The December 5, 2013 near-collision in the South China Sea between USS Cowpens (CG-63) and a People’s Liberation Army Navy (PLAN) warship highlights the risk that naval encounters may pose to regional peace and security in the wake of the U.S. “Pacific Pivot.”
The incident is reminiscent of a famous 1988 “bumping” incident involving another guided-missile cruiser, USS Yorktown (CG-48), and the Soviet frigate Bezzavetnyy in the Black Sea.
To guard against the risk that such encounters might escalate into armed conflict between the two Cold War adversaries, President Reagan negotiated an agreement with the Soviets under which the two nations pledged to operate in accordance with the navigation provisions set out in the 1982 U.N. Convention on the Law of the Sea.
Today’s national leaders would be wise to study the Reagan approach in calculating their response to rising tensions in the western Pacific.
The December 5, 2013 USS Cowpens Incident. In early December 2013, USS Cowpens, a 10,000-ton Ticonderoga-class cruiser, was in South China Sea waters east of Hainan Island and north of the Paracel Islands observing the newly commissioned Chinese aircraft carrier Liaoning.
The Liaoning, a 1,000 ft long carrier originally built in Ukraine for the Soviet Union and later sold to China, was accompanied by a squadron of vessels, including two destroyers and two missile frigates. Surveillance operations by foreign naval ships and aircraft are common, particularly when new classes of vessels first put to sea.
In a now widely-report incident, on December 5th a PLAN amphibious warship operating with the Liaoning intentionally closed on the Cowpens, crossing her bow at a distance of less than 500 yards (perhaps as little as 200 yards).
The PLAN warship then stopped in the path of the U.S. cruiser, in an attempt to force the Cowpens away from the Liaoning. The Cowpens was compelled to take evasive action to avoid a collision.
This was not the first such encounter between U.S. and Chinese naval vessels.
In March 2009, five Chinese ships harassed a U.S. sonar surveillance ship, the USNS Impeccable (T-AGOS-23), in international waters approximately 75 miles southeast of Hainan Island.
In that incident, a Chinese frigate crossed within 100 yards of Impeccable, forcing her to make an emergency maneuver to avoid collision. According to the Pentagon, crewmembers on the Chinese ships waved Chinese flags as they passed by and directed the Impeccable to leave the area.
Many will also recall the 2001 incident involving a mid-air collision between a Chinese fighter and a U.S. Navy EP-3 surveillance aircraft, which resulted in a fatal crash of the fighter and forced the damaged EP-3 to make an emergency landing on China’s Hainan Island.
The December Cowpens incident occurred shortly after China announced that it was establishing an air defense identification zone in the East China Sea—a move that drew immediate protests from the United States. In comments made soon after the Chinese announcement, Secretary of Defense Chuck Hagel stated that “China’s actions raise regional tensions and increases the risk of miscalculation, confrontation, and accidents.” He then added that “restraint is critically important on these issues, especially at this time.”
A December 16th account by China in the Global Times sought to justify the Cowpens encounter, asserting that the U.S. cruiser came within 45 kilometers (roughly 30 miles) of the Liaoning squadron, penetrating what China called the squadron’s "inner defense layer" (the U.S. and other nations sometimes use such “zones” to protect their vessels). At the same time, however, the Chinese account also referred to the location of the encounter as the “Chinese navy's drilling waters in the South China Sea.”
The source did not address the legal status of the waters where the encounter occurred, nor did it reference China’s grandiose U-shaped line claim to virtually all of the waters and land features of the South China Sea—a claim contested by the other states bordering that sea.
Another source referenced a month-long ban on entering the area imposed by the Chinese Maritime Safety Administration to accommodate exercises by the Liaoning carrier group.
Laws Governing Vessel Navigation Rights and Responsibilities. According to official U.S. reports, the USS Cowpens incident occurred in “international waters,” presumably meaning waters not subject to the sovereignty of any nation.
Under the 1982 U.N. Convention on the Law of the Sea (LOS Convention), the navigation articles of which the United States has adhered to since President Reagan issued the U.S. Ocean Policy Statement in 1983 (even though the U.S. is not a formal party to the convention), all states enjoy freedom of navigation on the high seas.
The high seas freedom of navigation also applies, with some modifications, to the waters of a foreign state’s 200 mile exclusive economic zone. Those navigation rights must be exercised with due regard for other states and their use of the seas.
In addition, the LOS Convention requires nations to ensure that their vessels comply with the rules laid down by the 1972 International Convention for the Prevention of Collisions at Sea. To protect life and property at sea and the marine environment, the latter rules, known as the COLREGS, impose an obligation on vessels to avoid even the risk of collision, by taking early and substantial avoiding action.
Unfortunately, naval vessels like the Chinese warship are not the only ones guilty of intentionally endangering life and property at sea.
For tactics that included intentionally ramming Japanese whaling vessels, the Sea Shepherd Conservation Society was adjudged to be engaged in “piracy” in a February 25, 2013 decision by the U.S. Court of Appeals for the Ninth Circuit. Citing the definition of piracy in the 1982 LOS Convention, the court flatly declared that “when you ram ships… you are without a doubt a pirate.” (Institute of Cetacean Research v. Sea Shepherd Conservation Soc., 708 F.3d 1099 (9th Cir. 2013)).
