International Law and the Gaza Blockdade

Kevin Jon Heller has an interesting post trying to work out whether Israel's blockade of Gaza is legal.

One key question is whether the dispute between Israel and Hamas is of an international character.

If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza. (Which is not to say that the manner in which Israel is blockading Gaza is legal. That’s a different question.) The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war. Article 97 of the San Remo Manual does likewise. And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).

If it is not IAC — e.g. because Hamas/Gaza is not a state — then it turns out that the relevant international law seems pretty darn sparse.

The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states. Does the San Remo Manual justify it? The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts. …

There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC

And there's a third option:

There is, however, another possibility: that Israel's blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,” defined by the Dictionary of International Law as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.”  I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor.  Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.

Prof. Heller suggests, very tentatively, that none of these three options justifies Israel's blockade. A commentator cites a US civil war precedent, but I am not clear how it would apply given that Israel does not claim the Gaza strip as domestic territory.

Personally, the second option seems like the most plausible argument for the Israeli government: even if the precedents for blockades in non-international armed conflicts are sparse, it does seem consistent with the evolving law regarding state responses to non-state belligerents. (That's a positive, not normative, claim, folks.) But I am anything other than well-informed in this area.

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11 Responses to International Law and the Gaza Blockdade

  1. mfr says:

    wow, the law is awesome

  2. howard says:

    The second option doesn’t make sense because those on the flotilla were not non-state belligerents.

  3. PHB says:

    The issue is not the status of the flotilla but the target of the blockade.

    Though really, attempting to deny Hamas status as a state actor seems rather silly in this case. The reason for the blockade is that Hamas won the election. If Hamas is not a state actor then what is it?

  4. michael says:

    PHB is surely right that the relevant legal question is the status of Gaza.

    But, although there is perhaps an element of legal fiction in saying that Gaza is not a state, there is no question that the treatment as not-states of self-proclaimed governments that are not recognized by many other governments is a result that is hallowed by time and precedent. The traditional and legal answer to “what is a state” is “those states recognized as states by most other states.”

  5. Just me says:

    “The traditional and legal answer to ‘what is a state’ is ‘those states recognized as states by most other states.'” That’s funny.

    Do we, the United States, a country of the people, by the people, and for the people accept that definition? If so, it seems like a contradiction.

    Who cares what the people in the “State” say, you’re only a “State” if people elsewhere think you are. Not exactly what the founders had in mind huh?

  6. michael says:

    “Just me”: I think you may be confusing two questions: (1) What is a state under international law (the question discussed above) and (2) What is a state under US law. The answer to (2) is, as a first approximation, “Whatever the President says” as the Constitution gives the President the power to receive Ambassadors, and the courts have said this implies/is the power to recognize (or refuse to recognize) states. The founders were in fact quite internationalist (cf. Declaration of Independence, which is addressed to the world community, and Article VI of the Constitution on the status of treaties), so it’s arguable that this result is somewhat less international than what the founders may have had in mind, but I suspect that was not the point of your remark.

    I should note that there are a number of further complexities, especially in the commercial context, and there are doctrines about “de facto” governments which are not “de jure” which matter for business and insurance purposes (and recognition of marriage and divorces) and so on, but that’s why you take International Law, and I’m not going to do a semester in a comment.

  7. Seth Gordon says:

    During the US Civil War, the Union never recognized the Confederacy as another state, but they blockaded ports in Confederate territory.

  8. Just me says:

    Michael:

    I got what you were saying. My original comment was fairly off the general topic of this post. Didn’t mean to distract too much from the point of the thread. It was just something that crossed my mind when I read your comment.

    Btw…I took international law in law school, and found it ridiculous (maybe it was just over my head). How do you have “laws” without any real enforcement or sovereign? After all, the individual states are sovereign, not the U.N. or whoever else imposes these “laws.” But like you said, that’s a whole semester of discussion.

  9. Seth Gordon says:

    Whoops, I should have clicked through to the article before commenting, because the article mentions how the US Civil War might or might not work as a precedent.

    However, the comments reminded me of another interesting legal fillip. The Gaza Strip is not the territory of a Palestinian state, because there is no Palestinian state. But Israel never annexed it—they only occupied it from 1967 to 1994, although the Oslo Accords grant Israel the right to police the waters off the Gaza shore. And Egypt doesn’t want it back.

    So we have a plot of land where two states (Israel and Egypt) control all traffic in and out; which neither state wants to acknowledge as its territory; and whose internal government, in the “effective monopoly on use of force” sense, is not recognized by anyone as a state. There’s gotta be a dissertation in this for someone.

  10. howard says:

    maybe a bit off topic – but here is a great interview with Professor Rashid Khalidi on WBEZ Chicago Radio.

    http://www.chicagopublicradio.org/content.aspx?audioID=42356

  11. JDYale says:

    I’m going to try to save a lot of copying and pasting here but after SEVERAL discussions throughout the Yale law department. The consensus is that the FIRST argument is the most logical and applicable. “The fundamental point is that these are two entities in a state of armed conflict.” For the other two positions to stand, relies on nitpicking of the specific terminology and not the actual reality of the situation. So just to offer the two cent from Yale here, whether or not you disapprove of Israel’s actions, they are entirely legal and justified.

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