other belligerents and by neutrals,
me the international law of blockade. The silence
nternational Lawmaking by Custom: Some interna- na is made and developed by multilateral
acquiescence of states has typically manifested the p Ptance of particular methods of blockade as legally prey 1SS™e' ^e function of diplomatic protest is to tjj ent che law from being made or developed without rrial^assent of the protesting state. The customary law- cla' Process involves a national state acting as bjo1^ant through the use of particular methods of tqo^ack and as a decision-maker in appraising the is fC a<^C c^aims °f other states. This duality in function 0f JPIcal of the decentralized decision-making process nternational law. It is so different from the highly 1Zecl and institutionalized lawmaking processes (jem national states that it is frequently misun- fp . • It is sometimes alleged that the duality of law. It should be explained that the double function of states as both claimants and decision-makers enmeshes them in a network of affirmative mutualities and reciprocities as well as negative reprisals and retaliations. The result is that national officials who are capable of long-range calculations of national self-interest are encouraged to advance claims which are consistent with juridical principles and expectations. If they advance claims or make decisions not justified in law, they run the real risk of being subjected to retaliations.2
The basic principles of the law of war are military necessity and humanity.3 Military necessity is designed to promote military efficiency—subject to the prohibitions of the law of war. Humanity reflects basic humanitarian objectives which are operative even in war and hostilities. Both principles must be considered together because neither one standing alone can be effective in conserving values. These principles share the objective of minimizing the unnecessary destruction of both human and material values. Human values include, for example, the well-being of personnel, whether combatant or noncombatant. Material values include, among other things, naval and merchant ships and military and civil aircraft. "Unnecessary destruction” is that destruction which is not directly related to a lawful military objective. This value-conserving conception is fundamental throughout the law of war, including the doctrines relating to blockade.4
The purpose of this article is to examine the juridical doctrines of blockade in modern history through the use of selected examples. It would be difficult to understand the significance of the examples if they were to be considered in isolation from the main currents of naval history. It is necessary, consequently, to give some consideration to the context of historical time, place, and relevant circumstances, including technological developments.
The Historic Development of the Doctrines of Blockade: Blockades in modern history have encompassed both a naval operation directed at the enemy and a method of curtailing neutral seaborne commerce with the enemy. The law of blockade is, consequently, closely connected with other parts of the law of naval warfare,
was in fact a part of a single continuous voyage a blockaded port. The U. S. Supreme Court viewed t, as a reasonable application of the previously estabhs ^ doctrines concerning blockade and contraband c and thereby further developed the doctrine of cont'
including contraband and neutrality. The modern law of blockade dates from 1584 when the Dutch Government declared that all the ports of Flanders under Spanish control were blockaded.5
The Royal Navy’s blockades of France and her allies during the Napoleonic Wars were relatively close-in blockades by later standards. The distances of the blockading vessels from the blockaded ports were determined more by considerations of naval tactics than of law. On occasion, small ships of the Royal Navy blockading forces took shelter from storms in French harbors near the main blockaded ports. Sometimes, as convenient, the blockading ships dropped anchor, and at other times they cruised slowly back and forth.6 The blockades were aimed at French war and merchant vessels as well as at neutral commerce with France.
These naval tactics and strategies had a significant influence on the doctrines concerning the international law of blockade and contraband control. Blockade was required to be close and, consistent with the naval practice, applied uniformly to the ships of all states. In the view of some lawyers, a stationary cordon of warships was required. However, this was inconsistent with naval practice, and a more enlightened view stressed the necessity for the blockade to be effective. It was widely accepted that a blockade must be officially proclaimed in order to provide notification to neutrals.
The legal principles concerning contraband, although doctrinally distinct from the blockade principles, performed an analogous function in restricting neutral commerce with the enemy. Belligerent warships carried out visit and search of neutral merchant vessels anywhere on the high seas with the objective of contraband control. The cargoes of such vessels were classified in terms of their relation to the military power of the enemy. The category of "free goods” consisted of articles such as food which were deemed unrelated to the enemy’s military capacity. "Absolute contraband” comprised goods which were specialized to military uses and, following visit, search, and capture by a vessel of the blockading force, were subject to condemnation by a prize court. "Conditional contraband” covered goods which could be used for military or civilian purposes, and it was usually necessary also to show its military destination and prospective use before it could be condemned in prize.7 Under the international law of naval warfare, a belligerent state was entitled to employ either blockade or contraband control or both.
