Legal Niceties: "Navy to Commission Middle East-based Expeditionary Sea Base Lewis B. Puller as a Warship "

USNI News reports Navy to Commission Middle East-based Expeditionary Sea Base Lewis B. Puller as a Warship. I've highlighted the key phrase below:

U.S. Navy photo by MC1 David Kolmel

“Converting ESB-3 to a commissioned warship (USS) will allow U.S. Central Command and 5th Fleet the flexibility needed to meet challenges in the region,” Navy spokesman Lt. Seth Clarke told USNI News. “Potential missions, such as mine-countermeasure operations and special operations forces staging, must be conducted by a warship under the law of armed conflict. In order to provide combatant commanders the maximum amount of flexibility, the Navy decided to commission ESB-3 as a U.S. warship once she arrived in [Commander of U.S. Naval Forces Central Command]/U.S. 5th Fleet area of operations.”

Clarke said the ship’s capabilities development document back in 2012 noted that the ship could temporarily commission as a warship if needed for emergent operational requirements. But, he added, “instead of being a temporary change, USNS Lewis B. Puller will be commissioned permanently as a listed warship (USS). Because of the nature of the evolving threats in the region, permanent conversion to USS reduces any ambiguity of ESB-3’s status and eliminates the administrative distraction that a temporary conversion creates while streamlining the command and control process. In 2016, the Navy began the necessary steps to commission the ship as a warship. All echelons, including the Fleet, [Military Sealift Command], the Type Commander, the Combatant Commander, and [chief of naval operations], agreed that permanently commissioning ESB as a warship was the best way forward.”

So, International Law - Mostly a Joke or What?

Let's begin with a piece from Just Security, "International Law is Failing Us in Syria"

Recent events in Syria –President Bashar al-Assad’s horrific chemical weapons attack on civilians in Idlib, and the Trump administration’s subsequent missile strikes – have again forced to the fore the debate over the legality of humanitarian intervention in international law. Naturally, we tend to focus on these questions in the context of an immediate catastrophe, or a particular use or threatened use of force. Thus, the legal question of humanitarian intervention is often inextricably bound up with the extent to which any particular military operation is sound policy. That focus may over-emphasize action, and fail to grapple sufficiently with the wide space in which states do not act, or limit policy options based, at least in part, on the constraints imposed by international law. I would like, therefore, to try to separate for a moment the legal question from President Donald Trump’s recent actions, and from our sense of the extent to which he may be able to put forward a responsible strategy in Syria. To be clear, I have little hope that this president is the one who will be able to thread this needle. But, as we are all painfully aware, Syria’s humanitarian disaster is hardly new. For years now, international law has failed in Syria.

The international law question at stake is simply this: May a state or states lawfully use force against another sovereign state for purely humanitarian reasons, without sanction by the UN Security Council? (emphasis added)....

What is "international law?" There's the classic definition:

International law, also called public international law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors.

Now, I am a simple man, and I always ask this question about any "law" - "How will it be enforced?"

As a result, in many of those cases involving things like "humanitarian intervention" my conclusion has been that the invaded or attacked country/entity seems to be the logical enforcement agent - or the entity to resist having the will of others imposed on it. A weak state which cannot deny access by the forces of "good intentions" is pretty much fair game for the stronger do-gooders of the world, regardless of UN approval or sanction.

Take Syria, please (insert Henny Youngman joke).

Some argue that there is no legal basis for intervention into Syrian domestic matters, no matter how horrific. See The U.S. Has No Legal Basis to Intervene in Syria or Breaking international law in Syria.

Others assert there is such a legal basis, as in HUMANITARIAN INTERVENTION IN SYRIA:THE LEGAL BASIS .

Some suggest that there might be a legal basis, but it hasn't been properly identified, see The ETF and the Legality of U.S. Intervention in Syria under International Law

Now, in setting out the above, I have magically confused issues: humanitarian interventions and those other justifications for fighting in another country against the regime that "rules" that land. If you read the above links you might be able to sort it out, but it misses the point I am trying to make here, which is that regardless of motivation or justification, a more powerful force - whether it be a single nation or a coalition - can violate national sovereignty of a country pretty much at will unless that country (and any allies it has) can defend itself from such violations.

When Iraq invaded Kuwait, Saddam offered rationales, but the U.S. and a coalition refuted those rationales with force. When Russia invaded Crimea or chunks of the Ukraine, it offered rationales (like "protecting ethnic Russians") and the Ukraine itself has fought back, though no alliance has jumped in with troops to help the Ukrainian forces with supporting troops. I'll toss in Libya as an example of "humanitarian intervention" but we all know that went south pretty quickly - see From Responsibility to Protect to Slave Markets, creating a whole new set of issues.

Based on where you sit, you can argue, as the Russians seem to be doing, that the intervention in Syria by non-Syrian and non-Syrian allies in the domestic affairs of Syria is illegal and that Russia and Iran are merely doing what the coalition did in the first Gulf War, protecting a sovereign country from outside forces. I'm not suggesting I agree with that view, but it is out there.

In any event, it would be nice if nations could sit around and peacefully resolve various issues, but the reality is, as Mao noted, "Political power grows out of the barrel of a gun." Substitute "International Law" for "Political power" and you will arrive at a truth. International law is of two parts - that part, like maritime law, that nations agree to for the smooth flow of trade which directly benefits them and the other type, that part which "grows out of the barrel of a gun."

So, call me a cynic, but worrying about the niceties of international law in light of what is happening in the reality of Syria is to completely miss the point. This is about power and, ultimately, international law is only as strong as the ability to enforce it.

