According to the Pentagon, on May 17, 2016, two Chinese J-11 fighter jets intercepted a US Navy EP-3 intelligence, surveillance and reconnaissance (ISR) plane on a “routine patrol” in “international air space” about 100 nautical miles south of China’s mainland coast and 50 nm east of Hainan. One Chinese aircraft came within 15 meters of the US plane and the US pilot descended to “avoid further conflict.” A Pentagon spokesperson deemed the intercept “unsafe.”
China’s Foreign Ministry spokesperson Hong Lei described that Pentagon statement as “not true” and said the actions of the Chinese aircraft were “completely in keeping with safety and professional standards. They maintained safe behavior and did not engage in any dangerous action.” He also said that China “demands that the United States immediately cease this type of close reconnaissance activity to avoid having this sort of incident happening again.” What is the context of this latest incident and what, if anything, can be done to prevent future such incidents?
The US-China relationship has been strained by the EP-3 (2001), the Bowditch (2001), the Impeccable (2009), and the Cowpens (2013) incidents. Also in August 2014 and again in September 2015, Chinese jet fighters intercepted US top shelf intelligence-gathering Poseiden 8A aircraft over the South China and Yellow Seas. These incidents all involved Chinese challenges to American naval ISR vessels and aircraft operating off China’s coast.
Seeking to avoid similar dangerous incidents, in October 2015 the US and China agreed on1 rules for military air-to-air encounters that were hailed in some quarters as “ground-breaking” and a “milestone.” This was an “annex” to “The US-China Memorandum of Understanding (MOU) On the Rules of Behavior for the Safety of Air and Maritime Encounters” that was announced after the November 12, 2014 summit between Chinese President Xi Jinping and US President Barack Obama. The rules of behavior in the MOU’s annexes are essentially drawn from and reiterate the technical specifics of the Convention on the International Regulations for Preventing Collisions at Sea, 1972 and the related Collision Regulations, as well as the April 2014 Code for Unplanned Encounters at Sea (CUES) that deals mainly with communications protocols.
Given this history, this latest incident may seem a bit surprising. Indeed, a Pentagon spokesperson stated that “over the past year we have seen improvements in PRC actions, flying in a safe and professional manner. We are addressing the issue through the appropriate diplomatic and military channels.” Another US official said this was an incident that “definitely has people’s attention” at the Pentagon. After this latest incident, one US analyst opined: “This is exactly the type of irresponsible and dangerous intercepts that the air-to-air annex to CUES is supposed to prevent.” Either that particular airforce unit on Hainan “didn’t get the message” or it did and the incident was purposeful and approved at the highest levels. “If the latter, it would be very disappointing to find China sacrificing the CUES annex for political gamesmanship.”
Why did this incident occur after China and the US agreed on “the rules” for such encounters?
First of all, most such encounters are not unplanned, unexpected or unintentional. While the new rules may make them safer, they will not make them any friendlier or less frequent. Indeed, if the US persists in provocative actions off China’s coast despite China’s request to cease and desist, it must expect to be challenged.
According to Chinese General Fan Changlong, vice chairman of China’s Central Military Commission, “the United States should halt its ‘close-in’ aerial and naval surveillance of China.”
Moreover, the entire US-China MOU is a milquetoast unenforceable agreement to disagree regarding the conduct of US military activities off China’s coast. China considers these activities a provocative abuse of freedom of navigation. Indeed, according to Chinese General Fan Changlong, vice chairman of China’s Central Military Commission, “the United States should halt its ‘close-in’ aerial and naval surveillance of China.” It was reported that the reason the conclusion of an air-to-air annex to the MOU was delayed for a year was that China insisted that the US cease all such activities off its coast.
More problematic is that like the earlier 2014 US-China agreement on safe military vessel encounters at sea, this air “annex” does not address the fundamental differences that give rise to these encounters. Indeed, the recent incident is the tip of a political iceberg created by a convergence of strategic trajectories. The US “rebalancing” to Asia is coming face to face with China’s naval expansion and rising ambitions. China is developing what the US calls an anti-access/area denial (A2/AD) strategy that is designed to control China’s “near seas” and prevent access to them by the US in the event of a conflict.
The US response is the Joint Concept for Access and Maneuver in the Global Commons (JAM-GC) which is intended to cripple China’s command, control, communications, computer and intelligence, surveillance and reconnaissance systems (C4 ISR). This means that C4 ISR is the “point of the spear” for both sides, and both are trying to dominate this sphere over, on and under China’s near seas. In short, this is where their national security interests collide.
Moreover, China’s Hainan Island is the site of a large signals intelligence facility which tracks US military activity in the area and monitors communications from commercial satellites. It also harbors nuclear powered and nuclear armed submarines and is thus considered a particularly strategically sensitive area — perhaps akin to the US’ Pearl Harbor.
Worse yet, the US also doesn’t “get” that China (and its nationalists) sense of face is still suffering from China’s colonial experience and they and some of the military leadership are fed up with being embarrassed, poked, pricked, prodded and “tickled” by US ISR activities. The recent spate of widely publicized FONOPS just rubs salt in this wound to China’s pride and national interests in the South China Sea.
