The US-China Underwater Drone Incident: More Than Meets the Eye
Photo Credit: US Navy
By Mark J. Valencia

The US-China Underwater Drone Incident: More Than Meets the Eye

Dec. 27, 2016  |     |  2 comments

On 16 December, 2016, the US Department of Defense (DOD) announced that it had issued a formal protest to China “demanding the return of an unmanned underwater vehicle (UUV) seized by a Chinese warship in the South China Sea.” China-bashers in the US exploded with vitriolic condemnation and China’s media responded in kind. After several days of verbal tit-for tat, China returned the UUV to the USS Mustin near where it had been taken. The US Navy is still trying to determine whether the seizure was a “low-level” action taken unilaterally by the sailors on the spot or a top down sending of a message by senior Chinese leaders.


Why would China do such a thing and what was — and is — going on behind the scenes?


Let’s be clear at the outset. The seizure of the UUV was certainly inappropriate and perhaps illegal — either as a simple theft or possibly as a violation of the “sovereign immunity” of warships. The US military said the Bowditch — and the UUV — were carrying out scientific research in “international waters” and that its activities were legal and China’s action was illegal. Indeed, Peter Cook, a spokesperson for the US DOD, said, “The incident was inconsistent with international law and standards of professionalism for conduct of navies at sea.” According to Greg Poling, a South China Sea “expert” at the Center for Strategic and International Studies in Washington DC, the UUV was a sovereign immune vessel of the US.


But it is not that simple. First of all, there is no legal entity in the UN Convention on the Law of the Sea (UNCLOS) called “international waters”. The incident occurred in the Philippines-claimed Exclusive Economic Zone (EEZ). This may present a political and legal problem for the US explanation of its actions. Under UNCLOS, “marine scientific research” can only be undertaken in a country’s EEZ with its permission. Under new President Rodrigo Duterte, the Philippines foreign policy is shifting toward more independence from the US and being more friendly to China. Philippine Congressman and international law expert Harry Roque urged the Philippines to protest the actions of both the US and China in its EEZ. This suggests that the “scientific research” being undertaken by the Bowditch was without Philippines permission. Indeed, Philippines Secretary of Defense Delfin Lorenzana said his government was not aware that the US was using UUVs in the South China Sea. Roque’s colleague Congressman Gary Alejano said that “protesting the intrusion of both foreign powers would prove that the administration was making good on its push for an ‘independent foreign policy’”. If the Philippines does so, it will undermine the stated US position.


US politicians, analysts and media leapt to conclusions, severely criticized China and warned of dire political consequences if the US did not respond firmly. The New York Times’ Jane Perlez — who is usually more even-handed — wrote that “In the eyes of America’s friends in Asia, the brazen maneuver to launch an operation against an American Navy vessel in international waters in the South China Sea about 50 miles from the Philippines, another close American ally, has raised questions about [US resolve].” Senator John McCain lamented that “There’s no strength on the part of the United States of America. Everybody’s taking advantage of it.” Douglas Paal of the Carnegie Endowment for International Peace said, “Allies and observers will find it hard not to conclude this represents another diminishment of American authority in the region.”


Many like Harry Kazianis of the Center for the National Interest said that “the seizure of the underwater military drone … was likely a carefully orchestrated act and not a simple mistake.” He thinks China was sending a message to President-elect Donald Trump regarding its disapproval of Trumps’ acceptance of a congratulatory phone call from Taiwan’s President Tsai Ing-wen. Patrick Cronin of the Center for a New American Security said, “I see the snatched drone as a calculated act of coercive diplomacy approved at the top.” Even Trump condemned it in a “tweet” as an “unprecedented act, totally inappropriate….”


Supposedly objective analysts like Alexander Vuving of the US DOD’s Asia-Pacific Center for Security Studies echoed this sentiment and urged a sharp US response. He warned that “This is China showing that it is in the process of setting the rules in the South China Sea, imposing its own view in the South China Sea and saying the South China Sea should be its own backyard.” If China can get away with this incident with impunity,” Vuving added, “this will send a chilling message to countries in the region.” He implied that the incident was a violation of “the principle of freedom of navigation in international waters.”

China thinks the US may want to use UUVs as a mobile “picket line” to detect and track China’s nuclear submarines coming in and out of Yunlin on Hainan.

