Following up this question of international waters: not a topic on which I can claim expertise, but I understand that if a blockade is being used as a war tactic, then it can be enforced anywhere. The legality or otherwise of the interdiction (not its enforcement, that is a different question) is a red herring - what is more significant is the existence and nature of the blockade on Gaza.
This blockade is causing appalling civilian suffering for relatively minor military benefit: it is justified to prevent weapons reaching Gaza by sea, yet in fact was imposed to punish a population for voting for the wrong party in an election (Hamas). The EU makes countries vote again if they give the wrong response to a referendum on giving more power to Brussels, so the relatively weak position on the Gaza blockade from Europe is hardly surprising.
Nick Megoran (currently in Jerusalem).
-----Original Message-----
From: International boundaries discussion list [mailto:[log in to unmask]] On Behalf Of INT-BOUNDARIES automatic digest system
Sent: 05 June 2010 02:02
To: [log in to unmask]
Subject: INT-BOUNDARIES Digest - 3 Jun 2010 to 4 Jun 2010 (#2010-36)
There are 4 messages totaling 7948 lines in this issue.
Topics of the day:
1. Fw: Re: Israel commandos raided the ships in international waters
2. piracy (3)
----------------------------------------------------------------------
Date: Fri, 4 Jun 2010 01:05:51 -0700
From: [log in to unmask]
Subject: Re: Fw: Re: Israel commandos raided the ships in international waters
Responding only to the message just below re Somali piracy (discussion
of the Israeli boarding of the blockade runners having been closed by
the Listowner), I think a pirate can be stopped, boarded and seized
anywhere by the warships of any state, and the pirates tried anywhere.
I raise the additional example of the interception of ships carrying
prohibited nuclear material. I understand that suspected North Korean
ships, for example, could only be stopped approaching port, but ports
could be closed to them contrary to the usual practice of allowing
non-belligerent merchant ships to enter any port. Do I have that right?
Is there not some provision, going back to anti-slavery days, allowing
interception of contraband (like slaves or nuclear weapons) on the high
seas?
David Phillips
San Francisco
-----Original Message-----
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Lisa Magloff
Sent: Wednesday, June 02, 2010 11:55 AM
To: [log in to unmask]
Subject: Re: Fw: Re: Israel commandos raided the ships in international
waters
Thanks Marian, that is very thorough and most helpful. I'm
curious as well as to how some of these issues may overlap with those of
interdicting and intercepting ships that may be engaged in piracy off
the coast of Somalia. While that is a different issue, it seems that
some of the same principles may be applicable. I wonder if anyone has
given any thought to this issue.
Lisa
On 2 Jun 2010, at 19:45, Marian Houk wrote:
Dear Professor and colleagues,
\I have just come across this additional argumentation from the
Ramallah-based
Right to Enter Campaign:
It should be remembered that this latest incident happened in
international waters and under article 3 of the Rome Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation
of 1988, it is an international crime for any person to seize or
exercise control over a ship by force, and also a crime to injure or
kill any person in the process. When such acts are carried out by states
or under their sponsorship, they constitute acts of war against the
state under whose flag the ship is sailing.
--- On Wed, 6/2/10, Marian Houk <[log in to unmask]> wrote:
From: Marian Houk <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international
waters
To: "Gbenga Oduntan" <[log in to unmask]>
Date: Wednesday, June 2, 2010, 8:53 PM
Dear Professor Oduntan, Dear Hamzah,
While I fully share in the grief and shock that followed the forceful
Israeli naval interdiction
of the Freedom Flotilla in "international" waters of the eastern
Mediterranean on
Monday morning, may I note a few additional facts:
(1) Israel has, in the wake of this event, apparently rediscovered
international law. The Israeli Ministry of Foreign Affairs has developed
a "legal background" paper justifiying its maritime blockade of Gaza --
in which it now argues that "Maritime blockades are a legitimate and
recognized measure under international law". It does not refer to the
International Convention on the Law of the Sea. However, this paper
states that "Under international maritime law, when a maritime blockade
is in effect, no boats can enter the blockaded area. That includes both
civilian and enemy vessels. A state may take action to enforce a
blockade. Any vessel that violates or attempts to violate a maritime
blockade may be captured or even attacked under international law. The
US Commander's Handbook on the Law of Naval Operations sets forth that a
vessel is considered to be in attempt to breach a blockade from the time
the vessel leaves its port with the intention of evading the blockade.
Here we should note that the protesters indicated their clear intention
to violate the blockade by means of written and oral statements ...
Given the protesters explicit intention to violate the naval blockade,
Israel exercised its right under international law to enforce the
blockade ... Given the large number of vessels participating in the
flotilla, an operational decision was made to undertake measures to
enforce the blockade a certain distance from the area of the blockade".
This "legal background" paper, entitled "The Gaza Flotilla and the
maritime blockade of Gaza", was published on Monday on the Israeli MFA
website, here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Gaza_f
lotilla_maritime_blockade_Gaza-Legal_background_31-May-2010
[The presentation of this "legal background paper" followed a pre-attack
position presention argued along similar lines (without the end-game
details) by an Israeli MFA legal expert in maritime and humanitarian
law, which is posted here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Legal_
aspects_Gaza_aid_26-May-2010.htm]
(2) Though the Israeli declaration of its naval blockade of Gaza's
maritime space was announced when it was declared on 3-4 January 2009,
as it launched the ground phase of its unprecendented Operation Cast
Lead in Gaza, it took some searching to discover where it was published.
Finally, I was lead to this Notice to Mariners, published as a Notice to
Mariners on 6 January 2009 (it is now on the website of the Israeli
Ministry of Transport) three days after the blockade of Gaza's maritime
space was announced:
NO. 1/2009 Blockade of Gaza Strip
Tuesday, 06 January 2009 00:00
1. Subject: Blockade of Gaza Strip
2. Source : Israeli Navy
All mariners are advised that as of 03 January 2009, 1700 UTC, Gaza
maritime area is closed to all maritime trafic and is under blockade
imposed by Israeli Navy until further notice.
Maritime Gaza area is enclosed by the following coordinates:
31 35.71 N 34 29.46 E
31 46.80 N 34 10.01 E
31 19.39 N 34 13.11 E
31 33.73 N 33 56.68 E
http://info.mot.gov.il/EN/index.php?option=com_content&view=article&id=1
24:no12009&catid=17:noticetomariners&Itemid=12
[n.b. - no further notice has yet been published...]
Prior statements from IDF commanders indicated that the announced
Israeli naval blockade affected Gaza's maritime space to a distance of
some 20 km out to sea -- that is the area defined in a map appended to
the Oslo Accords as a zone for fishing and economic activity. The Oslo
map, signed in 1994, is posted on the Israeli Ministry of Foreign
Affairs website, here:
http://www.mfa.gov.il/NR/rdonlyres/0D80237A-9B99-42D4-8BA0-FB8627593661/
0/MFAG003p0.gif
Reports from on board the largest ship in the Freedom Flotilla
indicated, just before its interdiction at sea, that Israel had suddenly
enlarged its maritime zone (from 20 miles to what was variously reported
as 40 miles, 60 miles, or 68 miles), as I noted here:\
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mari
time-no-go-zone\
<http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mar
itime-no-go-zone/>
(3) There is a surprising new development, that appears to have taken
place in 2010:
Israel claims a 12 mile territorial sea, but a footnote on Her Majesty's
Government's register of National Claims to Maritime Jurisdiction
indicates a very new proviso -- footnote 17 indicates that Israel's
claim is "reduced to 3M off Gaza", a fact which I discovered here:
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mari
time-no-go-zone
(4) A bit of what is mentioned above, and much more, is discussed at
length by Craig Murray, who I believe participated in the Law of the Sea
deliberations, and various commentators on his position, here:
http://www.craigmurray.org.uk/archives/2010/05/the_legal_posit.html)
In this, Murray argues on the basis of UNLOSC that "Because the incident
took place on the high seas does not mean however that international law
is the only applicable law. The Law of the Sea is quite plain that, when
an incident takes place on a ship on the high seas (outside anybody's
territorial waters) the applicable law is that of the flag state of the
ship on which the incident occurred. In legal terms, the Turkish ship
was Turkish territory".
