The US-China MOU on Air and Maritime Encounters

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The US-China MOU on Air and Maritime Encounters

Last week’s memorandum of understanding was a start, but the risk of future incidents remains.

The US-China MOU on Air and Maritime Encounters
Credit: REUTERS/China Daily

The U.S.-China Memorandum of Understanding (MOU) On the Rules of Behavior for the Safety of Air and Maritime Encounters announced after the November 12 summit between Chinese President Xi Jinping and U.S. President Barack Obama is definitely a step forward on this vexing issue. However, it does not address the two countries’ fundamental differences on the matter and thus is unlikely to prevent some future incidents.

Just last August a Chinese fighter jet intercepted a U.S. Navy Poseiden sub-hunter over the South China Sea in what the U.S. deemed a “dangerous, unsafe and unprofessional” manner. This was not the first incident involving U.S. and Chinese military aircraft and vessels nor is it likely to be the last. The U.S.-China military relationship has already been strained by the EP-3, the Bowditch, the Impeccable, and Cowpens encounters.

These incidents all involved Chinese challenges to U.S. Naval intelligence, surveillance, and reconnaissance (ISR) vessels and aircraft operating in and over China’s 200 nautical mile Exclusive Economic Zone (EEZ). Clearly the U.S. “rebalancing” to Asia is coming face to face with China’s naval expansion, rising capabilities, and ambitions. Indeed, the two have converging strategic trajectories. China is developing what the U.S. 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 U.S. in the event of a conflict – say between China and Taiwan. The U.S. response is the air-sea battle (ASB) concept, 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 “tip of the spear” for both sides and both are trying to dominate this sphere over, on and under China’s near seas.

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. Both the U.S. and China have agreed to them. But that hasn’t prevented the litany of incidents in and over China’s nearshore waters. The problem is that these “encounters” are not really ”unplanned.” They are purposeful and perhaps expected intercepts designed to send a message. Indeed, they are “unfriendly” acts in response to what is perceived as “unfriendly” behavior. COLREGS and CUES will not prevent them or make them more “friendly.”

The MOU has several weaknesses. For starters the annex on air-to-air encounters has yet to be completed, indicating continuing disagreement in this sphere. Moreover, the agreement is “not intended to be binding under international law” and can be discontinued by either side. But the most glaring loophole is that the agreement is made “without prejudice” to either side’s starkly different policy perspectives on military activities in China’s EEZ. The Chinese Foreign Ministry has stated that “we oppose any … military acts in our exclusive economic zone without permission.” According to 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.” But the February 2011 U.S. National Military Strategy states that “the U.S. will be prepared to demonstrate the will and commit the resources needed to oppose any nation’s actions that jeopardize access to and use of the global commons and cyberspace, or that threaten the security of our allies.” In practical terms, Admiral Jonathan Greenert, U.S. Chief of Naval Operations said, “we’ll continue to operate in international airspace; we made that clear and we’ll proceed ahead.” These differences are crystal clear and remain unaddressed.

The MOU provides for an annual “assessment” of any incidents in the previous year under the auspices of the Consultative Mechanism to Strengthen Military Maritime Safety (MMCA). However the MMCA has existed since January 1998 and its meetings have been relatively fruitless because both sides have talked past one another based on different principles and policies.

The memorandum also makes several references to abiding by the 1982 UN Convention on the Law of the Sea and of its key relevant provisions. These include “freedom of navigation, overflight and other internationally lawful uses of the sea related to these freedoms” and “‘due regard” for the rights, freedom and lawful uses of the sea and airspace by each other’s military vessels and aircraft. However, the two countries have very different interpretations of these terms as well as significant others in UNCLOS like “peaceful purposes,” “abuse of rights” and “marine scientific research.” Although the MOU is supposed to be a contribution to the development of “a new model of military to military relations” it contains little that is new. It does state that it is an effort to “strengthen adherence to existing international law and norms” but there remains disagreement as to what they are.

