Author: Julian Ku

by Julian Ku

From this NYT story, the upcoming report to the U.N. Human Rights Council on U.S. drone strikes seems fairly restrained.  The main pushback is to end CIA involvement in drone strikes, on the theory that CIA operatives are not privileged belligerents.  This is indeed, the strongest legal argument against drone strike, at least to me, but it seems also pretty easily fixable.  Still, I wonder what the rest of the report says? And whether the Obama Administration will heed the calls to change their policy (or indeed, whether this report makes it harder for the to do so).

A senior United Nations official is expected to call on the United States next week to stop Central Intelligence Agency drone strikes against people suspected of belonging to Al Qaeda, complicating the Obama administration’s growing reliance on that tactic in Pakistan.

Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said Thursday that he would deliver a report on June 3 to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies. He contrasted how the military and the C.I.A. responded to allegations that strikes had killed civilians by mistake.

by Julian Ku

Do we have an emerging consensus that the ICC States-Parties should refrain from adding the crime of aggression to the ICC Statute at its upcoming conference in Kampala?  Michael Glennon, the CFR, Harold Koh, David Kaye, and now Richard Goldstone have all come out against adding the crime of aggression. Here is Goldstone:

Based on my experience as an international prosecutor, and speaking as a strong supporter of the International Criminal Court, I think it would be a mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.

By any measure, the I.C.C. has gotten off to a strong start in generating international support and demonstrating its potential to address the problem of impunity for serious international crimes.

But it also has encountered charges of politicization and is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity and war crimes.

One of the greatest challenges I faced as prosecutor at the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.

Prosecuting that decision would have inflamed Serbian suspicions of a conspiracy; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.

Now is not the time for the I.C.C. to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution.

by Julian Ku

I have always thought the Ottawa Convention banning landmines was a nice idea, but somewhat unrealistic. Case in point: the U.S. and South Korea rely on landmines to prevent a North Korean attack on South Korea. It is hard to imagine a cheaper more effective deterrent than landmines, as David Rivkin and Lee Casey argue in today’s WSJ.  As a policy matter, this claim is up for debate. Indeed, 68 U.S. senators have already indicated support for the treaty.

Perhaps more interestingly, Rivkin and Casey classify the Landmine Treaty as a new kind of “international political correctness” aimed at undermining the traditional laws of war.

Traditionally, the laws of war accommodated military imperatives, imposing only the most basic of restraints. This was in recognition that a more restrictive code would not likely check nations engaged in a life or death struggle. As the realities of war have receded for most developed countries, progressives have worked to transform the norms applicable to armed conflict into something akin to a code governing domestic police functions.

The Ottawa Convention is part and parcel of this process, and the only real justification for U.S. accession to this treaty is a bow to international political correctness. That is what the Senate letter meant by urging the president to reconsider the U.S. position as consistent with his “commitment to reaffirm U.S. leadership in solving global problems.”

That type of symbolism is just not a good enough reason to give up a weapon that can protect American forces and assist them in accomplishing their missions.

This is an important theme that scholars are just beginning to pick up on (with the exception of Alan Dershowitz, of course).  Are the laws of war being changed somehow into something really different (and in service of progressive goals)?  Is that a bad thing?

by Julian Ku

Professor Gabriel Wilner

Sad news from the University of Georgia:

Gabriel Michael Wilner, a University law professor and executive director of International, Comparative and Graduate Legal Studies, died unexpectedly at his home Friday.

A native of Beirut, Lebanon, Wilner has been with UGA since 1973 and has served in several capacities since coming to the University. He has taught private international, comparative and maritime law, served as director of the law school’s Master of Laws program, and directed the Brussels Seminar on the Law and Institutions of the European Union since its inception in 1973….

A memorial service for Wilner will be held at the Bernstein Funeral Home in Athens on Friday at 11 a.m. In lieu of flowers, his family suggests a donation to the National Kidney Foundation, 30 East 33rd St., New York, NY 10016.

by Julian Ku

The Washington Times has an editorial that seems to argue that because Elena Kagan supports the teaching of international and comparative law, she actually believes that “foreign law trumps the Constitution.”

It was under Ms. Kagan’s leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in “International/Comparative Law.” The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.

As someone who teaches both constitutional law and “international/comparative law,” I would say that both should be required for law school graduation. At the same time, given the politics of the constitutional law faculty at Harvard, I think the Washington Times would actually be happier that Laurence Tribe and Mark Tushnet have fewer students in their conlaw classes.  And given that there is pretty much nothing in Kagan’s written work that reflects the”transnationalist” perspective, this is pretty thin stuff that will make her critics look silly.

by Julian Ku

Actress Mia Farrow has a scathing op-ed in the WSJ today denouncing Obama’s Sudan policy. The crus of her critique is that Obama is not pushing hard to send Bashir to the ICC.

