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Home » Boarding a ship in international waters

Boarding a ship in international waters

The New Neo Posted on by

Critics of Israel’s action in the flotilla operation keep saying that the Gaza-bound ship was in international waters and that therefore the boarding was illegal. This seems self-evident—to those ignorant of international law on the matter. And of course the press is not in the business of offering information to counter that ignorance, if such an act would go against the liberal cause du jour.

Here’s the law:

Quick question: What is the status of blockade in international law?

The historic British position was that once a blockade was declared, neutral ships could be stopped on the open seas if in transit to a blockaded country. Other powers resisted this interpretation, but since Britannia ruled the waves, they could basically stuff it. During the American Civil War, the US quietly adopted the British position, as we didn’t have enough US Navy ships to guard everything the Confederacy could use as a port.

Also, see this:

I have always understood that international law (Declaration of London 1910) authorizes blockades and permits them to be enforced by boardings in international waters (presumably also permitting force to be used to carry out the lawful boardings). This is why Jack Kennedy was able to declare a blockade of Cuba in which ships bound for Cuba were to be boarded in international waters (I believe some actually were) by the U.S. Navy, which was to use force if necessary to carry out the boardings and to seize any cargo covered by the terms of the blockade. I do not believe anyone at the time or since has accused Kennedy of being engaged in an act of piracy. Someone who knows more than I do about the laws of naval engagement should comment on whether this blockade met the conditions of international law, because, if it did, the boarding and use of force in international waters were lawful and not piracy. Since Hamas has, I understand, declared its goal to be the destruction of Israel as a Jewish state, it would seem to me that the blockade was lawful in the first instance ”” which means that the boarding and the use of necessary force were also lawful.

Then there’s this:

…[T]he civilian Turkish boat announced that it intended to and was on its way to enter Gaza and supply a belligerent, terrorist organization, Hamas, which is the de facto government there, with which Israel is in a state of war or at least belligerence. Under Intl. law as I understand it, Israel has a right to stop ships and make sure that no material which can be used for war or terrorist purposes reaches there. The organizers of the ships were offered to bring their assertedly humanitarian cargo into an Israeli port (Ashdod), and after inspection for contraband, everything else would be transshipped to Gaza.

Of, for that matter, they could have allowed the ship to be boarded peacefully and inspected.

So, no, it is not an act of piracy. Nice try.

Ah, but this is akin to discussing how many angels can dance on the head of a pin. Everyone knows the truth: Israel bad, Palestinians (Turks, “activists,” “aid” workers, you name it) good. That’s all ye know on earth, and all ye need to know.

Comments

Boarding a ship in international waters — 23 Comments

  1. “Everyone knows the truth: Israel bad, Palestinians (Turks, “activists,” “aid” workers, you name it) good. “

    That is the operative meme and rhetorical tactic being used by the left to attack Israel.

    It is working, as evidenced by the recent anti-Israel resolution passed last Friday at the UN’s Nuclear Non-Proliferation Treaty Review Conference, when ALL 189 members voted unanimously in favor of denying Israel’s right to defend herself.

  2. See Rubin Report for an essay On the Obama Administration’s Slap against Israel on Verge of Bibi visit. I suspect that this was the real reason Netanyahu went home.

  3. Israel doesn’t rule the world and the assault against flotilla 70 miles out to sea is a crime. Israel won’t be able to hide under USA’s dress much longer.

  4. I like to use a very old source to get an idea of what a law was originally intended, at least for those that were laws way back when. From this definition from 1856, we see that if Israel is in a state of hostilities with Hamas (is their doubt) and they are a sovereign state, well blockade is a sovereign act and being properly maintained. We also see that to maintain the blockade, they cannot knowingly or through dereliction permit vessels to violate the blockade. Barring modern nuances, the “peace activist” vessels were subject to being taken by Israel from the time they left port since they had sailed for a blockaded port knowing it was blockaded.

