U.S.-China drone spat: more than meets the eye

HAIKOU, CHINA – On Dec. 16, the U.S. Defense Department announced that it had issued a formal protest to China “demanding the return of an underwater unmanned vehicle (UUV) seized by a Chinese warship in the South China Sea.” U.S. pundits and officials criticized China’s action, and China’s media and officials responded in kind. After several days of verbal tit-for tat, the Chinese warship returned the UUV. 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 probably illegal — either as a simple theft or perhaps as a violation of the “sovereign immunity” of warships under the United Nations Convention on the Law of the Sea (UNCLOS).

The U.S. military said the Bowditch — and the UUV — were carrying out scientific research in “international waters.” According to U.S. Navy spokesman Capt. Jeff Davis “the drone was seized while collecting unclassified scientific data.” The U.S. Defense Department said that “the incident was inconsistent with international law and standards of professionalism for conduct of navies at sea.”

Some China critics warned of dire political consequences if the U.S. did not respond firmly. The New York Times’ Jane Perlez wrote, “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 (U.S. resolve).”

Sen. 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.”

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.” Michael Auslin writing for CNN used goading hyperbole: “China has thrown down a North Korean-style gauntlet to both the outgoing Obama administration and the incoming Trump team.” President-elect Donald Trump tweeted that China’s move was an “unprecedented act, totally inappropriate. …”

However, the situation is not that simple. First of all, there is no legal entity in the U.N. Convention on the Law of the Sea called “international waters.” The incident occurred in the Philippines-claimed exclusive economic zone (EEZ). This may present political and legal problems for the U.S. Under UNCLOS, “marine scientific research” can only be undertaken in a country’s EEZ with its permission. Under new President Rodrigo Duterte, Philippines foreign policy is becoming more independent of the U.S. and more friendly to China. Philippine congressman and international law expert and activist Harry Roque urged the Philippines to protest the actions of both the U.S. 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 must seek Manila’s permission for activities inside its EEZ. This seems to be undermining the stated U.S. position.

What is China’s side of the story? First of all, China is making decisions from very different perspective. The activities of the Bowditch, a U.S. Navy Pathfinder-class survey ship, have been protested over the last 15 years by China, India and even U.S. ally South Korea for collecting information in their 200-nautical-mile (370-km) EEZs without permission. The U.S. claims that it is undertaking military research or surveys that do not require permission. This is the U.S. interpretation of a key provision of UNCLOS — which it has not ratified. Moreover, if the UUV was being used for “military” research under the guise of “scientific” research, this may be an “abuse of rights,” a violation of UNCLOS.

The U.S. is transitioning to the use of UUVs for intelligence, surveillance and reconnaissance. On April 15, U.S. Secretary of Defense Ash Carter announced that the U.S. is deploying “new undersea drones in multiple sizes and diverse payloads that can, importantly, operate in shallow water where manned submersibles cannot.” UUVs — in general — could be used to track “enemy” submarines and even launch missiles and unmanned aerial vehicles (UAVs). Moreover, China thinks the U.S. may want to use UUVs as a mobile “picket line” to detect and track China’s nuclear submarines stationed at Yulin Naval Base, Hainan.

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 U.S. hyping of the incident as a “theft.” China also argued that the activities of drones are a legal “gray area” in which the law is unclear. This is true. Relevant legal questions are whether the “sovereign immunity” clause extends to drones or any “equipment” launched from state vessels; does it apply to “non-ratifiers;” 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, e.g. the duty not to present a hazard to navigation? After all the drone was not a “warship” as defined by UNCLOS because it was not “manned by a crew” and it is not a “vessel” because it is not used as a means of transportation.”

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 the Chinese crew just wanted to examine it, determine its capabilities and perhaps even “reverse engineer” it.

This analysis is not a justification of China’s action. But it offers possible explanations and background as to 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 U.S. in the South China Sea. Both sides are pushing — and even tearing — the legal envelope as they jockey for advantage.

Drones and attacks thereon will increasingly become tools in coercive diplomacy enabling rivals to send a strong signal without killing one’s human opponents. The U.S. and China should negotiate voluntary guidelines for the use of drones in, over and under waters under foreign jurisdiction.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies in Haikou, China. A longer version of this piece appeared in the IPP Review on Dec. 27.