forthcoming scholarship: Odom on the “Impeccable Incident” and its implications for US and PRC perspectives on international law

* Forthcoming Scholarship

The True `Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned

Michigan State Journal of International Law, Vol.18:3, May 2010

Commander Jonathan G. Odom, JAGC, U.S. Navy, jonathan.odom

Many in the international law and foreign affairs communities are concerned about an incident which occurred on March 8, 2009, in the South China Sea, involving the United States Naval Ship Impeccable and five vessels from the People’s Republic of China (“PRC”). Only a small percentage of those communities, however, are familiar with the March 8th incident in substantial detail, both factually and legally.

Although the episode was reported by the news media, such reporting was merely the “first rough draft of history.” Therefore, much like how a courtroom trial provides a community with an opportunity to step back and dispassionately examine an alleged crime or civil wrong with deliberate consideration, so too is there value in stepping back and reflecting upon this maritime incident in greater depth on its one-year anniversary. Effective reflection on the incident can occur only when detached observers have an opportunity to weigh the actual facts of that day, apply international law to those facts, and reach a well-considered legal judgment-in essence, a “verdict”-on the incident. To reach such an informal verdict, these observers must be presented with detailed perspectives from the two nations involved. This Article provides such a detailed perspective from one of the two nations-in this case, the United States. The discussion focuses on and synthesizes with meticulous detail the official statements and comments and physical documentation (i.e., video and photographs) released by the United States and PRC governments.

Part I of this Article focuses on the facts of the March 8th incident. This includes a factual account of the incident, as provided by the U.S. government one day after the incident actually occurred. The next section introduces the official public statements made by the PRC government about the incident. Then, perhaps most importantly, the discussion of facts identifies objective evidence, which might corroborate or refute the respective factual accounts. Juxtaposing the two governments’ statements on the facts of the March 8th incident with this objective evidence proves quite telling for which side’s account is closer to the truth.

Part II of this Article focuses on the applicable law of the March 8th incident. This legal discussion will examine two bodies of international law: first the international rules of navigational safety, and second, the international law of the sea. Viewing the facts of the incident through the prism of these two distinct, but related bodies of international law will show which nation operated in accordance with its legal rights and responsibilities, and which nation disregarded international law in its actions.

Ultimately, this Article reaches several conclusions. First, the U.S. government was candid, clear, and consistent in its factual account of the March 8th incident. Washington provided detailed corroboration to the international community; in stark contrast, Beijing was cryptic at best, and possibly misleading. Second, the actions of the U.S. Nval vessel during the March 8th incident were consistent with international law; meanwhile, the collection of PRC vessels involved in the incident acted inconsistently with that same body of law. Third, the Article concludes that, since neither the facts of the incident nor the applicable law support the actions and position of the PRC in the March 8 incident, Beijing’s diplomacy and media blitz in the aftermath of the event demonstrate an effort to unilaterally transform international law.

These conclusions raise troubling questions about China’s ability to integrate successfully into the community of responsible nations.

The True Lies of the Impeccable Incident (Odom, MSUJIL, May 2010).pdf

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