Last week U.S. Special Envoy to Sudan Scott Gration told the Senate Foreign Relations Committee that although he remains supportive of “international efforts” to bring Sudanese President Omar al-Bashir to justice, the Obama administration is also pursuing “locally owned accountability and reconciliation mechanisms in light of the recommendations made by the African Union’s high-level panel on Darfur.”

Mr. Bashir is indicted by the International Criminal Court (ICC) for war crimes and crimes against humanity, but the African Union Panel on Darfur has clearly aligned itself with Khartoum. One panel member, former Egyptian Foreign Minister Ahmed Al Sayed, said in an interview with an Egyptian newspaper, “The prosecution of an African head of state before an international tribunal is totally unacceptable. Our goal was to find a way out.”

The African Union panel is led by former South African President Thabo Mbeki, who in 2008 dismissed the ICC indictment, saying that it is “the responsibility of the Sudanese state to act on those matters.” Then, late last year his panel proposed a counter initiative to the ICC in the form of a hybrid, Sudan-based court with both Arab and African judges to be selected by the African Union.

But all this is moot since Mr. Bashir swiftly rejected Mr. Mbeki’s proposal. Perversely, Mr. Gration has now thrown U.S. government support to a tribunal that does not and probably will never exist. Even if it did, the “locally owned accountability” he refers to is not feasible under prevailing political conditions, as any Sudan-based court will be controlled by the perpetrators themselves.

Farrow has a point about the sketchy effectiveness of the AU’s mechanism. Moreover, it is hard to reconcile the Obama administration’s support for the AU panel in light of the ICC Statute, which doesn’t (I believe) permit substitutions like this.

On the other hand, I just don’t understand why Farrow and activists like her believe that the ICC trial of Bashir will end up somehow ending the suffering in Sudan.  Essentially, she is arguing that only regime change can solve the problems here.  But she is proposing the removal of Bashir without any political mechanism to replace him and to prevent someone worse from coming to power (e.g. an occupation force).  The Obama policy is realistic (although perhaps not exactly legal).  Farrow’s faith in the ICC as something that can bring peace to Sudan is deeply misplaced

by Julian Ku

The Jerusalem Post reports on a recent discussion discussion between Alan Dershowitz, Aharon Barak, and Amnon Rubinstein on Israel’s proper attitude toward international law.  Each represented a different perspective. Barak (former Israeli Supreme Court chief) suggests that Israel must follow international law as it is, while Rubinstein argued that Israel should engage to make sure international law is interpreted fairly and reasonably against it.  And then there is Dershowitz’s position, which is (predictably), the most interesting and extreme position:

Dershowitz charged that Israel was singled out for discrimination by those who interpret international law, whether they are international tribunals like the International Court of Justice, human rights organizations or left-wing academics, including Israeli and Jewish ones.

“The judges in the international tribunes are corrupt,” Dershowitz said. “They are appointed by political leaders to do their state’s bidding. You can’t have one law for Britain, one for America and another one for Israel. You can’t have different laws for thee and me. We see human rights turning into human wrongs or human lefts.

“My job today is to delegitimize international law, to attack it to the core. There must be one standard for all. Until that day happens, I will be its sworn enemy. I prefer no international law to unfair international law.”

Buried beneath Dershowitz’s colorful rhetoric (”sworn enemy”!) is a lot of legitimate criticism of how the laws of armed conflict are applied against Israel.  Since the Israeli government has been, in general, pretty sensitive to international law issues, its ultimate attitude toward this kind of international law is pretty important.  Interestingly, it is Dershowitz, the non-Israeli, who is recommending the most radical and aggressive position.

by Julian Ku

David Kopel, Theodore Bromund, and Ray Walser offer this Heritage Foundation essay analyzing (and attacking) the Inter-American Convention on the Illicit Sale of Firearms, Ammunition, Explosives and Other Related Materials (CIFTA).   Although critical, the essay doesn’t actually focus on the constitutional problems, since those are fairly unclear. In fact, the First Amendment problems seem larger than the Second Amendment problems.  Interestingly, although the writers agree that most constitutional defects could be cured by reservations, the fact that Harold Koh is  the legal adviser in the State Department leads them to argue that such reservations would not be made, or not defended in court if later challenged.

