On 2-3 August more than 40 participants from the navies of all 10 ASEAN countries and China developed a joint search and rescue operation plan to assist civilian or merchant ships under distress in international waters by applying the Code for Unplanned Encounters at Sea (CUES) – an agreement reached in 2014 with the aim of reducing incidents at sea.
This development resulted in quite a bit of hoopla among analysts and the media regarding the importance and effectiveness of CUES. According to Collin Koh Swee Lean at the S. Rajaratnam School of International Studies (RSIS) in Singapore, this agreement “reinforced the utility of this mechanism for preventing or mitigating close-proximity encounters between regional navies” _ _ and “its incorporation in the inaugural ASEAN-China exercise is a re-emphasis of its importance in promoting regional maritime stability”. CUES may well enhance safety at sea for intra-ASEAN and ASEAN-China military encounters. But even this is optimistic because it reflects a misunderstanding of the origin of CUES and what it can – and cannot do.
CUES is a non- binding temporary agreement reached at the April 2014 Western Pacific Naval Symposium. It provides guidelines for safety procedures, communications and maneuvering when naval ships and aircraft unexpectedly encounter each other. Twenty one countries have joined the agreement– Australia, Brunei, Cambodia, Canada, Chile, China, France, Indonesia, Japan, Malaysia, New Zealand, Papua New Guinea, Peru, the Philippines, Russia, Singapore, South Korea, Thailand, Tonga, the United States and Vietnam.
The context and driving force of CUES and subsequent agreements was that the U.S.-China relationship had been damaged by a series of kinetically and politically dangerous incidents between their militaries. These incidents involved U.S. intelligence, surveillance and reconnaissance (ISR) aircraft like EP-3s and Poseiden 8As, and survey and surveillance vessels like the Bowditch and the Impeccable operating in and over China’s 200 nautical mile Exclusive Economic Zone (EEZ). . CUES was an attempt to avoid or mitigate future such incidents.
At the time, this agreement was hailed as a ‘breakthrough’ that would help avoid such incidents, or if they did occur, prevent them from escalating. In December 2014, the Chinese Navy and the U. S. Navy practiced CUES during an anti-piracy exercise in the Gulf of Aden. In 2015, the USS Fort Worth encountered several Chinese Navy warships and both used CUES in a “professional” manner.
These ‘successes’ and the recent ASEAN-China agreement have spurred a resurgence of these optimistic appraisals of CUES. Indeed, one commentator opined that “CUES in particular will remain a significant bulwark against close-proximity encounters between opposing forces_ _” and predicted that CUES “_ _ will become ever more critical in guaranteeing peace and stability in the South China Sea”.
This is dangerously misleading. These agreements on safe military encounters at sea are only exhortatory and do not address the fundamental strategic conundrum between China and the U.S. that gives rise to these encounters.
The reality is that in and over China’s ‘near seas’, the U.S. military has come face to face with China’s naval expansion and rising ambitions. China is developing what the U.S. calls an anti-access/area denial 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. It is building and expanding bases, developing weapons and techniques, and undertaking exercises to advance and perfect this strategy. The US response is the Joint Concept for Access and Maneuver in the Global Commons which is intended to cripple China’s command, control, communications, computer and intelligence, surveillance and reconnaissance systems (C4 ISR). The U.S. is trying to dominate this sphere over, on and under China’s near seas particularly with its ISR probes. China monitors and tries to discourage these probes, and both efforts have become the respective ‘tip of the spear’ for each. In short, this is where their national security strategies collide.
The most glaring loophole is that these agreements were made “without prejudice” to either country’s legal perspectives and practices regarding military activities in foreign EEZs. They are very different.
The U.S. argues that these ISR missions are protected by the ‘freedom of navigation’. This is contested by China which argues that they do not pay “due regard” to its rights and responsibilities in its EEZ as required by the UN Convention on the Law of the Sea (UNCLOS). It also claims that they threaten its national security. Moreover, now cutting-edge intrusive and provocative electronic and signals intelligence, and cyber techniques were not considered when UNCLOS was negotiated nearly 40 years ago. Further, the meanings of key terms relevant to freedom of navigation have evolved with technological advances and state practice and continue to do so.
But these incidents were –and are– not really about legal right and wrong. The two powers are engaged in a sparring match with feints, jabs and defensive moves as the two militaries and their intelligence communities size each other up by probing each other’s strengths and weaknesses. This sparring in itself is unlikely to trigger an overt military conflict. But it is preliminary to such conflict and thus bodes ill for the relationship.
The basic problem is that most such encounters are not unintentional or even unexpected. They are purposeful testing of limits and the sending of “messages” through actions. While CUES and similar agreements might make such encounters safer, they will not make them any friendlier or less frequent. If the US persists in provocative actions despite China’s repeated requests to cease and desist, it must expect to be challenged.
This aspect of the contest is not going to be ameliorated any time soon. General Fan Changlong, Vice Chairman of China’s Central Military Commission urged the U.S. to decrease or halt its ‘close-in’ aerial and naval surveillance of China. But at the 2017 Shangri-la Dialogue, US Secretary of Defense James Mattis has reiterated the US policy that it will “fly, sail and operate wherever international law allows
It is thus no surprise that the incidents between Chinese and US militaries continue. In September 2015, Chinese military aircraft intercepted a U.S. Air Force surveillance plane in a potentially “unsafe” manner over the Yellow Sea.. In August 2017, 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. There have probably been other similar incidents which have not been reported.
As leading international relations analyst Steven Walt says, the U.S. could alter its general attitude and approach toward Chin and other countries. That would require “a certain degree of self-restraint, a willingness to treat other countries and their leaders with respect as opposed to contempt_ _.” However some US policy makers and analysts apparently take the short term view that to enter into such agreements with China would unnecessarily elevate its status to that of an ‘equal’ and makes the U.S. appear weak.
Given that the driving force behind these incidents is an intersection of strategic trajectories, they are likely to continue until the fundamental dichotomies are addressed. Therefore optimism that CUES will enhance stability or reduce such incidents in China’s near seas’ must be tempered with reality.
*Mark J. Valencia, Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China
A version of this piece appeared in the South China Morning Post https://www.scmp.com/comment/insight-opinion/united-states/article/2162974/naval-code-conduct-wont-make-us-china
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