Sino-US Maritime Incident Prevention and Military Confidence Building
by Zhang Yuan & Hu Dekun
As China’s national power has increased, the People’s Liberation Army Navy (PLAN), which constitutes China’s maritime forces, has engaged in increasingly frequent exchanges with the navies of other countries while undertaking the pivotal task of safeguarding China’s sovereignty and maritime rights and interests, as well as advancing China’s national interests overseas. Meanwhile, the US Navy has committed its main forces to the Asia-Pacific region against the backdrop of Washington’s steady shift of strategic focus to the East. It has conducted regular air and naval surveillance in waters off China’s coast, occasionally resulting in standoffs and collisions between Chinese and US fighters and vessels. Such incidents are detrimental to the overall bilateral relations and regional peace and stability. Accordingly, how to strengthen military mutual trust at sea, reduce maritime incidents, avoid clashes, and prevent the possible escalation of crises has become a pressing concern.
China and the US signed the Agreement on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety, otherwise known as the Military Maritime Consultative Agreement (MMCA), in January 1998. While the MMCA laid the groundwork for further confidence-building measures, the two countries have so far yet to carry out in-depth cooperation in this field. In light of this, this paper seeks to analyze the deficiencies, underlying flaws, and prospects of the Sino-US military maritime safety consultation mechanism, based on maritime incident prevention theories and typical cases. It also offers suggestions on the future development of the Sino-US maritime confidence-building mechanism.
I. The MMCA and Its Implementation
1. Positive Effects of the MMCA
China and the US agreed to establish a consultation mechanism in accordance with international law, in particular the UN Convention on the Law of the Sea, and in the spirit of respecting each other and promoting friendly ties in January 1998, when China’s defense minister and the US defense secretary signed the MMCA. The two countries have since held annual or special meetings under the agreement. By September 2012, they had convened nine annual meetings, two special meetings, and 15 working group meetings. The MMCA has played a positive role in boosting relations between China and the US and between the two countries’ armed forces. It has enhanced mutual understanding and trust, promoted Sino-US military maritime safety, and deepened results-oriented exchanges and cooperation between the Chinese and US navies.
At these meetings, China and the US exchanged views on issues of shared concern, such as a legal system for military maritime activities, maritime communication standards, maritime safety and navigation, the principles and procedures that warplanes and vessels should abide by when operating in close proximity, as well as anti-piracy and humanitarian relief work. The two sides launched talks on international standards of communication at sea in May 1999 and reviewed a jointly produced document entitled “A Study on Sino-US Maritime Navigational Safety Including Communications” a year later. Guo Boxiong, then-Vice Chairman of the Central Military Commission, agreed to a US proposal to stage a joint naval search and rescue exercise when he visited the US in July 2006. A month later, the two countries established communication protocols for the planned exercise. In September that year, the Chinese destroyer Qingdao visited Pearl Harbor, where it took part in the first Sino-US joint exercise in the use of tactical signals, and then later visited San Diego, where it participated in the first bilateral search and rescue exercise.
2. Problems with the MMCA
First, it contains no substantial provisions on military operations. Compared with the 1972 US-Soviet agreement and other maritime confidence-building measures, it is noteworthy that the 1998 Sino-US MMCA only created a consultation mechanism and set out details concerning the channels of bilateral communication, the personnel to be involved, and other modalities. It did not put forward any specific measures to address particular problems, such as how Chinese and US vessels and aircraft should act when they encounter each other, what rules they should follow, and how they should communicate. The most notable achievement of the agreement is that it established a platform for direct military exchanges between China and the US for the first time, thus laying the initial groundwork for strengthened military mutual trust. In essence, it seems like a preliminary accord on Sino-US military confidence building, instead of a final outcome.
