Thursday, September 22, 2011

Hunt for Energy Sources - A Potential for Conflict

Two potential flash points have come into focus in two different parts of the globe – one in the South China Sea and the other in the Eastern Mediterranean with striking similarities.  The two flash points have a common issue linking them and that is the exploitation of natural resources under the sea. In both the cases, a dominant littoral power is seeking to coerce the smaller states in the region in order to prevent these states from carrying out exploration activities.

In the South China Sea, the dominant power China which claims absolute sovereignty over the waters and the islands located on the sea has been warning the lesser power viz. Vietnam to desist from entering into a venture with India’s Oil and Natural Gas Corporation (ONGC) Videsh for oil exploration in two blocks claimed by Vietnam in the South China Sea. 

Turkey is at the heart of a gas exploration row in the Mediterranean. Israel and the Greek-speaking government of Cyprus are exploring for gas in the eastern Mediterranean, and Israel has laid claim to a massive deepwater gas field discovered in 2009. Turkey, increasingly assertive in the region under Erdogan, disputes Israeli and Cypriot offshore territorial claims and says Cyprus should not exploit resources until it resolves a stand-off with its breakaway Turkish-speaking north.

The quarrel over gas escalated in recent weeks, just as relations between Israel and Turkey abruptly broke down over Israel's refusal to apologize for its raid on a Gaza-bound flotilla last year in which nine pro-Palestinian Turkish activists aboard the Mavi Marmara died. 

Turkey said it would carry out its own energy surveys with the breakaway Turkish Cypriot state - under escort by its war ships if necessary - if Cyprus pressed ahead with drilling. 

Texas-based Noble Energy which is carrying out the drilling operations for Cyprus has been conducting offshore drills in the eastern Mediterranean for Israel since 1998. 

The recent saber-rattling came as Texas-based Noble Energy Inc. began exploratory drilling farther south between Cyprus and Israel around September 18, despite Turkish warnings to halt the project, the semi-official Cyprus News Agency reported. Noble was operating under license from the Republic of Cyprus, the island's internationally recognized government in the Greek Cypriot south.

The developments raised the stakes in a dispute over drilling rights around the divided island.
Turkish leaders say the Republic of Cyprus shouldn't drill for oil and gas on the continental shelf that it delineated with Israel in an agreement last year. Any drilling or maritime agreements, Ankara says, should wait until the island—divided since 1974, when Turkey invaded Cyprus in response to a Greek-backed coup—is reunified, so both the Greek and Turkish populations can benefit.

Turkish Energy Minister Taner Yildiz described the Cypriot exploration project as "a political provocation aimed at consolidating the Greek Cypriot administration's status," and so short-circuiting reunification talks for the island, Turkey's state Anadolu news agency reported.

Mr. Yildiz also reiterated a Turkish warning that it would make its own agreement with the de facto government of Northern Cyprus to delineate the continental shelf north of the island, if Noble Energy were to proceed with its drilling plans. Ankara would then authorize the Turkish Petroleum Corp. to send research vessels to begin exploration in the Turkish and Turkish-Cypriot waters, he said.

The Republic of Cyprus is a European Union member state, but isn't recognized by Turkey. By contrast, Turkey is the only country to recognize the administration of the government of the island's ethnic-Turkish North. The two sides are divided by a United Nations-monitored green line.

Ankara's threat of military action came on the heels of similar threats Turkey made in recent weeks to send naval vessels to escort future aid convoys that attempt to break Israel's naval blockade of Gaza. Those combative policies risk confrontation with Cyprus and Israel, as well tensions with the EU and Washington, diplomats said, noting that Cyprus is an EU member and Noble Energy is a U.S. company.

A spokeswoman for the European Union's foreign-affairs service said Monday in Brussels that the EU urged "Turkey to refrain from any kind of threat or sources or friction or action" that could damage relations in the neighborhood or border settlement talks.

Noble Energy is also involved in developing Israel's Leviathan field, which contains an estimated 16 trillion cubic feet, or about 453 billion cubic meters, of natural gas. Noble's partner in that project, Israel's Delek Drilling LP, has applied to the Greek Cypriot government to activate an option to take a 30% share in the Cypriot exploration license, too, said a senior industry executive familiar with the project.

