Could a Blockade be the Next Step? A Legal Primer on a Centuries-Old Strategy

With the focus on Syria calming over the past couple of weeks due to the advent of a deal between the U.S. and Russia to allow Syria to give up their chemical weapons, contemplation on other issues related to the Syrian civil war is in order.

The Washington Post a few weeks ago reported on a very interesting maritime security element related to the Syria story – the shipping of arms from Russian and Russian controlled ports in Ukraine to Syria. Commenting on a report published by C4ADS, the Post provides an intriguing story on how the Russians have been supplying Assad with shipments of arms – such as tanks, helicopters, and rocket launchers. Also, if you haven’t already, please read the excellent commentary on this issue written by LCDR Mark Munson. Notwithstanding any deal regarding chemical weapons, the arms shipments that help sustain the Assad regime will continue to obstruct a sustainable peace in the conflict and in the region. This maritime security issue provides an opportunity for decision makers to explore creative solutions. Any discussion on how to dismantle the arms trade, however, would be lacking imagination if it did not include the classic naval blockade.

File:Blockade of Toulon, 1810-1814.jpg
                  Toulon: the scene of our BLOCKADE!

From the Royal Navy’s blockade of Cadiz in 1797 to Israel’s blockade of Gaza in 2009, a blockade is a time-tested method. An important consideration if the U.S. were to blockade Syria, however, is that a blockade is generally considered an act of war. Because President Obama and most of the U.S. population have an unfavorable view of war with Syria, history may be able to provide an alternative.

In July 2013, the Department of Justice released a cache of old Office of Legal Counsel (OLC) memos from 1933-1937. As a brief introduction, OLC provides the President and others in the Executive authoritative legal opinions, many of constitutional relevance. This office is most famous recently for producing the torture memos of the Bush administration. One of the little gems hidden in the stack of memorandum opinions titled “Authority of the President to Blockade Cuba.” Interestingly, this opinion was dated January 25, 1961, almost 22 months before the Cuban Missile Crisis. Nevertheless, the OLC memorandum opinion provides an interpretation of international law that would apply even today if the U.S. Navy was to blockade Syria. The memorandum opinion states:

“At the outset it should be noted that both courts and commentators are agreed that a blockade involves a state of war; i.e., it is the right of a belligerent alone…The United States is not in a state of war with Cuba in the traditional sense….Accordingly, the principles of international law, as presently developed and followed by the United States, would seem to furnish no legal justification for the imposition by this government of a blockade of Cuba.”

Simply exchanging “Cuba” with “Syria” would suggest that a blockade to stop the arms flowing in from Russia would be illegal under international law – unless the U.S. is willing to go to war with Syria. However, the memorandum provides a potential alternative to justifying a blockade:

“In this posture, we turn to the question whether it is, nevertheless, possible to argue that a blockade of Cuba is justifiable. That the United States is engaged in a “cold war” with major communist nations and with Cuba is plain. To keep communist imperialism from engulfing the United States is a matter of vital national interest.”

The memorandum further explains by quoting Doris Graber:

“Interventions undertaken to further these interests were lawful if those who authorized them believed that intervention was a last re-sort to safeguard the nation from extreme peril and proper means of intervention were used. . . .”

Doris A. Graber, Crisis Diplomacy: A History of U.S. Intervention Policies and Practices 211–12 (1959).”

So, put another way, it seems as if the existence of the “cold war” was sufficient to allow the U.S. to intervene and blockade Cuba.

What does this mean in the Syria context? If decision makers were to seriously consider legally blockading Syria to prevent support to the Assad regime, they would be required to meet the following:

a. Analogize the “cold war” with the “war on terror” (which commentators have done in the past),
b. Fit the civil war in Syria into the global war on terror, and
c. Strengthen the connection between intervention in Syria with “safeguarding [this nation or our allies] from extreme peril.

If decision-makers can successfully meet these three requirements, then the U.S. could potentially be legally justified in unilaterally blockading Syria. This, however, doesn’t mean that it would be prudent or feasible to do so.

LT Dennis Harbin is a surface warfare officer and is enrolled at Penn State Law in the Navy’s Law Education Program. The opinions and views expressed in this post are his alone and are presented in his personal capacity. They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy. This article is for informational purposes only and not for the purpose of providing legal advice.

