China Lies Again and the New Drone War

It is time, in the opening days of the new year, to discuss in some depth the Chinese capture of a U.S. UUV off the coast of the Philippines. For those of you caught up in other matters, a good recap of the events can be found at Chris Cavas's Defense News article*, China Grabs Underwater Drone Operated by US Navy in South China Sea:

A Chinese Navy ship intercepted and grabbed a small, unmanned underwater vehicle

U.S. Navy Photo

(UUV) being operated by a US Navy survey ship on Thursday in waters west of the Philippines, US defense officials confirmed Friday.

It is not clear what — if anything — prompted the interception of an ocean glider, described by the National Oceanic and Atmospheric Administration (NOAA) as “an autonomous, unmanned underwater vehicle used for ocean science.”

From the beginning, China has lied about the incident and then has engaged in a disinformation campaign to justify their acts, all the while subtly seeking to expand their power over the South China Sea.

Get the picture as set up by Pentagon spokesman:

Area of incident off Philippines

Pentagon press secretary Peter Cook issued a statement Friday afternoon calling upon the Chinese government to immediately return the drone.

"Using appropriate government-to-government channels, the Department of Defense has called upon China to immediately return an unmanned underwater vehicle (UUV) that China unlawfully seized on Dec. 15 in the South China Sea while it was being recovered by a U.S. Navy oceanographic survey ship," Cook said in the statement.

"The USNS Bowditch (T-AGS 62) and the UUV -- an unclassified "ocean glider" system used around the world to gather military oceanographic data such as salinity, water temperature, and sound speed - were conducting routine operations in accordance with international law about 50 nautical miles northwest of Subic Bay, Philippines, when a Chinese Navy [People's Republic of China] DALANG III-Class ship (ASR-510) launched a small boat and retrieved the UUV.

"Bowditch made contact with the PRC Navy ship via bridge-to-bridge radio to request the return of the UUV," Cook continued. "The radio contact was acknowledged by the PRC Navy ship, but the request was ignored. The UUV is a sovereign immune vessel of the United States. We call upon China to return our UUV immediately, and to comply with all of its obligations under international law."

The Chinese ship was roughly 500 yards away from the Bowditch when the incident occurred, said Capt. Jeff Davis, Pentagon spokesman. Davis added that a crane was used to lift the unmanned system aboard the Chinese vessel.

The defense official noted the location in the South China Sea was not in the proximity

Area of incident in South China Sea

of Scarborough Shoal, the site of a disputed Chinese island-building operation. “It’s not even close to Scarborough. It’s about 150 miles away,” the defense official said.

It's unclear what the Dalang 510 did after seizing the ocean glider. The Bowditch, the defense official said Friday, “remains in the area conducting normal operations.”

A few days after pirating the UUV, China returned the glider while lying about its actions, as set out in Sam LaGrone's USNI News piece China Returns U.S. Navy Unmanned Glider:

Chinese officials claimed the glider was a hazard to navigation and they recovered the unmanned vehicle for the safety of the water. The U.S. took issue with Beijing’s interpretation of events.

Interpretation? It was a flat out lie.

Why would China grab a vessel clearly under control of a U.S. Naval vessel - and one that was also clearly in the process of being recovered by USNS Bowditch? Some interesting thoughts from a Japan Times opinion piece by Mark Valencia U.S.-China drone spat: more than meets the eye:

Let’s be clear at the outset. The seizure of the UUV was certainly inappropriate and probably illegal — either as a simple theft or perhaps as a violation of the “sovereign immunity” of warships under the United Nations Convention on the Law of the Sea (UNCLOS).

The U.S. military said the Bowditch — and the UUV — were carrying out scientific research in “international waters.” According to U.S. Navy spokesman Capt. Jeff Davis “the drone was seized while collecting unclassified scientific data.” The U.S. Defense Department said that “the incident was inconsistent with international law and standards of professionalism for conduct of navies at sea.”
***
China’s Defense Ministry explained that the Chinese Navy had taken an “unidentified object” (the UUV) out of the water “in order to prevent the device from causing harm to the safety of navigation and personnel of passing vessels.” Arguably this is a duty of mariners. China criticized U.S. hyping of the incident as a “theft.” China also argued that the activities of drones are a legal “gray area” in which the law is unclear. This is true. Relevant legal questions are whether the “sovereign immunity” clause extends to drones or any “equipment” launched from state vessels; does it apply to “non-ratifiers;” and did the Bowditch, by deploying the drones in the vicinity of another vessel, violate the duty to exercise “due regard” for the rights of other states, e.g. the duty not to present a hazard to navigation? After all the drone was not a “warship” as defined by UNCLOS because it was not “manned by a crew” and it is not a “vessel” because it is not used as a means of transportation.”
***
This analysis is not a justification of China’s action. But it offers possible explanations and background as to why it did what it did. At the least it gives a glimpse of the “cat and mouse” game going on between China and the U.S. in the South China Sea. Both sides are pushing — and even tearing — the legal envelope as they jockey for advantage. (note: "Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies in Haikou, China)"