UPDATE: See also International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order

Interesting Series at the NY Times Reporting on the Unregulated (Often Deadly) Aspects of Part of Life at Sea

The first two articles by Ian Urbina covering some of the less pleasant aspects of life at sea are up at the NYTimes as a series on "The Outlaw Sea."
1.  Stowaways and Crimes Aboard a Scofflaw Ship

Few places on Earth are as free from legal oversight as the high seas. One ship has been among the most persistent offenders.

and 2. Murder at Sea: Captured on Video, but Killers Go Free:

A video shows at least four unarmed men being gunned down in the water. Despite dozens of witnesses, the killings went unreported and remain a mystery

Ships belong to and are legally controlled by their flag states. This may mean there is no control at all as a practical matter.  Often, in the absence of a civilizing force,  Hobbes was right with this:

Whatsoever therefore is consequent to a time of Warre, where every man is Enemy to every man; the same is consequent to the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withall. In such condition, there is no place for Industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.
(Hobbes, LEVIATHAN, Chap 13)

I guess in theory there could be some sort of policing done at sea, but like many theoretical things, the realities are that people are being killed, enslaved and otherwise maltreated at sea and the sovereign rights of nations rule.

If there is good news, the numbers of bad actors is really pretty small in the great scheme of things. The bad news is that by recruiting crews from dirt poor areas of the world that many of the crewmen so recruited are cowed into submission in order to keep what little money they earn.

I look forward to the next installments.

"Should U.S. worry about China's island building?"

James Kraska on CNN: Should U.S. worry about China's island building?

Short answer: Yes!

Meanwhile, over the past six weeks, Philippine and U.S. maritime patrol aircraft have been warned away from the artificial island, as though China is claiming that its work generates a territorial sea and national airspace. U.S. Navy Adm. Harry Harris has dismissed these maritime claims as "preposterous," while Defense Secretary Ash Carter has stated that the United States will "fly, sail, and operate wherever international law allows."

The "United States and everyone else in the region has a stake in this" because "it gets to the question of freedom of navigation, freedom of the seas, freedom from coercion, abiding by peaceful and lawful processes," Carter told the media on his way to Singapore for the Shangri-La Dialogue security conference. "[A]nd that is...a longstanding U.S. position, as is freedom of flying, freedom to sail."

International law appears to support U.S. officials' skepticism about China's seeming territorial aspirations.

Under article 121 of the U.N. Convention on the Law of the Sea (UNCLOS), only "naturally formed" islands or rocks that are above water at high tide generate a 12-nautical mile territorial sea -- there is no lawful claim of sovereignty over a submerged reef or artificial island. Despite this, on April 24, China flashed powerful lights at Philippine aircraft near Subi reef and reportedly warned it to leave Chinese "territory."

Read the whole thing.

Nice power play, you've got there China. But a little ham-handed.

Fun in the South China Sea: Islands in the Stream

In the South China Sea (SCS) China is rushing to present the world with a fait accompli by hurrying to place runways and port facilities on what were, a couple of years ago, mere high spots in the water constituting hazards to ship navigation.

This has been behind my re-tweeting a number of James Kraska's tweets on the legal aspects of China's aggressive activity in the South China Sea in "developing" islands in contested waters.

How do we know their intent? As have many others, I have watched the CNN footage here. China is being very assertive. None of the local countries affected by this aggression are strong enough to muster any sort of response to this bully-boy tactics.

Now comes this Reuters piece, written by William Johnson, "Why a forceful U.S. response to China’s artificial island-building won’t float" which questions whether the downsized U.S. Navy (and by extension, the U.S. government) has the "wherewithal" to do anything except rely on "diplomacy" to deal with this Chinese strategy.

China's dotted line claim in the SCS

The question then becomes how best to deal with this possibility. Today the United States doesn’t have the resources in place for a major effort in the area unless it is willing to take some very great risks.

Well, you can bet the Chinese have counted on that as they have moved forward.

More irksome (at least to me) is this analysis:

In order to justify an aggressive approach, the United States must determine that the creation of these islands is threatening some vital U.S. interest. The claim that the new islands are disrupting the United States’ freedom of navigation is a red herring. To date, China has done nothing in the South China Sea to disrupt shipping. It has countered activities by other countries who assert their ownership and control in the region, notably Vietnam and the Philippines, and has asserted its own ownership and control by intercepting fishing vessels and placing oil rigs in the area. Yet none of these actions have disrupted shipping in the region. It is disingenuous for the United States to claim that by using military force to counter the island-building, it is asserting the freedom of international shipping to sail close to rocks and submerged reefs — an action no merchant vessel is likely to take.


Another flawed justification for U.S. military involvement is to defend peace and stability in the region. There have so far been no major military confrontations in the disputes between the five other countries that lay claims to the South China Sea. Journalists as well as President Obama argue that this is simply because the smaller countries are afraid to confront China due to an imbalance in military might. While this imbalance exists, it isn’t a reason for the United States to step in. The United States has taken no position on any of the territorial claims, and has urged the parties to settle their disagreements peacefully. As long as the disputing countries are not coming to blows, the United States would be rash to risk a fight with a nuclear-armed China over China’s pursuit of its claims.

A final hollow justification for military action is that the United States needs to reassure its partners and allies in the region.***

So, If I understand Mr. Johnson correctly then, there is no threat until China finishes its new "island wall" with bases that it will assert extend its national waters and then begins to exercise its new "right" to keep those waters free and clear of unwelcome guests - like the U.S. Navy.

Well, then, wow. Just wow.

I've been involved in some "freedom of navigation" actions like that shown in the CNN video. In this case, I would consider them to be the absolute minimum activity that the U.S. needs to undertake to keep the air/sea/subsea areas that these new islands might threaten from becoming something more than just a verbal threat.

Some nice analysis by Dr. Kraska in his "How China Exploits a Loophole In International Law in Pursuit of Hegemony in East Asia".

China's playing the long game for all it is worth. The U.S. needs to step up its response.

