SUMUD FLOTILLA - WHEN MARITIME LAW MEETS MORAL SPACTACLE
It can be expected that, following their detention, members of the Sumud Flotilla will separately issue aligned statements alleging mistreatment by Israeli authorities -- a cooordinated effort characteristic of such high-profile activist campaigns.
Knuckleheads will believe that.
Israel may have won the war on the battlefields, but it has lost the propaganda war decades ago. Chances are you think Israel has no right to board the Sumud Flottila in international waters. And I won't blame you as most folks are easily persuaded by the idea of "freedom of navigation" and appeals to authority as media tells you so, such as Al-Jezeera here:
Let me unpack the complexities here so, as they say, the truth will set you free.
A state has sovereignty of the sea up to 12 nm off the coast. Beyond that is international waters also called high seas. Between 12-24 nm is a stretch known as the contiguous zone. The Contiguous Zone (12-24 nm) is international waters, but coastal states have limited enforcement rights there. Under UNCLOS Art 33 a state can exercise control in this zone ONLY to - (a) prevent infringement of its customs, fiscal, immigration or sanitary laws (public health and quarantime measures); (b) punish violations of those same laws. A state's economic rights stretches up to 200 nm - it does not own the seas but has rights to the resources (fishing + oil, etc).
In war time, a state can impose a blockade that stretches into international waters provided the requirements of the San Remo Manual are satisfied. Israel's blockade stretches up to 20 nm off the coast.
In my previous post "Israel's Naval Blockade Of Gaza Is Legal - And That Is The Problem" I showed the legitimacy of the Gaza blockade under San Remo Manual. Where a blockade is legal, the imposing state has the right to board vessels in international waters to prevent the entry into the restricted zone. Since the blockade is legal, as none other than the UN itself has confirmed this in 2011 (Palmer Report), it is within Israel's rights to board Sumud Flottila vessels in international waters. Score 1 for Israel.
The next important point you need to understand is the flag of a vessel. UNCLOS Art 91 requires every ship to have a nationality, that is, it must be registered in a state. The state in which it is registered is called the flag state. Whilst UNCLOS does not explicitly rule that a vessel must fly a state flag, this requirement is stipulated under the Convention On The International Regulations For Preventing Collisions At Sea, rule 23. The general maritime practice requires all vessels to fly the flag of the state whose nationality they belong.
The state flag is very important for three purposes:
One, it determines which state has jurisdiction over the vessel for legal, safety and enforcement reasons. Coastal states have jurisdiction up to 12 nautical miles off their coast. All vessels within these waters must observe the laws of the particular state. In international waters, the laws of the flag state applies. It is a common error of many to assume there is no law in international waters. This is amplified by the fact that cruise liners operate casinos in international waters. The ships announcement "We are now in international water!" is a signal that the casinos are now open. In international waters, the laws of the flag state applies. For example, a US cruise ship cannot operate casinos if they do not have a US licence. 21 nm off Singapore, in international waters, their casinos are opened. Singapore has no jurisdiction and Uncle Sam is too far away.
Two, all trade, banks, insurers and ports of call, require the vessels to be registered.
Three, when vessels ply without a state flag, it is considered a "stateless" vessel. They do not enjoy any sovereign immunity. UNCLOS Art 110 explicitly states "A warship may board a foreign ship on the high seas if there is reasonable ground for suspecting that the ship is without nationality". A stateless vessel has no protection under international law. Any state's warship can stop, inspect, and take enforcement action. Any naval vessel in the world has a right to board, inspect and seieze a stateless vessel.
Now take a look at the featured image above. That is MV Alma, the vessel that Greta Thunberg and the Malaysian group are travelling in. Alma is a UK-registered vessel. Take a close look at the image. There is no Union Jack flying. It is technically a "stateless" vessel and Israeli Navy has every right to board, search and seize the vesset and arrest all personnel. Score 2 for Israel.
Not convinced? Take a look at these images of other vessels.
Where are the state flags? Just more "stateless vessels" (There are reasons for not flying state flags. I explain below). Score 3 for Israel.
Stateless vessels have no protection under international maritime laws. Thunberg and her irk, including Malaysian lawmakers travelling with her in MV Alma, face the fate and consequences in the hands of the Israeli Navy. There is no foul play.