US scholar Julian Schofield has argued, “At present, the MMCA is merely a consultative process… the MMCA is similar to the process that preceded the signing of the US-Soviet Union 1972 Incidents at Sea Agreement.” It is therefore necessary to devise “formal rules of interaction” to supplement the security dialogue of the MMCA. Despite the various rounds of discussions held over more than a decade, the two sides have yet to produce or make public any substantial achievements. As a result of this slow progress, rules of interaction for Chinese and US military aircraft and vessels and a sound mechanism to prevent maritime incidents have yet to be formally established. For instance, some have stated that one of the reasons for the 2001 collision between a US surveillance plane and a Chinese fighter over the South China Sea was that the planes flew too close to one another without shared rules to avoid collisions and without common signal procedures at a time when the two countries’ political relations were tense. In March 2009, an incident occurred in the South China Sea involving the USNS Impeccable. Two months later, Chinese fishing boats and the USNS Victorious were involved in an incident in the Yellow Sea. In June that year, a Chinese submarine collided with a sonar array being towed by the USS John S. McCain off the coast of the Philippines.
Second, it is prone to political interference. After they signed the Incidents at Sea Agreement, the US and the Soviet Union continued to hold annual meetings under the agreement, despite the ups and downs in their relations and the suspension of their strategic arms limitation talks and other military consultation mechanisms. This permanent arrangement helped the two countries forge a long-term cooperative relationship. More importantly, should a crisis occur, the trust generated during these meetings could help dispel suspicions that might have otherwise arisen and helped defuse the situation. Annual meetings, mandated by the US-Soviet agreement, have provided the two sides with important opportunities to conduct military exchanges, avoid miscalculations, and work together to manage crises. In comparison, the Sino-US military maritime consultations often come to a halt because of political issues such as the US arms sales to Taiwan. With the meetings yet to be regularized, the looseness of the Sino-US consultation mechanism can also be seen in how the meeting agendas are set. The agreement lists topics to be discussed by citing examples without defining a clear theme, or clarifying steps and objectives, for each phase. Uncertainties loom over the mechanism, and it is difficult to predict what its tangible outcomes might be.
Third, it plays a limited role in enhancing military mutual trust. Sino-US military exchanges and cooperation remain at a low level. During their multiple rounds of consultations, the two sides have mainly reaffirmed their established positions and leveled accusations against each other. The US has repeatedly accused Chinese vessels and aircraft of engaging in risky behavior that threatens the safety of US military personnel. However, China stresses that the US military’s surveillance activities off the Chinese coast are the primary cause of the midair and maritime incidents. As each insists on its own position and refuses to seek common ground, it seems the mechanism’s biggest achievement has been that the two countries are actually holding meetings. The meetings have given the impression that the two sides talk just for the sake of talking, which is not conducive to improving relations between Chinese and US military forces.
The mechanism, as it exists at the present, does not conform to the basic principle for building confidence – addressing easy issues before going on to discuss more difficult ones. Minor achievements in issues where it would be easy to reach consensus would help strengthen mutual trust and improve relations, thus shaping a pattern of positive interaction that could later be applied to broader cooperation in other areas. The current situation also tends to draw accusations that the Sino-US military exchange mechanism is useless from hardliners in the US. For instance, Kurt Campbell, former US Deputy Assistant Secretary of Defense, contended in late 2005 that military ties only “follow, not lead” the overall Sino-US relationship. Randy Schriver, Deputy Assistant Secretary of State for East Asian and Pacific Affairs in the George W. Bush administration, commented in 2007 that US military engagement with China has continued to pursue the “same modest, limited agenda that has been in place for close to 20 years.” In 2011, Schriver called for reducing military contacts.
II. Why Progress Is Slow
First, the views of both parties on military activities in EEZs diverge. For many years, US warships and aircraft have conducted military surveillance activities in China’s exclusive economic zone (EEZ). In response, Chinese military and maritime law enforcement departments have sent ships and planes to intercept and stop them. Almost all the incidents at sea between the two countries have been the result of such interactions. The provisions on a country’s rights and duties when carrying out military activities in the EEZ of another country are vague in the 1982 UN Convention on the Law of the Sea, which is a product of international compromise.
1. Article 58 (1) of the convention stipulates that ships and aircraft in a foreign EEZ are entitled to the same freedom of navigation and over-flight as on the high seas, and they are entitled to other internationally lawful uses of the sea related to these freedoms. It, however, fails to clarify whether these freedoms include military activities.
