This is a large topic, which can be looked at from many angles. The focus I have chosen is the risk of accidental war. My thinking is that if this can be prevented, maritime security will be improved. This discussion is without prejudice to the myriad of wider legal, political and social claims that accompany the rise of China and its relationships. This discussion works on the assumption that of all the reasons to start a major war, the most stupid is by accident. Starting a war because actions such as war-games or missile launches were misinterpreted or provocative actions between opposing militaries in international spaces got out of control, would be tragic.
The first, and perhaps most critical tool of all, is that leaders must be able to communicate directly, quickly and continuously. This is the ‘hotline’ idea. Although having a direct link does not mean that a phone will be answered or the conversations on it sincere, it goes provide the option to de-escalate quickly and avoid confusions that can be misunderstood. This tool emerged in 1963 as a key instrument to prevent the risk of nuclear war, following the almost collision over Cuba. Since that point, best practice had this advance with new technologies to be continually rolled out, and add in a second hotline, providing military to military links. This is very important so that those at the forefront of clashes, can control situations directly. For example, in 2016 a hotline was created between the United States and Russian militaries which were both operating in Syria to avoid any mistakes, and in 2022, a specialist line, again, military to military, was created for direct communications between Russia and the United States over the war in the Ukraine, to ensure close encounters or mishaps do not lead to an unplanned escalation.
On this theme, there is good news. China is a fan of such hotlines, especially at the military to military level. They have them with Russia; the United States, South Korea; Vietnam Taiwan, with a hotline between Chinese and Japanese militaries is scheduled to start in 2023. Elsewhere in the region, the news is not so great. Senior authorities in India and Pakistan have a hotline, but there is no corresponding one between their militaries. North and South Korea have a collection of 33 communication lines that connect them, with the first dating back to 1971, but all of these, including the reciprocal head-of-state hotline are subject to periodic silences by the North, when tensions are high, before restarting when it suits the political mood of the North, flickering on and off. As challenging as this is, there is no hotline with the United States and North Korea.
The second rule, is with notifications of forthcoming events, and missile launches in particular. Few things are as scary as potentially nuclear missiles transiting, without consent, over another country, as has recently may have occurred with both Taiwan and Japan. This is a complicated area, as although each country has full sovereignty over its territorial airspace, outer space (above 100 kilometres) is not subject to national appropriation’, as in, other states can freely use it. The problem is when that use involves missiles, and one side could be scared into fearing an attack could be taking place.
The rule, as originally agreed by the Soviets and Americans in 1971 was that ‘each Party undertakes to notify the other Party in advance of any planned missile launches if such launches will extend beyond its national territory in the direction of the other Party’. This rule was updated in 1988 to specifically cover notifications (24 hours in advance, date, place and number) of launches of intercontinental ballistic missiles and submarine-launched ballistic missiles. The notification rule became part of the primary nuclear agreement between Russia and the United States. While such notification is considered good practice amongst some voluntary UN codes, the only other binding missile notification agreement is between Russia and China.
The first problem with the missile notification regime is that with the two agreements that do exist, they do not cover short-range missiles, booster-glide missiles or missile defence systems. The second problem is only two binding agreements exist. China and United States do not directly share launch notification information with each other, while the other nuclear powers of India, Pakistan, North Korea, France, Britain and Israel, to say nothing of the powerful, but not yet nuclear powers, like inter alia, Japan, Germany and Iran are all silent. Some like North Korea and Iran even violate the missile prohibitions directly placed upon them by the Security Council.
Rules of the Ocean and Air: Outside of the Indo-Pacific
The third area where accidental war can break out is when military naval or aviation assets bash into, provoke or dangerously game the opposition. The basic rules for both the ocean and the air, are set out in generic documents which mandate the responsibility of all nations towards safe practices. With aircraft, the 1944 Convention on International Civil Aviation establishes important safety standards and “rules of the road” for civilian aircraft, but its terms only require “state aircraft,” such as military aircraft, to operate with “due regard for the safety of navigation of civil aircraft” (emphasis added). With maritime vessels, the general rule of ensuring safety at sea is found in the United Nations Convention on the Law of the Sea1 and while accompanying details are within the international Regulations for Preventing Collisions at Sea.2 These cover all aspects of maritime safety such as with inter alia, visibility, lighting, speed, communication and rules to avoid collisions.