    Also could never have been an act of piracy since the Law of the Sea defines piracy as

    (a) any illegal acts of violence or detention, or any act of depreda tion, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

    (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or air-craft;

    (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

    From Bouvier’s Law Dictionary, Revised 6th Ed (1856):

    BLOCKADE, international law. The actual investment of a port or place by a
    hostile force fully competent to cut off all communication therewith, so
    arranged or disposed as to be able to apply its force to every point of
    practicable access or approach to the port or place so invested.
    2. It is proper here to consider, 1. by what authority a blockade can
    be established; 2. what force is sufficient to constitute a blockade; 3. the
    consequences of a violation of the blockade.
    3. – 1. Natural sovereignty confers the right of declaring war, and the
    right which nations at war have of destroying or capturing each other’s
    citizens, subjects or goods, imposes on neutral nations the obligation not
    to interfere with the exercise of this right within the rules prescribed by
    the law of nations. A declaration of a siege or blockade is an act of
    sovereignty, 1 Rob. Rep. 146; but a direct declaration by the sovereign
    authority of the besieging belligerent is not always requisite; particularly
    when the blockade is on a distant station; for its officers may have power,
    either expressly or by implication, to institute such siege or blockade. 6
    Rob. R. 367.
    4. – 2. To be sufficient, the blockade must be effective, and made
    known. By the convention of the Baltic powers of 1780, and again in 1801,
    and by the ordinance of congress of 1781, it is required there should be a
    number of vessels stationed near enough to the port to make the entry
    apparently dangerous. The government of the United States has, uniformly
    insisted, that the blockade should be effective by the presence of a
    competent force, stationed and present, at or near the entrance of the port.
    1 Kent, Com. 145, and the authorities by him cited; and see 1 Rob. R. 80; 4
    Rob. R. 66; 1 Acton’s R. 64, 5; and Lord Erskine’s speech, 8th March, 1808,
    on the orders in council, 10 Cobber’s Parl. Debates, 949, 950. But “it is
    not an accidental absence of the blockading force, nor the circumstance of
    being blown off by wind, (if the suspension and the-reason of the suspension
    are known,) that will be sufficient in law to remove a blockade.” But
    negligence or remissness on the part of the cruisers stationed to maintain
    the blockade, may excuse persons, under circumstances, for violating the
    blockade. 3 Rob. R. 156 .) 1 Acton’s R. 59. To involve a neutral in the
    consequences of violating a blockade, it is indispensable that he should
    have due notice of it: this information may be communicated to him in two
    ways; either actually, by a formal notice from the blockading power, or
    constructively by notice to his government, or by the notoriety of the fact.
    6 Rob. R. 367; 2 Rob. R. 110; Id. 111, note; Id. 128; 1 Acton’s R. 6 1.
    4. – 3. In considering the consequences of the violation of a blockade,
    it is proper to take a view of what will amount to such a violation, and,
    then, of its effects. As all criminal acts require an intention to commit
    them, the party must intend to violate the blockade, or his acts will be
    perfectly innocent; but this intention will be judged of by the
    circumstances. This violation may be, either, by going into the place
    blockaded, or by coming out of it with a cargo laden after the commencement
    of the blockade. Also placing himself so near a blockaded port as to be in a
    condition to slip in without observation, is a violation of the blockade,
    and raises the presumption of a criminal intent. 6 Rob. R. 30, 101, 182; 7
    John. R. 47; 1 Edw. R. 202; 4 Cranch, 185. The sailing for a blockaded port,
    knowing it to be blockaded, is, it seems, such an act as may charge the
    party with a breach of the blockade. 5 Cranch, 335 9 Cranch, 440, 446; 1
    Kent, Com. 150. When the ship has contracted guilt by a breach of the
    blockade, she may be taken at any time before the end of her voyage, but the
    penalty travels no further than the end of her return voyage. 2 Rob. R. 128;
    3 Rob. R. 147. When taken, the ship is confiscated; and the cargo is always,
    prima facie, implicated in the guilt of the owner or master of the ship and
    the burden of rebutting the presumption that the vessel was going in for the
    benefit of the cargo, and with the direction of the owners, rests with them.
    1 Rob. R. 67, 130 3 Rob. R. 173 4 Rob. R. 93; 1 Edw. It 39. Vide, generally,
    2 Bro. Civ. & Adm. Law, 314 Chit. Com. Law, Index, h. t.; Chit. Law of
    Nations, 128 to 147; 1 Kent’s Com. 143 to 151; Marsh. Ins. Index, h. t.;
    Dane’s Ab. Index, h. t.; Mann. Com. B. 3, c. 9.

