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Thread: Israel intercepts Gaza flotilla, says Hamas

  1. #441
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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by TacticalEvilDan View Post
    All I'm trying to say is that Israel has no tradition of custom to call upon that pre-date these treaties. They can't say "we've been doing this for hundreds of years, suck it."

    How much of what is recognized by most of the world these days as international law defined strictly by custom, and not by treaties?

    If most of the rest of the world defines the law of the sea via a particular treaty, and Israel is not a signatory nation, isn't it fair to say that Israel can't use the law of the sea to justify what they're doing?

    If there is significant disagreement over what the law of the sea actually is -- custom versus treaty -- then that serves to further prove my point, that Israel can't claim some sort of universal standard to justify what they did.
    According to international law, a non-signatory to a general treaty can be regarded as having accepted provisions of the treaty even without signature and ratification by adhering to said treaty as a norm of international law in its interactions with other states.

    However, if such a general treaty is NOT accepted from the beginning and this is NOT accepted by the non-signatory state as a norm of international law, then it is not bound by it. This is the standard practice in modern itnernational law. You can find it in any introductory textbook to the subject...
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    Re: Israel intercepts Gaza flotilla, says Hamas

    Moderator's Warning:
    Israel intercepts Gaza flotilla, says HamasI understand there's been an incident in international waters involving the IDF and a humanitarian organization. Perhaps we should talk about that instead of each other.

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    Re: Israel intercepts Gaza flotilla, says Hamas

    Per the mod's request I edited my response
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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by ludahai View Post
    According to international law, a non-signatory to a general treaty can be regarded as having accepted provisions of the treaty even without signature and ratification by adhering to said treaty as a norm of international law in its interactions with other states.

    However, if such a general treaty is NOT accepted from the beginning and this is NOT accepted by the non-signatory state as a norm of international law, then it is not bound by it. This is the standard practice in modern itnernational law. You can find it in any introductory textbook to the subject...
    Very well said.
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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by ludahai View Post
    According to international law, a non-signatory to a general treaty can be regarded as having accepted provisions of the treaty even without signature and ratification by adhering to said treaty as a norm of international law in its interactions with other states.
    I guess this is why I don't have a head for this particular area of law. In my mind, either you've agreed to be bound by it or you haven't. It sounds like there's a shadowy third position, where you can act like you agree with it, until it's not convenient -- at which time you mention that you never signed on the dotted line.

    Quote Originally Posted by ludahai View Post
    You can find it in any introductory textbook to the subject...
    That's great, but the vagaries of international law aren't part of the main curriculum around here, so I'm kinda figuring this one out as I go.

    As such, since I seem to be wrong on the point I was arguing here, I was trying to milk RightInNYC a little so I don't make the same mistake elsewhere.
    I'm already gearing up for Finger Vote 2014.

    Just for reference, means my post was a giant steaming pile of sarcasm.

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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by TacticalEvilDan View Post
    Okay. I guess what it comes down to is my Constitutional pedantry won't necessarily get me much further than the door of the proverbial social club, if in fact most of the rules aren't written.

    For some reason I was under the impression that they were.

    I guess that's what I get for spending too much time thinking about the Geneva Conventions, much less the Constitution.
    Almost all major countries are signatories to most of the important treaties, which means that most issues are governed by written rules. However, there are still many areas outside those fields that are governed by things that are less clearly codified.

    Quote Originally Posted by TacticalEvilDan View Post
    Hold on, wait just a damn minute.

    If it isn't written, how the hell is it international law?

    Is it generally accepted custom to refer to unwritten and therefore highly debatable rules as "law?"
    Absolutely. This is one of the reasons why many people (myself included) think that international law is by and large a crock of ****.

    International law is comprised of three things:

    1) Treaties and other written conventions
    2) International custom
    3) General principles of law

    The last two are highly ambiguous. Although the "general principles of law" have been laid out by a few written treatises, international custom (aka customary international law) is almost entirely a product of argument and interpretation.

    ...

    IFLR: Customary International Law

    What is customary international law?

    "It consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way." (Rosenne, Practice and Methods of International Law, p. 55)

    The elements of customary international law include:

    1. Widespread repetition by States of similar international acts over time (State practice).
    2. Acts must occur out of sense of obligation (opinio juris).
    3. Acts must be taken by a significant number of States and not be rejected by a significant number of States.