Some vessels may fly a false state flag, that is, they fly the flag of another state other than the one the vessels are registered. This is called mis-use of flags. False flags are used by vessels to hide their identity. This is often practiced in illicit operations (arms smuggling, sanctions evasion, etc). Under international law, any naval ship many board vessels in the high seas on suspicion of false flags. This is just a point of note, not suggesting here that any of the vessels in the flotilla fly a false flag.
Now let's get to the matter of why some vessels, such as Thunberg's MV Alma, do not fly the state flag. Some EU countries have national regulations that restrict vessels flying their state flag when the vessels are:
* engaged in non-commercial activities, such as activism, flotillas, protests.
* not registered for commercial shipping purposes.
States impose this restriction to avoid country liability or international disputes. For example, a flotilla challenging a blockade could expose the flag state to diplomatic or legal repercussions.
If a vessel ignores the restriction and flies the flag anyway, it is called flagging a ship falsely. The implications are :
* The flag state could face pressing diplomatic questions, because it's officially "not backing" non-commercial activist vessels, yet its flag is being used.
* The flag state may revoke the registration or impose fines on vessel owner.
* The vessel could lose legal protections normally granted to state-registered ships.
* Marine insurance may be voided.
* If the vessels cause any damage, other states may hold the indicidual participants personally liable.
Flagging a ship falsely (claiming a state's nationality without authorisation) is treated in international law in the same way as mis-use of flag. The vessel could be treated as stateless or mis-flagged which allows other states to enforce maritime law against it under UNCLOS Art 110. Any state naval vessel can board, inspect and seize such vessels.
These are the vessels "confirmed intercepted" or "lost contact" per the foltilla's updates
Flag state: Poland - Free Willy, Captain Nikos, Florida,Karma Oxygono, Seulle, Hio, Grande Blu, Huga, Vengleis, Pavlos, Wahoo, Ahed Tamimi
Flag state: France - All in
Flag state: Netherlands - Mohammad Bar, Amsterdam
Flag State: Spain - Jeannot, Yulara, Spectre, Adara, Adagio, Estrella
Flag state: Italy - Morgana, Otaria, Aurora, MiaMia, Maria, Alakatalia, Mango, Selvaggia, Fair Lady
Flag state: Germany - Cataline
Flag state: UK - Alma, Sirius, Inana, Ohwayla
Flag state: Algeria - Deir Yassine
Poland requires explicit authorisation for political missions or high risk areas. It has previously warned or denied use of its flag for flotilla-type voyages.
France - non-commercial use permitted but political or activist use prohibited without approval.
Netherlands - non-commercial use allowed; in the aftermath of 2010 MV Mavi Marmara incident, flotilla-type missions effectively banned
Spain - non-commercial allowed, but political activism not allowed.
Italy - Non-commercial use permitted; political/activist missions discouraged and sometimes denied.
Germany - non-commercial use allowed, politically motivated voyages prohibited.
UK - non-commercial allowed, political missions prohibited.
Algeria - Non-commercial (NGO/activist) use effectively prohibited.
It is evident many of these flotilla vessels were either not flyinng state flags, like Thunberg's vessel MV Alma, or they mis-used state flags in violation of their state prohibitions. The whole world needs to understand the majority of these vessels were in effect "stateless" where Israeli Navy has the right under UCLOS Art 110 to board, search, and seize the vessels in international waters. Score 4 for Israel.
France - non-commercial use permitted but political or activist use prohibited without approval.
Netherlands - non-commercial use allowed; in the aftermath of 2010 MV Mavi Marmara incident, flotilla-type missions effectively banned
Spain - non-commercial allowed, but political activism not allowed.
Italy - Non-commercial use permitted; political/activist missions discouraged and sometimes denied.
Germany - non-commercial use allowed, politically motivated voyages prohibited.
UK - non-commercial allowed, political missions prohibited.
Algeria - Non-commercial (NGO/activist) use effectively prohibited.
It is evident many of these flotilla vessels were either not flyinng state flags, like Thunberg's vessel MV Alma, or they mis-used state flags in violation of their state prohibitions. The whole world needs to understand the majority of these vessels were in effect "stateless" where Israeli Navy has the right under UCLOS Art 110 to board, search, and seize the vessels in international waters. Score 4 for Israel.