2. Article 58 (2) and Article 88 stipulate that the freedoms of navigation and over-flight shall be for peaceful purposes, but without clearly defining which military activities are classified as being for peaceful purposes.
3. Article 58 (3) says that, in exercising their rights and performing their duties in an EEZ, states shall have “due regard” to the rights and duties of the coastal state. There are, however, no clear provisions as to whether the rights and duties refer to only resource rights and duties or if they include security interests. It is also left unspecified as to how a country might show “due regard”.
4. Article 59 retains a balancing mechanism to deal with residual rights and the attribution of jurisdiction in an EEZ. However, it only vaguely stipulates that conflicts regarding these issues should be resolved “on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole”.
5. Article 56 (1) stipulates that a coastal state has jurisdiction over “marine scientific research” in its EEZ without defining this and related concepts.
6. The convention does not contain any clear provisions on the legal status and jurisdiction of airspace above an EEZ.
The Chinese and US governments have interpreted these ambiguous stipulations differently to serve their respective national interests, resulting in long-term disputes and frictions.
In essence, disputes between China and the US over the right to conduct military activities in the EEZ and the occasional maritime incidents are evidence of their conflicting national strategic interests. In the name of freedom of navigation, the US insists on conducting military activities in China’s EEZ for the purpose of collecting sensitive military intelligence, tracking the activities of China’s submarines, and familiarizing itself with the military environment in key areas. It also intends to display its military might through a forward presence, so as to exert a political influence over other countries. From China’s perspective, stopping the US from conducting surveillance and surveys in China’s EEZ is not only a legitimate law enforcement effort, it is also a necessary means to protect important intelligence, safeguard national security, and defend its maritime rights and interests.
Second, there is a sea power disparity. Reciprocity is a prerequisite to the success of any negotiations. The US and the Soviet Union reached consensus on specific measures to prevent incidents at sea precisely because they had shared interests in formulating a code of conduct given the balance of their maritime power. In the early years of the Cold War, the US enjoyed an absolute advantage in gathering intelligence via aircraft and ships because of its extensive network of military bases in Europe and Asia. The Soviet Navy, however, was unable to carry out in-depth surveillance on the US or US military presence outside its borders, nor was it able to effectively counter US surveillance operations off its coast. Under these circumstances, the US, which benefited greatly from its unrestricted surveillance of the Soviet Union, was reluctant to hold negotiations. At the same time, the Soviet Union was unwilling to negotiate with the US because it refused to make unilateral concessions. In the 1960s, as large intelligence gathering ships and Tu-95 warplanes went into service, the Soviet Union began to collect intelligence off the US coast and in the North American Air Defense Identification Zone, as well as on US naval units around the world. As a result, incidents frequently broke out. A 1972 US report shows that 32 out of the 79 incidents at sea in the preceding six years were related to spy ships. These incidents alerted the US to the need to rein in Soviet activities through negotiations. As such, it has been argued that the Soviet Union qualified itself for negotiations with the US because its naval surveillance capacity became on a par with that of the US. Moreover, given its rising surveillance capacity, the Soviet Union hoped to continue its operations provided that security was guaranteed, leading to a convergence of the two powers’ negotiating positions.
As for the naval forces of China and the US, there is no possibility of a reciprocal tradeoff. Despite the great strides China’s maritime forces have made together with the modernization of Chinese military, it still lags far behind the US Navy. Moreover, PLAN’s mission currently focuses on safeguarding China’s territory, sovereignty, and maritime interests in its coastal waters. It has no intention of conducting surveillance operations in the EEZ of the US.
In addition, the US-Soviet agreement included clauses granting extra protection to aircraft carriers on which aircraft were taking off or landing and warships being replenished. If these were applied to Chinese and US naval forces, they would obviously be skewed in favor of the US Navy. From Washington’s perspective, since it boasts an absolute advantage at sea, it does not urgently feel the need to seek an agreement with China that would restrict the freedom of its naval operations.
