The Horn of Africa – Somalia Spring 2009 Chronicles II (Part B)

Zawahiri To Obama: "You Are Not Welcome in Egypt"

Alleged Al Qaeda No. 2, Ayman Zawahiri said in a new audiotape today that President Obama is not welcome in Egypt. Commenting on Obama's upcoming visit to Cairo, Zawahiri said that President Obama's message to the Muslim World has already been delivered.

"Obama's message to the Muslim World was delivered when he visited the Wailing wall, with the Jewish skullcap on his head…when he performed the Jewish prayers despite claiming that he is Christian", Zawahiri said, reminding his audience of Obama's pledge before the AIPAC conference to make Jerusalem the undivided capital of Israel, CBS reported.

The al Qaeda deputy chief accused Obama of approving the "Zionist aggression on Gaza", of sending more troops to Afghanistan and continuing to bomb tribal areas of Pakistan, and of leading the "brutal campaign" against Muslims in the Swat valley. He said the Obama administration's message to the Muslim world can be seen in the continued use of secret prisons and the breach of the Geneva conventions regarding terror detainees.

"Obama's bloodied messages have reached and are still reaching Muslims, and they shall not be masked by the PR campaigns, the theatrical visits and the courteous words", Zawahiri said.

"As for his choice of Turkey and Egypt to be the places from which to address the Muslim world as he claims, well, this choice holds another indication that simply says that the kind of Muslims the Crusader Americans would be pleased with are those who abandon Islam and embrace secularism, those who acknowledge Israel, conclude security agreements with it, and take part in its military drills".

President Obama had visited Ankara last April and delivered a speech before the Turkish Parliament where he pledged to strengthen ties with the Muslim world.

Zawahiri directed part of his criticism at the Egyptian regime, accusing it of further tightening the blockade imposed on Palestinians in Gaza, and accusing Egyptian president Hosni Mubarak of grooming his elder son, Jamal, to succeed him as President, "in order to maintain the corruption and the reliance on America, the Crusaders and the Jews."

Zawahiri, who previously called President Obama "a house negro" upon his election in December, said that only the corrupt "butchers and tyrants" of Egypt would welcome President Obama there, but not the sincere honest Egyptians. "The honorable people of Egypt despise Obama and consider him an international criminal, and an arriviste politician who serves the Zionist cause in order to get promoted to the highest levels of government".

He concluded his message by urging Egyptians not to welcome the US President in Egypt. "O’ free and honorable people of Egypt, O’ pious and Mujahids of Egypt, stand in one rank in the face of this criminal who came to try and obtain by ruse, what he failed to obtain in the battlefield, especially after the Mujahideens have foiled the American plots in Iraq, Afghanistan and Somalia".

Zawahiri’s statement runs over nearly 12 minutes, and is entitled: "Egypt’s Slayers and the Agents of America Welcome Obama".

The Small Arms Survey and Saferworld draw your attention to the latest Sudan Human Security Baseline Assessment (HSBA) Issue Brief: Conflicting priorities: GoSS security challenges and responses

The Brief provides an analysis of the current security challenges facing the Government of Southern Sudan (GoSS) and its recent responses, including its decision to conduct a civilian disarmament campaign in 2008. The Brief highlights the extent to which GoSS¹s security planning continues to be driven by the belief that a future confrontation with the North is likely, and how this orientation constrains its ability to address insecurity and conflicts emerging within the South. The Brief is intended to help policymakers, non-governmental organizations, donors, analysts, and researchers obtain a clearer understanding of the motivations and strategies underlying the GoSS¹s recent actions. It finds that:

* The GoSS faces a combination of internal divisions and external pressures from an increasingly hostile National Congress Party (NCP) in the North; numerous violations of the CPA have been left unresolved, and there has been associated violence in a number of areas throughout Southern Sudan.

* The 2008 GoSS civilian disarmament campaign had limited impact, in terms of both removing weapons from circulation and stemming violence. The campaign was conducted selectively, took place alongside re-armament, was decentralized in its implementation, and lacked a uniform approach. Disarmament in the current context is unlikely to contribute to the broader goals of peace and security.

* The 2008 disarmament campaign and subsequent violence in Jonglei in 2009 are indicative of divisions within the GoSS, between those empowered by the CPA and other southern opposition groups. The issue of how to handle militias ‹whether independent or aligned with security forces in the North‹as well as inter-communal conflict is at the heart of these divisions. A renewed focus on SouthSouth dialogue and reconciliation is essential if the South is to remain unified.

* In order to meaningfully engage with the GoSS on security issues, the UN and donors need to appreciate the GoSS¹s security dilemmas and priorities, and allow these to inform their approach to supporting the development of security policies and institutions.

* Donors and others involved in security policy and programming can engage decision-makers to plan for possible scenarios following the referendum in 2011 and develop strategies to address and mitigate internal threats to stability in the short to medium term. This calls for a sequenced approach that takes security‹rather than disarmament‹as the necessary starting point. The Issue Brief, Number 14 in the HSBA series, can be downloaded from:
http://www.smallarmssurvey.org/files/portal/spotlight/sudan/sudan_publicatio ns.html

For further information about the publication and the HSBA project, contact Claire Mc Evoy HSBA Project Manager Small Arms Survey claire.mcevoy@smallarmssurvey.org or Sarah Preston Sudan Project Coordinator Saferworld spreston@saferworld.org.uk

Charting a Course: US-China Cooperation at Sea

by Peter A. Dutton

In December 2008, Chinese leaders announced that the People’s Liberation Army Navy (PLAN) would join the anti-piracy efforts off the Horn of Africa.1 This decision reflects China’s increasing global interests and the threat posed to them by non-traditional security concerns, particularly the rise in piracy that has disrupted shipping traffic in the critical sea lanes that run through the Gulf of Aden.2 The international community has been battling such threats in the region for many years, but until recently China has avoided cooperative maritime security efforts with other countries, including the United States. Thus, the decision may also reflect a move by China to assume more influence over international security affairs. Since Sep. 11, 2001, leadership to combat non-traditional security threats has been filled almost entirely by the United States, but differences in legal and political perspectives have kept China from contributing to such US-led international maritime security activities as the Proliferation Security Initiative and Combined Task Force 150. Indeed, Chinese officials and scholars have publicly questioned the legal rationales behind them.

