Must Read: Holmes on China

Important reading from Peter Navarro's interview with Professor James Holmes of the U.S. Naval War College at Real Clear Defense's Crouching Tiger: James Holmes on China:

Holmes: The Chinese have been very forthcoming with us about what their aims are. I'm not sure that there's a lack of transparency at all. They've told us face to face, including in meetings here in Newport [at the Naval War College] that they want to set the terms of access to the waters and the skies they claim as their own. That's very straightforward and it conforms pretty much ideally to what they have actually done over the past five years since they seemed to have cast off their soft power offensive – their charm offensive towards the region.

On President Obama’s “pivot” to Asia, Holmes pulls no punches:

Holmes: The metric that President Obama and his advisors have put out is that the United States is going to a 60-40 split [of ships] between the Atlantic and Pacific fleets. But if you look at what ten percent of the United States Navy is going to the Pacific, a lot of it is a lighter combat and literal [sic] combat ships. These are not high-end combat assets. So it's a little bit misleading -- and also the pivot is happening very slowly as well. So as diplomatic signals go, as deterrence signals go, this is a pretty Bush{sic] league thing.
****
Holmes: The Chinese have been very adept and I've actually been rather impressed with their ability to have a truly maritime strategy. A truly maritime strategy incorporates not just navies but also shore-based hardware – aircraft, missiles, and so forth. It also incorporates law enforcement assets; and for the Chinese, it also includes the fishing fleet. These things that we would think of as commercial vessels – they act as an unofficial arm of Chinese sea power at times.

I think the asymmetry between white hulls and gray hulls is very important. The Chinese are very deft at using these coastguard cutters to essentially stake their claims. These are police assets. The other coastguards reigning in the South China Sea are not nearly big enough or strong enough to stand up to even the China Coastguard.

So if you think about the dilemma that it would put the Philippines or Vietnam or any of these other nations in to counteract these China Coastguard patrols, they would have to use naval force and if it came to shooting, who's going to look like the bad guy? So that's a serious asymmetry that we are still coming to terms with and trying to figure out how, how do you counter such a strategy.

In the face of China’s white-hulled strategy, one of Holmes big concerns is the lack of pushback by a US hamstrung by a shrinking navy. Here, Holmes sees China strategy of expanding its authority as an attempt to establish its own Monroe Doctrine for Asia...

I encourage you to read the whole piece and watch the video at the above link.

As I have noted before, China has the "neighborhood bully" syndrome writ large and hopes to present the world with a fait accompli of "ownership" of the Souh China Sea. The weakness demonstrated by the U.S. in the face of China's actions serves only to assure China's leaders that they are punching a paper dragon.

It doesn't help that  our senior leadership has an very ivory tower, law professor-ish view of the world that seems to  believe that the rule of international law can be enforced through "understandings," vague "agreements" and quasi-treaties, instead of by the willingness and ability to apply proportionate (and perhaps more than proportionate) force to deter bad actors.

 In short, to borrow a phrase from Chairman Mao, ""Political power grows out of the barrel of a gun." - a concept well understood by the Chinese leaders.

 Which thinking applies, surprise, surprise to international politics, too. Or, perhaps, especially to international politics. See Clausewitz, "War is the continuation of politics by other means."

South China Sea Bully: China's "People's War at Sea"

Armed Chinese "fishermen" attack Vietnamese fishing boats as reported by Tuoi Tre News here:

A Vietnamese fishing boat from the central province of Quang Ngai was operating in the Vietnamese waters in the East Vietnam Sea on Friday when it was reportedly attacked by three Chinese ships, local authorities said.

These Chinese ships got close to the QNg 96507 TS, with 16 fishermen on board, when it was fishing off Vietnam’s Hoang Sa (Paracel) archipelago, the authorities of the province’s Ly Son District said on Saturday, citing a report from the attacked boat’s captain, Nguoi Lao Dong (Laborer) newspaper reported.

Crew members of the foreign ships, which were in white and coded with 46102, 45101 and 37102, got on board the local boat, with AK assault rifles and electric batons in their hands, said captain Nguyen Loi.

These Chinese then beat a number of the fishermen with their weapons, causing injuries to them, Loi said.

The foreigners also smashed navigation equipment and fishing tools on the local ship, and took away all the aquatic products from it.