In both instances of land and sea, the military forces of countries are given large exemptions. The result, is that although there is broad obligations of safety, the details around these had to be set out in separate arrangements.
The Soviet-United States Experience
The first set of rules, to prevent naval assets and their associated air wings starting a war by accident was the 1972 bilateral Incidents On and Over the High Seas Agreement as signed by the United States and Soviet Union. While the 1972 agreement covered military vessels, in 1973, this was extended to also cover the non-military ships of each Party. In addition to giving advance warning to each other, via radio broadcasts, not less than 3 to 5 days in advance, ‘of actions on the high seas which represent a danger to navigation or to aircraft in flight’,3 and the obligation that their military ships must ‘strictly observe’4 the COLREGs, this agreement set down additional rules on how to avoid accidental clashes.
When in close proximity, both sides are to ‘remain well clear to avoid risk of collision’,5 avoiding hindering each others formations,6 not conduct manoeuvres in heavy traffic, or traffic regulated areas.7 Surveillance vessels were expected to, ‘take positive early action so as, in the exercise of good seamanship [and] not to embarrass or endanger ships under surveillance’.8 When in sight of each other, they must be able to communicate via flag, sound, and/or light, in accordance with, inter alia, the International Code of Signals.9 At night, or in conditions of reduced visibility, flashing light should be used to inform ships of manoeuvers which may hinder the movements of others or involve a risk of collision.10 Ships must, ‘not simulate attacks by aiming guns, missile launchers, torpedo tubes, and other weapons in the direction of a passing ship of the other Party, not launch any object in the direction of passing ships of the other Party, and not use searchlights or other powerful illumination devices to illuminate the navigation bridges of passing ships of the other Party’.11 When submarine exercises are being conducted, ‘appropriate signals prescribed by the International Code of Signals to warn ships of the presence of submarines in the area’ must be used.12 Remaining ‘well clear’ of ships practicing landing or replenishment was emphasised.13 Of note,
Commanders of aircraft of the Parties shall use the greatest caution and prudence in approaching aircraft and ships of the other Party operating on and over the high seas, in particular, ships engaged in launching or landing aircraft, and in the interest of mutual safety shall not permit: simulated attacks by the simulated use of weapons against aircraft and ships, or performance of various aerobatics over ships, or dropping various objects near them in such a manner as to be hazardous to ships or to constitute a hazard to navigation.14
Further, ‘aircraft … flying over the high seas in darkness or under instrument conditions shall, whenever feasible, display navigation lights’.15 Similarly, when launching or landing aircraft, when in sight of the other, ‘proper signals’16 should be used in advance of what is occurring.
On the positive side, this agreement has been automatically renewed every three years since concluded, and will continue to do so unless one side denounces it.17 Also good, although the compliance mechanism of these rules is in the sharing of information of incidents between the two sides, with each other and regular meetings,18 the two sides have continued to meet to discuss matters. While it evolved to cover the specific rules of Innocent Passage, the goal of setting ‘concrete fixed distances’19 between ships, aircraft, and ships and aircraft, never materialised; nor has it updated itself from the risks as seen in 1972, despite military technologies being generations away. Finally, although at least eleven NATO countries also have individual bi-lateral agreements with Russia, modelled on the 1972 template, almost a dozen NATO members have no such agreements with Russia. Nor is there a generic agreement with NATO on this topic, and the chances of that, as the overall relationship falters, is unlikely.
As the Cold War started to thaw, in 1989, two new agreements were added. The first involved Reciprocal Advance Notification of Major Strategic Exercises. This involves a requirement of 14 days advance notification of major strategic-forces exercise that includes the participation of heavy bombers. Although no definitions of ‘major’ were included, and this was only bilateral between the Soviets and the Americans, it was a step forward.
