2018.10.03
Tian Shichen
(The artical was originally published on CGTN by Captain(Retd) Tian Shichen, Vice President at Grandview Institution, then held the pen name of Liu Haiyang)
Accessed at: https://news.cgtn.com/news/3d3d514d33456a4e7a457a6333566d54/share_p.html
On September 28, speaking at an industry event in Pittsburgh hosted by the Consumer Energy Alliance, US Interior Secretary Ryan Zinke said the US Navy can blockade Russia if needed in order to keep it from controlling energy supplies in the Middle East as it does in Europe.
Russia slammed back by warning that a blockade would be a declaration of war.
"A US blockade of Russia would be equal to a declaration of war under international law," said the head of the Russian Senate's Information Policy Committee, Aleksey Pushkov.
Is the US Interior Secretary's proposed naval blockade targeting Russian energy trade a violation of international law? Or is a naval blockade amounting to a declaration of war an illegal use of force under international law? For both questions, it depends.
Theoretically, a naval blockade amounting to a declaration of war under international law does not necessarily make it unlawful under international law. The question straddles two areas of international law: one is the law of Jus ad Bellum, which deals with the right to resort to force; the other is the law of Jus in Bello, synonymous with International Humanitarian Law (IHL), which consists of rules governing the conduct of parties to an armed conflict.
To make the naval blockade a lawful one under international law, the US has to meet legal standards set forth in both areas of international law. To begin with, the US first has to prove that its resort to force in the form of a naval blockade has legal basis under the law of Jus ad Bellum. Otherwise, according to Article 3 of the 1974 UN General Assembly Resolution 3314 on the Definition of Aggression, the blockade of the ports or coasts of a State by the armed forces of another State, regardless of a declaration of war, shall qualify as an act of aggression.
The fundamental principle underlying the law of Jus ad Bellum is the prohibition of the use of force in international relations contained in Article 2(4) of the UN Charter. This general prohibition admits of two exceptions: the use of force by States in individual or collective self-defense, based on Article 51 of the UN Charter, and the use of force as part of collective enforcement measures authorized by a UN Security Council Resolution (UNSCR), based on Article 42 of the UN Charter.
The US naval blockade does not belong to either exception. To initiate a naval blockade is apparently not an act of self-defense in any sense. To ask for a UN authorization is unrealistic as Russia is also a permanent member of the UN Security Council with veto powers.
As for the application of the law of Jus in Bello, though most of the rules are based on customary international law, to qualify as a lawful naval blockade, at least three conditions have to be met.
First, there exists a state of armed conflict between the two parties. Second, a lawful blockade has to be effective, i.e. maintained by a naval force able to impede the entry or exit of vessels via the blockaded coast. Third, a formality condition, a lawful blockade has to be declared, announced, duly notified by diplomatic means or by the commander of the blockading force. Additionally, as the law evolves, there are some other uncertain conditions such as being non-discriminatory and permitting the passage of humanitarian assistance to the civilian population.
However, the law of blockade has evolved historically to meet the needs of major powers. Blockade is often an example of asymmetric warfare in that it is not easy to enforce a blockade against a powerful adversary, with the blockading force running the risk of being exposed to missile fire from the coastal State. Given the big naval power and the long coastline of Russia, it is almost impossible to enforce a blockade against Russia, not to say other conditions to be met.
Given the unsurmountable legal obstacles for the US to overcome, the author tends to believe that the US Interior Secretary has not used this term in its legal sense. Or, it's just a slip of tongue for political convenience.