Although the American Civil War was a domestic war in many respects, the entire international law of naval warfare, including particularly the doctrines concerning blockade and contraband control, was applied
to it. President Abraham Lincoln’s 1861 Proclamation of Blockade of the Confederacy provided the govern ment of Great Britain with a juridical basis for bot the British Neutrality Proclamation of the same year and for Britain’s recognition of the belligerent status of the Confederate States. One immediate result of the U. S. Proclamation of Blockade was the conferring 0 belligerent rights, as well as the imposition of belkg erent duties, upon the Confederate States. ^
In 1856, the principal European states had agree to the Declaration of Paris which is the only doctrine
• TfS
of blockade directly formulated by convention, fourth article, which was substantially declaratory 0 the existing customary law, provides:
"Blockades, in order to be binding, must be effeC tive; that is to say, maintained by a force sufficing really to prevent access to the coast of the enemy-
Although it is clear that at the beginning of Civil War, the U. S. Navy had nothing like an adequate number of ships to enforce the blockade, with tin1 it became increasingly efficient. As a result, there ^ diminishing disposition upon the part of neutrals allege its ineffectiveness and consequent legal invalid The quoted provision of the Declaration of Paris ^ thus amended by the customary law of the Civil to provide that if an initially ineffective blockade 1* meets the requirements of effectiveness, its legality 'vl be held to exist from the beginning.
As the effectiveness of the blockade increased, 1 ingenuity of neutral merchants with contraband g°° for sale to the Confederacy increased proportiona ) After it became too hazardous to ship contraban goods directly from the British Isles to a Confedet port in a single voyage, a different procedure was deV^j oped. The contraband goods would be sent to a neut^£ port, for example one in the Bahamas, and there goods would be unloaded and transshipped to a blockade runner which would sail directly to a C federate port. There is no doubt that the goods c°u have been captured during the second voyage and c° demned by the prize court for the attempted bte-1 j of the blockade. The U. S. Navy, however, develop ^ the practice of intercepting the goods before the ca^ reached the neutral port and asked for condemn*11 the prize court on the ground that the first vo) 6
ous voyage during the Civil War. ^
Following the initial and most famous Civil { prize cases in which the Supreme Court upheld r
blockaded port was actually a single continuous
}’a8c, and ation
the vessel was condemned. An analogous inVof- arose in the case of The Springbok, which hr,tajVcd a British ship by that name sailing from Great l’htn t0 Nassau; she was captured before arrival there, biff '',°yaSc to Nassau was undertaken in good faith, o^nerC ^upreme Court found that, unknown to the s °f the ship, the cargo was to be transshipped to
Jr- 1Cy °f the blockade of the Confederacy, there were ttj tant subsequent prize cases involving the doc- p0rtS.°f continuous voyage and continuous trans- part.atl0n-9 Three of the cases on this subject were It ilcu^arly important and will be considered briefly, of _ htst be mentioned, however, that the doctrine O<nuous voyage was applied earlier during the eonic Wars and has indeed been traced to the ^ °f 1756.10
leftn^e case of The Bermuda, the ship of that name 1VerP°°l for Bermuda and then proceeded to ap- u ln the Bahamas. From Nassau, her cargo was the hint ^ to transshipped to another vessel to run captu0c*ade to a Confederate port. The Bermuda was SuprUre<^ cn route between Bermuda and Nassau. The tateC ^ourt looked beyond the appearance of sepa- to tpVaTaSes and held that the voyage from Liverpool vo- ’
sitU;
another vessel after being landed in Nassau and then run through the blockade. The ship was restored to her owners, but the cargo was condemned.
A factually different situation existed where a neutral merchant ship carried contraband goods directly to the neutral Mexican port of Matamoras from where the goods were transported inland to the nearby belligerent port of Brownsville, Texas, across the Rio Grande River. Matamoras rapidly became a commercial center of considerable practical importance to the Confederate war effort but, as a neutral port, it could not be blockaded under the existing principles of international law. The case of The Peterhoff involved a British ship carrying to Matamoras a cargo which was intended to be transported inland to the Confederate states. The ship, however, was captured en route to that port. The Supreme Court held that the contraband portions of the cargo were condemned, but that the remainder of the cargo and the ship must be restored to the owners since the cargo was to reach its ultimate destination by land and by inland navigation and that, consequently, there was no violation of the blockade.