The conflict between the U.S.’s treaty obligations and the Constitution would also be useful to domestic advocates who argue that the Constitution is a barrier to U.S. compliance with “international norms.” Thus, the convention fits neatly into a broader transnationalist strategy to reduce the ability of the U.S. to govern itself through laws and institutions of its own making. By backing the convention, its advocates also advance the idea that the U.S. should act at the suggestion and under the guidance of other states and ultimately of the “international community.”

The defects in the convention are serious and pose prudential risks that cannot be remedied without a substantial number of U.S. reservations to the convention. It is particularly troubling that Harold Koh, a key Administration appointee, offered an unqualified endorsement of the convention before taking office and expressed doubt about the legal validity of reservations. While his criticism of the legality of reservations is baseless, the number and extent of the necessary reservations would be substantial and incompatible with the core of the convention. The U.S. can therefore neither properly ratify the convention with reservations nor safely ratify it without reservations.

I am not as worried as they are about this treaty, or about the legal validity of reservations. But it is true that I have a hard time imagining Koh defending the constitutionality of such reservations in court. t.

by Julian Ku

During a conference earlier this week at Northwestern on Israel and International law, NYU law professor Samuel Estreicher presented an interesting proposal to shift the focus of the law of armed conflict toward the duties of defenders.  Arguing that most of the law (or at least law interpretation) seems focused on attackers, the duties of defenders are largely free of regulation. Hence, Israel Defense Forces are swamped with duties with little or no attention to the duties held by Hamas defenders in Gaza.  As Estreicher argues, ignoring defender duties may undermine one of the goals of the the law of armed conflict: the reduction or minimization of civilian casualties.  Here is the essence of his argument:  The following is the essence of his proposal to draw out such defender duties from existing law of armed conflict sources.

1. The Prohibition of Civilian Shields

• Geneva IV Art. 28: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”9

• AP Article 51(7): “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”

2. The Prohibition of Perfidy

• AP Article 37(1): “It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with the intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy: …(c) the feigning of civilian, non-combatant status ….”

3. The Duty to Protect the Civilian Population Against Dangers from Military Operations

• AP Article 51(1): “The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.”

• AP Article 57(1): “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”

• AP Article 57(4): “In the conduct of military operations at sea or in the air, each Party to the conflict shall in conformity with its rights and duties under the rules of international law applicable to armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”

4. The Duty to Remove Civilians from and Not Locate Military Objectives in the Vicinity of Military Objectives

• AP Article 58: “The parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual citizens and civilian objects under their control against the dangers resulting from military operations.”

5. The Duty to Avoid Methods or Means of Warfare that Cause Unnecessary Injury or Suffering

• AP Article 35:

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ … methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

by Julian Ku

This sounds like a bit of a publicity stunt by prosecutors at the Special Tribunal for Sierra Leone, but it could very well work.

by Julian Ku

Prof. Chimene Keitner at UC-Hastings has posted a short essay in the online version of the Yale Journal of International Law criticizing the novel and influential interpretation of the Foreign Sovereign Immunities Act proposed by Profs. Curtis Bradley and Jack Goldsmith.  In a series of articles, Bradley and Goldsmith have argued that the FSIA’s immunity for “foreign state[s]” should be interpreted to include foreign government officials.  This argument may very well be adopted by the Supreme Court this term in Samantar v. Yousuf (for background, see here and for my take on oral argument, see here). Here is a summary of her critique:

Stated briefly, the observation that “a state acts through individuals” does not support Bradley and Goldsmith’s proposal as a matter of logic, because both U.S. and international law attribute personal responsibility to individuals for certain types of illegal conduct precisely because they engage in such conduct under color of law.  When a certain criterion defines conduct as illegal, it does not make sense for that same criterion to place individuals who have engaged in that conduct categorically beyond the reach of U.S. courts. Nor do policy considerations support Bradley and Goldsmith’s proposal. There are at least three reasons for this: the FSIA was not designed to include individuals, reading it to do so would conflict with the Torture Victim Protection Act, and various specialized  immunities and other non-statutory doctrines already afford substantial protections to foreign officials and to the interests of foreign states in U.S. courts. Finally, neither international treaties nor customary international law require treating all “official capacity suits” as suits against the state itself, without regard to the conduct at issue. It would be anomalous to find that international law categorically prevents states from holding individuals accountable for universally condemned violations of international law.

I still don’t know what I think about this issue. Hopefully, I’ll figure something out before the Supreme Court comes down with a decision, but perhaps not. In any event, it is always worth considering Chimene’s take on these things.

by Julian Ku

Interesting article from Reuters on the growth of drone warfare under the Obama administration.  One interesting note: drone attacks are being contemplated for Yemen, Somalia, and even against pirates.  Also, the key explanation for the Drone Wars appears to be the legal problems created by capturing, interrogating, and detaining individuals.

