CHARGE PROTESTS PRC INTERFERENCE WITH U.S. NAVAL

C O N F I D E N T I A L BEIJING 004898

SIPDIS

SIPDIS

E.O. 12958: DECL: 07/26/2017
TAGS: PREL PHSA PBTS MOPS KTIA CH
SUBJECT: CHARGE PROTESTS PRC INTERFERENCE WITH U.S. NAVAL
ACTIVITY IN CHINA'S EEZ

REF: A. STATE 100698

B. BEIJING 427

Classified By: Charge Daniel Piccuta. Reasons 1.4 (b/d).


1. (C) Summary: The USNS LOYAL is a sovereign immune vessel
engaged in lawful military activities in international waters
and should enjoy complete freedom from interference by
Chinese forces, Charge told MFA Department of Treaty and Law
Director General Duan Jielong on July 25. Drawing from Ref A
demarche points, Charge protested Chinese National Maritime
Bureau vessel's instructions to the USNS LOYAL to cease
activities and leave China's EEZ or "bear the consequences"
in a June 29 incident. He asserted U.S. rights to engage in
military activities in waters beyond China's territoria
waters without prior notification to, or consent of, China,
and stressed the need for open communication and close
cooperationnot only to clear up misunderstandings but also
to prevent future misunderstandings. DG Duan challenged
Charge's claim that military vessels enjoy complete freedom
in China's EEZ, and deferred comment on the "bear the
consequences" language, claiming the need to verify that this
was the language used. End Summary.


2. (C) The Charge met with MFA Department of Treaty and Law
Director General Duan Jielong July 25 to protest a June 29
incident involving the USNS LOYAL, which was conducting
military survey operations in international waters
approximately 90 nm from the PRC coast in China's claimed
EEZ. The LOYAL was overflown by PRC naval aircraft, shadowed
by a PLA(N) Houxin class ship and a National Marine Bureau
vessel and directed to cease activities and leave China's EEZ
or "bear the consequences." The Charge made Ref A talking
points, stressing that coastal states do not have the right
under international law to regulate military activities,
including military surveys, in an EEZ. The PRC ships' and
aircraft behavior towards the USNS LOYAL was inconsistent
with China's obligation under international law to respect
the sovereign immune status of U.S. naval auxiliaries, as
well as China's obligation to exercise its rights in the EEZ
with due regard for the rights of other states, he said.
Charge left Reftel A points as a nonpaper.


3. (C) Duan disagreed with the Charge's claim that military
vessels enjoy complete freedom in international waters. In
accordance with the U.N. Convention on the Law of the Sea
(LOS Convention),coastal states enjoy control and
jurisdiction over activities in their Exclusive Economic Zone
(EEZ) including marine research and scientific activities,
Duan insisted. The LOS Convention does not provide
privileged status to military vessels. "That a military
vessel does not follow the jurisdiction of a coastal state
does not mean it has complete freedom," he argued. Chinese
law enforcement and surveillance boats are entitled to
"express our concern" regarding any activity that does not
comply with Chinese law, he continued. "We do not exercise
jurisdiction over military ships in the EEZ, we just prevent
the possibility of interference. This case is not
questionable under the LOS Convention," Duan claimed.


4. (C) The Charge emphasized the importance of Duan's use of
the word "concern" rather than "consequences" and asked for
clarification on what exactly the National Maritime Bureau
vessel meant by "bear the consequences." Duan said he would
have to confirm the use of those particular words with
relevant staff. "The fact is that U.S. military vessels
undertake frequent actions off the coast of China while China
does not do so near the United States," Duan said. "If
Chinese sovereignty and security continues to be affected by
foreign military vessels, who knows when there could be
consequences," he continued. "We do have lessons in the
past. I hope they will not happen again." Duan added that
given the frequent activity of U.S. naval vessels in China's
EEZ, "It is reasonable for the Chinese to express our
concern."


5. (C) The Charge stressed that while Chinese concern was
understandable, the use of the term consequences, whether
intentional or unintentional, complicated the situation. He
reiterated the need for open communication and close
cooperation to not only clear up but also prevent
misunderstandings.
PICCUTA