The second was the Agreement between the two on the Prevention of Dangerous Military Activities (DMA) was concluded. This was designed to reduce the possibility of incidents becoming dangerous, to resolve incidents peacefully and to improve safety of their personnel and equipment. This broadened the scope of military activities for which the two countries would develop standards of behaviour, beyond the ocean. Canada and Greece are the only two other countries to have DMA agreements with Russia, with the last concluded in 1991. Overall, the Parties pledged that they would (‘shall’) take measures to ensure expeditious termination and resolution of peaceful means, without resort to the threat of use of force, or any incident which may arise as a result of dangerous military activities.20 The importance of direct communication to prevent, and resolve, potentially dangerous military activities was clear.21 Details for establishing and maintaining communication channels, with various radio frequencies for different military platforms (sea, air and land) were specified and these were to be tested to ensure reliability.22
In terms of particular rules, without sacrificing the rights of self defence,23or rights of innocent passage with the ocean,24 when in close proximity in times of peace, four areas of concern were sketched out.25 These included not using lasers in a potentially harmful way,26 hampering the other in a potentially damaging way in a ‘Special Caution Area’27 or interfering with their command and control networks.28 Rules were also set down for preventing the entry into each others’ national territory, to which ‘great caution and prudence while operating near the national territory of the other Party’ was agreed.29 If, as a result of a force majeure or as a result of unintentional actions, one side ended up in the national territory of the other, special procedures were set down. Specifically, they must communicate with the other side, in accordance with set down protocols.30 The information explaining where and why it has happened must be direct and continuous.31 Upon receiving this information, the visitors should be assisted, as possible.32 The visitors shall either depart or go to a directed location,33 and if at a designated location, they shall be helped, cared for, their equipment protected, and helped to leave as soon as possible.34 To promote the objectives of the Agreement, a Joint Military Commission was created.35
The end of the Cold War involved a plethora of accompanying treaties. These included the Intermediate Nuclear Forces Agreement and the first START treaty. The first removed medium range nuclear missiles from Europe, and the second, set new limits on total nuclear forces for both sides. These were accompanied by the Conventional Armed Forces in Europe Treaty of 1992, which sets equal limits on the number of tanks, armoured combat vehicles, heavy artillery, combat aircraft and attack helicopters that NATO countries and then-Warsaw Pact members could deploy between the Atlantic Ocean and the Ural Mountains. It was guided by the Joint Consultative Group. To help build confidence, the Open Skies Treaty of 1992 permitted each state-party to conduct short-notice, unarmed reconnaissance flights over the others' entire territories to collect data on military forces and activities. An accompanying Vienna Document on Confidence- and Security-Building Measures was concluded. This is a series of agreements on confidence and security-building measures between the states of Europe, including Russia. This included an annual exchange of military information about forces located in Europe; Notifications for risk reduction including consultation about unusual military activities and hazardous incidents; prior notification and observation of certain military activities, such as large-scale exercises; and compliance and verification by inspection and evaluation visits. The first iteration of this document was in 1990, and the last, and current one, in 2011. This is based within the Organization for Security and Co-operation in Europe.
Further confidence building measures were the 1997 Founding Act on Mutual Relations, Cooperation and Security between Russia and NATO. This was supplemented with the NATO-Russia Council, which was created in 2002, which spawned specific initiatives like the Cooperative Airspace Initiative (CAI). This mechanism was designed to create a more reliable system of communication and coordination between Russia and NATO in order to prevent dangerous incidents in the air involving both civilian and military aircraft. The CAI was intended to provide increased transparency, early notification of suspicious air activities, including loss of communications, and rapid coordination and joint responses to security incidents in European airspace. This was to be achieved through real-time exchange of radar tracks and a shared picture of air traffic, dedicated lines of communication and agreed procedures for notification and coordination. Further good work included the U.S.-Russian Arms Control and International Security Working Group established in 2009 for enhancing stability and transparency; assessing common threats, and the U.S.-Russian Working Group on Cooperation on Information and Communications Technology Security which was established 2013, tasked to increase transparency and reduce the possibility that a misunderstood cyber incident could create instability or a crisis in the bilateral relationship.
