Kent Law School

To notify a recent blog posting on the Abu Omar judgment made on EJIL:Talk! by new KLS lecturer Francesco Messineo.

I received this interesting email from a web discussion list on International Boundaries and I think the questions and my personal response should be shared with International law enthusiasts.

” Israeli commandos on 30th of May stormed six ships carrying hundreds of pro-Palestinian activists on an aid mission to the blockaded Gaza Strip, killing at least 10 people and wounding dozens after encountering unexpected resistance as the forces boarded the vessels. Israeli naval commandos raided the ships while they were in international waters after ordering them to stop about 80 miles off Gaza’s coast” I presumed that international waters refers to maritime area beyond territorial sea.  I’m wondering

1.Does Israel commandos have right to board the vessels beyond its territorial sea?

2. Does it mean that coastal states can take unilateral action on any ships in their EEZ for security reasons (apart from illegal fishing, oil pollution etc)?

3. Is it possible the incidents to be referred before the ITLOS/ ICJ?

4. What International community can respond on this incidents?

Thanks

Dear friend,
I have to hazard the following positions to your thought provoking questions.

1. Do Israel commandos have right to board the vessels beyond its territorial sea?

International Law and the Israeli State do not cohabit happily together. Perhaps by that I mean Israel does not do international law (at least for now). It has consistently made this clear over the past many decades. So what Israeli commandos can do and cannot do has nothing to do with international law. They have struck all around the world with absolutely no care at all about international law but only with full respect to Israel’s national interests. It does not matter whether it is hotel rooms in Dubai or civilian ships in any ocean of the world. They have struck at Entebbe airport, Egyptian ports and indeed no where is off limit. I am sure others can supply other spectacular examples. If I may be very imaginative I will say they may strike at the White House if this is absolutely needed and in their national interest. I hope my pessimism in this area clear. But I must add many ‘respectable’ states do share this attribute as well. As we speak there is a Panaman president languishing in US prison. He was picked up as a sitting president in a spectacular commando attack for drug trafficking among other accusations. He was tried by his accusers and unsurprisingly convicted. Life has continued as usual. That is the state of International law and relations in our times. French navy obliterated the Rainbow Warrior in 1985 for opposing French rights to test nuclear weapons thousands of miles away from France but very close to other peoples.

2. Does it mean that coastal states can take unilateral action on any ships in their EEZ for security reasons (apart from illegal fishing, oil pollution etc)?

In an ideal world states will reserve such actions to the very most deserving cases in relation to acts that occur in their contiguous zone which is the maritime area outside the 12 nautical mile territorial sea. The contiguous zone is the next 12 miles outside this territory which was sett up under the UN Convention on the law of the sea to  exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Actions like the one described cannot be justified under this provision but of course we must listen carefully to Israeli justifications perhaps under elaborate constructions of the right to self defence under customary international law.

(3) Is it possible the incidents to be referred before the ITLOS/ ICJ?

My personal view is that unless some adjacent or opposite state is alleging infringement on its territorial integrity there can be no hope of an ITLOS claim. The ICJ is a wonderful court (it is actually situated in a place called the Peace Palace -lovely gardens) and has proven very useful in international relations but its Statute does not allow it to entertain claims from individuals, groups, NGOs or any other organisations under its contentious jurisdiction (See Article 34 (1) “Only states may be parties in cases before the Court.” ). We are thus left with the possibility that any state or maybe even two or more states may choose to proceed against Israel on behalf of affected nationals. This is possible but maybe not probable. Israel does have many friends and considerable influence.
There is however the possibility that an advisory opinion may be requested from the Court (Article 65 (1) “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”). Apart from the limited value of an opinion in that it cannot be used to order reparations/compensation/injunction (to prevent further incidents) it does appear that the state of Israel does not have any particular liking for ICJ Advisory Opinions. Its attitude after one such advice in the case (“Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion) was that the Court should keep its opinion to itself. Life for the wall has continued as usual, unperturbed by the small incident of an ICJ opinion.

4. How International community can respond on these incidents?

Now this is a crucial enquiry and one that needs serious answers much more than I can give in this short missive. The question is simply asking what can be done to end the Middle East Crisis. Entire libraries have been filled with books on this question. American senators and presidents have been made and unmade in response to this question. Indeed the entire framework of modern terrorism and the war against terrorism is connected to this question. Ultimately it boils down to political will and moral courage of Israeli leaders and people, Palestinian leaders and people, American/British/European leaders and people. The problem may be big but it is not bigger than our collective imagination. I suppose one can recommend that whatever the international community did to bring an end to slavery and to the erstwhile Apartheid South African regime and philosophy will be a good start. In the nature of things this problem now concerns all and it must be decided by all. Perhaps the General Assembly of the UN rather than a few selected powers ought to be brought onboard to fashion out an answer in the INTEREST OF ALL. One thing I must say is that I have absolutely no doubt that this problem will be resolved within my lifetime. Its the last of the big ones and it will go the way of the rest by being resolved peacefully.

Dr. Gbenga Oduntan
Lecturer in International Commercial Law

The rule that a country cannot deport a suspected non-national terrorist lest that person be subjected to torture or to inhuman or degrading treatment or punishment by the receiving country is not expressed in plain terms in the European Convention on Human Rights nor in any of the amending Protocols to that treaty.

It was created by the Court of Human Rights in the case of Chahal v UK decided in 1997, and the judges divided by 12 votes to 7 on the point. There are a number of reasons for treating the case as suspect.

The first is that it was decided before the change in perspective on international terrorism brought about by the events of 11th September 2001. Judges like Felix Frankfurter of the United States have noted that in times of heightened security risks to the community as a whole “the claims of government, based upon any reasonable construction, must trump individual rights, unless those rights were essential to the broader historical framerwork of republican constitutionalism” (1).

The second is that the Court of Human Rights did not consider its responsibilities under Article 17 of the European Convention, which in effect denies the protection of the Convention to those who would destroy the rights and freedoms protected by it (2). The right to life is such a right.

The third is that the Chahal case was decided the wrong way around. He had lived in the UK for 19 years, and had founded a family in the UK. Proposing to deport him (and his family) was wholly disproportionate, and could and should have been stopped on that ground alone. It is shameful that deportation was even considered.

Notes

(1) Article on Frankfurter J by Peter Charles Hoffer
(2) See, for example, Case 250/57

An edited version of this comment by Gbenga Oduntan, Kent Law School Lecturer in International Commercial Law, appeared in the Guardian letters page (Guardian 1 Feb 2010 p29):

It appears that the lessons of the Chilcot inquiry are clear. Not only national laws, but the United Nations Charter and customary international law all forbid the invasion and occupation of Iraq by the Bush-Blair administrations. The only things that probably permitted it among others are the intentions of Bush and Blair, the facts that the erstwhile foreign Secretary Jack Straw was a lawyer but not an ‘international lawyer’ and the Attorney General,  Goldsmith was a lawyer who took his lessons from US sources that cannot be named. That ideally leaves us with the following imperatives; firstly, that such an event should never happen again if attention is paid to the principles of customary and contemporary international law and secondly that every single day left in the so called fight against terrorism will benefit from the constant direction of international lawyers. A good source of where their wisdom comes from is Article 38 of the Statute of the International Court of Justice annexed to the UN Charter which, states that the sources of international law are:

a. international conventions, whether general or particular, establishing rules expressly recognized by  states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.