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Legality of the Israeli raid

Hoplite

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I wanted to open a new thread on this as currently there multiple threads dealing with different aspects of the issue and frankly its difficult to keep up with that many threads on such a deep subject. For reference "international waters" and the "high seas" are one and the same.

First and foremost, facts.

1. The attack happened in international waters.
2. No firearms or other munitions were found on-board any ship.
3. Activists were shot and killed.
4. The flotilla was an announced convoy bringing humanitarian aid.

These are facts un-disputed by either side.

Now, was it legal or illegal according to international law for Israel to attempt to stop and search or seize the flotilla?

Territorial waters extend 12 miles outside the shoreline of a country whereby they may enforce any of their own laws. A further 12 mile limit was established by UNCLOS III in which a state could continue to enforce laws in four specific areas: pollution, taxation, customs, and immigration. The attack took place 40 miles offshore of Israel and was thus in international waters.

Under the San Remo Convention of 1994 , merchant vessels attempting to breach a blockade MAY be seized by the authority maintaing the blockade. However, convoys carrying humanitarian aid are not merchant ships.

Under Section 3
47. The following classes of enemy vessels are exempt from attack:
"(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;"

Now the problem is San Remo is generally used to dictate naval warfare between sovereign states, not the kind of situation that exists in Gaza and Hamas has not attacked Israeli vessels at sea (that I know of). However the language of San Remo is such that it can be applied to "armed parties at sea"


Another consideration is the United Nations Convention on the Law of the Sea.

Article 90 states that "No State may validly purport to subject any part of the high seas to its sovereignty." Which Israel did when it attempted to enforce it's own laws in international waters.

The flotilla falls under Article 19, Innocent Passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

  • any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
  • any exercise or practice with weapons of any kind;
  • any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
  • any act of propaganda aimed at affecting the defence or security of the coastal State;
  • the launching, landing or taking on board of any aircraft;
  • the launching, landing or taking on board of any military device;
  • the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
  • any act of wilful and serious pollution contrary to this Convention;
  • any fishing activities;
  • the carrying out of research or survey activities;
  • any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
  • any other activity not having a direct bearing on passage.

Article 45 forbids any restriction of innocent passage

1. The regime of innocent passage, in accordance with Part II, section 3 shall apply in straits used for international navigation:
excluded from the application of the regime of transit passage under article 38, paragraph 1; or
between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.
2. There shall be no suspension of innocent passage through such straits.


Under Article 25, Israel does have the right: "The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent." However that is only in TERRITORIAL waters, not international.


A further consideration is the UN International Maritime Organization Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, which Israel did sign and agree to abide by. This was updated in 2005 with the following:

"A new Article 8bis in the 2005 Protocol covers co-operation and procedures to be followed if a State Party desires to board a ship flying the flag of a State Party when the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be involved in, the commission of an offence under the Convention.

The authorization and co-operation of the flag State is required before such a boarding. A State Party may notify the IMO Secretary-General that it would allow authorization to board and search a ship flying its flag, its cargo and persons on board if there is no response from the flag State within four hours. A State Party can also notify that it authorizes a requesting Party to board and search the ship, its cargo and persons on board, and to question the persons on board to determine if an offence has been, or is about to be, committed."


There is also the Geneva Convention on the High Seas.

Here, again, Article 2 states "The high seas being open to all nations, no State may validly purport to
subject any part of them to its sovereignty." Which, again, Israel did by attempting to enforce it's law in international waters.


The move has also been condemned by countless foreign governments, human rights organizations, and the UN
Human Rights Council Continues Urgent Debate on Israeli Raid on Humanitarian Aid Flotilla - UNOG Press release (Excerpts) (2 June 2010)

There is also an overwhelming opinion of the legal community that this DOES violate international maritime law
Gaza flotilla raid - Wikipedia, the free encyclopedia


In summation, it does appear that Israel violated international law with this attack
 

Degreez

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Very nicely documented work Hoplite. One error though. Article 89 is the one that reads:
No State may validly purport to subject any part of the high seas to its sovereignty.
Article 90 is:
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
 

Degreez

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Here is more:

Article 110
Right of visit
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

1. the ship is engaged in piracy;
2. the ship is engaged in the slave trade;
3. the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
4. the ship is without nationality; or
5. though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.


2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.
 

spud_meister

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Under Section 3
47. The following classes of enemy vessels are exempt from attack:
"(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;"
would that definition apply to the gaza flotilla though, the supplies weren't necessary for the survival of the gaza population, and nor was it carrying out a relief or rescue operation.

and the ships in the flotilla also fit under the definition of merchant vessels

A merchant vessel is a ship that transports cargo and passengers during peace time
 

Degreez

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would that definition apply to the gaza flotilla though, the supplies weren't necessary for the survival of the gaza population, and nor was it carrying out a relief or rescue operation.

and the ships in the flotilla also fit under the definition of merchant vessels
Merchant vessels are described as vessels whose primary use is commercial. And last I checked, there hasn't been peace in Palestine-Israel for decades.
 

