Ill-informed be the reader who relies on Taiwan's China Post for knowledge of this subject. From an editorial on March 24th:
The 1982 U.N. Convention on the Law of the Sea [UNCLOS – The Foreigner], to which the U.S. is not a signatory . . .
Wrong. President Bill Clinton signed the treaty all the way back in 1994. What IS true is that the American senate has never RATIFIED the agreement.
A distinction without a difference? Hardly, as we shall next see:
But the U.S. does not subscribe to [UNCLOS] rules on [Exclusive Economic Zones].
Wrong again. Ever since the Reagan administration, the American government has committed itself to abiding by the terms of the treaty — EXCEPT for the provisions governing deep sea mining. So the U.S. DOES subscribe to UNCLOS rules on EEZs (for the most part), despite the fact that America hasn't ratified the agreement.
(And, just to make this clear, those deep sea mining provisions are utterly irrelevant to the current disagreements America & China are having over China's EEZ in the South China Sea.)
[An American research ship's visit to China's EEZ] could be even more provocative than the USNS Impeccable's mission that led to the recent standoff.
Beijing's stance on its EEZ over the Impeccable incident should give the Columbia University scientists pause for thought. Right or wrong, it has accused the U.S. of violating international and Chinese laws by conducting surveillance in its exclusive zone.
Much of this is not merely wrong; it's wrong BY DEFINITION. The Post makes the incredible claim here that the Impeccable's surveillance mission was an American provocation, REGARDLESS of whether China's legal arguments are right or wrong.
That's tantamount to saying that ANYTHING is a provocation, just as long as Beijing says it is. International law don't mean squat, in other words.
We can dismiss out of hand the Post's bizarre implicit claim that China's whims make it the ultimate authority on international law. But we should be willing to admit that if the UNCLOS prohibits intelligence-gathering in EEZs, then international law is on China's side. And, and if this is the case, then the presence of the Impeccable in China's Exclusive Economic Zone WAS an American provocation.
Conversely, if the UNCLOS doesn't prohibit such intelligence gathering, then international law is on America's side. Which makes the Impeccable incident, in actuality, a CHINESE provocation.
Let's go to the treaty to decide for ourselves, shall we?
Part V of UNCLOS describes the rights and jurisdiction of coastal states over their EEZs. The reader will find that there is nothing — NOTHING — in this part of the treaty forbidding naval surveillance in Exclusive Economic Zones. Oh sure, you might find that Article 60.5 permits coastal states to establish 500 meter "no-go" zones around oil rig platforms and the like. Which of course is interesting and commonsensical, but has no bearing on the Impeccable case.
If one looks a bit back in the treaty, one DOES find that Part II, Article 19.2 (c) prohibits acts "aimed at collecting information to the prejudice of the defence or security of the coastal State". But Part II of the treaty deals only with TERRITORIAL SEAS, which international law defines as extending 12 nautical miles from land (UNCLOS, Part II, Article 3).
Since the Impeccable was operating 65 nautical miles (120 kilometers) from Hainan Island (and not 12 nmi), it was within China's EEZ, not China's Territorial Seas. Therefore, the relevant part of UNCLOS is Part V, not Part II.
Ergo, the Impeccable was well within its rights under international law to conduct intelligence operations. By interfering with those operations, it was China that was the provocateur, as I have demonstrated.
Let's go back to the Post's editorial, which in spite of getting all this wrong, does manage to get at least ONE thing right:
A U.S. survey vessel is risking another confrontation in the waters around China when it arrives in the region this week . . .
The operators of the [civilian] research ship, the Marcus G. Langseth . . . have permission to conduct a seismic survey of the ocean floor from the governments of Taiwan, the Philippines and Japan. Beijing was not informed.
This IS true, because Part II, Article 56.1 (b) (ii) of the UNCLOS clearly states:
In the exclusive economic zone, the coastal State has . . . jurisdiction as provided for in the relevant provisions of this Convention with regard to . . . marine scientific research. [emphasis added]
Thus, while international law was on America's side in the case of the Impeccable conducting intelligence work in China's EEZ, it's on CHINA'S side if the Langseth performs marine research in those very same waters without Chinese permission.