On the other hand, China has been more supportive of state-to-state cooperative efforts, including on the United States Container Security Initiative (CSI). An examination of China’s decisions to opt in or out of specific international efforts, in light of China’s perspectives on international law of the sea, will offer insights into pathways of future cooperation. It may also portend the ways in which China will attempt to shape the future of global maritime governance.

Governance and Security at Sea

Historically, coastal states exercised little authority at sea beyond the narrow territorial margin that could be easily controlled from the shore. The vast oceanic expanses remained available for the free and equal use of all states to pursue economic, security and defense activities. The lack of maritime governance had its benefits to be sure. It fostered free commercial communication, allowed effective use of marine resources by those best positioned to exploit them and enabled great maritime powers to create a global trading system by pacifying the seas without offending the sovereignty of littoral states. However, piracy and raiding were at least as persistent a problem then as they are today.3 As a result, two particular legal constructs developed out of early state practice that enabled sovereign states to assert extraterritorial policing authority to keep order on the high seas.

Addressing the problem of jurisdiction aboard ships at sea, all vessels were required to carry the flag of the state from which they emanated. Flag state jurisdiction carries with it the state’s exclusive authority to regulate the activities on board while at sea and remains the primary basis of jurisdiction over vessels.4

However, flag state authority is supplemented with international law that enables states to police the global maritime commons and provide order where coastal states have no authority or ability to do so. This premise forms the basis of the cooperative international anti-piracy activities off the Horn of Africa.

The legal construct of universal jurisdiction is the most well developed of these international law tools, providing the authority for states to confront piracy and statelessness at sea. Universal jurisdiction allows all states to use their naval forces to capture offending vessels, assert prosecutorial authority over pirate crews and try them according to the captor’s domestic law.5

Similarly, vessels at sea without nationality6 are subject to the authority of any state. In order to enforce their universal jurisdiction authority, the naval forces of any state may approach civilian vessels of concern and determine whether reasonable grounds exist to suspect piracy or statelessness. If reasonable grounds develop, an officer and boarding party may visit the vessel to inquire further and, if necessary, seize it without regard for the interests of the vessel’s flag state.7

Thus, for a very few crimes at sea - including piracy and statelessness - the paradigm of the primacy of flag state jurisdiction is turned on its head and all states have equal law enforcement authority over the vessel.8 This unusual degree of extraterritorial jurisdiction is based on the idea that some crimes are so disruptive that the entire community of states has an interest in suppressing them. This traditional framework is preserved in the United Nations Convention on the Law of the Sea (UNCLOS). It reflects the long history of overlapping national and international law to balance coastal state and international interests while maintaining security at sea.9

In addition to traditional international law authorities, several international conventions also provide a framework for cooperation on matters of policing powers at sea. Each of these conventions preserves the authority of the flag state to enforce its law on its vessels, but also contains mechanisms to gain case-by-case consent for a foreign naval vessel to enforce law on the flag state’s behalf.

These conventions cover three additional law enforcement areas that are critical to maritime security: drug trafficking, human trafficking and international terrorism.10 The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its 2005 Protocols, for instance, are perhaps the most important tools in the fight against terrorism at sea.11 The convention calls upon states to cooperate at sea through strenuous enforcement of national and international law authorities. The protocols address the use of vessels to carry out terrorist attacks, transport terrorists or transport cargo destined to aid the development of unlawful programs of weapons of mass destruction. However, to date international law does not recognize these crimes as subject to universal jurisdiction. Accordingly, law enforcement at sea for these types of crimes remains limited to direct flag state enforcement or to enforcement by a foreign naval vessel upon the specific request of the flag state.12

Fundamentally, this combination of national and international law allows maritime states to effectively safeguard commerce and generally ensure the stability of the global maritime system.

A Complicating Factor

Alongside the development of jurisdictional authority over vessels arose the development of coastal state jurisdiction over zones at sea. Coastal states once had only one zone of jurisdiction, the territorial sea. During the 20th century, however, three new zones of special coastal state jurisdiction beyond the territorial sea were added: the contiguous zone, the exclusive economic zone and the continental shelf. Now, in addition to flag states and maritime powers, coastal states also have a law enforcement interest at sea. The development of overlapping jurisdictional bases inevitably led to conflicts over what states have authority to enforce what law and where. UNCLOS clearly resolved many of these issues, but others are open to different interpretations or to future legal development.

For instance, although the substantial majority of states accept the right of all states to apply universal jurisdiction in the exclusive economic zone of other states, China’s perspective on the right balance of legal authorities in this zone is weighted in favor of the coastal state. China’s reluctance to participate directly with a number of US-led maritime security operations stems from this divergence. The Chinese position appears to be that when operating in the exclusive economic zone of another state, naval vessels must gain coastal state consent to undertake any activities other than those necessary for passage. Chinese scholars have offered the perspective that conducting other military activities without coastal state consent constitutes an abuse of "freedom of navigation," and that it "undermines the peace, tranquility and good legal order in their exclusive economic zones, and thus violates [the coastal state’s] sovereign rights and exclusive jurisdiction".13