justabubba

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my speculation is, being without any other authority which might justfy this assault, israel will rely on the provisions of the proliferation security initiative (PSI) and insist that trumps other maritime agreements
those states which objected to the PSI appear to be prescient in their concerns:
Critics of PSI, such as China, Iran and the Democratic People's Republic of Korea, argue that the declared intent of PSI members to stop ships on the high seas is a violation of international law guaranteeing freedom of the seas. In particular, Article 23 of the UN Law of the Sea Convention allows ships "carrying nuclear or other inherently dangerous or noxious substances" the right of innocent passage through territorial seas. [8] Opponents have asserted that the PSI gives states a license to carry out acts of piracy on the high seas. [9]

It has also been pointed that the PSI's intent to "interdict nuclear materials and contraband" is A broad enough charter to include any naval operation anywhere and for any actual purpose Washington wants to employ it. There are concerns that such actions could lead to war. [10]
Proliferation Security Initiative - Wikipedia, the free encyclopedia
 

spud_meister

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Merchant vessels are described as vessels whose primary use is commercial. And last I checked, there hasn't been peace in Palestine-Israel for decades.
but nor is there a state of war, so thats a rather moot point
 

Degreez

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Even more:
Craig Murray

Craig Murray is a former British Ambassador. He is also a former Head of the Maritime Section of the Foreign and Commonwealth Office. He negotiated the UK's current maritime boundaries with Ireland, Denmark (Faeroes), Belgium and France, and boundaries of the Channel Islands, Turks and Caicos and British Virgin Islands. He was alternate Head of the UK Delegation to the UN Preparatory Commission on the Law of the Sea. He was Head of the FCO Section of the Embargo Surveillance Centre, enforcing sanctions on Iraq, and directly responsible for clearance of Royal Navy boarding operations in the Persian Gulf.

The Legal Position on the Israeli Attack

I think that anybody with any fairness is bound to admit that the statement William Hague came out with is much better than anything on Israel which New Labour ever came out with, especially this bit:

"This news underlines the need to lift the restrictions on access to Gaza, in line with UNSCR 1860. The closure is unacceptable and counter-productive. There can be no better response from the international community to this tragedy than to achieve urgently a durable resolution to the Gaza crisis.

I call on the Government of Israel to open the crossings to allow unfettered access for aid to Gaza, and address the serious concerns about the deterioration in the humanitarian and economic situation and about the effect on a generation of young Palestinians

‪."
Latest news

But as I told this afternoon's tremendous spontaneous demonstration on Whitehall, fine words are not enough and we must now see the kind of sanctions regime we saw against apartheid South Africa.

A word on the legal position, which is very plain. To attack a foreign flagged vessel in international waters is illegal. It is not piracy, as the Israeli vessels carried a military commission. It is rather an act of illegal warfare.

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.

There are therefore two clear legal possibilities.

Possibility one is that the Israeli commandos were acting on behalf of the government of Israel in killing the activists on the ships. In that case Israel is in a position of war with Turkey, and the act falls under international jurisdiction as a war crime.

Possibility two is that, if the killings were not authorised Israeli military action, they were acts of murder under Turkish jurisdiction. If Israel does not consider itself in a position of war with Turkey, then it must hand over the commandos involved for trial in Turkey under Turkish law.

In brief, if Israel and Turkey are not at war, then it is Turkish law which is applicable to what happened on the ship. It is for Turkey, not Israel, to carry out any inquiry or investigation into events and to initiate any prosecutions. Israel is obliged to hand over indicted personnel for prosecution.
 

Apocalypse

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Two points:

1) The San Remo Convention is the one Israel is referring to, and it states the following: A ship that is trying to run a blockade can be boarded and stopped on international waters if it was warned before it and if the blockade is enforced as part of an armed conflict.
Israel has followed this to its full extent during the boarding of the flotilla, hence nothing illegal.

2) The rest of your post is speaking about the United Nations Convention on the Law of the Sea. Frankly though, Israel is not a ****ing signatory on it, and so is Turkey if they really wish to complain, so its ruling is not even an Israeli concern.

Conclusively, there is no doubt that the boarding was done fully legally and in full accordance with international law. ;)
 

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Two points:

1) The San Remo Convention is the one Israel is referring to, and it states the following: A ship that is trying to run a blockade can be boarded and stopped on international waters if it was warned before it and if the blockade is enforced as part of an armed conflict.
Israel has followed this to its full extent during the boarding of the flotilla, hence nothing illegal.
First off, let's quote the section in question:

International Humanitarian Law - San Remo Manual 1994
SECTION V : NEUTRAL MERCHANT VESSELS AND CIVIL AIRCRAFT

Neutral merchant vessels

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;
(b) engage in belligerent acts on behalf of the enemy;
(c) act as auxiliaries to the enemy s armed forces;
(d) are incorporated into or assist the enemy s intelligence system;
(e) sail under convoy of enemy warships or military aircraft; or
(f) otherwise make an effective contribution to the enemy s military action, e.g., by carrying military materials, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

