Practice Makes Custom: A Closer Look at the Traditional Law of Naval Blockade

By Kennedy, Ian | University of Toronto Faculty of Law Review, Spring 2012 | Go to article overview

Practice Makes Custom: A Closer Look at the Traditional Law of Naval Blockade


Kennedy, Ian, University of Toronto Faculty of Law Review


I. INTRODUCTION  II. WHY THE DESUETUDE OF TRADITIONAL BLOCKADE LAW MATTERS       i. The Gaza Blockade       ii. The Fragmentation of International Law III. THE ARGUMENT THAT TRADITIONAL BLOCKADE RULES ARE   CUSTOMARY INTERNATIONAL LAW       i. The London Declaration and the San Remo Manual       ii. A Critical Assessment of the London Declaration       iii. A Critical Assessment of the San Remo Manual IV. THE FORMATION AND MAINTENANCE OF CUSTOMARY   INTERNATIONAL LAW V. STATE PRACTICE, OPINIO JURIS, AND NAVAL BLOCKADES       i. State practice and opinio juris in arguments for         traditional blockade law       ii. State practice and opinio juris during blockades          a. The World Wars          b. The Chinese Civil War, 1949          c. Korean War, 1950-1953          d. Arab-Israeli War, 1967          e. India-Pakistan War 1971          f. Vietnam War, 1972          g. Arab-Israeli War, 1973          h. Iran-Iraq War 1980-1988          i. Israel-Lebanon War 2006       iii. Neutral state responses to blockades since 1945       iv. Military Manuals       v. Summary of state practice and opinio juris during blockades          a. State Practice          b. Opinio Juris       vi. Have new customary blockade laws arisen from         contemporary state practice? VI CONCLUSION 

"Horatio: Is it a custom?

Hamlet: ... --it is a custom/More honour'd in the breach than the observance."

William Shakespeare, The Complete Works of William Shakespeare (London: Wordworth Editions Limited, 2007) at 676.

I. INTRODUCTION

In September 2011, the Turkish Foreign Minister announced that Turkey will challenge the legality of Israel's naval blockade of the Gaza Strip at the International Court of Justice. (1) The announcement followed the release of the UN Secretary-General mandated Palmer Report, which addressed the legality of the Gaza blockade. (2) Commissions created by Israel, Turkey, and the UN Human Rights Council had previously published reports that discuss the blockade's legal standing. (3)

The four reports have all invoked what has been called the traditional law of naval blockade, which is a collection of nineteenth-century rules governing the wartime blockade of enemy coastlines. (4) The reports rely upon blockade law to different degrees, but all four assume its validity as customary international law.

The thesis of this article is that traditional blockade law has fallen into desuetude and therefore cannot be relied upon. Blockade law has not been followed by state practice nor been understood to govern state practice for nearly a century. The desuetude of traditional blockade law does not mean that naval blockades exist in a legal vacuum; in fact they may be subject to a multiplicity of legal regimes, including the law of the sea, the law of peace (jus ad bellum), international humanitarian law (jus in hello), and international human rights law.

This article begins by explaining why the desuetude of traditional blockade law matters. It then turns to three questions that are central to its thesis. First, what is traditional blockade law and what is the argument for its continued validity? Next, what is customary international law and how is it formed and maintained? Finally, does traditional blockade law meet the requirements of customary international law? The article concludes that traditional blockade rules have been abandoned and can no longer be considered customary international law.

This thesis challenges the common assumption in recent literature that blockade law continues to be binding customary law. (5) The work of several influential authors supports this assumption. (6) Foremost among them is Dr. Wolff Heintschel von Heinegg, who served as a special consultant to the Israeli Commission and was cited extensively in the Palmer Report. (7) This article responds directly to some of Dr. von Heinegg's arguments.

II. WHY THE DESUETUDE OF TRADITIONAL BLOCKADE LAW MATTERS

The relevance of the legal status of nineteenth-century rules governing coastal barricades--a tactic seldom undertaken in contemporary times--may not be self-evident. …

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