UPDATE: Another ally in the area has concerns in the SCS as set out by Bonnie Glaser in "High stakes for Australia in limiting China's South China Sea incursions":

China is seeking to exercise greater control over the waters and airspace in ways that pose threats to all nations that have interests in preserving freedom of navigation, international law and norms, unimpeded lawful commerce, and peace and stability in the South China Sea.

Interesting Reading on Law, Pirates and Private Maritime Security Forces

Worth reading the original to see part of the complexity the maritime community has to deal with in attempting to keep its ships safe and secure, here are selections from an article from Maritime Executive by Simon O.Williams, LLM dealing with  International Legal Framework Governing Maritime Security:

***
While UNCLOS [United Nations Convention on the Law of the Sea] includes several articles regulating state responses against piracy (Articles 100 to 107 and 110), the Convention provides no foundation or guidance for private efforts in combating piracy. Instead, there are many fragmented treaties, conventions, legal principles and soft law instruments that supplement UNCLOS.
***
The Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) Convention and Protocol was designed to fill voids in international law necessary to combat other threats to human life and security of navigation and commerce at sea not fully prescribed under UNCLOS. It requires states to pass legislation making unlawful piratical and terrorist acts against navigation serious criminal offenses under their national laws.
***
In 2005 the 1988 SUA Convention and Protocol were amended to become the 2005 SUA Convention and the 2005 SUA Protocol. The 2005 SUA framework contains three new categories of offenses.

         - Using a ship as a weapon or as a means for committing terrorist acts.
         - Proliferation of weapons of mass destruction (WMD) on the high seas.
         - Transporting a person alleged to have committed an offense under other                  UN anti-terrorism conventions.
***
SOLAS
***
In relation to private maritime security, a main legal conundrum with SOLAS is whether employing armed security on board a vessel can deprive the ship’s Master of their overall responsibility to control all actions aboard their vessel, as required by SOLAS. If so, this would be in contradiction of SOLAS Reg 34-1 and Reg 8, Chapter XI-2.

Many coastal states have taken additional steps to clarify the relationship between Master and privately contracted armed security personnel (PCASP), amending national legislation to reaffirm the Master’s overall authority to authorize PCASP targeting, deployment and target engagement (specifically, weapons discharge of any-kind). In an effort to resolve this dispute, the largest international shipping association, the Baltic International Maritime Council (BIMCO), has released a commercial contract template, GUARDCON, which establishes this clear line of superiority with the ship’s Master remaining in command at all times.
***
U.N. Firearms Protocol

In addition to the Law of the Sea framework, maritime security providers must also navigate the complex international legal regime of the U.N. Firearms Protocol, a legally binding agreement which entered into force in 2005, currently signed by 109 states plus the European Union, to ensure armed security provider, or those importing/transporting weapons, carry the required port and transit state permits.
***

Making this matter more complicated in recent years, floating armories have emerged as offshore supply stores delivering weapons and crews to client vessels, circumventing port and coastal state regulations and bypassing the need for import/export compliance. Of course, this has opened a Pandora’s box in terms of unaccounted-for firearms. In other circumstances, PCASP have jettisoned weapons into the sea after completing missions in order to sidestep import/export regulations reaffirmed in the Protocol.

The Principle of Self-Defense

Of primary importance to the legal reasoning behind the private use of force at sea in counter-piracy is the principle of Self-Defense.
***
“Customary international law, among other legal authorities, provides that the use of force is restricted to cases of necessity or self-defence, i.e. cases in which there is no other way out and in which the requirements of necessity, reasonableness and proportionality are observed in connection with the use of force. Such customary international law is binding […] The use of force by private security guards must therefore be based on the general, internationally accepted principles of self-defence.”
***
Moreover, individual guards or any persons aboard a vessel, for that matter, have the right to self-defense of their person. This is a fundamental human right. If pirates or other assailants are directing weapons’ fire in their direction, for example, and they believe their lives to be in grave danger, the same right of self-defense for vessels applies at the personal level.

Doctrine of Necessity

After being discussed for decades in international law circles, the Doctrine of Necessity was finally incorporated into the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts.

Article 25 of this document provides that an otherwise illegal act, such as using force to neutralize a terrorist or pirate attack at sea, can be justified if it meets two criteria.
The act was the only means of safeguarding an essential interest of the state against a grave and imminent peril.

The act did not seriously impair an essential interest of the state toward which the obligation existed.
***

As with any set of laws meant to create order out of chaos, one question remains - who will enforce the law and by what means?  It's also worth noting that pirates seem to have little difficulty with the issues of the U.N. Firearms Protocol.

Mushy Return Fire: China's "Nine Dashed Line" Fantasy Get Pelted by Marshmallows by the U.S. Department of State

Scott Cheney-Peters guests at USNI News and writes about The Expanding Assault on China's South China Sea Claims, citing what, in my opinion, is a typically mushy U.S. State Department document:

234936

If you want to cut to the chase, skip all the early stuff and head directly for the conclusion, which notes:

China has not clarified its maritime claims associated with the dashed-line maps in a manner consistent with international law. China’s laws, declarations, official acts, and official statements present conflicting evidence regarding the nature and scope of China’s claims. The available evidence suggests at least three different interpretations that China might intend, including that the dashes are (1) lines within which China claims sovereignty over the islands, along with the maritime zones those islands would generate under the LOS Convention; (2) national boundary lines; or (3) the limits of so-called historic maritime claims of varying types.

How nice of the State Department to suggest China's possible intent, instead of just noting that China lack of clarification is good cover for its attempted "land and sea grab."

Then there is this powerful concluding paragraph:

For these reasons, unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the LOS Convention, its dashed-line claim does not accord with the international law of the sea.

You have got to be kidding.

