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Separating Symbolism and Substance in the South China Sea Drone Incident

Dec 22 , 2016

On Monday, China returned an undersea drone to the U.S. Navy near the spot it was seized last Thursday, approximately 50 nautical miles northwest of Subic Bay in the Philippines. The United States Defense and State Departments condemned China’s seizure as “unlawful,” while the Chinese Defense and Foreign Ministries maintained that the vehicle was “unidentified” and picked up because it might pose a safety hazard to navigation—a version of events that has been strongly refuted by the U.S.

Chinese pundits told the New York Times that China was justified in seizing the drone because U.S. surveillance targeted China, and a retired Chinese admiral said that seizing and examining a drone on China’s “doorstep” would be “natural” for Chinese sailors. But China’s official reaction was far more measured and designed to mitigate potential damage to the bilateral relationship: a Chinese Foreign Ministry spokesperson said talks to secure the drone’s return were “unimpeded” and “smooth,” the Defense Ministry called it a “friendly consultation,” and a Defense Ministry spokesman lamented that the U.S. had hyped the incident inappropriately.

While the official Chinese explanation appears to hold little water, it is difficult to parse the meaning of this incident because its substance is at odds with its symbolic stakes, and is further muddled by the ambiguity in China’s official responses. Consider the following:

Not only does the drone itself appear to have too little intelligence value to justify sparking a potential crisis, but the risk of escalation in the seizure itself seems too low to be a compelling warning against future U.S. surveillance or, as some have speculated, a response to incoming President Trump’s call and comments about Taiwan. At the same time, instead of asserting new maritime rights or operational norms, official Chinese responses have downplayed or sidestepped the idea that the incident could be interpreted as a legal transgression. What we are left with is a great deal of ambiguity that may never be resolved.  

China has long shadowed U.S. naval vessels in the South China Sea, and especially the unarmed, civilian-crewed Special Mission Ships that conduct ocean surveillance and oceanographic surveys. This has occasionally led to incidents of harassment, like the well-publicized Impeccable incident in 2009. However, ocean surveillance ships like Impeccable are designed to detect and track submarines, whereas the vessel operating the seized drone, USNS Bowditch, is an oceanographic survey vessel that only collects scientific data about the ocean and sea bed.

Contrary to Chinese reports, the Defense Department stated that the drone, really an Unmanned Underwater Vehicle (UUV), was not only clearly marked as U.S. Navy property, but was being retrieved by the USNS Bowditch while the Chinese vessel was only 500 yards away. The Chinese ship reportedly ignored calls over radio from Bowditch to return the UUV. It is possible China wanted to know the capabilities of Bowditch’s UUVs. China shadowed Bowditch with a crane-equipped PLAN Dalang-III salvage vessel as opposed to a patrol or combat ship, suggesting possible intent to seize its underwater equipment rather than simply observing the U.S. ship. The problem with this interpretation, however, is that the seized UUV is a commercially available product and did not contain classified technology. Quite simply, China didn’t need to do something so provocative to learn about it.

Given the apparently low intelligence value of the UUV, China may have intended the seizure primarily as a provocation or warning. But if so, it is important to understand that it was a provocation with a relatively low risk of escalation. Unlike the 2001 collision between a Chinese fighter jet and a U.S. EP-3 surveillance aircraft that forced the U.S. aircrew to make an emergency landing on Hainan island, there are no personnel involved. Because the UUV was unclassified scientific equipment, there was less urgency or sensitivity to its seizure than if it had been a weapons system or contained highly classified technology.

Perhaps most importantly, the vessels involved are not capable of escalating significant use of force. The Bowditch is a Navy operated vessel, but not a warship. It is unarmed and crewed by civilians, not naval personnel, and is unable to project military or defensive force of any kind. The Chinese vessel that seized the UUV, a Dalang-III, may technically be a warship, but is only lightly armed for self-defense, and designed to conduct salvage work and submarine rescues, not combat operations. There was very little possibility for the seizure itself to spiral out of control since neither vessel could inflict much damage on the other.

While the seized UUV was comparatively innocuous itself, and the vessels involved held a low-risk of escalation, the legal precedent is more significant. Legal scholar Julian Ku explained two specific legal problems with the seizure. First, as a government vessel, the Bowditch and its UUV are entitled to sovereign immunity against seizure or foreign interference under the U.N. Law of the Sea. Second,  China has only the most tenuous claim to jurisdiction or maritime rights in the area. The location is outside China’s ambiguous Nine-Dash Line, which was invalidated as any sort of legal boundary by a Hague court ruling in July of this year. That same court also ruled that the closest feature that China claims (a claim the U.S. does not recognize) and might use as a basis for maritime rights in the area, the Scarborough Shoal, is not entitled to an Exclusive Economic Zone.

What is as provocative as the seizure of U.S. property in defiance of customary interpretations of the U.N. Law of the Sea, is where the incident occurred. Previous major incidents between Chinese and U.S. surveillance assets, such as the 2001 EP-3 incident and the 2009 harassment of the USNS Impeccable by China Maritime Militia vessels, have occurred near the island of Hainan. Hainan is home to several Chinese naval and submarine bases, and China’s sensitivity to U.S. activity nearby can be understood, even if their reactions violated professional norms and rules between navies.

Though Bowditch has been shadowed and harassed before, in 2001 and 2002, the incidents occurred in the Yellow Sea, not the South China Sea, and not since the bulk of China’s submarine modernization efforts. What makes last Thursday’s incident significant is that occurred approximately 50 nautical miles northwest of Subic Bay, nowhere near sensitive Chinese military facilities, and in waters that China has not claimed any jurisdiction over. But rather than make a new legal case, the Chinese Foreign Ministry avoided any new jurisdictional claims or sovereign immunity controversy, simply maintaining its innocuous safety-of-navigation explanation.

Some American analysts believe China has crossed a legal rubicon by violating sovereign immunity in waters it has not previously claimed jurisdictional rights in. But whatever China intended the UUV seizure to accomplish, the evidence suggests that it did not want the incident to precipitate a broader crisis, and the incident should serve as a caution to both the U.S. and China against actions that are open to more severe interpretations than intended, or could be used as justifications for escalated responses.

Steven Stashwick is an independent writer and researcher based in New York City focused on East Asian security and maritime issues, and is a regular contributor to The Diplomat magazine. He spent ten years on active duty as a Naval Officer with tours in the Pentagon and at-sea based in Japan and the Pacific. Still serving in the U.S. Navy Reserve, he writes in his private capacity and does not represent official positions of the U.S. government.

Follow him on Twitter: @StevenStashwick

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