The commentators debate articles from the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea. and note the US
COMMANDER'S HANDBOOK
ON THE LAW OF NAVAL OPERATIONS, as well as the Oslo Accord's
"Gaza-Jericho Agremeent Annex I, Article XI [Security Along the
Coastline and in the Sea of Gaza] of 4 May 1994, here:
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Gaza-
Jericho+Agremeent+Annex+I.htm
This says
"The sea off the coast of the Gaza Strip will be divided into three
Maritime Activity Zones, K, L, and M as shown on map No. 6 attached to
this Agreement, and as detailed below:
1. Zones K and M
a. Zone K extends to 20 nautical miles in the sea from the
coast in the northern part of the sea of Gaza and 1.5 nautical miles
wide southwards.
b. Zone M extends to 20 nautical miles in the sea from the
coast, and one (1) nautical mile wide from the Egyptian waters.
c. Subject to the provisions of this paragraph, Zones K and
M will be closed areas, in which navigation will be restricted to
activity of the Israel Navy.
2. Zone L
a. Zone L bounded to the south by Zone M and to the north
by Zone K extends 20 nautical miles into the sea from the coast.
b. Zone L will be open for fishing, recreation and economic
activities ... Fishing boats will not exit Zone L into the open sea ...
Recreational boats will be permitted to sail up to a distance of 3
nautical miles from the coast unless, in special cases, otherwise agreed
... Foreign vessels entering Zone L will not approach closer than 12
nautical miles from the coast except as regards activities covered in
paragraph 4 below: {4} As part of Israel's responsibilities for safety
and security within the three Maritime Activity Zones, Israel Navy
vessels may sail throughout these zones, as necessary and without
limitations, and may take any measures necessary against vessels
suspected of being used for terrorist activities or for smuggling arms,
ammunition, drugs, goods, or for any other illegal activity. The
Palestinian Police will be notified of such actions ...
(5} {I think I read recently that Panamanian ex-President Manuel
Noriega was released from U.S. jail and immediately extradited to France
on 26 April of this year, where he was faces charges of money laundering
...}
Regards,
Marian Houk
--- On Wed, 6/2/10, Gbenga Oduntan <[log in to unmask]> wrote:
From: Gbenga Oduntan <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international
waters
To: [log in to unmask]
Date: Wednesday, June 2, 2010, 7:06 PM
Dear Hamzah,
I have to hazard the following positions to your thought
provoking questions.
.
(1) 1. Do Israel commandos have right to board the vessels
beyond its territorial sea?
International Law and the Israeli State do not cohabit happily
together. Perhaps by that I mean Israel does not do international law.
It has consistently made this clear over the past many decades. So what
Israeli commandos can do and cannot do has nothing to do with
international law. They have struck all around the world with absolutely
no care at all about international law but only with full respect to
Israel's national interests. It does not matter whether it is hotel
rooms in Dubai or civilian ships in any ocean of the world. They have
struck at Entebbe airport, Egyptian ports and indeed no where is off
limit. I am sure others can supply other spectacular examples. If I may
be very imaginative I will say they may strike at the White House if
this is absolutely needed and in their national interest. I hope my
pessimism in this area clear. But I must add many 'respectable' states
do share this attribute as well. As we speak there is a Panaman
president languishing in US prison. He was picked up as a sitting
president in a spectacular commando attack for drug trafficking among
other accusations. He was tried by his accusers and unsurprisingly
convicted. Life has continued as usual. That is the state of
International law and relations in our times. French navy obliterated
the Rainbow Warrior in 1985 for opposing French rights to test nuclear
weapons thousands of miles away from France but very close to other
peoples.
2. Does it mean that coastal states can take unilateral action
on any ships in their EEZ for security reasons (apart from illegal
fishing, oil pollution etc)?
In an ideal world states will reserve such actions to the very
most deserving cases in relation to acts that occur in their contiguous
zone which is the maritime area outside the 12 nautical mile territorial
sea. The contiguous zone is the next 12 miles outside this territory
which was sett up under the UN Convention on the law of the sea to
exercise the control necessary to: (a) prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its
territory or territorial sea; (b) punish infringement of the above laws
and regulations committed within its territory or territorial sea. The
contiguous zone may not extend beyond 24 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
Actions like the one described cannot be justified under this provision
but of course we must listen carefully to Israeli justifications perhaps
under elaborate constructions of the right to self defence under
customary international law.
(3) Is it possible the incidents to be referred before the
ITLOS/ ICJ?
My personal view is that unless some adjacent or opposite state
is alleging infringement on its territorial integrity there can be no
hope of an ITLOS claim. The ICJ is a wonderful court (it is actually
situated in a place called the Peace Palace -lovely gardens) and has
proven very useful in international relations but its Statute does not
allow it to entertain claims from individuals, groups, NGOs or any other
organisations under its contentious jurisdiction (See Article 34 (1)
"Only states may be parties in cases before the Court." ). We are thus
left with the possibility that any state or maybe even two or more
states may choose to proceed against Israel on behalf of affected
nationals. This is possible but maybe not probable. Israel does have
many friends and considerable influence.
There is however the possibility that an advisory opinion may be
requested from the Court (Article 65 (1) "The Court may give an advisory
opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to
make such a request"). Apart from the limited value of an opinion in
that it cannot be used to order reparations/compensation/injunction (to
prevent further incidents) it does appear that the state of Israel does
not have any particular liking for ICJ Advisory Opinions. Its attitude
after one such advice in the case ("Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory: Advisory
Opinion) was that the Court should keep its opinion to itself. Life for
the wall has continued as usual, unperturbed by the small incident of an
ICJ opinion.
4. How International community can respond on these incidents?
Now this is a crucial enquiry and one that needs serious answers
much more than I can give in this short missive. The question is simply
asking what can be done to end the Middle East Crisis. Entire libraries
have been filled with books on this question. American senators and
presidents have been made and unmade in response to this question.
Indeed the entire framework of modern terrorism and the war against
terrorism is connected to this question. Ultimately it boils down to
political will and moral courage of Israeli leaders and people,
Palestinian leaders and people, American/British/European leaders and
people. The problem may be big but it is not bigger than our collective
imagination. I suppose one can recommend that whatever the international
community did to bring an end to slavery and to the erstwhile Apartheid
South African regime and philosophy will be a good start. In the nature
of things this problem now concerns all and it must be decided by all.
Perhaps the General Assembly of the UN rather than a few selected powers
ought to be brought onboard to fashion out an answer in the INTEREST OF
ALL. One thing I must say is that I have absolutely no doubt that this
problem will be resolved within my lifetime. Its the last of the big
ones and it will go the way of the rest by being resolved peacefully.
Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.
Phone:
Switchboard 0044 (0)1227 764000 (ext 4817)
Direct Line 0044 (0)1227 824817
Fax: 0044 (0) 1227 827831
Email: [log in to unmask]
<[log in to unmask]" target="_blank">http:[log in to unmask]>
http://www.kent.ac.uk/law/people/index.htm
________________________________
From: International boundaries discussion list
[[log in to unmask]] On Behalf Of hamzah ishak
[[log in to unmask]]
Sent: Wednesday, June 02, 2010 2:36 PM
To: [log in to unmask]
Subject: [INT-BOUNDARIES] Israel commandos raided the ships in
international waters
Dear all,
" Israeli commandos on 30th of May stormed six ships carrying hundreds
of pro-Palestinian activists on an aid mission to the blockaded Gaza
Strip, killing at least 10 people and wounding dozens after encountering
unexpected resistance as the forces boarded the vessels. Israeli naval
commandos raided the ships while they were in international waters after
ordering them to stop about 80 miles off Gaza's coast" I presumed that
international waters refers to maritime area beyond territorial sea.
I'm wondering
1.Does Israel commandos have right to board the vessels beyond its
territorial sea?
2. Does it mean that coastal states can take unilateral action on any
ships in their EEZ for security reasons (apart from illegal fishing, oil
pollution etc)?
