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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:
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
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