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US-China Underwater Drone Incident: Legal Grey Areas
The USNS Bowditch
Image Credit: U.S. Navy

US-China Underwater Drone Incident: Legal Grey Areas

 
 

On December 15, a Chinese warship removed from the water a U.S. unmanned underwater vehicle (UUV) in the Philippines’ Exclusive Economic Zone (EEZ).  The autonomously operating drone had been deployed by the U.S. Navy oceanographic surveillance ship, the Bowditch.  After several days of China-U.S. verbal tit-for-tat, the Chinese warship returned the UUV.

The U.S. military said the Bowditch — and the UUV — were carrying out scientific research in “international waters.” U.S. Navy spokesman Capt. Jeff Davis said “the drone was seized while collecting unclassified scientific data.”

According to Navy lawyers James Kraska and Raul Pedrozo, writing in Lawfare, “China’s action violated three norms embedded in international maritime law and reflected in the United Nations Convention on the Law of the Sea [UNCLOS] and other treaties.”  Kraska and Pedrozo argue that the UUV is a “U.S. vessel … operating legitimately at sea”; therefore the vessel “enjoys sovereign immune status” and the seizure is “evidence of China’s penchant for disrupting freedom of navigation on the high seas.”

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The “sovereign immunity” argument was echoed by South China Sea expert Gregory Poling of the Washington D.C.-based Center for Security and International Studies. The U.S. Defense Department was more careful saying simply that the incident was inconsistent with international law and standards of professionalism

Let’s look at these arguments one by one.

Was China’s removal of the device a “theft”?

China’s Defense Ministry said that its navy had taken an “unidentified object” (the UUV) out of the water “in order to prevent the device from causing harm to the safety of navigation and personnel of passing vessels” and that this is a duty of mariners. According to UNCLOS Article 94 (Duties of the flag state), “every state shall take such measures for ships flying its flag as are necessary to ensure safety at sea …” After verifying that the device was an American UUV, China returned it.

China’s perspective is that its removal of the drone from the water was not a theft. Neither was it “evidence of China’s penchant for disrupting freedom of navigation on the high seas.” On the contrary, to China, it was a professional contribution to the safety of navigation.

Did the device have sovereign immunity?

According to UNCLOS Article 32, the device has sovereign immunity if it was a “warship or a government ship operated for non-commercial purposes.” The terms ‘vessel’ and ‘ship’ are frequently used but not defined in UNCLOS. Kraska and Pedrozo argue that a variety of treaties define ‘vessel’ sufficiently broadly to include “autonomous and even expendable marine instruments and devices.” They cite the International Regulations for Preventing Collisions at Sea which defines ‘vessel’ as “every description of water craft … used or capable of being used as a means of transportation [presumably of people] on water.” Even the U.S. Congress definition of ‘vessel’ uses the qualifier “as a means of transportation on water.” This is unchanged since its adoption in 1873 and is reiterated in at least 24 federal maritime laws. However the UUV in question is obviously not used as a means of transportation on water. Moreover it is not a “warship” because according to UNCLOS to be so it has to be “manned by a crew.”

Was the UUV “operating legitimately at sea”?

First of all, there is no legal entity in UNCLOS called “international waters.” This term is an invention of the U.S. Navy and is used to connote waters that have high seas freedoms. But under UNCLOS, the EEZ does have some restrictions on freedom of navigation. The incident occurred in the Philippines-claimed EEZ. Under UNCLOS, “marine scientific research” (MSR) can only be undertaken in a country’s EEZ with its permission. Moreover, foreign vessels exercising their rights in a country’s EEZ must have “due regard” for the rights and duties of the coastal state as well as for the interests of other states exercising their high seas freedoms.

Philippine Congressman and international law expert Harry Roque urged the Philippines to protest the actions of both the United States and China in its EEZ. Philippines Secretary of Defense Delfin Lorenzana said that their presence was “unauthorized” and that “we have to know what they are doing in our area.” He said that both China and the United States must seek Manila’s permission for activities inside its EEZ.

Was the device undertaking ‘scientific’ research, ‘hydrographic’ research, or ‘military research?

This is important because if it was ‘scientific’ research, it would require the consent of the Philippines. Despite the Pentagon spokesperson’s statement that the device was collecting “unclassified scientific data,” the Pentagon and Navy lawyers will likely argue that it was undertaking hydrographic or military research or surveys that do not require the permission of the coastal state.

However, others like Sam Bateman, argue that in terms of both intent and purpose, these survey types cannot be neatly differentiated and have great overlap. They contend that the very reason that the Convention’s consent regime was established for MSR is that information collected thereby may have economic value or may be used to undermine the security of the state. Some of the scientific information and data obtained by military surveys may be of great value for commercial exploitation as well as to achieve military objectives.

Also advances in technology and the need for broader ‘hydrographic’ data have conflated hydrographic surveying with MSR. Indeed, hydrographic data now have much wider application than safety of navigation and some of the uses are relevant to the rights and duties of a coastal state in its EEZ. It is becoming increasingly difficult to argue that hydrographic data collected today will not have some economic or security value in future. Thus similar considerations would now seem to apply to the conduct of hydrographic surveying in the EEZ as apply to the conduct of MSR there. In sum, the distinction between different categories of surveying and MSR hinges on more than intent and the initial purpose of collecting the data. Indeed, it seems that the potential economic and security value and utility of the data to the coastal state should also be considered.

Perhaps this controversy can be put to rest by a plain reading of UNCLOS Article 258.  It provides that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area,”  that is the consent regime. The Philippines may well conclude that this applies to the Bowditch and its UUVs in that the deployment of such equipment in its EEZ requires its consent.

In sum, the activities of drones are a legal “grey area.” Relevant legal questions are whether the “sovereign immunity” clause extends to drones or any and all ‘equipment’ deployed from state vessels; does it apply to “non-ratifiers” of UNCLOS like the United States; did the Bowditch, by deploying the drones in the vicinity of another vessel in the Philippines’ EEZ, violate the duty to exercise “due regard” for the rights of other states, e.g. the duty not to present a potential hazard to navigation; and if the UUV was being used for ‘military’ or ‘hydrographic’ research under the guise of ‘scientific’ research was it an abuse of rights — which is a violation of UNCLOS?

Both China and the United States are increasingly using UUVs for intelligence, surveillance, and reconnaissance (ISR). Thus, drones and attacks thereon will increasingly become tools in coercive diplomacy enabling rivals to send a strong signal without targeting one’s human opponents. The United States and China should negotiate voluntary guidelines for the use of drones in, over, and especially under waters under foreign jurisdiction.

Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China. A considerably longer version of this piece first appeared in the IPP Review.

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