LOST on China - the USNS Impeccable incident

LOST on China. WSJ Editorial
A bad treaty leads to a naval scrap.
WSJ, Mar 11, 2009

So once again we are reminded of why Ronald Reagan sank the Law of the Sea Treaty.
Thanks of a sort here go to China, which last week sent several ships to shadow and harass the USNS Impeccable, an unarmed U.S. Navy surveillance ship, as it was operating in international waters about 70 miles south of Hainan Island. The harassment culminated Sunday when the Chinese boats "maneuvered in dangerously close proximity" to the Impeccable, according to the Pentagon, forcing the American crew to turn fire hoses on the Chinese. Undeterred, two of the Chinese ships positioned themselves directly in front of the Impeccable after it had radioed its intention to leave and requested safe passage. A collision was barely averted.

The Chinese have a knack for welcoming incoming U.S. Administrations with these sorts of provocations. In April 2001, a hotdogging Chinese fighter pilot collided with a slow-moving U.S. Navy surveillance aircraft, forcing the American plane to make an emergency landing on Hainan, where its 24-member crew remained for 11 days. They were released only after the U.S. issued a letter saying it was "sorry" for the incident without quite apologizing for it.

Thereafter, the Chinese kept their distance from U.S. surveillance planes, and Beijing's relations with the Bush Administration were generally positive. But the Chinese military remains strategically committed to dominating the South China Sea, and it has recently built a large submarine base on Hainan. China also makes a contentious claim to the oil-rich Spratly and Parcel Islands -- an endless source of friction with the Philippines, Malaysia, Taiwan and Vietnam, which also have their claims. Following Sunday's incident, the Chinese accused the U.S. of violating Chinese and international law.

Which brings us to the U.N.'s Law of the Sea Treaty -- which the Gipper sent to the bottom of the ocean, but the Chinese have signed and which the Obama Administration intends to ratify, with the broad support of the U.S. Navy. The supposed virtue of the treaty is that it codifies the customary laws that have long guaranteed freedom of the seas and creates a legal framework for navigational rights.

The problem is that, as with any document that contains 320 articles and nine annexes, the treaty creates as many ambiguities as it resolves. In this case, the dispute involves the so-called "Exclusive Economic Zones," which give coastal states a patchwork of sovereign and jurisdictional rights over the economic resources of seas to a distance of 200 miles beyond their territorial waters.

Thus, the U.S. contends that the right of its ships to transit through or operate in the EEZs (and of planes to overfly them) is no different than their rights on the high seas, including intelligence gathering, and can point to various articles in the treaty that seem to say as much. But a number of signatories to the treaty, including Brazil, Malaysia, Pakistan and China, take the view that the treaty forbids military and intelligence-gathering work by foreign countries in an EEZ. Matters are further complicated by the claims China made for itself over its EEZ when it ratified the Law of the Sea in the 1990s.

We don't have a view on the legal niceties here, which amounts to a theological dispute in a religion to which we don't subscribe. But the incident with the Impeccable is another reminder that China's ambitions for regional dominance, and for diminishing U.S. influence, remain unchanged despite a new American Administration; and that the Law of the Sea Treaty, far from curbing ambitions or resolving differences, has served only to sharpen both.

Next time the Impeccable sails these waters -- and for the sake of responding to China's provocation it should be soon -- President Obama ought to dispatch a destroyer or two as escorts.