China's "grab" is not, as China well knows, covered by the law of the sea. It is, however, in  "accord" with the law of the "biggest dog" taking what it wants. The acts of a bully pushing around its weaker neighbors while attempting to provide cover for its actions with a fig leaf of "legal right" ("we once sailed through these waters, therefore they are ours" or some such baloney).

State should have written: "China's claims are unmitigated B.S. and serve only as a cover for its attempts to take over the bulk of the South China Sea with flimsiest of excuses, to the detriment both of its neighbors and the freedom of the seas."

Sorry, State, the clarification that is needed here is one that says, "If you try to take the territory and maritime rights of our allies, we will not stand idly by."

I don't think pelting aggressors with marshmallows has ever deterred anything. How many more disasters will it take for State to figure out that weakness in the face of such action just invites more aggression?

South China Sea: China and Vietnam Heat Up the Waters

Headlines read Vietnam and China face off in South China Sea:

Vietnam said on Wednesday a Chinese vessel intentionally rammed two of its ships in a part of the disputed South China Sea where Beijing has deployed a giant oil rig, sending tensions spiraling in the region.

The foreign ministry in Hanoi said the collisions took place on Sunday and caused considerable damage to the Vietnamese ships. Six people sustained minor injuries, it said.

"On May 4, Chinese ships intentionally rammed two Vietnamese Sea Guard vessels," said Tran Duy Hai, a foreign ministry official and deputy head of Vietnam's national border committee.

"Chinese ships, with air support, sought to intimidate Vietnamese vessels. Water cannon was used," he told a news conference in Hanoi. Six other ships were also hit, other officials said, but not as badly.

Dozens of navy and coastguard vessels from both countries are in the area where China has deployed the giant rig, Vietnamese officials have said.

"No shots have been fired yet," said a Vietnamese navy official, who could not be identified because he was not authorized to speak to media. "Vietnam won't fire unless China fires first."

By the way, this may not the first time that Vietnam and China have had a set to over an offshore oil rig. Way back in 1983, there was tension between the two countries over off-shore drilling. The clipping to the left reports on part of the issue.

More on the Glomar Java Sea here.

UPDATE: You can review the pdf of the U.S. Coast Guard report on the loss of Glomar Java Sea here. Some of you may recall there were questions of whether a Vietnamese vessel had rammed the vessel at some point, perhaps weakening its hull and contributing to its loss. There were also reports that some of the crew had been taken ashore. The CG report addressed some of these issues at page 19:

UPDATE2: Vietnam's side of the story:

The information was released by Rear Admiral Ngo Ngoc Thu, vice commander of the Viet Nam Marine Police at the international press conference in Ha Noi on Wednesday afternoon.

He said that Chinese ships intentionally crashed into and caused damages to the vessels of the Vietnamese marine police and fisheries surveillance force right in Viet Nam’s exclusive economic zone and continental shelf though the Vietnamese forces exercised restraint over the perverse acts of Chinese ships.

The rear admiral also showed footage provided by the Vietnamese fisheries surveillance force of a Vietnamese boat being besieged by Chinese ships during a clash. Mr. Thu said six Vietnamese people have been injured.

Speaking at the press conference, Spokesperson of the Vietnamese Ministry of Foreign Affairs Le Hai Binh said that China’s acts violate Viet Nam’s sovereignty and jurisdiction over the Southeast Asian country’s exclusive economic zone and continental shelf as stipulated in the 1982 UN Convention on the Law of the Sea.

Earlier on May 6, Deputy PM, FM Pham Binh Minh made a phone call to Chinese State Councilor Yang Jiechi after China illegally deployed a drilling rig and vessels in the oil and gas lot 143 belonging to Viet Nam’s continental shelf since May 1.

Deputy PM, FM Minh stressed that China’s unilateral deployment of the drilling rig HD-981 and a large number of vessels, even military ones, in this area is illegal, runs counter to the international law and practices, seriously violates Viet Nam’s sovereignty over Hoang Sa archipelago and sovereign right and jurisdiction over Viet Nam’s exclusive economic zone and continental shelf.

This act negatively impacts mutual political trust and cooperation aspects between the two countries and hurts the Vietnamese people’s sentiment.

Viet Nam cannot accept and resolutely protests the China’s act and demands China totally withdraw the drilling rig HD-981 as well as escort vessels from this area, together with Viet Nam to join talks to handle the related differences.

UPDATE3: More here. Photos of action are from Vietnamese Marine Police.

UPDATE4: Good stuff at USNI News.

Somali Piracy: World Bank, Interpol, UNODC Track Money Trail of Pirate's Ransom Money

The World Bank ("Working for a World Free of Poverty"), UNODC and Interpol report on the money collected by pirates in a joint report, ‘Pirate Trails’ Tracks Dirty Money Resulting From Piracy Off the Horn of Africa

Between US$339 million and US$413 million was taken in ransom from the hijacking of ships off the coast of Somalia and the Horn of Africa between 2005 and 2012, according to a report released today. The study – carried out by the World Bank, the United Nations Office on Drugs and Crime (UNODC) and INTERPOL – reveals that much of the ransom money was used to fuel a wide range of criminal activities on a global scale.

“Pirate Trails” – using data and evidence from interviews with former pirates, government officials, bankers and others involved in countering piracy – investigates the flow of ransom money paid out to Somali pirates operating in the Indian Ocean. The study examines the reach of the pirates into the stimulant “khat” trade, human trafficking and other illegal activities that hinder development.

The report:

Pirate Trails: Report by the World Bank, UNODC and Interpol on the ill-gotten money of sea pirates off the...

UPDATE: Why, yes, the post headline does read like something Ron Burgundy would say . . .