President Reagan’s Approach to Avoiding Navigational Conflicts. How are nations to guard against the risk of escalation which incidents like the Cowpens encounter might trigger?
One example comes from the Reagan years. The 1988 USS Yorktown “bumping” incident occurred when the U.S. Navy warship was underway in the Black Sea as part of a freedom of navigation operation, challenging excessive maritime claims by the Soviets.
To forcefully make the point that, in the Soviet’s view, the U.S. cruiser had no legal right to navigate those waters, the Soviet frigate Bezzavetnyy attempted to “shoulder” the Yorktown out of the contested waters.
The potential for escalation when one heavily armed warship of a nuclear power intentionally bumps another conjures up a scene from Hollywood’s rendering of Tom Clancy’s "The Hunt for Red October," in which the carrier strike group commander, Admiral Josh Painter (played by former Senator Fred Thompson), declares, as U.S. and Soviet tensions mount during the search for the missing Soviet sub, that “This business will get out of control. It will get out of control and we'll be lucky to live through it.”
Reagan’s response to the Black Sea bumping incident culminated in a Joint Statement that the two nations signed at Jackson Hole, Wyoming on September 23, 1989.
The Joint Statement agreement affirmed that the navigation rights and responsibilities of the two nations’ navies would be governed by the 1982 Law of the Sea Convention, even though the convention was not yet in effect. It then went on to clarify the nature of those navigation rights. The Reagan agreement closed with a pledge to settle any disputes over the terms of the agreement through diplomatic channels or other agreed means.
The 1989 Reagan Joint Statement agreement built upon a 1972 “incidents at sea” agreement (INCSEA) between the U.S. and USSR signed by then-Secretary of the Navy John Warner and Soviet Admiral Sergey Gorshkov.
Among other things, INCSEA called upon the two nations to strictly observe both the letter and spirit of the 1972 COLREGS, to avoid risk of collision by remaining well clear of one another, to not interfere in the formations of the other nation, to require surveillance ships to maintain a safe distance from the vessel being observed and, when approaching a vessel of the other nation, to take appropriate measures to avoid hindering the vessel’s maneuvers.
The INCSEA agreement called for an annual meeting between the two nations’ navies to review its implementation. During the Carter years, when the U.S. boycott of the 1980 Olympics poisoned relations with the Soviets, the annual INCSEA talks between the two navies were reportedly the only official government-to-government exchanges permitted to continue.
Do We Need an INCSEA with China? Over the years, several highly placed speakers have called for something similar to the U.S.-Soviet INCSEA with China. For example, as U.S. Naval War College professor of international law Pete Pedrozo has reported, in 2007 U.S. Navy Admiral Timothy Keating argued in favor of such an agreement during his nomination hearing to be the Commander of U.S. Pacific Command. Similar suggestions were made by retired Rear Admiral Eric McVaden following the 2009 USNS Impeccable incident, and by retired Rear Admiral Sam Bateman of the Royal Australian Navy.
Others, however, including Professor Pedrozo, argue against a new agreement. In fact, Pedrozo reports that “policy makers in the U.S. Departments of State and Defense have consistently rejected those calls.”
He points to then-Chief of Naval Operations Admiral Gary Roughead’s statement in response to a media question asking whether the U.S. should negotiate an INCSEA agreement with China, to which Roughead replied that “We [already] have one.” He then added “It is called the rules of the road,” referring to the 1972 COLREGS.
Admiral Roughead could have also pointed to the 1998 Military Maritime Consultative Agreement (MMCA) between the U.S. and China. Among other things, the MMCA established a framework for dialogue to minimize the chances of accidents between U.S. and Chinese forces.
Unfortunately, the dialog has too frequently been suspended by China over disputes such as the 2001 EP-3 and 2009 USNS Impeccable incidents or in retaliation for U.S. arms sales to Taiwan.
In the wake of the Cowpens incident, there will likely be renewed calls to draw upon the relative success of the INCSEA approach and “upgrade” the MMCA with China or to add teeth to the voluntary Code for Unalerted Encounters at Sea (CUES) developed in 2000 by the Western Pacific Naval Symposium, a naval forum in which China and the United States both participate.
Critics of new INCSEA with China point out the illogic of entering into a new international agreement to honor existing international agreements.
In evaluating the respective arguments, we might do well to recall that President Reagan’s contribution with the 1989 Jackson Hole agreement with the Soviets was not merely to secure a promise by the Soviets to abide by existing international law, but rather in securing a joint statement that mutually clarified the law, in order to avoid conflicts that might arise when two well-armed navies operate according to conflicting interpretations of the law; in short, to resolve the underlying bases for a dispute rather than merely nipping at the manifestations of the dispute.
Unfortunately, in the current atmosphere of Sino-American strategic mistrust the prospects for the U.S. and China to clarify existing international law regarding the status of the waters of the South China and East China Seas and—more importantly for the United States—the navigation and overflight rights of foreign vessels and aircraft in those waters, are not promising.
Craig H. Allen is Judson Falknor Professor of Law at the University of Washington. Professor Allen joined the UW School of Law and School of Marine Affairs faculties in 1996, following his retirement from the U.S. Coast Guard.