So, Mr. Valencia notes the power struggle while offering up China's weak justifications for its actions. The Chinese rationale was repeated by another scholar in Yan Yan's The US Underwater Drone is not Entitled to Sovereign Immunity, which is set out below in its entirety:

On 20 December, 2016, the unmanned underwater vehicle (UUV) that had been seized by the Chinese Navy was handed back to the US Navy, bringing a conclusion to what US President-elect Donald Trump had labeled as an “unpresidented” event. The Chinese defense spokesman said that the UUV had been removed from the water to ensure the navigational safety of passing ships, but the US asserted that the UUV enjoyed sovereign immunity and that the Chinese action was in violation of international law. Jeff Davis, a Pentagon spokesman, described the UUV as a “sovereign immune vessel, clearly marked in English not to be removed from the water,” and said that it is US property and was lawfully conducting a military survey in the waters of the South China Sea. In a commentary written by James Kraska and Raul “Pete” Pedrozo, the authors hold the same argument that the UUV is a “vessel” that enjoys sovereign immune status, and as such the Chinese activity was a violation of international law.

The US argument is legally flawed if one takes a closer look at the rules of sovereign immunity in the law of the sea and how the US navy applies the UUV to its missions. Two types of ships are granted the sovereign immune status in the oceans according to articles 32, 95, and 96 of the 1982 UNCLOS: “warship” and “other government ships owned or operated by a State and used only on government non-commercial service.” First of all, I agree with Kraska and Pedrozo that the UUV is not a warship as defined by the 1982 UNCLOS. Article 29 of the UNCLOS defines “warship” as “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” Although the Pentagon stated that the drone was US property, it was not “manned by crew,” and not clearly listed as a warship on active service.

But is the UUV a government “ship” owned or operated by a State and used only on government non-commercial service?

Kraska and Pedrozo hold that the UUV fits with the definition of “vessel” under Article 3 of the International Regulations for Preventing Collisions at Sea as “every description of watercraft, including non-displacement craft, WIG craft, and seaplanes, used or capable of being used as a means of transportation on water.” But if one looks at the applications of the UUV by the US Navy, it is easy to see that it is not at all used “as a means of transportation on water,” but mostly for purposes of reconnaissance and submarine warfare.

The UUV is a subject that is able to operate underwater without a human occupant, and usually is divided into two categories: remotely operated underwater vehicles (ROVs) and autonomous underwater vehicles (AUVs). For a long time in its history, application of the AUV was highly limited by the available technology. It was not until the last decade that, with more sophisticated processing capabilities and more efficient power supply systems, it could be used for an increased number of tasks.

The US Navy released the Unmanned Underwater Vehicles Master Plan in 2000 and updated it in 2004, describing the missions, capabilities, and technological and engineering issues of the UUV. The Master Plan is chartered by the Deputy Assistant Secretary of the Navy and the Submarine Warfare Division. The nine Sub-Pillar capabilities as identified and prioritized in the UUV Master Plan are: intelligence, surveillance, and reconnaissance; mine countermeasures; anti-submarine warfare; inspection/identification; oceanography; communication/navigation network nodes; payload delivery; information operations; and time-critical strike. Among all, the top-priority mission is intelligence, surveillance, and reconnaissance. In addition to collecting data concerning the ocean surface (like electromagnetic and meteorological conditions) and underwater currents (like salinity and water temperature), the UUV is also capable of performing missions such as offshore surveillance, nuclear/biological detection, and satellite positioning. This is part of the reasons why global military powers have attached great importance to developing UUV-related technology. Highly adaptive to physical conditions and capable of performing multiple tasks in a highly efficient manner, the UUV has been widely viewed as a critical factor in future sea battles. In the wake of the Iraq War, the US began to see it as a primary threat to naval operations, and began to develop new types of UUV-based mine countermeasures.

Therefore, it’s very obvious to the author that the UUV is not used by the US Navy for the purpose of transportation and cannot be classified as a vessel that enjoys sovereign immune status. Rather, considering its functions and applications in the Navy, it is a lot more reasonable to classify it as a “machine,” “robot” or “military device,” which is not entitled to sovereign immunity.

In recent years, the rapid development of China’s Navy, particularly the development of its submarines, has drawn great attention from the US. By conducting intelligence gathering missions, the US has gradually built up an underwater surveillance and detection network covering China’s surrounding waters. It is reported that the US military has completed such networks in the Yellow Sea and East China Sea, and is now trying to build one in the South China Sea. It is predictable that more UUVs will be deployed by the US Navy in the South China Sea in the future. Although there are no definite rules on the application of such a “machine” or “device,” it is reasonable to assert that, like in any other international practice under the framework of the law of the sea, the operators of UUVs shall adhere to the spirit of peaceful use of the sea and ocean, show due regard to navigational safety, respect the coastal states’ laws and regulations, and refrain from using the UUV to perform such missions as undermining or threatening the coastal states’ security. Pointing fingers at each other is not conducive to the bilateral mil-mil relationship, or to the peace and stability in the South China Sea, as China and the US are now the two most important players in the region. (note:"Yan Yan is Deputy Director of the Research Center for Oceans Law and Policy at the National Institute for South China Sea Studies, Haikou, China.")