At international conferences, Chinese scholars and officials argue that use of the exclusive economic zone for military purposes represents a "frozen agenda" set by major maritime powers and enforced for too long without consultation with weaker coastal states.14 Coastal states, they argue, should seek to establish a "new balance" that protects the unique role of the exclusive economic zone in protecting national sovereignty and security when dealing with nontraditional threats. Specifically, Chinese scholars seek to define as "hostile", any "…action that would infringe upon the national security interests of coastal countries ... [including] carrying out military activities or employing forces in a foreign EEZ".15 Chinese scholars also argue that although UNCLOS Article 56 requires that "in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other states", Article 58 requires that the international community "have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations of the coastal State". The Chinese further point out that Article 59 requires that "conflict [between these two ‘due regards’] should be resolved … taking into account the respective importance of the interests involved to the parties".16

In prioritizing coastal state interests in the EEZ over those of the international community, Chinese scholars argue that UNCLOS affords the coastal state sovereign rights over resources,17 jurisdiction to manage them18 and responsibility to protect and preserve the environment.19 Since coastal states have additional security interests near their shores, it is self-evident to Chinese scholars that in the balance of "due regards" there is no room for international military activities in the exclusive economic zone without the coastal state’s express consent.20 As a result, the Chinese authorities have so far declined to accept the automatic enforcement of international law by navy ships in the 40 percent of the world’s oceans that comprise the exclusive economic zones of other states - even for the important purpose of preventing the spread of weapons of mass destruction.21

Despite its current views, China is increasingly becoming a global maritime user state with strategic concerns increasingly similar to those of other major maritime powers. As some observers have noted, China’s harbors import and export more than any in the world, which connects the Chinese to all the regions and seas of the world.22 Accordingly, China’s views on its maritime interests have broadened to include concerns about international terrorist organizations, disruptions to the global economy, protection of the oceans as a "vehicle for mutual commerce", protection of China’s enterprises overseas, and its dependence on distant supplies of raw materials.23 China and the United States now share many security considerations. Both, for instance, want to preserve a peaceful international environment and agree that the further spread of nuclear weapons would be a grave danger.24 Unfortunately, China’s perspectives on international law of the sea have the collateral effect of limiting its own growing naval power to provide order and security where the vast majority of disruptive, nontraditional threats occur, in the exclusive economic zones of other states. Consequently, comprehensive US-Chinese naval cooperation to provide maritime security remains elusive, although a few notable successes have nonetheless been achieved.

Comparative Chinese Maritime Security Decisions

The United States Container Security Initiative—Opting In

CSI enhances maritime and port safety by enforcing port state regulatory and security standards over the 108 million cargo containers carrying the vast majority of seaborne trade each year.25 The enormous volume of trade between China and the United States makes container security a mutual interest. In 2006, 21 percent of all Chinese exports went to the United States with a total value of approximately $250 billion, which perhaps accounts for China’s decision to participate in the program.26 Under the auspices of CSI, unarmed officers of the US Customs and Border Protection Service are stationed in key ports around the world to work with host nation counterparts to administer non-intrusive inspections and radiation screening of all containers bound for the United States that pose a potential threat. It is a truly bilateral program. Port states have a reciprocal right to send their customs officers to major American ports should they choose, and the US Customs and Border Protection Service shares relevant information with partner states. Additionally, although US customs agents stationed at the overseas port have the right to reject the shipment of any particular container to the United States, only the customs law of the exporting state governs whether its customs laws have been violated. Accordingly, law enforcement remains fully in the hands of and under the control of the port state and therefore fully respects the sovereignty of the port state. Currently, two mainland Chinese cities - Shanghai and Shenzhen - are full participants, which may provide some competitive advantage to trade since prescreened cargo receives expedited acceptance at US ports.27

Similarly, successful cooperation also exists between the coast guards of the United States and the People’s Republic of China. Together, they enforce the national fishery laws of both countries through joint patrols against illegal driftnet fishing under the North Pacific Coast Guard Forum.28 Under this program, Chinese officers have sailed aboard US Coast Guard cutters to enforce Chinese domestic fisheries law against Chinese fishing vessels on the high seas. Chinese officers have also studied at the US Coast Guard Academy. In addition, China has allowed US Coast Guard inspectors access to Chinese ports to inspect US flagged vessels and port security requirements for nearly three decades.29 This program entails the reciprocal enforcement of each state’s domestic law, which is the key to its success. It is free of the barriers posed by differing interpretation of international law authority, which unfortunately plagues wider US-Chinese cooperation.

United Nations Sponsored Anti-Piracy Activities—Opting In

At the UN Security Council, China voted in favor of international military action in the territorial waters of Somalia, as officials acknowledged that Somalia has insufficient capacity to prevent piracy against international shipping in its waters. However, China’s statement of support for Resolution 1816 clearly underscores the importance of Somalia’s consent for assistance.

International assistance, it states, "should be based on the wishes of the [Somali] Government and be applied only to the … waters of Somalia".30 Given China’s restrictive views on the authority of the international community to operate in the exclusive economic zones of other states, the Somali request to the United Nations was crucial because it specifically invited the international community to help fight piracy in Somalia’s territory and waters under Somalia’s jurisdiction.31

In deciding to send its own naval forces to help maintain maritime security, China made clear it has specific national interests in sending naval forces abroad for operations for the first time since the voyages of Zheng He. Chinese strategic rationales behind the decision began with a statement that China has a duty to protect ships that sail under its flag, and that it would also protect vessels sailing under the flags of Hong Kong, Macau and Taiwan if requested.

Additionally, officials noted that six Chinese-flagged vessels were attacked in the region during 2008 and 17 crewmembers of a captured Chinese fishing vessel remain in captivity.