This report is covered by the U.S. Office of Naval Intelligence in its Worldwide Threats to Shipping report of 6 August 2015 (pdf).

In most of the world, fishermen do occasionally spar over fishing areas, but this reported incident has some interesting characteristics. First, the Chinese fishermen had weapons - "AK assault rifles and electric batons" - and this, with the Chinese, heavily implies some sort of official sanction in having fishing boats so equipped - though many near coastal fishing boats do carry some sort of weaponry to fend off sea robbers, this has the feel of something more.

In addition, as well set out by James Kraska in his Diplomat article, "China’s Maritime Militia Upends Rules on Naval Warfare: The use of fishing vessels as a maritime militia has profound legal implications":

With 200,000 vessels, China operates the largest fishing fleet in the world, and its commercial industry employs 14 million people – 25 percent of the world’s total. This massive enterprise operates in conjunction with the armed forces to promote Beijing’s strategic objectives in the South China Sea and East China Sea. The militia, for example, were involved in the 1974 invasion of the Paracel Islands, as well as impeding freedom of navigation of U.S. military survey ships. The maritime militia also provides logistics support to Chinese warships. In May 2008, for example, militia fishing craft transferred ammunition and fuel to two warships near Zhejiang Province.

Fishermen are assigned to collectives or attached to civilian companies and receive military training and political education in order to mobilize and promote China’s interests in the oceans. The fishing vessels of the militia are equipped with advanced electronics, including communications systems and radar that supplement the PLAN force structure and enhance interoperability with other agencies, such as the China Coast Guard. Many boats are equipped with satellite navigation and can track and relay vessel positions, and gather and report maritime intelligence.

The fleet support missions being undertaken by China’s maritime militia may make fishing vessels lawful targets during armed conflict, with potentially tragic consequences for legitimate fishermen from China and nearby states. This is an example of China’s “legal warfare,” which is the perversion of legal concepts or processes to counter an opponent. Unlike the Philippines’ arbitration case over China’s dashed line, which is not “legal warfare” because it simply seeks a legal determination based on the rule of law, the maritime militia exploit seams in the law and thereby place at risk the very civilians that the law is made to protect. (emphasis added)

Professor Kraska is also author (with Michael Monti) of a recent U.S. Naval War College (NWC) study The Law of Naval Warfare and China’s Maritime Militia (pdf):

China operates a distributed network of fishing vessels that are organized into a maritime militia to support the People’s Liberation Army Navy (PLAN). The militia is positioned to conduct a “people’s war at sea” in any futureconflict. This strategy exploits a seam in the law of naval warfare, which protects coastal fishing vessels from capture or attack
unless they are integrated into the enemy’s naval force. The maritime militia forms an irregular naval force that provides the PLAN with an inexpensive force multiplier, raising operational, legal and political challenges for any opponent.
***
In a meeting last year, a former admiral of a blue water naval force in Northeast Asia said off the record that Chinese fishing vessels operate with military personnel on board — a point seconded by the retired chief of navy of a Southeast Asian State now at odds with China over maritime claims.
***
China believes that a civilian militia composed of fishing vessels may be a less provocative means of promoting its strategic goal of regional hegemony. During peacetime, this approach is likely correct since fishing vessels are not instruments of war. Opposing States are less inclined to mobilize to resist fishing vessels in the same way they would resist foreign warships. (emphasis added)

Well, that may be true to a point. But it seems to me to be a very short step from identifying the Chinese bullying tactics and the placement by the PLAN of armed troops on fishing boats for those threatened states to respond by placing their own armed military or quasi-military forces onto to their own fishing fleets and thereby potentially escalating matters with some rapidity.

I highly recommend reading the two Kraska pieces in their entirety - these are not dry law review articles concerning the meaning of the placement of an "and" instead of an "or" in some part of the Bankruptcy Code, but rather the analysis of Chinese efforts to push the limits of international law (not that international law seems to restrict great powers all that much, a cynic would say).

The greater point is there is more to worry about than just interference with regional fishing fleets in China's actions.

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.

Iran Strikes Back II: Lawfare and the Iranian "Ship-napping"

A couple of good legal analyses of the Iranian grab of the chartered vessel Maersk Tigris (as initially discussed at Iran Strikes Back: "Iranian Navy fires at, boards commercial container ship").

Both are worth reading to get a flavor of how Iran is attempting to mask the issue of its illegal "ship-nap" in a flurry of legalistic mumbo jumbo.

