Both countries are selective in which rules-based regimes they choose to support.
Perhaps, as the expression goes, hypocrisy rules the world; but certainly hypocrisy rules politics, at least the political aspect of U.S.-China relations relating to the establishment of rules intended to bring order to potential dangerous situations. Each country purports to want rules, but only in areas where it suits them, and then follows them when convenient. China is pushing for rules related to the weaponization of space, which the United States has summarily rejected, repeatedly. The United States wants an agreement on air-to-air encounters; the Chinese are stalling. Whether the rationale behind the desire for rules, order and predictability in potentially unstable and dangerous situations will prevail over other perceived interests remains to be seen.
In 2000, the U.N. General Assembly voted on a resolution called the “Prevention of Outer Space Arms Race.” It was adopted by a vote of 163 in favor to none against, with three abstentions: the Federated States of Micronesia, Israel and the United States. On December 8, 2003, 174 nations voted “yes” on a United Nations resolution calling for negotiations toward preventing an arms race in space. Only four countries abstained: the United States, Israel, Micronesia, and the Marshall Islands. Micronesia, the Marshall Islands, and even Israel aside, it is not difficult to understand how some countries might get the impression that the United States is stiff-arming strong international opinion that space should remain a sanctuary from weapons and warfare.
China and Russia have been long and vocal advocates of banning space weapons. In 2008, they introduced a draft treaty to the United Nations (UN), which the United States rejected based on issues regarding verification. In 2014 the Chinese and Russian submitted a revised version of the treaty, which was again rejected by the United States. Frank A. Rose, U.S. deputy assistant secretary of state for arms control, verification, and compliance told a June 2014 session of the U.N. Conference on Disarmament: “The United States believes that arms control proposals and concepts should only be considered by the international community if they are equitable, effectively verifiable, and enhance the security of all.”
In October 2014, the First Committee of the UN, responsible for disarmament and international security, passed a non-binding resolution urging an early start to substantive work on a updated draft treaty of the China-Russian Treaty to prevent the weaponization of space, as well as the threat or use of threat or use of force against outer space objects. The vote was 126 in favor, 4 against (the United States, Israel, Ukraine and Georgia), with 46 abstentions. The Committee also approved a draft asking the General Assembly to call upon all states, in particular those with major space capabilities, to contribute actively to the peaceful use of outer space and to the prevention of an outer space arms race and refrain from actions contrary to that objective. That text was approved by a recorded vote of 180 in favor, 0 against – and two abstentions, again, the United States and Israel.
It is not just in space that the United States has been reluctant to involve itself in multilateral treaties that are not trade related. The United States is not a party to the Ottawa Treaty (1997) aimed at eliminating anti-personnel landmines throughout the world, has not ratified the UN Convention of the Law of the Sea (UNCLOS, 1982), and has not ratified the Kyoto Treaty (1997) to reduce greenhouse gasses. UNCLOS was even amended in 1995 to specifically address U.S. concerns, and the U.S. still declined to ratify it. The U.S. also unilaterally withdrew from the bilateral Anti-Ballistic Missile Treaty (ABM) in 2002. Given the U.S. propensity away from binding agreements, there have also been efforts at pursuing “soft law” solutions to the problems of an unregulated space environment.
The international community roundly and rightly chastised China for its 2007 high-altitude kinetic-kill anti-satellite test that nearly doubled the volume of dangerous space debris in orbit. But China didn’t violate any treaties or international laws with that test. Further, the U.S. followed up in 2008 with Operation Burnt Frost, shooting down one its own malfunctioning satellites using missile defense technology, though at a lower altitude, hence avoiding the debris issue. (The U.S. has conducted other anti-satellite, or ASAT, tests in earlier decades.) While the Missile Defense Agency went to great lengths in referring to it as a one-time effort, not a standard capability, Operation Burnt Frost did demonstrate the capability of an existing, fielded system to be readily modified to shoot down satellites. Regardless of the technology used, ASATs present a danger to the sustainability of the space environment, and there are currently no prohibitions against using them.
Europe first proposed a non-binding Code of Conduct for Outer Space Activities in 2008 to address risks to the sustainability of the space environment from dangerous space debris, destructive collisions, satellite crowding, and the growing saturation of the radio-frequency spectrum. The Code includes a provision calling for states to not deliberately create space debris, as ASATs inherently do. The United States has rhetorically supported the concept of a Code, through former Secretary of State Hillary Clinton, Air Force Space Command chief General William Shelton and Strategic Command chief General Robert Kehler. However, U.S. efforts to protect its space assets have increasingly been focused on counterspace technologies and strategies, as evidenced by language in the National Defense Authorization Act for FY 2015. Little beyond initial rhetorical support has been offered for the latest Code of Conduct draft, published in 2014.