Michael Auslin writing for CNN was even more bellicose. “China has thrown down a North Korean-style gauntlet to both the outgoing Obama Administration and the incoming Trump team.” Former PACOM Commander Dennis Blair suggested that “if similar offenses occur again, Washington should make clear that it will take further action, including more direct support for nations facing Chinese pressure over their own territorial claims, such as enhanced defense cooperation and expedited supply of defensive equipment. Through it all, Washington must maintain a constant presence in contested waters, including freedom of navigation operations near Chinese-claimed territory.”


What is China’s side of the story? First of all, China is making decisions in a very different context that produces a very different perspective. The activities of the Bowditch, a US Navy Pathfinder-class survey ship, have been protested over the last 15 years by China, India and even US ally South Korea for collecting information in their 200nm EEZs without permission. The US claims that it is undertaking military research or surveys which do not require permission. This is the US interpretation of a key provision of a Convention which has been ratified by some 167 countries — but embarrassingly not by itself.


China knows that the US is quickly transitioning to the use of UUVs for intelligence, surveillance and reconnaissance (ISR). On 15 April, US Secretary of Defense Ashton Carter announced that the US was on the verge of deploying “new undersea drones in multiple sizes and diverse payloads that can, importantly, operate in shallow water where manned submersibles cannot.”  He chose to make the announcement on one of the most potent symbols of American power — a US aircraft carrier sailing in the South China Sea. This sent a clear message to China. At the time, it was speculated that the UUVs could be used to track “enemy” submarines and even launch missiles and unmanned aerial vehicles (UAVs). Many of these platforms seem designed and destined to operate in foreign air and sea space without authorization, i.e., in, over and under EEZs, archipelagic waters and even territorial seas. But several countries in the region besides China, like Malaysia and Thailand, do not allow certain military activities in their EEZs without their permission. The proliferation of drone types and roles is creating conflicts with some provisions of UNCLOS.


China’s Defense Ministry explained that the Chinese 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.” Arguably this is a duty of mariners. China criticized US hyping of the incident as a “theft” and linked the drone’s mission to frequent US “close-in reconnaissance and military surveys.” These arguments — while containing some truth — are disingenuous in this instance. China has understandable concerns regarding US ISR probes in China’s EEZ. But this was not such an ISR probe and it wasn’t in China’s EEZ.


China also argued that the activities of drones are a legal “gray area” in which the law is unclear. Relevant legal questions are whether the “sovereign immunity” clause extends to drones launched from state vessels; and did the Bowditch, by deploying the drones in the vicinity of another vessel, violate the duty to exercise “due regard” for the rights of other states, in this case the duty not to present a hazard to navigation?


Another consideration is that the Chinese naval vessel that took the drone was a salvage and submarine support vessel. This could mean that a Chinese nuclear submarine was in the area. If so, China may have been concerned that the UUV was tracking the sub or mapping its routes and hiding places. Or maybe they just wanted to examine it and decipher its capabilities and perhaps even “reverse engineer” it. China thinks the US may want to use UUVs as a mobile “picket line” to detect and track China’s nuclear submarines coming in and out of Yunlin on Hainan.


This rationale is not a justification for China’s action. But it offers a possible explanation of why it did what it did. At the least it gives a glimpse of the “cat and mouse” game going on between China and the US. Both sides are pushing — and even tearing — the legal envelope as they jockey for ISR advantage.


What to do? The default option is to “do nothing”— just let the rules regarding drones evolve — or “grow” like “Topsy.” But doing nothing means that as incidents proliferate, and the text of a governing treaty leaves matters ambiguous or unresolved, the practice of states will become particularly important in determining the interpretation of the treaty’s provisions.

If many coastal states enact unilateral national legislation prohibiting certain military and intelligence-gathering activities by drones in and above their jurisdictional zones, then the prohibition against conducting such missions could become part of customary international law through state practice, despite the opposition of a few countries.


The US and China could try to get ahead of the curve and negotiate voluntary guidelines for the use of drones in waters under foreign jurisdiction. But of course, realists will argue that the US should maintain its technological advantage and therefore not agree to any constraints thereon. Thus, it is likely that more international incidents will have to be endured to stimulate and demonstrate the necessity of doing so.

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