China: Ignoring UNCLOS, ordering a U.S. Navy cruiser to stop

theoptimisticconservative | December 14, 2013

If you were wondering whether it’s bad that the Chinese navy maneuvered aggressively near a U.S. Navy ship last week, ordering the ship to stop and then driving a Chinese ship right in front of it, dangerously close, the answer is yes.  It’s bad – bad from two standpoints: naval professionalism, and China’s posture in the South China Sea.  We’ll look at both here.
Briefly, the backstory is that China’s new aircraft carrier, the former-Soviet carrier refitted by China and named the Liaoning, transited in November from a northern port to the South China Sea for her first operations in southerly waters.  In late November, Liaoning got underway with an escort of two destroyers and two frigates to conduct operations in the South China Sea.
These are Liaoning’s first naval activities outside of the Yellow Sea and East China Sea, which are close to her northern home port of Qingdao.  Liaoning recovered her first jet aircraft in an arrested landing in November 2012, operating in the north, and has conducted carrier flight operations on several occasions since then, although the extent of her capabilities and that of her carrier jets is limited and remains at a crude level of skill.

China overview; Qingdao naval base is Liaoning’s home port. (Google map; author annotation)

But the deployment to the South China Sea represents a potential benchmark in her readiness to take on a role of her own in China’s most contentious maritime space.  From all military planning standpoints – strategic, operational, and tactical – what Liaoning does during this deployment is of exceptional interest to other nations and their navies.  It’s a given that the U.S. Navy will station assets to observe Liaoning’s operations in international waters.
Conventional analysis: naval professionalism
USS Cowpens (CG-63), a Ticonderoga-class Aegis cruiser, was in the area where Liaoning was operating on 5 December.  As other reports have pointed out, the U.S. also uses military aircraft to perform surveillance of Chinese activity in the region.  (Readers may remember the incident early in the Bush 43 administration when a Chinese fighter jet collided with a U.S. Navy EP-3E intelligence aircraft near Hainan Island in the South China Sea.)  But Cowpens has collection capabilities of her own; observation from the maritime surface level provides unique insights, and so does surveillance of air activity around Liaoning using Cowpens’s Aegis radar.
The incident on 5 December suggests the Chinese may not be “down with” the expectation that, at this stage, their new naval toy will be the object of intensive foreign surveillance.  It’s not clear from the particulars of the incident whether the main Chinese concern was with the surveillance of the carrier, or with the larger issue of the Cowpens’s operations in a location China has declared to fall within her maritime claims area.*  The answer may be “both,” but it’s worth pointing out that the concerns can be broken out separately.

China’s excessive maritime claims (UNCLOS-based EEZ claims in blue)

A sophisticated seagoing navy understands that foreign surveillance is inevitable.  No one likes it (although knowing it will happen can generate opportunities for creative “information shaping”), but the conventions of freedom of action in international waters and airspace mean that it’s to be expected.  China’s reaction would be a crude overreaction, whatever the concern behind it.  (We can speculate, for example, beyond Beijing’s insistence on her excessive maritime claims, that China doesn’t want foreign navies watching her carrier operations too closely while they are still in a basic and unimpressive stage.)
There are ways to try and shape international maritime space favorably for your navy’s operations, such as issuing hazard warnings in geographically defined operating areas, through standard instruments like notices to mariners (NTMs).  Warnings about general maritime navigational hazards are issued frequently – e.g., because of drilling rigs, ships towing cables for seismic profiling, etc – and militaries issue their share of such warnings for things like gunnery exercises.
If China wanted to warn foreign ships away from an area in the South China Sea, that would have been one option.  It wouldn’t necessarily cause a U.S. warship to remain clear of the area, but it would create a decision point for U.S. authorities, effectively putting the ball in our court by requiring our navy to ignore a warning.  I don’t find evidence that the Chinese did that.  It’s possible that they did and the warning wasn’t recorded in any place one can find it online (e.g., in China’s civil notices to mariners for the South China Sea, or the U.S. National Geospatial-Intelligence Agency’s clearinghouse website for global navigational warnings).
On the other hand, China doesn’t necessarily want to start a precedent by issuing navigation warnings when she sends her carrier to sea.  It would be odd to do that, for one thing, but it’s not China’s style anyway.  She doesn’t try to enforce her maritime claims by asserting them through internationally recognized instruments, so much as by trying to create conventions in practice, with a series of ad hoc confrontations.  Whatever the other nations claim to hold as principles, if China can get them to observe her restrictions in practice, she has won her point.
Is China going through a phase, from less experience and sophistication to more?  I think that’s how the U.S. Navy would articulate what’s going on, especially considering the careful phrasing of the Pacific Fleet press release on the event.
Post Pax-Americana analysis: China’s assertion of power
But analysis of that kind tends to presuppose that China precipitated the 5 December incident on the understanding that her carrier was in international waters.  Looking for Chinese motivations from that standpoint is a faulty approach.  If we look at the incident from China’s perspective – that it occurred in Chinese waters – then the event suggests China is deliberate and worrisomely aggressive, as opposed to lurching and uncalibrated.
Consider, for example, the aspect of the event that seemed to stump one of the unnamed military officials consulted for the Stars and Stripes story:

