One of my passionate convictions is a belief in international law to govern relations between nations and to establish basic rules of humanitarian conduct within nations.
A comment on my last posting asked by what right the Royal Navy was intercepting vessels carrying narcotics on the High Seas. In one sense the answer is straightforward, and contained in Article 108 of the UN Convention on The Law of The Sea:
Illicit traffic in narcotic drugs or psychotropic substances
1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.
That is slightly more complicated than it sounds. It is rather ambiguous about whether you need the permission of the flag state (the state where the ship is registered) before you can board a vessel on the High Seas. The most obvious interpretation might be that para 2 indicates you do need permission, and para 1 indicates the flag state should give it.
In most cases you would try to get permission of the flag state before acting against one of its ships, but that may not be practicable in a fast moving operation. The situation is complicated by the fact that the law presumes flag states to be responsible. Although the some of the worst of the abuse has been ameliorated, that is of course far from the case. Liberia and Panama were the most famous examples where the corrupt government of a petty or failed state
sold the right to register ships to unscrupulous businessmen, who granted the flag to any owner who wished to escape serious regulation of the safety of the vessel and crew, qualification requirements for officers, union recognition, and environmental and other regulation which may be practiced by a “real” flag state. The Liberian shipping register was not based in, and had no connection to Liberia other than the formal payment and larger backhanders for the rights.
For those with a Third World Good, First World Bad view of international relations, it is worth noting that attempts to reform the blatant abuse were frustrated for decades by the G77 in the UN.
I am not aware of any case law on the subject. It seems improbable that any flag state would want to go to the International Tribunal on the Law of the Sea over an intercept on the High Seas which did net a haul of drugs. But if an innocent vessel – let’s say a Venezuelan one – is boarded without permission of Venezuela on the High Seas, the law may be clarified.
The point is an important one; an example is the Proliferation Security Initiative. This was a Bush Blair plan to intercept ships going to North Korea on the High Seas and search them for nuclear components. Interestingly the initial plan adopted in September 2003 was for an international naval patrol by UK, US, Australia and others to intercept ships going to North Korea to prevent passage of “Narcotics and WMD”.
Now there is no right at all in international law to stop vessels on the High Seas and search them for WMD components. But there is the duty under UNCLOS to co-operate against narcotics trafficking. Bush and Blair cannot seriously have expected anybody to believe that their scheme was designed to prevent narcotics being smuggled into North Korea. Plainly the inclusion of narcotics was intended to abuse the powers under that head in order to search for something else. In fact, the Proliferation Security Initiative plainly required a Security Council Resolutin, and China made plain that Bush/Blair were not going to get away with that one.
Another comment on the same thread alluded to the Israeli ramming of an aid/campaigning ship en route to Gaza, and suggested there is no such thig as international law.
Well, the Israeli action was plainly illegal in any number of ways. A naval attack on a peaceful civilian ship not in time of war, a denial of innocent passage or freedom of the High Seas (depending exactly where it took place) and a subsequent failure of the duty to render assistance to a vessel in distress. It is not that there is no international law; the problem is enforcing it.
From 1945 for the next 50 years, international law made tremendous strides in establishing basic rights and norms and regulating relations between states. International judicial institutions made hundreds of landmark judgements, which were indeed in the vast majority of cases complied with. The US had a history of holding out against such developments and then, a couple of decades after everyone else, signing up (as with the Convention on the Law of the Sea).
Then came the Bush/Blair disaster. With Russia in near catatonic economic shock and China just starting to emerge, Bush/Blair argued that the might of a single military superpower equalled right, and that the moral convictions of divinely inspired leaderhip overrode international law. The illegal invasion of Iraq, the use of torture, the abjuring of the Geneva Conventions, were just part of the Bush/Blair attack on the whole concept of being bound by law. It was a Neitzschean view of the US President as Hero.
With the UK and half of Europe following the money, the pier of the largest bulwark of support for the concept of international law was fatally corroded.
One key aspect of the development of international law prior to this was a growing acceptance of the notion that at some point international law obtains a universality, whether or not states have signed up to the specific instrument. This is separate to the question of the number of ratifications needed to bring the Treaty into force, though that is a necessary prior step. Put another way, notions encapsulated in treaties pass into customary international law.
This is, in fact, common sense. Nuremburg confirmed the principle – it would not have been taken as a defence for the Nazi leaders to say that they did not subscribe to the same system of morality as the rest of the world.
Which brings me to Israel. The fact that Israel is one of the handful of countries not to have ratified the UN Convention on the Law of the Sea, does not make it any less illegal for Israel to ram civilian vessels. Equally – and contrary to the point made by another commenter on an earlier entry – Israeli nuclear weapons are not legal, just because Israel has not ratified the nuclear non-proliferation treaties. Israel has no more right than Nazi Germany to choose to be an aggressive rogue state, and cannot simply claim to be above the framework of international law.
It is, of course, perfectly possible for behaviour to be legal yet still reprehensible. It is worth noting that it is perfectly legal for Iran to develop medium range missiles. But to test fire them now is an obvious provocation from a regime that is fanatical and deeply irresponsible.
The annoying thing about Ahmadinejad’s speech at the UN was that there were whole swathes of it with which I was entirely in agreement. At least he did not get into holocaust denial on this occasion: if he could have further refrained from the couple of sentences which were indeed anti-semitic, he would have made the walkout appear unjustified and puerile, But the man is plainly deranged. (I expect that Roman Polanski, whose mother died in Auschwitz, would be surprised at the claim that the Holocuast was an invention.)
While Iran is entitled to develop its missiles, to develop nuclear warheads is illegal. I have maintained all along that Iran is indeed seeking to do this, and the admittance of its secret nstallation is pretty hard to construe as part of peaceful nuclear power development.
Incidentally, this is what a secret nuclear installation looks like.
I can think of no justification at all for taking any measures against Iran over its nuclear programme, that we do not take against Israel for its major illegal nuclear arsenal.
The signs are good for the developing US/Russian rapprochement on Iran, and I regard that as a good thing. It moves us further from a scenario in which the US may be involved in a military attack on Iran, and leaves Gordon Brown out of line in the ferocity of his anti-Iranian rhetoric. I expect that New Labour feel they could use a war before the general election, but I don’t think they will get one.
Thanks to Tony for the link.