1 Declaration Respecting Maritime Law, Paris, 30 Mar 1856.
2 The Commander’s Handbook on the Law of Naval Operations (Newport, RI: US Naval War College, 2007), NWP 1-14M, para 7.7; Federal Ministry of Defence of the Federal Republic of Germany, Humanitarian Law in Armed Conflicts—Manual (Bonn: Federal Ministry of Defence of the Federal Republic of Germany, 1992), paras 1051–3; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), paras 13.65–13.76.
3 Louise Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge: Cambridge University Press, 1995), paras 93–104; Harvard Program on Humanitarian Policy and Conflict Research (HPCR), Manual on International Law Applicable to Air and Missile Warfare (Cambridge, MA: HPCR, 2009), Section V; International Law Association, ‘Helsinki Principles on the Law of Maritime Neutrality’, Report of the 68th Conference, Taipei, 1998, para 5.2.10.
4 See the references in n 8.
5 eg the counterterrorism operations Operation Enduring Freedom and Operation Active Endeavour, and the operations of states relying on an authorization by the UN Security Council resolutions referred to in n 8.
6 See eg Art 8bis of the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, London, 14 Oct 2005, IMO Doc LEG/CONF. 15/21.
7 See Anglo-American claims Commission, Award, The Jessie, The Thomas F. Bayard and The Pescawha (1926) Nielsen’s Report 479 ff: ‘[It] is a fundamental principle of international maritime law that, except by special convention or in time of war, interference by a cruiser with a foreign vessel pursuing a lawful avocation on the high seas is unwarranted and illegal and constitutes a violation of the sovereignty of the country whose flag the vessel flies.’
8 See SC Res 221, 9 Apr 1966 (Rhodesia); SC Res 665, 25 Aug 1990 (Iraq); SC Res 875, 16 Oct 1993 (Haiti); SC Res 713, 25 Sept 1991; SC Res 757, 30 May 1992; SC Res 787, 16 Nov 1992; SC Res 820, 17 Apr 1993 (Former Yugoslavia); SC Res 1701, 11 Aug 2006 (UNIFIL); SC Res 1970, 26 Feb 2011; SC Res 1973, 17 Mar 2011 (Libya).
9 See Martin D. Fink, ‘The Right of Visit for Warships: Some Challenges in Applying the Law of Maritime Interdiction on the High Seas’ (2010) 49 The Military Law and the Law of War Review 7–45. Further Lois E. Fielding, Maritime Interception and U.N. Sanctions (San Francisco, CA: Austin & Winfield, 1997).
10 Egypt’s closure of the Suez Canal in 1956 did not qualify as a blockade stricto sensu. Findings to the contrary are not based upon the law of blockade but upon the prohibition, under Art 1 of the 1888 Convention of Constantinople, to ‘subject the Canal to the exercise of the right of blockade’. Only if that distinction is observed is it correct to state that Egypt had ‘subjected the Canal to a blockade against Israeli ships within the meaning of…Article 1 of the Constantinople Convention’ because the ‘normal meaning of blockade would, in any event, not make much sense in connection with that clause’; Leo Gross, ‘Passage Through the Suez Canal of Israeli-Bound Cargo and Israel Ships’ (1957) 51 American Journal of International Law 530, 541.
11 The most prominent case in the post-1945 era was the ‘Cuban Quarantine’—a term invented to distract from the fact that a blockade proper had been established around Cuba. See, inter alia, Carl Q. Christol and Charles R. Davies, ‘Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Matériel to Cuba, 1962’ (1963) 57 American Journal of International Law 525; Quincy Wright, ‘The Cuban Quarantine’, ibid, 546; Charles G. Fenwick, ‘The Quarantine Against Cuba: Legal or Illegal?’, ibid, 587; Myres S. McDougal, ‘The Soviet-Cuban Quarantine and Self-Defense’, ibid, 597.