68. Any attack on these vessels is subject to the basic rules in paragraphs 38-46.

69. The mere fact that a neutral merchant vessel is armed provides no grounds for attacking it.
This section is clearly about merchant vessels, which operate commercially. If Israel wishes to invoke the San Remo Manual, it must first pay to attention to this earlier section of it:
SECTION III : ENEMY VESSELS AND AIRCRAFT EXEMPT FROM ATTACK

Classes of vessels exempt from attack

47. The following classes of enemy vessels are exempt from attack:

(a) hospital ships;
(b) small craft used for coastal rescue operations and other medical transports;
(c) vessels granted safe conduct by agreement between the belligerent parties including:
(i) cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war;
(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;
(d) vessels engaged in transporting cultural property under special protection;
(e) passenger vessels when engaged only in carrying civilian passengers;
(f) vessels charged with religious, non-military scientifc or philanthropic missions, vessels collecting scientific data of likely military applications are not protected;
(g) small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection;
(h) vessels designated or adapted exclusively for responding to pollution incidents in the marine environment;
(i) vessels which have surrendered;
(j) life rafts and life boats.

Conditions of exemption

48. Vessels listed in paragraph 47 are exempt from attack only if they:

(a) are innocently employed in their normal role;
(b) submit to identification and inspection when required; and
(c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.
In international waters, Israel does not have the jurisdiction to exercise authority. In territorial waters, Israel has all the authority to require a ship to be inspected/boarded. This is clear from the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (that Israel is a signatory to), which states that, in international waters, jurisdiction belongs to the State that is on the flag the ship is flying.


2) The rest of your post is speaking about the United Nations Convention on the Law of the Sea. Frankly though, Israel is not a ****ing signatory on it, and so is Turkey if they really wish to complain, so its ruling is not even an Israeli concern.
The United Nations Convention on the Laws of Sea is customary interntional law. If Israel is to invoke the San Remo, so can the passengers of the boat. Go read Articles 3-6 of the San Remo Manual again (if you ever read it).

While your at, take a look at the part about blockading:
102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.
First thing to note about this is 102b. I believe everyone... sorry everyone BUT Israel, knows that Gaza has been in a humanitarian crisis for quite some time now. The damage to the civilian population of Gaza is execessive in relation to the direct military advantage from the blockade.

Second thing is that this boat was inspected prior to setting sail by a (if Israel agrees it is currently in a state of armed conflict--for the San Remo to apply) Protecting Power.

Conclusively, there is no doubt that the boarding was done fully legally and in full accordance with international law. ;)
Conclusively we have just Apocalypse's opinion.
 
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Hoplite

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Two points:

1) The San Remo Convention is the one Israel is referring to, and it states the following: A ship that is trying to run a blockade can be boarded and stopped on international waters if it was warned before it and if the blockade is enforced as part of an armed conflict.
Israel has followed this to its full extent during the boarding of the flotilla, hence nothing illegal.
That applies to merchant ships, not aid ships. There is a distinct difference with regards to international maritime law.

2) The rest of your post is speaking about the United Nations Convention on the Law of the Sea. Frankly though, Israel is not a ****ing signatory on it, and so is Turkey if they really wish to complain, so its ruling is not even an Israeli concern.
Signatory on it or not, UNCLS is considered the spirit of the law on the high seas.
 

Apocalypse

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First off, let's quote the section in question:

International Humanitarian Law - San Remo Manual 1994


This section is clearly about merchant vessels, which operate commercially. If Israel wishes to invoke the San Remo Manual, it must first pay to attention to this earlier section of it:


In international waters, Israel does not have the jurisdiction to exercise authority. In territorial waters, Israel has all the authority to require a ship to be inspected/boarded. This is clear from the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (that Israel is a signatory to), which states that, in international waters, jurisdiction belongs to the State that is on the flag the ship is flying.
The document states that:

SECTION V : NEUTRAL MERCHANT VESSELS AND CIVIL AIRCRAFT

Neutral merchant vessels

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;
A merchant vessel is a vessel that is carrying both crew and cargo and its objective is to transfer the cargo from one location to the other.
Clearly the ships in the flotila fall in that definition.
When they were trying to run the blockade, they have given Israel the legitimization required to board and inspect their cargo on international waters.
The United Nations Convention on the Laws of Sea is customary interntional law. If Israel is to invoke the San Remo, so can the passengers of the boat. Go read Articles 3-6 of the San Remo Manual again (if you ever read it).
That's absolutely false. Section III (Section 3), the one you were quoting, is first of all stating that the ships can be "attacked" if they are not submitting to requests for inspection when required to.
Secondly that's irrelavent because Section V (Section 5) is stating that those vessels listed on Section 3 can and will be "attacked" if they are trying to run a blockade and ignore the warnings.
While your at, take a look at the part about blockading:


First thing to note about this is 102b. I believe everyone... sorry everyone BUT Israel, knows that Gaza has been in a humanitarian crisis for quite some time now. The damage to the civilian population of Gaza is execessive in relation to the direct military advantage from the blockade.
The damage done to the Gazan civilians by the Israeli-Egyptian blockade is not excessive to the damage done to Hamas.
Second thing is that this boat was inspected prior to setting sail by a (if Israel agrees it is currently in a state of armed conflict--for the San Remo to apply) Protecting Power.
How is that relavent? The Lybian boat filled with north korean nuclear technology that has headed to Iran and was stopped and boarded on international waters was after all inspected by Lybia was it not?
Conclusively we have just Apocalypse's opinion.
No, we have your opinion, and it is contradicted by facts.
 