Flags Of Convenience (FOC) are a different matter entirely. The common FOC countries are Panama, Liberia, Marshall Islands and Singapore. An owner may chose not to register the vessel in his home country, but with an FOC country. FOC countries offer lower fees and taxes, less stringent regulations and ease of registration. Vessels need state flags. A ship using an FOC does have a state flag, so it is not stateless. The FOC country has jurisdiction and is legally responsible for enforcing rules on that ship, even if it's mostly nominal.
FOC is a legal loophole in the system, but international law treats them as genuine national vessels. The problem arises when the flag state fails to uphold its obligations which can make enforcement tricky. For owners, it's a cost vs risk tradeoff. Owners accept potential penalties in exchange for lower operating costs.
Singapore is not a traditional FOC because it enforces strict standards and charges higher fees. Its appeal lies in legal certainty, dispute settlement infrastructure, and regulatory credibility, not in "loophole" advantage.
To make the story on flags complete, here are some more points:
1. Primary flag (the state flag) is usually raised at the stern (back). It must be large enough to re recognisable from a distance.
2. Courtesy flag is the flag of the host country when entering port. It flies at starboard yardarm (right side). This is polite custom, not legally required.
3. Signal flags are used for communications under COLREGs and Intl Code of Signals.
4. Symbolic flags are allowed as long as (a) they do not replace the vessel's state flag. Many vessels of Sumud Flotilla seem to have violated this as Palestinian flags are seen at the stern; (b) they are not used to misrepresent nationality.
5. No strict limit on number of flags, but legal practice is keep it simple -- flags at stern. starboard yardarm, mast or foremast.
6. Neutral flags are recognisable non-state entities such as the Red Cross, Red Crescent, Green Peace, Sea Shepherd, etc. These are just symbolic flags and offer no legal status. The Palestinian flag is a symbolic flag as there is no official state. The vessels still need to register with a state and fly the state flag. Display of symbolic flags must not obscure the legal flag, or falsely imply nationality. Several vessels in the Sumud Flotilla seem to have violated rulings by having a clutter of Palestinian flags as well as not flying the state flag.
The world should wake up to the fact that Israel has not violated any international maritime laws in boarding, searching and seizing Sumud Flotilla vessels in the high seas in accordance with UNCLOS Art 110 on two counts -- the legitimacy of the naval blockade, and violation on maritime rules of state flags effectively rendering most of the vessels "stateless".
Everybody knows the Sumud Flotilla was just a publicity stunt for the activists and politicians. By their own account, the organisers have admitterd so themselves to justify the fact they were bringing only 300 tons of aid. That's what they claimed. Israeli boarding parties have claimed they found no aid cargo in Thunberg's vessel. No aid, no problem. Mission accomplished. Another blemish on Israel's inhumanitarian infamy.
The flotilla party has a make up of about 500 people from 40-44 countries. In perspective, the claimed humanitarian aid translates to about 600kg per person. To visualise how much this aid is per person -- if all the aid were 1 ltr bottled water, each person brings 600 bottles; if all the aid were 25 kgs packet of rice, each person brings 24 packages. It's a joke!
All those supposedly amount of aid could be cost effectively transported by a single coastal vessel. The flotilla consists of 30 or so varied small crafts. The cost of chartering the vessels and operating costs for a 7 day voyage far surpasses the amount spent on the aid, many times over.
That's not the end of the political and publicity stunt. In the coming days we will see a ton of videos from each and every participant of the flotilla, and co-ordinated claims of abuse and mistreatment from the Israeli authorities. They are going to milk everything they can to win in the propaganda war.
And you thought they were concerned for the suffering and starving Palestinians.
NOTE:
I have added an addendum to my previous post on the legitimacy of the Israeli naval blockade of Gaza to clarify an important argument a friend brought up. This helps to understand the legal concepts between the legalities of the process and structure of the blockade vs the conduct in the operation of the blockade. This is where the validity of a blockade clashes with misconduct in operation, which does not invalidate the legal authority. I recommend you click back for a quick read. It's most informative.
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