US stealth jet crashes in PH waters, DFA Locsin & DND Lorenzana quiet?
2022-03-02 15:01:39 source：Manila Times
February 6, 2022
AS the world now knows, on January 24 the US Navy lost one of its most advanced fighter jets in the South China Sea. The $100 million F-35C warplane crash-landed on the US aircraft carrier Carl Vinson and careened overboard. The US is trying to recover it from the ocean bottom. The retrieval attempt will be an extremely complex operation that may take months if successful. If the location of the operation is within the Philippines' claimed 200 nautical mile exclusive economic zone (EEZ), the effort may raise legal questions.
This world top-of-the line stealth jet fighter would be a treasure trove of intelligence for a potential adversary capable of examining it up close. 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." Even if the electronics have been destroyed, the plane's fuselage and skin could yield critical details of design and composition.
As an indication of its intelligence value, previous losses of variations of the jet have prompted salvage operations. In November 2021, the US, Italy and the UK undertook a successful salvage operation of a UK F-35B that crashed into the Mediterranean after taking off from the aircraft carrier Queen Elizabeth. In 2019, the US and Japan searched for a Japan Air Self Defense Force F-35A that crashed in the Pacific. But unlike the other crashes in which the plane remained relatively intact, that aircraft disintegrated due to the high speed of the impact.
Physical factors complicating its location and retrieval include the extent of damage to the jet, the great depths, the character of the topography in the area, and currents that may affect its final location on the bottom and the recovery effort itself. The process will likely involve searching for it with towed arrays to locate the black box by its pinger emissions-or if the pinger ceases, finding it with sophisticated sonar equipment and then using deep diving submersibles to attach cables or inflatable devices that can bring it to the surface.
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. 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.
On January 26, the South China Sea Strategic Situation Probing Initiative (SCSPI) said that the US deployed at least six intelligence, surveillance and reconnaissance aircraft to the northern SCS, including three P-8As, one EP-3E, one MQ-4C and one RC-135V focusing on the southern mouth of the Taiwan Strait in addition to the general area where the accident occurred.
Indeed, the SCSPI, based in Beijing University, posted the approximate location of the recovery effort. It appears to be within the Philippines EEZ and certainly within its extended continental shelf claim.
Confirming this location, on January 29 the Japanese Coast Guard issued a navigational warning regarding ongoing salvage operations in the northern South China Sea "about 185 miles" west of the Philippines. If that is land miles, then it is about 160 nautical miles (nm) from the Philippines and well within its claimed 200 nm EEZ and continental shelf measured from its archipelagic baselines.
This could be part of the reason for 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.
Under the UN Convention on the Law of the Sea (Unclos) that-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 Navy lawyers will likely argue that it is undertaking hydrographic or military surveys that do not require the permission of the coastal state.
Because the US has not ratified the convention, however, it has little credibility or legitimacy in interpreting its terms to its advantage. Moreover, 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 application than safety of navigation and some of its 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 distinction between different categories of surveying and MSR hinges 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 and now Senate candidate Harry Roque Jr. urged the Philippines to protest the actions of both the US and China in its EEZ. Philippine Secretary of National Defense Delfin Lorenzana said that their presence was "unauthorized" and that "we have to know what they are doing in our area." He said that both must seek Manila's permission for activities inside its EEZ.
The US is unlikely to request permission because that would be a tacit acknowledgment that what it is doing falls under the consent regime. It remains to be seen whether the Philippines government will raise these issues this time around with either the US or China-or both. But what if the US essentially closes off the area-above, on and below the water to foreign aircraft and vessels? Will the Philippines protest this? Or even if the Philippines gives permission for the US salvage effort, will it deny or protest China's technical nosing around in the area? These are questions with both legal and political import.
The Philippines government, US Navy lawyers and Chinese spokesmen should get their arguments ready.
Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.