Law of the Sea

North and South Korean Vessels Clash in Disputed Waters

Filed Under: Digest

On Tuesday, November 10, the navies of North and South Korea exchanged fire in disputed waters off the western coast of the peninsula, damaging ships from both sides and reportedly killing a North Korean sailor. The incident began when a 215-ton North Korean vessel entered South Korean-controlled waters. Ignoring warnings from the South, the ship exchanged fire with two 130-ton South Korean vessels before re-crossing the border, reportedly in flames. The North, which claims the waters where the incident took place, has blamed the South for instigating the confrontation and issued repeated warnings through its state news service.

South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.

South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.

The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.

UN Releases Piracy Report

Filed Under: Digest

The United Nations released a new report last week on pirate activity in Somalia. The report identifies two main groups of pirates, but is especially concerned that the piracy network based in the northern Puntland region of the country, known as the Eyle Group, is collaborating with regional government officials. Despite these accusations, many political leaders in Puntland have recommitted to fighting the piracy problem.

In 2008 there were a total of 111 attacks on ships, a 200% increase over 2007, and there have been seven incidents in January and February of this year. Somalia’s government collapsed in 1991 and foreign vessels flooded the country’s territorial waters, drawn by the prospect of unlimited and unregulated fishing. Somali leaders say that piracy is an offshoot of the wider problem of illegal fishing, and the UN report stresses that restoring order within Somalia is critical to solving the piracy problem.

The UN is especially concerned about transporting food aid because approximately 95% of food aid to Somalia arrives by sea and approximately 2.4 million people rely on that aid for survival. NATO, the EU, Russia, and China are all contributing to a policing fleet in Somalia, and Secretary-General Ban Ki-Moon has urged UN member states in the region to contribute any naval resources they can spare to combating piracy.

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Naval Incident Between China and U.S.

Filed Under: Digest

The U.S. and China are currently engaged in a skirmish over a confrontation which occurred in the South China Sea and involved five small Chinese vessels and an unarmed American surveillance vessel, the USNS Impeccable. The US claims that the Chinese vessels harassed its ship in violation of the law of the seas, while China claims that the US intruded on an economic exclusion zone in violation of the UN Convention on the Law of the Sea.

Admiral Timothy Keating, the head of the Pacific Command, declined to comment on the Chinese Foreign Ministry’s response, but noted the American reaction would come through the State Department. The Chinese embassy in Washington issued a statement after the incident clarifying its position.

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Scholar Argues For Tougher Reponse to Piracy

Filed Under: Digest

In the wake of steadily increasing aggression on the part of pirates operating in the Gulf of Aden, law enforcement mechanisms for preventing piracy are falling short. Eugene Kontorovich, a scholar of international law at Northwestern Law School claims that new tools are needed to combat piracy in the waterways off Somalia that carry about one-third of the world’s seaborne trade.

The international community has recently tried to fill this security deficit. A new U.N. Security Council resolution, strongly backed by the United States, authorizes military attacks on suspected pirates in the area in and around the Aden Gulf. The authorization includes attacks on land bases, even when those bases are in Somali territory. Additionally, the U.K. and Kenya have agreed that the British Royal Navy will submit all pirates it captures during operations around Somalia to trial in domestic courts in Mombasa.

Kontorovich claims that these measures are responses to a larger inability of international criminal law to address the problem of piracy. As international law favors trials over direct engagement, Kontorovich argues that the international community will, and should, turn away from judicial remedies to control piracy. He believes that granting pirates the full spectrum of rights due criminal defendants unfairly ties the hands of the world community. Yet, he also argues that the credibility of international criminal law is at stake. Kontrovich believes that that if international criminal law fails to effectively combat piracy, it will not bode well for its ability to prevent or punish graver war crimes.

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Ukranian Arms Ship released by Somalian Pirates

Filed Under: Digest

On February 11, 2008, the Ukrainian arms freighter ‘Faina’ returned to the Kenyan Port of Mombasa with twenty sailors. The ship had been captured by Somali Pirates in the Gulf of Aden region more than four months ago, and was released after a ransom of $3.2 Million was para-dropped onto the ship by its owner. The capture of the ship was of particular concern to the international community because it was carrying arms including T-72 tanks, grenade launchers, antiaircraft guns, and substantial ammunition. For more information on this story click here.

Pirates have attacked more than 130 merchant ships in the Gulf of Aden region in 2008. In an unrelated event five suspected Somali pirates have been extradited to Netherlands for the failed attempt to hijack the Dutch Cargo Freighter ‘Samanyulo’ on 2^nd January 2009. They will be prosecuted before the Dutch criminal courts and could face up to nine years of imprisonment if found to be guilty with the group leaders punishment extending up to 12 years. For more information on this story click here.

In another piracy-related event in the Gulf of Aden, the US Navy arrested seven suspected pirates on February 11, 2009, who were attempting to hijack the tanker ‘Polaris’. The seven suspects were taken aboard the USS Vella Gulf, which has been patrolling the area since January 2009 in responnse to the heightened piracy threat in the region. The US Navy intends to hand over the suspects to Kenya, which is setting up a new court system to try foreign pirates. For more information please click here.

Somali Pirates Paid Ransom

Filed Under: Digest

Pirates and Kenyan officials reported that the Somali pirates, who hijacked the Ukrainian arms freighter Faina over four months ago, were finally paid the ransom they demanded. The ship’s owners dropped $3.2 million (lower than the original $35 million the pirates asked for) via parachute onto the ship and the last pirate left on Thursday, February 5. The ship is now safely in the hands of the U.S. Navy.

Although Somali pirates have hijacked more than 100 ships in the past year, the hijacking of the Faina received particular attention because its cargo included tanks, grenade launchers, antiaircraft guns, and ammunition. American officials worried that the Islamist insurgents of Somalia might get possession of these dangerous goods. The original destination of the weapons is unclear: the Kenyan government claims to own them, while the pirates and Western officials claim that they were headed to former rebels in southern Sudan.

One of the pirates, Isse Mohammed, says that his gang would continue hunting ships. Meanwhile, the warships of thirteen countries, including the United States, have joined the antipiracy campaign.

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