First is James Kraska's piece at Defense One, "Iran’s Disingenuous Approach To Maritime Law":

Even assuming that the regime of innocent passage applied to the Maersk Tigris, however, Iran’s seizure was still unlawful. Tehran is trying to replace the package deal of the law of the sea with a cafeteria-style selection of favored provisions and rejection of others that benefit and protect the international community. This conduct is of a familiar style and pattern for the regime in Iran, and an indictment on its ability to implement international law in good faith.

Second is Eugene Kontorovich's discussion in the Washington Post/The Volokh Conspiracy, Iran’s legal claims for seizing the Maersk Tigris:

. . . . Iran’s seizure clearly violates international law, and one might add, a branch of international law that is ordinarily well-respected, and quite fundamental for global commerce. Moreover, no maritime lien gives Iran any authority to detain the crew.

Given the flagrant breach of international law, there seems to be a surprising silence from the “international community” and proponents of global governance. . . .

Well, illegal it may be, but Iran holds the trump card - it has the ship and its crew.

It also has its own courts to rule on its actions in grabbing the ship. And it knows, as I pointed out in my first post on this matter, that that no one, including the U.S.

is ready to go to shooting war over this sort of action.

In its asymmetric battle against the "west", Iran is compelled to lie about almost everything, almost all the time. Clearly, Iran has its internal reasons for some of the embellishments it puts on the matters it is involved in. If they manage to fool a few Westerners along the way - well, so much the better. Grabbing ships at sea - that requires a new level in lying. Sort of a "step up" in bald-faced prevarication. Much like Putin in Russia . . .

But just like the "lawfare" being waged by the Chinese in the South China Sea or, on occasion, by the North Koreans, this new asymmetric approach is like the "big lie" practices of past thugs and dictators - meant to fool most of the people, most of the time, while concealing the mean spirit that animates it. If you like, it's nibbling around the edges of real war.

USN photo by MC2 Oki

In the case of the Strait of Hormuz, it now mandates an active escort system for U.S. flagged ships. And that means more work for an already too small fleet.  Those U.S. Navy patrol ships in the photo above are being used as escorts. They are about 20 years old and will need replacing soon.
 
By its actions, Iran has set up a very dangerous environment in which a shooting war is more likely.

All couched in nice legalistic nonsense.

The question is, of course, who will do anything about this "illegal act?"

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.

China Building Islands in the South China Sea: Unsinkable Aircraft Carriers

Interesting video from James Hardy of IHC Jane's Defence Weekly discussing "Castles made of sand: Chinese land reclamation in the South China Sea":



When a land power wants to set up locations for bases to control the air and sea in areas of interest to them ...

Hat tip to James Kraska, Professor of Oceans Law and Policy, Stockton Center for the Study of International Law, U.S. Naval War College, who also notes the under the United Nations Convention on the Law of the Sea, Section 121, such "land reclamation" does not create new "islands" under the terms of UNCLOS because Section 121 provides:

Article121

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. (emphasis added)

Under UNCLOS, this would seem to defeat any claims China might assert to increasing their territorial waters or exclusive economic zone on the basis of 'land" totally reclaimed from the sea. However, where China asserts sovereignty over existing islands or rocks which were "naturally formed" (albeit now enhanced through reclamation) the issue seems to be one of their legal right to assert such sovereignty.

Nonetheless, just as Japan sought to create a "ring of steel" around its conquests in WWII by developing island air bases to dominate the sea lanes that might threaten its gains, so it appears China is building "unsinkable aircraft carriers" to dominate the South China Sea.

Very nice backgrounder on the South China Sea from the CFR authored by Beina Xu South China Sea Tensions which has a nice interactive map which for some reason will not allow me to embed it. I suggest you just visit the backgrounder.

Mystery Iranian Ship Off India Draws Protest

Reported as Concerns grow over armed Iranian ship: (emphasis added)

Arrow points to Lakshadweep Islands

A mysterious Iranian ship, anchored for close to 30 days near Lakshadweep, has become a major cause of concerns for the government and coastal security agencies.
***

The ship has been anchored there for over a month and so far Iran has given no explanation to Indian authorities in this regard. The Iranian Ambassador to India was summoned last week and explicitly told that the vessel MV Assa needs to be shifted from its current location as the country faces grave terrorist threats from the sea.
***

Another area of concern for the coastal security agencies is the unclear status of several boats, which regularly visit MV Assa, drop cargo and return. Iran has been maintain a stoic silence on the issue and it later claimed that the vessel was headed to Singapore.