British merchants were distressed by the unreasonable burdens which, in their view, the newly intensified doctrines of continuous voyage and continuous trans-
In summary, although the long-distance
w dJ it vv a.o j- - , JJ)
expansion of the preexisting doctrines of blocka the circumstances of total war manifested by World Wars. This is not to say that such a bl°c0[\ would be either rational or lawful in the conte* ^ a limited war. The adaptation and development 0 ,J preexisting doctrines in the light of the new tec A gies of the two World Wars allowed law to c°nt
portation placed upon neutral traders. They made strong representations to the British Government and asked it to take diplomatic and naval measures to uphold neutral rights. That government, after careful deliberation, declined to do so.11 It acted in consideration of long-range British interests which might include its own wish to employ the doctrines of continuous voyage and transportation in a future war. Thus, these doctrines, as applied in the Civil War, were accepted as a part of the law concerning blockade and contraband control with the assent of the most important neutral state.
In both World Wars, developments in science and technology led to changes in naval tactics and strategy. The submarine and its principal weapon, the self- propelled torpedo, along with the airplane and the mine, had started a revolution in naval warfare which was further advanced by the incorporation of merchant ships into surface naval warfare through the convoy system. Because of their participation in the naval war effort, such merchant ships became warships in fact, if not in theory. Like warships, therefore, they could be lawfully sunk without warning. The traditional blockade was replaced by a long-distance blockade accompanied by a comprehensive contraband list which early in World War I swept away the distinctions between "free goods,” "conditional contraband,” and "absolute contraband.” The development of the navicert systemproviding naval clearance certificates to neutral vessels with approved cargoes, routes and destinations—made it impossible for neutral merchant ships to operate except when they complied with Allied contraband control regulations. The rationing of neutrals was employed to limit neutral importation of various commodities to the same amounts which had been imported in peacetime.12
As a neutral during the early years of World War I, the United States protested vigorously against the principal measures associated with the long-distance blockade. As a belligerent in both World Wars, she helped to improve the long-distance blockade as a comprehensive method of economic warfare and thus weakened her claims as a neutral.
The long-distance blockade of World War II may be summarized as transferring effective control "from
the seas to the quays.” The task of obtaining infotm^ tion concerning the relevance of particular cargoes the enemy’s war effort was transferred from boar 1 b officers at sea to ministries and boards of econo warfare on shore. They exercised comprehensive c0^ trols over all neutral commerce which could possibly of benefit to the enemy. The function of econ0111^ warfare went far beyond capturing and condemning prize unauthorized cargoes. It was rather conceive making arrangements so that no ship or cargo woul allowed to go to sea unless it received the authorize j3 of the Allied economic warfare authorities in advance- The ship warrant system was used to compel the PiC ipation of neutral shipping in the Allied econ warfare by denying fuel, charts, and other necessi to uncooperative neutrals.14
The long-distance blockade and its associated con ^ band control measures were not adopted by Britain as a claim of right. In both World Wars, comprehensive blockade was stated to be in repris3 ^ alleged unlawful methods of warfare, particularly s marine warfare, conducted by Germany. The late j fessor Hersh Lauterpacht has attempted to look bey ^ form to substance in formulating the doctrinal baslS the long-distance blockade.
j in
"[M]easures regularly and uniformly repeate successive wars in the form of reprisals and at the economic isolation of the opposing belliger must be regarded as a development of the principle of the law of blockade, namely, ^ J belligerent who possesses the effective commas ^ the sea is entitled to deprive his opponent o use thereof for the purpose either of navigati°^j; his own vessels or of conveying on neutral v ^ such goods as are destined to or originate him.”15 , j
bl°CsibM
was deplored, it was accepted as a legally permb5 .
th ,*Stor*c functi°n as a limitation upon violence. If e aw of blockade had not been susceptible to devel- t^ent and change, the far more likely outcome than repetition of the close-in blockades which were pessary to establish lawfulness during the Napoleonic ars would have been a situation where blockades re subject to no legal limitations whatsoever. e German unrestricted submarine warfare used b8ainst the Allies in two World Wars has not usually een characterized as a blockade enforced by subma- ■ its function, however, to stop the enemy’s com
merce
enerm
establishing a submarine operational area
failed-
sUrfG at visit and search are equally impractical for tnay ^ warships where enemy submarines or aircraft f e present. In any event, the claim of illegality ni ,tTlar'ne blockades is no longer open to the
^ ___ ~C_____ ~ _ • .
of
0,
ln enemy ships and neutral commerce with the ade^' WaS C^e same as t^at t^ie long-distance block' In asking Congress to declare war against Ger- that^ *n Pfes’dent Woodrow Wilson claimed
•nen ^ ^erman submarine warfare violated the ele- i . tary humanitarian principles of international law, ding the right of neutral nationals to sail unmo- e on board belligerent merchant ships.17 The ulti- in C Sanctlon °h the surface naval blockade—if the Co rne<a‘ate sanctions of attempted visit and search or fr Prenensive contraband control failed—was gunfire sub SUr^ace warships. The ultimate sanction of the
Marine naval blockade—if the intermediate sanc- hnns 0f
do k Was torPecIoes from submarine warships. It is de uul that one of the ultimate sanctions was more ^structive than the other. The U. S. Government, Vje^ever> persisted throughout World War I in the intf‘at ^e submarine blockade was in violation of ^national law.
