When Eagle Meets Dragon: Managing Risk in Maritime East Asia

On 19 August 2014 a U.S. Navy (USN) P-8A Poseidon maritime surveillance aircraft was flying in international airspace above the Chinese exclusive economic zone (EEZ) ~135 miles east of Hainan Island in the South China Sea when a People’s Liberation Army Navy (PLAN) armed J-11 fighter intercepted it. In a series of maneuvers that came within 30 feet of the P-8, the J-11 exposed its weapons load out and conducted a barrel roll over the U.S. aircraft, passing within 45 feet of the U.S. aircraft. While the incident ended without a collision or harm to the aircrew, it invoked memories of another that did not end as well—the April 2001 collision between a USN EP-3 and a PLAN J-8 in which the Chinese pilot perished. Pentagon Spokesman Rear Admiral John Kirby described the encounter as “very, very close, very dangerous…unprofessional…unsafe…and…certainly not keeping with the kind of military-to-military relationship…we’d like to have…with China. … The message we’re sending back to China is that’s unacceptable and unhelpful to the military relationship that we would like to have with them.”

The first MOU, concerning “Rules of Behavior for Safety of Air and Maritime Encounters,” reflects the American desire to reinforce existing international law, norms, and standards. The second, on “Notification of Major Military Activities” is explicitly a confidence-building measure (CBM) to stabilize relations and increase transparency, especially on the part of the Chinese. It seeks to build and institutionalize habits of positive communication in order to reduce the risk of misunderstanding and to avoid miscalculation.

Rules MOU

The “Rules” MOU aims to create common understanding and acceptance of the rule sets that ensure safe operations at sea as a “risk reduction” mechanism to “strengthen regional peace and stability.” By focusing on risk reduction, the MOU implicitly acknowledges the sometimes-contentious nature of Sino-American relations in East Asian seas and airspace. To manage the risk inherent in military encounters in this type of environment, Americans have long worked to bring China into the rules-based maritime order. It was the consistent focus of the George W. Bush administration after the 2001 EP-3 Incident and has been pursued with similar persistence by the Obama administration. That the Chinese agreed to this MOU is positive evidence of progress toward this goal. 

To realize the risk reduction objectives, the MOU reinforces existing air and sea rules of the road as provided in agreements to which both nations are already parties. This includes the International Maritime Organization’s Collision Regulations (COLREGS) for safe maritime navigation, the Chicago Convention on rules for safety of aerial navigation, and the recently agreed Code for Unplanned Encounters at Sea (CUES). Since no new rule sets are created by this MOU, no change in American operations or procedures is required on the bridge of any USN ship or in the cockpit of any U.S. military aircraft. American military units already operate in accordance with these rules; this MOU reinforces the importance of professional behavior by the PLA as well. American military commanders will now be looking for PLA ships and aircraft to consistently operate safely in the vicinity of American units (in legal terms, the exercise of due regard for the rights and freedoms of others) as existing international rules and laws require.

Reflecting the universality of the “due regard” requirement for conducting operations, the Rules MOU is geographically comprehensive—it applies everywhere on, under, and above the ocean. Indeed, U.S. and Chinese units’ most frequent contacts are actually in Gulf of Aden, not the East and South China Seas. Whether U.S. and Chinese vessels meet in a territorial sea, an exclusive economic zone (EEZ), or the high seas, this MOU increases the likelihood they will interact safely, regardless of Chinese views about the underlying international law.

Indeed, the two countries retain different policies concerning the right to undertake military activities in a foreign EEZ, although that policy gap may be closing. China’s policy, contrary to international law, hinges on its domestic laws declaring foreign intelligence gathering operations or military exercises in and above China’s EEZ illegal without Chinese consent. American military units performing such operations have been frequent targets of aggressive Chinese maneuvering—resulting in the 2009 USNS Impeccable Incident and the 2014 USS Cowpens and P-8 incidents. Ironically, the fact that the PLAN undertook similar operations in the American EEZ around Hawaii and Guam in 2013 and 2014 suggests China’s stance may be changing. Chinese operations were met by safe, professional American responses, demonstrating that national interests can be expressed without aggressive behavior. If this MOU reduces or eliminates dangerous Chinese maneuvers, it will prove to be a major milestone in Sino-American military relations. The Rules MOU may also benefit China’s beleaguered neighbors. China’s public acknowledgement of international standards of behavior allows other countries to also hold China accountable for observing them.

Despite these positive developments, some questions remain about China’s intention to fully comply with the rules of the road at sea. First, China routinely declares “exercise areas” or “inner defense areas” and purports to entirely close the areas to international navigation in violation of international law, which only allows states to announce “warning areas” during potentially dangerous exercises, but gives no right to enforce closure of such areas to international navigation. Will China now comply with this international law? 