It is unclear why the Chinese vessel wanted the Cowpens to stop.
“I don’t know the intent of the guy driving that PLA ship,” one of the officials said. “I just know that he was moving to impede and harass the Cowpens. I mean, from my perspective, having him stop in the middle of the South China Sea is kind of dumb … [The Chinese saying] ‘Go away, get out of here’ [would make more sense]. But ‘stop’ doesn’t really do anything because all that does is just maintain the status quo.”

The official’s reflections are adequate if China’s perspective in the incident was that she didn’t want Cowpens in the area.  But if her perspective was that she wanted to assert rights, and assert them over the area where the event happened, then what China did wasn’t “dumb.”  She took, rather, the action calculated to be the most stick-in-the-eye provocative – or even belligerent.
There’s no checklist by which nations are maneuvered by provocations into armed confrontation, and it would be armchair sea-lawyering to conclude that this incident must be a casus belli.  I’m stating that up front, so it’s clear that I’m not calling it one.  It falls into an exotic gray area, where the U.S. would be justified in having more than mild concern.  It’s our choice how to react to it.  That understood, there are two important points to make about the Chinese order to Cowpens to stop.
One is that Cowpens is a warship, and as such is held under the UN Convention on the Law of the Sea (UNCLOS) to have sovereign immunity at all times on the high seas (i.e., international waters).  That means China can’t properly order Cowpens to stop in international waters.
The second point, however, is that the convention on foreign warships, in a nation’s own territorial waters, is that they can be ordered to leave those territorial waters.  Inside its own territorial waters, a nation exercises the highest degree of discretion over maritime traffic, but there is no convention by which foreign warships can be ordered, in another nation’s waters, to stop.** 
So regardless of whether we assume our national perspective (and the rest of the world’s) that Cowpens was in international waters, or adopt China’s perspective that she was in Chinese waters, it was over the top – beyond the recognized rights of national sovereignty – for China to order Cowpens to stop.  That should worry us, because it means China was prepared to show an extraordinary degree of provocation, beyond what she might have done within the bounds of convention to assert her claimed sovereign rights.  It’s not just the geographic area of the claim that’s at issue; it’s the scope of what China seems to assert as a right.
The Chinese aren’t stupid children.  They know perfectly well what maritime conventions are, even if they aren’t in sympathy with some commonly held expectations, such as the expectation that a nation with a new aircraft carrier will come in for a whole lot of foreign surveillance.  The emerging proposition is that China’s leadership doesn’t see China as bound by even such basic UN conventions as the definition of national rights in territorial waters.

People’s Selfies: Chinese reportedly go gaga over Liaoning’s deck crew “shooters” (Twitter photo from Global Post report)

