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Law on International Waters

There has been much discussion about the legality of Israel’s decision to take action against a flotilla of ships from other states in international waters. The relevant law relating to international waters is governed by the Convention on the High Seas (Geneva, 1958); ratified by Israel in 1961, and likely to be Customary International Law.

Article 2 of the Convention states that, The high seas being open to all nations and Freedom of the high seas comprises freedom of navigation. Article 4 states that, Every State has the right to sail ships under its flag on the high seas. And Article 6(1) states that when ships sail under the flag a State, they shall be subject to its exclusive jurisdiction on the high seas. Article 11(3) states that, No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. Article 22(1) state that, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:(a) That the ship is engaged in piracy; or (b) That the ship is engaged in the slave trade; or (c) the ship is of the same nationality as the warship. [There is no Piracy if any action is not “committed for private ends”].

It follows from the above that: all interference with a merchant ship under any pretence beyond the three-mile limit is prima facie illegal.

The Flotilla was reportedly attacked about 70-75 miles off the coast of Gaza, outside an Israeli declared exclusion zone. However, the Convention on the Territorial Sea does not recognise such exclusion or security zones, and the International Law Commission considered that extreme vagueness of the term security would open the way for abuses. Furthermore; Brownlie notes that, The International Law Commission, and the majority of states, do not accept the legality of security zones (or defence zones/neutrality zones) and therefore are unlikely to regard an ambulatory exercise of a right of (anticipatory) self-defence with any favour.*

*Brownlie, Principles of International Law, 2nd Edition

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