Ms. Yan repeats the Chinese government misrepresentation of facts, ignores the proximity of the USNS Bowditch to the captured drone and then chooses to quibble about the definition of the term "vessel" as used by two distinguished maritime legal scholars, Kraska and Pedrozo. Their referenced piece is China’s Capture of U.S. Underwater Drone Violates Law of the Sea:

“Vessels” are broadly defined in international maritime law, and are generally synonymous with “ships.” The London Dumping Convention defines a “vessel” as a “waterborne or airborne craft of any type whatsoever.” This expression includes in article 2(3) “air cushioned craft and floating craft, whether self-propelled or not.” Article 1(6) of the 1996 Protocol to the London Dumping Convention also includes “waterborne crafts and their parts and other fittings.” Similarly, article 3 of the International Regulations for Preventing Collisions at Sea defines “vessel” as “every description of watercraft, including non-displacement craft, WIG craft, and seaplanes, used or capable of being used as a means of transportation on water.” This definition includes autonomous and even expendable marine instruments and devices, such as the U.S. drone stolen by the Chinese. The variation between manned systems and unmanned systems, such as size of the means of propulsion, type of platform, capability, endurance, human versus autonomous control and mission set, has not been a defining character of what constitutes a “vessel” or “ship.” Moreover, the seizure of the U.S. drone was a violation of COLREGS itself, which requires mariners to take affirmative steps to avoid closing on other vessels in the water.

Worth noting among the various treaties which define a "vessel" is the International Convention On Salvage, 1989 which contains the following definition:

CHAPTER I

GENERAL PROVISIONS

Chapter I - General provisions
9
Article 1 - Definitions
10
For the purpose of this Convention:
11
(a) Salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.
12
(b) Vessel means any ship or craft, or any structure capable of navigation.

***
Article 4 - State-owned vessels
23
1. Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles of international law unless that State decides otherwise.
24
2. Where a State Party decides to apply the Convention to its warships or other vessels described in paragraph 1, it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

Let's look at the type of "glider" UUV-napped by the Chinese. As set out in Slocum Glider,

The Slocum Glider is a uniquely mobile network component capable of moving to specific locations and depths and occupying controlled spatial and temporal grids. Driven in a sawtooth vertical profile by variable buoyancy, the glider moves both horizontally and vertically.

I would assert that being able to move to "specific locations" is a pretty clear indicator that a UUV of the Slocum glider type is capable of "navigation" and is, thereby, a "vessel" as defined by the Convention on Salvage.

Now, Ms. Yan argues that the key element of a "vessel" is that must be "used for transportation" - this assertion represents a rather lengthy legal history of of various court trying to distinguish "vessels" from other things that float but which are not capable of navigation unless towed by or otherwise moved by an outside force. A recent analysis is set out in A Vessel Defined discussing the Lozman case:

A majority of the justices on the US Supreme Court disagreed with the district court and Eleventh Circuit and held the floating home was not a vessel and could not be subject to a maritime lien. It focused its analysis on the meaning of the statutory phrase “capable of being used…as a means of transportation on water”. It declined to interpret the phrase broadly to encompass every item that can float. It reasoned some objects that float such as a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a door taken off its hinges, or “Pinocchio when inside the whale,” are clearly not vessels. Rather, the court held a structure does not fall within the scope of the statutory definition of a vessel unless “a reasonable observer” looking at the structure’s physical characteristics and activities “would consider it designed to a practical degree for carrying people or things over water.”

To quote from the decision itself:

Not every floating structure is a “vessel.” To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not “vessels,” even if they are “artificial contrivance[s]” capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so. Rather, the statute applies to an “artificial contrivance . . . capable of being used . . . as a means of transportation on water.” 1 U. S. C. §3 (emphasis added). “[T]ransportation” involves the “conveyance (of things or persons) from one place to another.” 18 Oxford English Dictionary 424 (2d ed. 1989)(OED). Accord, N. Webster, An American Dictionary of the English Language 1406 (C. Goodrich & N. Porter eds. 1873) (“[t]he act of transporting, carrying, or conveying from one place to another”). And we must apply this definition in a “practical,” not a “theoretical,” way. Stewart, supra, at 496. Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.

So "transportation" includes carrying "things" as well as people.

Again, the glider in question was undoubtedly transporting "things" including sensors and data relating to its navigation.

Ms. Yan's argument is legally insufficient.

Mostly what appears is a disinformation effort by the Chinese to forcefully claim more and more dominance in the South China Sea, even in areas clearly not within any arguable area of Chinese jurisdiction - thus the weak tea assertion of protecting "sea lanes" from a glider - a glider being closely monitored by the USNS ship and, in fact, in the process of being recovered by the US ship.

This aggressive assertion of hegemony over both waters in the high seas and in the EEZ of other countries (in this case the Republic of the Philippines) needs to be forcefully rejected and the Chinese lies about the circumstances of such incidents need to be vigorously countered.

UPDATE: Suggestions that China's own "glider" program is not up to the level of those of the West and a possible motive for why it was grabbed here. Hat tip to Ryan Martinson and to Scott Cheney-Peters.