Some current and former counterterrorism officials say an unintended consequence of these decisions may be that capturing wanted militants has become a less viable option. As one official said: “There is nowhere to put them.”

A former U.S. intelligence official, who was involved in the process until recently, said: “I got the sense: ‘What the hell do we do with this guy if we get him?’ It’s not the primary consideration but it has to be a consideration.”

by Julian Ku

Last week, President Obama submitted the Treaty with Russia on Measures for the Further Reduction of Strategic Offensive Arms to the U.S. Senate.  Reading it is tough going, given all the technical terminology. A couple of not very profound observation:

1) Is this Treaty self-executing?  For the many pro-self execution folks, the answer should be yes (look at the Supremacy Clause!).  But would that make any legal or practical sense? A modern court would almost certainly say no, and I don’t think most folks would disagree with that result.

2) This is the first major treaty that the Administration has submitted to the Senate. Indeed, it is only the fourth treaty submitted since January 20, 2009, and two of those were protocols to tax conventions, which barely count.  I know folks at State are busy, but what’s the holdup?  Where is, say, The Hague Convention on the Choice of Courts, the Convention for the Elimination of Discrimination Against Women, the U.N. Convention on the Law of the Sea?  I’m not exactly complaining, but I wonder why the Administration didn’t submit those treaties (or at least one of those treaties) right out of the box back in 2009. It is only going to get harder from here.  Does anyone think Senator Rand Paul is going to vote for any of these?

by Julian Ku

The young Somali captured last year in dramatic U.S. Navy operation has plea bargained himself into a minimum 27 year sentence.

A Somali man has pleaded guilty in New York’s court to seizing a US ship and kidnapping its captain last year.

Abdiwali Abdiqadir Muse now faces a minimum of 27 years in prison. He is expected to be sentenced in October.

Muse is the only surviving attacker on the Maersk Alabama merchant ship off Somalia’s coast in April 2009.

A couple of observations about this result, which should caution folks excited about the effectiveness of U.S. federal courts in combatting piracy. (It appears the defendant avoided a piracy conviction and settled for a lesser charge).

1) Timing: Muse was captured in March 2009 and charged with, among other things, “piracy as defined in the law of nations,” under 18 U.S.C. 1651. It has taken 13 months to get a plea bargain on a lesser charge???  If we were just going to plea bargain him, why did it take so long?

2) Evidence: The logistics of finding translators, and dealing with classified evidence, is another reason these trials are going to take a fair amount of time.  Case in point: the federal trial in Norfolk, Va of another group of Somali pirates was recently delayed for five months just so the parties could sort through classified evidence and find translators.

I don’t say federal courts are doing a bad job here.  But the logistical difficulties are going to make this a very weak and ineffective deterrent to further piracy. As Anne Applebaum notes, the other option was tried by the Russians recently when they “released” a group of Somali pirates on a dinghy 350 miles from shore without an navigation equipment.  The 21st century version of “walking the plank”?

by Julian Ku

I guess this is why they need a ban on the burka in France. Stories like this make France seem decidedly more unpleasant for certain Muslims than Arizona is for illegal immigrants:

France had its first case of “burka rage” at the weekend when a shopper allegedly tried to pull the veil from the face of a Muslim woman and the resulting scuffle turned violent.

The Muslim woman, named only as Élodie, told reporters that she had been leaving a shoe store in Trignac, near St Nazaire, when two passers-by, apparently mother and daughter, made derogatory remarks before telling her: “Go back to your own country.”

The mother, a lawyer, allegedly tried to tear off the niqab worn by Élodie — at which point the two began trading slaps before being separated by shop assistants, Élodie said.

“Things got nasty,” she added. “The older woman grabbed my veil to the point of ripping it off.”

by Julian Ku

This seems like a nice, uncontroversial way to buttress the ICC Prosecutor’s Office:

ICC Prosecutor Luis Moreno-Ocampo today announced the appointment of Professor Jose Alvarez as his Office’s Special Advisor on International Law. “Professor Alvarez is one of the leading academics in international law,” said Prosecutor Moreno-Ocampo. “He has written extensively on the law-making powers of international organisations and on the ad hoc international war crimes tribunals for the former Yugoslavia and Rwanda.”

As Special Adviser to the Office of the Prosecutor (OTP), Professor Alvarez will focus on any public international law questions that arise in the course of the Prosecutor’s duties. This may include, for example, the relationship between the Security Council and the International Criminal Court.

