Collision of security interests lies at the heart of China-US military incidents in the South China Sea

Mark Valencia says run-ins between the two nations’ militaries will continue, no matter what safety rules are in place, unless and until a compromise deal can be struck

PUBLISHED : Wednesday, 01 June, 2016, 4:45pm
UPDATED : Thursday, 02 June, 2016, 9:54am

According to the Pentagon, on May 17, two Chinese fighter jets intercepted a US Navy EP-3 intelligence, surveillance and reconnaissance plane on a “routine patrol” in “international air space” about 50 nautical miles east of Hainan (海南). One Chinese plane came within 15 metres of the US plane and the US pilot descended to “avoid further conflict”. A spokesperson deemed the intercept “unsafe”.

China’s foreign ministry spokesperson Hong Lei ( 洪磊 ) described the Pentagon statement as “not true” and said the actions of the Chinese aircraft were in keeping with safety and professional standards. 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”.

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What, if anything, can be done to prevent future incidents like this?

The US-China military relationship has been strained by numerous air and sea incidents, involving Chinese challenges to American naval vessels and aircraft operating off China’s coast. Seeking to avoid similar dangerous incidents, last September, the two nations agreed on rules for military air-to-air encounters that were hailed in some quarters as “groundbreaking” and a “milestone”. These rules became a supplementary “annex” to the November 2014 “US-China Memorandum of Understanding On the Rules of Behaviour for the Safety of Air and Maritime Encounters”.

The rules are essentially drawn from and reiterate the 2014 “Code for Unplanned Encounters at Sea” – a non-binding agreement among 21 countries led by the US and including China. They deal mainly with communications protocols.

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So, why did this incident occur after China and the US had agreed on rules for such encounters?

The memorandum of understanding is an unenforceable “agreement to disagree” over the conduct of US military activities off China’s coast. China considers these activities a provocative abuse of freedom of navigation. Indeed, according to General Fan Chang­long ( 范長龍 ), vice-chairman of the Central Military Commission, “the United States should halt its ‘close-in’ aerial and naval surveillance of China”.

If the US persists in provocative actions despite China’s repeated requests to cease and desist, it must expect to be challenged

Moreover, most such encounters are not unplanned, unintentional or even unexpected. 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 despite China’s repeated requests to cease and desist, it must expect to be challenged.

In short, this air “annex” does not address the fundamental differences that give rise to these encounters. The recent incident is the tip of a strategic iceberg. China is developing what the US calls an anti-access/area denial strategy 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 a plan known as the “joint concept for access and manoeuvre in the global commons” – intended to cripple China’s command, control, communications, computer and intelligence, surveillance and reconnaissance systems in a conflict. It is here that their national security interests collide.

Moreover, Hainan Island, often the focus of US surveillance probes, is the site of a large signals intelligence facility which tracks US military activity in the area and monitors communications from commercial satellites. Hainan also harbours nuclear-powered and nuclear-armed submarines, which are key to China’s nuclear deterrent strategy, and is thus considered a particularly sensitive area – perhaps akin to America’s Pearl Harbor.

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A crucial legal question is whether some of the US electronic warfare and signals intelligence activities are inconsistent with the UN Charter and the peaceful purposes clauses of the 1982 UN Convention on the Law of the Sea, which China has ratified but the US has not.

This begs the question of what the recent EP-3 plane was doing that China felt it necessary to respond as it did

Particularly relevant are active signals intelligence activities conducted from an aircraft, some of which are deliberately provocative, intending to generate programmed responses. Other airborne intelligence activities intercept naval radar, enabling them to locate, identify and track (and thus plan 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 communications and defence 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 may contend?

The answer depends in part on what exactly the aircraft are doing – which is classified. However, in the case of the 2001 incident, in which a People’s Liberation Army jet collided with a US EP-3 plane, which was forced to land on Hainan, it was speculated that the plane was not just passively “listening”, but was actively “tickling” China’s onshore defence communications to elicit and observe a response, as well as possibly deliberately interfering with shore-to-submarine communications.

This begs the question of what the recent EP-3 plane was doing that China felt it necessary to respond as it did.

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A way out of this burgeoning conflict is a compromise in which the US cuts back or ends its close-in surveillance probes and “freedom of navigation operations”. The quid pro quo would be that China would cease its island building and what the US calls “militarisation” of the features it occupies, and stop harassing other countries’ ships and planes in disputed waters. It would also not declare an air defence identification zone over the disputed Spratlys. Such a “deal”, if done, should be kept secret so that neither leadership loses face.

What is needed in the long term is an agreement on a set of voluntary guidelines for military and intelligence-gathering activities in foreign exclusive economic zones and on definitions of permitted and prohibited conduct. Such guidelines would provide indicators of friendly (and unfriendly) behaviour and help parties avoid unnecessary incidents, without banning any activities outright.

The most important of these voluntary guidelines would be the increasingly meaningful obligation to use the ocean only for peaceful purposes, together with definitions of that and the “threat or use of force”. However, the US has repeatedly rejected any and all such guidelines. So, more incidents are likely.

Mark J. Valencia is adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China. A longer version of this article appeared in the IPP Review, East Asia Institute, National University of Singapore