Washington has not only given Noble Energy a go-ahead to start drilling off Cyprus but backed it up with a State Department statement: "The US supports the efforts to enhance energy diversity in Europe, noting the fact a US company was involved was also positive."

Since September 13, 2011 Turkish troop reinforcements have been reported by debkafile's military sources as having landed in North Cyprus along with drilling equipment. These preparations indicated that Turkey was planning to start drilling in the Cypriot EEZ without reference to Nicosia. This meant that Prime Minister Erdogan, while spouting high-sounding pledges to "preserve "freedom of navigation in international waters," was preparing a wildcat breach of international law and treaties. Athens warned Ankara against pursuing this step.

Since September 14, Turkish warplanes and fighters kept watch on the Homer Ferrington rig belonging to Houston-based Noble Energy as it moved from Israel's offshore field Noa opposite Ashdod to Cyprus's Aphrodite (Block 12) field ready to start work.

It was the first time since the Mavi Marmara episode of May 2010 that Turkish warships came less than 80 kilometers from Israel's territorial waters. debkafile's military sources report that Israeli missile ships and drones kept watch from afar on the Noble rig's movement and tracked Turkish surveillance. As the rig moved into position opposite Cyprus, so too did two Turkish frigates. A Cypriot spokesman said Turkish warships and fighters had not entered the island's territorial waters.

Ankara has questioned Israel and Cyprus' rights to drill for hydrocarbon reserves in the respective Exclusive Economic Zones marked out in an accord they concluded last year.

Interestingly, Greece and Israel concluded a mutual defense pact on September 4, 2011. Ten days later, Prime Ministers George Papandreou and Binyamin Netanyahu agreed to activate the pact in the light of Turkish threats against Israel and to exploration activity in the Mediterranean basin. Israel and Greece have therefore begun to coordinate their fleet movements in the eastern Mediterranean and around Cyprus.

The Eastern Mediterranean could become a potential conflict zone involving Turkey, Israel, Greece and Cyprus and possibly even the US if the Turkish Prime Minister in defiance of international law and norms prevents exploration work by resort to use of force. As of now it remains to be seen whether Erdogan in his quest for becoming another Nasser of the Islamic world opts for a military confrontation particularly with Israel or take recourse like other Muslim rulers and vent his ire on Israel.

Thursday, September 8, 2011

INS Airavat Incident – A Legal Analysis

The INS Airavat, a Shardul-class amphibious warfare ship belonging to the Indian Navy paid a friendly visit to Vietnam between July 19 and July 28, 2011. On July 22, INS Airavat sailed from Nha Trang port in south central Vietnam towards Haiphong, where it was to make a friendly visit. About 45 nautical miles off the Vietnamese coast on the South China Sea, the Airavat was "buzzed" on an open radio channel. (Nha Trang was a key U. S. military base during the Vietnam War, and is an important military port).

The caller identified himself as belonging to the Chinese navy and after asking the Indian ship to identify itself, warned, "You are entering Chinese waters. Move out of here". However, officers on the ship confirmed that no Chinese ship or vessel was seen on the horizon or picked up on the radar. The INS Airavat did not respond to the message or identify itself as demanded and continued on its way. This incident did not get much media attention considering the fact that Indian authorities decided not to make an issue out of it. However, the fact remains that China in conformity with its aggressive behaviour has been trying to act contrary to the tenets of the recognized principles of international law. This insignificant incident brings back memories of the incident involving the USNS Impeccable in March 2009 when the US ship was shadowed and harassed by Chinese ships while operating 75 miles south of Hainan Island. (