Third, maritime standoffs have been manageable to date. In the 1960s, maritime incidents between the US and the Soviet Union broke out around the world, peaking at more than 40 a year on average. Despite the occasional outbreaks of maritime incidents between China and the US in the past decade, their frequency has been far lower than that figure. Also, there were no casualties in most of these incidents. It is important to note that these incidents have mainly occurred in China’s coastal waters. A Chinese scholar characterized the Sino-US maritime incidents as “not deliberate, violent, strategic or challenging”. The scholar further argued that they were mostly infrequent, low-level accidents between non-hostile countries, neither of which was deliberately seeking to stir up maritime conflicts to challenge the other’s core interests. That was why most of these incidents ended shortly after they happened, instead of having a long-lasting impact. Moreover, the Chinese government and military have been able to keep the incidents under control, in accordance with the principle of “fighting back without causing a rupture”. When the incidents occurred, the relevant authorities engaged in crisis management in a timely manner to prevent any escalation. For instance, the Chinese government was able to address the incident involving the USNS Impeccable within a few days. In the past, Sino-US maritime incidents were limited and controllable, and as such the two countries do not feel the issue must be urgently addressed.
III. The Confidence-Building Mechanism
The Sino-US relationship is without a doubt one of the most important and complex bilateral relationships in the world. While differences remain, they enjoy closely intertwined common interests in key areas, such as politics, business, trade, diplomacy, security, science and technology, as well as tremendous opportunities for strategic cooperation. Peace benefits both countries, whereas confrontation will undoubtedly harm both. Building a new model of major-power relations and maintaining long-term stability between China and the US are in the interests of both countries. As the US forges ahead with its “rebalancing to Asia” strategy and as China redoubles its efforts to protect its maritime interests, the two countries’ naval forces will encounter and engage each other more frequently. Given the absence of institutional safeguards, maritime incidents may become the norm, and both expand in scope and grow in numbers. Against this backdrop, it is imperative that the two countries step up their efforts to develop a military maritime confidence-building mechanism.
While setting aside complicated and sensitive political issues, they should try to seek common interests on the basis of mutual benefits and win-win results. Given the current state of affairs, the following steps are worth consideration:
To start with, the two countries could contemplate developing a maritime incident prevention mechanism or a maritime safety cooperation mechanism for the high seas beyond their EEZs. The US-Soviet maritime incident prevention mechanism discussed earlier was originally applied to the high seas. Since military contacts on the high seas have nothing to do with core issues such as territory and sovereignty, parties tend to have similar negotiating positions. Compared with US-Soviet relations during the Cold War, which were characterized by global confrontation, the Chinese and US navies share broader common interests and have more room for cooperation in areas beyond their borders. In practice, they get along well with each other in these areas. Their exploration of a maritime incident prevention mechanism for the high seas is mainly intended to be a pilot project that has a demonstrable effect. By pursuing this mechanism, the two militaries will be able to deepen consensus, become more capable of carrying out collaborative operations, and familiarize themselves with procedures for such operations. They will also be able to test what problems may arise and assess these problems, thereby laying the foundation for further cooperation.
The two sides should first discuss technical issues aimed at preventing air and maritime incidents in China’s EEZ. They should perpetuate already achieved outcomes so as to solidify consensus and bolster each other’s confidence. They should work together to establish communication and signal procedures for naval vessels and military aircraft, putting in place a system whereby they can inform each other of major maritime military exercises and other naval activities in advance. They should also adopt measures to defuse the situation should any unexpected incidents occur. Based on these steps, they can explore ways to narrow the differences in their positions.
Moreover, they should regularize bilateral talks based on existing communication platforms. The US Taiwan Relations Act is unlikely to be revoked in the foreseeable future. In this context, it is essential that the US government respect China’s position. It should accommodate China’s concerns at least regarding the procedures and timing of US arms sales to Taiwan. For its part, the Chinese government should come up with a proper response to the sales to prevent the frequent suspension of bilateral military exchanges because of political interference, which naturally hinders progress.
In addition, as it will be difficult for China and the US to reach a maritime incident agreement in the near future, China should consider forging similar agreements with neighboring countries. In this way, it can create a precedent in international law with which to inject impetus to the development of the Sino-US military maritime confidence-building mechanism.
Source: China International Studies March/April 2014 113-124