Forty-nine ships from 22 countries, including China, are currently participating in the Rim of the Pacific (RIMPAC) maritime training exercises off the coast of Hawaii. Submarines and aircraft have joined them. But last Friday, an electronic display map of the operating zone showed a fiftieth ship in the middle of the exercise: an uninvited Chinese surveillance ship. The U.S. Navy (USN) has since confirmed that the vessel is a Dongdiao-class Auxiliary General Intelligence (AGI) – one of the Chinese Navy’s three most advanced spy ships, designed to gather electronic and communication information from nearby ships and aircraft, as well as the land-based military facilities that blanket Hawaii.

For the first time since the RIMPAC exercise began in 1971, China is an official participant. After receiving an oft-repeated top-level invitation to join, Beijing sent 1,100 official personnel, supply ship Qiandaohu, missile frigate Yueyang, missile destroyer Haikou, and hospital ship Peace Ark to Hawaii. That gives China a larger presence than any participant save the host. The Dongidao AGI was not invited, and is not associated with RIMPAC – though the USN has been monitoring the ship’s movement since its arrival. But last Friday night the spy ship’s large radomes were positioned directly south of Oahu, near the USN’s Ronald Reagan Strike Group and the main body of ships joining the drill.

The unprecedented decision to send a surveillance vessel while also participating in the RIMPAC exercises calls China’s proclaimed stance on international navigation rights into question – and threatens to undermine the warming military relationship between the U.S. and China.

Why Here? Why Now?

In fairness, everyone enjoys a trip to Hawaii. From an intelligence collection perspective, however, the international exercise presents a golden opportunity. Surveillance vessels monitor electronic signals and communications in order to uncover technical secrets – for example, the frequencies of air defense radar – as well as valuable procedural information about other navies. Drills put a broad range of naval and technical operations on display, thus creating perfect targets for intelligence gathering.

During the Cold War, the U.S. and Soviets were known for spying on each other’s exercises. More recently, Beijing sent what U.S. Pacific Fleet spokesman Captain Darryn James called “a similar AGI ship” to Hawaii to monitor RIMPAC 2012 – though that year, China was not an official participant in the exercises. The international nature of RIMPAC only adds to its appeal: twenty-two-countries-worth of operations and communication approaches are on display off Hawaii’s coast right now, creating a veritable treasure trove for intelligence collection, and a perfect place to practice collection techniques. Beyond the drills themselves, Hawaii hosts a number of military installations that China can monitor.

China’s Dongdiao-class AGI appears to be well suited for the task. The three hulls in the class are all specialized intelligence collectors, with radar antennae, surveillance equipment, and tracking capabilities. They boast enormous spherical radomes resembling mounted soccer balls full of sensors, including radar and optical tracking systems. The AGI monitoring RIMPAC right now is no camouflaged, converted fishing trawler like the Soviet spy ships of the Cold War era: it is a clearly-dedicated surveillance vessel. Its technical capabilities aside, the fact that it is not associated with RIMPAC frees it to concentrate on intelligence collection, while the other four People’s Liberation Army Navy (PLAN) ships focus on cooperative exercises.

In 24 RIMPACs since 1971, Capt. James documented by email, “this is the first time a nation has ever sent a surveillance ship near Hawaii while also having invited ships participating in the RIMPAC exercise.” There is nothing illegal about doing so. But civilian spectators and government officials are calling the move rude and aggressive—precisely the sort of technically legal but politically irritating action that, if pursued by the U.S., China would publicly condemn as undermining strategic trust. Etiquette aside, the spy ship’s presence appears inconsistent with China’s stance on military activities in Exclusive Economic Zones (EEZs). The PRC government actively and loudly opposes the presence of foreign surveillance ships, particularly those of the U.S., in its own claimed EEZ. In a string of incidents since 2001 – including the highly publicized March 2001, March 2009, and May 2009 confrontations with the USN ships Bowditch, Victorious, and Impeccable – Chinese vessels and aircraft have harassed American surveillance ship operating, legally, in China’s EEZ. That Beijing’s AGI is currently stationed off the coast of Hawaii suggests either a double standard that could complicate military relations between the United States and China, or that some such surveillance activities are indeed legitimate – and that China should clarify its position on them to avoid perceptions that it is trying to have things both ways.

American and International Responses

In its response to the Chinese vessel’s presence, the USN has shown characteristic restraint. Official American policy permits surveillance operations within a nation’s EEZ, provided they remain outside of that nation’s 12-nautical mile territorial sea (an EEZ extends from 12 to 200 nautical miles unless this would overlap with another nations’ EEZ). U.S. military statements reflect that position unambiguously. Capt. James stated that the U.S. is monitoring China’s AGI, in part to ensure that it does not present a safety or operational hazard.

