Do US Actions in the South China Sea Violate International Law?
By Mark J. Valencia
A confidential 2001 U.S. Navy-National Security Agency report revealed by Edward Snowden shows that China’s concerns regarding America’s intelligence, surveillance and reconnaissance (ISR) missions off its coasts are justified. The report details the scope of secrets exposed to China in the 2001 EP- 3 incident. That incident involved a collision between a U.S. Navy ISR plane and a Chinese jet fighter about 70 miles southeast of China’s militarily sensitive Hainan Island. Hainan hosts a large signals intelligence facility and air force and nuclear submarine bases. The EP 3 was damaged in the collision and made an emergency landing at a Chinese military base on Hainan. The report reveals that the EP-3 crew were unable to destroy all the secret data and systems on board. Chinese experts likely extracted the remaining intelligence secrets.
The United States flies hundreds of ISR missions every year in the region. They collect communications between the target country’s command-and-control centers and radar and weapons systems including surface-to-air missiles, anti-aircraft artillery and fighter aircraft. EP-3 activities have also been alleged to include interference with communications, jamming of radar and cyber attacks. Other U.S. ISR probes collect “actionable intelligence for expeditionary and irregular warfare.” China alleges that such activities abuse the principle of freedom of overflight and are a threat to its national security.
Another important secret that could have been — and probably was — extracted from the exposed information on board was, as The Intercept reported, that the United States has “the ability to locate and collect transmissions to or from Chinese submarines and to correlate them to specific vessels…” The plane also carried data that clarified “how much the U.S. knew about China’s submarine-launched ballistic missiles program…” This asset would be used as China’s response to a nuclear first strike by an adversary and is thus its fundamental deterrent against such an event and obviously a core national security interest.
It turns out that it is not only China that should be worried. The report also reveals that United States ISR probes target U.S. allies. The plane carried information about the emitter parameters for weapons systems of some allies. This information could be used by China to help it collect and process their communications. Worse, the incident also exposed U.S. National Security Agency directives establishing policy for signals intelligence activities. Targets of interest included — in addition to China — the Philippines and Thailand.
According to the report, the spy plane missions give the United States some geospatial advantages over satellites for signals reception. More important they also spur targeted militaries to react, thus creating communications that can be intercepted.
There have been several “dangerous” incidents resulting from these ISR probes. As I have noted before, the U.S.-China relationship was strained by the EP-3 incident as well as the Bowditch (2001), Impeccable (2009), and Cowpens (2013) incidents. In August 2014, and again in September 2015, Chinese jet fighters intercepted U.S. intelligence-gathering aircraft over the South China and Yellow Seas.
Clearly the U.S. “rebalancing” to Asia is coming face-to face with China’s naval expansion, rising capabilities and ambitions. Indeed the two have converging strategic trajectories. China is developing what the United States calls an anti-access/area denial (A2/AD) strategy that is designed to control China’s “near seas” and prevent access to them by the United States in the event of a conflict. The U.S. response is Joint Concept for Access and Maneuver in the Global Commons (formerly the Air-Seat Battle Concept) which is intended to cripple China’s command, control, communications, computer and intelligence, surveillance and reconnaissance systems (C4ISR). This means that C4ISR is the “tip of the spear” for both sides and both are trying to dominate this sphere over, on and under China’s near seas.
Given the strategic role of ISR, should electronic and signals intelligence activities such as probing, tickling, tracking with targeting, interference with communications, and military research and surveys be considered a threat of the use of force? The Charter of the United Nations stipulates that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…”
But what is a “threat or use of force”? Is it only physical military force? Some developing countries maintain that the term “force” includes non-military force such as economic and cyber coercion and that these threats are prohibited by international law.
A threat of force can be defined as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” Is a ‘“show of force” a threat to use of force? It seems obvious that the imminent deployment of the Carl Vinson aircraft carrier strike group to waters off the Korean Peninsula is both a “show of force” and a threat to use it if North Korea does not curtail or at least pause its nuclear weapon and missile development program. Indeed a senior U.S. intelligence official said, “We are trying to communicate our concern and the existence of many military options to dissuade the North first.”
President Trump said, “We are sending an armada, very powerful” and added Kim Jong-un “is doing the wrong thing.” U.S. Vice President Michael Pence added in a speech on the deck of the aircraft carrier Ronald Reagan deployed to Japan that “the sword stands ready.”
The initial deployment of the Carl Vinson strike force was to the South China Sea. The presumed purpose was to exercise and demonstrate “freedom of navigation” in the face of perceived threats thereto , i.e., to convince China not to interfere with such and to rescind claims that the U.S. considers inconsistent with the Law of the Sea (UNCLOS). Are these probes and the deployment of perhaps the most powerful symbol of U.S. military force to the South China Sea to convince China to change its policy a threat of use of force and thus a violation of the UN Charter ?
Some argue that the U.S. aerial ISR probes off China’s coast are examples of “gunboat diplomacy,” that is the show of force to create a fait accompli or change the policy or behavior of a government. Are these illegal “threats to use force”? The same should be asked of the repeated U.S. Freedom of Navigation Operations (FONOPs) challenging China’s claims and policies. China considers them an indirect threat to its claims to sovereignty over the features it occupies.
Are the activities in China’s EEZ of the U.S. hydrographic survey ship Bowditch, the U.S. ocean surveillance ship Impeccable, and the Poseidon 8s when dropping sonobuoys to search for submarines prohibited by UNCLOS which stipulates that “the deployment and use of any type of scientific research equipment in the marine environment is subject to the conditions as those prescribed for marine scientific research?” That means they are subject to the consent of the coastal state.
The United States and Australia have added cyber attacks to their mutual defense treaty meaning that a cyber attack on one could lead to a response by both nations including conventional military action. Then former U.S. Defense Secretary Leon Panetta said this underscores the way the United States views the cyber threat and “cyber is the battlefield of the future.” When does a US cyber “probe” of China’s electronic networks become an ‘attack ‘and a threat to China’s sovereignty and security?
Unfortunately we may never know the answers to most of these legal questions at least formally because the United States has not ratified UNCLOS and is thus not subject to its dispute settlement mechanisms. Nevertheless these are all legitimate questions that deserve objective analysis and answers. To clear the air the United States should at least tell the world exactly what these IRS probes are doing and why.
Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies in Haikou, China. This piece first appeared in the IPP Review.