by craig on June 20, 2011 2:08 pm in Uncategorized
A new Gaza freedom convoy is preparing to sail, this time including a US flagged vessel. My friends Ann Wright and Ray McGovern are going to be on it. Ray tells me the ship, which is registered in Delaware, has been renamed “The Audacity of Hope”. I am not quite sure if he is joking. I hope it is true as the irony is delicious.
The boarding of a US flagged ship on the High Seas is something which, in any other circumstances, the US would never tolerate, and I am hoping that it will give Clinton a headache now – which is why that possible ship name would be so great. What is for certain, is that a US court would have jurisdiction over any incidents that happen on board, and I cannot imagine any US judge would renounce that jurisdiction. So if the Israelis shoot Ann, Ray or any of their fellow passengers, the implications could be profound.
At Ray and Ann’s request, I have added my weight to the legal assessment of their actions:
Ambassador Craig Murray is a former Alternate Head of the UK Delegation to the United Nations Preparatory Commission on the UN Convention on the Law of the Sea. He was deputy head of the teams which negotiated the UK’s maritime boundaries with France, Germany, Denmark (Faeroe Islands) and Ireland.
As Head of the Maritime Section of the Foreign and Commonwealth Office, he was responsible for giving real time political and legal clearance to Royal Navy boarding operations in the Persian Gulf following the Iraqi invasion of Kuwait, in enforcement of the UN authorised blockade against Iraqi weapons shipments.
Ambassador Craig Murray is therefore an internationally recognised authority on maritime jurisdiction and naval boarding issues.
“The legal position is plain. A vessel outwith the territorial waters (12 mile limit) of a coastal state is on the high seas under the sole jurisdiction of the flag state of the vessel. The ship has a positive right of passage on the high seas. The coastal state can regulate economic activity exploiting the resources of the seas and continental shelf up to 200 miles, the extent of the continental shelf, or the agreed boundary, but there is no indication of fishing, oil drilling or analagous economic activity in this case. The vessel is entitled to free passage.”
“This right of free passage is guaranteed by the UN Convention on the Law of the Seas, to which the United States is a full party. Any incident which takes place upon a US flagged ship on the High Seas is subject to United States legal jurisdiction. A ship is entitled to look to its flag state for protection from attack on the High Seas.”
“Israel has declared a blockade on Gaza and justified previous fatal attacks on neutral civilian vessels on the High Seas in terms of enforcing that embargo, under the legal cover given by the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.”
“There are however fundamental flaws in this line of argument. It falls completely on one fact alone. San Remo only applies to blockade in times of armed conflict. Israel is not currently engaged in an armed conflict, and presumably does not wish to be. San Remo does not confer any right to impose a permanent blockade outwith times of armed conflict, and in fact specifically excludes as illegal a general blockade on an entire population.”
“It should not be denied that Israel suffers from sporadic terrorist attacks emanating from Gaza. However this does not come close to reaching the bar of armed conflict that would trigger the right to impose a limited naval blockade in terms of San Remo. To make a comparison, in the 1970’s and 1980’s the United Kingdom suffered continued terrorist attack from the Irish Republican Army, with much more murderous impact causing many more deaths than anything Israel has suffered in recent years from Gaza. However nobody would seek to argue that the UK would have had the right to mount a general naval blockade of the Republic of Ireland in the 1970’s and 1980’s, even though the Republic was undoubtedly the base for much IRA supply and operations. Justifications of Israeli naval action against neutral civilian ships by San Remo is based on special pleading and an impossibly strained definition of the term “armed conflict”. ”
They already have a more thorough and academic piece here, which I cannot fault.
All the boats and volunteers from various countries have my most earnest good wishes, and admiration for their courage as they brave the attentions of the murderous thugs of the Israeli state.