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China Creates Version of US Drone Seizure to Maintain the Status Quo

 
 

When a Chinese DalangIII naval salvage vessel seized a U.S. Navy Unmanned Underwater Vehicle (UUV) from the oceanographic survey ship USNS Bowditch in the South China Sea last week, it was the most serious incident of China interfering with U.S. surveillance and survey ships since Chinese Maritime Militia harassed the USNS Impeccable in 2009. China returned the UUV to the U.S. destroyer USS Mustin on Monday, but the incident prompted broad speculation about Chinese intent, including whether China intended to signal even more expansive claims over the South China Sea. However, China’s subsequent handling of the incident suggests it was not trying to provoke a crisis or alter the status quo.

Former U.S. Navy Law of the Sea experts James Kraska and Pete Pedrozo have provided a thorough explanation of why China’s seizure violated the UN Law of the Sea’s sovereign immunity articles and how its protections also extended to the Bowditch’s UUV. Law professor Julian Ku explained why China had no legal basis for the seizure both because of those sovereign immunity protections and because China has no compelling jurisdiction argument over the area where the incident took place.

But Chinese officials sidestepped both the sovereign immunity and jurisdictional issues the incident posed. The Chinese Ministry of Defense claimed that its ship happened upon the UUV, that it was unidentifiable, and that they picked it up out of concern that it might pose a safety hazard to ships transiting in the area. The official statement continued that it was only after examination that China was able to determine that the UUV belonged to the U.S. Navy and decided to return it.

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The U.S. account tells a different story. The U.S. claims that the Chinese ship had been shadowing the Bowditch and was only 500 yards away while the U.S. ship was in the process of retrieving the UUV, which had been collecting scientific oceanographic data. It also says the Chinese ship was unresponsive when the Bowditch radioed to demand its return. But however implausible the Chinese claim that it ‘found’ the UUV and did not know that it belonged to Bowditch, it allows China to avoid the legal controversies raised by the seizure.

“Waters Facing China”

The UUV was taken approximately 50 nautical miles northwest of Subic Bay in the Philippines, and well outside China’s ambiguously defined and legally nullified nine-dash line, raising concern that China might use the incident to invoke new authorities over previously unclaimed waters. Indeed, some Chinese commentators did assert maritime rights or claims over the area in which the UUV was seized. One analyst told CCTV that China had “jurisdiction” over the waters that gave it responsibility to ensure safety of navigation, blending a limited sovereignty claim with the official explanation.

However, official Chinese statements avoided making such explicit claims over the area where the UUV was taken. A Ministry of Defense spokesman condemned U.S. surveillance practices “in Chinese waters” but this generic statement was separate from his comment about the seizure and return of the UUV, which he said occurred “in the waters of the South China Sea,” without any possessive implication. The Chinese Foreign Ministry also chided U.S. maritime surveillance generally, but did not use the issue to justify seizing the UUV and maintained the safety-of-navigation explanation. Their spokesperson told reporters that “the Chinese side is firmly opposed to the frequent appearance of U.S. military aircraft and vessels in waters facing China for close-in reconnaissance and military surveys. We require the U.S. side to stop such activities.”

Chinese officials have never used the phrase “waters facing China” before. It could be that China is looking for a new, ambiguous, and maximalist term outside UN Law of the Sea restrictions to justify operations virtually anywhere, whether it has made explicit claims to sovereignty or jurisdiction or not. But since the spokesperson only used the term in her generic statement against U.S. surveillance activities, and, like her Ministry of Defense counterpart, used the non-possessive “waters of the South China Sea” when discussing the UUV incident itself, she did not imply any new claim or authority over the area concerned.

Cui Bono?

The abiding mystery of this incident is its cui bono problem – i.e. who benefits? The seized UUV is a commercially-available technology and presumably had limited intelligence value. There was little military value in disrupting Bowditch’s operations because, as an oceanographic vessel, it was not engaged in direct surveillance of the Chinese navy, or anywhere near sensitive Chinese military installations. It also has little value as a “test” for President-elect Trump, as some have speculated, because it only revealed the president-elect’s public statements or Tweets and not his real-world policy responses, which seems too minor to risk an incident that might have escalated into a crisis.

At the same time, since Chinese officials did not use the seizure as an opportunity to definitively expand any jurisdictional claims or operational rights, the incident has not furthered its de facto position either in the South China Sea or vis-à-vis the United States. If the incident was intended to be a provocation or warning (e.g. for Trump’s Taiwan call), it was a weak one, and subsequent official responses seemed to be at pains to make it appear as if there were no controversy at all, and to emphasize that there was good military-to-military communication throughout, with the Chinese Ministry of Defense even calling it “friendly consultation.”

China’s rigidly hierarchical government, Party control, and President Xi Jinping’s consolidation of power support the supposition that incidents like this must have been orchestrated “at the highest levels” as opposed to being, for example, an opportunistic decision by a zealous ship captain. This has certainly fueled speculation that the incident must have had some larger purpose, like testing U.S. resolve or forging a new maritime status quo. But the absence of any apparent benefits for China, and official reactions that seem more like damage control than pressing an advantageous position, raise the question of how high the approval really was.

Even if the UUV seizure was organized at a “pretty high” level, statements from the Defense and Foreign Ministries suggest that once the incident broke, the actual “highest levels” wanted it resolved with a minimum impact on either the U.S. relationship or the status quo in the South China Sea. And while the Chinese version of events appears to be false, it is a falsehood that the United States should welcome, if not officially endorse.

While it may be unsatisfying to the United States that China refuses to acknowledge its version of events or admit violating sovereign immunity, perpetuating a controversy might have led somewhere more dangerous. By maintaining that the UUV was innocently ‘found’ instead of deliberately seized, China did not have to create some new legal interpretation or definition its claims over the South China Sea that it would have to defend going forward. If it had, that new legal or operational precedent would have become an additional, unnecessary flashpoint that might bring the two countries into confrontation. Instead, the United States has its UUV back, there is no additional Chinese maritime claim that the U.S. government might feel necessary to operationally challenge, and peace in the South China Sea, if an uneasy one, is maintained.

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