3. Is it possible the incidents to be referred before the ITLOS/ ICJ?
4. What International community can respond on this incidents?
Thanks
Hamzah
___________________________________________________________________________
This e-mail message is for the sole use of the intended recipient(s)
and may contain confidential and privileged information. Any unauthorized
review, use, disclosure or distribution is prohibited. If you are not the
intended recipient, please contact the sender by reply e-mail and destroy
all copies of the original message. Thank you. Farella Braun + Martel LLP
------------------------------
Date: Fri, 4 Jun 2010 11:45:48 +0300
From: Funda KESKIN <[log in to unmask]>
Subject: Re: piracy
MessageIt is true that any state can intercept pirate ships when this ship was at the high seas. Nevertheless, the term of "piracy" has a special meaning in the law of the sea which can be found at Art. 101 of 1982 UNCLOS. It is not used in the ordinary meaning of the word. Certainly this term does not permit the coastal state to call any ship it does not want to accept into its ports as "pirate". Of course coastal state can say that, but it would not be acceptable under Art. 101 of UNCLOS. What a coastal state can do when it does not want to let a certain ship to enter into its ports? Coastal states can close their ports to a certain ship carrying a foreign flag due to several reasons and some of them are quite legitimate. But it cannot intervene such a ship when it was still at the high seas. Since the thread about Israeli boarding was closed by the listowner I don't want to go into that. It is suffice to say that during an armed conflict, occupation or state of war rules are changed and different from the time of peace.
Funda Keskin
----- Original Message -----
From: [log in to unmask]
To: [log in to unmask]
Sent: Friday, June 04, 2010 11:05 AM
Subject: Re: [INT-BOUNDARIES] Fw: Re: Israel commandos raided the ships in international waters
Responding only to the message just below re Somali piracy (discussion of the Israeli boarding of the blockade runners having been closed by the Listowner), I think a pirate can be stopped, boarded and seized anywhere by the warships of any state, and the pirates tried anywhere. I raise the additional example of the interception of ships carrying prohibited nuclear material. I understand that suspected North Korean ships, for example, could only be stopped approaching port, but ports could be closed to them contrary to the usual practice of allowing non-belligerent merchant ships to enter any port. Do I have that right? Is there not some provision, going back to anti-slavery days, allowing interception of contraband (like slaves or nuclear weapons) on the high seas?
David Phillips
San Francisco
-----Original Message-----
From: International boundaries discussion list [mailto:[log in to unmask]] On Behalf Of Lisa Magloff
Sent: Wednesday, June 02, 2010 11:55 AM
To: [log in to unmask]
Subject: Re: Fw: Re: Israel commandos raided the ships in international waters
Thanks Marian, that is very thorough and most helpful. I'm curious as well as to how some of these issues may overlap with those of interdicting and intercepting ships that may be engaged in piracy off the coast of Somalia. While that is a different issue, it seems that some of the same principles may be applicable. I wonder if anyone has given any thought to this issue.
Lisa
On 2 Jun 2010, at 19:45, Marian Houk wrote:
Dear Professor and colleagues,
\I have just come across this additional argumentation from the Ramallah-based
Right to Enter Campaign:
It should be remembered that this latest incident happened in international waters and under article 3 of the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988, it is an international crime for any person to seize or exercise control over a ship by force, and also a crime to injure or kill any person in the process. When such acts are carried out by states or under their sponsorship, they constitute acts of war against the state under whose flag the ship is sailing.
--- On Wed, 6/2/10, Marian Houk <[log in to unmask]> wrote:
From: Marian Houk <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international waters
To: "Gbenga Oduntan" <[log in to unmask]>
Date: Wednesday, June 2, 2010, 8:53 PM
Dear Professor Oduntan, Dear Hamzah,
While I fully share in the grief and shock that followed the forceful Israeli naval interdiction
of the Freedom Flotilla in "international" waters of the eastern Mediterranean on
Monday morning, may I note a few additional facts:
(1) Israel has, in the wake of this event, apparently rediscovered international law. The Israeli Ministry of Foreign Affairs has developed a "legal background" paper justifiying its maritime blockade of Gaza -- in which it now argues that "Maritime blockades are a legitimate and recognized measure under international law". It does not refer to the International Convention on the Law of the Sea. However, this paper states that "Under international maritime law, when a maritime blockade is in effect, no boats can enter the blockaded area. That includes both civilian and enemy vessels. A state may take action to enforce a blockade. Any vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law. The US Commander's Handbook on the Law of Naval Operations sets forth that a vessel is considered to be in attempt to breach a blockade from the time the vessel leaves its port with the intention of evading the blockade. Here we should note that the protesters indicated their clear intention to violate the blockade by means of written and oral statements ... Given the protesters explicit intention to violate the naval blockade, Israel exercised its right under international law to enforce the blockade ... Given the large number of vessels participating in the flotilla, an operational decision was made to undertake measures to enforce the blockade a certain distance from the area of the blockade". This "legal background" paper, entitled "The Gaza Flotilla and the maritime blockade of Gaza", was published on Monday on the Israeli MFA website, here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Gaza_flotilla_maritime_blockade_Gaza-Legal_background_31-May-2010
[The presentation of this "legal background paper" followed a pre-attack position presention argued along similar lines (without the end-game details) by an Israeli MFA legal expert in maritime and humanitarian law, which is posted here: http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Legal_aspects_Gaza_aid_26-May-2010.htm]
(2) Though the Israeli declaration of its naval blockade of Gaza's maritime space was announced when it was declared on 3-4 January 2009, as it launched the ground phase of its unprecendented Operation Cast Lead in Gaza, it took some searching to discover where it was published. Finally, I was lead to this Notice to Mariners, published as a Notice to Mariners on 6 January 2009 (it is now on the website of the Israeli Ministry of Transport) three days after the blockade of Gaza's maritime space was announced:
NO. 1/2009 Blockade of Gaza Strip
Tuesday, 06 January 2009 00:00
1. Subject: Blockade of Gaza Strip
2. Source : Israeli Navy
All mariners are advised that as of 03 January 2009, 1700 UTC, Gaza maritime area is closed to all maritime trafic and is under blockade imposed by Israeli Navy until further notice.
Maritime Gaza area is enclosed by the following coordinates:
31 35.71 N 34 29.46 E
31 46.80 N 34 10.01 E
31 19.39 N 34 13.11 E
31 33.73 N 33 56.68 E
http://info.mot.gov.il/EN/index.php?option=com_content&view=article&id=124:no12009&catid=17:noticetomariners&Itemid=12
[n.b. - no further notice has yet been published...]
Prior statements from IDF commanders indicated that the announced Israeli naval blockade affected Gaza's maritime space to a distance of some 20 km out to sea -- that is the area defined in a map appended to the Oslo Accords as a zone for fishing and economic activity. The Oslo map, signed in 1994, is posted on the Israeli Ministry of Foreign Affairs website, here:
http://www.mfa.gov.il/NR/rdonlyres/0D80237A-9B99-42D4-8BA0-FB8627593661/0/MFAG003p0.gif
Reports from on board the largest ship in the Freedom Flotilla indicated, just before its interdiction at sea, that Israel had suddenly enlarged its maritime zone (from 20 miles to what was variously reported as 40 miles, 60 miles, or 68 miles), as I noted here:\
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-maritime-no-go-zone\
(3) There is a surprising new development, that appears to have taken place in 2010:
Israel claims a 12 mile territorial sea, but a footnote on Her Majesty's Government's register of National Claims to Maritime Jurisdiction indicates a very new proviso -- footnote 17 indicates that Israel's claim is "reduced to 3M off Gaza", a fact which I discovered here:
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-maritime-no-go-zone
(4) A bit of what is mentioned above, and much more, is discussed at length by Craig Murray, who I believe participated in the Law of the Sea deliberations, and various commentators on his position, here:
http://www.craigmurray.org.uk/archives/2010/05/the_legal_posit.html)
In this, Murray argues on the basis of UNLOSC that "Because the incident took place on the high seas does not mean however that international law is the only applicable law. The Law of the Sea is quite plain that, when an incident takes place on a ship on the high seas (outside anybody's territorial waters) the applicable law is that of the flag state of the ship on which the incident occurred. In legal terms, the Turkish ship was Turkish territory".
The commentators debate articles from the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. and note the US COMMANDER'S HANDBOOK
ON THE LAW OF NAVAL OPERATIONS, as well as the Oslo Accord's "Gaza-Jericho Agremeent Annex I, Article XI [Security Along the Coastline and in the Sea of Gaza] of 4 May 1994, here:
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Gaza-Jericho+Agremeent+Annex+I.htm
This says
"The sea off the coast of the Gaza Strip will be divided into three Maritime Activity Zones, K, L, and M as shown on map No. 6 attached to this Agreement, and as detailed below:
1.. Zones K and M
1.. Zone K extends to 20 nautical miles in the sea from the coast in the northern part of the sea of Gaza and 1.5 nautical miles wide southwards.
2.. Zone M extends to 20 nautical miles in the sea from the coast, and one (1) nautical mile wide from the Egyptian waters.
