As the world now knows, on January 24 the US Navy lost one of its most advanced fighter jets in the South China Sea. It is trying to recover it from the ocean bottom.
The US$100 million F-35 crash-landed on the aircraft carrier USS Carl Vinson and careered overboard. The retrieval attempt will be an extremely complex operation that may take months, if it is successful at all.
It involves searching for it with towed pinger locator arrays, marking its position on the sea floor, and then using deep-diving submersibles to attach cables or inflatable devices that will bring it to the surface. If the location of the operation is within the Philippines’ claimed jurisdiction, it will raise legal questions.
This top-of-the line stealth jet fighter would be a treasure trove of intelligence for a potential adversary capable of examining it up close, such as China or Russia.
According to Josh Lospinoso, a cybersecurity expert, “It’s a flying supercomputer capable of conducting electronic warfare and intelligence missions. The entire aircraft is crammed with digital components, and obtaining these highly classified components – even partially functioning ones – could give China a huge advantage in developing cyberattacks against the aircraft.”
Indeed, the US fears that China will try to locate it and examine it using deep-diving submersibles – and may even try to retrieve it itself. At the very least China will likely observe the US recovery operation using its own submersibles and remote sensing equipment.
The US Navy is keeping the location and details of the recovery effort secret. Some say that is because it does not want China or Russia to find it first. But this is nonsense. China almost certainly knows its location, if for no other reason than the concentration of US vessels and aircraft at the site trying to find it and “guard” it.
Indeed, the South China Sea Strategic Situation Probing Initiative at Beijing University has posted the approximate location of the recovery effort. It appears to be within the Philippines’ exclusive economic zone (EEZ) north of Scarborough Shoal.
If it is, this could explain the US Navy’s reluctance to reveal its location. As in its refusal to reveal the location of the October 2021 grounding of the US nuclear attack submarine Connecticut in the South China Sea, this reluctance belies the US calls for transparency by other nations, including China.
Law of the Sea
Under the UN Convention on the Law of the Sea (UNCLOS) – which, unlike China and the Philippines, the US has not ratified but claims to abide by – “marine scientific research” (MSR) can only be undertaken in a country’s EEZ with its permission. Moreover, foreign vessels exercising their rights in a country’s EEZ must have “due regard” for the rights and duties of the coastal state as well as for the interests of other states exercising their high-seas freedoms.
In other words, they must not present a hazard to navigation by others.
This is important because what the US and China may be doing could be considered “marine scientific research.” If so and the site is in the Philippines’ EEZ, it would require the consent of the Philippines.
The Pentagon and US Navy lawyers will likely argue that it is undertaking hydrographic or military surveys that do not require the permission of the coastal state.
However, others argue that the intent and purpose of these survey types cannot be neatly differentiated and have great overlap. They say the very reason that the Convention’s consent regime was established for MSR is that information collected thereby may have economic value or may be used to undermine the security of the state.
Indeed, some of the scientific information and data obtained by military surveys may be of great value for commercial exploitation as well as for military advantage.
Also, advances in technology and the need for broader “hydrographic” data have conflated hydrographic surveying with MSR. Hydrographic data now have much wider applications than safety of navigation, and some of their uses are relevant to the rights and duties of a coastal state in its EEZ.
It is becoming increasingly difficult to argue that hydrographic data collected today will not have some economic or security value in future. Thus similar considerations would now seem to apply to the conduct of hydrographic surveying in the EEZ as apply to the conduct of MSR there.
In sum, the distinctions between different categories of surveying and MSR hinge on more than intent and the initial purpose of collecting the data. Indeed, it seems that the potential economic and security value and utility of the data to the coastal state should also be considered.
Perhaps this controversy can be put to rest by a plain reading of UNCLOS Article 258. It provides that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area” – that is the consent regime.
The Philippines may well conclude that this applies to this situation and that the deployment of such equipment by either the US or China in its EEZ requires its consent.
In December 2016 when China retrieved a US drone in the Philippines’ EEZ, international-law expert Harry Roque – soon to be Philippine presidential spokesman and now senatorial candidate – urged Manila to protest the actions of both the US and China in its EEZ.
Philippine Secretary of Defense Delfin Lorenzana said their presence was “unauthorized” and that “we have to know what they are doing in our area.” He said both must seek Manila’s permission for activities inside its EEZ.
It remains to be seen whether the Philippine government will raise these issues this time around with either the US or China – or both.
But the territorial and jurisdictional disputes in the West Philippine Sea (the Philippines’ name for its claimed waters in the South China Sea) are a major issue in the ongoing presidential campaign to replace the perceived anti-US, pro-China Rodrigo Duterte. This incident may add fuel to the fire of some campaigns.
The US Navy lawyers and China’s spokesmen better get their arguments ready.