UDPATE2: Interesting discussion at Hybrid Warfare in the South China Sea: The United States’ ‘Little Grey (Un)Men':

There should be little doubt that the use of unmanned systems sets a strong political signal. Not only does it unambiguously establish the Washington and its allies’ willingness to counter Beijing’s “Little Blue Men,” it demonstrates the United States’ capacity to maintain its presence and reach into highly contested territory. Moreover, while providing additional intelligence to the United States and its allies, it signals an eagerness not only to challenge China’s posture but also to expand in another direction within the framework of hybrid/political warfare.

Perhaps a little overstated, since the UUV in question was not in what most would consider "highly contested territory" unless one grants China's claims to most of the South China Sea, claims already rejected by a tribunal as set out here.



*All emphasis added by me

Spread the Word: China's Stealth Navy - Its "Maritime Militia"

China has two major blue water forces - its navy (PLAN) and its coast guard. It also has a huge merchant fleet. But there is another force it doesn't want you to notice - an asymmetric force trying to fly under the radar. A force as our guest on Midrats, Andrew Ericson, points out that has not been officially recognized by the U.S. government, though it has been engaged in all sorts of adventures - including the disruption of the operations of USNS Impeccable and much more. It is the Chinese "maritime militia" - designed to be a plausibly deniable force multiplier.

There are many issues that arise from the existence of such a militia, some of which Dr. Ericson discusses during our show:




Other issues are discussed in James Kraska's and Michael Monti's The Law of Naval Warfare and China's Maritime Militia (pdf):

The militia is positioned to conduct a “people’s war at sea” in any future conflict. 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.

The sheer size and scope of the vast network of China’s maritime militia complicates the battlespace, degrades any opponent’s decision-making process and exposes adversaries to political dilemmas that will make them more cautious to act against China during a maritime crisis or naval war. The legal implications are no less profound. This article concludes that the maritime
militia risks erasing the longstanding distinction between warships and civilian ships in the law of naval warfare. Although the law of naval warfare permits warships to engage civilian fishing vessels that assist enemy forces, it may be virtually impossible to distinguish between legitimate fishing vessels and those that are integrated into the PLAN as an auxiliary naval force. Regardless
of whether the maritime militia plays a decisive combat role, its presence in the theater of war confronts opponents with vexing legal and operational dilemmas.

Yes, it's legal brief of sorts, but with the Chinese engaging in some serious lawfare, it is a must read to understand the issues confronting our forces.

Back to the Falklands, Continental Shelf Edition

BBC News headline Falkland Islands fears new ruling expanding Argentina's sea control:

The government of the Falkland Islands says it is unhappy about a decision by an international commission to expand Argentina's waters to include those around the UK-sovereign lands.
The decision, which is not yet final, follows a move by Argentina in 2009 to expand its maritime territory to include that of the islands, known as the Malvinas in Argentina.
The move will increase its waters in the South Atlantic Ocean by 35%.
The area is potentially rich in oil.

On the other hand, there are many Argentinians who are delighted with this "ruling" though, as the UK government notes:

But the prime minister’s official spokeswoman said the UK government had not yet seen the full report, and stressed that the commission was merely an advisory body.

“It’s important to note that this is an advisory committee – it makes recommendations, they are not legally binding and the commission does not have jurisdiction over sovereignty issues.

“What’s important is what do the Falkland islanders themselves think? They’ve been clear that they want to remain an overseas territory of the UK and we will still support their right to determine their own future.”

I know there are emotional issues of national pride, etc, but there is that "oil" thing lurking in the background, isn't there?

Further, underneath all of this is the issue of the rights granted to any nation under the "continental shelf." Some of this is covered nicely in this MercoPress report, "Argentina, on a UN decision expands continental shelf area by 35% to 350 miles":

This means Argentina's shelf will increase 1.7m sq km from its current 4.8m sq km, and refers to the area from the 200 miles to the shelf slope. This represents a 35% expansion of its continental shelf.
According to reports in the Argentine media, CLCS on its 40th plenary session of last March 11, made public it had finally adopted the presentation on the shelf request, which was made back in 2009.
“We're reaffirming our sovereignty rights over the resources from our continental shelf, minerals, hydrocarbons and sedentary species”, Ms Malcorra was quoted in anticipation of Monday's official announcement at the San Martin Palace.
Attending the event will be Deputy minister Carlos Foradori, president of National Committee on the limit of the Argentine continental platform, COPLA, officers from the Navy and Coast Guard plus lawmakers.
“The demarcation of the exterior limit of the continental shelf constitutes a clear example of a State policy in which Argentina has worked professionally during twenty years with the purpose of reaffirming our presence, conservation of our resources and reaffirming our sovereignty rights over a zone politically, economically and strategically so important in the South Atlantic”, added Ms Malcorra.
This acknowledgement means the UN accept there is a dispute over the South Atlantic islands, and is “another diplomatic victory” for Argentina said Deputy minister Foradori.
However, “Argentina will not exercise these rights over territories and maritime spaces which the United Kingdom is administrating unilaterally since 1833”.
***
The shelf refers to the sea floor and subsoil from the 200 miles maritime zone up to the natural extension of the continental territory with a 350 miles limit.
The UN CLCS is a scientific commission made up of 21 international experts and in the case of Argentina's presentation the decision was unanimous.