4-8 November: Sacred Cow Week

It's a MULE, not a cow. It's also composite metals, not gold... but technology may be a Golden Cow.
It’s a MULE, not a cow. It’s also composite metals, not gold… but technology may be a Golden Cow.

And when the people saw that Strategy delayed to come down from the mountain, the people gathered themselves together unto Convention, and said unto him, Up, make for us Purpose, which shall go before us. As for this Strategy, the man that brought us up out of the land of Defeat, we know not what is become of him.Convention said unto them, “Break off the golden epaulettes, which adorn the shoulders of your commanders, your assistants, and of your peers, and bring them unto me. And all the people brake off the golden epaulettes and brought them unto Convention. He received them and fashioned it with a graving tool, after he had made it a molten calf: and they said, These be thy Purpose, O People, which brought thee up out of the land of Defeat.

And it came to pass, as soon as Strategy returned from speaking to the true Purpose upon the mount, he came nigh unto the camp, that he saw the calf, and the dancing: and Strategy’s anger waxed hot, and he cast the mission objectives out of his hands, and broke them upon the rocks of the mountain. He took the calf which they had made, and burnt it in the fire, and ground it to powder, and strawed it upon the water, and made the people drink of it. It tasted like crow.

4-8 November is Sacred Cow week. Come down from the mountain and lay waste to the idols of convention you have seen that have been put before true purpose in strategy, military operations, tactics, or the broad diplomatic, legal, and financial processes necessary for maintaining maritime security!

Is the surface fleet standing in the way Submarines as a primary sea weapon? Are you an Army advocate unsure why the Marine Corps exists when the Army has more ships than the Navy? Are you a Marine who thinks, actually, no, why do YOU still exist, Army? Are you in the Navy wondering why those Army ships even exist? Are you in the Royal Navy and wishing you HAD some of those ships? Are you someone who wonders why some states even bother with separate branches? Do you think the global carrier building boom is misguided? Stealth Fighters, Dress Uniforms, Counter-Piracy, NATO, Electronic Charts, ASCM, basing… we are looking for corrections to what YOU think are our mistaken premises.

The Quadrennial Defense Review 2014 and Europe

Matteo is a researcher at the European Institute for Asian Studies in Brussels. He holds an Italian Master’s Degree in Law and an LL.M. in International Legal Studies from the Georgetown University Law Center, specializing in International and National Security and the Law of the Sea. He has collaborated with the University of Rome and the Italian Foreign Ministry in a training course for the Yemeni Coast Guard for anti-piracy operations in the Gulf of Aden, teaching a course of Law of the Sea, International Law and Security. This article is a part of The Hunt for Strategic September, a week of analysis on the relevance of strategic guidance to today’s maritime strategy(ies).

parliamentAs the 2014 Quadrennial Defense Review (QDR) gets underway on the Western side of the Atlantic, the Old Continent is still grasping with the many fundamental changes in the U.S. military strategy, and with a few issues of its own. The economic crisis is far from over in Europe, and while sequestration has taken its toll in the U.S., it is still unclear whether NATO and the EU will eventually enact similar cuts. Moreover, the last European Security Strategy is dated from 2008 (a review of the original 2003 strategy), and Europe finds itself with a desperate lack of leadership in security policy. Its leading country, Germany, seems to have adopted a semi-isolationist approach to foreign policy,1 the United Kingdom is facing an increasing wave of euro-skepticism and general disengagement from security crises, while most of the other countries of Western Europe are still coping with the economic crisis.

As such, the European perspective on the 2014 QDR needs to focus on several aspects: the current and future trends of European Defense spending, the refocusing of U.S. strategies in Europe and globally, NATO and the EU’s role, and possible improved NATO-EU partnerships.

European Defense Spending

The latest study on European Defense spending has revealed that the “number of active-duty military personnel across Europe has declined at a faster rate than has defense spending”,2 although in the last four years “the differential between reductions in manpower and declines in defense spending has started to shrink”.3 Does this mean that Europe has reached its minimum force reduction?4 And if yes, how will it affect further defense cuts?