That consistent policy stance and accompanying restraint have characterized the U.S. attitude toward foreign surveillance activity since the Cold War. Then, the Soviets were known for sending converted fishing ships equipped with surveillance equipment to the U.S. coast, as well as foreign bases, maritime choke points, and testing sites. The U.S. was similarly restrained in 2012, when China first sent an AGI to observe RIMPAC. The Department of Defense’s 2013 report on China’s military simply stated: “the PLA Navy has begun to conduct military activities within the Exclusive Economic Zones (EEZs) of other nations, without the permission of those coastal states. Of note, the United States has observed over the past year several instances of Chinese naval activities in the EEZ around Guam and Hawaii. One of those instances was during the execution of the annual Rim of the Pacific (RIMPAC) exercise in July/August 2012. While the United States considers the PLA Navy activities in its EEZ to be lawful, the activity undercuts China’s decades-old position that similar foreign military activities in China’s EEZ are unlawful.”

However, observers outside of the U.S. naval establishment argue that, if only from an etiquette standpoint, the situation is very different now that China is an official participant in RIMPAC.  One civilian expert who witnessed the event described China’s move to us as a “rude decision,” and compared it to “inviting a friend over for dinner and then having their buddy break in your backdoor to rob you.”

At least one government official agrees. Congressman Randy Forbes (R-VA), chairman of the House Armed Services Subcommittee on Seapower and Projection Forces, said in a statement that China “chose to disrespect the 20 other international participants [of RIMPAC] by sailing an intelligence gathering ship directly into the middle of the exercise.”

Brad Glosserman, Executive director of the Pacific Forum Center for Strategic and International Studies in Honolulu, expressed concerns of his own: “Is it a poor PR move?” Yes,” he said. “Am I surprised? No.” Glosserman added that “Chinese behavior is proving increasingly inexplicable in recent weeks.”

And international sentiment appears to be in line with that of American experts. Ben Schreer, a senior analyst for defense strategy at the Australian Strategic Policy Institute, holds that China’s move “sends a bad signal. There was a lot of good will on the American side that said, ‘despite what you have been doing in the East and South China Sea recently, we invite you to this prestigious exercise and what you do is blatantly put this spy ship in the area.'”

Per Rostad, commanding officer of the Royal Norwegian navy’s Fridtjof Nansen, puzzled that the dispatch of a surveillance ship “is a bit novel when you [already] participate in an exercise with participating units.”

No Bureaucratic Accident

Politically speaking, the decision to send a fifth, uninvited ship is indeed a curious one. China’s participation in RIMPAC this year represents a significant warming in Sino-American military relations, and one that was far from assured.  In his statement on Friday, Forbes said “it was already a stretch to reward Beijing with an invite to such a prestigious event like RIMPAC,” citing pointed disagreements over freedom of navigation and the peaceful resolution of territorial disputes.

And, according to Sr. Capt. Zhang Junshe, deputy director of Naval Military Studies Research Institute – the PLAN’s strategic think tank – PLAN vessels’ participation in exercises breaks the unwritten rule that countries joining RIMPAC for the first time play only an observational role. In a June 24th article in People’s Daily, he attributed that rule bending largely to American goodwill, and stressed the importance of building momentum in the China-U.S. military relationship.

Moreover, the AGI’s presence in the middle of the RIMPAC drills comes at a time when China continues to seek U.S. buy-in to its concept of “new-type great power relations” – including on the Navy-to-Navy level. PLA Chief of General Staff General Fang Fenghui declared on July 8 that the currently cordial relations between the U.S. and Chinese militaries had not come about easily, and that both sides ought to protect those ties. He warned against introducing “new factors of interference” into the military relationship.

 PLAN Deputy Commander Admiral Xu Hongmeng stated on July 5th that China’s involvement in RIMPAC is an important part of efforts to build a new model of relations between China and the United States and their militaries. In an even clearer statement, Zhao Xiaogang, drill director of the Chinese fleet, described the PLA Navy’s goals for RIMPAC as improving bilateral military relations with the U.S., deepening cooperation and communication with foreign navies, and demonstrating the PLA’s willingness and ability to protect world peace, security, and stability.

As odd as the decision to send the Dongdiao AGI might be, it appears to have been very much premeditated and coordinated. This was no accident of bureaucratic stove piping. The international drills offer an ideal occasion for intelligence gathering, and the specific vessel being deployed implies a high level of government backing. While Captain James declined to specify the precise hull number of the AGI in question, he did confirm that it was Dongdiao-class. The three hulls in that class are subordinate to the PLA, not the State Council—as is the case for the China Coast Guard, which is consolidating under the State Oceanic Administration. And recent incidents suggest that the PLAN is capable of close coordination with China’s maritime law enforcement agencies to further specific national objectives. For example, in 2009 a group of Chinese ships and aircraft joined together to harass USNS Impeccable in the South China Sea where it was legally conducting surveillance operations. The vessels that took part in the operation –in a highly coordinated manner – were from the PLAN, the State Oceanic Administration, and the previously separate Ministry of Agriculture Fisheries Law Enforcement Commission. A government-controlled “fishing vessel” led the harassment, attempting to hook Impeccable’s towed-array sonar with a grappling hook.

