US and China can't calm South China Sea
By Peter J Brown
A joint attempt by Japan and China to calm the waters after a series of naval
incidents, including one where Chinese ships and shipborne helicopters harassed
the Japanese Maritime Self Defense Forces, may soon restore tranquility to the
East China Sea.
A meeting between Japanese Prime Minister Yukio Hatoyama and Chinese Premier
Wen Jiabao in late May - just before Hatoyama resigned - is thought to have
established a hot line and a framework for dealing with such maritime incidents
before they turn into a crisis. 
It seems the China's People's Liberation Army Navy (PLAN) is growing too
comfortable with its practice of taking ownership of the South China Sea. At
the same time, an "Incidents at Sea Agreement" between the US and China is slow
to materialize. Absent such a code of conduct, there is a danger that any minor
mishap could quickly escalate into a full-scale confrontation or worse in the
seas adjacent to East Asia.
"An agreement or arrangement to prevent collisions and to avoid escalatory
events is necessary and appropriate'' said retired US Navy Rear Admiral Eric
McVadon, senior advisor for Asia-Pacific Studies at the Virginia-based
Institute for Foreign Policy Analysis. ''China wants to halt US intelligence
collection operations near China, and the US wants to continue to conduct them
so as to be able to act very quickly and effectively in a Taiwan-attack
McVadon recommends an extension of the existing 1998 Military Maritime
Consultative Agreement (MMCA) between China and the US. Others see a more
formal "Incidents at Sea Agreement" as an important goal.
"Such an agreement, if negotiated in the spirit that it will further help to
facilitate relations, could be of value,'' said David Winkler of the
Washington, DC-based Naval Historical Foundation. ''[The MMCA] established a
consultation mechanism for strengthening military maritime safety, but the
agreement did not mimic the US-USSR Incidents at Sea Agreement [known as
INCSEA] requirement for an annual review meeting or establish special
communication signals that were carried on the bridges of US and USSR warships
and merchant ships."
Because the US and China have never been formal adversaries, nor have tensions
ever escalated to anything like what the US and the Soviet Union experienced in
the midst of the Cold War, INCSEA - which was signed in the early 1970s - is
often viewed as inappropriate and even dangerous in its tone and connotation as
far as China and the US are concerned.
"INCSEA still remains in effect, even though the Cold War is now 20 years past.
While relations between Washington and Moscow have been at times frosty in the
past two decades, the perceived threat of nuclear annihilation has faded," said
Winkler. "Today, the two navies operate jointly in many regions, most recently
in the anti-piracy campaign in waters off East Africa. The annual talks
facilitate such cooperation."
The US-USSR agreement was effective because it was a navy-to-navy accord that
stayed below the radar of high-level policy makers, and it could be argued that
support for it in the Soviet Navy was stronger than in the US Navy.
"It gave the Soviet Navy prestige to have a bilateral relationship with their
American counterpart whereas the Red Army did not have any relations with the
US Army," said Winkler. "That situation may not exist with the PLAN as the PLAN
supposedly is a component of the army. The PLAN thus may not have internal
political motivation to have a one on one relationship with the US Navy."
In fact, Chinese military officers are increasingly angry and frustrated
because the US continues to probe using highly sophisticated, technologically
advanced ships and aircraft in places where they are most unwelcome, such as in
waters off the new base for China's new nuclear-powered submarines on Hainan
Island. The US Navy simply ignores the fact that China wants all US
intelligence collection operations by US vessels and maritime patrol aircraft
near China stopped.
"They do not want to talk about anything but making the US stop. China has
objected to an interpretation of Exclusive Economic Zone (EEZ) rules as
prescribed by UN Convention on the Law of the Sea (UNCLOS) that permit such
activities," said McVadon. "Most countries agree with the US that these
activities are permitted and that China's effort is essentially to treat the
EEZ and air above it as territorial waters and airspace."
One US civilian who attended a session earlier this year on "Incidents at Sea"
where US and Chinese naval personnel and civilian experts were assembled
described what transpired as a "monologue".
China has refused to accept US maritime strategy as something rooted in
cooperative international action and freedom of navigation in all waters beyond
the territorial sea.
"Ironically, China's regional objectives and activities also exist in tension
with its own increasing global interests. As a rapidly rising economic power,
it is one of the primary beneficiaries of the stable global system this
strategy provides," said Peter Dutton, an associate professor at the US Naval
War College's China Maritime Studies Institute. "China cannot have it both
ways. If China desires to assume a greater global leadership role, it must also
accept the rules by which the global system functions. One price of
participating in the protection of its growing overseas interests is acceptance
of the naval activities of others with interests in the South China Sea." 
The anger and frustration had mounted until last year over a collision between
Chinese and US military aircraft in 2001 and the harassment of the USNS
Impeccable by Chinese vessels near Hainan Island last March.
"However, suddenly in 2009, the harassment stopped," said McVadon. Only one
thing could have triggered such a cessation - "at the highest level in both
governments a decision was reached to 'knock it off'. This occurred as the
important G-20 [Group of 20] meeting approached."
The next G-20 session takes place in Toronto on June 26-27.
Did the US and China suddenly see the absurdity of a squabble in the South
China Sea when they needed to save the world from the economic crisis, handle
the North Korean problem, fight terrorism, manage global warming, etc?
It is an intriguing hypothesis. Right now, however, the US needs to ratify
UNCLOS, which defines EEZs as international waterways through which warships
may make innocent passage. That is the position of Abe Denmark, director of the
Asia-Pacific Security Program at the Washington, DC-based Center for a New
American Security. He also advocates freedom of navigation exercises in the
South China Sea. His view is shared by retired Japanese Admiral Sumihiko
Kawamura, among others.
