David Rosenberg*
BBC World Service, 21 April 2009

What US military activities are permissible in China’s exclusive economic zone (EEZ) in the South China Sea? How does the UN Convention on the Law of the Sea (UNCLOS) govern territorial claims in these waters? Recent events have again demonstrated how volatile these unresolved questions can be.

On 8 March 2009, the Pentagon reported that five Chinese ships had confronted an unarmed US ocean surveillance ship, the USNS Impeccable, and engaged in “reckless and dangerous maneuvers” about 70 nautical miles or 120 kilometers south of Hainan Island. The Chinese vessels reportedly “shadowed and aggressively maneuvered in dangerously close proximity” to the Impeccable in an apparent attempt to drive it out of the area. The crew of the US ship responded by using fire hoses to spray the Chinese ships. Two Chinese ships then blocked its route and threw debris into the water, forcing it to stop in order to avoid a collision. The Chinese vessels accosting the Impeccable included a Chinese Navy intelligence collection ship, a Bureau of Maritime Fisheries Patrol Vessel, a State Oceanographic Administration patrol vessel, and two small Chinese-flagged trawlers.

The USNS Impeccable is a civilian-manned unit surveillance ship of the Special Missions Program of the Military Sealift Command (MSC). It normally tows a long sonar antenna array and often operates with a submarine. At one point, a Chinese ship tried to snag the Impeccable’s tow-line with a long grappling hook.

According to the Pentagon, China’s harassment began several days earlier when a Chinese fishing patrol boat pointed a high-intensity spotlight at the USNS Victorious, a surveillance ship operating in the Yellow Sea. The following day, a Chinese Y-12 maritime surveillance aircraft buzzed the vessel 12 times at low altitude. The next day, the US military claimed that a Chinese frigate approached the Impeccable without warning and crossed its bow. Two hours later, a Y-12 aircraft buzzed the ship at low attitude. Two days later, on 7 March, a Chinese vessel radioed the Impeccable, telling it to leave or “suffer the consequences.” The scope and duration of Chinese activities suggest a high level of policy coordination.

Diplomatic responses
A US State Department spokesman said the Impeccable was on a routine patrol and was “clearly operating legally in international waters.” The US Navy has admitted that the ship was conducting submarine surveillance, but asserted that it required no permission from the Chinese side.

A Chinese Foreign Ministry spokesman said “the U.S. claims are gravely in contravention of the facts and confuse black and white, and they are totally unacceptable to China.” The Chinese Navy Deputy Chief of Staff said that the Impeccable was on a spy mission, and that it posed a hazard to ships in the area as it was pulling long underwater cables. China claims the ship was violating Chinese law and international law by conducting illegal surveying activities and military surveillance too close to its coastline.

As tension rose, Chinese Foreign Minister Yang Jiechi met with Secretary of State Hillary Clinton who said they “both agreed that we want to make sure that these types of incidents don’t recur.” Yang then met with US President Barack Obama in the Oval Office. Both stressed the need for more frequent and intense communications to avoid military confrontations.

In the meantime, US patrols will continue in the area, even though China has demanded that the US stop surveillance work in disputed areas. The US Navy has assigned the Chung-Hoon, a heavily armed destroyer, to escort the Impeccable as it continues operations in the South China Sea. China, in turn, dispatched its biggest and fastest fishery patrol ship, the No. 311 Fishing Administration Ship, to patrol its EEZ waters in the South China Sea.
China and neighboring countries such as Malaysia, the Philippines and Vietnam have long argued over their territorial claims in the South China Sea, particularly the Spratly (or Nansha) Islands. Recent events have revived several disputes. In the past month, Philippine President Gloria Macapagal Arroyo signed the Baselines Law which defines its EEZ claims on its western seaboard, including parts of the Spratlys. It was quickly disputed by China, Taiwan, and Vietnam. Then, in mid-March, Malaysian Prime Minister Abdullah Badawi landed on the Swallow Reef and Ardasier Reef of the island chain to buttress Malaysia’s claim of sovereignty. Beijing protested against both claims.

Analysis
The Chinese Navy has built a new base for its nuclear submarine fleet on Hainan Island, and the US Navy has acknowledged that it is keen to monitor its activities. This new facility provides the Chinese Navy with access to the sea lanes of the South China Sea that are vital to its international commodity trade and energy and raw material imports.

The Impeccable incident demonstrates that US-China tensions are never far below the surface. Seemingly small disputes can escalate rapidly. The timing of this encounter is somewhat surprising as US Secretary of State Hillary Clinton had just announced the previous week in Beijing that the US would resume mid-level military exchanges with China. They had been halted in 2008 after a major arms sale to Taiwan during the Bush administration.

The Impeccable incident is similar to the collision between a US EP-3 surveillance aircraft and a Chinese fighter jet in Chinese EEZ waters on April 1, 2001. Both occurred near Hainan Island. Both occurred at the start of a new US administration. Both threatened a political crisis. Both were basically due to ambiguities in the international law of the sea concerning the right to conduct military surveillance activities in the EEZ of a coastal state.

