122 MILITARY LAW REVIEW [Vol. 216
THE PEN AND THE SWORD: THE PEOPLE’S REPUBLIC OF
CHINA’S EFFORT TO REDEFINE THE EXCLUSIVE
ECONOMIC ZONE THROUGH MARITIME LAWFARE AND
LIEUTENANT COMMANDER ROBERT T. KLINE
“But more wonderful than the lore of old men and the
lore of books is the secret lore of ocean.”1
Lieutenant Shane Osborn, USN, thought he was about to die.2 At the
controls of a U.S. Navy EP-3 Aries,3 Osborn and his co-pilot, Lieutenant
Judge Advocate, U.S. Navy. Presently assigned as Staff Judge Advocate, Commander
Strike Force Training Pacific, San Diego, California. LL.M., 2012, The Judge Advocate
General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2001, University of Iowa;
B.A., 1998, Wheaton College, Wheaton, Illinois. Previous assignments include Officer-
in-Charge, Region Legal Service Office Europe, Africa, Southwest Asia, Detachment
Rota, Rota, Spain, 2009–2011; Staff Judge Advocate, Naval District Washington,
Washington D.C., 2007–2009; Deputy Chief for Detention Operations, Judicial and Legal
Policy, Office of the Staff Judge Advocate, Multi-National Force – Iraq, 2008; Staff
Judge Advocate, Navy Information Operations Command Maryland, 2004–2007;
Adjunct Professor of Law, United States Naval Academy, 2005–2007; Assistant General
Counsel, National Security Agency, 2006–2007; Defense Counsel, Naval Legal Service
Office North Central, Branch Office Earle, Earle, New Jersey, 2002–2004. Member of
the bar of Minnesota. This article was submitted in partial completion of the Master of
Laws requirements of the 60th Judge Advocate Officer Graduate Course.
1 H. P. LOVECRAFT, H.P. LOVECRAFT: THE COMPLETE FICTION 60 (2011).
2 Reliving the U.S. Spy Plane Crisis, MILITARY.COM, http://www.military.com/Content/
MoreContent?file=FL_pilotep3_041701 (last visited Sept. 9, 2013).
3 United States Navy Fact File, NAVY.MIL, http://www.navy.mil/navydata/fact_display.
asp?cid=1100 tid=1000&ct=1 (last visited Sept. 9, 2013).
Four-engine turboprop signals intelligence (SIGINT) reconnaissance
aircraft. The EP-3E ARIES II (Airborne Reconnaissance Integrated
Electronic System II) is the Navy's only land-based signals
intelligence (SIGINT) reconnaissance aircraft. The 11 aircraft in the
Navy’s inventory are based on the Orion P-3 airframe and provide
fleet and theater commanders worldwide with near real-time tactical
SIGINT. With sensitive receivers and high-gain dish antennas, the
EP-3E exploits a wide range of electronic emissions from deep within
targeted territory. During the 1990s twelve P-3Cs were converted to
EP3-E ARIES II to replace older versions of the aircraft. The
original ARIES I aircraft were converted in the late 1960s and early
1970s. The last EP-3E ARIES II aircraft was delivered in 1997. EP-
2013] CHINA’S EXPANDING ECONOMIC ZONES 123
Junior Grade Jeffery Vignery, fought desperately to regain control of
their severely damaged aircraft as it plunged toward the Pacific Ocean.4
In the midst of a brutal 8,000 foot inverted dive, Osborn instructed the
rest of the twenty-four member crew to prepare to bailout.5 While
Vignery sent out repeated distress calls, Osborn realized that were he
able to steady the plane enough so that the crew could bailout, it would
not be possible for him to leave the controls unmanned long enough to
escape himself.6 A routine reconnaissance mission had just turned into a
Osborn and his crew took off from Kadena Air Base, Okinawa, just
before dawn on April 1, 2001.7 Their assigned mission was to fly a
“reconnaissance track in international air space south of China’s Hainan
Island and north of the Philippines.”8 It was a standard mission that had
been performed in one form or another by the U.S. Navy for several
years.9 Included within this routine was the expectation that a pair of
Chinese J-8 Finback military jets would intercept the EP-3 upon its
acquisition by Chinese radar.10 This, too, was common practice.11 These
intercepts, however, had become increasingly aggressive since December
2000.12 In fact, just one week earlier, Chinese fighter jets approached
Osborn’s aircraft in what he called a harassing manner.13
As the nine-hour mission wore on, it appeared that this flight might
prove to be the exception. The crew had seen no sign of Chinese
military aircraft upon entering the airspace over the South China Sea.