    "Customary international law develops from the practice of States. To international lawyers, the practice of states' means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern."
    Customary international law and general principles of law served as the backdrop for almost all international law in the pre-UN era. Since then, written treaties have become more important, but these types of law are still crucial.

    Quote Originally Posted by TacticalEvilDan View Post
    I guess this is why I don't have a head for this particular area of law. In my mind, either you've agreed to be bound by it or you haven't. It sounds like there's a shadowy third position, where you can act like you agree with it, until it's not convenient -- at which time you mention that you never signed on the dotted line.
    It's not quite like that, ludahai is referring to a way in which a country can be bound to portions of a treaty despite never affirmatively signing it.

    For an example, let's say that there is no clear customary law laying out the number of warning shots that a ship must fire before boarding a ship that has entered territorial waters. You're the head of TEDonia, and whenever a ship comes into your area, you fire three warning shots. You're not required to do that, that's just the way you do business. Let's say that next year, the leaders of almost every other country sign a treaty that deals with international shipping, and includes a minor provision that says that you must give at least two warning shots before boarding a ship. You don't sign the treaty because you're unhappy about tariffs or some other issue, but you nevertheless keep on firing three warning shots before boarding, saying that you think that part of the treaty is a good international practice. Ten years down the road, a new leader of TEDonia is in power and gets pissed at a ship that comes near its borders. He orders his troops to capture the ship without firing a warning shot.

    Now, because you never objected to the provision requiring two warning shots, and because your standard practice was to provide a minimum of two warning shots, the owner of that ship could argue that you implicitly agreed to be bound by that provision of international law, meaning that you were required to fire at least two shots. The fact that you never signed the treaty doesn't let you worm out of it like that.

    However, imagine that at the time the treaty was proposed, you objected vigorously, saying that although you usually gave three warning shots, you refused to do that every time and reserved the right to board without warning shots. Fast forward to the situation ten years later, and you would have been perfectly entitled to board without warning, because you made it clear at the time of the treaty that you were not going to be bound by that provision.

    It's somewhat confusing and not directly related to this issue, but it's still sort of interesting.
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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by TacticalEvilDan View Post
    I guess this is why I don't have a head for this particular area of law. In my mind, either you've agreed to be bound by it or you haven't. It sounds like there's a shadowy third position, where you can act like you agree with it, until it's not convenient -- at which time you mention that you never signed on the dotted line.
    Not quite right. If you accept it and abide by it in general practice, you are bound to it even if you are not a signatory to it. If you object to it from the beginning in both word and deed, you are not bound by the provisions.


    That's great, but the vagaries of international law aren't part of the main curriculum around here, so I'm kinda figuring this one out as I go.
    Very few people on here are likely to have ever taken a class on international law or done any serious research in the area. I have taken classes, and while my related research area was in a different part of the world (Western Pacific), the general principles apply universally.

    As such, since I seem to be wrong on the point I was arguing here, I was trying to milk RightInNYC a little so I don't make the same mistake elsewhere.
    Nothing wrong with that so long as it is done sincerely...
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  8. #448
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    Re: Israel intercepts Gaza flotilla, says Hamas

    UN urges inquiry into Israel convoy raid
    Link
    BBC News - UN urges inquiry into Israel convoy raid

    Naturally with the UN looking into this incident, they can hardly be called Neutral, thus whatever conclusion they arrive at will be clouded by their own beliefs which seem to favor any Nation excepting Israel.

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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by jujuman13 View Post
    Naturally with the UN looking into this incident, they can hardly be called Neutral, thus whatever conclusion they arrive at will be clouded by their own beliefs which seem to favor any Nation excepting Israel.
    If the UN cannot be regarded as impartial, then who can? If, and I don't think this would be accepted by anyone other than the most partisan pro-Israeli, the UN is not the impartial body to adjudicate and investigate the incident, who would you suggest should do so? Perhaps you believe that no investigation of the raids and the deaths is necessary.
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    Re: Israel intercepts Gaza flotilla, says Hamas

    Quote Originally Posted by Andalublue View Post
    If the UN cannot be regarded as impartial, then who can? If, and I don't think this would be accepted by anyone other than the most partisan pro-Israeli, the UN is not the impartial body to adjudicate and investigate the incident, who would you suggest should do so? Perhaps you believe that no investigation of the raids and the deaths is necessary.
    I think you put a lot of people on the most partisan pro-Israeli side by stating this, to me it's pretty obvious Israel has little chance of an impartial investigation done by the UN. That doesn't mean no investigation is necessary, that just means I prefer an objective party.

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