Coije United States has probably changed her position du ■ CrninS the lawfulness of such blockades, because ja.r'nS World War II, she conducted a blockade of pbSn which was enforced by submarines and mines.18
Slgnificant juridical difference between the subfile lne kf°ckade conducted by the United States and 0fles conducted by Germany is that the former had St^al vessels to contend with. (Both the United the f an<^ JaPan attempted to avoid interference with the \CV"' vesseIs °f the Soviet Union which sailed in of i , 0rth Pacific.) It is difficult to deny the lawfulness "hicli a<aCS enf°rcecf by submarines under the criteria f0ruPhold the lawfulness of similar blockades en- theC surface warships.19 Some scholars have taken subc°ntrary view and have emphasized the failure of Vl>rines to carry out the traditional procedures of fact search.20 They appear to have overlooked the
Japata States after her use of such a blockade against
The Development of the Doctrines of Blockade Since 1945: The Korean War was a limited one in the sense that the great powers had a common interest in avoiding nuclear warfare. The naval aspects of the Korean War were characterized by the overwhelming superiority of the U. S.-U.N. naval forces. The North Korean government had no significant naval forces during the war. This situation permitted the unopposed use of sea power for logistic supply of the U. S.-U.N. armed forces ashore as well as the use of a relatively close-in blockade of the east and west coasts of North Korea.
The blockade announcement of 4 July 1950 stated that all merchant ships were barred from North Korean ports and that all warships, except North Korean ones, would be allowed to go through the blockade to such ports. The blockade on the east coast excluded the port city of Rashin which the Russian Navy continued to use as a warm water port throughout the Korean War.21 Thus, the tactical characteristics of the naval blockade of North Korea made it somewhat similar to the traditional close-in blockades of the Napoleonic Wars—which provided doctrinal authority for it.
For a period of two weeks immediately preceding the collapse of the Pakistan military forces in Bangladesh in 1971, the Indian Navy maintained a blockade of the coast of Bangladesh. It was a distance of only 180 nautical miles from the western extremity of the blockade (the border with India) to the eastern extremity (the border with Burma), although the sinuous coastline was much longer. The objectives of the blockade were the prevention of the resupply of the Pakistan Army and the frustration of any attempt it might make to escape to seaward, particularly along the eastern border with Burma. The task was successfully accomplished because of the surface naval power of the Indian Navy combined with the air power from her single aircraft carrier, the Vikrant. The blockading force captured six large merchant ships and numerous small craft which attempted to escape. It was reported that the small craft which did not obey orders to surrender were sunk.2" The Indo-Pakistan War was limited both in time duration and in the size of the naval forces involved. The traditional law of blockade as it was developed prior to World War I provided an adequate basis in legal doctrine for the naval blockade which was employed.
Some of the diverse uses of naval power since the end of World War II may be characterized as special function blockades.
One such example occurred during the Cuban Missile Crisis of October 1962. The attempted emplacement in Cuba of Soviet missiles capable of carrying
coast/
From the standpoint of the traditional doctrines blockade, it was anomalous for South Vietnam conduct a blockade of her own coast even though purpose was to blockade or interdict enemy infill1 There is, however, adequate legal authority for a natl ^ to prevent military infiltration through a contigu°^ zone extending 12 miles from her coast. This ma>'_ described in law as an invocation of municipal p° j( power which is consistent with international may also be maintained that since a belligerent natl^c has authority to conduct blockading operations m y territorial waters and contiguous zone of an e ^ nation, she has ample authority to do the same r j in her own waters to preserve national integrity security. it<r
The mining of North Vietnamese ports and te
nuclear warheads would, if successful, have brought about a great change in the nuclear balance of power. The emplacement was being carried out secretly and was discovered by photo reconnaisance aircraft. The limited naval blockade which was employed to have the existing missiles removed and to prevent the bringing in of additional ones was a very restrained use of power. The alternative courses of action being considered included an air strike at the missile sites and an invasion of Cuba.