3.. Subject to the provisions of this paragraph, Zones K and M will be closed areas, in which navigation will be restricted to activity of the Israel Navy.
2.. Zone L
1.. Zone L bounded to the south by Zone M and to the north by Zone K extends 20 nautical miles into the sea from the coast.
2.. Zone L will be open for fishing, recreation and economic activities ... Fishing boats will not exit Zone L into the open sea ... Recreational boats will be permitted to sail up to a distance of 3 nautical miles from the coast unless, in special cases, otherwise agreed ... Foreign vessels entering Zone L will not approach closer than 12 nautical miles from the coast except as regards activities covered in paragraph 4 below: {4} As part of Israel's responsibilities for safety and security within the three Maritime Activity Zones, Israel Navy vessels may sail throughout these zones, as necessary and without limitations, and may take any measures necessary against vessels suspected of being used for terrorist activities or for smuggling arms, ammunition, drugs, goods, or for any other illegal activity. The Palestinian Police will be notified of such actions ...
(5} {I think I read recently that Panamanian ex-President Manuel Noriega was released from U.S. jail and immediately extradited to France on 26 April of this year, where he was faces charges of money laundering ...}
Regards,
Marian Houk
--- On Wed, 6/2/10, Gbenga Oduntan <[log in to unmask]> wrote:
From: Gbenga Oduntan <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international waters
To: [log in to unmask]
Date: Wednesday, June 2, 2010, 7:06 PM
Dear Hamzah,
I have to hazard the following positions to your thought provoking questions.
.
(1) 1. Do Israel commandos have right to board the vessels beyond its territorial sea?
International Law and the Israeli State do not cohabit happily together. Perhaps by that I mean Israel does not do international law. It has consistently made this clear over the past many decades. So what Israeli commandos can do and cannot do has nothing to do with international law. They have struck all around the world with absolutely no care at all about international law but only with full respect to Israel's national interests. It does not matter whether it is hotel rooms in Dubai or civilian ships in any ocean of the world. They have struck at Entebbe airport, Egyptian ports and indeed no where is off limit. I am sure others can supply other spectacular examples. If I may be very imaginative I will say they may strike at the White House if this is absolutely needed and in their national interest. I hope my pessimism in this area clear. But I must add many 'respectable' states do share this attribute as well. As we speak there is a Panaman president languishing in US prison. He was picked up as a sitting president in a spectacular commando attack for drug trafficking among other accusations. He was tried by his accusers and unsurprisingly convicted. Life has continued as usual. That is the state of International law and relations in our times. French navy obliterated the Rainbow Warrior in 1985 for opposing French rights to test nuclear weapons thousands of miles away from France but very close to other peoples.
2. Does it mean that coastal states can take unilateral action on any ships in their EEZ for security reasons (apart from illegal fishing, oil pollution etc)?
In an ideal world states will reserve such actions to the very most deserving cases in relation to acts that occur in their contiguous zone which is the maritime area outside the 12 nautical mile territorial sea. The contiguous zone is the next 12 miles outside this territory which was sett up under the UN Convention on the law of the sea to exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Actions like the one described cannot be justified under this provision but of course we must listen carefully to Israeli justifications perhaps under elaborate constructions of the right to self defence under customary international law.
(3) Is it possible the incidents to be referred before the ITLOS/ ICJ?
My personal view is that unless some adjacent or opposite state is alleging infringement on its territorial integrity there can be no hope of an ITLOS claim. The ICJ is a wonderful court (it is actually situated in a place called the Peace Palace -lovely gardens) and has proven very useful in international relations but its Statute does not allow it to entertain claims from individuals, groups, NGOs or any other organisations under its contentious jurisdiction (See Article 34 (1) "Only states may be parties in cases before the Court." ). We are thus left with the possibility that any state or maybe even two or more states may choose to proceed against Israel on behalf of affected nationals. This is possible but maybe not probable. Israel does have many friends and considerable influence.
There is however the possibility that an advisory opinion may be requested from the Court (Article 65 (1) "The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request"). Apart from the limited value of an opinion in that it cannot be used to order reparations/compensation/injunction (to prevent further incidents) it does appear that the state of Israel does not have any particular liking for ICJ Advisory Opinions. Its attitude after one such advice in the case ("Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion) was that the Court should keep its opinion to itself. Life for the wall has continued as usual, unperturbed by the small incident of an ICJ opinion.
4. How International community can respond on these incidents?
Now this is a crucial enquiry and one that needs serious answers much more than I can give in this short missive. The question is simply asking what can be done to end the Middle East Crisis. Entire libraries have been filled with books on this question. American senators and presidents have been made and unmade in response to this question. Indeed the entire framework of modern terrorism and the war against terrorism is connected to this question. Ultimately it boils down to political will and moral courage of Israeli leaders and people, Palestinian leaders and people, American/British/European leaders and people. The problem may be big but it is not bigger than our collective imagination. I suppose one can recommend that whatever the international community did to bring an end to slavery and to the erstwhile Apartheid South African regime and philosophy will be a good start. In the nature of things this problem now concerns all and it must be decided by all. Perhaps the General Assembly of the UN rather than a few selected powers ought to be brought onboard to fashion out an answer in the INTEREST OF ALL. One thing I must say is that I have absolutely no doubt that this problem will be resolved within my lifetime. Its the last of the big ones and it will go the way of the rest by being resolved peacefully.
Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.
Phone:
Switchboard 0044 (0)1227 764000 (ext 4817)
Direct Line 0044 (0)1227 824817
Fax: 0044 (0) 1227 827831
Email: [log in to unmask]
http://www.kent.ac.uk/law/people/index.htm
----------------------------------------------------------
From: International boundaries discussion list [[log in to unmask]] On Behalf Of hamzah ishak [[log in to unmask]]
Sent: Wednesday, June 02, 2010 2:36 PM
To: [log in to unmask]
Subject: [INT-BOUNDARIES] Israel commandos raided the ships in international waters
Dear all,
" Israeli commandos on 30th of May stormed six ships carrying hundreds of pro-Palestinian activists on an aid mission to the blockaded Gaza Strip, killing at least 10 people and wounding dozens after encountering unexpected resistance as the forces boarded the vessels. Israeli naval commandos raided the ships while they were in international waters after ordering them to stop about 80 miles off Gaza's coast" I presumed that international waters refers to maritime area beyond territorial sea. I'm wondering
1.Does Israel commandos have right to board the vessels beyond its territorial sea?
2. Does it mean that coastal states can take unilateral action on any ships in their EEZ for security reasons (apart from illegal fishing, oil pollution etc)?
3. Is it possible the incidents to be referred before the ITLOS/ ICJ?
4. What International community can respond on this incidents?
Thanks
Hamzah
_________________________________________________________________________
This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Thank you.
Farella Braun + Martel LLP
------------------------------
Date: Fri, 4 Jun 2010 09:38:11 -0700
From: "Boulton, John (Warwick) (CIV)" <[log in to unmask]>
Subject: Re: piracy
There is also the private ends/ public ends criterion. The flotilla
cruise was obviously motivated by public ends and its activities do no
conform to Coke's definition of piracy as "robbery on the high seas".
Captain Galvao and the Santa Maria provide a precedent for this
discussion.
It also occurs to me that seizing the ships beyond the territorial sea
but within the EEZ may be a another example of the "creeping
territorialization" of the EEZ.
Warwick Boulton
Associate Professor of National Security Decision Making
Naval War College Monterey Program
Halligan Hall Room # 253
699 Dyer Road
US Naval Postgraduate School
Monterey, CA 93943-5219
Phone: 831 656 3280
Cell: 831 539 5840
Fax: 831 656 7637
________________________________
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Funda KESKIN
Sent: Friday, June 04, 2010 1:46 AM
To: [log in to unmask]
Subject: Re: piracy
It is true that any state can intercept pirate ships when this ship was
at the high seas. Nevertheless, the term of "piracy" has a special
meaning in the law of the sea which can be found at Art. 101 of 1982
UNCLOS. It is not used in the ordinary meaning of the word. Certainly
this term does not permit the coastal state to call any ship it does not
want to accept into its ports as "pirate". Of course coastal state can
say that, but it would not be acceptable under Art. 101 of UNCLOS. What
a coastal state can do when it does not want to let a certain ship to
enter into its ports? Coastal states can close their ports to a certain
ship carrying a foreign flag due to several reasons and some of them are
quite legitimate. But it cannot intervene such a ship when it was still
at the high seas. Since the thread about Israeli boarding was closed by
the listowner I don't want to go into that. It is suffice to say that
during an armed conflict, occupation or state of war rules are changed
and different from the time of peace.