Congrats, Jose!

by Julian Ku

Our own Ken Anderson joined a number of other law profs, including Prof. David Glazier, in testimony today before the National Security and Foreign Affairs subcommittee of the U.S. House Committee on Oversight and Government Reform to discuss, what else, the legality of U.S. targeted killings policy. Wired has a nice report summarizing the testimony, and the issues are already familiar to the folks on this blog.  Meanwhile, the ACLU weighs in today with a tough public letter challenging President Obama’s targeted killings policy on legal grounds.  The ACLU’s analysis appears to concede that targeted killings may be used (subject to law of war limits) within recognized conflict zones.  But outside of those zones,

…the use of lethal force by the United States is strictly limited by international law and, at least in some circumstances, the Constitution. These laws permit lethal force to be used only as a last resort, and only to prevent imminent attacks that are likely to cause death or serious physical injury. According to news reports, the program you have authorized is based on “kill lists” to which names are added, sometimes for months at a time, after a secret internal process. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human rights concerns.

The letter goes on to draw a distinction between detention of enemy combatants and targeted killing of them that I don’t find all that persuasive.  But taken together, the Congressional interest in these issues and the ACLU letter makes a cogent legal and policy case against targeted killings outside of Afghanistan and Iraq.  The letter may be the first sign that President Obama (and Clinton and Koh) will no longer be getting a pass on their war on terrorism policies.

by Julian Ku

The reaction of key countries to the recent Sudan elections electing Sudan’s President al-Bashir are in.  The bottom line seems to be- the elections were deeply flawed, but not so much so that they should be denounced or set-aside.  In the meantime, start planning for the all important referendum on Southern Sudan’s independence, which will require Bashir’s cooperation.  This appears to be the view of the U.S. government, anyway, and it seems largely echoed by the EU.  Interestingly, neither the E.U. nor the U.S. seems to be emphasizing (or even mentioning) the fact that Sudan is continuing to defy its international obligations to turn over individuals demanded by the ICC, including its President.  The focus remains, as it should be, on preserving the delicate peace process in Sudan. But if the U.S. and E.U. do not demand compliance with the ICC, then it is clear that the ICC (at least in the near term) has no chance of completing its prosecutions in Sudan.

by Julian Ku

Adding to our already energetic discussion about the ICC and Kampala is the WSJ Editorial Board’s contribution today.  I share many of the editorial’s skeptical views of the ICC and I think even Kevin would not find any “lies” in this article.  Here is the crux of their critique, which I mostly share:

From the Balkans to East Timor to the Mideast, these pages have welcomed international action to stop atrocities. In select cases, such as the U.N. war crimes tribunal for the former Yugoslavia, we’ve backed ad hoc courts with a narrow mandate, limited life and proven commitment to fairness. The ICC meets none of those standards.

Moral grand-standing via indictments also isn’t the same as doing something about crimes against humanity. The indictment of Sudan’s butcher of Darfur, President Omar Hassan al-Bashir, made him harder to dislodge, and absent serious intervention, it has probably prolonged the suffering there.

Only two quibbles: 1) Why is the Yugoslavia tribunal more likely to be fair than the ICC? 2) I also don’t quite agree with the lead: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint.” I don’t see this happening anytime in this president’s term (either his first or second). And I’m not sure that non-cooperation is a viable or desirable strategy.  I think the Administration’s approach is about right, assuming they end up close to the CFR Report’s recommendations.

by Julian Ku

What should South Korea do if it confirms the responsibility of North Korea for the sinking of a South Korean naval vessel?  This article quotes a Korean law professor offering three options:

Writing in JoongAng Daily, Kim Hyun-soo, professor of international law at Inha University, said Lee has three options if he wishes to avoid risking all-out war on the peninsula. He could demand concerted action by the UN security council; he could take his case to the international court of justice; or, failing that, he could impose a maritime blockade, as the US did against Cuba in 1962.

The first option seems no problem, except that it is hard to get the Security Council to do anything.  The second option is a problem since, well, North Korea has not accepted the compulsory jurisdiction of the ICJ.  The third option seems the most interesting, but it is also the most complicated one legally.  The Koreas are in a state of cease-fire.  But blockades, at least in theory, are not permitted under the U.N. Charter except when authorized by the Security Council (see U.N. Charter Art. 42). The 1962 U.S. “quarantine” of Cuba was carefully not called a blockade to avoid this legal problem.  I suppose South Korea could end the cease-fire, initiate hostilities, and institute the blockade as part of its right of self-defense.  Now that would be legally defensible, although it would probably start an all out (maybe even nuclear) war. So let’s hope they go with option 1.