President John F. Kennedy’s proclamation of 23 October 1962, entitled "Interdiction of the Delivery of Offensive Weapons to Cuba,” described missiles and bomber aircraft, along with warheads and supporting equipment, as "prohibited materiel.” The proclamation also stated that the Secretary of Defense could provide for the establishment of prohibited or restricted zones around Cuba as well as for prescribed routes for vessels and aircraft not carrying the prohibited materiel. The ensuing "interception area” was defined as within two overlapping circles, each with a radius of 500 nautical miles. One circle was centered at Havana and the other at the eastern tip of Cuba. It was contemplated that ships entering the interception zone would be visited and searched and those with prohibited materiel allowed to return to the Soviet Union. Vessels leaving Cuba with prohibited materiel en route to the Soviet Union were visually observed and photographed by vessels of the blockading force and allowed to proceed. Procedures were developed for the issuance of clearance certificates, termed "clearcerts,” for vessels which were not carrying prohibited materiel. This terminology was based upon the navicert procedure involved in the long-distance blockade of the two World Wars. The specified items of prohibited materiel may be regarded as a very selective type of contraband control.23
In making a doctrinal appraisal, it should be conceded that this limited naval blockade does not fit easily into the preexisting doctrines of the law of blockade. There are, however, other doctrines of international law which are relevant. Under customary international law which is preserved as "inherent right” in article 51 of the U.N. Charter, responding coercion must meet the tests of actual necessity and reasonable proportionality in order to be lawful. The attempted emplacement of missiles involved a severe threat to the national security of the United States, the Latin American republics, and Canada. In these circumstances, there can be no serious doubt concerning the actual necessity for a type of responding coercion which would tend to deescalate the nuclear confrontation and also to eliminate the new nuclear threat in the Americas. Because the limited naval blockade was probably the least amount of force which would have been effective, it should be upheld as meeting the most stringent conception of pr0P°r tionality in responding coercion.
On 23 October, following the unanimous decision of the Organization of American States, the quarantine was proclaimed as both national self-defense for 1 United States and as collective self-defense for the Or ganization of American States. The action of the Org^n ization of American States, although not amounting to international law authority standing alone, was sig^ nificant in that it provided an appraisal by an addition independent decision-maker concerning the actual n« cessity of the quarantine and its proportionality responding coercion. Other states in the world com®11 nity signified their acceptance of the legality of c limited blockade measure by their failure to proteS its use. The most significant appraisal of the quarantine was the Kennedy-Khrushchev Agreement which aC cepted and implemented its objectives.
One of the problems confronted by the governing of the Republic of Vietnam (South Vietnam) in 1 course of the ongoing hostilities was the infiltrafi°n by small craft of enemy personnel, weapons, and sUP plies through the territorial waters of South Vietna*^ Operation Market Time, which was started in 1“ ^ employed high-speed, well-armed small craft of 1 ^ U. S. Navy and Coast Guard and of the Republic 0 Vietnam. In addition, larger vessels of the U. S. and Coast Guard participated. Consistent with "Vietnamization” program, some of the U. S. veS ^ were later transferred to the Vietnamese Navy. The ta^ was to prevent infiltration, and this required surve lance which included visit and search and, on occasi ^ capture or destruction of enemy vessels. Operatlj,e Market Time was conducted in a contiguous z°^ prescribed by the government of South Vietnam^ being 12 miles in width along the South Vietnam .24 ,
O'
to
add
sitniiar lr> bc
ation, the enforcement of the interdiction by rather than exclusively by ships and aircraft is
ro the techniques of blockade used by the Allies
in
bi07ay and June of 1967 was a traditional close-in of , ade- is interesting that the Egyptian blockade q f ^a^ al-Mandeb during the intense hostilities of er 1973 is less well known, although it was much
Hal _
waters in May 1972 took place in the context of °n8°ing hostilities in Vietnam, including a large ^overnent of land forces from North Vietnam to th Vietnam. The purpose of the mining, carried s Haainly by aircraft, was to interdict the delivery of ]j^.0rne weapons and supplies to North Vietnam. By ltlnS the mining to the 12-mile extent of claimed rth Vietnamese territorial waters, the United States atly reduced the risks to neutral shipping on the the SCaS ^^ree daylight periods were allowed after tL m'n'ng took place for the vessels of other states n in North Vietnamese ports to depart before the es automatically activated. Notice of the mining pj n and its location was provided and, in addition,
' ■ and South Vietnamese naval forces undertook to n away all vessels which might enter the area be- l’e unawareness of the danger.25 wde purpose of the mining, to interdict seaborne P Pons and supplies, was the same purpose which a ckade described as such could have performed, hlit' ° s‘tuation of international conflict and hos- b) lS’ C^ere 's no doubt that the traditional law of c°nd a<aC Wou^d have provided authority for a blockade Ucted on the high seas and enforced by naval 0 . s and aircraft. The interdiction measures carried
anfl -n smaller area North Vietnamese territorial In 1.?lerna^ waters may be regarded as at least as lawful.