Despite these interests, Chinese policy-makers had to strike a delicate balance in order to avoid offending its policy of nonintervention in what China characterizes as the domestic affairs of other states. It has repeatedly criticized "hegemons", who use power to "bully" less powerful countries. This was another key reason why it was important to China that the Somali government requested the Security Council’s assistance and the council unanimously decided to provide it.32 The request is therefore critical both to China’s perception of the efforts as politically legitimate and to its view that they comport with international law. Therefore, in sum the Chinese government’s legal and political approach to the problem of piracy in the waters off the Somali coast is consistent with its perspective that the international community does not have the right to undertake military activities in the exclusive economic zone of another state without that state’s consent.

To add its own emphasis to the point, the Legal Affairs Bureau of the Central Military Commission officially opined that the lawfulness of the PLAN anti-piracy operations in the Gulf of Aden rests on three pillars: the relevant UN Security Council Resolutions authorize it; the government of Somalia requested international support and consented to naval operations by the international community in its territorial sea and exclusive economic zone; and the United Nations Convention on the Law of the Sea, to which China is a signatory, allows anti-piracy operations "in sea areas beyond territorial waters… [and] which have been authorized by that government".33

Strategically, the decision by China’s leaders to send a small flotilla of ships to join the anti-piracy efforts has been described as an "adjustment" in China’s maritime strategy. Given China’s historically defensive maritime posture, this is an accurate assessment even though prominent Chinese analysts insist that China’s "naval strategy will still focus on off-shore defense".34 Nonetheless, this is a change long presaged by the architects of China’s Peaceful Rise and Peaceful Development policies, who called for a greater role for China as a permanent member of the United Nations Security Council in multilateral operations to enhance international security.35 These thinkers have attempted to articulate a "new security concept" based on "mutual trust, mutual benefit, equality and cooperation".36

Even given these expressions of the political and legal legitimacy of the operations, China’s leaders are walking a narrow line. In undertaking anti-piracy activities, the Chinese navy must be perceived as contributing to global governance without threatening status quo powers in order to avoid a possible backlash of balancing behavior from other Asian states concerned about China’s growing military prowess.37 Accordingly, Chinese leaders have prescribed a narrow set of missions for the deployed naval forces: to deter piracy; safeguard vessels carrying humanitarian supplies for the people of Somalia; escort Chinese-flagged merchant vessels (including from Hong Kong, Macau and Taiwan, upon request); provide information to other merchant vessels about potentially dangerous areas; and to provide "necessary rescue services" to merchant ships that find themselves under attack.38 Notably, the Chinese admiral in command of the PLAN flotilla specifically ruled out disembarking and going ashore.39

Senior US Navy leaders welcomed China’s decision to participate in counter-piracy operations in the Gulf of Aden and pledged to work closely together with Chinese forces in the region, including sharing relevant intelligence and establishing lines of communication.40 This is a good omen, since it reflects American respect for China’s interests and a willingness to accept a role for China in providing regional stability beyond East Asia.

As one senior Chinese official put it, no country, not even a powerful country like the United States, can tackle all the challenges and problems alone. …Our countries have common views on more and more strategic issues. … [But to] realize greater growth of US-China relations, it is essential for China and the United States to show mutual support [and to] treat each other as equals.41

This statement provides some insights into the unique opportunity presented for China-US cooperation by this operation off the coast of Somalia. First, they can work together in mutual support. That is, their activities can be independent, but coordinated. This allows each the freedom to define the scope of its action according to its capacities, and each is likewise free to define the scope of authorities it views as legitimate to employ. Thus, China can freely pursue its own interests alongside the United States and other members of the international community without having to compromise its perspectives on the limits of international law. Additionally, since the Somali operations were debated and directed from the UN Security Council, China as a permanent member is ensured an equal voice in framing the issue.

Combined Task Force 150—Opting Out

Even before piracy from Somalia became a serious international concern in 2008, the waters off the coast of the Horn of Africa were some of the most dangerous in the world. In these critical sea lanes fishing vessels, chemical tankers, cargo ships, cruise liners and other vessels have all been targets of attacks in recent years. Human trafficking and smuggling were also a concern. These have caused serious disruption to free navigation in this major international sea lane.42

To address these sources of instability, a coalition of willing countries with capable naval forces established CTF 150.43 Although the primary mission of the task force is to "deny the use of the sea by terrorists", the coalition also works to "prevent piracy, [and] reduce illegal trafficking of people and drugs". 44 To do this the task force employs the full range of international law policing authorities to suppress piracy and stateless vessels, but also operates under post-Sept. 11 national and collective self-defense authorities.45 To accomplish these objectives, the navies of CTF 150 have combined their capacities to enhance international security for civilian vessels in these troubled waters, assisting ships flagged by Panama, Japan, South Korea, Taiwan, the Comoros Islands and North Korea in the month of November 2007 alone.46 Contrary to China’s current decision to send forces to Somalia, it never provided direct support for similar longstanding operations carried out by CTF 150.

The activities of CTF 150 reflect an evolution of maritime governance from its history of international competition to a much more robust model based on coordinated action. Yet, these operations make full use of the available legitimate international law authorities to use force over crimes of universal jurisdiction and to achieve national and collective self-defense. Contrary to the Chinese position, CTF 150 member states accept these legal authorities as a matter of sovereign right, without need for recourse to the United Nations or for coastal state consent. These premises are fundamentally unacceptable to China, which has never participated in the activities of CTF 150 despite the fact the task force has long been operating to protect many of the same interests that China is currently safeguarding with its own flotilla in the Gulf of Aden.

Another sticking point for China is the chain of command under which CTF 150 operates. CTF 150 was established shortly after the initiation of Operation Enduring Freedom (Afghanistan), and like this operation, is based on national and collective self-defense. In addition, CTF 150 involved a large area of operations - the Gulf of Aden, Gulf of Oman, Arabian Sea, Red Sea and Indian Ocean. Most critical is the fact that although CTF 150 has been commanded by British, Canadian, Danish, Dutch, French, German and Pakistani naval officers, the task force commander reports directly to the US admiral in charge of the 5th Fleet.47 These factors are obviously incompatible with China’s perspective on the political and legal legitimacy of maritime security operations and run counter to its insistence that China must operate fully as an equal to all other participating states in any international effort.

