The Pen and the Sword: The People's Republic of China's Effort to Redefine the Exclusive Economic Zone Through Maritime Lawfare and Military Enforcement

• Author: Robert T. Kline
• Position: 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-...
• Pages: 122-169

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

MILITARY ENFORCEMENT

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

I. Introduction

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

death sentence.

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.

6 Id.

7 SHANE OSBORN, BORN TO FLY: THE UNTOLD STORY OF THE DOWNED AMERICAN

RECONNAISSANCE PLANE, at v (2001).

8 Id. at 8.

9 Id.

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

Ocean.27

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.

15 Id.

16 Id.

17 Id.

18 Reliving the U.S. Spy Plane Crisis, supra note 2.

19 Id.

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.

24 Id.

25 OSBORN supra note 7, at 117.

26 Lt. Shane Osborn: Looking at a Miracle, supra note 4.

27 Id.

28 OSBORN supra note 7, at 116–22.