In late 2009, Dutton told Asia Times Online that Chinese domestic law claims
sovereignty over all of the islands in the South China Sea and also claims
territorial seas and EEZs emanating from all of its claimed territories.
"However, it may benefit the Chinese to remain somewhat ambiguous as to the
exact nature of the Chinese South China Sea legal claims," said Dutton. "It is
critical that settlement of Chinese claims in the South China Sea does not
apply a legal approach that might prejudice its claims against Japan in the
East China Sea." 
China views the Yellow Sea, East China Sea, and South China Sea - the so-called
"near seas" - as core regions of strategic interest in which the Chinese seek
to become the predominant military power.
"American surveillance operations help the US to better understand China's
transition to a more powerful naval presence in the region," said Dutton. "The
operations also help the US Navy to better understand the characteristics of
the ocean space that could affect operations. Chinese strategic planners see
both US objectives as contrary to China's interests, and so they oppose US
China seems to publicize American naval operations in the region for the
purpose of inciting indignation among the Chinese people.
"This could in turn give the government support for its policy of spending
resources on a larger navy, rather than on other social concerns," said Dutton.
"Perhaps, as an exercise of its 'soft power,' the Chinese also hope to create
similar indignation at the US naval presence among the citizens of other states
in the region."
That has not worked, and the apparent tensions between China and Vietnam in
2010 reflect this reality. Vietnam may not be reaching out to the US, but it is
clearly not comfortable with China's actions lately.
"This suggests that the Chinese have a policy-strategy mismatch. If China's
navy were more cooperative and less confrontational in its approach to
operations in the region, China might gain naval influence, rather than lose
it," said Dutton.
Raul Pedrozo, associate professor of International Law in the US Naval War
College's International Law Department, finds the discussions conducted under
the MMCA to be not as fruitful as they could be. Perhaps more emphasis should
be placed on the Western Pacific Naval Symposium (WPNS).
"The MMCA provides an adequate forum to discuss and manage US-China encounters
at sea and in the air. The agreement was specifically established to facilitate
consultations between the US Department of Defense and the PRC Ministry of
National Defense for the 'purpose of promoting common understandings regarding
activities undertaken by their respective maritime and air forces when
operating in accordance with international law,'" said Pedrozo.
Unfortunately, China has failed to use the MMCA process to identify or discuss
appropriate safety measures and procedures that would apply during military
encounters at sea. Rather than focus on "promoting common understandings" to
strengthen safety at sea and in the air, China has used the MMCA as a platform
to espouse government political rhetoric about the illegality of US military
activities in the EEZ.
"It is time for the 'legal' debate to be put on the shelf, at least in the
short term. What MMCA needs to focus on is developing operational safety
measures and procedures that limit mutual interference and uncertainty and
facilitate communication when US and PLA military ships and aircraft make
contact at sea," said Pedrozo.
US, North Atlantic Treaty Organization and PLAN vessels encountered problems
while attempting to communicate during recent anti-piracy operations off the
coast of Africa.
Pedrozo draws attention to the Code for Unalerted Encounters at Sea (CUES)
developed by the WPNS which offers safety measures and procedures as well as a
means to limit mutual interference and uncertainty and to facilitate
communication when ships and aircraft make contact.
According to Winkler, the WPNS which was founded in 1988, currently has 18
members including the US and China. In 2000, the forum produced CUES, providing
the participants a tactical maneuvering and signal manual based on one used by
NATO and other allied navies during the Cold War.
"Subsequent discussions within this forum have explored the possibility of
incorporating INCSEA mechanisms regionwide," said Winkler.
WPNS promotes naval cooperation and generates a flow of information and opinion
between naval professionals leading to common understanding and possible
"China participates fully in WPNS," said Pedrozo. "There is no need to develop
something 'special or unique' for interaction with US military forces at sea.
Bottom line, a new treaty or arrangement is not needed, we just need to use the
existing mechanisms and procedures the way they were intended to be used."
These other existing mechanisms include the International Maritime
Organization's Collision Regulations and the International Civil Aviation
Organization's rules of the air, too.
Is China capable of changing direction?
Consider that the Chinese position once focused solely on national security
interests. That is not the case today.
"Realizing that this argument was not gaining much traction in the
international community, China altered its approach in 2002 with the passage of
the Surveying and Mapping Law," said Pedrozo. "Although it did not completely
abandon the national security argument, China supplemented its legal position
by arguing that military surveys [hydrographic surveys and military
surveillance activities] were equivalent to marine scientific research and
therefore subject to coastal state consent."
By 2009, Chinese commercial fishing and cargo vessels were being used overtly
to deliberately interfere with US vessels operating in the South China Sea.
What might happen next is not completely unexpected.
"China is currently attempting to fabricate an incident between a commercial
vessel, preferably a fishing vessel, and a US Special Mission Ship as part of
its lawfare campaign in order to bolster its claim in the eyes of the
international community that US military activities are interfering with
China's legitimate resource rights in the EEZ," said Pedrozo, referring to the
use of international law to attack an opponent on moral grounds.
Throw in a few ship-mounted lasers and a few surveillance planes or
helicopters, and a recipe for rapid escalation appears. 
"One of the issues that worried the US in the 1980s was the USSR directing
lasers at US aircraft. That issue was covered in the Prevention of Dangerous
Military Activities Agreement signed by the US and USSR in 1989," said Winkler.
Nothing at all has been said by the US and China about the use of lasers
against helicopters or other aircraft.
"Use of lasers to 'blind' or stun pilots of aircraft is very dangerous and
could be considered an unwarranted attack unless absolutely necessary in
self-defense," said Dutton.
"The Soviets were thought to have done it against a few US pilots back in the
1980s, but the practice was condemned then and should be similarly condemned
The inability of the US and China to resolve their differences at sea does not
bode well for future interactions in space, for example, and that is worrisome