The Proliferation Security Initiative—Opting Out

Despite China’s port-security cooperation under CSI, it remains reluctant to join more informal international efforts. The Proliferation Security Initiative (PSI) is a case in point. This initiative is described by the US government as "a global effort that aims to stop trafficking of weapons of mass destruction (WMD), their delivery systems and related materials to and from states and non-state actors of proliferation concern".48 It is not a treaty organization. Rather, PSI is simply a loose affiliation of like-minded states that agree on a basic set of principles, articulated in a document known as the Statement of Interdiction Principles.49 Currently, 91 countries have publicly expressed support for the Statement of Interdiction Principles.50 China is not among them.

In addition to employing national and international law to interdict and seize proliferation cargoes, PSI calls on participant states to facilitate rapid exchange of information and to strengthen national legal authorities and relevant international law frameworks.

Nine states have chosen to cooperate with US nonproliferation efforts by entering into ship boarding agreements. These facilitate a process by which the flag state can consent to a boarding of its vessel by other parties for the purpose of enforcing nonproliferation laws.51 Other than this, PSI intentionally lacks a well-defined organizational structure, which allows it the widest latitude for international cooperation by enabling each state to participate as it sees fit. When a case of suspected proliferation is identified, PSI seeks to maximize flexibility by allowing for the coordination of an ad hoc response by states with the will and the capacity to intervene.

Chinese scholars lodge three basic objections to PSI. First, they view the interdiction principles as lacking a "solid basis in international law" and perhaps even in violation of "existing international legal instruments". Second, they object to the lack of a direct role in PSI activities for the UN Security Council. Lastly, they question whether "interdiction operations [will be] conducted based on accurate, unbiased and non-politicized intelligence".52 The first objection reflects a consistent Chinese preference for narrow interpretations of international law authorities that make it difficult for strong maritime powers to overcome flag state and coastal state jurisdictional authorities.

The second objection reflects China’s preference for international cooperation through the Security Council, where China has a voice and vote equal to each of the other major powers. The third objection, like the first, reflects Chinese mistrust of broad international law authorities that might enable states to act on inaccurate or inconclusive evidence of proliferation activity - as occurred in the 1993 Yin He incident.53 This incident deepened China’s suspicion of the US approach to enforcement of international nonproliferation norms and resulted in a renewed Chinese commitment to protect the sovereign interests of flag states against what it perceived as "abusive" American practices.54

Nonetheless, many Chinese officials and scholars recognize the pressing need for cooperative action. As one researcher at the PLA Naval Military Academic Institute recently put it, "maritime security represents both the common interest of the concerned nations and the common responsibility of the international community...[and] the involvement of military strength becomes inevitable and the cooperation on international maritime security becomes very necessary".55 He believes it wise to focus cooperative efforts on the high seas beyond the exclusive economic zone or other non-sensitive areas in order to avoid offending the sovereign sensibilities of some coastal states. This approach could facilitate information sharing, especially in cases involving long transit times that allow for the communication, diplomatic coordination and preparation of a naval response. However, this approach avoids whole categories of proven effective measures that enable more timely and efficient responses, such as those based on principles of universal jurisdiction, national self-defense and ship boarding agreements.

In sum, China’s responses to these four opportunities for US-China maritime cooperation reveal that the two successful avenues for future cooperative action are mutual state-to-state enforcement of sovereign law (as with CSI and the North Pacific Coast Guard Forum), and operations with Security Council oversight at the receiving state’s request (as in recent anti-piracy operations in Somalia). These may provide some very real reason to hope for a future of broader cooperation between the United States and China - even under the rubric of the PSI, since time and experience have taught cooperating states that the most effective and efficient means of counter-proliferation is through strict enforcement of domestic customs laws, import-export licensing laws, immigration laws, and other national authorities that prohibit transportation of materials that are ultimately intended to be used to create weapons of mass destruction.

The Horn of Africa and Beyond

Restraint has been clearly expressed by US and Chinese leaders concerning the potential for increased maritime cooperation. While common interests exist, the capability to provide governance on the oceans is more than simply a function of bringing together physical capacity - ships, aircraft, trained personnel, communications and information systems, etc. It also requires at least a fundamental level of agreement over the authority on which to employ that capability. In other words, a common basis for action is requisite for joining forces in the service of policing.56 Despite difficulties, however, coordinated independent national actions, based on national perspectives of international law authorities, can still be an effective mechanism to achieve maritime security.

The current operations in the Gulf of Aden demonstrate the critical role still available for a mix of national and international maritime arrangements. Indeed, the international will for cooperation, even through loosely coordinated, independent activities, has never been higher. But it is increasingly evident that maritime security requires far more than the sum total of national capacities alone. Even as the drive toward maximum participation will require states that favor strong international powers to act at sea to find avenues for collective action that accommodate less expansive views of the law, the availability of the full measure of traditional international law authorities must be preserved for states willing to create order at sea in those cases where the political will to cooperate is slow to develop or in fact never develops at all.

These authorities allow for a rapid international response to destabilizing activity in coastal zones in which some states have insufficient capacity to provide order. In short, they are critical to preventing the development of ungoverned spaces at sea. However, as China accepts a maritime leadership role it will be increasingly difficult to lead from outside the legal fold. China will be faced with the imperative of either aligning its perspectives on international law to prevailing interpretations, or articulating a new vision of maritime security that is both effective and supports its perspectives on international law of the sea.