Trans-National Groups: Environmental Activists at Sea

Greenpeace photo © Will Rose / Greenpeace

Been keeping an eye on the Greenpeace "yacht" that carried activists who tried to board a Russian Arctic drilling rig. As you may recall, Russia has now charged "piracy".

Some background on the Greenpeace vessel at Maritime Professional here:

***
While Greenpeace refers to the Arctic Sunrise as a research icebreaker, it is registered with the Government of the Netherlands as a sea-going motor yacht, thus avoiding certain technicalities. It has berthing space for up to 28 persons. The ship has been used in a number of high-visibility environmental and ecological protests, some endangering navigation.
***
Despite the lack of government approval, Arctic Sunrise most recently entered Russian waters of the Barents Sea and protesters attempted to board the oil and gas platform Prirazlomnaya. A Russian Border Guard vessel fired a warning shot over the bow of the Arctic Sunrise after it refused to heave to. The Greenpeace vessel and its personnel are now under detention and federal criminal charges of piracy have been initiated.

As noted before, the UNCLOS definition of piracy is:

''Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, 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 aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).''

So, if the activists were just out to save the planet, how does that fall under the "committed for private ends" part of the definition? Isn't what they were doing a "public good" or at worst, trespassing?

Good question, and one that will have legal scholars arguing. As Maritime Law expert Eugene Kontorovich wrote at The Volokh Conspiracy,

The unusual piracy charges may well be inspired by a Ninth Circuit decision holding the Sea Shepherd’s “Whale Wars” against the Japanese whaling fleet could constitute piracy under the Alien Tort Statute, as OpinioJuris notes. I agreed with the Ninth Circuit in that case, against much protest. The question was whether piracy requires a motive to steal, and the Ninth Circuit held it does not. But the present matter is entirely different. Here it is Russia’s actions that violate international law.

The case cited by Professor Kontorovich is Institute of Cetacean Research v. Sea Shepherd Conservation Society, in which the Ninth Circuit overruled a U.S. District Court as the Ninth Circuit

"determined that 'private ends' should not be limited to individuals pursuing 'financial enrichment.' *** . . . the Ninth Circuit that 'private ends' includes those pursued on personal, moral or philosophical grounds." (from St.John's University School of Law Admiralty Practicum Summer 2013 edition)

Professor Kontorovich distinguishes the cases because (1) piracy requires an attack on a ship and an oil rig is not a ship and (2) no act of violence was performed by the Greenpeace activists.

Well, it will be up to a Russian court to sort all that out. However, it does point out that trans-national groups, even those allegedly having the best of intentions, may find themselves bumping against international law as well as the laws of sovereign states that they may not have fully comprehended.

Meanwhile, Greenpeace seeks support in setting "Free the Arctic 30". They also link to a number of legal "experts" who support their view here.

Perhaps they ought to be grateful that they didn't get the Russian "assistance" reportedly provided to suspected Somali pirates.

Note to St. John's Law - the link you cite to the Admiralty Practicum in your print publication is broken.

China: All Your (East and Southeast Asia) Seas Belong to the PRC

Defense News Reports "General Says Chinese Patrols In Asian Seas 'Legitimate' ":

“Why are Chinese warships patrolling in East China Sea and South China Sea? I think we are all clear about this,” Qi told the annual Shangri-La Dialogue security conference in Singapore.

“Our attitude on East China Sea and South China Sea is that they are in our Chinese sovereignty. We are very clear about that,” he said through an interpreter.

“So the Chinese warships and the patrolling activities are totally legitimate and uncontroversial.”

I guess they are "uncontroversial" to him and to his friends - in the PRC.

I can only believe the Philippines, Japan and a few other concerned residents of the area feel differently.


Hat tip: USNI News Room.

South China Sea: China's Activity - Vietnam calls it "sabotage"

With tip of the hat to Walter Russell Mead Chinese Sabotage in the South China Sea, it's off to the Chinese "Bad Neighbor Policy" or, perhaps, the "Chinese Big Ugly Stick Policy."

See Vietnam accuses China of maritime sabotage and this Reuters piece, . From the latter:

Vietnam's condemnation came a day after its state oil and gas company, Petrovietnam, accused Chinese boats of sabotaging an exploration operation by cutting a seismic cable being towed behind a Vietnamese boat.

Vietnam's Foreign Ministry spokesman condemned the cable cutting as well as some recent Chinese provincial regulations that identified the disputed Spratly and Paracel islands as Chinese, and a map that did the same thing.

"The actions of the Chinese side have seriously violated Vietnam's sovereignty over the two archipelagos," the spokesman, Luong Thanh Nghi, said in a statement.
***
India has also declared itself ready to deploy naval vessels to the South China Sea to protect its oil-exploration interests there, a new source of tension in a disputed area where fears of conflict have been growing steadily.

Indian navy chief, Admiral D.K Joshi, said on Monday that, while India was not a territorial claimant in the South China Sea, it was prepared to act, if necessary, to protect its maritime and economic interests in the region.

"When the requirement is there, for example, in situations where our country's interests are involved, for example ONGC ... we will be required to go there and we are prepared for that," Joshi told a news conference.

CDR Salamander has a post on the potential Indian deployment here.

Something else to keep and eye on.

Caribbean Sea Space Dispute: Colombia and Nicaraga

A dispute between neighbors (see the map) about valuable sea space as set out here:

While the International Court of Justice at The Hague ruled on November 19 that Colombia does in fact own the regional islands of San Andres, Providencia and Santa Catalina, it gave the expanse of some 120 square kilometers of oil-rich ocean to Nicaragua. Colombia, which has long fought to keep the area, has rejected the decision and officially left the Bogotá Pact, a 1948 treaty which recognizes ICJ rulings to find peaceful solutions to these types of conflicts.

