No Room For Error

According to United States defence officials, “on 5 December, while lawfully operating in international waters in the South China Sea, USS Cowpens and a PLA Navy vessel had an encounter that required manoeuvring to avoid a collision.”

The incident occurred while the Cowpens was conducting surveillance on sea trials of China’s new – and one and only – aircraft carrier, the Liaoning. This incident has been called the “worst” since the 2009 Impeccable incident, in which several Chinese surveillance vessels “harassed” the U.S. sub hunter in China’s exclusive economic zone. But such encounters between the U.S. and Chinese navies are becoming rather frequent.

According to the limited public information available, the Chinese captain of the ship involved and possibly the commander of the fleet accompanying the Liaoning had apparently violated the International Maritime Organisation’s 1972 Convention on the International Regulations for Preventing Collisions at Sea – ratified by both China and the U.S.. The Chinese commanders may also have tried to constrain the Cowpens’ “freedom of navigation.”

But there are extenuating circumstances that neither the U.S. nor China has revealed. Perhaps these extenuating circumstances are the reason both sides have agreed that “no one violated international law.”

Apparently China had set up an “inner defence layer” or “no sail” zone around the exercises, and its “maritime authorities” had posted a “navigation notice” to this effect on their website. It now seems that the run-in began after a Chinese navy vessel sent a hailing warning and ordered the Cowpens to stop or leave the area, which of these is not clear. The Cowpens refused the order because it was operating in international waters.

Then a Chinese tank landing ship sailed in front of the Cowpens and stopped, forcing the Cowpens to abruptly change course to avoid a collision.

An anonymous Chinese source claimed that the Cowpens took provocative actions towards the Liaoning formation. This may or may not be so.

However, the possibility raises several questions: What exactly was the Cowpens doing? What does surveillance mean in this case? Did the Cowpens interfere with the Chinese fleet’s manoeuvres or even with its communications? Did this encounter occur in China’s claimed 200-nautical-mile exclusive economic zone? Did the Cowpens place instruments or devices in the water?

If the latter happened, China may have perceived the Cowpens’ actions as “marine scientific research” in its waters without its consent.

It would be useful to have the answers to these questions before passing judgment on degree of fault and provocative conduct.

China would not be the first nation to declare a temporary military exclusion zone on the high seas. The U.S. has established more than 50 “defensive sea areas” from time to time.

After the Challenger space shuttle disaster in January 1986, the U.S. established a three-mile security zone around a point 15 miles east of the launch pad, from which all vessels were banned, and a less restricted zone 18 miles wide, extending 72 miles out to sea.

And in July 1986, a U.S. navy jet hit a Sun Oil Company tanker with a Sidewinder missile in so-called restricted waters, which included heavily used international shipping lanes about 60 miles from the U.S. East Coast.

In January 1984, the U.S. distributed a notice to airmen in the Persian Gulf and neighbouring areas that said aircraft flying at less than 2,000 feet and not cleared for approach to or departure from a regional airport to avoid “approaching closer than 5 [nautical miles] to U.S. naval forces operating in the area.” It stated that failure to identify themselves might place them “at risk.”

When Iran protested that these actions were not consonant with international law, the U.S. rejected the protest, claiming that the “procedures adopted by the U.S. are well established and fully recognised in international practice on and over international waters and straits.”

As for its defence of the principle of freedom of navigation, when the U.S. mined Nicaraguan ports in the early 1980s, all members of the United Nations Security Council except the U.S. and Britain voted in favour of a resolution that condemned “this hampering of free navigation and commerce, thereby violating international law.”

The point is that the U.S., its spokesmen and knee-jerk supporters are attacking China for its behaviour when the full story is not yet publicly known and when the U.S. has acted similarly.

The disingenuous criticism by the U.S. and the inability or unwillingness of China to explain its actions in Western terms are quite frightening.

Urgently needed are voluntary guidelines as to mutually acceptable military conduct at sea and in the air. U.S. General Martin Dempsey, chairman of the Joint Chiefs of Staff, says military officers of both countries “have been meeting to draft rules for situations when the two militaries encounter each other at sea, in the air or cyberspace.”

Let’s all hope that these negotiations are successful – and soon.

Mark Valencia is an adjunct research associate at the National Institute for South China Sea Studies