May seem strange that coastal states can legally prevent innocent research but not OPEN SPYING within their EEZs, but there you go. It wasn't me who drew up the document.
UPDATE: Interestingly enough, the Marcus G. Langseth's mission is being conducted mostly for Taiwan's benefit. From the Langseth's pre-survey statement:
This project will provide a great deal of information about the nature of the earthquakes around Taiwan and will lead to a better assessment of earthquake hazard in the area. The information obtained from this study will help the people and government of Taiwan to better assess the potential for future seismic events and may thus mitigate some of the loss of life and economic disruptions that will inevitably occur.
UPDATE #2: During her Jan 13/09 confirmation hearing, Hillary Clinton revealed that the Obama administration will press for U.S. ratification of the UNCLOS. (You'll have to scroll down almost halfway through the transcript, to her question session with Senator Murkowski)
CLINTON: Yes, [ratification will be a priority for the administration], and it will be because it is long overdue, Senator. The Law of the Sea Treaty is supported by the Joint Chiefs of Staff, environmental, energy, and business interests. I have spoken with some of our — our naval leaders, and they consider themselves to be somewhat disadvantaged by our not having become a party to the Law of the Sea.
Our industrial interests, particularly with seabed mining, just shut up. I mean, there's nothing that they can do because there's no protocol that they can feel comfortable that gives them the opportunity to pursue commercial interests. [emphasis added]
Seems pretty damn arrogant for the Secretary of State to dismiss America's mining companies so rudely. Reminded me of an old song, from back in the day:
Joe Dolce's Shaddup You Face
I notice Samuel L. Jackson has his own unique take on some of the lyrics. Heh.
[Mar 30/09: A commenter informs me that Mrs. Clinton wasn't telling the mining companies to shut UP; she was really trying to say that the mining companies had shut DOWN their deep sea operations. You gotta admit though, the words, "shut up," really leap off the transcript.]
UPDATE #3: Enough fun stuff. Here's an article by Robert D. Kaplan that ought to be required reading. Somewhat sensationally titled, "How We Would Fight China," the fighting Kaplan refers to is more like the Cold War kind. Written in 2005, some of it's obviously out of date — concerns over the possibility that Taiwan might unilaterally declare de jure independence have surely given way to concerns over Taiwan's Finlandization by its neighbor to the west.
The piece is quite prescient with regards to China's games of naval brinksmanship, however:
What we can probably expect from China in the near future is specific demonstrations of strength—like its successful forcing down of a U.S. Navy EP-3E surveillance plane in the spring of 2001. Such tactics may represent the trend of twenty-first-century warfare better than anything now happening in Iraq—and China will have no shortage of opportunities in this arena. During one of our biennial Rim of the Pacific naval exercises the Chinese could sneak a sub under a carrier battle group and then surface it. They could deploy a moving target at sea and then hit it with a submarine- or land-based missile, demonstrating their ability to threaten not only carriers but also destroyers, frigates, and cruisers. (Think about the political effects of the terrorist attack on the USS Cole, a guided-missile destroyer, off the coast of Yemen in 2000—and then think about a future in which hitting such ships will be easier.) They could also bump up against one of our ships during one of our ongoing Freedom of Navigation exercises off the Asian coast. The bumping of a ship may seem inconsequential, but keep in mind that in a global media age such an act can have important strategic consequences. Because the world media tend to side with a spoiler rather than with a reigning superpower, the Chinese would have a built-in political advantage.
UPDATE #4: Move over China Post, the Beeb gets it wrong, too.
Once more people: the Impeccable was operating in China's Exclusive Economic Zone, NOT its Territorial Sea. Like the China Post, the BBC gets the two hopelessly confused.
UPDATE #5: The pre-survey statement of the Marcus G. Langseth is quite explicit about what route the ship will be taking:
The survey would take place from March through July 2009 in the Exclusive Economic Zones (EEZ) of Taiwan, China, Philippines, and Japan, in water depths ranging from <100 to >1000 m. [emphasis added]
It seems highly unlikely that Columbia University would have accidentally overlooked the importance of asking the Chinese for permission to conduct the survey.
So it's speculation time. Perhaps the reason the Chinese were not approached was that the U.S. Government wished to send them a message: If you're not going to abide by the terms of the treaty, then why should WE?
