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Naval code of conduct won't make US-China encounters in South China Sea safer

2018-09-13 12:03:42       source:NISCSS

September 6, 2018

Last month, naval officials from all 10 Asean countries and China converged on Singapore to develop a joint search and rescue plan for civilian or merchant ships in distress in international waters, an exercise that applied a naval code of conduct endorsed in 2014.


This development generated among analysts some hoopla over the importance and effectiveness of the Code for Unplanned Encounters at Sea for reducing naval incidents.


According to Collin Koh Swee Lean at the S. Rajaratnam School of International Studies in Singapore, the code "reinforces the utility of this mechanism in preventing or mitigating close-proximity encounters between navies" and "its incorporation in this inaugural Asean-China exercise is a re-emphasis of its importance in promoting regional maritime stability".


The code 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 the code and what it can, and cannot, do.


The code is a non-binding agreement reached at the Western Pacific Naval Symposium in April 2014. It provides guidelines on safety procedures, communications and manoeuvring when naval ships and aircraft unexpectedly encounter each other. Twenty-one countries have entered into 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 the code and subsequent agreements was that the US-China relationship had been shaken by a series of politically dangerous incidents between their militaries. The incidents involved US intelligence, surveillance and reconnaissance aircraft like the EP-3 and the P-8A Poseidon, and survey and surveillance vessels like the Bowditch and the Impeccable operating in and over China's 200-nautical-mile exclusive economic zone. The code was an attempt to avoid or mitigate future incidents.


At the time, it was hailed as a "breakthrough". In December 2014, the Chinese Navy and the US Navy put the code into practice during an anti-piracy exercise in the Gulf of Aden. In 2015, the USS Fort Worth used the code in encounters with several Chinese Navy warships.


However, the agreement on safe military encounters at sea is only exhortative and does not address the fundamental strategic conundrum between the US and China.


China and the US are increasingly confronting each other in and over China's "near seas", where the objectives of their national security strategies collide. The objective of China's strategy is to prevent the US from accessing its near seas in the event of a conflict. It is building and expanding bases, developing weapons and techniques, and undertaking exercises to achieve its objective. The US response is intended to cripple China's command, control, communication, computer, intelligence, surveillance and reconnaissance systems.


They both use "lawfare" to justify their objectives. The US argues that its missions are protected by freedom of navigation. China says the US has not shown "due regard" for the rights and duties of China's exclusive economic zone, as required by the UN Convention on the Law of the Sea.


But the incidents were – and are – not really about right and wrong. The two powers are in a sparring match, as their militaries and intelligence communities size each other up and probe into strengths and weaknesses. The sparring itself is unlikely to trigger overt military conflict. But it is preliminary to such conflict and thus generates considerable tension.


The basic problem is most of such encounters are neither unintentional nor unexpected. They are a result of the testing of limits and the sending of messages through actions. If the US persists in provocative actions despite China's repeated requests to cease and desist, it must expect to be challenged. While the code and similar agreements might make such encounters safer, they will not make them any friendlier or less frequent.


Such tension is not going to be ameliorated any time soon. In 2014, Fan Changlong, then vice-chairman of China's Central Military Commission, urged the US to halt its "close-in" aerial and naval surveillance of China. But at the Shangri-La Dialogue in 2017, US Secretary of Defence James Mattis reiterated that the US will "fly, sail and operate wherever international law allows".


And so incidents between the Chinese and American militaries continue. In 2015, a Chinese aircraft intercepted an American surveillance plane over the Yellow Sea in what the Pentagon said was an "unsafe fashion". In February 2017, a Chinese jet had an encounter with an American anti-submarine plane over the South China Sea.


There have probably been other similar incidents which have not been reported. Even if such encounters become less frequent, it might not be because of the code. It may be, rather, a mutual recognition that the incidents are dangerous.


Given that the driving force behind the incidents is a clash of strategic objectives, they are likely to continue until the fundamental dichotomy is addressed. Therefore, optimism about the Code for Unplanned Encounters at Sea enhancing stability in China's near seas must be tempered with reality.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China


The NISCSS is authorized to re-publish this article on its website.