12 See, inter alia, Wolff Heintschel von Heinegg, ‘Blockade’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012), vol I, 960, 960.
13 Heintschel von Heinegg, ‘Blockade’ in Wolfrum, Max Planck Encyclopedia of Public International Law, 960.
14 While some states are prepared to resort to the right of self-defence if a merchant vessel flying its flag has been attacked, other states do not share that position. Under the Definition of Aggression (Annex to GA Res 3314 [XXIX] of 14 Dec 1974) an attack on an individual merchant vessel does not constitute an ‘act of aggression’.
15 GA Res 3314, Art 3(c).
16 See the references in nn 2 and 3. Further Robert W. Tucker, The Law of War and Neutrality at Sea (Washington DC: US Government Printing Office, 1957), 283; C. John Colombos, International Law of the Sea (6th rev edn, London: McKay Co., 1967), 714; Lance Edwin Davis and Stanley L. Engerman, Naval Blockades in Peace and War: An Economic History Since 1750 (Cambridge: Cambridge University Press, 2006); Bruce A. Elleman and S. C. M. Paine, Naval Blockades and Seapower. Strategies and Counter-Strategies, 1805–2005 (London: Routledge, 2006).
17 See Henri Meyrowitz, Le principe de l’égalité des belligérants devant la droit de la guerre (Paris: Pedone, 1970); Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, Cambridge: Cambridge University Press, 2010), 3.
18 For a critical analysis of the approach by the UK, see Wolff Heintschel von Heinegg, ‘Manoeuvring in Rough Waters: The UK Manual of the Law of Armed Conflict and the Law of Naval Warfare’ in A. Fischer-Lescano et al, Frieden in Freiheit. Peace in Liberty. Paix en liberté, Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden: Nomos, 2008), 428, 429 ff.
19 See San Remo Manual, paras 93–104; HPCR Manual, Section V.
20 See SC Res 687 of 3 April 1991, para 16, in which the Security Council, inter alia, reaffirmed that ‘Iraq…is liable under international law for any direct loss, damage—including environmental damage and the depletion of natural resources—or injury to foreign Governments, nationals or corporations as a result of its unlawful invasion and occupation of Kuwait’.
21 A/CONF.62/121 (10 Dec 1982); 1833 UNTS 396.
22 For an analysis of that law, see George P. Politakis, Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality (London: Kegan Paul, 1998); Wolff Heintschel von Heinegg, Seekriegsrecht und Neutralität im Seekrieg (Berlin: Duncker & Humblot, 1995).
23 Hence, it is made clear in the commentary to the ILA Helsinki Principles (at 498) that ‘Although UNCLOS does not explicitly address questions arising out of wartime situations, its clauses on “other rules of international law” (e.g., Article 87, para. 1) include the law of armed conflict.’
24 Jochen A. Frowein and Nico Krisch, ‘Article 42’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (2nd edn, Oxford: Oxford University Press, 2002), vol I, paras 20 ff. On the possible limits of an authorization, see Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford: Hart, 2004), 256 ff.
25 With regard to the admissibility of the use of force, see Rob McLaughlin, ‘The Legal Regime Applicable to Use of Lethal Force When Operating Under a United Nations Security Council Chapter VII Mandate Authorizing “All Necessary Means”’ (2007) 12 Journal of Conflict and Security Law 389.
26 Convention on the Safety of United Nations and Associated Personnel, Art 1(a), A749/49 (1994).
27 See only San Remo Manual, paras 7–9; HPCR Manual, Rule 165.
28 The practice of the Security Council provides sufficient evidence that humanitarian considerations have an impact on the scope of measures taken under Chapter VII of the Charter. See, inter alia, SC Res 661 of 6 August 1990. Further Heintschel von Heinegg, ‘Blockade’ in Wolfrum, Max Planck Encyclopedia of Public International Law, 973.