'nines alar
otb World Wars. Mines are passive weapons which not exploded until a ship passes nearby. There is in rfaSon why rhey should be treated differently in law js ^ ls factual context than gunfire from ships which ,.e traditional, legally permissible ultimate sanction ed t0 a persistent blockade runner.
ofe %yptian-claimed blockade of Eilat and the Gulf Saba at the Straits of Tiran near Sharm al-Shayk
more effective. The blockade at the southern end of the Red Sea was approximately 1,200 miles from the Straits of Tiran. It was imposed with the apparent assent of Ethiopia and Somalia to the south and of Yemen and South Yemen to the north. The blockade, along with the continuing closure of the Suez Canal, resulted in preventing seaborne access to the Israeli port of Eilat at the north end of the Gulf of Aqaba.26
While the blockade of the Bab al-Mandeb was dissimilar to the traditional close-in naval blockade, it had some similarities to the long-distance blockades employed in both World Wars. Its considerable distance from the port of Eilat as well as its strategic characteristics are roughly similar to those of the longdistance blockades. In the same way that such an Allied blockade during World War I left the German Baltic ports open, this blockade left the Israeli Mediterranean ports open. A significant feature is that it was considerably less destructive of human and material values than the massive military measures which have been frequently employed in the Middle East. In comparison with such measures, the blockade is a very limited type of coercion, and this characteristic provides additional persuasive evidence of its lawfulness. There were no significant protests, other than from the Israeli belligerent, against its use.
The Need to Analyze the Doctrines of Blockade in Naval and Legal Contexts: Many years ago, Justice Oliver Wendell Holmes said that a page of history is worth a volume of logic in understanding the juridical decision-making process. Those lawyers who attempt to act on this advice should not underestimate its hazards. For example, an American looking into the naval history and international law of World War II might start with the inaccurate assumption that German submarine officers in general, and Admiral Karl Donitz in particular, were engaged in the systematic violation of the well-established humanitarian law of naval warfare. If such a person persists in his inquiries, he may be led to consider Captain Stephen W. Roskill’s detailed accounts which demonstrate that Admiral Donitz was the only naval commander involved in the war who established a rescue zone of immunity on the high seas.27 This was done in 1942 following the sinking of the British troopship Laconia in the South Atlantic. Admiral Donitz’ humanitarian endeavors involved re-
to
auf1
:hof
, ' • f wa1
1975, and are now engaged in a study of the humanitarian law °
degree from Yale University. He served in the USS rado (BB-45), first as a gunnery officer and then •
disabi^
retired list as Lieutenant, USNR on 22 August 1946. He has ser^e^^
assigning a wolf pack of five submarines from a war patrol to a rescue operation. It was terminated by attacks on the submarines by a U. S. Army Air Forces Liberator bomber operating from Ascension Island. The central point is that the recourse to naval history requires one to deal with the actual facts of naval warfare to which international law is applicable rather than with the generalizations, cliches, and prejudices which are often used to obscure such facts.
One of the most significant features of some of the blockades employed since 1945 is the relatively low amount of coercion involved. It should be recognized, in consequence, that "blockade” is not a unitary concept or doctrine and that it encompasses uses of naval power ranging from slight to intense degrees of coercion. It is also appropriate to question the validity of some of the historic doctrines associated with blockade. The following statement, for example, should be questioned:
"In connection with a proposal that the Allied Governments blockade Bolshevist Russia, the Department of State telegraphed to the American Commission to Negotiate Peace:
"... A blockade before a state of war exists is out of the question. It could not be recognized by this Government.”28
The State Department’s view at that time appears to have been based on the assumptions that a "blockade” involves a single type of naval operation and that there is an invariable connection between it and "a state of war.” Neither assumption is consistent with the juridical doctrines of blockade as they have developed to the present time.
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 the historic legal doctrines, but it involves consideration of those doctrines in relevant historical context, including a consideration of the relation between the naval tactics and strategy of blockade and the stage of technological development of naval warfare. The naval historical context permits necessary distinctions to be made for particular purposes. In the present advanced naval technology it would be disastrous to attempt to apply the comprehensive naval blockade measures of the World Wars in a situation where one of the overriding objectives is avoiding a resort to nuclear weapons. The difficulties which some lawyers have had in understanding the legal doctrines of blockade have been largely because of a failure to consider the realities of naval strategy and tactics. In addition, consideration must be given to the elementary differences between total wars, limited ones, and situations where the pre eminent objective is to deescalate a nuclear confronts tion. The fact is that when line officers and lawyer| work with one another and combine their professions skills, as illustrated by the planning and execution 0 the Cuban Missile Quarantine-Interdiction in 1962, 1 better job will be done than when each professions group goes its separate way.