  6. The link to Keats doesn’t really make sense in the context you use it. Kind of odd.

    Also consider using more links than just from The Volokh Conspiracy page. Especially if you want to get all the facts. Not just the right wing ones.

  7. Matt McLaughlin and MDL – I notice a lack of persuasive argument in your comments. Repeating a common opinion, yes; evidence, no.

    Start with the following, to argue from first principles: Is any blockade ever justified? Only after answering that can you proceed to #2 Does Israel’s blockade meet this standard? Why or why not?

    And only then can the other questions be attempted, such as “Was this a legitimate enforcement of a legitimate blockade?” Skipping straight to the later questions is a sign of imprecise thinking.

  8. MDL: The link to the Keats poem was to source the quote. It wasn’t because the poem has anything to do with the content; I used the quote in a very different, somewhat ironic way. The link was there in case anyone didn’t know the reference

    Volokh has plenty of commenters from both sides of the right/left divide. It just so happens, however, that the comments that I quoted are the ones that demonstrated knowledge of the law of the sea. The arguments on the other side were either very weak or nonexistent.

  9. As a former naval person with some experience at this blockade stuff, I’d like to say that there are really only two things you need to know. First, it should not be done lightly: a blockade is an act of war. (JFK’s Cuba op was given another name to try to disguise this fact.) Second, it’s only a blockade if it’s effective. JKB alludes to this in his first quote. Israel is at war, so that’s not really, a new concern. They had to stop the ships or fall outside the understanding of the law. Now the next question is whether the Turkish navy will get involved next time around. Given this naval fun and the situation in Korea, I’d say we live in interesting times according to the old definition.

  10. The International Maritime Bureau (IMB) – endorsed by the UN’s International Maritime Organisation as the body who defines and is the authority on modern definitions for piracy and other international maritime crimes – defines piracy as:
    “an act of boarding (or attempted boarding) with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of that act.”

    If the IDF did, in international waters, board and disable the motors of 5 of the 6 boats and then board the 6th boat against the will of the crew and passengers of the boat, with the intention of holding the crew and passengers of that 6th boat against their will then, all politics aside, the IDF technically committed acts of piracy according to the IMB definition. Israel was not in a declared state of war with any of the countries under which those boats sailed or under whose flags flew on those boats. Hence the acts of those soldiers fit the modern IMB definition of acts of piracy.

  11. Potato, potato.

    Israel has a right to defend itself. That’s a no brainer. They made a mistake this time out, perhaps. Various nations have been trying to wipe the Jews out for about 5,000 years now. I can’t imagine it, myself.

    It’s really kind of crazy the world expects Israeli ports to be open to transfer supplies of any type to a known enemy. That’s something only left of center liberal thinkers would think is appropriate. Supplies could have been flown in, trucked in, brought in by rail from another direction, or many directions. Why by sea, and why through Israeli ports? I mean, besides the obvious reasons of maximizing the probability of something like this happening.

  12. Matt McLaughlin:

    Thanks for the update. I assume you’ll be going after the US, Canadian, British, Icelandic, and many other Coast Guards and navies around the world who routinely stop, board, and seize ships in international waters to interdict the smuggling of arms, drugs, and people, the commission of pollution, safety, and fishing violations, and a host of other things. What’s that? Oh, it’s only bad if the Jooos do it. Got it!

    Not a Liberal:

    First, anybody who would rely on a UN definition of anything is a Liberal. Second, what is the crime? Enforcing a blockade is not a crime, nor is inspecting a ship for contraband. It’s certainly not theft, as the Israelis offered to ship the alleged “humanitarian aid” to Gaza over land. They’ve already sent most of the “peace activists” home, so obviously the Israelis don’t intend to hold them. And if you think ships have the right to go anywhere they want and do anything they want at any time, I suggest you hire a boat and try to enter New York harbor, the Panama Canal, or the Straits of Bosporus without clearance. But don’t expect me to bail you out of a Turkish jail!

