Friday, May 19, 1972
Blockade?-U.S. Says No
The current mining of North Vietnamese waters by the United States is aimed at cutting off war supplies, but President Nixon apparently has left himself a loophole by including Hanoi's navy among the targets of his officially proclaimed non-blockade.
Nixon made no bones about the fact that the mining was aimed at tankers and freighters when he announced the action last week, but mining aimed exclusively at such ships would be an illegal form of blockade.
The prohibition is contained in Article II of Hague Convention VIII, signed by the U.S. delegation to the Second Hague Conference, ratified by the Senate and in effect since Feb. 28, 1910.
"It is forbidden to lay automatic contact mines off the coast and ports of the enemy with the sole object of intercepting commercial shipping," the article states.
It remains in effect and is the basis of accepted international law on the subject.
This provision was generally held in light esteem in international legal circles because no belligerent nation was expected to concede that it was laying mines solely to stop merchant vessels rather than warships.
The practice has been to lay mines to stop naval ships, and if incidentally others were stopped too, that was perfectly legal. Not until President Nixon's announcement had any nation acknowledged this kind of mining primarily to stop merchant ships.
"There is only one way to stop the killing, and that is to keep the weapons of war out of the hands of the international outlaws of North Vietnam," Nixon said in announcing the ship-and-mine cordon.
"I have therefore concluded that Hanoi must be denied the weapons and supplies it needs to continue its aggression," he explained. "In full coordination with the Republic of Vietnam, I ordered the following measures which are being implemented as I am speaking to you:
"All entrances to North Vietnamese ports will be mined to prevent access to these ports and North Vietnamese naval operations from these ports."
That reference to naval operations saved the mining operation from becoming clearly illegal under international law and U.S. treaty commitments.
The declaration of purpose, however, was only one of several areas where there seemed to be some confusion if not tightrope-walking on international law.
For one thing there was no mention of the word "blockade," and the government insists there is no blockade.
"A blockade involves stopping and searching vessels and that's not involved here," chief Pentagon spokesman Daniel Z. Henkin told the press.
But mining has long been recognized in international law as a form of blockading and regulations have been set up to govern its conduct.
The VIII Hague Convention was addressed to this very situation and Germany's blockading of Britain in both World Wars depended on mines as well as the more-publicized submarines.
And while the government did not call its new action a blockade, it followed precisely the required procedures for setting one up. International law requires that the blockading nation inform the neutral nations of the date the blockade begins, the geographical limits of the blockaded area and the period granted neutral vessels to leave the blockaded port.
The United States formally notified other nations of the mining operation, defined the mined areas and announced that neutrals would have three daylight periods to get out.
Defense Secretary Melvin Laird also raised the point that the United States was not blockading because it was limiting its action to the territorial waters of North Vietnam. But this has no basis in international law.
Blockading originally was always done close in but the development of improved shore defenses, torpedoes and submarines forced blockaders to work further out.
Blockading from too far out, in the sense of stopping ships anywhere on the seas, is illegal.
Article 19 of the Declaration of London, signed in 1909, provides that "neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to render the blockade effective."
Another problem with not calling mining a blockade is that it does not altogether evade the responsibilities of a blockade. The Declaration of Paris of 1856 says that a blockade "must be maintained by a force sufficient really to prevent access to the coast of the enemy."
This is held in international law to mean that blockade ships as well as mines are needed to make a blockage effective and therefore legal.
By this standard the laying of mines by Germany without adequate naval force to blockade British coasts in the World Wars has been held in the world community as an illegal act.
The United States has sufficient naval force in the South China Sea, but is maintaining these ships are not blockaders.
The administration may be playing with fire by playing with semantics over the Vietnamese mining operation. For example, while insisting it isn't blockading North Vietnam, it is leaving open the option of stopping and searching neutral ships.
At a news conference recently Laird was asked to reconcile these differences.
"I think you should clarify one point that is at variance with Dr. Kissinger," a questioner said. "At his briefing yesterday, he said there was no intention to stop ships going in, the mining was the only thing. You are leaving the implication here that this (stopping ships) is a possibility. Is that what you meant to leave?"
After a thoughtful pause, Laird answered: "That is what I meant to leave."
The problem with this is that the United States must proclaim a blockade and warn neutrals before it starts stopping any ships. To do so without observing the formalities of admitting a blockade could even be taken as an act of war by the offended neutral.
The government's purpose in playing with labels is concededly to avoid just such legal technicalities and the confrontation with neutrals they entail.
"What we're doing has the same effect as a blockade," a State Department legal expert said. "But it doesn't raise these elements.
"A blockade entitles you to do certain things which we're not doing. Therefore, it is not a blockade."
The right of a nation to stop shipping to and from an enemy country is firmly established in international law and practice. But it is a wartime practice, complicated here because no legal war exists between the Unite States and North Vietnam.
Here, too, the blockade becomes important because it carries a certain recognition and status and belligerency. This blockade may be the closest thing we have to a declaration of war.
This principle was most vividly brought into play in the American Civil War when President Abraham Lincoln blockaded the South. He couldn't blockade without declaring publicly and advising other nations, which automatically gave a certain legitimacy to the Confederacy.
"Blockade? - U.S. Says No", by (AP) published in the Pacific Stars and Stripes Friday, May 19, 1972 and reprinted from European and Pacific Stars and Stripes, a Department of Defense publication copyright, 2002 European and Pacific Stars and Stripes.
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