Funda Keskin
----- Original Message -----
From: [log in to unmask]
To: [log in to unmask]
Sent: Friday, June 04, 2010 11:05 AM
Subject: Re: [INT-BOUNDARIES] Fw: Re: Israel commandos raided
the ships in international waters
Responding only to the message just below re Somali piracy
(discussion of the Israeli boarding of the blockade runners having been
closed by the Listowner), I think a pirate can be stopped, boarded and
seized anywhere by the warships of any state, and the pirates tried
anywhere. I raise the additional example of the interception of ships
carrying prohibited nuclear material. I understand that suspected North
Korean ships, for example, could only be stopped approaching port, but
ports could be closed to them contrary to the usual practice of allowing
non-belligerent merchant ships to enter any port. Do I have that right?
Is there not some provision, going back to anti-slavery days, allowing
interception of contraband (like slaves or nuclear weapons) on the high
seas?
David Phillips
San Francisco
-----Original Message-----
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Lisa Magloff
Sent: Wednesday, June 02, 2010 11:55 AM
To: [log in to unmask]
Subject: Re: Fw: Re: Israel commandos raided the ships in
international waters
Thanks Marian, that is very thorough and most helpful.
I'm curious as well as to how some of these issues may overlap with
those of interdicting and intercepting ships that may be engaged in
piracy off the coast of Somalia. While that is a different issue, it
seems that some of the same principles may be applicable. I wonder if
anyone has given any thought to this issue.
Lisa
On 2 Jun 2010, at 19:45, Marian Houk wrote:
Dear Professor and colleagues,
\I have just come across this additional argumentation from the
Ramallah-based
Right to Enter Campaign:
It should be remembered that this latest incident happened in
international waters and under article 3 of the Rome Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation
of 1988, it is an international crime for any person to seize or
exercise control over a ship by force, and also a crime to injure or
kill any person in the process. When such acts are carried out by states
or under their sponsorship, they constitute acts of war against the
state under whose flag the ship is sailing.
--- On Wed, 6/2/10, Marian Houk <[log in to unmask]> wrote:
From: Marian Houk <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international
waters
To: "Gbenga Oduntan" <[log in to unmask]>
Date: Wednesday, June 2, 2010, 8:53 PM
Dear Professor Oduntan, Dear Hamzah,
While I fully share in the grief and shock that followed the forceful
Israeli naval interdiction
of the Freedom Flotilla in "international" waters of the eastern
Mediterranean on
Monday morning, may I note a few additional facts:
(1) Israel has, in the wake of this event, apparently rediscovered
international law. The Israeli Ministry of Foreign Affairs has developed
a "legal background" paper justifiying its maritime blockade of Gaza --
in which it now argues that "Maritime blockades are a legitimate and
recognized measure under international law". It does not refer to the
International Convention on the Law of the Sea. However, this paper
states that "Under international maritime law, when a maritime blockade
is in effect, no boats can enter the blockaded area. That includes both
civilian and enemy vessels. A state may take action to enforce a
blockade. Any vessel that violates or attempts to violate a maritime
blockade may be captured or even attacked under international law. The
US Commander's Handbook on the Law of Naval Operations sets forth that a
vessel is considered to be in attempt to breach a blockade from the time
the vessel leaves its port with the intention of evading the blockade.
Here we should note that the protesters indicated their clear intention
to violate the blockade by means of written and oral statements ...
Given the protesters explicit intention to violate the naval blockade,
Israel exercised its right under international law to enforce the
blockade ... Given the large number of vessels participating in the
flotilla, an operational decision was made to undertake measures to
enforce the blockade a certain distance from the area of the blockade".
This "legal background" paper, entitled "The Gaza Flotilla and the
maritime blockade of Gaza", was published on Monday on the Israeli MFA
website, here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Gaza_f
lotilla_maritime_blockade_Gaza-Legal_background_31-May-2010
[The presentation of this "legal background paper" followed a pre-attack
position presention argued along similar lines (without the end-game
details) by an Israeli MFA legal expert in maritime and humanitarian
law, which is posted here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Legal_
aspects_Gaza_aid_26-May-2010.htm]
(2) Though the Israeli declaration of its naval blockade of Gaza's
maritime space was announced when it was declared on 3-4 January 2009,
as it launched the ground phase of its unprecendented Operation Cast
Lead in Gaza, it took some searching to discover where it was published.
Finally, I was lead to this Notice to Mariners, published as a Notice to
Mariners on 6 January 2009 (it is now on the website of the Israeli
Ministry of Transport) three days after the blockade of Gaza's maritime
space was announced:
NO. 1/2009 Blockade of Gaza Strip
Tuesday, 06 January 2009 00:00
1. Subject: Blockade of Gaza Strip
2. Source : Israeli Navy
All mariners are advised that as of 03 January 2009, 1700 UTC, Gaza
maritime area is closed to all maritime trafic and is under blockade
imposed by Israeli Navy until further notice.
Maritime Gaza area is enclosed by the following coordinates:
31 35.71 N 34 29.46 E
31 46.80 N 34 10.01 E
31 19.39 N 34 13.11 E
31 33.73 N 33 56.68 E
http://info.mot.gov.il/EN/index.php?option=com_content&view=article&id=1
24:no12009&catid=17:noticetomariners&Itemid=12
[n.b. - no further notice has yet been published...]
Prior statements from IDF commanders indicated that the announced
Israeli naval blockade affected Gaza's maritime space to a distance of
some 20 km out to sea -- that is the area defined in a map appended to
the Oslo Accords as a zone for fishing and economic activity. The Oslo
map, signed in 1994, is posted on the Israeli Ministry of Foreign
Affairs website, here:
http://www.mfa.gov.il/NR/rdonlyres/0D80237A-9B99-42D4-8BA0-FB8627593661/
0/MFAG003p0.gif
Reports from on board the largest ship in the Freedom Flotilla
indicated, just before its interdiction at sea, that Israel had suddenly
enlarged its maritime zone (from 20 miles to what was variously reported
as 40 miles, 60 miles, or 68 miles), as I noted here:\
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mari
time-no-go-zone\
<http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mar
itime-no-go-zone/>
(3) There is a surprising new development, that appears to have taken
place in 2010:
Israel claims a 12 mile territorial sea, but a footnote on Her Majesty's
Government's register of National Claims to Maritime Jurisdiction
indicates a very new proviso -- footnote 17 indicates that Israel's
claim is "reduced to 3M off Gaza", a fact which I discovered here:
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mari
time-no-go-zone
(4) A bit of what is mentioned above, and much more, is discussed at
length by Craig Murray, who I believe participated in the Law of the Sea
deliberations, and various commentators on his position, here:
http://www.craigmurray.org.uk/archives/2010/05/the_legal_posit.html)
In this, Murray argues on the basis of UNLOSC that "Because the incident
took place on the high seas does not mean however that international law
is the only applicable law. The Law of the Sea is quite plain that, when
an incident takes place on a ship on the high seas (outside anybody's
territorial waters) the applicable law is that of the flag state of the
ship on which the incident occurred. In legal terms, the Turkish ship
was Turkish territory".
The commentators debate articles from the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea. and note the US
COMMANDER'S HANDBOOK
ON THE LAW OF NAVAL OPERATIONS, as well as the Oslo Accord's
"Gaza-Jericho Agremeent Annex I, Article XI [Security Along the
Coastline and in the Sea of Gaza] of 4 May 1994, here:
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Gaza-
Jericho+Agremeent+Annex+I.htm
This says
"The sea off the coast of the Gaza Strip will be divided into three
Maritime Activity Zones, K, L, and M as shown on map No. 6 attached to
this Agreement, and as detailed below:
1. Zones K and M
a. Zone K extends to 20 nautical miles in the sea from the
coast in the northern part of the sea of Gaza and 1.5 nautical miles
wide southwards.
b. Zone M extends to 20 nautical miles in the sea from the
coast, and one (1) nautical mile wide from the Egyptian waters.
c. Subject to the provisions of this paragraph, Zones K and
M will be closed areas, in which navigation will be restricted to
activity of the Israel Navy.
2. Zone L
a. Zone L bounded to the south by Zone M and to the north
by Zone K extends 20 nautical miles into the sea from the coast.
b. Zone L will be open for fishing, recreation and economic
activities ... Fishing boats will not exit Zone L into the open sea ...
