The United States naval blockade of Iraq: a foreign policy and international law analysis

This is the second of a two part essay by Commander Rosen into the causes of the Iraqi invasion of Kuwait, the modern law of blockade, the political wisdom and the lawfulness of imposing a limited blockade of Iraq. Defects in the current regime of blockade were explored.

In part II, Commander Rosen closely explores the legal justification for the U.S. use of force in response to the Iraqi invasion of Kuwait. It is frequently overlooked that the U.S. naval blockade (it was called a “naval interdiction”) was a U.S.-only operation from August 12th until August 25, 1990. As a pedagogical exercise, this period is extremely important because the U.S. use of force (by its naval units), in response to a written request by deposed Emir of Kuwait, must be justified under the U.N. Charter to be proper under international law. Once the U.N. Security Council authorized the use of force on August 25, 1990 to enforce the U.N. embargo, then the operation became one in which the U.N., as a corporate body, was acting. Since most low intensity conflicts since 1945, have involved lawful use of force issues outside of Security Council purview, the U.S. unilateral military action (blockade) against Iraqi shipping must be analyzed. It is reasonable to anticipate that future controversies of this sort will occur because of philosophic divisions among the U.N. Security Council permanent members or because there is anaequate time for the U.N. “Security Council to meet and obtain the forces required to insert into a region of conflict. Resurrection of the moribund U.N. Military Staff Committee might be one of the lessons learned from this particular episode.

The United States had the benefit of a U.N. resolution on August 25, 1990 to justify its naval action. Before that date, the legal issue arises whether, in the early stages, national self-defense grounds permitted the use of force against Iraq (blockade) since deprivation of assured access to critical materials (oil) can be considered an act of aggression under some theories of international law. Commander Rosen concludes that the low intensity blockade was probably not authorized, under a theory of national self-defense, because the U.S. had no hard evidence on August 12, 1990 (the day the blockade commenced) that Saddam Hussein would deprive the U.S. of access to Gulf Oil supplies. But, because of the pervasive interdepencies of world economies, world food supplies, and petroleum access, the case was extremely close.

The customary international law of intervention (protection of nationals or humanitarian) and the law of collective self-defense was explored relative to the U.S. imposition of a limited naval blockade. Commander Rosen concludes that intervention theory will not support the limited naval blockade since there was insufficient evidence that U.S. citizens were in imminent danger (as in Grenada) and the blockade operation was too limited and indirect in scope to produce the type of rapid results which have come to be associated with a humanitarian intervention (as in the Congo). But, since Kuwait’s territorial sovereignty had been grossly violated as a result of illegal aggression, Kuwait was privileged under the U.N. Charter to request and receive defense assistance from the United States under Article 51 to recover lost territory. Arguments that the right to act in collective self-defense under Article 51 is limited to the nation which itself is attacked (or a nation closely aligned with the victim) are rejected as contrary to the U.N. norms of promoting community resistance to illegal aggression.

While the Persian Gulf dispute has resulted in open hostilities, international law issues existed whether, in the early stages, the blockade was militarily necessary and whether the blockade could be extended to the Jordanian port of Aqaba, because of conflicting reports as to Jordan’s adherence with the U.N. embargo, were explored. International law would probably not support an extension of the blockade to Aqaba because it would be seen an improper interference with Jordan’s neutrality. Similarly, forbidding the passage of U.N. medical and food convoys into Iraq was seen as a breach of international law provided such shipments were specifically authorized and supervised by the U.N. security council (to ensure that the food was only distributed to civilians).