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