Do US Intelligence Probes Against China Violate the ‘International Order’ ?

The U.S. stands accused of violating that ‘international order’ by flying military spy planes under civilian “false flags” of other countries while collecting intelligence on China’s defenses. The U.S. may not only be violating international norms but also undermining confidence that it will abide by any agreements it enters.

The U.S. has made violation of the international order its mantra in bashing China’s behavior in the South China Sea. But now it stands accused of violating that ‘international order’ by flying military spy planes under civilian “false flags” of other countries while collecting intelligence on China’s defenses.  This was apparently not an isolated incident. China claims that the US has done this at least 100 times this year. Moreover this is only the latest accusation of US violation of the ‘international order’ in its intelligence probes of China.

According to the South China Sea Strategic Situation Probing Initiative (SCSPI), between 8 and 10 September several US Air Force RC-135 electromagnetic signals detection and collection aircraft used identification codes assigned to Malaysian civilian aircraft while lingering in international airspace between Hainan and the Paracel Islands.    The planes took off from US bases on Okinawa and Guam, passed over the Bashi Channel into the South China Sea and thence to the area between Hainan and the Paracels where they circled while presumably collecting signals intelligence before leaving the area.

Some allege that such purposeful impersonation violates the Convention on International Civil Aviation (ICAO) rules and practice with which military aircraft are expected to comply. All planes registered with the ICAO are assigned a unique six-digit code which is automatically transmitted by its transponder when interrogated by air traffic control radar. The main purpose is to ensure planes maintain minimum separation.   In response to the allegation, General Kenneth Wilsbach, head of Pacific Air Forces, said “I know we follow the rules for international airspace_ .”

If the use of a false civilian cover for its spy planes in international airspace is not against international law, it should be.  It is very risky for the aircraft doing it as well as for similar civilian aircraft being impersonated. In 1983, after a US spy plane crossed its flight path, a Korean Airlines airliner was mistaken for it and shot down by the Soviet air force, killing all 269 on-board. At the least the practice is a dangerous departure from international norms and undermines confidence in the ICAO and its identification system.

US Air Force Boeing RC 135W and E-8C intelligence collection planes use a frame similar to that of a Boeing 707-200 civilian airliner.  They even sometimes follow commercial air routes on approach to China’s air space. So their identification code is what helps distinguish them on remote sensors.  If China spots a spy plane, its targeted military assets would probably go silent.  But with a ‘false flag’, the spy plane may deceive them into continuing their activities and communications that can be monitored. According to international norms, a country should not shoot down a civilian aircraft.   This is apparently what the U.S. is betting on.  Ironically, the US may be deviously taking advantage of China’s adherence to international norms to get away with breaking them to spy on it.

What is the strategic context and what is the role of these spy planes? US-China relations are tense and rapidly deteriorating. The U.S. military “rebalancing” to Asia is coming face to face with China’s naval expansion, rising capabilities, and ambitions. China is developing what the U.S. calls an anti-access/area denial strategy that is designed to control China’s “near seas” and prevent access to them by the U.S. in the event of a conflict. The U.S. response is to prepare to cripple China’s command, control, communications, computer and intelligence, surveillance and reconnaissance (ISR) systems. This means that 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 target of these particular ‘undercover’ ISR probes was probably China’s nuclear ballistic missile submarines.  China has bases at Yulin on Hainan and the South China Sea provides relative ‘sanctuary’ for these nuclear submarines which are its insurance against a first strike—something the U.S.—unlike China–has not disavowed.

China and the U.S. have long disagreed –with kinetic consequences –regarding US ISR probes against it. They particularly disagree regarding the application of the regime of prior permission for marine scientific research (MSR) in China’s EEZ as stipulated by the UN Convention on the Law of the Sea (UNCLOS).  China accuses the U.S. of violating that regime by deploying instruments without its consent to search for and track submarines in its EEZ. But the U.S. holds that such activities are military surveys and thus exempt from the consent regime. This is a minority view in Asia.

Moreover the U.S. is not a party to the pillar of the international order at sea–UNCLOS. It thus has little legitimacy or credibility in unilaterally interpreting particular provisions of this ‘package deal’ to its advantage.

Critics also claim this practice is an “abuse of rights” prohibited by UNCLOS. Abuse of rights is the use of a right for purposes for which it was not intended or that interfere with the exercise of rights by another state.  In sum these US actions constitute a violation of the UNCLOS mandated duty to pay “due regard” to the rights of the coastal state.

These disagreements have resulted in international incidents when China has tried to prevent US Navy survey vessels like the Bowditch and submarine hunters like the Impeccable from undertaking missions in its EEZ without its permission.  China also objects to US Navy P8 submarine hunters that deploy sonobuoys in their missions.

The U.S. is now placing heavy emphasis on developing aerial, surface and underwater drones for missions that include ISR.   Then US Defense Secretary Ashton Carter announced that the US is deploying to the South China Sea  “new undersea drones in multiple sizes and diverse payloads that can, importantly, operate in shallow water where manned submersibles cannot.”

But UNCLOS, requires that submarines – presumably including drones operating in a 12 nm foreign territorial sea must surface and show their flag.  Little detail is publicly known of the capabilities, missions and deployment of these drones and their adherence to current international law and norms is questionable.

Rather than the US studied silence, the world needs a full explanation of these practices and how they do not infringe international laws and norms. Until then, its demands that China uphold the international order ring hollow. Also, after years of persuasion, China finally agreed to the U.S. proposed non-binding Code for Unplanned Encounters at Sea that strives to prevent incidents or their escalation.  But if this allegation is true why should China abide by it – or trust the U.S. regarding future ‘confidence-building’ agreements.

Indeed, the U.S. may not only be violating international norms but also undermining confidence and setting the stage for a major international incident. Is that what it wants?

Another version of this piece appeared in the South China Morning Post. https://www.scmp.com/comment/opinion/article/3103749/south-china-sea-if-us-spy-planes-were-posing-airliners-it-must

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Mark J. Valencia is an internationally known maritime policy analyst focused on Asia and currently Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China

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