Apocalypse

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That applies to merchant ships, not aid ships. There is a distinct difference with regards to international maritime law

Signatory on it or not, UNCLS is considered the spirit of the law on the high seas.
Hah, "signatory or not" is equal to saying "affected by the document or not".
 

Degreez

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The document states that:

A merchant vessel is a vessel that is carrying both crew and cargo and its objective is to transfer the cargo from one location to the other.
Clearly the ships in the flotila fall in that definition.
When they were trying to run the blockade, they have given Israel the legitimization required to board and inspect their cargo on international waters.
First off, Gaza has no merchant vessels that routinely go in and out of its coast. Second, here is the real definition of merchant vessel:
(i) merchant vessel means a vessel, other than a warship, an auxiliary vessel, or a State vessel such as a customs or police vessel, that is engaged in commercial or private service;
Third, go reread the earlier part of San Remo which states what classes of vessels are exempt from attack. I think the flotilla most closely falls in this classification:

(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;
You calling the flotilla merchant vessels is just a sneaky attempt at trying to dodge international law.
That's absolutely false. Section III (Section 3), the one you were quoting, is first of all stating that the ships can be "attacked" if they are submitting to requests for inspection when required to.
Secondly that's irrelavent because Section V (Section 5) is stating that those vessels listed on Section 3 can and will be "attacked" if they are trying to run a blockade and ignore the warnings.
SECTION II : ARMED CONFLICTS AND THE LAW OF SELF-DEFENCE

3. The exercise of the right of individual or collective self-defence recognized in Article 51 of the Charter of the United Nations is subject to the conditions and limitations laid down in the Charter, and arising from general international law, including in particular the principles of necessity and proportionality.

4. The principles of necessity and proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed conflict, required to repel an armed attack against it and to restore its security.

5. How far a State is justified in its military actions against the enemy will depend upon the intensity and scale of the armed attack for which the enemy is responsible and the gravity of the threat posed.

6. The rules set out in this document and any other rules of international humanitarian law shall apply equally to all parties to the conflict. The equal application of these rules to all parties to the conflict shall not be affected by the international responsibility that may have been incurred by any of them for the outbreak of the conflict.
The damage done to the Gazan civilians by the Israeli-Egyptian blockade is not excessive to the damage done to Hamas.
Says you. Rest of the world doesn't agree with you.
95. A blockade must be effective. The question whether a blockade is effective is a question of fact.
Has this blockade effectively stopped the capability of militants in Gaza to launch rockets and mortars? No, it has absolutely not.
How is that relavent? The Lybian boat filled with north korean nuclear technology that has headed to Iran and was stopped and boarded on international waters was after all inspected by Lybia was it not?
How is that analogous? How is a boat filled with North Korean nuclear technology that is headed to Iran even remotely comparable to a humanitarian ship carrying aid and nationals from dozens of countries to a place in a humanitarian crisis? First thing you should realize is North Korea has more sanctions on it than Iran. Second thing you should realize is a rogue nuclear state proliferating nuclear technology to a nuclear ambitious rogue state is not the same thing as an aid boat going to a place of deep poverty and unemployment. Last thing you need to realize is nuclear technology and materials have additional laws regulating any type of proliferation.
No, we have your opinion, and it is contradicted by facts.
Stating your opinion and then stating that your opinion is fact will not get you very far in life.
 

Apocalypse

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First off, Gaza has no merchant vessels that routinely go in and out of its coast. Second, here is the real definition of merchant vessel:

Third, go reread the earlier part of San Remo which states what classes of vessels are exempt from attack. I think the flotilla most closely falls in this classification:


You calling the flotilla merchant vessels is just a sneaky attempt at trying to dodge international law.
No, not really.
I believe an aid vessel falls under the category of merchant vessel. It's simply a merchant vessel with the declared intent of providing aid.
That is why one of the statements in the document refers to aid vessels under the category of merchant vessels, setting one or two further laws about merchant vessels with the intent of the suppliment of humanitarian aid.
The definition you've provided fits the flotila perfectly.
Says you. Rest of the world doesn't agree with you.
The "rest" of the world doesn't agree with you as well.
Not everyone states that there is a humanitarian crisis in the Strip.
Simply claiming that everyone are on your side instead of providing a real argument wouldn't get you far in life.
Has this blockade effectively stopped the capability of militants in Gaza to launch rockets and mortars? No, it has absolutely not.
Stopped? No. Drastically reduced? Abso****inglutely.
How is that analogous? How is a boat filled with North Korean nuclear technology that is headed to Iran even remotely comparable to a humanitarian ship carrying aid and nationals from dozens of countries to a place in a humanitarian crisis? First thing you should realize is North Korea has more sanctions on it than Iran. Second thing you should realize is a rogue nuclear state proliferating nuclear technology to a nuclear ambitious rogue state is not the same thing as an aid boat going to a place of deep poverty and unemployment. Last thing you need to realize is nuclear technology and materials have additional laws regulating any type of proliferation.
You're looking for the wrong type of an analogy.
I've provided this case because the international law that refers to the flotila boarding is the same one that refers to the boarding of that ship.
Just as the Libyan ship could be inspected on high seas even though it was already inspected at one port, so can the flotila.
Stating your opinion and then stating that your opinion is fact will not get you very far in life.
My opinion is not facts, my reference to actual facts however doesn't make those facts my opinion.
 