The relationship between Russia and the west collapsed in 2014. The expansion of NATO, the development of a missile shield, wars in Chechnya and Georgia for Russia and Afghanistan and Iraq for the United States and allies, produces an environment where trust disappeared. The cumulative result was that when Russian intervention began in the Ukraine in 2014, most of the above initiatives collapsed. They were suspended, ignored and walked away from, or cancelled. Thus, while the CFE and the Cooperative Airspace Initiative was suspended, the INF and the Open Skies Agreements were denounced, while the Vienna Document was, when significant demands were made, simply ignored by Russia, as the relationship with NATO turned very sour, as Russia became recognised as a direct threat to Euro-Atlantic security.
It is important to note that although the Russian relationship with the Europeans has soured, the Cold War agreements made with the United States stand. Moreover, the two sides have continued to cooperate when necessary, despite their disagreements in other parts of the world. For example, the Memorandum of Understanding of Air Safety in Syria, signed by defence officials of Russia and the United States (also covering Coalition aircraft) in October 2015 was a subtle but effective way of addressing the lack of transparency between the U.S. and Russian militaries. Although it did not establish zones of cooperation, intelligence sharing or any sharing of target information, it did contains specific protocols for air crews to follow to avoid an inadvertent clash over Syria, calling for U.S. and Russian aircraft to maintain a safe distance, and created a ground communications link between the two sides in the event air communications fail. The US also disclosed where their Special Forces were in Syria, so they were not bombed; and a working group to discuss any implementation issues was formed. This was followed by an agreement between Russia and the United States of early November 2017 reportedly agreed on the Euphrates River as a dividing line in Syria and on a system of advance notifications prior to any river crossings.
Military Safety in the Indo Pacific
It was only at the end of the twentieth century that China the United States agreed to start working together on a mechanism to strengthen maritime military safety. The fruits of this work, the Code for Unplanned Encounters at Sea (CUES) was unveiled in 2014. The CUES is the Indo-Pacific version of the 1972 essentially European Incidents On and Over the High Seas Agreement.
The CUES ended up being offered to many beyond China and the United States,36 especially in the western Pacific.37 To date, twenty one countries in the western Pacific have joined this voluntary, soft, non-treaty, no arbitration, agreement,38 including Australia, Canada, China, France, Japan, New Zealand, Russia, Singapore and the United States. Taiwan, a non-signatory state also reportedly implements the agreement. The Code, which covers naval ships, submarines and auxiliaries,39 aimed to be a ‘a coordinated means of communication to maximise safety at sea’40 when, ‘naval ships or naval aircraft encounter each other in an unplanned manner’.41 It did not seek to supersede international civil aviation rules, international agreements, or the rule that naval ships have full sovereign immunity.42 It sought to dovetail with many of these, including the COLREGS,43 but offered additional guidance, beyond these.
The fundamental rule with the CUES was that, ‘Any action to avoid collision shall, if the circumstances of the case permit, be positive, made in ample time and with due regard to the observance of good seamanship’.44 Commanders were to be ‘aware’ of the danger of a single ship approaching vessels in formation or convoy, so closely, that a collision was possible. The rule was that ‘single naval ships should adopt early measures to keep out of the way of a formation or a convoy’.45 Manoeuvres in internationally adopted traffic separation schemes should not normally be conducted, especially if they interrupt the flow of traffic.46 A ‘safe speed’ to avoid collisions should be used,47 and ‘safe distance’ (dependent on, inter alia, visibility, traffic density, manoeuvrability) should be maintained. When submarines are being used, ‘consideration’48 of the use of appropriate signals to indicate their presence should be given. Rules for breakdowns, such as loss of steering or engines, were to be by given communication warnings.49
‘Assurance Measures’, of which a ‘prudent commander might generally avoid’ include, ‘simulation of attacks by aiming guns, missiles, fire control radars, torpedo tubes or other weapons in the direction of vessels or aircraft encountered’.50 Unless in times of distress, the discharge of signal rockets, weapons or objects in the direction of vessels or aircraft encountered.51 Illumination of the navigation bridges or aircraft cockpits;52 the use of a laser that could cause harm or damage53 or ‘aerobatics and simulated attacks in the vicinity of ships encountered’.54 Interference with command and control systems may also constitute a safety hazard.55
Considerable detail was applied to communications procedures for naval aircraft, surface vessels and even submarines. The procedures were recommended, but not obligatory.56 These covered those by flag, sound, light and radio, with detailed rules and procedures of how they were to communicate, right down to recommended vocabulary and terminologies.
