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United States Confronts China over Seizure of Unmanned Drone in the South China Sea

Published online by Cambridge University Press:  07 September 2017

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Extract

On December 15, 2016, China seized an American unmanned underwater vehicle (UUV) in the South China Sea. The drone had been launched by an American naval vessel, the USNS Bowditch. According to press reports, “[t]he American crew was in the process of retrieving the device when a small boat dispatched from the Chinese vessel took it as the American sailors looked on.” China has made extensive—and contested—maritime and territorial claims in the South China Sea, including within an area delimited by the “nine-dash line.” The incident occurred outside of this area, and none of the Chinese government's statements related to the seizure suggest any assertion of Chinese jurisdiction over the waters where the drone was seized. After an exchange of diplomatic statements, China returned the drone to the U.S. Navy.

Type
International Oceans, Environment, Health, and Aviation Law
Information
American Journal of International Law , Volume 111 , Issue 2 , April 2017 , pp. 513 - 517
Copyright
Copyright © 2017 by The American Society of International Law 

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References

1 Jane Perlez & Matthew Rosenberg, China Agrees to Return Seized Drone, Ending Standoff, Pentagon Says, N.Y. Times (Dec. 17, 2016), at https:// www.nytimes.com/2016/12/17/world/asia/china-us-drone.html.

2 Id.

3 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States Relating to International Law, 108 AJIL 331, 331–34 (2014)Google Scholar.

4 Perlez & Rosenberg, supra note 1.

5 One commentator pointed out that China might claim that the Bowditch and the UUV were operating inside China's Exclusive Economic Zone (EEZ) because they were operating within two hundred nautical miles of the Scarborough Shoal. He explained that this “would be a very weak claim” given a recent tribunal decision rejecting the view that an EEZ could be calculated from the Scarborough Shoal because “the Scarborough Shoal is a rock that entitles its sovereign to only a 12 nautical mile territorial sea.” Julian Ku, The Nonexistent Legal Basis for China's Seizure of the U.S. Navy's Drone in the South China Sea, Lawfare (Dec. 16, 2016), at https:// www.lawfareblog.com/nonexistent-legal-basis-chinas-seizure-us-navys-drone-south-china-sea; see also Daugirdas, Kristina & Mortenson, Julian Davis, “Contemporary Practice of the United States Relating to International Law”, 110 AJIL 795 (2016)Google Scholar.

6 United Nations Convention on the Law of the Sea Art. 57, Dec. 10, 1982, 1833 UNTS 397 [hereinafter UNCLOS] (“The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”).

7 UNCLOS Arts. 58, 87, 245–57.

8 Perlez & Rosenberg, supra note 1.

9 Asked if the drone had been spying in Chinese waters, Foreign Ministry Spokesperson Hua Chungying noted:

US military aircraft and vessels have been conducting close-in reconnaissance and military surveys in waters facing China, posing threat to China's sovereignty and security. The Chinese side is firmly opposed to that. As for what the drone was doing at that moment, you'd better raise this question with the US military.

Ministry of Foreign Affairs of the People's Republic of China, at http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1425479.shtml.

10 UNCLOS Art. 32; Ku, supra note 5.

11 U.S. Dep't of Defense Press Release, Statement by Pentagon Press Secretary Peter Cook on Incident in the South China Sea (Dec. 16, 2016), at https://www.defense.gov/News/News-Releases/News-Release-View/Article/1032611/statement-by-pentagon-press-secretary-peter-cook-on-incident-in-south-china-sea.

12 Donald J. Trump ), Twitter (Dec. 17, 2016, 5:57 AM), at https://twitter.com/realDonaldTrump/status/810121703288410112.

13 Donald J. Trump ), Twitter (Dec. 17, 2016, 4:59 PM), at https://twitter.com/realDonaldTrump/status/810288321880555520.

14 Ministry of Nat'l Defense of the People's Republic of China Press Release, China to Hand over Underwater Drone to U.S. in Appropriate Manner (Dec. 18, 2016), at http://eng.mod.gov.cn/TopNews/2016-12/18/content_4767099.htm.

15 U.S. Dep't of State Press Release, Daily Press Briefing (Dec. 19, 2016), at https://2009-2017.state.gov/r/pa/prs/dpb/2016/12/265787.htm.

16 Ministry of Foreign Affairs of the People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference on December 19, 2016 (Dec. 19, 2016), at http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1425479.shtml.

17 Id.

18 Chris Buckley, Chinese Navy Returns Seized Underwater Drone to U.S., N.Y. Times (Dec. 20, 2016), at https:// www.nytimes.com/2016/12/20/world/asia/china-returns-us-drone.html.

19 U.S. Dep't of Defense Press Release, Statement by Pentagon Press Secretary Peter Cook on Return of U.S. Navy UUV (Dec. 19, 2016), at https://www.defense.gov/News/News-Releases/News-Release-View/Article/1034224/statement-by-pentagon-press-secretary-peter-cook-on-return-of-us-navy-uuv.

20 U.S. Dep't of State Press Release, Daily Press Briefing (Dec. 20, 2016), at https://2009-2017.state.gov/r/pa/prs/dpb/2016/12/265846.htm.