bub

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Two points:

1) The San Remo Convention is the one Israel is referring to, and it states the following: A ship that is trying to run a blockade can be boarded and stopped on international waters if it was warned before it and if the blockade is enforced as part of an armed conflict.
Israel has followed this to its full extent during the boarding of the flotilla, hence nothing illegal.
not when the blockade itself is illegal
 

Apocalypse

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Here's the Q&A on this raid's legality from the Reuters news company:

Q&A: Is Israel's naval blockade of Gaza legal?

(Reuters) - Israel has said it will continue a naval blockade of the Gaza Strip despite growing global pressure to lift the siege after a navy raid on a Turkish ferry carrying aid killed nine activists this week.

What is the legality of the blockade and did Israel's intervention breach international law? Below are some questions and answers on the issue:

CAN ISRAEL IMPOSE A NAVAL BLOCKADE ON GAZA?

Yes it can, according to the law of blockade which was derived from customary international law and codified in the 1909 Declaration of London. It was updated in 1994 in a legally recognized document called the "San Remo Manual on International Law Applicable to Armed Conflicts at Sea."

Under some of the key rules, a blockade must be declared and notified to all belligerents and neutral states, access to neutral ports cannot be blocked, and an area can only be blockaded which is under enemy control.

"On the basis that Hamas is the ruling entity of Gaza and Israel is in the midst of an armed struggle against that ruling entity, the blockade is legal," said Philip Roche, partner in the shipping disputes and risk management team with law firm Norton Rose.

WHAT ARE INTERNATIONAL WATERS?

Under the U.N. Convention of the Law of the Sea a coastal state has a "territorial sea" of 12 nautical miles from the coast over which it is sovereign. Ships of other states are allowed "innocent passage" through such waters.

There is a further 12 nautical mile zone called the "contiguous zone" over which a state may take action to protect itself or its laws.

"However, strictly beyond the 12 nautical miles limit the seas are the "high seas" or international waters," Roche said.

The Israeli navy said on Monday the Gaza bound flotilla was intercepted 120 km (75 miles) west of Israel. The Turkish captain of one of the vessels told an Istanbul news conference after returning home from Israeli detention they were 68 miles outside Israeli territorial waters.

Under the law of a blockade, intercepting a vessel could apply globally so long as a ship is bound for a "belligerent" territory, legal experts say.

CAN ISRAEL USE FORCE WHEN INTERCEPTING SHIPS?

Under international law it can use force when boarding a ship.

"If force is disproportionate it would be a violation of the key tenets of the use of force," said Commander James Kraska, professor of international law at the U.S. Naval War College.

Israeli authorities said marines who boarded the Turkish vessel Mavi Marmara opened fire in self-defense after activists clubbed and stabbed them and snatched some of their weapons.

Legal experts say proportional force does not mean that guns cannot be used by forces when being attacked with knives.

"But there has got to be a relationship between the threat and response," Kraska said.

The use of force may also have other repercussions.

"While the full facts need to emerge from a credible and transparent investigation, from what is known now, it appears that Israel acted within its legal rights," said J. Peter Pham, a strategic adviser to U.S. and European governments.

"However, not every operation that the law permits is necessarily prudent from the strategic point of view."

OPPONENTS HAVE CALLED ISRAEL'S RAID "PIRACY." WAS IT?

No, as under international law it was considered a state action.

"Whether what Israel did is right or wrong, it is not an act of piracy. Piracy deals with private conduct particularly with a pecuniary or financial interest," Kraska said.

HAVE THERE BEEN ANY SHIPPING DISRUPTIONS AFTER THE RAID?

None so far but the International Chamber of Shipping (ICS), an association which represents 75 percent of the world's merchant fleet, has expressed "deep concern" over the boarding by Israeli forces, arguing that merchant ships have a right to safe passage and freedom of navigation in international waters.

"These fundamental principles of international law must always be upheld by all of the world's nations," the ICS said.
Q&A: Is Israel's naval blockade of Gaza legal? | Reuters


Once more, the raid was as legal and legitimate as it gets, if this was any other country the real facts would have been shown on the news and this would have ended as a non-issue after a few hours.
 

