incidents that marred the arrest by Israel of ships carrying humanitarian cargo towards the Gaza Strip are yet to be analyzed accurately.
Failing to have for the time necessary details (positioning of the various ships and boats, etc..), We remain cautious on the analysis of the case. However, certain basic principles can be briefly recalled.
1. Who can control that at sea?
the high seas (ie for more than 12 or 22 nautical miles off the coast) a ship can not normally be arrested only by another ship - usually military - the same flag as he. Of course, the flag State may give its approval to foreign intervention on one of its ships. But beyond that, there are only very rare exceptions such as cases of piracy, trafficking human beings or of imminent danger to human life at sea, for example. (See in particular, Articles 98 and 110 of the UN Convention on the Law of the Sea ).
In the territorial sea (either below the water line above the 12), vessels of other states that the coastal state have the freedom of innocent passage (Article 17 of UNCLOS) which may be suspended temporarily and without discrimination (Article 25.3). For its part, the coastal State is empowered to take necessary measures to prevent passage which is not ' harmless "(Articles 19 and 25.1).
The Right of innocent passage through the territorial sea of third However, not one of free access to its ports and territory. In particular, this state can take "necessary measures to prevent any breach of conditions governing the admission of those ships to internal waters or such harbor" (Article 25.2).
Failing to have for the time necessary details (positioning of the various ships and boats, etc..), We remain cautious on the analysis of the case. However, certain basic principles can be briefly recalled.
1. Who can control that at sea?
the high seas (ie for more than 12 or 22 nautical miles off the coast) a ship can not normally be arrested only by another ship - usually military - the same flag as he. Of course, the flag State may give its approval to foreign intervention on one of its ships. But beyond that, there are only very rare exceptions such as cases of piracy, trafficking human beings or of imminent danger to human life at sea, for example. (See in particular, Articles 98 and 110 of the UN Convention on the Law of the Sea ).
In the territorial sea (either below the water line above the 12), vessels of other states that the coastal state have the freedom of innocent passage (Article 17 of UNCLOS) which may be suspended temporarily and without discrimination (Article 25.3). For its part, the coastal State is empowered to take necessary measures to prevent passage which is not ' harmless "(Articles 19 and 25.1).
The Right of innocent passage through the territorial sea of third However, not one of free access to its ports and territory. In particular, this state can take "necessary measures to prevent any breach of conditions governing the admission of those ships to internal waters or such harbor" (Article 25.2). A specific regime is also reserved for a "contiguous zone" in the territorial sea (article 33) which extends beyond the outer limit of the territorial sea up to a maximum of 24 nautical. in this area, a coastal state may "exercise the control necessary" to prevent or punish infringement of its customs standards, fiscal, immigration or sanitary on its territory or territorial sea.
In this case, it seems - according to information given to the Security Council by Under-Secretary General for Political Affairs that the arrest took place at 40 nautical miles of coastline , So the high seas
2. The use of force during armed operations
In case of arrest, the end does not justify any means and the use of force is regulated.
One of the most recent illustration of this limit - constant in international jurisprudence - is given by the decision of 1 July 1999 by the International Tribunal for the Law Sea in the case of saiga that pitted Saint Vincent and the Grenadines to Guinea.
The Tribunal has pointed out (para. 155) should refrain as much as possible the use of force is that when it is inevitable that action "shall not exceed what which is reasonably required in the circumstances. " In addition, "considerations of humanity must apply in the Law of the Sea, as in other areas of international law."
This jurisprudence was confirmed in the award September 17, 2007 by the Permanent Court of Arbitration in a case between Guyana, Suriname.
In case of arrest, the end does not justify any means and the use of force is regulated.
One of the most recent illustration of this limit - constant in international jurisprudence - is given by the decision of 1 July 1999 by the International Tribunal for the Law Sea in the case of saiga that pitted Saint Vincent and the Grenadines to Guinea.
The Tribunal has pointed out (para. 155) should refrain as much as possible the use of force is that when it is inevitable that action "shall not exceed what which is reasonably required in the circumstances. " In addition, "considerations of humanity must apply in the Law of the Sea, as in other areas of international law."
This jurisprudence was confirmed in the award September 17, 2007 by the Permanent Court of Arbitration in a case between Guyana, Suriname.
3. The particular case of humanitarian cargo
The naval blockade has ancient origins and has long been governed by custom before being apprehended in the Paris Declaration of 1856, then in the London of 1909.
Today, its status - imperfect - is primarily governed by certain provisions of Protocol I of 1977 to the Geneva Conventions of 12 August 1949 and the Manual Sanremo 1994 on the right applicable international armed conflicts Wed
blockade should not be confused with an international embargo (see attached image).
Note that a neutral vessel may be seized and held as a prize if he violates or attempts to violate a law enacted blockade (MSR § 146 ) and goods that are on board can also be before they are considered contraband (MSR § 148).
Some property necessary for the population, however, can be seized (MSR § 103, 104 + 150).
If necessary, it can also be decided to organize a relief effort "for the benefit of an endangered population (Protocol I, art . 70).
The naval blockade has ancient origins and has long been governed by custom before being apprehended in the Paris Declaration of 1856, then in the London of 1909.
Today, its status - imperfect - is primarily governed by certain provisions of Protocol I of 1977 to the Geneva Conventions of 12 August 1949 and the Manual Sanremo 1994 on the right applicable international armed conflicts Wed
Note that a neutral vessel may be seized and held as a prize if he violates or attempts to violate a law enacted blockade (MSR § 146 ) and goods that are on board can also be before they are considered contraband (MSR § 148).
Some property necessary for the population, however, can be seized (MSR § 103, 104 + 150).
If necessary, it can also be decided to organize a relief effort "for the benefit of an endangered population (Protocol I, art . 70).
* * *
The facts mentioned refer to the evidence, in addition to the question whether the blockade and extent legally permissible in casu, the legality of the intervention into account both geographic data that under the level of violence used.
remain as a series of factual questions such as how best to achieve a neutral humanitarian cargo topopulation despite the existence of a maritime blockade. But the possible answers to it are political and do not find to be discussed here.
See also the position of the Security Council on this issue 1 June 2010
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