Most people are aware of the confrontation last week between USNS IMPECCABLE and several Chinese naval vessels. The incident ended peacefully, but it bodes ill for China’s neighbors and all who want the sea lanes open to free navigation and trade.
To put this in perspective, the actions of the Chinese navy have to be judged in the context of the international laws and regulations which were broken by the Chinese in the manifestation of high seas bravado and outlandish territorial claims.
FREEDOM OF THE SEAS
One of the primary missions of the United States Navy is to maintain freedom of the Sea Lines of Communication (SLOCS) for peaceful purposes. Free trade — which means free navigation — across the SLOCS is necessary for the global economy, and therefore ours, to prosper.
That part of the navy’s mission reaches back to our nation’s founding. The first — and probably greatest — statement of it was outlined by Rear Admiral Alfred Thayer Mahan in his work The Influence of Seapower Upon History, 1660-1783, published in 1890. At the risk of reducing this superb work of maritime theory into a single statement — one we’ve accepted as defining naval policy ever since Theodore Roosevelt was our Secretary of the Navy — Mahan concluded that for any nation such as ours to survive it was critical to maintain seaborne commerce. Any nation to which it is denied could — and likely would – fail.
In order for our Navy to accomplish this task it is not only necessary to routinely exercise our freedom of navigation in contested international sea space such as we did in the Gulf of Sidra during the early 1980’s. It is also essential to maintain a highly sophisticated, updated and complete data base of the worlds oceans and bottom contours which have been shifting and changing with time and as long as man has been plying the high seas.
I can not definitively say what USNS IMPECCABLE’s mission entailed. As a retiree I am no longer privy to that information and rightfully so. Yet no matter what the mission, she was exercising it in international waters and as such protected from harassment and dangerous maritime activity by International Laws and Treaties.
RULES OF THE ROAD
The International Regulation for Preventing Collision at Sea (COLREGS) are enacted by the International Maritime Organization (IMO), an organization to which China officially became a member state in 1973. These rules basically delineate how vessels are to safely navigate, maintain traffic separation and avoid unsafe practices which may hazard one or more vessels.
Specifically Rule 2 (b) states: “In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger”. In addition to this basic of all rules the Chinese vessels could be accused of disobeying Rules defining Burdened Vessels and the requirement to give way, Rules concerning Maneuvering and Warning Signals in meeting, crossing and passing situations, and specific Rules for Risk of Collision, Action to Avoid Risk of Collision, and requirements not to Impede a vessels passage.
The reports we have seen indicate that Chinese vessels intentionally maneuvered into the path of the IMPECCABLE, violated its right of way, and — in at least one moment — came within twenty-five feet of colliding with it.
As a former Nimitz-class carrier skipper, I can tell you that those maneuvers are intentionally hostile acts. Fortunately – unlike the 2001 incident in which a Chinese fighter bumped into a US Navy EP-3 reconnaissance aircraft — this potentially deadly and recklesss maneuver didn’t result in the loss of anyone’s life.
Now I am no lawyer but I can tell you with over three decades at sea that the COLREGS are useful, definitive, life and property saving rules which all reasonable mariners comply with. Have I been stressed in the application of these rules by those ignorant of or purposely ignoring them? You bet! But in situations such as these, when the rules are broken, it is out of sheer willingness to harass and danger another vessel than out of pure ignorance or misunderstanding of the Rules. Surely coming to a full stop in front of a moving vessel, crossing its bow dangerously close or throwing debris into its path is neither condoned or recognized as an accepted practice by the Rules.
China claimed it was acting legally in its dangerous maneuvering — no matter how ludicrous that may sound — due to the fact USNS IMPECCABLE was within their special economic zone. China claims a SEZ, which is not a term recognized in international regulations.
What is recognized in maritime terms is an Economic Exclusion Zone, which extends out to sea from a country’s baseline (low tide shoreline essentially) for 200 miles. Rules of the road fully apply within the EEZ with limitations only on such activities as fishing and natural resource exploration, recovery and mining. In Territorial Seas, defined as 12 miles from the baseline, basic Rules also exist however, only “innocent passage” is allowed which severely limits military operations denies any type research or hydrography without the consent of the owner nation, and only straight line single passage is allowed while enroute to a from any port of entry or destination. USNS IMPECCABLE was operating 75 miles south of Hainan and clearly within the EEZ and complying with International Law.
Finally, the last time the International Rules of the Road appeared to not answer the total requirement between competing interests at sea, during the Cold War, when ships collided, buzzing aircraft crashed into the water and tensions rose to a razors edge, INCSEA agreements were finally enacted. This piece of diplomacy during the Nixon Administration was meant to “Prevent Incidents On and Over the High Seas”.
After decades of close calls which cost lives and equipment the bi-lateral agreement with the USSR supplied a protest mechanism and stopgap to escalation the likes of which may be needed today? INCSEA defined how close an aircraft could flyby and how many times, what would be considered harassment, and what type of interaction was acceptable. Shadowing without harassing or endangering became the accepted practice.
This is how the Soviets — and we — played the game for decades. We’d shadow their ships and they’d do the same to ours. Sometimes someone got a little careless or mistook the other guy’s intentions and two ships collided. But there was no hostile intent, as there clearly was in the EP-3 incident in 2001 and in last week’s incident with the IMPECCABLE.
The big “if” would be whether the current administration could diplomatically convince China to take up such an agreement. This was not the first such incidence of this type with Chinese vessels nor is it likely to be the last. Just recently USNS VICTORIOUS was blinded by high intensity lights and overflown at a very close distance no less than twelve times. INCSEA agreements between multiple nations and Russia remain in effect to this day. It sure beats reckless driving and dodging harassing vessels at sea. And it might save a sailor’s life.
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