The country claims that by rebuffing the pact, it does not have to follow the decision. But Nicaraguan President Daniel Ortega supports the court and says his navy is now “exercising sovereignty in all territory.”
***

Nicaraguan fishermen report harassment:

Nicaraguan fishing boat captains on the Caribbean Sea say they are “fishing with fear” among Colombian warships that continue to ply Nicaragua’s recently recovered waters beyond the 82nd meridian. But they insist they are doing their patriotic duty to exert Nicaraguan sovereignty in the area.

“We are doing our part to support the government,” says Carlos Javier Goff, president of the Copescharley fishing company out of Puerto Cabezas. “We feel protected by the government and by the international community and, God willing, this won’t go to extremes…it won’t get beyond words and intimidation.”

Goff, whose fishing company has seven boats currently fishing near the 81st meridian, in waters still protected by Colombia despite the Nov. 19 world court ruling that establishes the waters as Nicaraguan territory, says his crews were harassed all last week by Colombian forces. He says his boat captains report the presence of two Colombian warships, which routinely deployed go-fasts to circle the Nicaraguan fishing boats. One of Colombian patrols allegedly attempted to board one of his Nicaraguan fishing vessels early last week, but the captain wouldn’t let the Colombian mariners aboard.

The harassment was also coming from the air, Goff says. “They were doing daily flyovers of our boats last week in helicopters and planes,” he told The Nicaragua Dispatch in a phone interview this morning.

The International Court of Justice materials relating to this dispute can be found here. Colombia has indicated disagreement with the ruling. Below is the press release the ICJ issued on 19 Nov 12:
ICJ Press Release Disp

A report on a meeting between the presidents of Nicaragua and Colombia "Nobody wants war":

Both presidents explained their respective country’s position on the matter and stressed the need for a solution through channels of diplomacy and dialogue.

“Of course nobody wants a bellicose confrontation. That is the last recourse,” Santos told reporters in Mexico following his sit-down with Ortega. “The way to resolve these types of situations is through dialogue—a sensible dialogue in which the positions are clearly stated and established, like we did in telling President Ortega what Colombia’s position is.”

Though the Colombian warships continue to ply Nicaraguan waters two weeks after the ICJ’s ruling, Santos said his country will look for mechanisms for international diplomacy to resolve the issue and “reestablish the rights that the ruling violated.”

Ortega, for his part, repeated that Nicaragua will continue to respect the ancestral fishing rights of the raizal, the Creole population of the Colombian islands of San Andres and Providencia.

“We are giving a message of peace and we are saying with total clarity that we are going to develop mechanisms for communication in all areas mentioned to guarantee the security of everyone, assuring the raizal people of their fishing rights, and also offering guarantees to the fishing industry based on San Andres,” Ortega said.

Something to keep an eye on.

UPDATE: Some thoughts on ramifications Colombia-Nicaragua ICJ Case Tests Region's Crisis Resolution Mechanisms


Circle on map is meant to show general are of dispute. Maps in the ICJ press release show actual areas involved.

China: South China Sea Threats and Denials

China is doing one of its usual song and dance routines with respect to its claims to a large chunk of the South China Sea. First, it announces an increase in the authority of its "patrols" in the area as set out in Patrols in Hainan get more clout:

Police in Hainan will be authorized to board and search ships that illegally enter the province's waters in 2013, the latest Chinese effort to protect the South China Sea.

Under a set of regulation revisions the Hainan People's Congress approved on Tuesday, provincial border police are authorized to board or seize foreign ships that illegally enter the province's waters and order them to change course or stop sailing.

The full texts of the regulations, which take effect on Jan 1, will soon be released to the public, said Huang Shunxiang, director of the congress's press office.

Activities such as entering the island province's waters without permission, damaging coastal defense facilities, and engaging in publicity that threatens national security are illegal.

If foreign ships or crew members violate regulations, Hainan police have the right to take over the ships or their communications systems, under the revised regulations. (emphasis added)

Of course, this was followed by other semi-disclaimers, see China values free navigation in S. China Sea for example:

China attaches great importance to the freedom of navigation in the South China Sea, Foreign Ministry spokesman Hong Lei said at a regular press briefing on Friday.

Hong made the remarks in response to a question regarding recent reports that border patrol police in south China's island province of Hainan were given the power to embark on and check ships that illegally enter its waters.

China conducts marine management in accordance with international law and national law and safeguards its territorial sovereignty and rights over the South China Sea, the spokesman said.

"Meanwhile, we insist that all relevant disputes with neighboring countries should be resolved through friendly negotiation and consultation," Hong said.

All countries have freedom of navigation in the South China Sea in accordance with international law, he said.

"China highly values free navigation in the South China Sea," Hong said. "At present, there are no problems in this regard."

Or, China seeks no marine hegemony: spokesman:

China's Defense Ministry spokesman on Thursday stressed that the country's move to build itself into a maritime power has nothing to do with seeking hegemony.

China wants to become a maritime power in order to enhance its capacity to exploit marine resources, develop the marine economy, safeguard the country's maritime rights and interests, and ensure a sustainable economic and social development, Geng Yansheng told a regular press conference.

That does not mean that China is aiming at expanding its presence at sea, nor at marine hegemony, Geng said.

Chinese leader Hu Jintao's report to the 18th National Congress of the Communist Party of China earlier this month spelt out future efforts to build China into a maritime power.

The spokesman further denied interpretations that this position indicates a more hardline approach by China in its marine sovereignty claims, such as over the Diaoyu Islands.

"China's stance of safeguarding the country's legitimate sovereign rights and interests should not be regarded as a hardline approach," he said.

According to Geng, China will resolutely protect its sovereignty, security and development interests and will never yield to any outside pressure.

Safeguarding the country's marine rights and interests is one of the military's important duties and the army will well perform its duties under the country's deployment, Geng said.

Meanwhile, the spokesman noted, China is always committed to peaceful settlement of international disputes and opposes the wanton use of force or threat to use it.