Second, questions are presented by the MOU’s structure. Negotiating time expired before an aerial navigation annex could be completed. The MOU stipulates completion of an annex for air-to-air encounters in 2015, but will this happen? As the EP-3 tragedy illustrated, the slim margin for error and high price of failure make safety of aerial contacts the single most important issue in U.S.-China military interactions. With American surveillance and reconnaissance flights continuing in the airspace above the East and South China Seas, the dangers of unsafe aerial contacts remain clear and present.

Finally, both sides have lengthy engagement experience through the Military Maritime Consultative Agreement (MMCA) process. The MOU reinforces MMCA’s centrality by promoting discussion of any alleged violations. But, with both MOU and MMCA lacking enforcement processes, will there be accountability if violations occur?

These and other questions must be clarified over time. However, to the extent the Rules MOU stabilizes the operational relationship, it represents a major positive development. Chinese movement in the direction of full acceptance of international rules and laws can only enhance the safety of military encounters.

Notification MOU

The second MOU agrees to high-level notification of each side’s “major military activities.”

Reflecting the growing sense of strategic instability in East Asia as China’s military expands, the Notification MOU addresses the existing imbalance in which American notifications and invitations substantially exceed those from the Chinese. While the Rules MOU focuses on avoiding crises by managing tactical behaviors, the Notification MOU charges senior military and civilian leaders with managing strategic risk through increased transparency. In this sense, the Notification MOU is another component of the evolving U.S.-China framework of mechanisms for strategic dialogue—including the Defense Consultative Talks (1997), the MMCA (1998), and the Strategic and Economic Dialogue (2009). 

Most discussion surrounding this notification requirement focuses on advance reporting of major exercises. This is because the MOU contains two annexes so far—one assuring advance notice of policy and strategy announcements and the other promoting gradual expansion of observation of military exercises and “activities” on a reciprocal basis. However, neither side is required to give actual advance notice of exercises—only to invite observers to participate where appropriate. Also, exercise co-hosts must still consent before an invitation will be extended to Chinese observers.

Finally, Department of Defense officials hope to forge an additional annex to the Notification MOU that provides for advance notice of ballistic missile launches. This would address one of the key sources of uncertainty and mistrust in the U.S.-China relationship, caused by China’s rapid advancements in anti-ship missile technology.

Implications for USN

Neither MOU requires changes in the operations or activities of U.S. Navy units. Even so, there are potential implications. MOUs will be given life and meaning through the actions of officials and military decision makers. As practice accumulates, the interpretation of the activities within the Notification MOU’s scope should be carefully structured. A clear distinction should be made between exercises and operational activities. Prior notification to China of the Navy’s “activities” should be kept to the narrowest definition that meets the requirements of the MOU while also fully protecting vital American interests in the Navy’s operational latitude. In particular, Washington should reject any notification approach that in practice ends up requiring the U.S. to disclose activities at sea but allows China to avoid disclosing anti-ship activities involving land-based weapons.

Given differing American and Chinese strategic interests, near-term expectations must remain modest. What will be the internal political dynamic in China regarding these MOUs? What guidance will individual PLA units operate under and how will they choose to behave? Will there be PLA pushback? If so, these MOUs must be buttressed by concrete American expectations of improved behavior and consequences for noncompliance—what Patrick Cronin terms “imposed costs.” Meanwhile, Washington must convincingly reassure Asian allies, partners, and friends that attempts to improve U.S.-China relations will not compromise their interests. Otherwise, American strategic interests will have been seriously weakened, rather than a strengthened as the MOUs intend.

In conclusion, attempting to build Chinese habits of adherence to rules of interaction at sea and communication about exercises and intentions is a positive step. But powerful states’ relations are not so easily ordered. These MOUs help reduce the risk of crisis at sea, but will not eliminate it, because they leave untouched the divergent security interests that underlie existing frictions. Improved understanding is no replacement for respect for power. As powerful states, both sides will continue to have reasons to use tactical units assertively to achieve important national objectives. MOUs are good, but the U.S. Navy’s powerful presence in Asia, supported by strengthened allies, partners, and friends, remains a surer guarantor of regional stability in the coming decades than political agreements based either on rules or relationships.

Prof. Peter A. Dutton is Professor of Strategic Studies and Director the Naval War College (NWC)’s China Maritime Studies Institute (CMSI). Dr. Andrew S. Erickson is an Associate Professor of Strategic Studies at NWC and a founding member of CMSI. The views expressed here are those of the authors alone. They do not represent the policies or estimates of the U.S. Navy or any other organization of the U.S. government.