In an era of weapons of mass destruction and rap1 missile delivery systems, there can be no doubt but that the objective of elimination of overt coercion by m1^ tary means remains a primary goal on the path to wot public order. Until that high objective is achieved, 1 overriding purpose of the laws of war—to minimi destruction of human and material values—remains * valid and obtainable objective.30 It is fully supp0^ by the military principle of economy of force, doctrines which authorize the use of blockades in som circumstances coexist uneasily with other doctrin^ which have been interpreted in recent years as author^ ing a much greater level of violence directed at a mn wider range of targets. The doctrines of aerial bon1 bardment, in particular, have received critical examine tion by the 1974 and 1975 Sessions of the Gene'^. Diplomatic Conference on the Humanitarian Law War. One of the central objectives in the 1976 sessi°° will be to agree upon limitations which will effects ' protect civilians from direct aerial attacks unrelated lawful military objectives.31 Until a more adequa ^ world public order is achieved, the juridical doctn of blockade should be retained as a means of achievl c lawful military objectives while minimizing unneceS sary destruction.32
• I
Mrs. Mallison is a research associate in internationa She studied the behavioral sciences and international ar
at the University of Washington. She is the joint with Dr. Mallison of several international law put> tions. They have presented international law papcr number of universities and conferences abroad, inc u ^ most recently at the University of Cairo, Egypt in
- nf &
Dr. Mallison is Professor of Law and Director .
• n
International Law Program at George Washington ^ ^ versify Law Center, Washington, D.C. He holds the
t[,£
assistant navigator, throughout the Central Pacify ^ Philippine Islands campaigns. He was wounded in at Lingayen Gulf on 9 January 1945 and placed on the physical di& ^ ^
Visiting Stockton Professor of International Law at the U. S. Naval College, Newport, Rhode Island. In March, 1975 he attended the Conference on International Humanitarian Law as an observer.
lThe law
of war is analyzed as a decision-making process in Myres S.
mversity Press, 1961). PP- 39-59.
ln§ton: U. S
N;
On
Stock,
V0lUl
l952
and
1959]).
"Mall
iery Office and Longmans, Green and Co., 1955]). Ppenheim and Lauterpacht, op. cit., pp. 796-797.
1?ls°n’ °P- cit., pp. 62-84 and passim.
P<
x, -- a. utusiun-iiuMiig piun-caa in iviyics o.
0ugal and Florentino P. Feliciano, Law and Minimum World Public ureter- 77. r .
■ me Legal Regulation of International Coercion (New Haven. Conn.: Ya^ Uni,
2lbid„
in r ^ Mallison, Jr., Studies in the Law of Naval Warfare: Submarines Offi 6nera^ an^ Limited Wars (Washington: U. S. Government Printing
4 CC S- Naval War College], 1966), pp. 16-19.
cDougal and Feliciano, op. cit., pp. 42-43 and passim.
5
sa Oppenheim, International Law, 7th Edition by Hersh Lauterpacht ndon: Longmans, Green and Co., 1952), p. 769.
^Lhe h
are l0c*ade tactics employed by the Royal Navy in the Napoleonic Wars ^ described in Captain Alfred T. Mahan, USN, The Influence of Sea Power n History: 1660-1783 (Boston: Little, Brown and Company, 1890), pp. :>25'528.
7 Q
Ppenheim ant* Lauterpacht, op. cit., pp. 799-813.
Qfth ’ PP- 460-461. The text of the declaration is in Carlton Savage, Policy 6 ^nited States Toward Maritime Commerce in War, Volume I, 1776-1914 P ^g^n^t0n: ^ S. Government Printing Office [Dept, of State], 1934),
Ca^C ^r*Zc Cases, 2 Black 635 (U. S. Supreme Court, 1862) were the initial g CS‘ ^Le three subsequent prize cases considered in the text are: The 1 (lJU^a' ^ ^a^‘ ^4 (U. S. Supreme Court, 1865); The Springbok, 5 Wall.
• S. Supreme Court, 1866), The Peterhoff, 5 Wall. 28 (U. S. Supreme L°urt> 1866).
10
Crt Whittaker Briggs, The Doctrine of Continuous Voyage (Baltimore: th ^°^ns Hopkins Press, 1926), analyzes the named doctrine from 1756 Her ^or^d War I. A valuable history of the Civil War cases is Stuart L. % 1 Across the Atlantic: American Civil War Prize Cases and Diplo-
°y> (Berkeley: University of California Press, 1970).
