In August a Chinese fighter jet intercepted a U.S. Navy Poseidon submarine-hunter over the South China Sea in what the United States deemed a “dangerous, unsafe and unprofessional” manner. However, this was not the first such incident nor is it likely to be the last.

The U.S.-China relationship has already been strained by the EP-3 (2001), the Bowditch (2001), the Impeccable (2009) and Cowpens (2013) encounters. Chinese and U.S. experts will meet this month at the Pentagon to discuss “rules for the air and maritime domain.”

What do these dangerous skirmishes have in common and how can they be prevented or managed?

These incidents all involved Chinese challenges to U.S. Naval intelligence, surveillance and reconnaissance vessels and aircraft operating in and over China’s 200-nm exclusive economic zone (EEZ). Clearly the U.S. “rebalancing” to Asia is coming face to face with China’s naval expansion, rising capabilities and ambitions.

Indeed the two have converging strategic trajectories. China is developing what the U.S. calls an anti-access/area denial (A2/AD) 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 — say between China and Taiwan.

The U.S. response is the air-sea battle (ASB) concept, which is intended to cripple China’s command, control, communications, computer and intelligence, surveillance and reconnaissance systems (C4 ISR). This means that C4 ISR is the “tip of the spear” for both sides, and both are trying to dominate this sphere over, on and under China’s near seas.

China and the U.S. have starkly opposing policies regarding such activities in the EEZ. The Chinese Foreign Ministry has stated that “we oppose any military acts in our exclusive economic zone without permission.”

According to Gen. Fan Changlong, vice chairman of China’s Central Military Commission, “the United States should halt its ‘close-in’ aerial and naval surveillance of China.”

But the February 2011 U.S. National Military Strategy states that “to safeguard U.S. and partner nation interests, the U.S. will be prepared to demonstrate the will and to commit the resources needed to oppose any nation’s actions that jeopardize access to and use of the global commons and cyberspace, or that threaten the security of our allies.”

According to Daniel Russel, U.S. assistant secretary of state for East Asia, “the United States is justified in carrying out surveillance flights in East Asia given a lack of transparency in China’s military buildup.”

In practical terms, Adm. Jonathan Greenert, U.S. chief of Naval Operations, says, “We’ll continue to operate in international airspace; we made that clear and we’ll proceed ahead.”

Meanwhile, the U.S. and China are supposedly building a “new relationship” to avoid the expected conflict between a rising power and an established one. This will hopefully mitigate conflict in Asia including in the East China and South China seas.

However, China and the U.S. apparently have markedly different interpretations of this “new relationship.” As might be expected from their contrasting policy statements regarding these encounters, the implementation of the “new relationship” is “so far not so good.”

The greatest risk of accidental hostilities remains incidents between Chinese and American vessels and aircraft in China’s air defense identification zone around the disputed Diaoyu/Senkaku Islands in the East China Sea, and the freedom-of-navigation disputes in the South China Sea.

There is also sharp disagreement regarding the meaning of key terms in U.N. Convention on the Law of the Sea (UNCLOS), such as freedom of navigation, peaceful use/purpose, due regard, abuse of rights and marine scientific research. To cut to the chase, several issues cry out for discussion if not negotiation between the U.S. and China:

• Given the strategic context of A2/AD vs. ASB and the role of C4 ISR, should some electronic and signals intelligence activities such as probing, tickling, tracking with targeting, interference with communications, and military research and surveys in foreign EEZs be considered a threat of the use of force, which is prohibited by the U.N. Charter and the UNCLOS?

• Do certain military activities such as live-fire exercises satisfy the due regard requirement for, say, coastal states rights and duties to protect marine mammals and fisheries?

• Are any of these activities an abuse of “freedom of navigation”? Indeed, can freedom of navigation be abused, or is it absolute and without limit?

• Specifically are the activities of the U.S. hydrographic survey ship Bowditch and the U.S. ocean surveillance ship Impeccable, and maybe the Poseidon if it was dropping sonobuoys, prohibited by the provisions of UNCLOS Article 258: “the deployment and use of any type of scientific research equipment in the marine environment is subject to the same conditions as those prescribed for MSR [marine scientific research]?”

That is, are they subject to the consent of the coastal state?

• What exactly is the U.S. doing and why, and given the risk to the U.S.-China relationship, is it necessary from an intelligence-gathering standpoint?

What are the options for addressing these issues?

The default option is to “do nothing”— just let the rules evolve like “Topsy.” But doing nothing means that where the text of a governing treaty leaves matters ambiguous or unresolved, the practice of states will become particularly important in determining the interpretation of the treaty’s provisions.

If many coastal states enact unilateral national legislation prohibiting the exercise of certain military and intelligence- gathering activities in and above their EEZ, then the prohibition against conducting such exercises could become part of customary international law through state practice, despite the opposition of a few countries.

The U.S. has not ratifed UNCLOS. Even if it does, there will remain disagreement regarding key provisions. Moreover, these intrusive and provocative electronic intelligence, signals intelligence and cyber techniques were not considered when the treaty was negotiated 35 years ago.

Furthermore, their meanings have evolved with technological advances and state practice.

The U.S. could try to get ahead of the curve and negotiate voluntary guidelines for military and intelligence-gathering activities in foreign EEZs.

But there are many objections to such guidelines, particularly from the U.S. military:

One is that “there is already agreement on a code for unalerted encounters at sea (CUES).” This is indeed a baby step in the right direction, but it deals mainly with communications and it is not clear that China has embraced them and will implement them.

The Poseidon incident indicates otherwise. The problem is that these “encounters” are not really “unplanned.” They are purposeful and perhaps expected intercepts, and they are designed to send a message.

CUES will not prevent these encounters or make them more “friendly.” They are an “unfriendly” response to what is perceived as “unfriendly” behavior.

A second argument is that China also “spies” on the U.S. and Japan from their EEZs. Yes, it does, but there is a great difference in capabilities, and between passive eavesdropping and active probing, tickling, interference with communications, tracking and targeting and abuse of the marine scientific research consent regime.

A third objection is that “the U.S. has the technological advantage and should not be constrained in its use of it.”

Perhaps so, but that attitude undermines any so-called new relationship between China and the U.S.

A final objection is that the U.S. had such understandings with the Soviet Union but that to enter into such agreements with China would unnecessarily elevate China’s status to that of an “equal” and make the U.S. appear “weak.” Perhaps, but that is a selfish and shortsighted attitude that would prevent any “new relationship” and endanger the region and humanity.

So what can be done?

The best bet is a China-U.S. bilateral agreement. At the Sunnylands summit, Chinese President Xi Jinping reportedly proposed an initiative regarding rules of behavior in the air and in maritime domains. And U.S. President Barack Obama supposedly agreed — to what it is not clear.

After Sunnylands, U.S. CINCPAC [Comander in Chief, Pacific Command] Admiral Sam Locklear said ” a code of conduct would allow the military to understand the boundaries of what they can do in the best interest for a peaceful solution.”

Locklear has been quoted more recently as calling these incidents “outliers” that seem to have ceased following talks between U.S. and China militaries. Nevertheless, there still may be opportunity for some progress here.

An alternative is a regional approach led by the 10-member Association of Southeast Asian Nations — as with the Declaration on Conduct in the South China Sea — or by ASEAN and China to establish a new norm that would define and discourage provocative military activities in foreign EEZs. But then the U.S. might be presented with a fait accompli.

For now these incidents are like political sharks in the water that one ignores at one’s peril.

Mark J. Valencia, a maritime policy analyst, political commentator and consultant focused on Asia, is a visiting senior scholar at the National Institute for South China Sea Studies at Hainan, China.

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