Recreational boats will be permitted to sail up to a distance of 3
nautical miles from the coast unless, in special cases, otherwise agreed
... Foreign vessels entering Zone L will not approach closer than 12
nautical miles from the coast except as regards activities covered in
paragraph 4 below: {4} As part of Israel's responsibilities for safety
and security within the three Maritime Activity Zones, Israel Navy
vessels may sail throughout these zones, as necessary and without
limitations, and may take any measures necessary against vessels
suspected of being used for terrorist activities or for smuggling arms,
ammunition, drugs, goods, or for any other illegal activity. The
Palestinian Police will be notified of such actions ...
(5} {I think I read recently that Panamanian ex-President Manuel
Noriega was released from U.S. jail and immediately extradited to France
on 26 April of this year, where he was faces charges of money laundering
...}
Regards,
Marian Houk
--- On Wed, 6/2/10, Gbenga Oduntan <[log in to unmask]> wrote:
From: Gbenga Oduntan <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international
waters
To: [log in to unmask]
Date: Wednesday, June 2, 2010, 7:06 PM
Dear Hamzah,
I have to hazard the following positions to your thought
provoking questions.
.
(1) 1. Do Israel commandos have right to board the vessels
beyond its territorial sea?
International Law and the Israeli State do not cohabit happily
together. Perhaps by that I mean Israel does not do international law.
It has consistently made this clear over the past many decades. So what
Israeli commandos can do and cannot do has nothing to do with
international law. They have struck all around the world with absolutely
no care at all about international law but only with full respect to
Israel's national interests. It does not matter whether it is hotel
rooms in Dubai or civilian ships in any ocean of the world. They have
struck at Entebbe airport, Egyptian ports and indeed no where is off
limit. I am sure others can supply other spectacular examples. If I may
be very imaginative I will say they may strike at the White House if
this is absolutely needed and in their national interest. I hope my
pessimism in this area clear. But I must add many 'respectable' states
do share this attribute as well. As we speak there is a Panaman
president languishing in US prison. He was picked up as a sitting
president in a spectacular commando attack for drug trafficking among
other accusations. He was tried by his accusers and unsurprisingly
convicted. Life has continued as usual. That is the state of
International law and relations in our times. French navy obliterated
the Rainbow Warrior in 1985 for opposing French rights to test nuclear
weapons thousands of miles away from France but very close to other
peoples.
2. Does it mean that coastal states can take unilateral action
on any ships in their EEZ for security reasons (apart from illegal
fishing, oil pollution etc)?
In an ideal world states will reserve such actions to the very
most deserving cases in relation to acts that occur in their contiguous
zone which is the maritime area outside the 12 nautical mile territorial
sea. The contiguous zone is the next 12 miles outside this territory
which was sett up under the UN Convention on the law of the sea to
exercise the control necessary to: (a) prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its
territory or territorial sea; (b) punish infringement of the above laws
and regulations committed within its territory or territorial sea. The
contiguous zone may not extend beyond 24 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
Actions like the one described cannot be justified under this provision
but of course we must listen carefully to Israeli justifications perhaps
under elaborate constructions of the right to self defence under
customary international law.
(3) Is it possible the incidents to be referred before the
ITLOS/ ICJ?
My personal view is that unless some adjacent or opposite state
is alleging infringement on its territorial integrity there can be no
hope of an ITLOS claim. The ICJ is a wonderful court (it is actually
situated in a place called the Peace Palace -lovely gardens) and has
proven very useful in international relations but its Statute does not
allow it to entertain claims from individuals, groups, NGOs or any other
organisations under its contentious jurisdiction (See Article 34 (1)
"Only states may be parties in cases before the Court." ). We are thus
left with the possibility that any state or maybe even two or more
states may choose to proceed against Israel on behalf of affected
nationals. This is possible but maybe not probable. Israel does have
many friends and considerable influence.
There is however the possibility that an advisory opinion may be
requested from the Court (Article 65 (1) "The Court may give an advisory
opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to
make such a request"). Apart from the limited value of an opinion in
that it cannot be used to order reparations/compensation/injunction (to
prevent further incidents) it does appear that the state of Israel does
not have any particular liking for ICJ Advisory Opinions. Its attitude
after one such advice in the case ("Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory: Advisory
Opinion) was that the Court should keep its opinion to itself. Life for
the wall has continued as usual, unperturbed by the small incident of an
ICJ opinion.
4. How International community can respond on these incidents?
Now this is a crucial enquiry and one that needs serious answers
much more than I can give in this short missive. The question is simply
asking what can be done to end the Middle East Crisis. Entire libraries
have been filled with books on this question. American senators and
presidents have been made and unmade in response to this question.
Indeed the entire framework of modern terrorism and the war against
terrorism is connected to this question. Ultimately it boils down to
political will and moral courage of Israeli leaders and people,
Palestinian leaders and people, American/British/European leaders and
people. The problem may be big but it is not bigger than our collective
imagination. I suppose one can recommend that whatever the international
community did to bring an end to slavery and to the erstwhile Apartheid
South African regime and philosophy will be a good start. In the nature
of things this problem now concerns all and it must be decided by all.
Perhaps the General Assembly of the UN rather than a few selected powers
ought to be brought onboard to fashion out an answer in the INTEREST OF
ALL. One thing I must say is that I have absolutely no doubt that this
problem will be resolved within my lifetime. Its the last of the big
ones and it will go the way of the rest by being resolved peacefully.
Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.
Phone:
Switchboard 0044 (0)1227 764000 (ext 4817)
Direct Line 0044 (0)1227 824817
Fax: 0044 (0) 1227 827831
Email: [log in to unmask]
<[log in to unmask]" target="_blank">http:[log in to unmask]>
http://www.kent.ac.uk/law/people/index.htm
________________________________
From: International boundaries discussion list
[[log in to unmask]] On Behalf Of hamzah ishak
[[log in to unmask]]
Sent: Wednesday, June 02, 2010 2:36 PM
To: [log in to unmask]
Subject: [INT-BOUNDARIES] Israel commandos raided the ships in
international waters
Dear all,
" Israeli commandos on 30th of May stormed six ships carrying hundreds
of pro-Palestinian activists on an aid mission to the blockaded Gaza
Strip, killing at least 10 people and wounding dozens after encountering
unexpected resistance as the forces boarded the vessels. Israeli naval
commandos raided the ships while they were in international waters after
ordering them to stop about 80 miles off Gaza's coast" I presumed that
international waters refers to maritime area beyond territorial sea.
I'm wondering
1.Does Israel commandos have right to board the vessels beyond its
territorial sea?
2. Does it mean that coastal states can take unilateral action on any
ships in their EEZ for security reasons (apart from illegal fishing, oil
pollution etc)?
3. Is it possible the incidents to be referred before the ITLOS/ ICJ?
4. What International community can respond on this incidents?
Thanks
Hamzah
________________________________________________________________________
_
This e-mail message is for the sole use of the intended
recipient(s) and may contain confidential and privileged information.
Any unauthorized review, use, disclosure or distribution is prohibited.
If you are not the intended recipient, please contact the sender by
reply e-mail and destroy all copies of the original message. Thank you.
Farella Braun + Martel LLP
------------------------------
Date: Fri, 4 Jun 2010 10:03:32 -0700
From: [log in to unmask]
Subject: Re: piracy
I was not suggesting that the Gaza-bound flotilla were pirates. Of
course they were not, although there are other things they might have
been which would arguably qualify. But I was I was building on the post
raising the issue of Somali piracy, rather than attempting to reopen the
(appropriately closed) flotilla discussion.
-----Original Message-----
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Boulton, John
(Warwick) (CIV)
Sent: Friday, June 04, 2010 9:38 AM
To: [log in to unmask]
Subject: Re: piracy
There is also the private ends/ public ends criterion. The
flotilla cruise was obviously motivated by public ends and its
activities do no conform to Coke's definition of piracy as "robbery on
the high seas".
Captain Galvao and the Santa Maria provide a precedent for this
discussion.
It also occurs to me that seizing the ships beyond the
territorial sea but within the EEZ may be a another example of the
"creeping territorialization" of the EEZ.
