Sam Bateman recently reminded us ^[1] that both in the South China Sea and East China Sea incidents involving patrol vessels, warships, military aircraft, fishing and research vessels of the littoral countries are now occurring more frequently. Such incidents, if they got out of hand, could lead to actual conflict.

Sam is right that we can’t just sit pat: what’s needed is to put in place some operational maritime confidence building measures for the East China Sea and the South China Sea. Most importantly, as Sam points out, we need a common interpretation of navigational rights and freedoms in offshore zones and measures to prevent and mitigate the risks of an unfortunate incident between maritime forces.

I agree with Sam that INCSEA came about in different circumstances: there was an increasing number of confrontations ^[2] as the Americans and Soviets ‘tested’ each other at sea and in the air. The provisions of the 1982 UN Convention on the Law of the Sea (UNCLOS) on military activities in the EEZ’s of other countries are ambiguous. But the US argues that there are no provisions in UNCLOS prohibiting such activities. The US position is that those activities are within the meaning and the exercise of the freedoms of the sea, particularly the freedoms of navigation and over flight.

Many Asian countries don’t agree, and argue that states’ activities intended for military purposes in their EEZs aren’t ‘peaceful’ under UNCLOS, and so can’t be undertaken. It’s a fair bet that the US would argue that any proposed guidelines would invite more misunderstandings, and so lead to more confrontations.

Naturally any guidelines for preventing and managing incidents at sea would need to operate without prejudice to any sovereignty claims. States should be decreasing the frequency of patrols in disputed areas by both naval and coastguard ships. Countries should try and use non-naval vessels for law enforcement at sea, and give other countries notice when they’re going to undertake maritime operations. Hot lines and information exchange should be put in place between regional navies and civil coastguards. Normal international law rules for preventing collisions at sea should apply.

Military exercises in the maritime zones of other countries shouldn’t undertake weapons exercises using live ammunition. And foreign warships or aircraft intending to carry out military exercises or war games in the ocean zones of other countries should notify the coastal state, behind the scenes. Countries should accept responsibility for the actions of all their national vessels operating in disputed maritime areas. Agreeing to suitable guidelines will be difficult, but isn’t insurmountable. The Western Pacific Naval Symposium (WPNS) ^[3], has many Pacific navies as members, and a focus on professional naval mastery.

A number of years ago, the WPNS developed a voluntary Code for Unalerted Encounters at Sea (CUES) ^[4]. It’s based on international legal and navigation principles. CUES might serve as an unofficial template for the navies in North Asia as well as the United States, who are all WPNS members.

For most WPNS navies, CUES has been a working document for many years. But the Chinese have refused to accept revisions, even though they acknowledge they’ve been using parts of CUES. They object that the word ‘Code’ in the title of the CUES is ‘viewed as a legal term with binding force’ and that the phrase ‘unalerted encounters’, isn’t properly defined ^[5] (PDF). That will make the WPNS meeting that China will host next year, (that will again consider WPNS endorsing CUES), very interesting.

But beyond CUES, there’s going to be real practical problems in enforcing any agreed guidelines. The guidelines would need to be voluntary, if there’s any chance to put them in place. But that’s not to say that over time, they might acquire some level of regional legitimacy. Some sort of regular regional performance reporting regarding acceptance and implementation of any maritime confidence building guidelines would be useful.

If a state adopted the guidelines, but failed to abide by them in good faith, then other parties that had accepted them would be entitled to withdraw their commitment.

The key objective of any voluntary guidelines would be to prevent maritime incidents or to keep them from escalating: in other words, they’d be a tool in preventive diplomacy. The alternative to such guidelines is to leave the resolution of ocean disputes in our region to the exercise of raw power. But the timely message in Sam’s blog, is that’s a risky approach if we’re to prevent the growing number of maritime incidents in Asia from getting out of hand.

Anthony Bergin is deputy director of ASPI.