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No, not really.
I believe an aid vessel falls under the category of merchant vessel. It's simply a merchant vessel with the declared intent of providing aid.
That is why one of the statements in the document refers to aid vessels under the category of merchant vessels, setting one or two further laws about merchant vessels with the intent of the suppliment of humanitarian aid.
So you have left facts and turned to your opinions.
The definition you've provided fits the flotila perfectly.
Yes, I do believe this definition fits the flotilla perfectly:
(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;
The "rest" of the world doesn't agree with you as well.
Not everyone states that there is a humanitarian crisis in the Strip.
Simply claiming that everyone are on your side instead of providing a real argument wouldn't get you far in life.
It may not be literally every single other person in the world, but it is almost every single government and every single impartial NGO. That is enough for cause and concern. More than enough.
Stopped? No. Drastically reduced? Abso****inglutely.
That would be a result of the disproportionate response to the rocket attacks from Operation Cast Lead. Prior to Operation Cast Lead there is no relationship between the amount of rockets fired and the duration of the blockade.
You're looking for the wrong type of an analogy.
I've provided this case because the international law that refers to the flotila boarding is the same one that refers to the boarding of that ship.
Just as the Libyan ship could be inspected on high seas even though it was already inspected at one port, so can the flotila.
In what way are these two cases identical? One relates to smuggling nuclear technology to and from rogue countries that have many sanctions already on them. International law is clear as to the legality of this boarding. The other case relates to a humanitarian aid vessel on a humanitarian relief effort to a place in a humanitarian crisis. The legality of this is still being discussed, yet you post as if you have the authority of the ICJ to affirm what you are saying.
My opinion is not facts, my reference to actual facts however doesn't make those facts my opinion.
You reference 'facts' then give your own interpretation. Most times your interpretation conflicts with the proper interpretation of international law. Either way, your interpretations are still merely your opinions on the subject. It is pathetic for you to state them as factual.
 

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San Remo Convention:

You acknowledge that the San Remo Convention allows for the seizure of ships attempting to break a blockade, but note that Article 47 creates an exception for humanitarian aid ships. Even if we assume that this ship should be classified as a humanitarian ship under Article 47, you conveniently ignore Article 48:

Conditions of exemption

48. Vessels listed in paragraph 47 are exempt from attack only if they:

(a) are innocently employed in their normal role;
(b) submit to identification and inspection when required; and

(c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.
If the ship in question was not innocently employed in a normal role as a humanitarian ship, or if it refused to submit to identification and inspection, then it is not exempt under the San Remo convention.



UN Convention on the Law of the Seas:


As you note, the right of innocent passage applies only if the requirements of Article 19 are met. Article 19 says:


1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
Israel has a strong argument that this flotilla falls within at least one of the bolded sections, excluding it from the right of innocent passage.

As to whether or not the action was justified because it took place outside of the territorial waters of Israel, one of the more fundamental tenets of international law, harking back to the Caroline Incident, is that a nation may take preemptive action where there is an imminent threat. In this case, the ships involved had declared their intent to break the blockade and were mere hours away from doing do. Based on customary international practice, recognized in places such as the San Remo Convention and in various nations' published practices, once the ships declared their intention to violate the blockade, Israel had the right to interdict.


UN Convention for the Suppression of Unlawful Acts:

As has been pointed out repeatedly, this convention does not have the meaning you claim it does. The statute does not in and of itself provide grounds to show unlawfulness.

In order to show a violation of this convention, you have to show that an action qualifies as an offense under Article III. Article III states:

Article 3

1. Any person commits an offence if that person unlawfully and intentionally:

(a) seizes or exercises control...
And then goes on to list several types of actions which would qualify as an offense. In order to make out a violation of Art. III, you need to show that all of the elements have been satisfied. That includes the "unlawfully" element of line 1. You cannot cite the violation of a subpart of a statute that includes unlawfulness as an element of a crime in order to satisfy that unlawfulness element.

As a side note, I'm particularly amused by the fact that some are citing Israel's accession to this Convention in 2009 as proof that it means they could not do what they did here. Think that through:

Israel ratified this convention in April of 2009.
Israel has maintained a sea blockade since at least 2007.

Even if you refuse to accept my explanation of the Convention's language, you have to explain why Israel would sign a convention making it a crime to do something that they were already doing.


Geneva Convention on the High Seas:

You're reading far too much into this language. The Convention simply says that no state may subject the seas to its sovereignty, which is best read as a default rule directed at attempts to claim total control of swaths of international water, not as an absolute rule forbidding all actions on international water not listed in the Convention.

This reading is bolstered by the many, many treaties and conventions that have set forth ground rules for the interactions of ships in international water, several of which have been mentioned here. If the GCHS had truly meant to preclude any state from taking any action in international water, then there would have been no need for any of these treaties to discuss international waters, as the issue would have been resolved.

In addition, decades of practice have made it exceedingly clear that the Convention should be read in this fashion. The Convention was drafted in 1958. Since then, there have been dozens, if not hundreds, of situations where one nation took an action that interfered with another ship while in international waters. That alone is insufficient to constitute a violation of the Convention.
 