In 2015, the United States and China agreed on rules for air-to-air military encounters. This became Annex III to the 2014 CUES Agreement. This was to supplement the ICAO rules, to the ‘extend practicable when compatible with mission requirements’.57 Military aircraft which encounter each other ‘should ensure navigational safety through professional airmanship’58 of which the use of appropriate communications, was key. English was to be used, in ‘plain language’ along specific channels.59
‘Active communication’ when the two sides encountered each other was encouraged, and they ‘should’ respond to each other, ‘if mission permits’ of which there was a pilots discretion.60 Although communication was encouraged, these rules ‘did not intend to obligation military aircraft to communicate’.61 Communication ‘may’ include, but was not limited to, clarification of identity, maneuvering intentions and events pertaining to flight safety.62 Further, "Military aircrew should refrain from the use of uncivil language or unfriendly physical gestures."63
The general flight rules called for the ‘safe separation between the military aircraft of both Sides’.64 ‘Due regard for the safety of the other aircraft’ was recommended, and ‘Reckless maneuvers’, especially when approaching each other, were to be avoided, especially by the aircraft initiating an approach for matters of identification, verification or escort.65 Particular rules to ‘establish mutual trust in the air’ include avoiding actions which impinge the ability of the other to manoeuvre safely, approaching at an ‘uncontrolled closure rate’, the use of lasers that could harm or damage; actions that interfere with launch and recovery, ‘aerobatics and simulated attacks’ and unless for the case of distress, the ‘discharge of rockets, weapons, or other objects’.66 If emergency situations occurred, they were to be de-escalated, especially via communication and separation.67
Rules for ‘Specially Designated Areas’, such as ‘Air Danger’ or ‘Warning Areas’ to which commanders were to issue warnings,68 and should conduct active communications to coordinate safety were also set down. Although one side ‘should refrain from interfering with activities in the applicable area established or declared by the other side’ military vessels and aircraft, ‘always enjoy the rights and freedom of navigation, overflight, and other internationally lawful uses of the sea related to those freedoms’.69
When comparing the Soviet/Russia and the United States examples with those of the CUES, a few differences are obvious. First, the CUES goes further, covering air-to-air, and it language is more contemporary, further away from 1972. However, both sets of rules are limited by considerations such as determination of actual space limits, the use of transponders while in international airspace, and with the Indo-Pacific, the omission of rules around war-games, and rules to deal with emergencies in the territory of the other, and what to do. These same limits are multiplied in the relationship between Pakistan and India, where the gaps are even larger. The lack of a formal commission between all of the interested superpowers to resolve disputes and compliance with the existing rules between militaries on an ongoing basis, is lamentable.
The question this paper sought to ask, was how can maritime security be improved with regards to the risk of accidental warfare in the Indo-Pacific. The answer is that the rules and practice around hotlines is generally good. That with missile launch notifications is weak. Rules to prevent accidents and miscalculations at sea and in the air are, in theory, commendable, but there is considerable room for improvement. However, the largest problem of all, as the Russian-NATO example currently shows us, is not the creation of rules, but the political will to abide by them, when the risk becomes not accidental, but intentional.