A recent Washington Post editorial, “China’s Naval Provocations are Getting too Blatant to Ignore,” suggests that now may be an opportune time for an Incidents at Sea Agreement between the United States and China. Such an accord would mirror the provisions of the U.S.–U.S.S.R. accord, which was signed in Moscow in May 1972 and remains in place with Russia today. However, one could argue such an accord is hardly necessary. The mechanisms that have made the ongoing U.S.-Russia accord successful already exist within a slew of other understandings that have been signed between the United States and China’s Ministry of Defense over the past quarter century.
Historical Agreements
First came the “Agreement between the Department of Defense of the United States of America and the Ministry of National Defense of the People’s Republic of China on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety” on 19 January 1998, also known as the Military Maritime Consultative Agreement (MMCA). Notably, the title reflected the desires of the U.S. delegation not to incorporate the phrase “incidents at sea” because of Cold War connotations inappropriate for the relationship it sought to maintain with China.1
Despite the disdain for the Agreement on the Prevention of Incidents on and over the High Seas (INCSEA) nomenclature, many of the provisions from the 1972 agreement were incorporated into the language of the MMCA. As with INCSEA, MMCA provided a forum for annual consultations to be hosted on a rotating basis with the details of the consultations kept between the parties to encourage a free exchange of views. However, one provision that was left out was a signaling system created by the United States and the Soviet Union during the initial year of the accord to facilitate an understanding of intent between the commanding officers of the two navies’ at-sea assets.
This oversight, however, would be handled a multilateral effort fostered by the Western Pacific Naval Symposium (WPNS), a biennial gathering of regional naval leaders who initially considered a multilateral INCSEA for the western Pacific in 1994. While some of the delegates were receptive, too many potential drawbacks were identified, and it was ultimately a nonstarter. However, one aspect of the INCSEA deemed worth pursuing was the ship-to-ship signaling system. In 2000, a working group introduced a Code for Unalerted Encounters at Sea (CUES). At the April 2014 WPNS gathering hosted by the People’s Liberation Army Navy at Qingdao, China, the representatives of 21 Pacific region navies reconfirmed their commitment to use the signals.2
Safety at Sea
Given this context and ongoing discussions by the MMCA working group, the China and U.S. leaders drafted a more structured safety at sea memorandum of understanding. Signed on 14 November 2014 by Secretary of Defense Chuck Hagel and Chinese Minister of Defense General Chang Wanquan, the memorandum “Regarding Rules of Behavior for the Safety of Air and Marine Encounters,” reaffirmed international conventions to which both nations were parties and pledged to work toward rules of behavior using the MMCA framework and the signaling system developed through the WPNS.
The memorandum contained two annexes. The first defined terms of reference for the safety of air and maritime encounters and the second addressed rules of behavior for safety of surface-to-surface encounters. A section titled “Rules for Establishing Mutual Trust at Sea” incorporated language regarding the avoidance of “simulation of attacks by aiming guns, fire-control radars, torpedo tubes, or other weapons” that was negotiated for the INCSEA accord. Ten months later, the United States and China signed the third annex on rules of behavior for safety in air-to-air encounters.3
Confrontational Behavior
Despite the bilateral and multilateral mechanisms in place that replicate INCSEA regimens, spates of confrontational behavior continue. This should be considered from several angles. For one, the United States and China look at safety at sea through different prisms. From the U.S. perspective, the most important issue was the physical security and safety of sailors and aviators operating in international waters. However, in addition to the security and safety of its forces, China values keeping its home waters free of foreign interlopers.
The United Nations Convention on the Law of the Sea (UNCLOS) allows costal nations to establish 200-mile exclusive economic zones (EEZs) to “exercise sovereign rights in living and nonliving resources within 200 miles of its coast.”4 With the 200-mile EEZ quickly declared by nearly all the world’s littoral states, territorial disputes were instantly created in areas where the zones overlapped—such as in the South China Sea. In addition, China and several other states argue that the 200-mile EEZ confers sovereign rights beyond the economic.
Until the United States and China get on the same page regarding sovereignty in these waters, delegations at bilateral meetings will continue to talk past each other. By failing to agree to a common definition of international waters, the two sides place any risk-management regimens on shaky grounds. However, given that Chinese capitulation to long-standing international norms regarding freedom of the seas is hardly likely, there are two other issues that may explain why the current mechanisms in place have not held up as well as the U.S. accord with Russia.
