A Word About the USNS Immeccable Incident
Just when it appeared military relations between the United States and China were beginning to enter a more conciliatory phase, you have incidents like the USNS Impeccable flare-up two weeks ago to remind us how easily tensions can arise.
It was only last month in Beijing that the United States and China conducted high level military talks that were praised by the Pentagon as the “most productive in the 18 years of military negotiations with Beijing.” Known as the “Defense Policy Coordination Talks”, the two-day meeting seemed to presage improved military-to-military relations between American and Chinese officials, an area which has historically been fraught with intermittent conflict and tension.
The latest confrontation started when Chinese vessels surrounded and harassed the USNS Impeccable about 75 miles off Hainan island, south of the Chinese mainland, during a routine surveillance mission. The Chinese boats were maritime fishing vessels with Chinese flags, but were not affiliated with the Chinese military. At least one vessel came within 25 feet of the American vessel, and at one point Chinese sailors used long hooks to try to snag cables (see picture above) the Navy boat was using to tow sonar equipment designed for antisubmarine warfare. In response, the Impeccable, which is an unarmed civilian vessel, sprayed water out of fire hoses at one of the vessels as a warning, but its crew members stripped to their underwear as their ship “continued closing to within 25 feet,” the Pentagon said. Two of the Chinese vessels stopped directly in the path of the U.S. ship, forcing it to conduct an emergency stop. (For video of the incident, click here).
The U.S. immediately lodged a formal complaint with Beijing, saying that under international law, the U.S. military can conduct activities “in waters beyond the territorial sea of another state without prior notification or consent,” including in an exclusive economic zone of another country, said Maj. Stewart Upton, a Pentagon spokesman. The Impeccable and another ocean surveillance ship have been targeted five times in the past week, the Pentagon said, for “increasingly aggressive conduct” by Chinese ships and aircraft. White House press secretary Robert Gibbs reiterated the U.S. Navy will “continue to operate in those international waters, and we expect the Chinese to observe international law around there.”
The Chinese foreign ministry issued a sharp response, saying U.S. claims were “gravely in contravention of the facts and confuse black and white, and they are totally unacceptable to China and violated international maritime laws and customs around China’s Special Economic Zone.”
At issue is what exactly constitutes “international waters” and whether China’s aggressive behavior was appropriate. In both cases I would argue the answer to those questions is a resounding “no”.
Under the United Nations Charter Article 51, it states, “any dispute over activities in the 200-mile economic zone from China’s coast in no way authorizes the use of force.” If the country in authority of the economic zone feels its rights have been infringed upon, it states, “a formal complaint is to be lodged through relevant international administrative bodies and the United Nations.” Furthermore, it explicitly states that “all countries enjoy high-seas freedoms in such zones, including the right to engage in military activities without prior notification to, or consent of, the coastal state.”
Of course we have seen this kind of harassing behavior before from China, most notably in 2001 when Chinese fighter planes surrounded and antagonized a US surveillance plane, called the EP-3, clipping its wing and forcing it to make an emergency landing on Hainan Island where the plane and crew were held for eleven days. The accident resurrected arguments concerning state interpretation of article 58 of the United Nations Convention on the Law of the Sea (1982), and more specifically, whether the distinct legal regime created by the establishment of an EEZ has imposed limitations on ‘pre-existing rights’ on the high seas. The U.S. and many other countries have been using the EEZ area in the South China Sea to conduct both military and commercial missions, and China has never formally lodged a complaint. The U.S. maintained, as in the latest Impeccable incident, that the location of the incident occurred in international waters, and that the U.S. had the right of free transit passage. During the EP-3 incident, the Chinese again regarded U.S. activity as “unlawful” and claimed the area as part of their airspace over their exclusive economic zone based on the UNCLS, which is considered the codification of Customary International Law.
Hainan Island is an area of strategic concern for the U.S.. China has invested heavily in a new fleet of diesel-powered attack submarines and maintains a submarine base there. Beijing’s obfuscation about the reasons behind its recent spike in military spending and submarine purchases have added to U.S. suspicions of potential Chinese military aggrandizement in the region.
However, whether or not China feels the U.S. was conducting “spying activity” is tangential. In both cases, Beijing has acted in an aggressive manner, almost as a “show of strength” to admonish Washington to curtail its activities, which strikes me as more befitting to the erratic, provocative behavior we’ve come to expect from Pyongyang than a great power. If China genuinely feels threatened, there are proper channels to go through that could mitigate and address Chinese grievances. It is actions like these that in my opinion make China look like a weak, not strong power. But China has shown it prefers the more provocative approach, which seems to leave the door open for more flare-ups in the future.