29 See, inter alia, Terry D. Gill, The 11th of September and the International Law of Military Operations (Amsterdam: Vossiuspers, 2002), 22.
30 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 Oct 1995, IT-94-1-AR72, para 70.
31 Yoram Dinstein, War, Aggression and Self-Defence (5th edn, Cambridge: Cambridge University Press, 2011), 230 ff.
32 See esp UNCLOS, Art 25(3). On the wide margin of discretion enjoyed by the coastal states, see Robin R. Churchill and Vaughan Lowe, The Law of the Sea (3rd edn, Manchester: Manchester University Press, 1999), 87 ff.
33 Douglas Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’ (2011) 81 British Yearbook of International Law 171, 217.
34 For the facts, see Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, paras 83 ff (Sept 2011) (the ‘Palmer Report’).
35 Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’, 176 ff; Andrew Sanger, ‘The Contemporary Law of Blockade and the Gaza Freedom Flotilla’ (2010) 13 Yearbook of International Humanitarian Law 397, 426 ff; Russell Buchan, ‘The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara’ (2011) 58 Netherlands International Law Review 209, 216 ff.
36 See Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), 276 ff; HCJ 769/02 Public Committee Against Torture v. Government (2006); 2 IsrLR 459 (2006); The Public Commission to Examine the Maritime Incident of 31 May 2010, The Turkel Commission (Jan 2010), para 44; Palmer Report, para. 73. It should be noted that the authors referred to in n 35 are hesitant to bluntly deny the existence of an international armed conflict.
37 See only Tucker, The Law of War and Neutrality at Sea, 335 fn 1; Colombos, International Law of the Sea, 769 ff.
38 San Remo Manual, paras 98, 146, 153; Declaration concerning the Laws of Naval War, Art 63, London, 26 Feb 1909. See also Tucker, The Law of War and Neutrality at Sea, 336; Colombos, International Law of the Sea, 770.
39 San Remo Manual, para 102; HPCR Manual, Rule 153.
40 San Remo Manual, para 103; HPCR Manual, Rule 158.
41 With regard to the different evaluations of the situation in Gaza, see Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’, 198 ff; Buchan, ‘The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara’, 232 ff; Sanger, ‘The Contemporary Law of Blockade and the Gaza Freedom Flotilla’, 435 ff; Palmer Report, 68 ff. It needs to be emphasized that the blockading power may prescribe the technical arrangements, including search, under which relief consignments are permitted. Moreover, it may be recalled that, in 2010, the Israeli government was prepared to allow the shipment of the flotilla’s cargo to Gaza under the condition that it was unloaded in an Israeli port and that its distribution was entrusted to the UN. That proposal was well in accordance with the applicable law.
42 San Remo Manual, para 98.
43 San Remo Manual, para 98. See also HPCR Manual, Rule 174.
44 See the references in nn 37 and 38.
45 See the references in nn 37 and 38.
46 Sanger, ‘The Contemporary Law of Blockade and the Gaza Freedom Flotilla’, 438 ff; Buchan, ‘The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara’, 237 ff; Palmer Report, 61; Turkel Report, 263 ff.
47 See the contributions in Elleman and Paine, Naval Blockades and Seapower; further Wolff Heintschel von Heinegg, ‘Naval Blockade’ in Michael N. Schmitt (ed), ‘International Law Across the Spectrum of Conflict: Essays in Honour of Professor L. C. Green on the Occasion of His Eightieth Birthday’ (2000) 75 International Law Studies 203–30.
48 The same obligation arises from Art 25 of the UN Charter in the case of a binding decision taken by the UN Security Council under Chapter VII explicitly or implicitly authorizing the establishment of a blockade.
49 See also Michael A. Becker, ‘The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea’ (2005) 46 Harvard International Law Journal 131; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009); Wolff Heintschel von Heinegg, ‘UNCLOS and Maritime Security Operations’ (2005) 48 German Yearbook of International Law 151.