Contrary to it, the crew claimed they were going to Colombo, then China. However, the ship has not moved an inch since then.

India cannot press for answers as rules of the sea allow complete freedom of navigation within a country’s EEZ.
***

More here.

A War of Words Over the South China Sea

China responds to the U.S. Senate resolution concerning the South China Sea as set out in China slams US resolution on Spratlys dispute:

China yesterday slammed the passage of a US Senate resolution condemning the use of force in the disputed waters in Southeast Asia, saying it “turns a blind eye to facts.”

Chinese Foreign Ministry spokesman Hong Lei said the US resolution “confuses right and wrong, and thus does not hold water.”

“We hope relevant US senators do more for regional peace and stability,” a transcription of Hong’s press briefing in Beijing read.

Hong said the dispute with the Philippines and other Southeast Asian countries revolves around islets and reefs comprising Spratly Islands, which the Chinese call Nansha. There are also disputes over demarcation of territories, he said.

He stressed that concerned parties should settle their differences bilaterally through direct negotiation.

Hong said free navigation in the South China Sea has never been affected by the disputes.

The US Senate resolution calls on all parties to resolve relevant disputes through multilateral and peaceful means.

It also said the United Nations Convention on the Law of the Sea (UNCLOS) should be the basis for resolving the dispute and calls on the US armed forces to take action to ensure free navigation in the South China Sea and West Philippine Sea.

The Philippines’ Department of Foreign Affairs (DFA) lauded the resolution sponsored by senators Jim Webb and Jim Inhofe.

“It is imperative for concerned parties to take concrete steps to ease tensions in the area through dialogues and diplomacy. We urge all claimant-countries to seriously consider our proposal to transform the area from a zone of dispute into a Zone of Peace, Freedom, Friendship and Cooperation (ZoPFF/C),” the DFA said.

In introducing the resolution, Webb said it is now time for the US to “back (its) policy with action.”

Some background to this sea, island and reef dispute and that map that appears above at China: "The Cow's Tongue" and the links therein.

Somali Pirates: The UN offers Seven Options

Reported by the AP as UN chief offers anti-piracy options :

U.N. Secretary-General Ban Ki-moon offered the Security Council seven options for grappling with the piracy problem, ranging from simple legal support for individual nations to a full international court established by the council, the U.N.'s most powerful body.

An effort instigated by the Russians, no less.

The seven options:

1. basic support for nations in prosecuting suspected pirates; 
2. establishment of a Somali court, applying Somali law, in a third state in the region; 
3. two variants for helping a regional state or states to establish a special court inside its existing judicial system to conduct piracy trials;
4. a regional court establishment by regional states and the African Union;
5. an international "hybrid" tribunal with national participation by a state in the region;
6. a full internatinal tribunal, established by the Security Council.

Number 3 counts as two options, I gather, thus giving a total of 7.

I suppose it might be useful to have an internationally recognized definition of piracy and/or armed assault at sea and some minimal level  of required evidence needed to prove attempted piracy.

Further, there has to be some system in which sworn video evidence of mariners may be used in court so that shipping companies will not be forced to send deck hand or officers from remote corners of the planet to testify against "suspects."

Make it too hard to get the captured pirates to trial and you will just get a continuation of the current situation - a "catch and release" program for misguided Somali youth.  Though some forms of this treatment are more harsh than others - see here.

My own personal option is a blockade of known Somali pirate ports and an announcement of "no warning shots" by the various international naval units in the area if a small boat is found firing on a ship at sea. Aim for the motors on the boat and let the survivors drift home. They better have life jackets and oars.

Of course, this probably violates their human rights.

I have an idea for a low-cost anti-pirate vessel with just the right weapon to take out small boats:

Put a UN flag on it.

Somali Pirates: Proactive Deterrence

Reported here

Today, a helicopter from the EU NAVFOR German warship BREMEN, identified suspected pirate craft in the Somali Basin. The suspect craft were made up of a mother skiff and two smaller skiffs, near the islands of Seychelles (0109S 5355E).