In the meantime, three broad areas of agreement between the United States and China chart a clear course toward greater maritime security cooperation. First, both countries seem to agree that they should work together to prevent the expansion of ungoverned maritime space. Additionally, since operations in the Horn of Africa today are necessary due to the implosion of Somali governance nearly two decades ago, coordinated action at the Security Council will need to address the root problem early on by strengthening failing states, both at sea and on land. Building on the broad cooperation achieved by the Security Council in 2008, this work should continue and expand to other regions of maritime instability. Strengthening governance in maritime spaces where current capacity is weak, such as in some areas of the South China Sea, can be an area of focus in the future.

Second, while international authorities must always remain strong for possible contingencies, the most effective and legitimate means of building maritime governance is to strengthen the sovereign forces of the coastal states so they can effectively police their own waters. Global and regional capacity-building is critical in such areas as maritime Southeast Asia, where the Indonesian and Philippine archipelagoes form two of the four longest coastlines of any coastal state.57 US-China cooperation in providing economic support, training, information-sharing and, when asked, direct operational support, could be critical to ensuring future maritime stability in the sea lanes of the South China Sea.

Finally, the United States and China should work to strengthen communication at all levels. An open exchange of information and views between the government, military, commercial and academic communities by both sides is essential to developing a productive partnership. Too often, the result of disagreement has been to shut off communication. Such behavior stunts progress in mutual understanding, which comes at the cost of cooperative solutions toward better maritime governance. China and the United States may never converge in their perspectives concerning international law, but with coordinated actions that respect each other’s sovereignty and are based on mutual interest and a relationship between equals, the two nations can work together toward the common goal of stability at sea.

Notes

1 A more thorough treatment of this article will appear as a chapter in the forthcoming volume, Andrew S. Erickson, Lyle J. Goldstein, and Nan Li (eds.), Defining a Maritime Security Partnership with China (Annapolis, MD: Naval Institute Press).

2 "Sailing to Strengthen Global Security," China Daily, December 26, 2008, www.chinadaily.com.cn/china/2008-12/26/content_7342612.htm.

3 See, e.g., The Mariana Flora, 24 United States Reports 1, March 26, 1826.

4 This history is reflected in United Nations Convention on the Law of the Sea (UNCLOS) Articles 91, 92 and 94.

5 Alfred P. Rubin, The Law of Piracy (Newport, RI: Naval War College Press, 1988), 144. Rubin discusses the US Congressional decision in 1819 to assert jurisdiction over any person who, having committed a crime of piracy on the high seas, was later brought within US territorial jurisdiction. Modern law, as reflected by the terms of UNCLOS, holds that sovereign waters include internal waters (Articles 10(4), 35(a) and 50), the territorial sea (Articles 2 and 3) and archipelagic waters (Article 49). Outside sovereign waters, high seas freedoms apply (Articles 58(1) and 87), including international policing power to impose minimum order and security, such as the right of approach and visit to suppress piracy, sailing without nationality, engaging in slave trade, and a relative newcomer, engaging in unlawful broadcasting. (Article 110). See also Mackenzie M. Eaglen, James Dolbow, Martin Edwin Anderson and James Jay Carofano, "Securing the High Seas: America’s Global Maritime Constabulary Power," Special Report SR-20, The Heritage Foundation, March 12, 2008, 3.

6 Vessels without nationality, or "stateless vessels", are those that sail without sufficient jurisdictional connection to a sovereign state.

7 UNCLOS Article 111; A.R. Thomas and James C. Duncan, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies 73 (Newport, RI: Naval War College Press, 1999), 221.

8 UNCLOS Article 110 includes slave trade as an additional crime of universal jurisdiction.

9 Chinese maritime theorists are giving considerable attention to the nature of international and coastal state interests in the maritime domain and providing a Chinese perspective on how international and sovereign law should be balanced to meet the interest of both. See, for example, Senior Col. Zhang Wei, "Exploring National Sea Security Theories", Zhongguo Junshi Kexue, January 1, 2007, 84; and Dr. Ren Xiaofeng and Senior Col. Cheng Xizhong, "A Chinese Perspective", Marine Policy 29 (2005): 139.

10 UNCLOS Article 108 encourages cooperation to suppress drug crimes at sea. The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, December 20, 1988, entered into force November 11, 1990, available at http://www.unodc.org/pdf/convention_1988_en.pdf. The UN Convention against Transnational Organized Crime and its related Protocols entered into force in September 2003 and as of June 2008 had 147 signatories and 144 states parties. The convention and its protocols are available at http://www.unodc.org/unodc/en/treaties/CTOC/index.html. Thirteen major conventions and protocols dealing with terrorism were developed under the auspices of the United Nations For a comprehensive list of UN treaties and protocols related to terrorism, see http://www.un.org/terrorism/instruments.html.

11 Available at http://untreaty.un.org/English/Terrorism/Conv8.pdf, and United Nations Treaty Series, Vol. 1678, I-29004, 223.

12 Although the protocols have not yet entered into force, eighteen states, including the United States, have signed the protocols and two have ratified; they will come into force when twelve states have completed ratification. For the provisions of the 2005 protocols, see www.imo.org.

13 Dr. Ren Xiaofeng and Senior Col. Cheng Xizhong, "A Chinese Perspective", Marine Policy 29, (2005), 139.

14 See, for example, Cheng Xizhong, "A Chinese perspective on ‘Operational Modalities’", Marine Policy 28 (2004), 25-26.

15 Cheng Xizhong, "A Chinese perspective on ‘Operational Modalities’", Marine Policy 28 (2004), 25-26.

16 It should be noted that this legal interpretation diverges from the perspective of the substantial majority of member states and from the US position. Additionally, Tommy T.B. Koh, who represented Singapore and served as the president of the Third United Nations Conference on the Law of the Sea, said, "Nowhere is it clearly stated [in the 1982 Convention] whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted". Jon M. Van Dyke (ed.), Consensus and Confrontation: The United States and the Law of the Sea Convention (Honolulu: Law of the Sea Institute, 1985), 303-304.