Uj
j n Bassett Moore, A Digest of International Law, Volume VII (Wash-
Government Printing Office, 1906), pp. 723-725.
n the World War I blockade, see Lieutenant Louis Guichard, French Tu ^ ^ava^ Blockade: 1914-1918, translated and edited by Christopher R.
in ^Cr (New York: D. Appleton & Company, 1930). H. W. Malkin, Blockade P 87 ern ^0n^ltl0ns> British Year Book of International Law, Volume III, 1923, r^e World War II blockade, see W. N. Medlicott, The Economic U (History of the Second World War, United Kingdom Civil Series; two mcs [London: H. M. Stationery Office and Longmans, Green and Co.,
^ P- A. Behrens, Merchant Shipping and the Demands of War (History
Star*6 ^econd World War, United Kingdom Civil Series, [London: H. M. •tionr- —
delating to the Foreign Relations of the United States [1917], Supple- l8 °" 1 (Washington: U. S. Government Printing Office, 1931), p. 195.
(C(jjt ^r°fessor E. B. Potter & Fleet Admiral Chester W. Nimitz, USN, IncS^’ ^ea Boiver: A Naval History (Englewood Cliffs, N. J.: Prentice-Hall, Japan , PP- 796-812; Elias A. Johnson and David A. Katcher, Mines Against Kington: U. S. Government Printing Office [U. S. Naval Ordnance rat0ry], 1973).
19Mallison, op. cit., pp. 87-91 and passim.
20See, e.g., Robert Tucker, The Law of War and Neutrality at Sea (Washington: U. S. Government Printing Office [U. S. Naval War College], 1955).
21 Commander Malcolm W. Cagle, USN, and Commander Frank A. Manson, USN, The Sea War in Korea (Annapolis: U. S. Naval Institute, 1957), pp. 281-373.
22Lieutenant Commander Ravi Kaul, Indian Navy (Ret.), "The Indo- Pakistani War and the Changing Balance of Power in the Indian Ocean,” U. S. Naval Institute Proceedings, May 1973 (Naval Review Issue), pp. 172, 189.
23 The textual statements of fact and law are based upon W. T. Mallison, Jr., "Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense Claims Valid Under International Law” George Washington Law Review, Volume 31, 1962, pp. 335-398.
24The factual statements are based on Commander R. L Schreadley, USN, "The Naval War in Vietnam, 1950-1970,” U. S. Naval Institute Proceedings, May 1971 (Naval Review Issue), pp. 180, 186-192.
25The factual statements are based in part on Department of State Bulletin, Volume 66, pp. 747-771 (29 May 1972). An evaluation of other legal issues of the Vietnam War including the role of the United States is beyond the scope of the present inquiry.
26The factual statements are based in part on Middle East Monitor, Volume 3, No. 21, 15 November 1973, pp. 1-2.
27Captain Stephen W. Roskill, RN (Ret.), White Ensign: The British Navy at War: 1939-1943, (Annapolis: U. S. Naval Institute, I960) pp. 224-225; Roskill, The Period of Balance, Volume II, The War at Sea 1939-1943 (London: H. M. Stationery Office, 1956), pp. 210-211.
28Green Haywood Hackworth, Digest of International Law, Volume VII (Washington: U. S. Government Printing Office [Dept, of State], 1943), p. 125. So-called "pacific” blockades have not usually been associated with a state of war.
29Illustrations of such inadequate legal analyses appear in: Thomas Baty, "Naval Warfare: Law and License,” American Journal of International Law, Volume 10, 1916, pp. 42-52; E. G. Trimble, "Violations of Maritime Law by the Allied Powers During the World War,” American Journal of International Law, Volume 24, 1930, pp. 79-99; Quincy Wright, "The Cuban Quarantine,” American Journal of •International Law, Volume 57, 1963, pp. 546-565; Abram Chayes, "Mr. Nixon Avoids Use of 'Blockade,’” The Washington Post, 14 May 1972, p. B6.
30The centrality of the minimization of destruction of values is emphasized in McDougal and Feliciano, op. cit., pp. 59-96 and passim.
31See "Problems of Protecting Civilians Under International Law in the Middle East Conflict,” Hearing Before the Subcommittee on International Organizations and Movements of the Committee on Foreign Affairs of the House of Representatives, 93rd Congress, 2nd Session, 4 April 1974; Air War Study Group of Cornell University, The Air War in Indochina, revised edition (Boston: Beacon Press, 1972).
32Captain Robert D. Powers, Jr., USN, "Blockade: For Winning Without Killing,” U. S. Naval Institute Proceedings, August 1958, pp. 61-66.