MOUs: The Secret Sauce to Avoiding a U.S.-China Disaster?
On August 19, 2014, a U.S. Navy P-8A Poseidon maritime surveillance aircraft was flying above the Chinese exclusive economic zone (EEZ) about 220 nautical miles east of Hainan Island in the South China Sea when a People's Liberation Army Navy Air Force (PLANAF) J-11 fighter intercepted it. The encounter, according to Pentagon spokesman Rear Admiral John Kirby, was "very close, very dangerous ... pretty aggressive and very unprofessional. … On three different occasions, the Chinese J-11 crossed directly under the U.S. aircraft, with one pass having only 50-100 feet separation between the two aircraft ... The Chinese jet also passed the nose of the P-8 at 90 degrees with its belly toward the P-8 to show its weapons load-out. In doing so the [Chinese] pilot was unable to see the P-8, further increasing the potential for a collision. … The Chinese pilot then flew directly under and alongside the P-8, bringing their wingtips within 20 feet, and then, before he stabilized his fighter, he conducted a roll over the P-8, passing within 45 feet." The incident ended without a collision or the death of aircrew from either side, but it invoked memories of another serious incident that did not end as well—the April 2001 collision between a U.S. Navy EP-3 and a Chinese F-8 in which the Chinese pilot perished.
Although the most recent encounter ended without casualty, the seriousness of the P-8 Incident energized the U.S. government ahead of the November 2014 APEC Summit to get some results in improving the nature of the interactions between American and Chinese military units. After several rounds of negotiations in both Beijing and Washington, in early November 2014, the U.S. Department of Defense and the Chinese Ministry of National Defense signed two Memoranda of Understanding (MOUs) designed to enhance the stability of the military relationship between the two countries. The first, an MOU concerning “Rules of Behavior for Safety of Air and Maritime Encounters” speaks to the American desire to fully integrate China into the rules-based international maritime order. The second, an MOU on “Notification of Major Military Activities” is explicitly a confidence-building mechanism to advance a “new model … of military-to-military relations” and to promote increased Chinese transparency. The Notification MOU seeks to build and institutionalize habits of positive communication in order to reduce the risk of misunderstanding and to avoid miscalculation.
The “Rules” MOU
The goal of the “rules of behavior” MOU is to create a common and shared understanding and acceptance of the rules 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 and competitive nature of U.S.- China relations in the East Asian seas. 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 this objective has been persistently pursued by the Obama administration. That the Chinese agreed to this MOU is positive evidence of progress toward this goal.
To accomplish the risk-reduction objectives, the MOU reinforces existing “rules of the road” at sea and in the air as provided in agreements to which both China and the United States are already parties. This includes the International Maritime Organization’s Collision Regulations (COLREGS) for safe navigation at sea, the Chicago Convention on rules for safety of navigation in the air and the recently-agreed-upon Code for Unplanned Encounters at Sea (CUES). Since no new rule sets are created by this MOU, no change in American naval and military operations or procedures is required on the bridge of any U.S. Navy ship or in the cockpit of any U.S. military aircraft. American naval and military units already operate in accordance with the rules for safety and this MOU reinforces the importance for professional behavior by the forces of 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—known in legal terms as the exercise of due regard for the rights and freedoms of others—as is required by existing international rules and laws.
Reflecting the universality of the “due regard” requirement for conducting operations, the “rules of the road” MOU is geographically neutral—it applies everywhere in and above the ocean. Indeed, the most frequent contacts between U.S. and Chinese units are actually in the Arabian Gulf, not in East Asia. But universality also means it applies in all maritime zones. Accordingly, whether U.S. and Chinese vessels meet in a territorial sea, an exclusive economic zone (EEZ) or on the high seas, this MOU increases the likelihood that the vessels or aircraft will interact safely, even when the two sides may not have the same policy about the underlying international law that applies.