The U.S. position stems from having little motivation to accept restrictions that potentially give other countries – specifically China – the opportunity to catch up to U.S. space capabilities and (given the difficulties or impossibility of verification in space, depending on perspective) lacking faith that other countries would comply with agreed “rules,” whether binding or non-binding. China sometimes does not help build a case for trust. With or without agreements, China has been reluctant to accept or abide by restrictions on its actions in and around the South China Sea.
An April 2001 mid-air collision between a U.S. Navy EP-3 signals intelligence aircraft and a Chinese interceptor fighter sparked an international incident and was the first of several provocative and dangerous air and maritime encounters involving the U.S. and China. Following the EP-3 incident there were encounters between the U.S. and China involving the US naval vessels Bowditch (2002), Impeccable (2009) and Cowpens (2013). All involved “Chinese challenges to U.S. Naval intelligence, surveillance, and reconnaissance (ISR) vessels and aircraft operating in and over China’s 200 nautical mile Exclusive Economic Zone (EEZ).” What China considers its EEZ rights, however, are broader than what other countries deem warranted under UNCLOS, placing China’s actions already outside accepted “rules.”
Concerns regarding the very real potential for rapid escalation of incidents to military confrontation led to a November 2014 U.S.-China Memorandum of Understanding (MOU) on the Rules of Behavior for the Safety of Air and Maritime Encounters. Creating more rules, however, doesn’t inherently assure they will be followed. There were multiple precedents for the MOU to draw from: the Convention on the International Regulations for Preventing Collisions at Sea (1972), UNCLOS – which the U.S. has not ratified but recognizes as codifying customary law – and the Code for Unplanned Encounters at Sea (CUES, 2014) among them. The problem is, all of these regulations have already been put in place, and China has often ignored them; policy and perceived national interests trumping rules. Earlier in 2014, for example, the Pentagon had protested what it deemed a “very close, very dangerous” intercept of a U.S. Navy P-8 sub-hunter aircraft by a Chinese fighter jet off the coast of Hainan Island.
Also in 2014, for the first time China was invited to attend the annual U.S.-led Rim of the Pacific (RIMPAC) naval exercise in international waters off the coast of Hawaii, as part of a U.S. military agenda to expand mil-to-mil exchanges with China. Curiously, however, China sent one ship to participate, the guided missile destroyer Haikou, and another, an intelligence-gathering vessel, to spy on the event. Apparently Chinese naval officers from the Haikou were friendly and forthright in their discussions with RIMPAC participants, serving the purpose of inviting them. Additionally, Admiral Samuel Locklear, Commander of U.S. Pacific Command, was positive about China also sending an intelligence-gathering vessel. “The good news about this is it’s a recognition, I think, or acceptance by the Chinese that what we’ve been saying to them for some time is that military operations and survey operations in another country’s [maritime zones] are within international law and are acceptable, and this is a fundamental right that nations have,” Locklear said.
Fundamentally, the United States wants to keep a close eye on expanding Chinese naval capabilities, rising capabilities generally, and territorial ambitions and intentions. China considers U.S. ELINT, SIGINT and cyber techniques to do so intrusive, provocative and beyond normal “observation” practices. China considers its often-deliberate aggressions and provocations on “close-in” U.S. assets as shots-across-the-bow. The problem is, in both cases, both sides have much to lose if provocation escalated to military confrontation.
It is in neither the U.S. nor China’s interest to jeopardize the sustainability of the space environment. And the U.S.-China relationship is too important to have it perpetually under a Sword of Damocles threat of military escalation in the South China Sea. While the existence of norms does not guarantee that they will be followed, strong international norms can be a strong deterrent to countries wanting to be seen as responsible regional or international actors, as China purports to be, or leaders, as the U.S. sees itself.
Norms or rules are followed when written so that they are in the best interests of parties to do so. Regarding maritime, air and space agreements, the challenge for negotiators is to focus on common interests and build on them. It also, however, assumes a genuine interest in all parties involved in reaching an agreement. The U.S. appears to have that genuine interest regarding a maritime and air agreement, but not space. China appears to have that genuine interest in the establishment of norms regarding space, but less so in establishing or abiding by a maritime and air agreement. Yet, after China’s 2007 ASAT test and the condemnation it consequently suffered, China stopped outright ASAT testing, and began testing ASAT technology through missile defense tests, as do the U.S. and India, and without creating dangerous debris. Learning did occur based on not wanting to violate international norms, evidencing their importance. The hypocrisy of picking and choosing when to support a rules-based regime, and when to follow rules in place, serves only to create skepticism about how responsible a regional or international actor China is and doubts about the international leadership role of the United States. The hypocrisy of both countries’ actions do not escape others.
Joan Johnson-Freese is Professor of National Security Affairs at the Naval War College. The views expressed here are those of the author only and do not represent the U.S. Department of Defense, the U.S. Navy, or the Naval War College.