China's armed forces advocate and follow the concept of a "harmonious ocean," and comply with the UN Charter as well as other international laws and rules, Geng said, adding that the Chinese military is active in taking part in international dialogue and cooperation in marine security and is willing to join other countries in maintaining security at sea.

Right, just remember that deeds speak louder than words.

Oh, yeah, and what the heck is "engaging in publicity that threatens national security?"

Somali Pirates: Were innocent fishermen killed by counter-pirate forces?

Bloomberg report, "Fighting Piracy Goes Awry With Killings of Fishermen", in which it is alleged that "Russian soldiers" riding a Norwegian ship fired upon and killed a Yemeni fisherman:

From 500 meters (1,640 feet) away, gunshots erupted from the tanker toward Quanas’s skiff and its unarmed fishermen. Two rounds pierced the water on the motorboat’s starboard side, and a third slammed into Quanas’s face, just under his right eye, according to survivors on the boat and a Yemeni Coast Guard investigation. As the bullet came through the back of his neck, Quanas moaned, held out a hand, collapsed and died.
***
Russian soldiers aboard the Norwegian-flagged ship fired the bullets that August day, according to a report from a private security team that was also on the tanker. The soldiers had been temporarily assigned to the Nordic Fighter by their country’s navy to protect the vessel as part of a Russia-led convoy navigating toward the pirate-infested Gulf of Aden, which some 23,000 ships use to move goods between Europe and Asia annually.
***
Quanas, who was about 38 when he died, is one of at least seven Yemeni fishermen who have been shot and among five killed since 2009 by soldiers assigned to deter pirates, according to records supplied by the Arabian Peninsula nation.
***
The Russian Navy denies responsibility for Quanas’s death, as does the company that owns the Nordic Fighter.

This incident is reported to have occurred in the Red Sea, placing it in interesting jurisdictional territory.

No one is being prosecuted, a noted in the Bloomberg piece:

Generally, incidents in international waters are governed by laws of a ship’s flag state, says Christoph Hasche, managing partner of Fleet Hamburg, a law firm specialized in international shipping and trade.

Prosecutors in Norway decided against opening an investigation, in part because of the hurdles in taking soldiers to trial, says Siri Frigaard, chief public prosecutor and director of the Norwegian National Authority for Prosecution of Organized and Other Serious Crime. She said information in the file indicated the Russian soldiers fired their weapons, but declined to provide other details, citing Norwegian police secrecy laws.

While the piece asserts that such incidents are "likely" in a sea with lots of armed men protecting ships from other armed men, it avoids placing the blame squarely on the shoulders of the Somali pirates, whose actions, after all, are the primary reason all those armed men protecting ships are out there.

Some Countries Offering "Insurance" Money for Evading the Iranian Sanctions

Short report from PennEnergy on a couple of countries offering "insurance" money to support tankers which evade economic sanctions against Iran at India offers $50MM in coverage for Iranian tanker runs:

Indian oil transportation companies will be able to receive some limited coverage from the government for oil tankers making trips to Iran, according to Reuters. The recent sanctions imposed against Iran for its continuing efforts to develop its nuclear program, and as many Western nations fear nuclear weapons, have largely prevented Indian oil companies from finding insurance for their oil ships.
***
In response, the Indian government has offered to insure as much as $50 million for any "Indian flag carriers" traveling to Iran. This amount falls well short of the actual liability incurred by oil tankers on any given trip, but it comes to more than six times as much as the Japanese government has offered its companies, illustrating India's interest in continuing the flow of Iranian oil.

Insurance Insight provides some background:

The concern for Asian nations such as India, China and Japan has been that their ships, which are highly dependent on the International Group of Protection & Indemnity Clubs and its reinsurance programme, will be unable to sail if they cannot obtain cover.

Another Insurance Insight report on limitations placed by Japanese insurers on tankers carrying Iranian crude:

Japanese oil buyers will be forced to coordinate schedules after insurers warned they will cover only one tanker transporting Iranian oil at a time after the 1 July sanctions deadline.
***
According to Reuters, the three insurers together can provide only up to ¥30bn ($370m) at one time in hull and machinery cover, which protects vessels against physical damage, without relying on the European reinsurance market to hedge the risk.

This is enough to cover insurance for only one tanker travelling in the Gulf with Iranian crude oil, Insurance Insight understands.

So, India and Japan as "sanction busters?"

Earlier report here, where China is added to the list of Iranian oil carriers.

Counter-Pirate Private Armed Security Teams: The Economist Take

That the world of armed private security teams on ships is complicated will not be a surprise for those who have taken a look at Maritime Private Security: Market responses to piracy, terrorism and waterborne security risks in the 21st century, edited by Patrick Cullen and Claude Berube, but The Economist tries its hand at pointing out some of the legal ramifications of the those armed private security teams in its piece, "Piracy and private security: Laws and guns":

The idea may seem simple but its legal framework is not. Under the United Nations Convention on the Law of the Sea a ship’s crew, including guards, must abide by the home laws of a vessel’s flag state. But these vessels ply international waters, meaning that regulation is scant. An array of standards created since 2009 suggests good practice for private security teams, but none is legally binding.

Yes, the world can be confusing place, what with all those different countries and their conflicting laws . . .

"Expanding Private Sector Partnerships Against Piracy"

From the U.S. Department of State: "Expanding Private Sector Partnerships Against Piracy":

Yet we must also recognize that best management practices do not guarantee security from pirates. Pirates operate in too large of an area for naval forces to respond quickly. The reality is that international naval forces simply might not be there to respond. The problem of piracy is one that can’t simply be solved by national governments. Therefore, we have also supported industry’s use of additional measures to ensure their security – such as the employment of armed security teams. To date, not a single ship with Privately Contracted Armed Security Personnel aboard has been pirated. Not a single one.

