Do US Actions in the South China Sea Violate International Law?
Photo Credit: Business Insider
By Mark J. Valencia

Do US Actions in the South China Sea Violate International Law?

Apr. 24, 2017  |     |  0 comments

A confidential 2001 US 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 US secrets exposed to China in the 2001 EP-3 incident. That incident involved a collision between a US 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 was unable to destroy all the secret data and systems on board. Chinese experts likely extracted the remaining intelligence secrets.

The US 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 US ISR probes collect “actionable intelligence for expeditionary and irregular warfare. China alleges that such activities abuse the principle of freedom of over flight 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 that the US 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 US 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 is obviously a core national security interest.

It turns out that it is not only China that should be worried. The report also reveals that US ISR probes target US 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 US 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 US some geospatial advantages over satellites for signals reception. More importantly, 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. Indeed, the US-China relationship was strained by the EP-3 incident as well as the Bowditch (2001), Impeccable (2009), and Cowpens (2013) incidents. More recently, in August 2014 and again in September 2015, Chinese jet fighters intercepted US intelligence-gathering aircraft over the South China and Yellow Seas.

Clearly the US “rebalance” 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 US 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 US in the event of a conflict. The US 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 (C4 ISR). This means that C4 ISR 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.

The US 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.

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 threats or 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 US 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.” Vice President 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, i.e., to convince China not to interfere with such and to rescind claims that the US considers inconsistent with the Law of the Sea (UNCLOS). Are these probes and the deployment of perhaps the most powerful symbol of US 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 US aerial ISR probes off China’s coast are examples of “gunboat diplomacy,” that is, the show of force to create a fait accompli or to change the policy or behavior of a government. Are these illegal “threats to use force”? The same should be asked of the repeated US 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 US hydrographic survey ship Bowditch, the US 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 US 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-US Defense Secretary Leon Panetta said this underscores the way the US 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 US 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 US should at least tell the world exactly what these IRS probes are doing and why.

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