17 Article 56(1)(a)

18 Article 56(1)(b)

19 Article 56(1)(b)(iii)

20 For a good detailed articulation of these arguments by Chinese scholars, see, e.g., Dr. Ren Xiaofeng and Senior Col. Cheng Xizhong, "A Chinese Perspective", Marine Policy 29 (2005), 139-146. Dr. Ren, it should be noted, is in the faculty of the China Institute for International Strategic Studies in Beijing.

21 The Chinese legal argument concerning the primacy of coastal state security interests in the exclusive economic zone over international navigational freedoms - including military freedoms - is based on a clever, though erroneous, intellectual sleight of hand. It takes the language of Article 58 regarding the responsibility of the international community to give "due regard to the rights of … the coastal state" in the exclusive economic zone and inserts a coastal interest in its place. The rights referred to, of course, are those enumerated in Article 56 and elsewhere in UNCLOS concerning sovereign coastal state rights to the resources. What has been substituted in the Chinese argument is the state’s security interest - not protected in the exclusive economic zone by UNCLOS, but by international law related to national self-defense.

22 Senior Col. Feng Liang and Lieutentant Col. Duan Tingzhi, "Characteristics of China’s Sea Geostrategic Security and Sea Security Strategy in the New Century", Zhongguo Junshi Kexue, January 1, 2007, 22.

23 Ibid.

24 See, e.g., Speech by Hu Jintao at the United Nations 60th Anniversary Session, available at http://www.fmprc.gov.cn/ce/cehu/hu/xwdt/t213375.htm, and Chas W. Freeman Jr., The Promise of Sino-American Relations, Barnett-Oksenberg Lecture, February 21, 2008, reprinted in Notes: National Committee on United States-China Relations 38, no. 1, Winter-Spring 2009, 21.

25 Andrew Erickson, et al, "The Container Security Initiative and U.S.-China Relations", Defining a Maritime Security Partnership with China (Annapolis, MD: US Naval Institute Press).

26 CIA World Factbook, www.cia.gov.

27 US Customs and Border Protection Service Fact Sheet, October 2, 2007, available at www.cbp.gov.

28 Li Mingjiang, "China’s Gulf of Aden Expedition and Maritime Cooperation in East Asia", China Brief 9, no. 1, January 12, 2009, 3.

29 Lyle J. Goldstein, "China: A New Maritime Partner?" U.S. Naval Institute Proceedings, August 2007, 26, 30.

30 When Somalia’s Transitional Federal Government sent a letter requesting Security Council assistance in fighting pirates sheltered inside Somalia’s territorial sea, China voted in favor of Resolution 1816 authorizing members of the international community to "enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea". See Report of Security Council 5902nd Meeting (PM) of June 2, 2008, http://www.un.org/News/Press/docs/2008/sc9344.doc.htm.

31 See, e.g., Zhang Zhingwei, "China Adjusts Its Maritime Power Strategy at the Right Moment", Hong Kong Ta Kung Pao, December 29, 2008; Li Ta-kuang, "Chinese Navy Has Capacity to Fight Against Piracy". Wen Wei Po, December 25, 2008; "Discreet Naval Development Proves Shared Responsibility of World Peace (Commentary)", Xinhua Economic News Service, December 29, 2008.

32 See e.g., "Faced With Myanmar Protests, China Reaffirms Nonintervention", Associated Press, September 25, 2007.

33 Bai Ruixue and Zhu Hongliang, "Central Military Commission Legal Affairs Bureau Official Says for Chinese Warships to Protect Ships in Somalian Waters is Entirely Legal", Xinhua, December 20, 2008.

34 Zhang Zhingwei, "China Adjusts Its Maritime Power Strategy at the Right Moment", Hong Kong Ta Kung Pao, 29 December 29, 2008. The quote reflects the words of Beijing defense analyst Peng Guangqian published in, "Sailing to Strengthen Global Security", China Daily, December 26, 2008.

35 See generally the comments on China’s global role as a "major country", China’s interest in suppressing nontraditional security threats, pacification of "hot spots", and participation in joint efforts to maintain international order found in China’s Peaceful Rise: Speeches of Zheng Bijian, 1997-2005 (Brookings Institution Press: Washington, D.C.: 2005); Tao Shelan, "Rear Admiral: Chinese Navy Provides ‘Public Good’ to International Community with its Fight against Pirates", Beijing Zhongguo Xinwen She, December 24, 2008; "China to Bolster Image as Responsible Big Nation", People’s Daily, December 24, 2008.

36 China’s Peaceful Rise: Speeches of Zheng Bijian, 1997-2005 (Brookings Institution Press: Washington, 2005), 35.

37 It is worth noting that after the Chinese began seriously discussing sending a group of navy ships to the Gulf of Aden, East Asian rival Japan began public discussions about reinterpreting constitutional restrictions on expeditionary operations in order to potentially allow a JMSDF vessel also to proceed to the Gulf of Aden to escort Japanese-flagged vessels. "MSDF May Get Anti-piracy Duty Off Somalia", Kyodo News, December 26, 2008.

38 "Naval Escort Fleet To Protect 15 Chinese Merchant Vessels From Pirates", Xinhua, January 6, 2008.

39 He stated that his authority does not include undertaking missions requiring his personnel to disembark or go ashore, even though United Nations Security Council Resolution 1851 permits it. See "PRC Fleet Commander Rear-Admiral Du Jingcheng on escort tasks off Somalia", Xinhua, December 26, 2008; Margaret Besheer, "UN Security Council Approves Anti-Piracy Measure", Voice of America, December 16, 2008, http://www.voanews.com/english/2008-12-16-voa62.cfm.