You can read about the UN Commission on the Limits of the Continental Shelf here:

The purpose of the Commission on the Limits of the Continental Shelf (the Commission or CLCS) is to facilitate the implementation of the United Nations Convention on the Law of the Sea (the Convention) in respect of the establishment of the outer limits of the continental shelf beyond 200 nautical miles (M) from the baselines from which the breadth of the territorial sea is measured. Under the Convention, the coastal State shall establish the outer limits of its continental shelf where it extends beyond 200 M on the basis of the recommendation of the Commission. The Commission shall make recommendations to coastal States on matters related to the establishment of those limits; its recommendations and actions shall not prejudice matters relating to the delimitation of boundaries between States with opposite or adjacent coasts.

Part VI of the United Nations Convention on the Law of the Sea (UNCLOS) defines the "continental shelf":

1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

That 200 mile limit is subject to refinement (expansion) under certain conditions:

4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:

(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.

(b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.

5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.

So, what the CLCS has done is to find that Argentina has made its case that its continental shelf extends out past 200 miles to 350 miles in places.

Why does that matter? See Article 77:

Article77

Rights of the coastal State over the continental shelf

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.(highlights added)

Back to the oil issue.

Further, this "continental shelf issue" is are playing out in the Arctic Ocean, where Russia (and others) have assert that they have "sovereign rights" over large portions of the seabed for purposes of exploration and exploitation. See the IBT's Russia submits claim over Arctic and North Pole to UN citing scientific proof from June 2015:

Russia has re-submitted its petition to the United Nations claiming

exclusive control over 1.2 million square kms of the Arctic sea shelf, based this time on what its foreign ministry calls "ample scientific data".

The region contains some of the world's largest untapped reserves of oil and gas besides valuable minerals. The US, Canada, Denmark and Norway have also been trying to gain control over parts of the Arctic.

This is the second time Russia has staked its claim to what it sees as its territory. Earlier in 2002, the UN rejected the bid on lack of evidence.

Oil and gas.

See also here

South China Sea Power Play: China Goes Wrongly Historical on the South China Sea

 U.S. Navy photo by MC3 David Flewellyn

Report on Chinese Bluster over its absurd claims in the South China Sea by David Larter in Navy Times After U.S. show of force, China takes hard line on South China Sea:

China's foreign minister said his country's sovereignty claims are supported by history and made a veiled reference to the 5-day patrol by the Stennis Carrier Strike Group, as well as recent passes by China's man-made islands by destroyers Lassen and Curtis Wilbur in recent months.

"The South China Sea has been subject to colonial invasion and illegal occupation and now some people are trying to stir up waves, while some others are showing off forces," Wang Yi said, according to an Associated Press report, a day after the Stennis CSG departed the South China Sea. "However, like the tide that comes and goes, none of these attempts will have any impact. History will prove who is merely the guest and who is the real host."

Well, if you are China and in the need of some of this Chinese version of "lebensraum", you might as well continue to go with idea a claim of "history," no matter how absurd, trumps minor considerations like - say - international law.

U.S. Navy photo by MC2 Jonathan Jiang

As set out nicely in this Lawfare blog brief by Sean Mirski, The South China Sea Dispute: A Brief History, the situation created by China's claims is murky:

. . . In May 2009, Malaysia and Vietnam sent a joint submission to the Commission on the Limits of the Continental Shelf setting out some of their claims. This initial submission unleashed a flurry of notes verbales from the other claimants, who objected to the two nation’s claims.

In particular, China responded to the joint submission by submitting a map containing the infamous “nine-dash” line. This line snakes around the edges of the South China Sea and encompasses all of the Sea’s territorial features as well as the vast majority of its waters. However, Beijing has never officially clarified what the line is meant to signify. Instead, it has maintained “strategic ambiguity” and said only that “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).” This could mean that China claims only the territorial features in the Sea and any “adjacent waters” allowed under maritime law. Or it could mean that China claims all the territorial features and all the waters enclosed by the nine-dash line, even those that exceed what’s permitted under maritime law.

That "strategic ambiguity" refers to a National Interest piece also by Mr. Mirski, Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea:

... while Beijing’s long-term ambitions counsel restraint, its more immediate objectives – including sovereignty over the South China Sea – pull the other way. In Beijing’s ideal world, China would now be the undisputed master of the South China Sea.

Beijing seeks to control the South China Sea in order to manage national security threats and advance its economic objectives. The Sea represents a strategic vulnerability for China, both as a historical invasion route and as a modern threat to its energy security and export-oriented economy

We discussed this during a recent Midrats show Episode 321: The Year of the Monkey in the South China Sea w/Toshi Yoshihara.