Since the US maintains that China should obey the existing international law and order, a crucial legal question is whether some of the US electronic warfare activities conducted in or above China’s EEZ are inconsistent with the UN Charter and the peaceful purposes clauses of the 1982 UN Convention on the Law of the Sea (UNCLOS) — which China has ratified but the US has not. Particularly relevant are active SIGINT activities conducted from aircraft, some of which are deliberately provocative, intending to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks against) surface ships and submarines. Still others may interfere with communication and computer systems. These activities may involve far greater interference with China’s communication and defense systems than traditional passive intelligence gathering activities conducted from outside national territory. Are any of these US activities a threat of use of force or a violation of sovereignty as China contends?
The answer depends in part on what exactly the aircraft were and are doing — which is classified. However, in the case of the 2001 US EP-3 incident it was speculated that the SIGINT plane was not just passively “listening” but was actively “tickling” China’s onshore defense communications in order to elicit and observe a response, and as well as possibly purposely interfering with shore to submarine communications. This begs the question of what the most recent EP-3 plane was doing that China felt it necessary to respond as it did.
The US asserts that these activities are part of the freedom of navigation that is fundamental to US economic and military security and must be protected and demonstrated to friends and foe alike even at great costs. US Secretary of State John Kerry made it crystal clear on September 30, 2015: “… the United States will not accept restrictions on freedom of navigation and over flight and other lawful uses of the sea.”
Just as the US military needs to be more sensitive to the needs of China’s leadership to save face, China’s military and political leadership needs to realize that the US military leadership has become more influential in this US domestic political transition year and that it and its supporters in Congress are framing this issue as a test of US resolve vis a vis China. Indeed, according to a recent New York Times editorial, President Barack Obama is under considerable pressure “from some regional allies and his own military to push back harder against China.”
Legally, the US position is that such activities are allowed under Article 58 of UNCLOS which provides that in the EEZ “all states enjoy subject to the relevant provisions of this Convention, the freedoms … of navigation and overflight … and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft …” In other words, the US is arguing that such intelligence gathering activities are “other internationally lawful uses of the sea … associated with the operation of ships and aircraft,” and thus compatible with the Convention.
The US argues that even though it has not ratified the Treaty, it participated in the drafting of these UNCLOS provisions and that their negotiating history supports its position. Moreover, it says, the Convention’s provisions are now customary international law.
The US is arguing that such intelligence gathering activities are “other internationally lawful uses of the sea … associated with the operation of ships and aircraft,” and thus compatible with the Convention.
Others, including China, argue that the Convention is a series of package deals and that non-ratifiers are not entitled to the “benefits” of particular trade-offs while eschewing their part of the bargain. They also say that the EEZ and its regime were created by the Convention, not customary law, and the EEZ is sui generis, not high seas or “international waters.” More problematic for the US, the regulations and interpretation of the EEZ regime and key terms in the Convention are evolving rapidly through state practice. Non-ratifiers like the US have no legitimacy or credibility to interpret such terms as due regard and peaceful purpose to their advantage.
China also argues that the activities of the ISR planes are an “abuse of rights” prohibited by UNCLOS Article 300, i.e., the unnecessary or arbitrary exercise of rights, or interference with the exercise of rights by another state. It also alleges violation of the UNCLOS peaceful purposes provision in Articles 88, 141 and 301. In particular, China alleges that the US aerial and maritime activities constitute a non-peaceful threat of use of force and endanger China’s security, a violation of the UN Charter as well as UNCLOS.
But what constitutes a threat of use of force inconsistent with the UN Charter and UNCLOS? It is generally understood that the Charter prohibition includes an indirect threat of use of force as well as an overt demonstrated intent to use force. Moreover, the Charter and subsequent legal developments in the UN system have not taken into account highly advanced technologies, in particular the latest intensive and intrusive electronic warfare capabilities.
A way out of this burgeoning dialectic is a compromise in which the US cuts back or ends all together its close-in ISR probes and its FONOPS. In return China would cease its island building and what the US calls “militarization” of the features it occupies, and stop harassing other countries ships and planes in disputed waters. It would also not declare an air dense identification zone over the disputed Spratlys.
But what is needed in the long term is an agreement on a set of voluntary guidelines for military and intelligence-gathering activities in foreign EEZs and on definitions of permitted and prohibited conduct there. Such guidelines would provide indicators of friendly (and unfriendly) behavior and help parties avoid unnecessary incidents without banning any activities outright. Such guidelines have been proposed by a group of international experts sponsored by Japan’s Ocean Policy Research Foundation. The most relevant of these voluntary guidelines would be the increasingly meaningful obligation to only use the ocean for peaceful purposes, and to refrain from the threat or use of force. The guidelines would also discourage provocative acts such as collecting information to support the use of force against the coastal state, or more relevant now — interfering with naval electronic systems. However, the US has repeatedly rejected any and all such guidelines — voluntary or not — as unacceptable. So more incidents are likely.
Nevertheless, the Pentagon’s 2016 annual report to Congress on developments in China’s military and security in 2015 concluded that while China has been willing to tolerate higher levels of tension in pursuit of its maritime claims, it still “seeks to avoid direct conflict with the United States.” Let’s hope its authors are right.
(This piece is an update of and draws on Mark J. Valencia, US-China Military Agreements Dodge Deep Differences, The Diplomat, 10 October 2015 and Mark J. Valencia, Military Activities in Foreign EEZs: an Update, paper presented to CIMA Conference on the South China Sea, October 2013.)
1. Tiezzi, S. (2015, September 25). No More dangerous intercepts for US, China military aircraft? The Diplomat. Retrieved from http://thediplomat.com/2015/09/no-more-dangerous-intercepts-for-us-china-miltary-aircraft/