It is important to note a few issues before delving into a deeper analysis. Europe, as a continent, still has more troops than the U.S. – which is also mainly due to having several national armies, which obviously entail a duplication of positions that the U.S. does not have – and does not benefit from a shared military budget, again due to national constraints.

That being noted, it is still likely that European countries will proceed to further cuts in the military,5 possibly aiming for more specialized and technologically advanced forces, basically perpetuating the typical European approach “quality is better that quantity”. It is important to note that such cuts, as it is the case in the U.S., are also often borne more from a political need than a strategic one, thus it remains to be seen if quality will replace quantity for all European countries. Moreover, it will be important to monitor the retirement plans for the reduction of army personnel. In other words, once cuts are enacted, the hiring policies of the various countries will have to be closely analyzed, as European countries have stronger welfare policies which could severely constrain the quality push of leaner military forces.

A latest theme in terms of improvement of training and equipment is the current focus on Key Enabling Technologies,6 which aims at retaining the European edge in terms of technological advancement and R&D through improved coordination, at least within the European Union. Given the traditional reticence of some member states to collaborate in the areas of national and regional security, the effectiveness of such coordination is not assured.

In other words, the situation in Europe is uncertain, surely due to the economic crisis, but also due to the upcoming 2014 elections for the European Parliament, the end of the term for the European Commission and Council (the executive branches of the European Union), also in 2014, which will surely affect future defense strategies.

Refocusing of U.S. Strategies

From this side of the Atlantic, it is unclear which are the priorities for the U.S. in terms of defense and general strategic deployments. Many were disoriented at the time of the Pivot to the Pacific, as the policy was not completely explained, and seemed to bypass the usual strategic channels (especially in an area where NATO would not be deployed). To this day, it is still unclear what the U.S.’ strategic priorities are. Apart from standard declarations underlining the long-standing relationship with Europe and the importance of NATO it is hard to read the U.S. foreign policy and its inclusion of Europe. The recent deployments of forces in the Mediterranean are the perfect example. European countries almost forced the U.S. to intervene in Libya, and only after the initial strikes was NATO was involved completely. Conversely, the U.S. took a policy decision on Syria, trying to involve European allies in a not very coordinated manner, with the result of losing support from both the interventionist and non-interventionist sides.

While some claim that the 2014 QDR will reshape the concept of U.S. bases in the world, maybe pushing for further cuts abroad in favor of rapidly deployable forces,7 it is difficult for Europe to anticipate the effects of possible re-deployments. European countries understand very well that with the end of the Cold War the continent lost much of its value as a strategic territory, and the many U.S. bases across Europe may be closed or re-deployed at any time, but it is also clear that such decisions would only worsen the strategic relations across the Atlantic if taken unilaterally.

Regardless of the possible outcome of the 2014 QDR, it is apparent that improved coordination with Europe would be cost-effective and beneficial to the U.S. Moreover, NATO was specifically designed to protect transatlantic security, thus it constitutes the perfect forum for this sort of discussion or negotiation.

NATO and EU: Their Roles and Possible Partnerships

As much as European countries have understood the shifting of importance of the continent after the Cold War, NATO too has had to cope with evolving times. While the past 20 years saw the organization’s active involvement in many areas, it is apparent that today’s transatlantic relations call for a reshaping of the organization in a definitive fashion: underlining its importance as a transatlantic forum, as a standing warden of Western security, or as a mere relic of different times.

The deterrent function of NATO is no longer needed. Moreover, the general push for quality over quantity is bound to affect the organization as well, likely in the form of rapidly deployable forces, rather than cumbersome bureaucratic mechanisms and bases across the continent. In these terms, the 2010 Strategic Concept8 emphasized NATO’s renewed role in modern challenges but brought about little changes.9 From the European citizens’ perspective, NATO is a body without a purpose in times of peace and disengagement, often forgotten when it is not active in military operations. As such the organization is facing severe communication issues, in positioning itself as reliable, authoritative and effective institution in the area of security and defense. In these terms, a strategic partnership with the EU would enhance its effectiveness, provide low-cost instruments and structures, and enhance NATO’s standing as an actor in the transatlantic setting, rather than a standing secretariat for setting up of multinational forces.