It’s quite possible that China was pushing the envelope to assert the right she wants to have acknowledged by other nations: the right of a comprehensive veto over other nations’ maritime activities in her claimed areas of the South China Sea.  In fact, it’s more than possible; given China’s history, it’s likely.
A right to this level of veto is beyond anything conferred by UNCLOS, even if the zone China claims inside the “nine- or ten-dashed line” (see map and note one) were to be recognized as being under Chinese sovereignty. The right suggested by China’s action on the 5th would render UNCLOS meaningless as the reference point for settling the maritime disputes in the South China Sea.  And that would strike at the very heart of the global status quo.
Bring a gun to a knife fight
The danger in this situation is frankly not that the U.S. will overreact but that we will under-react.  Reacting at the correct level of concern doesn’t mean bustling around in the South China Sea with a militarily provocative posture.  What it does mean is pursuing a policy with two clear aims: enforcing existing conventions as a reliable status quo – one that smaller, weaker nations are protected by – and firmly countering China’s campaign to establish, through confrontations and usage, a veto over activities in the South China Sea.
China picked this fight, but she was encouraged to do so by the U.S. acceptance of her ADIZ declaration, which we conveyed with our admission that we expect our civilian airliners to respect the ADIZ.  China’s emerging campaign to extend her de facto control of international and foreign-claimed geography is spreading quickly.  Now, and not a day later, is the time to nip it in the bud.
Some observers will no doubt suggest that there should be negotiation with China over all this.  But history offers no positive examples of rewarding bad behavior.  China would of course like to negotiate on her preferred terms, but she should not achieve her aim by making highly provocative moves against U.S. warships.  Basically, rushing to negotiate would make us chumps.
Only one response has a hope of maintaining the peace, bolstering the status quo, and reassuring the other nations, and that is keeping our ships on station, visibly operating, undeterred, wherever U.S. policy and UNCLOS say we have a right to.  Our ships have the right to warn off a foreign vessel that maneuvers around them in a dangerous manner – and to warn that they will use force if necessary to prevent such endangerment.
It need not come to force, if our purpose is clear and credibly conveyed.  China doesn’t want to start a war with America.  She wants to bleed air out of the status quo, with a string of seemingly minor incidents that will alarm and discourage weaker third parties.

Liaoning in 2012 (AP photo)

The longer she is allowed to pursue that course, the harder it will be to reestablish the perception that the status quo is a reliable reality.  Facts will start to change on the ground, unless we show an unmistakable determination to enforce our policies on freedom of the seas and the negotiated settlement of maritime disputes.  In the case of this latest incident, the way to do that is to bring a gun to a knife fight – which is usually the best way to avoid having to use either a knife or the gun.
Is the Obama administration capable of doing this credibly?  Almost certainly not.  But in the days ahead, we will have to keep in mind that such pushback would be both possible and preferable, if we had the right leadership.  There are, in fact, feasible things to do: ways to prevent the collapse of the status quo, without having to turn everything into a shooting war.
Obama has relied for several years now on the cultivated perception that he has continued on the ordinary paths of national security policy.  But he hasn’t, and that’s why things are beginning to go so badly for American interests abroad.  Everything could be handled differently from the way the Obama administration handles it:  handled more conventionally, and more successfully.
From one perspective, that’s a positive reflection for the long run.  In the short run, unfortunately, it means we will keep getting daily object lessons in the axiomatic truth that military power is a tool of national will, not a substitute for it.

* China’s maritime claims in the South China Sea are a somewhat ambiguous set of claims, in that they are not couched in the accepted terms of UNCLOS, but have to be divined by other interested parties through assertions made through Chinese national law.  There is no doubt, however, given the maritime area encompassed by China’s “nine-dashed (or now “ten-dashed”) line,” that the area over which China claims to exert national rights is excessive, and infringes on what would normally be the recognized EEZs and even contiguous zones of her neighbors in the South China Sea.
The bottom line on the area of the 5 December incident is that it was outside the 12-nautical mile limit of the territorial waters nations are entitled to claim under UNCLOS, and which the U.S. in practice respects, although we have not ratified the UNCLOS treaty.  The incident thus took place in international waters, where China had no recognized justification for attempting to interfere with Cowpens.  If a similar incident occurred in international waters close to the coast of the United States – a Chinese destroyer operated near one of our aircraft carriers, performing surveillance – the U.S. Navy or Coast Guard would have responded quite differently.
** When sanctions are being applied to a nation’s shipping, as they were to Iraq’s, and sometimes Serbia’s, in the 1990s, the justifying mechanism for stopping and searching ships is always separate from any one nation’s sovereign territorial rights.  Typically, the sanctions are agreed to by the UN and enforced on the high seas by member states, such as the U.S. and other nations in NATO. 
J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,” Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.