Likewise, no sign of Chinese military aircraft appeared on radar during
3Es have been heavily engaged in reconnaissance in support of
NATO forces in Bosnia, joint forces in Korea and in Operation
Southern Watch, Northern Watch, and Allied Force.
4 Lt. Shane Osborn: Looking at a Miracle, 20 HISTORY.NAVY.MIL, http://www.
history.navy.mil/nan/backissues/2000s/2003/so03/osborn.pdf (last visited Jan. 30, 2012).
5 Reliving the U.S. Spy Plane Crisis, supra note 2.
7 SHANE OSBORN, BORN TO FLY: THE UNTOLD STORY OF THE DOWNED AMERICAN
RECONNAISSANCE PLANE, at v (2001).
8 Id. at 8.
10 Lt. Shane Osborn: Looking at a Miracle, supra note 4.
11 OSBORN supra note 7, at 8.
12 Rumsfeld Complains of Harassment by Chinese Pilot, ABCNEWS.GO.COM, http://
abcnews.go.com/International/story?id=81231&page=1#.Txm-LXLQc_N (last visited
Sept. 26, 2013).
13 OSBORN supra note 7, at 80.
124 MILITARY LAW REVIEW [Vol. 216
the majority of their electronic surveillance mission.14 Just ten minutes
before finishing their final sweep and beginning the return trip to
Kadena, the Chinese jets appeared.15 A pair of J-8 Finbacks approached
the EP-3, which was flying at an altitude of 22,500 feet at approximately
180 knots.16 At first seemingly content to trail at a safe distance, the
Finbacks soon changed tactics and closed, at times, to within 10 feet of
Osborn’s aircraft.17 Such close proximity between aircraft is always
exceedingly dangerous, but in this case the difference in aircraft
capability increased the risk of collision exponentially. The Finback is a
fighter jet designed to operate at speeds far greater than the EP-3’s 180
knots.18 In order for it to parallel the EP-3, the Finback had to slow
down immensely, thus severely reducing its maneuverability.19
The Finback pulled up just under Osborn’s left wing.20 In an effort
to slow down further, the Chinese pilot, Wang Wei, pulled the nose of
his aircraft up slightly.21 He fatally miscalculated the distance between
the two aircraft. The main body of the fighter collided with the EP-3’s
number one rotary engine.22 The EP-3’s propellers cut through the
fuselage of the Chinese jet, severing it in half.23 The jet’s higher,
incoming velocity caused its forward section to spin up and across the
nose of the EP-3.24 The impact sheared the EP-3’s nose cone clean off.25
The remaining half of the fighter skipped across and underneath the EP-3
toward its right wing, barely avoiding both engines.26 The collision
instantly forced Osborn’s aircraft into an inverted dive toward the Pacific
Through a sterling display of piloting excellence, Osborn and
Vignery managed to pull the critically damaged aircraft out of its dive.28
14 Lt. Shane Osborn: Looking at a Miracle, supra note 4.
18 Reliving the U.S. Spy Plane Crisis, supra note 2.
20 Lt. Shane Osborn: Looking at a Miracle, supra note 4.
21 Rumsfeld Complains of Harassment by Chinese Pilot, supra note 12.
22 OSBORN supra note 7, at 112.
23 Lt. Shane Osborn: Looking at a Miracle, supra note 4.
25 OSBORN supra note 7, at 117.
26 Lt. Shane Osborn: Looking at a Miracle, supra note 4.
28 OSBORN supra note 7, at 116–22.