Moreover, RIMPAC’s very nature suggests that any action relating to it would have been prioritized and coordinated. That China is participating in this year’s exercise is no small matter. It has been trumpeted in the Chinese media, and has thrown the PLAN into the center of foreign media’s RIMPAC coverage. Chinese policy-makers are well aware of this. They would hardly let matters relating to the exercises slip through the cracks. And the existence of the 2012 precedent means that there would be no first-time policy confusion behind the dispatch of this AGI. The USN itself was not surprised, as Capt. James attested.

Beijing’s Logic: “I Demand Freedom from You in the Name of Your Principles. I Deny It to You in the Name of Mine.”

China has, then, sent a surveillance ship to observe RIMPAC in what appears to be a decidedly intentional, coordinated move – and in a gesture that appears to contradict previous Chinese policy regarding surveillance and research operations (SROs). The U.S. supports universal freedom of navigation and the right to conduct SROs in international waters, including EEZs, hence its restraint when responding to the current presence of the Chinese AGI. But the PRC opposes such activities, particularly on the part of the U.S., in its own EEZ.

The first major such case erupted on March 23, 2001 when Chinese ships and aircraft harassed the U.S.N.S. Bowditch. The oceanographic survey ship was carrying out routine military survey operations in the Yellow Sea – in part of China’s claimed EEZ – when a Chinese frigate aggressively ordered it to leave the area. Only nine days later, on April 1, a Chinese fighter flew into a USN EP-3 electronic surveillance aircraft, forcing it to make an emergency landing on Hainan Island. The U.S. aircraft was flying in international airspace.

In 2009, both the U.S.N.S Victorious and Impeccable were also harassed while conducting survey and surveillance activities in China’s claimed EEZ. On March 4, as Victorious operated legally in the Yellow Sea, a Fisheries Law Enforcement Command ship repeatedly flashed a high-intensity spotlight over the ship, illuminating its length. Without warning, and in the dark, the Chinese ship then crossed ~1,400 yards away from Victorious’ bow. The next day, the harassment of Impeccable began. On March 5, a Chinese frigate crossed its bow at a range of only ~100 yards. On March 7, a PRC AGI radioed that the U.S. ship should leave “or suffer the consequences.” And on March 8, five Chinese vessels surrounded and harassed the Impeccable as it operated in the South China Sea, about 75 miles from the Chinese coast.

SS George Washington was similarly harassed in the fall of 2010, as was U-2 Intercept in June, 2011. And in July of 2013, the Impeccable was once more confronted by a China Maritime Surveillance ship as it operated in international waters.

How then to reconcile the RIMPAC AGI with China’s stand on surveillance activities? China maintains that its current actions are fully legal, and that there is a distinct difference between its operations off Hawaii and those of foreign powers in its EEZ. The PLAN’s designated point of contact declined to provide information and directed inquiries to China’s Defense Ministry. In a faxed statement to Reuters, the Defense Ministry stated that Chinese vessels had the right to operate “in waters outside of other country’s territorial waters,” and that “China respects the rights granted under international law to relevant littoral states, and hopes that relevant countries can respect the legal rights Chinese ships have.” It did not elaborate.

As a recent Global Times article hinted – China’s position on military activities in EEZs is based on a legal reading that stresses the importance of domestic laws. According to China maritime legal specialist Isaac Kardon, China interprets the EEZ articles in the United Nations Convention on the Law of the Sea (UNCLOS) as granting a coastal state jurisdiction to enforce its domestic laws prohibiting certain military activities – e.g., those that it interprets to threaten national security, economic rights, or environmental protection – in its EEZ. China’s domestic laws include such provisions, while those of the United States do not. Those rules would allow China to justify its seemingly contradictory approach to AGI operations – or, as Kardon put it, “to have their cake and eat it too.” Therefore, under the Chinese interpretation of UNCLOS, its actions are neither hypocritical nor illegal – yet do not justify similar surveillance against China.

Here, noted legal scholar Jerome Cohen emphasizes, the U.S. position remains the globally dominant view –  “since most nations believe the coastal state has no right to forbid surveillance in its EEZ, they do not have domestic laws that do so.” This renders China’s attempted constraints legally problematic, since “international law is based on reciprocity.” To explain his interpretation of Beijing’s likely approach, Cohen invokes the observation that a French commentator made several decades ago in the context of discussing China’s international law policy regarding domestic legal issues: “I demand freedom from you in the name of your principles. I deny it to you in the name of mine.”