    I certainly hope you’re not a lawyer. If you are, and any of your clients read your post, counselor, your practice is kaput!

  13. Pingback:Stones Cry Out - If they keep silent… » Things Heard: e121v3

  14. The Alinsky Navy attempts a beach invasion and fails, what a surprise!. I happened to see an elderly gent (a former Ambassador) on television complaining in an almost child-like manner about being boarded. How embarrasing for man of his years and experience to just not know better. Even ships from nations friendly to each other go through proper channels and are subject to longstanding maritime rules and regulations. To sail from one country to another, after being told you will not be allowed to dock without being inspected, and then cry foul when it goes bad, is ridiculous.

  15. Poor Richard:

    The New York harbor, Panama Canal, nor the Straits of Bosporus are not international waters so I fail to see your logic. Then you write: “They’ve already sent most of the “peace activists” home, so obviously the Israelis don’t intend to hold them.” Most? The only thing obvious is your flimsy reasoning skills.

  16. Poor Richard:

    The New York harbor, Panama Canal, nor the Straits of Bosporus are international waters so I fail to see your logic. Then you write: “They’ve already sent most of the “peace activists” home, so obviously the Israelis don’t intend to hold them.” Most? The only thing obvious is your flimsy reasoning skills.

  17. Seriously these comments amaze me…. PIRACY? lol it has been long known that ships may be boarded in international waters by government ships (as long as they are not a government run ship)…. its a fact, and to be honest this reaction is just showing the ignorance of the anti-israeli individuals…. Really anti-semitism isn’t politically correct anymore, so now its anti-isralism… nice people. When Hamas (whom the innocent palestinians) stops launching thousands of rockets into israel.. then I will give a shit… But Hamas has declared its intention to DESTROY israel.. WTF irony? Israel should declare its intention to destroy hamas back and bulldoze the whole fucking strip.

  18. Under the Fourth Geneva Convention it is Internationally recognised, that the blockade of Gaza is illegal….as it constitutes collective punishment of a civilian population. Therefore it follows a naval blockade in support of an already illegal blockade cannot be legitimate either.

  19. Hamas may have declared an intention to destroy Israel but Israel IS destroying Palestinians and their land on a daily basis with total impunity. Hamas twice in the past week has stated Israel can exist if it withdraws to 67 borders. Very reasonable given Israel has never fully settled the land it was given under the partition. It has no need for the West Bank, Gaza or Golan. If it is genuine about peace then it would discard willingly that which causes the provocation as the UN keeps pointing out and 242 demanded which Israel chose not to comply with. Israel has orchestrated its own security problems by its belligerence. Not anti semitic….truth.

  20. Iain Cameron, Palestine propagandist, arrives right on schedule, as well. If Iain says it, why, it must be true!

    I sometimes wonder whether these trolls are paid, or whether they are freelancers doing it for sheer love. Almost every single one posts from an English-speaking former British colony (or Britain itself), by the way (almost never the US, however). Australia and New Zealand are the leaders, then Canada and England distant seconds.

  21. Seems to me you are making assumptions neo neocon…challenged are you? It is easy to attempt to denigrate your opponent than to answer the issue presented…..why the insecurity and paranoia. The Fourth Geneva Convention is hardly Palestinian propaganda…..it is International Law recognised by the Israeli High Court.

  22. Iain Cameron: Trolls such as yourself come onto comments sections of blogs and post in order to engage the participants (and the blogger, if possible) in endless arguments of the most basic kind about issues that would need an entire book (actually, several books) to even begin to cover properly. When one issue has been thoroughly explored, and many hours wasted in fruitless debate, the next is brought up, and then the next, in a repetitive exercise in goalpost-moving.

  23. kol hakavod
    more power to you
    May G-d Almighty bless you with all of your hearts’desire for your good and your family’s good and protection and for those near and dear to you

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