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BORDERLINE VIEWS: Defending Israel on the high seas
By DAVID NEWMAN
12/03/2014
Israel will not feel itself bound by any set of laws which limits its maneuverability in the adjacent maritime areas.
 
Had Israeli intelligence sources got it wrong and it had turned out that the Klos-C which was boarded this past week by the Israeli navy was entirely harmless, without any missiles or weapons on board, the global criticism of Israel would not have been long in coming. Israel would have been condemned for infringing the territorial (maritime) sovereignty of other states and of behaving contrary to the accepted norms of maritime jurisdiction, known as the Law of the Sea.

The Law of the Sea, governing the rights of states to control the sea area adjacent to their mainland, was drawn up by the United Nations in 1982, following years of difficult negotiations. It took almost 20 years until enough states ratified the UNCLOS convention to enable it to take effect. As of today 163 states have signed up to the UNCLOS convention. Only seven member states of the United Nations have not ratified the treaty, two of these being the United States and Israel.

The convention determines a number of maritime zones extending from the land into the seas, in each of which the state has varying powers. The closest zone, known as the Territorial Waters and stretching to a maximum of 12 nautical miles from the coastline (actually from the an imaginary line known as the baseline which allows for the enclosure of bays, large water inlets and even some islands, as part of state territory) in which the state can exercise its full sovereign powers.

The territorial sea is regarded as the sovereign territory of the state, although foreign ships (both military and civilian) are allowed innocent passage through it; this sovereignty also extends to the airspace above and seabed below.

Other zones include the Exclusive Economic Zone (EEZ) which can extend as far as 200 nautical miles from the baseline and in which the state has exclusive rights to maritime resources – be it fisheries, minerals (oil) or other economic assets. The state has the right to license other states to undertake the commercial exploitation of resources, and to receive royalties and percentages by right of “ownership.” Problems in the implementation of the UNCLOS convention occur where there is not sufficient sea area between states to allow for full 12- or 200-mile claims to be made. In such cases, it is normal practice for a median line to be drawn between the states and for each to divide up its own areas to the maximum extent permitted under the convention.

Israel is one of many countries unable to lay claim to the full maritime jurisdiction area. Although Israel formally claims the maximum 12-mile territorial waters, this contrasts with the norms which were common in the Mediterranean region, whereby most states claimed less than the full extent. This is even more problematic in the Red Sea where each of the adjacent states – Israel, Jordan, Egypt and Saudi Arabia – are located within a small confined space and where each state has to make do with a lot less than the full 12 miles.

AS FAR as the EEZ is concerned, no state in the Mediterranean is able to lay claim to the full area of exclusive resource exploitation (requiring a distance of 400 nautical miles between opposite coastlines), while the location of Cyprus in the Eastern Mediterranean makes the situation even more complicated. The ability of Israel, or any of her neighbors, to undertake extensive resource exploitation in the Red Sea area is almost negligible.

No one in the Israeli government or military establishment was too concerned about the restrictions of the Law of the Sea convention when they set sail last week to prevent the transfer via ship of Iranian missiles to Gaza, some 1,500 kilometers to the south of Israel’s borders.

And given the clear results of the military operation, no other state made any objection to the seeming violation of maritime regulations by a country which hasn’t even signed on to the convention. Countries have a right to defend themselves against any form of external military threat and if this means sending the navy way beyond the limits of the territorial waters, no one is going to object – so long as the threat proves to be a real one, as was the case this past week.

Israel has a number of maritime jurisdiction issues with respect to the Mediterranean. These include security issues relating to ships transferring weapons to Lebanon, Syria or the Gaza Strip, as well as issues of natural resources which are discovered off the coast. This is particularly problematic with respect to Gaza, which claims its own area of maritime jurisdiction including potential gas reserves. If, and when, Gaza becomes part of an independent Palestinian state, the international conventions will apply and Israel will not have the right to lay any claims to the maritime areas – regardless of whether they have formally ratified the treaty or not.

But equally, Israel will not feel itself bound by any set of laws which limits its maneuverability in the adjacent maritime areas and within which it patrols and undertakes surveillance around the clock. In the same way that Israel has operated to prevent shipments of missiles from crossing through Syria in the past on their way to Lebanon, or has reached even further afield inside nuclear reactors in Iraq or Iran, the government will not feel itself bound by any international convention which seeks to limit the exercise of legitimate defensive activities.

Unlike the division of land between states, there will always be those areas, known as the “high seas” which remain beyond the formal control of any state, and within which all states have the same rights. But even here, international conventions will come into play concerning critical issues such as piracy, environmental waste disposal and, again, the transportation of weapons and missiles. This remains a gray area for the time being, but as long as countries have the hard proof – as Israel clearly showed at yesterday’s press conference where the seized weapons were laid out in the open for all to see – the international community will not oppose the sort of actions which took place.

Every so often, and despite international criticism of Israel’s policies vis a vis the Palestinians, the country’s military pulls off an operation which cannot but arouse grudging global admiration. It happened at Entebbe in 1976, at the Osirak nuclear reactor in Iraq in 1981, and again in the seas off the coast of Sudan last week. And for every case that gets reported in the press, there are at least another three to four which never get reported.

We live in a rough neighborhood and until we ever get to a situation of regional stability – and that doesn’t exactly appear to be anywhere on the horizon right now – we can be thankful of the skill and expertise displayed by our navy last week.

The writer is dean of the Faculty of Humanities and Social Sciences at Ben-Gurion University. The views expressed are his alone.
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