Many legal briefs which are weak on law and fact use a phrase like "It has long been held . . ." to justify some act or inaction. Here the Chinese want to by-pass history to shield a "sea grab" of immense proportions. Just as the reference to "colonial invasion" regarding a sea space as justification for China's assertion of some "superior to all others" claim of sovereignty over the SCS is very odd indeed, the fact is that neither history nor legal theories have a damn thing to do with what China is up to in the South China Sea.

This is a pure power play of an expansionist nation trying to bully the world into accepting its demands. While it's nice to pretend that some "International Court of Something" will declare China's actions "illegal" - the problem is who will enforce that ruling. To paraphrase Stalin, "The International Court of Something? How many divisions (fleets) has it got?"

China, by its actions, is following Sun Tzu's well known guidance:

. . . [S]upreme excellence consists in breaking the enemy's resistance without fighting.
***
Therefore the skillful leader subdues the enemy's troops without any fighting; he captures their cities without laying siege to them; he overthrows their kingdom without lengthy operations in the field.

After all, why fight when you can present the world with a fait accompli and then challenge them to get enough force together to push you off whatever you've claimed.

It's an old, old story.

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."

World Peace Through Green Tape?

I guess the current administration has decided to help the goal of world peace through executive action. How? It seems intent on wrapping up national defense in environmental and cultural green tape. With enough tape, the mighty engines of war fighting will grind to a halt. And peace will break out all over.

One bit of this nonsense about the new "climate change" mandate for military planners, weapons acquisition persons, training commands, etc is covered by my radio co-host CDR Salamander  here:

We are moving to full Soviet clown show where political cargo cults are being forced on military planning - not because military professionals see it as important, but because The Party demands it.

I wonder if we could get a study of the fiscal and preparedness impact this sort of "environmental symbolism" has and will cost us.

I'm sure a number of underemployed/unemployed attorneys stand ready, however, to assist with the preparation of all the environmental impact statements (EIS) that will be needed for Marines and soldiers digging foxholes and prepping firing positions in both training and combat.

I wonder if each mortar round fired needs its own EIS or if a series of such firings can be covered by a blanket EIS. I also wonder if EISs need to be filed to cover incoming rounds?

Pretty sure there are a number of currently unemployed archaeologists who can help perform "cultural resource investigations" that will be needed to make sure such digging doesn't disturb historically sensitive things:

Section 106 of the NHPA requires all Federal agencies, including the Federal Energy Regulatory Commission FERC or Commission), to take into account, prior to authorizing an undertaking (, the effect of the undertaking on cultural resources listed or eligible for the National Register (historic properties). The agency must also afford the Council an opportunity to comment on the undertaking.

I guess we should be asking potential enemies to provide environmental impact statements concerning their potential attacks on the U.S. - I'm sure the Iranians, North Koreans, Chinese and Russians will be happy to comply with descriptions of what a several megaton weapon might do the the U.S. environment. Perhaps,  pending those filings, we can get an "international court" to issue an injunction on wars brought by such states. Wasn't something like that done after Russia invaded the Ukraine? No - well, I'm sure that was oversight.

It might prove a little tougher to get those nasty "non-state" actors to comply though . . .

Speaking of which, has anyone seen the ISIS "cultural resource" filings on the destruction of ancient sites?  I'm pretty sure we didn't get one from the Taliban before they blew up those Buddha things.

Of course, that was 2001, so the NYT et al can blame Bush.

Not so sure about the environmental impact statements this climate conscious administration must have prepared for Libya, covering withdrawal from Iraq and our reentering Iraq, and the impact on climate change of drawing "red lines" while watching Syria implode. Perhaps the Executive Branch has put those some place off line.

Ah, those wars of choice.

Among other distractions, there is the irony of Opening All Military Occupations, Positions to Women and then having a debate on whether women should be required to register for the draft like their male counterparts.

Culture wars of choice.

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.

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?"

Fighting Pirates: A Lawerly Debate

From MaritimeTV, a couple of maritime legal thinkers discuss Armed Guards on Vessels. From May, 2012, and it seems a little OBE but still worth watching.

Hat tip to: The Marine Advocate Online.

You can order Defending Against Pirates here for $75 (downloadable pdf) or as a more expensive hard copy.

You might also be interested in a book to which I contributed, 
Maritime Private Security
Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century
Edited by Patrick Cullen and Claude Berube, available here or from Amazon here.

IMO | Maritime Safety Committee re "Arms Aboard Ships"

IMO | Maritime Safety Committee (MSC), 90th session, 16 to 25 May 2012 (High-level segment on arms on board):

Opening address by IMO Secretary-General Koji Sekimizu
May 16, 2012
MSC 90
Secretary-General Koji Sekimizu's opening address to the High-level segment on arms on board
16 May 2012

Thank you, Mr. Chairman.
Excellencies, distinguished delegates,

As I mentioned in my opening remarks to the meeting, this is the first ever high-level segment of the Committee and its importance is underscored by the presence here today of the President of the Assembly and the Council Chairman. I am particularly pleased to welcome and receive the support of the host Government through the participation of the Secretary of State for Transport – the Right Honourable Justine Greening MP – and of many Ambassadors, High Commissioners, Vice Minsters and others who have indicated their wish to participate in this very important debate – I wish to express my sincere appreciation to you all.

