The new U.S.-China agreed rules for military air-to-air encounters are being hailed in some quarters as “ground-breaking” and a “milestone.” But like their 2014 agreement on safe military encounters at sea, this “annex” does not address the fundamental differences that give rise to these encounters .
The agreement was driven by a litany of “dangerous” incidents. Indeed, the U.S.-China relationship was strained by the EP-3 (2001), the Bowditch (2001), the Impeccable (2009), and Cowpens (2013) incidents. More recently, in August 2014 and again in September 2015, Chinese jet fighters intercepted U.S. intelligence-gathering aircraft over the South China and Yellow Seas. These incidents all involved Chinese challenges to U.S. Naval intelligence, surveillance and reconnaissance (ISR) vessels and aircraft operating off China’s coast.
Clearly, the U.S. “rebalancing” to Asia is coming face to face with China’s naval expansion and rising 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.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
The U.S. 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 “tip of the spear” for both sides, and both are trying to dominate this sphere over, on and under China’s near seas. Indeed, this is where their national security interests collide.
This latest agreement is an annex to the non-binding Memorandum of Understanding (MOU) signed prior to the Obama-Xi summit in November 2014. It is supposed to prevent air encounters from escalating. It incorporates provisions from the 1947 International Convention on Civil Aviation for encounters between civilian and military aircraft and the 2014 Code for Unplanned Encounters at Sea. The parties should follow these rules “to the extent practicable when compatible with mission requirements.” The annex uses other conditional language such as “when in the interest of flight safety” and “may include.” One of the more humorous clauses is that “Military aircrew should refrain from the use of uncivil language or unfriendly physical gestures.” To the credit of the US negotiators the annex does provide that “prudent pilots” should avoid aerobatics, i.e. barrel rolls.
However, the respective pilots are not obligated to communicate – in any manner – and the safe separation provision is only applicable to the particular circumstances. Most important to skeptics, it recognizes Air Danger or Warning Areas for military vessels and aircraft in which “one side should refrain from interfering with the activities in the applicable area established or declared by the other side.” It then goes on in the same sentence to say “however military vessels and aircraft always enjoy the rights and freedom of navigation, overflight and other international lawful uses of the sea related to those freedoms.” Thus the different perspectives and positions of both are preserved and we are back to where we started with fundamental disagreement regarding the meaning of “freedom of navigation.”
Indeed this entire MOU is a milquetoast unenforceable agreement to disagree regarding the conduct of U.S. military activities off China’s coast. China considers these activities a provocative abuse of freedom of navigation. 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.” Indeed it was reported that the reason the conclusion of an air-to air annex was delayed was that China insisted that the U.S. cease all such activities off its coast.
Meanwhile, the U.S. asserts that these activities are part of the freedom of navigation that must be protected and demonstrated. As U.S. Secretary of State John Kerry reiterated on September 30 at the UN “Let me be clear: the United States will not accept restrictions on freedom of navigation and overflight and other lawful uses of the sea.” Basically, it conflates the right of commercial freedom of navigation with the “right” to undertake intelligence probes.
So China and the U.S. have markedly different interpretations of freedom of navigation as well as other key terms in the 1982 U.N. Convention on the Law of the Sea (UNCLOS), such as abuse of rights, peaceful use/purpose, due regard, and marine scientific research.
To cut to the chase, several issues cry out for discussion between the U.S. and China:
• Given the strategic context of A2/AD vs. JAM-GC and the role of C4 ISR, should some electronic and signals intelligence activities such as probing, tickling, tracking with targeting, interference with communications, and military research and surveys be considered a threat of the use of force, which is prohibited by the U.N. Charter and the UNCLOS?
• Do certain military activities such as live-fire exercises satisfy the due regard requirement for, say, 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 in China’s EEZ of the U.S. hydrographic survey ship Bowditch, the U.S. ocean surveillance ship Impeccable, and the Poseidon if it was dropping sonobuoys, prohibited by the provisions of UNCLOS Article 258 which stipulates that “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 marine scientific research?” That is, are they subject to 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?
The U.S. has not ratified UNCLOS. Even if it does, there will remain disagreement regarding key provisions. Moreover, these intrusive and provocative ISR techniques were not considered when the treaty was negotiated 35 years ago. Furthermore, the meanings of these UNCLOS terms have evolved with technological advances and state practice. Different interpretations of key provisions will continue to haunt China’s nearshore and produce incidents.
Further, most encounters are not unplanned, unexpected or unintentional. In these circumstances they are likely to continue. While the new rules may make them safer, they will not make them any friendlier. Indeed if the U.S. persists in provocative actions off China’s coast despite China’s request to cease and desist it must expect to be challenged. This would also apply to U.S. Freedom of Navigation exercises penetrating the territorial sea around Chinese-occupied features in the South China Sea constructed on top of legal rocks or islands.
The bottom line is that we can expect more such incidents. Whether these agreements will make such encounters “safer” remains to be seen. Meanwhile the root differences remain.
Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.