The EU NAVFOR helicopter fired warning shots and the skiffs stopped. The crew from the helicopter observed that the suspected pirates threw a number of items over board. A boarding party from the German warship found on the skiff grappling hooks, ammunition, GPS and 10 barrels of fuel. The skiffs had no fishing equipment onboard and after confiscating the suspected pirate equipment the mother skiff and crew were released.

You might note that the incident occurred about 600 miles off the Somali coast, or about 3x the distance of any "Exclusive Economic Zone" Somalia could claim:

Article57

Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Strait of Hormuz: The legal tangle

Interesting look at the legalities of transiting the Strait of Hormuz traffic lanes by Kaveh L. Afrasiabi here:

Tension spiked markedly last week when Iranian Revolutionary Guards Corps (IRGC) speedboats were involved in an "incident" with three US Navy vessels, which claimed they were international waters.

Yet there is no "international water" in the Strait of Hormuz, straddled between the territorial waters of Iran and Oman. The US government claimed, through a Pentagon spokesperson, Bryan Whitman, that the three US ships "transiting through the Strait of Hormuz" were provocatively harassed by the speedboats. This was followed by the Pentagon's release of a videotape of the encounter, where in response to Iran's request for ship identification, we hear a dispatch from one of the US ships stating the ship's number and adding that "we are in international waters and we intend no harm".

Thus there is the issue of the exact whereabouts of the US ships at the time of the standoff with the Iranian boats manned by the IRGC patrolling the area. According to Vice Admiral Kevin Cosgiff, the US ships were "five kilometers outside Iranian territorial waters". Yet, this is disputed by another dispatch from the US ships that states, "I am engaged in transit passage in accordance with international law."

Given that the approximately three-kilometer-wide inbound traffic lane in the Strait of Hormuz is within Iran's territorial water, the US Navy's invocation of "transit passage" harking back to the 1982 UN Convention on the Law of the Sea, (UNCLOS) is hardly surprising. [1]

However, irrespective of how Congress acts on the pending legislation on UNCLOS, the fact is that the US cannot have its cake and eat it. That is, rely on it to defend its navigational rights in the Strait of Hormuz and, simultaneously, disregard the various limitations on those rights imposed by the UNCLOS - and favoring Iran. These include the following:

- Per Article 39 of the UNCLOS, pertaining to "duties of ships during transit passage" US ships passaging through the Strait of Hormuz must "proceed without delay" and "refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of states bordering the strait".
- Per Article 40, "During transit passage, foreign ships may not carry out any research or survey activity without the prior authorization of the states bordering the straits." And yet, by the US Navy's own admission, it has been conducting sonar activities in the area, to detect submerged vessels. This, in turn, has harmed the Persian Gulf's aquatic mammals. In light of a recent US court ruling limiting the US Navy's sonar activities off the California coast, Iran now has greater political leverage to seek information regarding the activities of US warships transiting through its territorial waters.
- Given the US's verbal acrobatics, of trying to depict as "international waters" what is essentially Iran's territorial water in the inbound traffic channel of the Strait of Hormuz, it collides with Article 34 of UNCLOS. This regards the "legal status of waters forming the straits used for international navigation", that strictly stipulates that the regime of passage "shall not affect the legal status of the waters forming such straits". Following the UNCLOS, Iran's territorial water extends 12 nautical miles at the Strait of Hormuz.
- The Pentagon videotape of the incident shows a US helicopter hovering above the US ships, which is in clear contradiction of Article 19 of the UNCLOS, which expressly forbids "the launching, landing or taking on board of any aircraft" during transit passage.
- Article 19, elaborating on the meaning of "innocent passage", states that "passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state". And that means a prohibition on "any exercise or practice with weapons of any kind" and or "any act of harmful and serious pollution".

In other words, US warships transiting through Hormuz must, in effect, act as non-war ships, "temporarily depriving themselves of their armed might". And any "warning shots" fired by US ships at Iranian boats, inspecting the US ships under customary international laws, must be considered an infringement on Iran's rights. This technically warrants a legal backlash in the form of the Iranians temporary suspending the US warships' right of passage. Again, the US could be technically prosecuted by Iran in international forums for conducting questionable activities while in Iranian territorial waters.
- Under Article 25 of the UNCLOS, a "coastal state may take the necessary steps in its territorial sea to prevent passage which is not innocent ... the coastal state may suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its of security, including weapons exercise."
- Per Article 30, "If any warship does not comply with the laws and regulations of the coastal state concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal state may require it to leave the territorial sea immediately."
- Pursuant to Article 42 of the UNCLOS, "states bordering straits may adopt laws and regulations relating to transit passage" and "foreign ships exercising the right of transit passage shall comply with such laws and regulations." In this connection, Iran's 1993 maritime law echoes Article 20 of the UNCLOS: "In the territorial sea, submarines and other underwater vehicles are required to navigate on surface and to show their flag." Yet, disregarding both international law and Iran's laws, the US Navy until now has refused to comply with the requirement of surface passage of its submarines through the Strait of Hormuz.