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San Remo Convention:

You acknowledge that the San Remo Convention allows for the seizure of ships attempting to break a blockade, but note that Article 47 creates an exception for humanitarian aid ships. Even if we assume that this ship should be classified as a humanitarian ship under Article 47, you conveniently ignore Article 48:
Again, since you keep posting the same thing without regard for anything in response:
The vast majority of the supplies on the all ships was humanitarian aid. They were vessels that were innocently employed in their role of providing humanitarian aid to a place in a humanitarian classes, thus classifying it as a vessel exempt from attack.
If the ship in question was not innocently employed in a normal role as a humanitarian ship, or if it refused to submit to identification and inspection, then it is not exempt under the San Remo convention.
Article 48b stipulates that a ship must submit to inspection and identification when required. In international waters, Israel has no jurisdiction to require a ship to be boarded for inspection. Another thing you are missing is Article 52:
All other categories of vessels exempt from attack
52. If any other class of vessel exempt from attack breaches any of the conditions of its exemption in paragraph 48, it may be attacked only if:

(a) diversion or capture is not feasible;
(b) no other method is available for exercising military control;
(c) the circumstances of non-compliance are sufficiently grave that the vessel has become, or may be reasonably assumed to be, a military objective; and
(d) the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.
You tell me if the direct military advantage gained from stopping humanitarian aid from breaking a blockade is worth the lives of 9 people. Laws of proportionality always apply... except with Israel.

UN Convention on the Law of the Seas:


As you note, the right of innocent passage applies only if the requirements of Article 19 are met. Article 19 says:

Israel has a strong argument that this flotilla falls within at least one of the bolded sections, excluding it from the right of innocent passage.
First thing to note is what every pro-Israeli has been saying all along, they are not signatories to this Convention (despite it being customary international law). Another thing to note is this Convention does has certain criteria regarding boarding:
Article 110
Right of visit
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

1. the ship is engaged in piracy;
2. the ship is engaged in the slave trade;
3. the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
4. the ship is without nationality; or
5. though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.
Article 92
Status of ships
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
Article 89
Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.
As to whether or not the action was justified because it took place outside of the territorial waters of Israel, one of the more fundamental tenets of international law, harking back to the Caroline Incident, is that a nation may take preemptive action where there is an imminent threat. In this case, the ships involved had declared their intent to break the blockade and were mere hours away from doing do. Based on customary international practice, recognized in places such as the San Remo Convention and in various nations' published practices, once the ships declared their intention to violate the blockade, Israel had the right to interdict.
The Caroline Affair only allows for preemptive self-defense when "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation". A humanitarian flotilla that posed no imminent threat and was on the high seas is not one of these necessities that allows for preemptive self-defense.

UN Convention for the Suppression of Unlawful Acts:

As has been pointed out repeatedly, this convention does not have the meaning you claim it does. The statute does not in and of itself provide grounds to show unlawfulness.

In order to show a violation of this convention, you have to show that an action qualifies as an offense under Article III. Article III states:



And then goes on to list several types of actions which would qualify as an offense. In order to make out a violation of Art. III, you need to show that all of the elements have been satisfied. That includes the "unlawfully" element of line 1. You cannot cite the violation of a subpart of a statute that includes unlawfulness as an element of a crime in order to satisfy that unlawfulness element.
No, I am citing another article (6) which states that the jurisdiction over the ships, if there is reason to believe an offence has been committed, belongs to the flag State. I suggest reading the rest of that Convention where it actually goes into further detail on the powers of jurisdiction.
Article 10

1. The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

2. Any person regarding whom proceedings are being carried out in connection with any of the offences set forth in article 3 shall be guaranteed fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided for such proceedings by the law of the State in the territory of which he is present.
As a side note, I'm particularly amused by the fact that some are citing Israel's accession to this Convention in 2009 as proof that it means they could not do what they did here. Think that through:

Israel ratified this convention in April of 2009.
Israel has maintained a sea blockade since at least 2007.

Even if you refuse to accept my explanation of the Convention's language, you have to explain why Israel would sign a convention making it a crime to do something that they were already doing.
They were already boarding vessels engaged in humantiarian missions in international waters? You think it would've been brought up by now. You know what they should have done in this case? Exactly what they did with the MV Rachel Corrie. They contacted the government of Ireland (since it has jurisdiction over the vessel) and requested that the ship be rerouted to Ashdod. Even though the crew did not want to comply, they had to because the Irish government maintains full authority over any boats operating in international waters that is flying its flag. That is proper procedure, which Israel seemingly skipped when it forcefully boarded the Turkish boats. Next, San Remo applies when there are is in open stated of armed conflict. If Israel is to invoke this, it must comply with international humanitarian law regulating Occupying Powers.
Geneva Convention on the High Seas:

You're reading far too much into this language. The Convention simply says that no state may subject the seas to its sovereignty, which is best read as a default rule directed at attempts to claim total control of swaths of international water, not as an absolute rule forbidding all actions on international water not listed in the Convention.