The Chinese pilot died after his fighter jet crashed. The US Navy plane was so badly damaged that it made an emergency landing on China’s Hainan Island. The U.S. crew of 24 was detained by the Chinese military for 11 days, until just after Washington expressed its regret. China refused to allow U.S. officials to fix the Navy plane and fly it off the island; eventually it was shipped home in pieces. Yet another, less lethal incident occurred in March 2001, when a Chinese frigate confronted the U.S. Navy survey ship Bowditch in China’s EEZ.

Contested interpretations of the UNCLOS provisions on EEZs
The UNCLOS authorizes coastal states to claim EEZs up to 200 nautical miles beyond their coastlines. They may exercise “sovereign rights and duties over living and non-living resources of the EEZ, and jurisdiction in relation to artificial islands, installations, and structures; marine scientific research; and the protection and preservation of the marine environment.” Other states may use the EEZ, with “due regard” to the rights and duties of the coastal state. But the UNCLOS does not clearly define “due regard” or what constitutes permissible military activity or marine scientific research.

China, which has signed the UNCLOS treaty, maintains that military operations, hydrographic surveying and intelligence collection by foreign ships or planes can be carried out in an EEZ only with permission from the coastal state. Coastal countries of the South China Sea, especially those with extensive coastlines bordering the sea such as China, Indonesia, Malaysia, the Philippines, and Vietnam, have a major stake in protecting their EEZs – fisheries, energy supplies, and natural resources – from outsiders.

Although the US has not signed the UNCLOS, it contends that collecting marine data for its own military purposes is part of the freedom of navigation in international waters, including in the EEZ of another country without that country’s consent. The United States, Japan and other countries with major shipping and naval interests want to maintain freedom of navigation through the straits and sea lanes of the South China Sea for their oil tankers, container ships, and naval vessels. The US sends its warships, including aircraft carriers from its Pacific Fleet, through the South China Sea in support of its military missions in the Arabian Sea and Persian Gulf. It is the vital artery that connects Japan with its Middle East energy suppliers.

All these coastal and international stakeholders share many overlapping interests, for example, in promoting safe navigation through the sea. However, on other issues such as military activity in EEZs, anti-piracy or anti-terrorist enforcement measures, and territorial claims, they have had conflicting views.

Competing security priorities of coastal states and user states
Maritime security concerns in the South China Sea are increasing for several reasons. Foremost among these are the conflicting territorial claims to many of the islands and reefs in the South China Sea. For example, the Spratly Islands are claimed by six countries and occupied by three of them. These territorial claims are especially important as an anchor for asserting an EEZ around the disputed islands and the oil and natural gas resources they are thought to contain.

Coastal countries have many other security concerns, including piracy, the post-9/11 terrorist threat, frequent conflicts involving fishing vessels competing for dwindling fish stocks, as well as trafficking in drugs, refugees, and forced labor.

As a result of all these security concerns, there has also been heightened international scrutiny of sea lanes, ports, and shipping containers. Coastal states are modernizing their naval and coast guard forces and patrols to secure their sea lanes as well as their maritime resources. Consequently, military and intelligence gathering activities by several countries are becoming more intensive, intrusive, controversial and dangerous.

There is general agreement that freedom of navigation in and above EEZs should not interfere with the rights of the coastal state. However, there is still disagreement about when these passages become intrusive eavesdropping missions to scout the defenses of potential rivals. The United States apparently will continue naval surveillance in the South China Sea and China will continue to object to activities in disputed waters. Hence, future incidents seem likely. The danger is that every incident is vulnerable to misinterpretation and has the potential to produce a far wider conflict.

In the short-term, they are unlikely to escalate into a major conflict because there are more pressing priorities for Sino-American cooperation. Hillary Clinton’s first foreign tour as Secretary of State was to Asia, including China. The economies of the two countries are closely intertwined. US corporations rely on China as a huge cheap labor supply and China depends on the US as a major market for its goods. Both Clinton and US Secretary of Finance Timothy Geithner have publicly urged China to continue to buy US Treasury bonds. So far, there are no signs that the Impeccable incident will disrupt negotiations between China and the US to deal with the global financial crisis. It will remain a minor irritant as long as the US, the world’s biggest debtor, finds itself indebted to China, the world’s biggest creditor, and as long as China depends on access to US technology and consumer markets for its continued economic growth.
—
Posted 21 April 2009 at http://www.bbc.co.uk/vietnamese/world/2009/04/090421_rosenberg_southchinasea.shtml
__
*David Rosenberg is Professor of Political Science, Middlebury College, Vermont, USA, Visiting Fellow at the Australian National University’s Research School of Pacific and Asian Studies, and Editor of www.southchinasea.org