Reports received by the Organization indicate that, although the number of attacks by pirates continues to increase, the proportion of attacks that are successful has decreased. This may be due to a number of factors, including naval protection and better implementation of IMO guidance and Best Management Practices, including the use of Privately Contracted Armed Security Personnel (PCASP). There is anecdotal evidence that the number of ships carrying firearms has increased. On the basis of declarations of weapons carried and on their observations, naval forces estimate that around 25% of ships in the High Risk Area are carrying firearms, however it is also believed that a number of ships are not declaring the presence of private armed security for various reasons, including the lack of flag State approval.

The carriage of firearms on board merchant ships is a complex legal issue with Member States taking diverse positions. The Committee has determined that the carriage of armed personnel is a matter for flag States to authorize, however it has also accepted that their carriage has legal implications for coastal and port States, particularly with respect to the carriage, embarkation and disembarkation of firearms and security equipment in areas under the jurisdiction of such port or coastal States.

Resolution A.1044(27) on piracy and armed robbery against ships in waters off the coast of Somalia endorses the position of this Committee that seafarers should not carry firearms and that the carriage of armed personnel on board ships for enhancing their protection should be left to flag States to decide, once a thorough risk assessment exercise has been carried out and following consultations with the shipowners concerned.

Amongst other things, the resolution strongly urges Governments which have not already done so:

.1 to decide as a matter of national policy, whether ships entitled to fly their flag should be authorized to carry privately contracted armed security personnel and, if so, under what conditions; and

.2 in their capacity as port or coastal States, to decide on their policy on the embarkation, disembarkation and carriage of privately contracted armed security personnel and of the firearms, ammunition and security-related equipment, and to promulgate it widely to other Member Governments, to industry, and to the Organization.

As a truly global industry with many stakeholders, shipping benefits from harmonization of procedures, adoption of common minimum standards and clarity with respect to national legal regimes. However, while progress has been made on developing general guidance, policy on the use of Private Security Guards is not common among Member Governments and, across the shipping industry. There are no agreed minimum performance standards for Private Security Guards and ships using them are subject to many, diverse legal regimes at present.

In order to stimulate debate on this important subject, we have issued MSC 90/20/5, which describes the current situation and outlines a number of related policy issues requiring further deliberation by this Committee. While recognizing the reality of the situation in which Private Security Guards are employed and the diverse positions of Governments, there is a need to consider how the international community should deal with the issue of Private Security Guards and, in particular, the need to arrive at practical solutions to the issue.

Since the issue of Private Security Guards on board ships is of utmost sensitivity and requires detailed consideration of the policy issues involved, I considered it particularly helpful and appropriate, under this agenda item, for the Committee to engage in a high-level policy debate on this topic.

I invite all Member Governments representing flag, port and coastal States and States of seafarers, and shipowners to share their views on this issue of arms on board which is now critical for the international maritime community.

The outcome of your discussions today will provide the clear policy direction required for subsequent discussions on related, technical documents that the Committee and its Maritime Security and Piracy Working Group will be considering under this agenda item.

***

We have been dealing with piracy problems off the coast of Somalia for 5 years now.

Despite serious efforts by Governments, navies and the industry, the international community has not been able to stop Somali piracy.

We have seen significant developments over the last 4 years:

Midrats: Episode 114: Law and the U.S. Military ( 5pm Eastern, Sunday 11 March)

The last decade has brought two aspects of the law and its interaction with the U.S. military in to sharp focus: first "Lawfare" in the application of force overseas, and second the proper constitutional role of the U.S. military internal to the United States and towards its civilian population.

What has changed, where do we stand today, and where are are we headed?

Our guest will be Charles J. Dunlap, Jr., Major General, USAF (Ret.), the Executive Director, Center on Law, Ethics and National Security and a Visiting Professor of the Practice at Duke University School of Law.

Join us live if you can (click here), but if you miss the show you can always listen to the archive at blogtalkradio - or, in the alternative, get the show (and download the archive to your audio player) is to get a free account and subscribe to the podcast on iTunes.

Fearless Navy Bloggers Take to the Air: Episode 72 Lawfare and the Long War 05/22 on Midrats

Modern warfare and counter-terrorism bump up against international law and the "law of war" on a moment to moment basis - and that's the subject of this week's Midrats show - Episode 72 Lawfare the Long War 05/22 by Midrats on Blog Talk Radio:

Never in our history have we fought a war where law, lawyers, and layers of legalese have impacted all levels of the war, Political, Strategic, Operational, and Tactical.

Why do we find ourselves here and in what direction are we going?

From Pakistan, Afghanistan, Iraq, Libya and even domestically, the legal definition of the use of military power is evolving.

To discuss the impact of Lawfare for the full hour with Sal from the blog "CDR Salamander" and EagleOne from "EagleSpeak" will be David Glazier, CDR USN (Ret.).

David is a Professor of Law at Loyola Law School in Los Angeles. Prior to Loyola, he was a lecturer at the University of Virginia School of Law and a research fellow at the Center for National Security Law, where he conducted research on national security, military justice and the law of war. He also served as a pro bono consultant to Human Rights First.

Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer. In that capacity, he commanded the USS George Philip (FFG-12), served as the Seventh Fleet staff officer responsible for the US Navy-Japan relationship, the Pacific Fleet officer responsible for the US Navy-PRC relationship, and participated in UN sanctions enforcement against Yugoslavia and Haiti.

Glazier has a JD from the University of Virginia School of Law, an MA from Georgetown University in government/national security studies, and holds a BA in history from Amherst College.

So, with experience ranging from warrior to law of war scholar, Professor Glazier has some interesting (and sometimes unexpected) views on the matters described above.

Join us this Sunday at 5pm Eastern as we delve into the world of "lawfare." I promise that the name of Hugo Grotius will be invoked somewhere along the way.

Somali Pirate Negotiator Nabbed in Somalia by U.S. forces, Interesting Legal Issues to Follow

Four dead Americans on an American yacht, and now the negotiator for the pirates involved in that messy ended has been arrest in Somalia and is facing U.S. charges, as set out here:

Mohammad Saaili Shibin is the first alleged pirate to have been arrested on-shore in Somalia. He was brought to the United States in early April, but was indicted by a federal grand jury earlier for his alleged role in the killings.

The Wall Street Journal reported that US forces, with the help of Somali army, had apprehended the alleged pirate on land. It was the first time that the US had carried out a similar operation on-shore.

Neil MacBride, US Attorney said "The arrest of Mohammad Shibin is a significant breakthrough in the United States' battle against Somali pirates."

"Today marks the first time that the US government has captured and charged an alleged pirate in a leadership role - a hostage negotiator who operated in Somalia.

"We hope that this indictment will strike at the heart of the piracy business and send a strong message to all pirates that they are not beyond the reach of the FBI, whether they board the ships or remain on-shore in Somalia," he said.

Shibin has been charged in US federal court in Norfolk, Virginia, over the alleged pirating of an American yacht, and the taking of four US citizens hostage.

I guess we must have some sort of treaty deal with some government we recognize in Somalia that allowed this.

More later as I sort through it.

" Hard National Security Choices" as set out at Lawfare Blog

I'm attending the same conference covered (and participated in) by some real legal experts in matters of trying to balance national security needs with individual privacy and other concerns. These are being recaptured by Benjamin Wittes at Lawfare: Hard National Security Choices and I’m from the NSA, and We Don’t Get Out Much.


Not a field in which I have had much experience, but as I sit there listening, it is easy to see what a challenge it is working through these issues as, in many case, events and technology have sped far beyond the legal systems efforts to try and assemble itself to deal with the new issues.

For example, with the law of armed conflict driven, for the most part, by nation states and uniformed armies in the field, how do you derive rules for a war that is not being fought by national armies nor by uniformed forces nor even by nationals in the state in which battles are being fought?

More has this goes on tomorrow.

Somali Pirates Get Life Sentences in U.S. Court

Reported as US sentences Somali pirates to life :

Five Somali men, convicted of attacking a US Navy ship, have been sentenced to life in prison by a Virginia court.

Tuesday’s sentencing is the harshest yet for accused pirates as the US tries to halt piracy off Africa's coast.

The federal prosecution relied upon rarely-used 19th century maritime laws, and was the first piracy case to go to trial since the Civil War, when a New York jury deadlocked on charges against 13 Southern privateers.

The five Somali men were convicted on federal piracy charges on November 24 last year.

Prosecutors argued during trial that the five had confessed to attacking the USS Nicholas on April 1 after mistaking it for a merchant ship.

Defence lawyers had argued the men were innocent fishermen who had been abducted by pirates and forced to fire their weapons at the ship.

However, John S Davis, an assistant US attorney, had argued that three of the men were in a skiff that opened fire on the Nicholas with assault rifles, then fled when sailors returned fire with machine guns.

Davis said all the men later confessed to the attack in remarks to an interpreter on board the ship. He said they expected to make anywhere from $10,000 to $40,000 from the ransom, a comparatively small sum.

More here:

Somali pirates in action (not from the Nicholas case)

The sea brigands in March last attacked 'USS Nicholas' patrolling the east coast of Africa as part of an anti-piracy mission. But the warship's crew returned fire and captured the pirates after chasing down their vessel.

Presiding judge Mark Davis also sentenced them to an additional 80 years in prison for firearms charges in connection with the hijack attempt. The trial held at Norfolk, home port to USS Nicholas and one of the largest naval bases in the world, also witnessed the first-ever conviction by a U.S. jury in a piracy case since 1820.

Defense lawyers said they planned to appeal the conviction as well as the sentencing.

Attorney Neil MacBride told reporters that the sentence pronounced by the trial court was the longest ever in a piracy case. The buccaneer convicted in 1820 was executed. MacBride added that the punishment meted out to the five should serve as a deterrent to others embarking on the career beyond the law.
***
In November, the trial court had found the defendants guilty of the charges. However, the defense has maintained that the men had been abducted by Somali pirates who forced them to fire from their weapons.

Report of capture of pirates here. Report of original conviction here.