There are several issues that cry out for discussion, if not negotiation, between the U.S. and China:

  • Given the strategic context of A2/AD vs ASB and the role of C4 ISR, can/should some electronic and signals intelligence activities such as probing, tickling, tracking with targeting, interference with communications, and military research and surveys in foreign EEZs be considered a threat of use of force prohibited by the UN Charter and the UNCLOS?
  • Do certain military activities like live fire exercises satisfy the due regard requirement, such as for coastal states rights and duties to protect marine mammals and fisheries?
  • Are any of these activities an abuse of  “freedom of navigation?” Indeed, can freedom of navigation be abused or is it absolute and without limit?
  • Specifically, are the activities of the Bowditch and the Impeccable (and perhaps the Poseiden if it was dropping sonobuoys) prohibited by the provisions of UNCLOS article 258, “the deployment and use of any type of scientific research equipment in the marine environment is subject to the same conditions as those prescribed for MSR” – that is, the consent of the coastal state?
  • What exactly is the U.S. doing and why – and given the risk to the U.S.-China relationship is it necessary from an intelligence-gathering standpoint?

What are the options for addressing these issues? The default option is to “do nothing” – just let the rules evolve. But doing nothing means that where the text of a governing treaty leaves matters ambiguous or unresolved, the practice of states will become particularly important in determining the interpretation of the treaty’s provisions. If many coastal states enact unilateral national legislation prohibiting certain military and intelligence gathering activities in and above their EEZ, then the prohibition against conducting them could become part of customary international law through state practice, despite the opposition of a few countries. The U.S. has not ratified the Convention. Even if it did, disagreement regarding key provisions would remain. Moreover intrusive and provocative ELINT, SIGINT and cyber techniques were not considered when the treaty was negotiated 35 years ago. Further, the meanings of these key terms have evolved with technological advances and state practice and continue to do so.

Instead, the U.S. could try to get ahead of the curve and negotiate voluntary guidelines for military and intelligence gathering activities in foreign EEZs. This would truly be a sincere effort to build a new military-to-military relationship based on Xi’s proposed principles of “mutual respect for each others’ interests, non-confrontation and openness.” This is all the more important now because some Western analysts are saying that through the MOU the U.S. has successfully lured China into a U.S.-dominated international security regime. While this is certainly debatable, a compromise gesture like “guidelines” would help dispel that notion.

But there are many objections to such guidelines, particularly from the U.S. military. One argument is that China also spies on the U.S. and Japan from their EEZs. Yes it does, but there is a great difference in capabilities and between passive eves-dropping and active probing, tickling, interference with communications, tracking and targeting, and abuse of the marine scientific research consent regime.

Another objection is that the U.S. has the technological advantage and should not be constrained in its use of it. Perhaps so, but that attitude undermines any so-called new relationship between China and the U.S. and their militaries. A third objection is that the U.S. had such understandings with the Soviet Union – but to enter into such agreements with China would unnecessarily elevate its status to that of an “equal” and make the U.S. appear “weak.” Perhaps, but that is a rather arrogant and short-sighted attitude that would prevent any “new relationship” and undermine regional stability.

The most direct approach would be a China-U.S. bilateral compromise agreement on voluntary guidelines for military and intelligence gathering activities in foreign EEZs. Other Asian countries could join or follow it as well.  An alternative is a regional approach led by ASEAN – like the Declaration on Conduct in the South China Sea; or by ASEAN and China – to establish a new norm that would define and discourage provocative military activities in foreign EEZS. But the U.S. may then be presented with a fait accompli.

Although the MOU is a step in the right direction it leaves a lot undone. Until the fundamental issues are addressed, there are likely to be more incidents

Mark J. Valencia, Maritime Policy Analyst, Hawaii and Adjunct Senior Scholar, National Institute for South China Sea Studies, Hainan, China.