50 See Lois E. Fielding, Maritime Interception and U.N. Sanctions (San Francisco, CA: Austin & Winfield, 1997).
51 See only Fink, ‘The Right of Visit for Warships’, 12 ff.
52 See Tullio Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 European Journal of International Law 399; Wolff Heintschel von Heinegg, ‘Repressing Piracy and Armed Robbery at Sea—Towards a New International Legal Regime?’ (2010) 40 Israel Yearbook on Human Rights 219.
53 Michael Byers, ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 American Journal of International Law 526; Wolff Heintschel von Heinegg, ‘The Proliferation Security Initiative—Security vs. Freedom of Navigation?’ (2005) 35 Israel Yearbook on Human Rights 181.
54 See Daniel H. Joyner, ‘The Implications of the Proliferation of Weapons of Mass Destruction for the Prohibition of the Use of Force’, Chapter 48 and Douglas Guilfoyle, ‘The Use of Force against Pirates’, Chapter 49 both in this volume.
55 San Remo Manual, paras 112–58; HPCR Manual, Section U.
56 See Craig H. Allen, ‘A Primer on the Non-Proliferation Regime for Maritime Security Operation Forces’ (2007) 54 Naval Law Review 51, who rightly states that maritime interception operations (MIOs), have become a ‘familiar element in the daily routine of units assigned to the maritime component of combined and joint forces commands’ (at 51).
57 Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (Oxford: Oxford University Press, 2010), para 20.01.
58 With regard to the different purposes of maritime zones and their legal bases, see Richard Jacques, Maritime Operational Zones (Newport, RI: US Naval War College, 2006).
59 See Michael N. Schmitt, ‘Air Law and Military Operations’ in Gill and Fleck, The Handbook of the International Law of Military Operations, paras 18.05, 18.06, 18.07, 18.12, and accompanying commentary.
60 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), Rome, 10 Mar 1988, 1678 UNTS 221; reprinted in (1988) 27 ILM 668. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, Rome, 10 Mar 1988, 1678 UNTS 304; Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, London, 14 Oct 2005, IMO Doc LEG/CONF. 15/21; Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, London, 14 Oct 2005, IMO Doc LEG/CONF. 15/22.
61 UNCLOS, Art 27(5). Note, however, that this restriction does not apply to cases provided for in UNCLOS Part XII on the protection of the marine environment or with respect to violations of laws and regulations adopted in accordance with Part V.
63 Churchill and Lowe, The Law of the Sea, 137.
65 According to UNCLOS, Art 110(4), ‘these provisions apply mutatis mutandis to military aircraft.’
67 See also Stuart Kaye, ‘Threats from the Global Commons: Problems of Jurisdiction and Enforcement’ in Michael D. Carsten (ed), ‘Global Legal Challenges: Command of the Commons, Strategic Communications and Natural Disasters’ (2007) 86 International Law Studies 69, 74 ff.
69 See, inter alia, the Agreement concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, San Jose, 10 Apr 2003.
70 For the legality of the use of force in maritime interdiction operations, see Wolff Heintschel von Heinegg, ‘Maritime Interception/Interdiction Operations’ in Gill and Fleck, The Handbook of the International Law of Military Operations, para 20.12 and accompanying commentary.
71 San Remo Manual, paras 112–58; HPCR Manual, Section U; ILA Helsinki Principles, para 5.2.
72 See n 32 and accompanying text.
73 Norman J. Padelford, ‘Foreign Shipping During the Spanish Civil War’ (1938) 32 American Journal of International Law 264.
74 Laurent Lucchini, ‘Actes de contrainte exercés par la France en Haute Mer au cours des opérations en Algérie’ (1966) Annuaire Français de Droit International 803. See also Daniel P. O’Connell, ‘International Law and Contemporary Naval Operations’ (1970) 44 British Yearbook of International Law 19, 36 ff.
75 Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’, 193.
