Monday, June 23, 2008

Response from International Lawyer on Blockade Issue

As promised, I will post responses today I have received from lawyers who are experts in international law regarding H.Con.Res. 362 and whether it could be construed as calling on the President to pursue a blockade against Iran.

Here is one response I received:

"Here the concurrent resolution is asking the President to do something which cannot possibly be done effectivly without the use of force while disclaiming that it authorizes the use of force. Nice try, but no cigar.

"If the US were to do unilaterally what clause 3 of H.Con. Res. 362 demands, it would clearly be a violation of international law on any number of grounds, the main one being the principle of freedome of the seas. But it doesn't do that; it only asks the President 'to initiate an international effort.' If that effort were successful and the Security Council passed a resolution calling on all UN members to implement clause 3 as a threat to the peace under Ch. VII of the UN Charter, that could conceivably be legal, since the International Court of Justice has ruled in the Libyan case that anything the Security Council does is legal. But I don't see that happening.

"The same thing goes for the sanctions called for in Clause 2, i.e. they would constitute violations of international law if applied unilaterally by the US. That, however, is something the US could do unilaterally, since it wouldn't require a Security Council resolution and the US doesn't give a damn about international law. It would merely require an extension of the Iran Sanctions Act.

"To return to your original question, does the Ackermann/Pence resolution call for a blockade? Not necessarily. Whether a given behavior by one or more states constitutes a blockade is a question of fact. In other words, it would depend on how the intent of clause 3 was implemented.

"It is difficult to see how ships 'entering' Iran could be subjected to 'stringent inspection' without the use of force. On the other hand, communications destined for or arriving from Iran could be intercepted in any number of ways, most of them illegal, but many of them undoubtedly already in force.

"I don't know if that helps, but it's such a stupidly worded resolution that it's almost impossible to get a handle on it."

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