Last month’s near-collision between the US warship Decatur and a Chinese warship is only the most recent in a series of near misses between their warships and warplanes in and over the South China Sea. The most serious was the 2001 collision between a Chinese fighter jet and a US surveillance plane resulting in the loss of the Chinese jet and its pilot and the emergency landing on Hainan and the detention of the US plane and its crew. This incident was followed by many others such as those involving the Bowditch (2001), the Impeccable (2009), the Cowpens (2013) , and several Poseiden 8As (20014,2015 and 2018). https://www.nbr.org/publication/foreign-military-activities-in-asian-eezs-conflict-ahead/
Now the US Navy is proposing a major show of force in the Taiwan Strait and against China’s claims and actions in the South China Sea. Given this history and the current context of deteriorating US- China relations across the board, this could result in military confrontation and even conflict.
A series of similar dangerous military incidents between the U.S. and the Soviet Union was a stimulus for their 1972 ground breaking Agreement on the Prevention of Incidents on and over the High Seas (INCSEA) https://www.state.gov/t/isn/4791.htm
The US-Soviet incidents in the 1960’s involved dangerously close encounters between war planes, war ships shouldering one another, and both ships and aircraft undertaking threatening movements against their counterparts. The U.S. proposed talks on preventing such incidents from becoming more serious. The resulting INCSEA agreement supposedly serves to “enhance mutual knowledge and understanding of military activities; to reduce the possibility of conflict by accident, miscalculation, or the failure of communication; and to increase stability in times of both calm and crisis”. INCSEA agreements have subsequently been negotiated between Russia and South Korea, Russia and Japan, and Malaysia and Indonesia.
The US –Soviet INCSEA was followed in 1989 by an Agreement on the Prevention of Dangerous Military Activities that established a high level forum similar to that provided by the INCSEA to focus on ways to avoid confrontation because of such activities over land and in 12 nautical mile territorial waters. https://en.wikisource.org/wiki/Prevention_of_Dangerous_Military_Activities_Agreement
But there are of course significant differences between the then Soviet Union – and China. China’s People’s Liberation Army Navy – – unlike the former Soviet navy – – is not yet a blue water force with global reach and responsibilities. But that is its ambition and it may soon be achieved. Another difference is that the US-Soviet INCSEA agreement was a product of a Cold War. To enter such an agreement would enhance the perception that the U.S. and China are entering a Cold War. But perhaps they are. http://www.atimes.com/are-the-us-and-china-on-the-brink-of-a-cold-war/
Despite these differences a fundamental similarity is that “the prospect of a minor accident escalating into an act of war between nuclear powers was something that worried knowledgeable authorities then, just as it should worry decision makers in China and the United States now.” It is in neither’s interest to have a mistake or a miscalculation at sea trigger an unwanted political crisis. https://studylib.net/doc/8845597/us-china-maritime-confidence-building
The U.S. has not offered to discuss an INCSEA with China. But the two do have a 1998 Military Maritime Consultative Agreement (MMCA) and it was hoped that such consultations might eventually lead to an INCSEA agreement. But the MMCA has so far been little more than an agreement “to talk about talking,” and worse, did not prevent nor resolve the 2001 US-China aircraft collision and subsequent incidents. https://www.chinausfocus.com/peace-security/why-the-china-us-mil-to-mil-framework-is-and-isnt The U.S. and China also have a series of memoranda of understanding (MOUs) and a Code for Unplanned Encounters at Sea (CUES) that set out agreed guidelines for the conduct of their respective ships and aircraft operating near each other. https://thediplomat.com/2014/11/the-us-china-mou-on-air-and-maritime-encounters/; http://www.jag.navy.mil/distrib/instructions/CUES_2014.pdf
But contrary to the earlier US-Soviet Agreements which used binding, obligatory language like “shall” and are considered binding international law, the MMCA, the US-China MOUs and CUES are both explicitly voluntary and framed with optional language like “should” and “may.” For example, one MOU’s language dealing with unsafe aircraft intercepts leaves it up to the pilots involved to determine what constitutes “professional airmanship” and “safe separation”. Given this ambiguity, what the U.S. perceives as “unsafe and unprofessional” Chinese intercepts of its surveillance flights are seen by China as professional and appropriate.
Another argument against a US-China INCSEA is that the US-Soviet INCSEA was not very effective and it did not prevent deliberate incidents. It is true that it did not stop such incidents all together. Indeed, a 1988 incident in the Black Sea precipitated by a US Freedom of Navigation Operation brought the two to the brink of kinetic conflict. This is similar to the serious political repercussions of the recent Decatur incident. But the INCSEA did provide the basis for a compromise which reduced the frequency and severity of such incidents.
In the Black Sea incident, a US Navy cruiser tried to exercise innocent passages in the Soviet territorial sea. The cruiser was shouldered by a Soviet frigate that tried to push it onto the high seas. https://en.wikipedia.org/wiki/1988_Black_Sea_bumping_incident When the two sides met for their annual consultation agreed under their INCSEA, they discovered that they had different interpretations of the UN Convention the Law of the Sea (UNCLOS) – which the U.S. had not and still has not ratified. This is not greatly different from the contrasting interpretations by the U.S. and China of key UNCLOS terms related to freedom of navigation. https://thediplomat.com/2016/03/china-and-the-freedom-of-navigation/ In the US-Soviet case, their representatives made recommendations to their respective governments that resulted in a mutual acceptable compromise.
The US-China agreements have obviously not prevented the litany of incidents in and over China’s near shore 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. Rules of the Road, MOUs and CUES will not prevent them or make them more ‘friendly’. A political compromise is necessary.
The protocol to the US-Soviet INCSEA Agreement grew out of the Consultative Committee established by it and was helpful in harmonizing goals and identifying important specific areas of agreement and disagreement.
Perhaps the Decatur incident will stimulate the U.S. and China to reconsider upgrading their existing ambiguous and voluntary ‘understandings’ to a binding agreement and thus force a focus on their different interpretations of relevant terms and provisions.
One US-China MOU provides for an annual ‘assessment’ of any incidents in the previous year under the auspices of the MMCA. This forum could be used to explore their different interpretations of key UNCLOS terms related to freedom of navigation of warships and warplanes. These include “other internationally lawful uses of the sea”, “due regard”, “peaceful purposes”, “abuse of rights” and “marine scientific research”.
However, even an INCSEA would only be a basic agreement on appropriate and inappropriate behavior when platforms of both parties encounter each other at sea. It would not address the fundamental sources of the problem that are rooted in their struggle for regional and global dominance. But it could make these encounters less frequent and less dangerous.
*Mark J. Valencia, Adjunct Senior Scholar, National Institute for South China Sea studies, Haikou, China
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