Basis of China’s action
The underlying basis of China’s action in July 2011 which has not received much attention in the context of the present incident is the fact that China claims much or all of the South China Sea as its territorial waters. It is relevant to note that South China Sea is replete with disputes. The South China Sea contains several islands, atolls, shoals, reefs and sandbars, many of which are naturally under water at high tide, and some of which are permanently submerged. Given below are the rival claims of the countries of the region in respect of the various islands in the South China Sea:
  • The Spratly Islands, disputed between the People's Republic of China, the Republic of China, and Vietnam, with Malaysia, Brunei, and the Philippines claiming part of the archipelago
  • The Paracel Islands, disputed between the People's Republic of China, the Republic of China, and Vietnam
  • The Pratas Islands, disputed between the People's Republic of China and the Republic of China
  • The Macclesfield Bank, disputed between the People's Republic of China, the Philippines, and the Republic of China
  • The Scarborough Shoal, disputed between the People's Republic of China, the Philippines, and the Republic of China
There is a huge amount at stake. Besides fisheries, the sea, particularly around the Spratlys, is believed to be enormously rich in hydrocarbons. The sea is also a vital shipping route, accounting for a big chunk of world trade.
In response to rival territorial claims of the various countries above mentioned, China tabled its own map, with nine-dotted lines outlining its claim. Joined up, the dotted lines give China not just two island chains, but almost the whole sea. There seems to be no basis for this in UNCLOS. But China points to history. It says the map has been in use since the Republic of China published it in 1946, and, until quite recently, nobody raised objection. According to Robert Beckman, director of the Centre for International Law at the National University of Singapore, “The dotted-line map was first produced by the Chinese government in 1947 and has nine dashes drawn in a u-shape around the islands in the South China Sea. Although China has used this map on several occasions, it has never clarified its position on exactly what it is claiming inside the dotted-line. This has led some to conclude that China is claiming all the waters within the dotted-line as its territorial waters or historic waters. Such a position would be contrary to UNCLOS.
While much attention has been given to the dotted-line map attached to China’s Note Verbale, it should be remembered that the Note does not assert sovereignty over the waters in the dotted-line except for the waters “adjacent” to the islands which arguably only refers to a 12 nm territorial sea. The Note contains no language suggesting that China claims that all the waters inside the dotted-line are its territorial waters or historic waters, or that it has any historic rights in the waters inside the dotted-line. This suggests that China’s claim is only to the islands inside the dotted-line, and to the maritime zones that can be generated from such islands, a position consistent with UNCLOS.”  

                                          Maritime claims in South China Sea (Ref: Wikipedia)

The Law
It is necessary here to refer to some of the relevant provisions of the Law of the Sea Convention 1982 –

Article 89 Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.

Article 87 Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Article 95 Immunity of warships on the high seas
Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
For the purposes of this Convention, Article 29 defines "warship" to mean 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.
A warship enjoys sovereign immunity from the interference of authorities of states other than its own flag state. A warship cannot be required to consent to an on board search or inspection, nor may it be required to fly the flag of the host nation. (Arts. 32, 58(2), 95, 236).
A reference may also be made to the relevant provisions of the Convention on the High Seas 1958 –

Article 1The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

Article 2The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:
(1) Freedom of navigation;
(2) Freedom of fishing;
(3) Freedom to lay submarine cables and pipelines;
(4) Freedom to fly over the high seas.
These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.

The provisions of the this article seem to have been derived from Dutch jurist Hugo Grotius’ famous treatise Mare Liberum (The Free Sea or the Freedom of the Sea) Grotius had argued that the sea was free to all, and that nobody had the right to deny others access to it. Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The argument was directed towards the Portuguese Mare clausum policy (meaning closed sea) and their claim of monopoly on the East Indian Trade. The “freedom of the seas” has thus legal as well as political connotations, and it has been one of the cornerstones of maritime law.

 Article 8
1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
2. For the purposes of these articles, the term “warship” means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.

Article 95 of the 1982 Convention and Article 8 of the 1958 Convention expressly provides for complete immunity to warships from jurisdiction of any State except the flag State.
Assuming for the sake of argument, the Indian ship entered Chinese territorial waters, the international maritime law provides that ships are entitled to right of innocent passage through the territorial sea of the coastal state. Hence, PLA-N personnel questioning the right of the Indian ship to be in the South China Sea and asking it to leave the area is contrary to international law.


China is a known bully and in the recent past it has been coercing foreign vessels in the South China Sea. The harassment of INS Airavat was one of various such incidents. China needs to understand that international waters and waterways are terra nullius and not capable of appropriation. International community and the littoral states of the Asia-Pacific region must co-operate in order to counter aggressive Chinese behaviour.