The European Union, as noted above, is also facing several issues due to the crisis, general skepticism of citizens and member states, and a period of transition to new leadership in 2014. Moreover, relations between DoS, the EU, and the White House are barely noticeable. Internally, the EU has yet not revised its Security Strategy (EUSS)10 since 2008.11 A Maritime Security Strategy should be issued at the end of 2013, when also the European Council (the periodic meetings between the Head of States of the Member States deciding the general policy guidelines for the Union) should discuss the 2020 objectives and general EU policies. Moreover, the current European leaders have missed several opportunities for improving the Union’s standing in the area of security. The creation of the High Representative of the Union for Foreign Affairs and Security Policy position, empowered also as Vice President of the Commission,12 was supposed to boost the effects of a Common Defense and Security Policy (CDSP), no tangible results have been produced so far. It is likely that when the current HRVP leaves office in 2014 the European CDSP efforts, especially in the form of a EUSS, will be approached differently and with more assertiveness.

As for EU-NATO partnerships, so far not much has been accomplished. The institutions tend to cooperate in practice (for instance in Somalia), but there is a severe lack of coordination in Brussels, where the institutions generally tend not to engage with each other. It is in the interest of the EU to strengthen its partnership with NATO, and in the interest of the U.S. to help implement this rapprochement, involving more actors in the Alliance and relating to the EU and NATO mainly in terms of security partnerships – at least at the organizational level. In terms of security strategy, both NATO and the EU are facing issues over properly representing the will of their state’s citizens and criticism for lack of effectiveness, so don’t expected too much in terms of actual involvement, more is likely on the side of formal partnership agreements.

The current European security situation is particularly static at the moment, mostly waiting for fundamental policy changes brought about by the combination of the European 2014 elections and upcoming high-level political meetings. Moreover, expectations for the 2014 QDR are lowered by the uncertain internal situation and more pressing local issues, namely the economic crisis and growing unrest for unpopular austerity measures. It is indicative, after all, that the most relevant regional documents in terms of security strategy, both for NATO and the EU, are reviews of concepts of the last decade. Even on those terms, many European countries remain extremely favorable to U.S. security objectives and will continue to constitute the staunchest allies for the U.S., and the 2014 QDR will definitely affect their future strategic concepts and policies.

Matteo Quattrocchi holds a LL.M. from Georgetown Law as well as a Master’s Degree in European and International Law from Luiss in Rome, Italy. He is currently a Junior Researcher at the European Institute for Asian Studies, after having worked in the NGO and private sector and taught in Rome and Washington, D.C. He is specialized in International and National Security Law and Policies, EU-Asia Relations and Maritime Security Law and Policies.

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1. Benjamin Weinthal, Home Alone, Foreign Policy, 24 September 2013, retrieved from http://www.foreignpolicy.com/articles/2013/09/23/home_alone_germany_angela_merkel_foreign_policy.
2. Center for Strategic and International Studies, European Defense Trends 2012, December 2012, retrieved from http://csis.org/publication/european-defense-trends-2012.
3. Ibid.
4. Ibid.
5. Supra note 1.
6. For more information please visit http://ec.europa.eu/enterprise/sectors/ict/key_technologies/
7. Center for Strategic and International Studies, Preparing for the 2014 Quadrennial Defense Review, March 2013, retrieved at http://csis.org/files/publication/130319_Murdock_Preparing2014QDR_Web.pdf.
8. NATO, Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization 2010, Lisbon, 19-20 November 2010. Retrieved from http://www.nato.int/strategic-concept/pdf/Strat_Concept_web_en.pdf.
9. Istituto Affari Internazionali, Swedish Institute of International Affairs, Fondation pour la Recherche Stratégique, Center for Strategic and International Studies , EU-U.S. Security Strategies. Comparative scenarios and recommendation, February 2013, retrieved from http://csis.org/publication/eu-us-security-strategies.
10. European Union, European Security Strategy, December 2003, retrieved from http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf
11. European Union, Report on the Implementation of the European Security Strategy – Providing Security in a Changing World, December 2008, retrieved from http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/reports/104630.pdf
12. While the High Representative is the head of the European External Action Service, the European version of the Department of State, he or she is also the Vice-President of the Commission, the main executive branch of the Union, thus putting the HRVP in the position of coordinating foreign and internal policy.

Fostering the Discussion on Securing the Seas.