These teams serve as a potential game-changer in the effort to counter-piracy. This is because – and as anyone in the Navy or Marines can tell you – one of the most difficult combat maneuvers to undertake is to board a ship when coming under fire. While many expected these teams to be made up of undisciplined “cowboys” that would increase the violence at sea, from what we have gathered and observed the opposite has happened. We have not seen cases of pitched battles at sea between armed security teams and pirates attempting to board under fire. In fact, in most engagements between armed security teams and pirates, the situation ends as soon as pirates are aware these teams are on board. We have found these teams to be highly professional. In most cases, as pirates approach a ship the armed security teams will use flares or loudspeakers to warn the pirates. If the pirates keep coming, they will fire warning shots. That is usually when the interaction ends. Pirates break off the attack and turn their skiffs around and wait for another less protected target.

At the State Department, we have encouraged countries to permit commercial vessels to carry armed teams. However, we do note that this is a new area, in which some practices, procedures, and regulations are still being developed. We are working through the Contact Group and the International Maritime Organization or IMO on these issues. For instance, we have advised that armed security teams be placed under the full command of the captain of the ship. The captain then is in control of the situation and is the one to authorize the use of any force. Last September, we were encouraged to see language adopted by the IMO that revised the guidance to both flag States and ship operators and owners to establish the ship’s master as being in command of these teams.

There have been some logistical and technical issues that have arisen with armed security teams – particularly relating to weapons licensing and the transit of these teams through third countries. The United States regularly works with other governments to help resolve questions on weapons licensing to facilitate compliance with the laws of individual port States as related to firearms transfer. We engage through the Contact Group and the IMO to encourage all port and coastal States to adopt legislation that is conducive to smooth, facilitated movements of security team firearms and equipment. Currently, some States present challenges in this regard by requiring transfer to a third party while a vessel is moored in a port. Others impose fee schedules that directly charge against the presence of these weapons. In response, we have demarched port and coastal States and let them know that U.S. vessels may have firearms onboard and we request that these teams and their firearms be facilitated under applicable laws. We have also worked with the Coast Guard and Department of Transportation at the IMO and through the Contact Group to further encourage port and coastal States to develop regulations that facilitate the use of these teams aboard commercial vessels. We are working hand in glove with industry in all these endeavors to ensure these teams are both properly regulated and properly equipped.

Armed Guards on Merchant Ships: The "Flag-State Endorsement"

Who will be responsible for Barney?

Interesting update to the Italian armed guard mess off India at The Hindu "Business Line" Ships with armed guards: Govt may fix responsibility on flag-state:

India's maritime administration may make ‘flag-state endorsement' mandatory for foreign merchant ships entering Indian waters with armed security guards on board. The idea is to make the Government of the country in which the ship is registered (flag-state) also responsible for any action on the part of the armed guards deployed on the vessel.
***
Currently, flag-states give a general approval for shipping companies to engage private security guards. The contract is between the ship owners and the security agency which provides the armed men. With rising incidents of attacks on cargo ships by Somali pirates, many countries, including India and Italy, have allowed their merchant ships to have armed guards on board. Ships have to follow the policy (on deployment of guards) of the country in which they are registered. The policy is based on the International Maritime Organisation (IMO) guidelines.

Problems can arise when the ship is owned, managed and operated by people of different nationalities. Typically, a ship may be registered in one country and its owner based in another. Further, the private security agency that provides the guards could be operating from a third country. Adding to this, there is every possibility of the security men belonging to different nationalities. Given such complexities, Government officials here said it needs to be made mandatory that flag states should shoulder the responsibility of ensuring that any liability arising out of reckless acts by armed men on board are honoured.

Of course, there are problems with such an "endorsement," too. What if the foreign merchant ship is not in "Indian waters?" In fact, what if the entire act complained of occurs on the "high seas?" How do you hold the government of some "flag of convenience" state like Tuvalu responsible? Somewhere I once dug up the info that about 35% of shipping sails under a "flag of convenience." Is India going to forbid entry to its waters for such ships - not that it may matter all that much because many of those ships can't afford or won't hire armed security guards.
UPDATE 22 Feb 12: "It was an accident, not manslaughter" - an opinion piece.

Somali Pirates: What do we do with some captured pirates?

Sadly, not a Somali pirate

Here's another article in what seems to be a semi-annual review of the problems of international law and the effort to bring captured pirates to justice - this time from the NY Times "Seized Pirates in Legal Limbo, With No Formula for Trials":

Vessels from several navies collaborating on counterpiracy are holding a total of 71 captured pirates, according to Vice Adm. Mark I. Fox, commander of the United States Navy’s Fifth Fleet. No system has been developed for prosecuting their cases.

“There is not a repeatable international process to bring them to justice,” Admiral Fox said, in a recent interview in Bahrain. “We lack a practical and reliable legal finish.”
***

The many possible permutations for prosecuting the 15 pirates now locked up in the Vinson almost perfectly capture the puzzle surrounding such cases.

The pirates are Somali. They attacked the motor vessel Sunshine, which is Greek-owned but operates under a Bahaman flag. They were detained in international waters, but in the so-called exclusive economic zone of Oman. And they had commandeered an Iranian fishing vessel and held the crew hostage for more than a month.

The Navy took the pirates into custody. But the former hostages returned to Iran, and the Sunshine simply steamed on, over the horizon and out of sight.

So which country should take the case? And how would it hold the pirates before trial, collect evidence, and arrange for foreign witnesses and foreign investigators to testify?

So, these pirates have become somewhat akin to "The Man Without a Country" , whose punishment was to be forever transferred from one ship to another to another . . .      Of course, Philip Nolan had the benefit of a trial. H/T: Lee.