76 See the references in nn 73 and 74.
77 In 2008 and until the establishment of the blockade of Gaza on 3 Jan 2009, Israel exercised the right of visit and search in order to prevent the flow of arms into the Gaza Strip. It seems that the few measures taken against foreign vessels that were suspected, on reasonable grounds, of being engaged in the transportation of arms destined to the Hamas, did not give rise to strong protests. Either the flag states implicitly recognized Israel’s security interests or they simply did not want to admit that the ships flying their flags had been engaged in the smuggling of arms and ammunition.
78 Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’, 193 ff.
79 Prize measures are part of the law of neutrality that does not apply to situations of non-international armed conflict. See James Kraska, ‘Prize Law’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol VIII, 477.
80 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), vol I (Rules), 30 ff; Michael N. Schmitt, Charles H. B. Garraway, and Yoram Dinstein, The Manual on the Law of Non-International Armed Conflict. With Commentary (San Remo, Mar 2006), para 1.1.4.
81 eg the measures taken by France in the course of the Algerian conflict and those taken by the Sri Lankan government during the long-lasting conflict with the Tamil Tigers were not protested by all states whose vessels were affected.
82 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep 2004, para 139: ‘The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that…the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001)…Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.’
83 See only UNCLOS, Art 92(1).
84 See also Fink, ‘The Right of Visit for Warships’, 36 ff.
85 NWP 1-14M, para 184.108.40.206.2.
86 NWP 1-14M, para 220.127.116.11.2. See also David G. Wilson, ‘Interdiction on the High Seas: The Role and Authority of a Master in the Boarding and Searching of His Ship by Foreign Warships’ (2008) 55 Naval Law Review 157.
87 Wilson, ‘Interdiction on the High Seas’, 157.
88 Wilson, ‘Interdiction on the High Seas’, 157.
89 Heintschel von Heinegg, ‘Maritime Interception/Interdiction Operations’ in Gill and Fleck, The Handbook of the International Law of Military Operations, 375.
90 SC Res 661 of 6 Aug 1990.
91 Richard D. Zeigler, ‘Ubi Sumus? Quo Vadimus? Charting the Course of Maritime Interception Operations’, Naval War College Paper, Newport, RI, 1995, 69, also published in (1996) 43 Naval Law Review 1.
93 According to Zeigler, ‘Ubi Sumus?, 119, ‘there were, between August 17, 1990 and 28 February 1991, only eleven warning shots fired, no use of disabling fire, only eleven takedown actions, and a mere 51 diversions of vessels. Most of the warning shots were fired by U.S. vessels early in the operation, even before August 25, 1990, the effective date of U.N. Security Council Resolution 665.’
94 SC Res 678 of 29 Nov 1990.
95 See only Fink, ‘The Right of Visit for Warships’, 30 ff.
96 See only Fink, ‘The Right of Visit for Warships’, 30 ff.
97 NWP 1-14M, para 4.4.7.
98 For the establishment of exclusion zones under the law of international armed conflict, see San Remo Manual, paras 105–8; HPCR Manual, Section P.
99 For a theoretical example, see Wolff Heintschel von Heinegg, ‘Current Legal Issues in Maritime Operations: Maritime Interception Operations in the Global War on Terrorism, Exclusion Zones, Hospital Ships and Maritime Neutrality’ in Richard B. Jaques (ed), ‘Issues in International Law and Military Operations’ (2006) 80 International Law Studies 207, 214 ff.
100 SC Res 1373 of 28 Sept 2001.
101 SC Res 1540 of 28 Apr 2004.
102 International Law Commission, Responsibility of States for Internationally Wrongful Acts, Arts 22 and 49–53, GA Res 56/83 Annex, A/RES/56/83 (12 Dec 2001).
103 See Heintschel von Heinegg, ‘Current Legal Issues in Maritime Operations’ in Jaques, Issues in International Law and Military Operations, 213.