Spy_vs_SpyThe recent hullabaloo over a near-miss between planes from the U.S. and China near Hainan Island (China’s Hawaii-ish tropical vacation destination) has brought the usual chest thumping and stupid commentary. Might as well join in.

One of the most perplexing I’ve read comes from a surprising source, The Diplomat, which usually has a higher level of discourse. Nobody’s perfect, I suppose. The offending Op/Ed was penned by Chen Dingding, and the writing was so lame that one reader commented: “It’s August so I know that this article is not an April fools prank.” Ouch.

Chen’s article is set up as a response to apologists of American surveillance activities. OK, fair enough. Let’s see how he approaches the topic:

[T]he key questions are: why was the U.S. spy plane near China’s Hainan island in the first place? What were the intentions of the U.S. spy plane? Was it there for peaceful purposes? Does freedom of navigation mean that you can harm other’s national security?

Before we get Chen’s responses to these questions, let me give it a go:

  • Why was the U.S. spy plane near China’s Hainan island in the first place? Um, “spy plane” kind of gives it away, doesn’t it?
  • What were the intentions of the U.S. spy plane? See #1 above. This is pure speculation on my part, but most likely the spy plane was there to surveil something, perhaps palm trees or facekini-bedecked tourists.
  • Was it there for peaceful purposes? Depends on what “peaceful” means. Methinks that would be a useless argument.
  • Does freedom of navigation mean that you can harm other’s national security? Aren’t these two different issues?

After outlining the “key issues” and setting up specific questions, Chen then completely ignores them, pursuing an altogether different framework and making me wonder whether the outline he no doubt meticulously prepared was eaten by his dog before he got a chance to get a first draft out.

Chen’s new and improved structure is to respond to specific justifications for spy planes. I think.

The first justification many U.S. officials and scholars offer is that spying on China in international space does not violate international law. From a very strict legal point of view, spying activities might not violate international law since international law currently does not explicitly prohibit them (here and here). Still, this does not mean that it is ok to engage in such practices. The ultimate criterion should be whether such spying activities hurt or damage other countries’ national sovereignty or security. If yes, then such activities should be prohibited by international law and states should refrain from engaging in such activities in order to respect other countries.

So he starts off by admitting “Yeah, their number one argument is actually correct.” Apparently he was absent from class the day they covered persuasive writing. And no, I do not think the “Yes, it’s legal, but that doesn’t make it right” statement is all that convincing. You gotta be like Martin Luther King or someone with serious moral authority to pull that sort of thing off.

All that aside, his first substantive point here is that spying should be prohibited if it “harms national sovereignty or security.” Note that the former is a fairly well-established principle in international law, while the latter is whatever nation states say it is. Not an auspicious beginning to an Op/Ed.

The second often-mentioned justification is that the U.S. spy plane was simply exercising the freedom of navigation. This is misleading.

This is where Chen pulls out the “peaceful purpose” argument, essentially saying that if the U.S. was up to no good, then the “freedom of navigation” excuse should be null and void.

Since Chen never really makes a law-based argument, I’m not going to do so either. Instead, I’ll appeal to common sense and feasibility of policy implementation. If you were setting up an international legal system, which of these would you choose as practicable:

1. National borders must be recognized, but activities near those borders may be prohibited if they are determined to be non-peaceful in nature. In determining what isn’t “peaceful,” the national security of the nation whose borders are at issue may be a factor.

2. National borders must be recognized as well as freedom of navigation. As long as those borders are not breached, the intent of nearby planes, trains and automobiles will not be questioned.

Further to the above nonsense, is Chen really serious calling for a debate over whether spying is “peaceful” or not? To the extent that any spying by a government is meant to obtain an advantage over the other country, perhaps none of it is peaceful. I’d just like to know whether Chen considers cyberattacks and commercial espionage to be spying. Maybe it’s only bad when you do it with an aeroplane?

A related, third argument put forward by some U.S. officials is that China is welcome to spy on the U.S. as well. This argument, on the surface, seems fair and transparent. But given the military technology gap between China and the U.S., this is like a big guy with an AK-47 telling a little guy armed with only stones and sticks, “You are welcome to attack me as well.” Thus, this argument is disingenuous at best.

Kind of doubt a government official would say China is “welcome” to spy, but I get the point, silly as it is. Apparently Chen wants nations to approach spying the way that a North American sports league deals with revenue sharing. Does this mean that China does not conduct any electronic espionage on Vietnam as its cyberdefenses are comparatively weak?

Chen ends his “argument” with the statement that since the U.S. was spying on China’s submarines, this harms PRC national security and should be prohibited under international law. This is just short of calling for the prohibition of any nation state activity that harms the interests of China. While this position would no doubt receive a lot of support back home, I’ll go out on a limb and suggest that it has little chance of being the basis of a new international law reform movement.

I can’t tell whether Chen article was an attempt at a legal argument or a normative argument, but it is definitely a poor argument. Look, all spying hurts the other guy. If we want to try and outlaw all spying by nation states, that’s a laudable goal. Go for it, Mr. Chen, I wish you luck. Something tells me that not even Beijing is going to back you up on that one though.

© Stan for China Hearsay, 2014. |
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