PLAN Deputy Commander Admiral Xu Hongmeng stated on July 5th that China’s involvement in RIMPAC is an important part of efforts to build a new model of relations between China and the United States and their militaries. In an even clearer statement, Zhao Xiaogang, drill director of the Chinese fleet, described the PLA Navy’s goals for RIMPAC as improving bilateral military relations with the U.S., deepening cooperation and communication with foreign navies, and demonstrating the PLA’s willingness and ability to protect world peace, security, and stability.
As odd as the decision to send the Dongdiao AGI might be, it appears to have been very much premeditated and coordinated. This was no accident of bureaucratic stove piping. The international drills offer an ideal occasion for intelligence gathering, and the specific vessel being deployed implies a high level of government backing. While Captain James declined to specify the precise hull number of the AGI in question, he did confirm that it was Dongdiao-class. The three hulls in that class are subordinate to the PLA, not the State Council—as is the case for the China Coast Guard, which is consolidating under the State Oceanic Administration. And recent incidents suggest that the PLAN is capable of close coordination with China’s maritime law enforcement agencies to further specific national objectives. For example, in 2009 a group of Chinese ships and aircraft joined together to harass USNS Impeccable in the South China Sea where it was legally conducting surveillance operations. The vessels that took part in the operation –in a highly coordinated manner – were from the PLAN, the State Oceanic Administration, and the previously separate Ministry of Agriculture Fisheries Law Enforcement Commission. A government-controlled “fishing vessel” led the harassment, attempting to hook Impeccable’s towed-array sonar with a grappling hook.
Moreover, RIMPAC’s very nature suggests that any action relating to it would have been prioritized and coordinated. That China is participating in this year’s exercise is no small matter. It has been trumpeted in the Chinese media, and has thrown the PLAN into the center of foreign media’s RIMPAC coverage. Chinese policy-makers are well aware of this. They would hardly let matters relating to the exercises slip through the cracks. And the existence of the 2012 precedent means that there would be no first-time policy confusion behind the dispatch of this AGI. The USN itself was not surprised, as Capt. James attested.
Beijing’s Logic: “I Demand Freedom from You in the Name of Your Principles. I Deny It to You in the Name of Mine.”
China has, then, sent a surveillance ship to observe RIMPAC in what appears to be a decidedly intentional, coordinated move – and in a gesture that appears to contradict previous Chinese policy regarding surveillance and research operations (SROs). The U.S. supports universal freedom of navigation and the right to conduct SROs in international waters, including EEZs, hence its restraint when responding to the current presence of the Chinese AGI. But the PRC opposes such activities, particularly on the part of the U.S., in its own EEZ.
The first major such case erupted on March 23, 2001 when Chinese ships and aircraft harassed the U.S.N.S. Bowditch. The oceanographic survey ship was carrying out routine military survey operations in the Yellow Sea – in part of China’s claimed EEZ – when a Chinese frigate aggressively ordered it to leave the area. Only nine days later, on April 1, a Chinese fighter flew into a USN EP-3 electronic surveillance aircraft, forcing it to make an emergency landing on Hainan Island. The U.S. aircraft was flying in international airspace.
In 2009, both the U.S.N.S Victorious and Impeccable were also harassed while conducting survey and surveillance activities in China’s claimed EEZ. On March 4, as Victorious operated legally in the Yellow Sea, a Fisheries Law Enforcement Command ship repeatedly flashed a high-intensity spotlight over the ship, illuminating its length. Without warning, and in the dark, the Chinese ship then crossed ~1,400 yards away from Victorious’ bow. The next day, the harassment of Impeccable began. On March 5, a Chinese frigate crossed its bow at a range of only ~100 yards. On March 7, a PRC AGI radioed that the U.S. ship should leave “or suffer the consequences.” And on March 8, five Chinese vessels surrounded and harassed the Impeccable as it operated in the South China Sea, about 75 miles from the Chinese coast.
SS George Washington was similarly harassed in the fall of 2010, as was U-2 Intercept in June, 2011. And in July of 2013, the Impeccable was once more confronted by a China Maritime Surveillance ship as it operated in international waters.