First, during the Cold War there was a document-handling stamp within Office of the Chief of Naval Operations (OPNAV) featuring the words FOR US-USSR EYES ONLY to be used on materials slated for discussion at the annual INCSEA review meetings. If one of the two navies engaged in an unsafe maneuver, the infraction was quietly documented. If deemed worthy of discussion, the offending navy hierarchy was contacted by the other navy’s attaché. Peter Schoette, a foreign service officer who participated in two annual reviews in the mid-1980s, noted the nonpolitical nature of the meetings, which were kept out of the media spotlight. “A Soviet admiral admitted that a Soviet pilot violated the agreement and stated that he would be punished,” observed Schoette, who added that it was “an unheard of event in the history of arms control dialogues.”
Nowadays, leaders of the opposing side are more likely to learn of the alleged misbehavior of one of its units through social media. Such efforts to exploit misbehavior to impress wider audiences are hardly unprecedented—the New York Times, Washington Post, and Pravda frequently carried accusatory headlines prior to the signing of INCSEA in 1972. Given the publicity associated with the recent close approach by a Chinese fighter on a U.S. B-52, it is unlikely that a Chinese admiral would ever admit to bad piloting should a similar incident happen in the future.
Unfortunately, there may be an even more challenging factor at play. Recently, Admiral Samuel Paparo, the nominee to lead the U.S. Indo Pacific Command, noted that the increasing provocative nature of Chinese behavior is indicative of direction from above stating: “I believe they’ve been directed to be more aggressive and they have followed those orders,” and that the Chinese central government under President Xi Jinping wants “to create tense, uncomfortable situations in the hope that U.S. and partner forces will vacate the space that every force has a right to be in.”
Given this, it may be worth considering the Washington Post recommendation in light of one major distinction between INCSEA and the current arrangements with China. INCSEA was an executive nation-to-nation accord signed by Navy Secretary John W. Warner on behalf of the President of the United States and by Admiral of the Fleet Sergei Gorshkov on behalf of the Soviet premier. MMCA and subsequent accords with China are merely China Ministry of Defense and U.S. DoD accords. Given the nature of bureaucracy within the Chinese Communist Party, an accord signed by one ministry apparently does not carry the weight of whole of government. This has been evidenced over the past two decades when the central government has directed the Ministry of Defense to break off agreed-to military-to-military contacts. Usually, but not always, the break off has been related to some U.S. action regarding Taiwan.
One positive outcome of the dialog between President Biden and President Xi at the mid-November APEC summit in San Francisco was a commitment from Xi to reopen the various military-to-military communication pipelines that have been created over the past quarter century. That commitment, as reconfirmed on November 30 by Chinese defense ministry spokesperson Senior Colonel Wu Qian, should consider mechanisms that could keep those pipelines open during times of increased tension—and the times when having such pipelines available could avert critical miscalculations.
Following the signing of the Incidents at Sea Agreement in 1972, U.S. and Soviet naval-led delegations met in the late spring in alternating capitals despite the “Evil Empire” days of the Cold War where all other military-to-military contacts had been suspended (with a notable six-month meeting delay in 1985).5 Given the reported increase in sea and air encounters in the modern era, elevating the pipeline dealing with safety at sea and air issues perhaps now is worthy of an executive agreement between the United States and China. As the Herbert Okun, the deputy of the U.S. delegation that negotiated the INCSEA accord with the Soviets, observed when President Nixon announced he had accepted a Soviet invitation to travel to Moscow during the election year of 1972: “Baby, we have a deal here, because one thing you know is that leaders want to sign agreements at summits.”6 A Chinese invitation for President Biden to travel to Beijing has not yet been issued and the forthcoming elections in Taiwan and subsequent reactions will no doubt influence the bilateral relationship. Should a subsequent Xi–Biden summit take place, officials on both sides should pursue diplomatic groundwork for an U.S.–China Incidents at Sea accord that could make creating a FOR U.S.–CHINA EYES ONLY stamp a reality.
1. The author served as a consultant to the U.S. delegation.
2. “Twenty-First International Seapower Symposium, United States Naval War College, Newport Rhode Island, September 16–19, 2014,” report, 40.
3. David F. Winkler, Incidents at Sea: American Confrontation and Cooperation with Russia and China, 1945–2016 (Naval Institute Press, 2017), 211–13.
4. Ronald O’Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, 1 April 2016, Congressional Research Service, 15. By March 2016, 167 nations had signed on to the convention with a notable exception—the United States, because of its concerns about the provisions on deep seabed mining.
5. In 1985, Secretary of Defense Casper Weinberger postponed the scheduled May annual review until November in the wake of the murder of U.S. Army Major Arthur Nicholson in East Germany.
6. Winkler, Incidents at Sea.