The issue is one of sovereignty, akin to those discussed here previously with respect to the Strait of Malacca (see here, here, and here, as examples).

The UNCLOS provisions that may apply:

Article34
Legal status of waters forming straits used for international navigation

1. The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil.

2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part and to other rules of international law.

Article 35

Scope of this Part

Nothing in this Part affects:

(a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such;

(b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or

(c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.

Article 36

High seas routes or routes through exclusive economic zones through straits used for international navigation

This Part does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply.

SECTION 2. TRANSIT PASSAGE

Article 37

Scope of this section

This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

Article 38

Right of transit passage

1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.

2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.

Article 39

Duties of ships and aircraft during transit passage

1. Ships and aircraft, while exercising the right of transit passage, shall:

(a) proceed without delay through or over the strait;

(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;

(d) comply with other relevant provisions of this Part.

2. Ships in transit passage shall:

(a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;

(b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

3. Aircraft in transit passage shall:

(a) observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation;

(b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency.

Article 40

Research and survey activities

During transit passage, foreign ships, including marine scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the States bordering straits.

Article 41

Sea lanes and traffic separation schemes in straits used for international navigation

1. In conformity with this Part, States bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships.

2. Such States may, when circumstances require, and after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by them.

3. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

4. Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, States bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the States bordering the straits, after which the States may designate, prescribe or substitute them.

5. In respect of a strait where sea lanes or traffic separation schemes through the waters of two or more States bordering the strait are being proposed, the States concerned shall cooperate in formulating proposals in consultation with the competent international organization.

6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes designated or prescribed by them on charts to which due publicity shall be given.

7. Ships in transit passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.

Article42

Laws and regulations of States bordering straits

relating to transit passage

1. Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following:

(a) the safety of navigation and the regulation of maritime traffic, as provided in article 41;

(b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;

(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;

(d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.

2. Such laws and regulations shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section.

3. States bordering straits shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations.

5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits.

Of course, there are also obligations imposed on the bordering state:

Article24

Duties of the coastal State

1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not:

(a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or

(b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State.

2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.

Questioning the Law of the Sea Treaty

A voice against the Law of the Sea Treaty in How Many Lawyers Does It Take to Sink the U.S. Navy?:

The point isn't that we should try to shoot our way out of any future disputes about our rights on the seas. The United States has a great stake in upholding general rules of restraint on the high seas, both to protect our own ocean-borne commerce and to reassure others that we can use our power wisely. But in a crisis or a special case, where national security seems to require some exception to the general rule, do we want to leave ourselves dependent on permission from some international body?

In the past, writers on international law acknowledged that states could not be expected to submit the most sensitive political questions--those most vital to national security--to international arbitration. Most of the world seems to have abandoned this view, but most nations no longer make great efforts to provide for their own defense. So, even as the United States has substantially reduced the scale of its naval forces, since the peak years of the Reagan build-up we have acquired a larger and larger share of the world's naval capacity. Others have shrunk their forces further and faster.

In past centuries, rules about the conduct of ships at sea emerged from agreements among major naval powers, and there were always a number of naval powers engaged in challenging, enforcing, and accommodating agreed-upon standards. Now, when the United States (by some estimates) actually deploys a majority of the world's naval capacity, we are told that our security requires us to participate with 150 other states in electing international judges to determine, in the last analysis, what rules our Navy must accept.

To find this convincing, one must be awed by the moral authority of the U.N. majority. To think that way means that we seek consensus at almost any price. Why do we claim to be independent, why do we invest so many billions in defense capacities, if we are prepared to go along with an international consensus, articulated (and -readjusted) by international jurists? The Senate should think long and hard before making the U.S. Navy answer to the U.N version of the Law of the Sea.