How then to reconcile the RIMPAC AGI with China’s stand on surveillance activities? China maintains that its current actions are fully legal, and that there is a distinct difference between its operations off Hawaii and those of foreign powers in its EEZ. The PLAN’s designated point of contact declined to provide information and directed inquiries to China’s Defense Ministry. In a faxed statement to Reuters, the Defense Ministry stated that Chinese vessels had the right to operate “in waters outside of other country’s territorial waters,” and that “China respects the rights granted under international law to relevant littoral states, and hopes that relevant countries can respect the legal rights Chinese ships have.” It did not elaborate.
As a recent Global Times article hinted – China’s position on military activities in EEZs is based on a legal reading that stresses the importance of domestic laws. According to China maritime legal specialist Isaac Kardon, China interprets the EEZ articles in the United Nations Convention on the Law of the Sea (UNCLOS) as granting a coastal state jurisdiction to enforce its domestic laws prohibiting certain military activities – e.g., those that it interprets to threaten national security, economic rights, or environmental protection – in its EEZ. China’s domestic laws include such provisions, while those of the United States do not. Those rules would allow China to justify its seemingly contradictory approach to AGI operations – or, as Kardon put it, “to have their cake and eat it too.” Therefore, under the Chinese interpretation of UNCLOS, its actions are neither hypocritical nor illegal – yet do not justify similar surveillance against China.
Here, noted legal scholar Jerome Cohen emphasizes, the U.S. position remains the globally dominant view – “since most nations believe the coastal state has no right to forbid surveillance in its EEZ, they do not have domestic laws that do so.” This renders China’s attempted constraints legally problematic, since “international law is based on reciprocity.” To explain his interpretation of Beijing’s likely approach, Cohen invokes the observation that a French commentator made several decades ago in the context of discussing China’s international law policy regarding domestic legal issues: “I demand freedom from you in the name of your principles. I deny it to you in the name of mine.”
Based on his personal experience interacting with Chinese officials and legal experts, Kardon adds, “China is increasingly confident that its interpretation of some key rules and – most critically – its practices reinforcing that interpretation can over time shape the Law of the Sea regime to suit its preferences.”
But China is not putting all its eggs in that basket. There are increasing indications that it is attempting to promote its EEZ approach vis-à-vis the U.S. not legally but politically. “Beijing is shifting from rules- to relations-based objections,” Naval War College China Maritime Studies Institute Director Peter Dutton observes. “In this context, its surveillance operations in undisputed U.S. EEZs portend an important shift, but that does not mean that China will be more flexible in the East or South China Seas.” The quasi-authoritative Chinese commentary that has emerged thus far supports this interpretation. As Sr. Capt. Zhang Junshe – the same authority who attributed China’s unprecedented RIMPAC presence and role to American goodwill, and stressed the importance of improving bilateral military relations – stated in a July 21 interview:
U.S. media has hyped China’s issues with ‘surveillance.’ In fact, America’s high-frequency monitoring and wide-range surveillance of China have reached alarming levels. From the Yellow Sea to the East China Sea; from Hainan Island to the Paracels, the U.S. has sent aircraft, naval reconnaissance aircraft, submarines, and even ocean surveillance vessels. Every year America conducts hundreds of surveillance activities against China – a level which exceeds that of reconnaissance missions conducted against the Soviet Union during the Cold War. Sometimes, American and Japanese surveillance activities involve harassment, and even a level of danger.
Zhang’s statement – virtually unique in Chinese officially connected commentary thus far in its specificity and substance – suggests that Beijing will increasingly oppose U.S. SROs on the grounds that they are incompatible with the stable, cooperative Sino-American relationship that Beijing and Washington have committed to cultivating. The Obama Administration must ensure that the “new-type Navy-to-Navy relations” that Chinese Chief of Naval Operations Admiral Wu Shengli has advocated to his U.S. counterpart does not contain expectations that U.S. SROs will be reduced in nature, scope, or frequency.