40 Donna Miles, "U.S. Welcomes Chinese Plans to Fight Piracy, Admiral Says", American Forces Press Service, December 18, 2008. In response, a spokesman for the Chinese Ministry of National Defense stated that China is "willing to cooperate with … other countries, including the U.S., in strengthening informational and intelligence sharing". Cary Huang, "Warships Will Also Protect Taiwanese Vessels, Crews; Navy Fleet Sent to Somalia to Cooperate with US, Says Beijing", South China Morning Post, December 24, 2008.

41 Dai Bingguo, State Councilor of the People’s Republic of China, Address at the Dinner Marking the 30th Anniversary of the Establishment of China-US Diplomatic Relations Hosted By the Brookings Institution, Washington, D.C., December 11, 2008, translation available at www.brookings.edu/events/2008/1211_china.aspx.

42 See, e.g., United Nations Security Council Resolution 1816 (2008), which expresses "grave concern" for the safety of commercial vessels in the waters off the coast of Somalia and for vessels bringing humanitarian aid to Somalia. See also, "Cruise ship repels Somali pirates", BBC News, November 5, 2005, http://news.bbc.co.uk/2/hi/africa/4409662.stm, "Chinese Fishing Boat Hijacked by Somali Pirates", Xinhua, November 14, 2008, http://news.xinhuanet.com/english/2008-11/14/content_10359203.htm; "Pirates capture Saudi oil tanker," BBC News, November 18, 2008, http://news.bbc.co.uk/2/hi/africa/7733482.stm.

43 http://www.cusnc.navy.mil/command/ctf150.html. CTF 150 has been commanded variously by naval officers from the United Kingdom, the Netherlands, Pakistan, Germany and France.

44 "CTF 150: Maintaining a Lawful Maritime Order", U.S. Naval Forces Central Command Public Affairs Press Release, May 31, 2008.

45 "Pakistan to assume anti-terror coalition naval task force command", Deutsche-Presse-Agentur, August 1, 2007. The task force was established in December 2001 in response to the attacks of September 11, 2001 and pursuant to UNSC Resolution 1373, which calls upon states to cooperate in the suppression of international terrorist activities.

46 Andrew Scutro, "Pirates!", Navy Times, November 12, 2007, 8; Katherine Houreld, "Pirates Terrorize Ships Off Somali Coast", Washington Times, December 6, 2007, 13.

47 In his capacity as Commander, Combined Maritime Forces. Photographer’s Mate 2nd Class Carolla Bennett, "Pakistani Admiral Becomes First Regional Commander of Maritime Task Force", Commander, U.S. Naval Forces Central Command Press Release, April 24, 2006. For description of the relevant chain of command, see http://www.cusnc.navy.mil/mission/rhumblines.html.

48 US Department of State Fact Sheet, http://www.state.gov/t/isn/c10390.htm.

49 According to the Statement, PSI is in order to, "involve in some capacity all states that have a stake in nonproliferation and the ability and willingness to stop the flow of such items at sea, in the air, or on land. The PSI also seeks cooperation from any state whose vessels, flags, ports, territorial waters, airspace, or land might be used for proliferation purposes by states and non-state actors of proliferation concern". See Fact Sheet, The White House, Office of the Press Secretary, Washington, D.C., September 4, 2003, http://www.state.gov/t/isn/rls/fs/23764.htm.

50 http://www.state.gov/t/isn/c19310.htm. Data current as of October 10, 2008, and accessed on January 15, 2009.

51 http://www.state.gov/t/isn/c12386.htm.

52 Ye Ru’an and Zhao Qinghai, "The PSI: Chinese Thinking and Concern," The Monitor, University of Georgia Center for International Trade and Security 10, no. 1 (Spring 2004): 22-24, www.uda.edu/cits/TheMonitor.

53 Statement by the Ministry of Foreign Affairs of the People’s Republic of China on the ‘Yin He’ Incident, Dated 4 September 1993, http://www.nti.org/db/china/engdocs/ynhe0993.htm; "China Says Cargo Ship Will Anchor Off Oman", The New York Times, August 15, 1993; "Saudis Board a Chinese Ship in Search for Chemical Arms", New York Times, August 28, 1993. Acting on intelligence reports that apparently turned out to be erroneous, the US government accused the Chinese vessel Yin He (Milky Way), bound for Iran, of carrying thiodiglycol and thionyl chloride, two chemicals agents used in chemical warfare. The Chinese government provided assurances to the United States that the vessel was not carrying such materials, but the US insisted that the vessel submit to inspection. An inspection was arranged in a Saudi port by Saudi officials in the presence of Chinese officials and American observers. No chemicals were located.

54 Li Mingjiang, "China’s Gulf of Aden Expedition and Maritime Cooperation in East Asia", China Brief 9, no. 1, January 12, 2009, 4.

55 "PRC Military Expert on International Maritime Security Cooperation", Zhongguo Xinwen She, July 3, 2007. (In Chinese, OSC translation provided).

56 See, e.g., Li Mingjiang, "China’s Gulf of Aden Expedition and Maritime Cooperation in East Asia", China Brief 9, no. 1, January 12, 2009, 4, in which the author describes Chinese skepticism of PSI and the Global Maritime Partnership as American "grand schemes" as "aggressive" and "coercive" mechanisms tied to the US "pre-emptive strategy" and "unilateralism".

57 The Philippines has the fourth longest coastline of any state at 36,289 kilometers and Indonesia’s is second at 54,716 kilometers. Canada’s, at 202,080 kilometers, is the longest and Russia’s, at 37,653, ranks third. Comparatively, the length of the US coastline is 19,924 kilometers, Somalia 3,360 km. The World Factbook, Central Intelligence Agency, available at www.cia.gov/library/publications/the-world-factbook.

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