This reading is bolstered by the many, many treaties and conventions that have set forth ground rules for the interactions of ships in international water, several of which have been mentioned here. If the GCHS had truly meant to preclude any state from taking any action in international water, then there would have been no need for any of these treaties to discuss international waters, as the issue would have been resolved.

In addition, decades of practice have made it exceedingly clear that the Convention should be read in this fashion. The Convention was drafted in 1958. Since then, there have been dozens, if not hundreds, of situations where one nation took an action that interfered with another ship while in international waters. That alone is insufficient to constitute a violation of the Convention.
I've cited that no State may establish its jurisdiction in international waters. You have posted that a State may establish jurisdiction if it believes a merchant vessel is intending on breaking a blockade. That does not include humanitarian vessels engaged in humanitarian missions which is a class of ships exempt from attack. You stated that Israel has the right to inspect a ship on international waters. You bring no citation to substantiate this claim, other than the fact that the boats may or may not break the Gaza blockade. I stated Israel has no right to inspect a ship on international waters because international law is clear that no State may lay jurisdiction to international waters.
 

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Again, since you keep posting the same thing without regard for anything in response:
The vast majority of the supplies on the all ships was humanitarian aid. They were vessels that were innocently employed in their role of providing humanitarian aid to a place in a humanitarian classes, thus classifying it as a vessel exempt from attack.
Exactly what are you basing your conclusions on? You believe that this was a humanitarian ship that was entirely innocent in its purpose. If Israel disagrees, what authority do you have to say that they're wrong?

Article 48b stipulates that a ship must submit to inspection and identification when required. In international waters, Israel has no jurisdiction to require a ship to be boarded for inspection.
When it's enforcing a blockade it does.

Another thing you are missing is Article 52:

You tell me if the direct military advantage gained from stopping humanitarian aid from breaking a blockade is worth the lives of 9 people. Laws of proportionality always apply... except with Israel.
So your theory is that this would have been perfectly legal had it not turned into violence?

First thing to note is what every pro-Israeli has been saying all along, they are not signatories to this Convention (despite it being customary international law). Another thing to note is this Convention does has certain criteria regarding boarding:

The Caroline Affair only allows for preemptive self-defense when "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation". A humanitarian flotilla that posed no imminent threat and was on the high seas is not one of these necessities that allows for preemptive self-defense.
And again, what exactly gives you (or anyone else) the authority to decide whether or not those criteria have been satisfied? Simply saying "oh, this isn't one of those cases because I don't think it is" doesn't quite cut it.

No, I am citing another article (6) which states that the jurisdiction over the ships, if there is reason to believe an offence has been committed, belongs to the flag State. I suggest reading the rest of that Convention where it actually goes into further detail on the powers of jurisdiction.
Another Article 6? Which Article 6 might that be? The only one I see makes explicit reference to a offenses that are violations of Article 3, much like Article 10.

They were already boarding vessels engaged in humantiarian missions in international waters? You think it would've been brought up by now.
Is that what I said? No. I said they've been maintaining a blockade for years and have maintained a firm position on this issue.

You know what they should have done in this case? Exactly what they did with the MV Rachel Corrie. They contacted the government of Ireland (since it has jurisdiction over the vessel) and requested that the ship be rerouted to Ashdod. Even though the crew did not want to comply, they had to because the Irish government maintains full authority over any boats operating in international waters that is flying its flag. That is proper procedure, which Israel seemingly skipped when it forcefully boarded the Turkish boats.
What you think they should have done is irrelevant to the question of what they had the legal authority to do.

Next, San Remo applies when there are is in open stated of armed conflict. If Israel is to invoke this, it must comply with international humanitarian law regulating Occupying Powers.
I'm not the one who said San Remo applies. I'm merely responding to the claims in the OP.

I've cited that no State may establish its jurisdiction in international waters. You have posted that a State may establish jurisdiction if it believes a merchant vessel is intending on breaking a blockade.
Where exactly did I mention a merchant vessel?

That does not include humanitarian vessels engaged in humanitarian missions which is a class of ships exempt from attack.
According to what?

You stated that Israel has the right to inspect a ship on international waters. You bring no citation to substantiate this claim, other than the fact that the boats may or may not break the Gaza blockade. I stated Israel has no right to inspect a ship on international waters because international law is clear that no State may lay jurisdiction to international waters.
Again, interdicting a boat that is about to run a blockade is not the same as asserting total sovereignty.
 

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Exactly what are you basing your conclusions on? You believe that this was a humanitarian ship that was entirely innocent in its purpose. If Israel disagrees, what authority do you have to say that they're wrong?
I should hasten to point out that this convoy was KNOWN to be carrying humanitarian aid. That makes a difference as far as the law is concerned.

Article 90 of the United Nations Convention on the Law of the Sea states that "No State may validly purport to subject any part of the high seas to its sovereignty." Which Israel did when it attempted to enforce it's own laws in international waters.

Furthermore, under San Remo, Section 3

47. The following classes of enemy vessels are exempt from attack:
"(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;"

Again, the convoy was KNOWN to be carrying humanitarian aid and supplies which means the Israelis did not have the right to attack the convoy and doubly so in international waters.
 
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