172 BLOCKADE: EVOLUTION AND EXPECTATION James F. McNulty INTRODUCTION appears to be a sound basis for consider­ ing that the current "legal" definition of The principles of modern interna­ the terms and concept of blockade is tional law recognize the doctrine of but the most recent step of an evolu­ blockade as a legitimate option between tionary process which has not yet ar­ states in a declared state of war, giving rived at logical maturity. them the right to apply naval power to That the process might shortly be stop all seaborne commerce with the required to respond once more to the enemy, including that carried in neutral stress of international conflict seems ships. However, the "legality" of this apparent. With few exceptions, those instrument for exercising national modern states having pretensions of power is a very tenuous matter in the becoming international makeweights minds of jurists, being circumscribed by have sought to establish for themselves a a number of significant preconditions, claim to a share in the wealth and the absence or violation of any of which prestige resultant from international may void the blockader's claim to legiti­ carrying trade. Even the Soviet Union, mate right, and expose him to heated long a formidable land power, has begun controversy. to make its presence felt in the great The fundamental concept of mari­ competitive arena formed by the world's time blockade is an ancient one, and, in oceans. Compounding the commercial its essence, it seems to be fully in threat of this seaward expansion by the harmony with the realities of national Soviets, the United States is faced as well existence even in a modern world. How­ with their sponsorship of militant world ever, it is the purpose of this paper to communism through the new medium suggest that the precise technical condi­ of "wars of liberation." It seems super­ tions surrounding the modern instru­ fluous to state that the United States ment of blockade have overlaid this today finds itself in a position analogous fundamental concept with elements to that of insular Britain in the face of which have divorced the doctrine from Napoleon-a power dependent on sea reality. communication with its allies, its The modern doctrine of blockade sources of crucial materials, and its and the associated principles of contra­ markets, opposed by a dedicated and band have evolved over centuries, re­ ingenious enemy having central lines of maining basically constant in the princi­ communication. To confine that threat ples invoked but continuously changing to the limits of continental Europe was as to structural details. Thus, there the aim of Britain's effort in the 18th 173 and 19th centuries, while the aim of the participators into allies; failing in that, it United States today must also be to was expected that action could be taken contain the Communist threat within to at least insure that the opposition the limits of its existing sphere of would not receive the assistance of influence in Eastern Europe and Asia. bystanders. Such action normally re­ Britain's success against Napoleon sulted in some form of operations was gained largely through her intelli­ against the commerce of the neutrals, as gent application of all the devices of they later came to be known, and such seapower available to her, including that interference was justified on political of blockade-not a blockade according rather than legal grounds, if indeed it to rules made by scholars and law were thought necessary to justify it at clerks, but one governed by rules born all? In those early centuries of human of the dictates of necessity and the violence, the "style" of warfare was talents of seamen-a viable doctrine, usually that of the siege against the responsive less to the protests of diplo­ strong points of an enemy rather than mats than to the realities of the threat general campaigns throughout the coun­ to be overcome. tryside. Under such circumstances, little This paper proposes to review in need existed among states to formulate detail the evolutionary process to which any sort of legal basis for regulating the the concept of maritime blockade has trade of neutrals with all belligerents, been subjected in order to point out the since it was clearly unprofitable for an historic facility by which nations yield apolitical neutral to attempt to continue up principle in favor of political reality. trade with a besieged point when a Further, it is intended to illustrate that ready market for his goods existed the doctrine of blockade is merely part among the besiegers. On the other hand, of a larger scheme which is appropriate neutrals were normally required to con­ for application as an instrument of tinue trade with any accessible belliger­ national power in the complex interna­ ent, since "the discontinuance by a tional society of the current century. neutral of intercourse with either bel­ It will not be advocated that the ligerent, where not an effect of the "rule of law" so treasured by our operations taking place ... seemed Western society be overthrown in a ... so plain a form of alliance with or qucst for temporary advantage. It is subservience to, the other ..."3 that it hoped merely to articulate what is was clearly a political act rather than believed to be an existing ground swell one arguable as a matter oflaw. of legal and lay opinion that "laws and Before it was possible to contemplate institutions are constantly tending to legal justification for the continuance or gravitate. Like clocks, they must be suspension of commerce with a bellig­ occasionally cleansed, and wound up, erent by a neutral, it was first necessary and set to the true time. ,,1 for the concept of neutrality to become in "some" form a recognized institution I-FOUNDATION OF THE LAW of the law of nations, and until the AND CUSTOM OF BLOCKADE freedom of neutral commerce was in some form guaranteed. '>4 This status of In ancient times, conflicts between authorized impartiality of third states rulers of tribes or the early city-states while war raged between others was not usually resulted in the involvement of formalized and incorporated into the all political entities adjacent to associ­ law of nations as the institution of ated military operations. Belligerents, as neutrality until the 16th century.5 Until the active participants became known, that time, the principle of land warfare always attempted to convert non- which forbade all forms of intercourse 174 with hesieged places governed. Toward forces at the same time, although it was the later portion of the period the clearly the Dutch intention "to usc the growth of international commerce in­ right of siege on an unprecedented tensified the helief that partial neu­ scale."IO trality was unjust, and rules aimed at The concept of the maritime hlock­ formalizing the limits of a "just neu­ ade thus was estahlished at the end of trality" hegan to evolve. The earliest of the 16th century, hut hefore any sense these rules ended the total interdiction of legality could he attached to it, it was of neutral commerce with hesieged necessary for the puhlicists to hegin the places hut enjoined neutrals from trans­ process of formalizing the institution hy porting into such places either armed incorporating it into the growing hody troops or specified materials which of writings which we have come to would tend to mitigate the effects of know as the law of nations. The most the siege. 6 One author points out that renowned of the early puhlicists, this relaxation was more significant as Grotius, writing in 1624, ohliquely men­ the estahlishment of a principle rather tions the justification for the closure of than any meaningful authorization to ports as distinct from the idea of con­ trade, "since places so circumscrihed current siege hy land forces in the would he very unlikely markets to seek following terms: with articles not of some immediate For if I cannot defend myself utility to the defense. "7 without intercepting what is sent, Thus, hy the 16th century, at least necessity ... will give me the right some elementary rules regulating neutral to intercept it .... If the introduc­ commerce with respect to helligerents tion of the supplies impeded me existed, although they were derived in the pursuit of my right, and principally from the experiences of land this was open to the knowledge of warfare. It was at this time that the the person who introduced them, unilateral action of one state, Holland, as if I was [sic] keeping a town introduced into the growing stream of invested, or ports closed, and a international law a new principle, hased surrender or peace was already in part on older precedent. The princi­ looked for, he will he hound to ple was that of hlockade, wherehy a repay me for the damage occa­ helligerent has come to he entitled as a sioned hy his fault .... 11 (Em­ matter of law to cut off the free access phasis added.) of neutral commerce to the ports or This early articulation hy Grotius is coast of an enemy.8 significant for several reasons. First, hy In 1584, while at war with the the use of the words "keeping a town Spanish Netherlands, the Dutch Govern­ invested, or ports closed," he seems to ment issued a proclamation (placaat) imply that he was considering two declaring that all Flanders ports then in distinct concepts, one of siege in the the hands of Spain were under siege traditional sense, and the other of from the sea, and that no commerce hlockade in the more modern sense, would he allowed entry.