Warwick Boulton
Associate Professor of National Security Decision Making
Naval War College Monterey Program
Halligan Hall Room # 253
699 Dyer Road
US Naval Postgraduate School
Monterey, CA 93943-5219
Phone: 831 656 3280
Cell: 831 539 5840
Fax: 831 656 7637
________________________________
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Funda KESKIN
Sent: Friday, June 04, 2010 1:46 AM
To: [log in to unmask]
Subject: Re: piracy
It is true that any state can intercept pirate ships when this
ship was at the high seas. Nevertheless, the term of "piracy" has a
special meaning in the law of the sea which can be found at Art. 101 of
1982 UNCLOS. It is not used in the ordinary meaning of the word.
Certainly this term does not permit the coastal state to call any ship
it does not want to accept into its ports as "pirate". Of course coastal
state can say that, but it would not be acceptable under Art. 101 of
UNCLOS. What a coastal state can do when it does not want to let a
certain ship to enter into its ports? Coastal states can close their
ports to a certain ship carrying a foreign flag due to several reasons
and some of them are quite legitimate. But it cannot intervene such a
ship when it was still at the high seas. Since the thread about Israeli
boarding was closed by the listowner I don't want to go into that. It is
suffice to say that during an armed conflict, occupation or state of war
rules are changed and different from the time of peace.
Funda Keskin
----- Original Message -----
From: [log in to unmask]
To: [log in to unmask]
Sent: Friday, June 04, 2010 11:05 AM
Subject: Re: [INT-BOUNDARIES] Fw: Re: Israel commandos
raided the ships in international waters
Responding only to the message just below re Somali
piracy (discussion of the Israeli boarding of the blockade runners
having been closed by the Listowner), I think a pirate can be stopped,
boarded and seized anywhere by the warships of any state, and the
pirates tried anywhere. I raise the additional example of the
interception of ships carrying prohibited nuclear material. I
understand that suspected North Korean ships, for example, could only be
stopped approaching port, but ports could be closed to them contrary to
the usual practice of allowing non-belligerent merchant ships to enter
any port. Do I have that right? Is there not some provision, going
back to anti-slavery days, allowing interception of contraband (like
slaves or nuclear weapons) on the high seas?
David Phillips
San Francisco
-----Original Message-----
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Lisa Magloff
Sent: Wednesday, June 02, 2010 11:55 AM
To: [log in to unmask]
Subject: Re: Fw: Re: Israel commandos raided the ships
in international waters
Thanks Marian, that is very thorough and most
helpful. I'm curious as well as to how some of these issues may overlap
with those of interdicting and intercepting ships that may be engaged in
piracy off the coast of Somalia. While that is a different issue, it
seems that some of the same principles may be applicable. I wonder if
anyone has given any thought to this issue.
Lisa
On 2 Jun 2010, at 19:45, Marian Houk wrote:
Dear Professor and colleagues,
\I have just come across this additional argumentation from the
Ramallah-based
Right to Enter Campaign:
It should be remembered that this latest incident happened in
international waters and under article 3 of the Rome Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation
of 1988, it is an international crime for any person to seize or
exercise control over a ship by force, and also a crime to injure or
kill any person in the process. When such acts are carried out by states
or under their sponsorship, they constitute acts of war against the
state under whose flag the ship is sailing.
--- On Wed, 6/2/10, Marian Houk <[log in to unmask]> wrote:
From: Marian Houk <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international
waters
To: "Gbenga Oduntan" <[log in to unmask]>
Date: Wednesday, June 2, 2010, 8:53 PM
Dear Professor Oduntan, Dear Hamzah,
While I fully share in the grief and shock that followed the forceful
Israeli naval interdiction
of the Freedom Flotilla in "international" waters of the eastern
Mediterranean on
Monday morning, may I note a few additional facts:
(1) Israel has, in the wake of this event, apparently rediscovered
international law. The Israeli Ministry of Foreign Affairs has developed
a "legal background" paper justifiying its maritime blockade of Gaza --
in which it now argues that "Maritime blockades are a legitimate and
recognized measure under international law". It does not refer to the
International Convention on the Law of the Sea. However, this paper
states that "Under international maritime law, when a maritime blockade
is in effect, no boats can enter the blockaded area. That includes both
civilian and enemy vessels. A state may take action to enforce a
blockade. Any vessel that violates or attempts to violate a maritime
blockade may be captured or even attacked under international law. The
US Commander's Handbook on the Law of Naval Operations sets forth that a
vessel is considered to be in attempt to breach a blockade from the time
the vessel leaves its port with the intention of evading the blockade.
Here we should note that the protesters indicated their clear intention
to violate the blockade by means of written and oral statements ...
Given the protesters explicit intention to violate the naval blockade,
Israel exercised its right under international law to enforce the
blockade ... Given the large number of vessels participating in the
flotilla, an operational decision was made to undertake measures to
enforce the blockade a certain distance from the area of the blockade".
This "legal background" paper, entitled "The Gaza Flotilla and the
maritime blockade of Gaza", was published on Monday on the Israeli MFA
website, here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Gaza_f
lotilla_maritime_blockade_Gaza-Legal_background_31-May-2010
[The presentation of this "legal background paper" followed a pre-attack
position presention argued along similar lines (without the end-game
details) by an Israeli MFA legal expert in maritime and humanitarian
law, which is posted here:
http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Legal_
aspects_Gaza_aid_26-May-2010.htm]
(2) Though the Israeli declaration of its naval blockade of Gaza's
maritime space was announced when it was declared on 3-4 January 2009,
as it launched the ground phase of its unprecendented Operation Cast
Lead in Gaza, it took some searching to discover where it was published.
Finally, I was lead to this Notice to Mariners, published as a Notice to
Mariners on 6 January 2009 (it is now on the website of the Israeli
Ministry of Transport) three days after the blockade of Gaza's maritime
space was announced:
NO. 1/2009 Blockade of Gaza Strip
Tuesday, 06 January 2009 00:00
1. Subject: Blockade of Gaza Strip
2. Source : Israeli Navy
All mariners are advised that as of 03 January 2009, 1700 UTC, Gaza
maritime area is closed to all maritime trafic and is under blockade
imposed by Israeli Navy until further notice.
Maritime Gaza area is enclosed by the following coordinates:
31 35.71 N 34 29.46 E
31 46.80 N 34 10.01 E
31 19.39 N 34 13.11 E
31 33.73 N 33 56.68 E
http://info.mot.gov.il/EN/index.php?option=com_content&view=article&id=1
24:no12009&catid=17:noticetomariners&Itemid=12
[n.b. - no further notice has yet been published...]
Prior statements from IDF commanders indicated that the announced
Israeli naval blockade affected Gaza's maritime space to a distance of
some 20 km out to sea -- that is the area defined in a map appended to
the Oslo Accords as a zone for fishing and economic activity. The Oslo
map, signed in 1994, is posted on the Israeli Ministry of Foreign
Affairs website, here:
http://www.mfa.gov.il/NR/rdonlyres/0D80237A-9B99-42D4-8BA0-FB8627593661/
0/MFAG003p0.gif
Reports from on board the largest ship in the Freedom Flotilla
indicated, just before its interdiction at sea, that Israel had suddenly
enlarged its maritime zone (from 20 miles to what was variously reported
as 40 miles, 60 miles, or 68 miles), as I noted here:\
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mari
time-no-go-zone\
<http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mar
itime-no-go-zone/>
(3) There is a surprising new development, that appears to have taken
place in 2010:
Israel claims a 12 mile territorial sea, but a footnote on Her Majesty's
Government's register of National Claims to Maritime Jurisdiction
indicates a very new proviso -- footnote 17 indicates that Israel's
claim is "reduced to 3M off Gaza", a fact which I discovered here:
http://un-truth.com/israel/report-from-flotilla-israel-has-extended-mari
time-no-go-zone
(4) A bit of what is mentioned above, and much more, is discussed at
length by Craig Murray, who I believe participated in the Law of the Sea
deliberations, and various commentators on his position, here:
http://www.craigmurray.org.uk/archives/2010/05/the_legal_posit.html)
In this, Murray argues on the basis of UNLOSC that "Because the incident
took place on the high seas does not mean however that international law
is the only applicable law. The Law of the Sea is quite plain that, when
an incident takes place on a ship on the high seas (outside anybody's
territorial waters) the applicable law is that of the flag state of the
ship on which the incident occurred. In legal terms, the Turkish ship
was Turkish territory".