Based on his personal experience interacting with Chinese officials and legal experts, Kardon adds, “China is increasingly confident that its interpretation of some key rules and – most critically – its practices reinforcing that interpretation can over time shape the Law of the Sea regime to suit its preferences.”

But China is not putting all its eggs in that basket. There are increasing indications that it is attempting to promote its EEZ approach vis-à-vis the U.S. not legally but politically. “Beijing is shifting from rules- to relations-based objections,” Naval War College China Maritime Studies Institute Director Peter Dutton observes. “In this context, its surveillance operations in undisputed U.S. EEZs portend an important shift, but that does not mean that China will be more flexible in the East or South China Seas.” The quasi-authoritative Chinese commentary that has emerged thus far supports this interpretation. As Sr. Capt. Zhang Junshe – the same authority who attributed China’s unprecedented RIMPAC presence and role to American goodwill, and stressed the importance of improving bilateral military relations – stated in a July 21 interview:

U.S. media has hyped China’s issues with ‘surveillance.’ In fact, America’s high-frequency monitoring and wide-range surveillance of China have reached alarming levels. From the Yellow Sea to the East China Sea; from Hainan Island to the Paracels, the U.S. has sent aircraft, naval reconnaissance aircraft, submarines, and even ocean surveillance vessels. Every year America conducts hundreds of surveillance activities against China – a level which exceeds that of reconnaissance missions conducted against the Soviet Union during the Cold War. Sometimes, American and Japanese surveillance activities involve harassment, and even a level of danger.

Zhang’s statement – virtually unique in Chinese officially connected commentary thus far in its specificity and substance – suggests that Beijing will increasingly oppose U.S. SROs on the grounds that they are incompatible with the stable, cooperative Sino-American relationship that Beijing and Washington have committed to cultivating. The Obama Administration must ensure that the “new-type Navy-to-Navy relations” that Chinese Chief of Naval Operations Admiral Wu Shengli has advocated to his U.S. counterpart does not contain expectations that U.S. SROs will be reduced in nature, scope, or frequency.

Monitoring the Next EEZ Activities

China’s conducting military activities in a foreign EEZ implies that, under its interpretation, some such operations are indeed legal. It therefore falls to China now to clarify its stance – to explain why its operations are consistent with international law, and what sets them apart from apparently similar American activities.

If China does not explain away the apparent contradiction in a convincing fashion, it risks stirring up increased international resentment – and undermining its relationship with the U.S. Beijing is currently engaging in activities very much like those it has vociferously opposed. That suggests the promotion of a double standard untenable in the international system, and very much at odds with the relationships based on reciprocity, respect, and cooperation that China purports to promote.

 Moreover, there already exists international concern over China’s rise and its potential for destabilization – a concern generally linked to the perception of Beijing as abandoning previous restraint and reassurances as its power permits. Those worries have grown amid China’s often bullying rhetoric and actions toward its neighbors, particularly vis-à-vis island and maritime claims disputes. One international affairs observer encapsulated this sort of concern provocatively to us: “International law [is] based on reciprocity, [the] tribute system not so.”

The AGI’s presence risks adding fuel to this fire – and, if Beijing does not legitimate its actions, risks undermining the progress in the Sino-American relationship that allowed China to join in the RIMPAC exercises. Congressman Forbes argues that the AGI’s presence is reason not to invite China back to RIMPAC 2016. “It is clear that China is not ready to be a responsible partner and that their first trip to RIMPAC should probably be their last,” he said. With Republicans within striking distance of taking both houses of Congress this fall, both the Obama Administration and China will have to take such concerns seriously.

If, however, China chooses to remain silent, it will likely have to accept – at least tacitly, without harassing – U.S. surveillance missions in its claimed EEZ. So, as we watch for clarification on Beijing’s legal interpretation, it will also be important to watch for indications regarding the next SROs in China’s EEZ. As to who can watch that space: when precisely that occurs, and what exactly materializes, may not be readily known to open source researchers – particularly if Sino-American interaction therein proceeds without major incident. Interested parties should take advantage of the fact that the U.S. believes in allowing public affairs officers like Capt. James to provide substantive and timely information so that the rest of us are not left in the dark.

Andrew S. Erickson is an associate professor at the United States Naval War College and an associate in research at Harvard’s Fairbank Center. He blogs at www.andrewerickson.com. You can follow him on Twitter: @andrewserickson. Emily de La Bruyere is a junior at Princeton and an intern at the United States Naval War College. The views expressed here are theirs alone, and do not represent the policies or estimates of the U.S. Navy or any other organization of the U.S. government.

Image: Flickr/U.S. Pacific Fleet/CC by-nc 2.0