The commentators debate articles from the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea. and note the US
COMMANDER'S HANDBOOK
ON THE LAW OF NAVAL OPERATIONS, as well as the Oslo Accord's
"Gaza-Jericho Agremeent Annex I, Article XI [Security Along the
Coastline and in the Sea of Gaza] of 4 May 1994, here:
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Gaza-
Jericho+Agremeent+Annex+I.htm
This says
"The sea off the coast of the Gaza Strip will be divided into three
Maritime Activity Zones, K, L, and M as shown on map No. 6 attached to
this Agreement, and as detailed below:
1. Zones K and M
a. Zone K extends to 20 nautical miles in the sea from the
coast in the northern part of the sea of Gaza and 1.5 nautical miles
wide southwards.
b. Zone M extends to 20 nautical miles in the sea from the
coast, and one (1) nautical mile wide from the Egyptian waters.
c. Subject to the provisions of this paragraph, Zones K and
M will be closed areas, in which navigation will be restricted to
activity of the Israel Navy.
2. Zone L
a. Zone L bounded to the south by Zone M and to the north
by Zone K extends 20 nautical miles into the sea from the coast.
b. Zone L will be open for fishing, recreation and economic
activities ... Fishing boats will not exit Zone L into the open sea ...
Recreational boats will be permitted to sail up to a distance of 3
nautical miles from the coast unless, in special cases, otherwise agreed
... Foreign vessels entering Zone L will not approach closer than 12
nautical miles from the coast except as regards activities covered in
paragraph 4 below: {4} As part of Israel's responsibilities for safety
and security within the three Maritime Activity Zones, Israel Navy
vessels may sail throughout these zones, as necessary and without
limitations, and may take any measures necessary against vessels
suspected of being used for terrorist activities or for smuggling arms,
ammunition, drugs, goods, or for any other illegal activity. The
Palestinian Police will be notified of such actions ...
(5} {I think I read recently that Panamanian ex-President Manuel
Noriega was released from U.S. jail and immediately extradited to France
on 26 April of this year, where he was faces charges of money laundering
...}
Regards,
Marian Houk
--- On Wed, 6/2/10, Gbenga Oduntan <[log in to unmask]> wrote:
From: Gbenga Oduntan <[log in to unmask]>
Subject: Re: Israel commandos raided the ships in international
waters
To: [log in to unmask]
Date: Wednesday, June 2, 2010, 7:06 PM
Dear Hamzah,
I have to hazard the following positions to your thought
provoking questions.
.
(1) 1. Do Israel commandos have right to board the vessels
beyond its territorial sea?
International Law and the Israeli State do not cohabit happily
together. Perhaps by that I mean Israel does not do international law.
It has consistently made this clear over the past many decades. So what
Israeli commandos can do and cannot do has nothing to do with
international law. They have struck all around the world with absolutely
no care at all about international law but only with full respect to
Israel's national interests. It does not matter whether it is hotel
rooms in Dubai or civilian ships in any ocean of the world. They have
struck at Entebbe airport, Egyptian ports and indeed no where is off
limit. I am sure others can supply other spectacular examples. If I may
be very imaginative I will say they may strike at the White House if
this is absolutely needed and in their national interest. I hope my
pessimism in this area clear. But I must add many 'respectable' states
do share this attribute as well. As we speak there is a Panaman
president languishing in US prison. He was picked up as a sitting
president in a spectacular commando attack for drug trafficking among
other accusations. He was tried by his accusers and unsurprisingly
convicted. Life has continued as usual. That is the state of
International law and relations in our times. French navy obliterated
the Rainbow Warrior in 1985 for opposing French rights to test nuclear
weapons thousands of miles away from France but very close to other
peoples.
2. Does it mean that coastal states can take unilateral action
on any ships in their EEZ for security reasons (apart from illegal
fishing, oil pollution etc)?
In an ideal world states will reserve such actions to the very
most deserving cases in relation to acts that occur in their contiguous
zone which is the maritime area outside the 12 nautical mile territorial
sea. The contiguous zone is the next 12 miles outside this territory
which was sett up under the UN Convention on the law of the sea to
exercise the control necessary to: (a) prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its
territory or territorial sea; (b) punish infringement of the above laws
and regulations committed within its territory or territorial sea. The
contiguous zone may not extend beyond 24 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
Actions like the one described cannot be justified under this provision
but of course we must listen carefully to Israeli justifications perhaps
under elaborate constructions of the right to self defence under
customary international law.
(3) Is it possible the incidents to be referred before the
ITLOS/ ICJ?
My personal view is that unless some adjacent or opposite state
is alleging infringement on its territorial integrity there can be no
hope of an ITLOS claim. The ICJ is a wonderful court (it is actually
situated in a place called the Peace Palace -lovely gardens) and has
proven very useful in international relations but its Statute does not
allow it to entertain claims from individuals, groups, NGOs or any other
organisations under its contentious jurisdiction (See Article 34 (1)
"Only states may be parties in cases before the Court." ). We are thus
left with the possibility that any state or maybe even two or more
states may choose to proceed against Israel on behalf of affected
nationals. This is possible but maybe not probable. Israel does have
many friends and considerable influence.
There is however the possibility that an advisory opinion may be
requested from the Court (Article 65 (1) "The Court may give an advisory
opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to
make such a request"). Apart from the limited value of an opinion in
that it cannot be used to order reparations/compensation/injunction (to
prevent further incidents) it does appear that the state of Israel does
not have any particular liking for ICJ Advisory Opinions. Its attitude
after one such advice in the case ("Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory: Advisory
Opinion) was that the Court should keep its opinion to itself. Life for
the wall has continued as usual, unperturbed by the small incident of an
ICJ opinion.
4. How International community can respond on these incidents?
Now this is a crucial enquiry and one that needs serious answers
much more than I can give in this short missive. The question is simply
asking what can be done to end the Middle East Crisis. Entire libraries
have been filled with books on this question. American senators and
presidents have been made and unmade in response to this question.
Indeed the entire framework of modern terrorism and the war against
terrorism is connected to this question. Ultimately it boils down to
political will and moral courage of Israeli leaders and people,
Palestinian leaders and people, American/British/European leaders and
people. The problem may be big but it is not bigger than our collective
imagination. I suppose one can recommend that whatever the international
community did to bring an end to slavery and to the erstwhile Apartheid
South African regime and philosophy will be a good start. In the nature
of things this problem now concerns all and it must be decided by all.
Perhaps the General Assembly of the UN rather than a few selected powers
ought to be brought onboard to fashion out an answer in the INTEREST OF
ALL. One thing I must say is that I have absolutely no doubt that this
problem will be resolved within my lifetime. Its the last of the big
ones and it will go the way of the rest by being resolved peacefully.
Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.
Phone:
Switchboard 0044 (0)1227 764000 (ext 4817)
Direct Line 0044 (0)1227 824817
Fax: 0044 (0) 1227 827831
Email: [log in to unmask]
<[log in to unmask]" target="_blank">http:[log in to unmask]>
http://www.kent.ac.uk/law/people/index.htm
________________________________
From: International boundaries discussion list
[[log in to unmask]] On Behalf Of hamzah ishak
[[log in to unmask]]
Sent: Wednesday, June 02, 2010 2:36 PM
To: [log in to unmask]
Subject: [INT-BOUNDARIES] Israel commandos raided the ships in
international waters
Dear all,
" Israeli commandos on 30th of May stormed six ships carrying hundreds
of pro-Palestinian activists on an aid mission to the blockaded Gaza
Strip, killing at least 10 people and wounding dozens after encountering
unexpected resistance as the forces boarded the vessels. Israeli naval
commandos raided the ships while they were in international waters after
ordering them to stop about 80 miles off Gaza's coast" I presumed that
international waters refers to maritime area beyond territorial sea.
I'm wondering
1.Does Israel commandos have right to board the vessels beyond its
territorial sea?
2. Does it mean that coastal states can take unilateral action on any
ships in their EEZ for security reasons (apart from illegal fishing, oil
pollution etc)?
3. Is it possible the incidents to be referred before the ITLOS/ ICJ?
4. What International community can respond on this incidents?
Thanks
Hamzah
________________________________________________________________________
_
This e-mail message is for the sole use of the intended
recipient(s) and may contain confidential and privileged information.
Any unauthorized review, use, disclosure or distribution is prohibited.
If you are not the intended recipient, please contact the sender by
reply e-mail and destroy all copies of the original message. Thank you.
Farella Braun + Martel LLP
------------------------------
End of INT-BOUNDARIES Digest - 3 Jun 2010 to 4 Jun 2010 (#2010-36)
******************************************************************
|
