Monday 24 November 2008

Rough Waters in the South China sea

Rough Waters in the South China
Sea: Navigation Issues and
Confidence-Building Measures
S U M M A R Y In the wake of a collision between a U.S. spy plane and a Chinese
jet fighter off the coast of Hainan in April 2001, verbal skirmishing between
the United States and China revealed sharply different conceptions of jurisdictional
and navigational principles. These differences persist and will likely be
the cause of future conflicts; they have already caused strife among countries
ringing the South China Sea. Central to these conflicts are the exclusive economic
zones (EEZ) that extend 200 nm into the sea from coastal nations’ baselines.
Created by the UN Law of the Sea Convention, these zones attempt to
accommodate coastal states’ interest in controlling offshore resources and maritime
powers’ interests in maintaining freedom of navigation. But ambiguities in
the Convention’s language combined with coastal states’ proliferating EEZ
claims have created a tinderbox. The situation will remain volatile as long as the
focus remains on jurisdictional disputes. But confidence-building efforts aimed
more narrowly—on practical navigation issues and managing “incidents at
sea”—offer a starting point for first bilateral and then multilateral agreements.
The April 1, 2001, collision between a U.S. spy plane
and a Chinese jet fighter 70 nm off the southeast
coast of Hainan dramatically brought to the world’s
attention an ongoing area of dispute between the
United States and China: the rules governing navigation
in the exclusive economic zones (EEZ) of the
South China Sea. The United States says that its spy
plane was flying over international waters and had
freedom of navigation. China says that it was flying
in China’s EEZ and was subject to the laws and regulations
of China. Though the return of the plane to
U.S. soil brought the incident to an end, the underlying
causes of the dispute remain and similar disputes
can be expected to erupt. China demands that
the United States halt its spy flights off the Chinese
coast, the United States, saying its flights are standard
and legal, resumed the flights in early May.
This dispute, though exceptionally high profile, is
one of many that occur each year on and over the
South China Sea. Conflicts over freedom of navigation
in EEZs are increasing in the South China Sea
—a semi-enclosed sea bounded by China, Vietnam,
the Philippines, Malaysia, Brunei, and Indonesia, in
which extended jurisdictional claims are replacing the
high seas with EEZs. Today, with virtually all travel
through the South China Sea passing through one or
more EEZs, the rules of navigation are frequently
contested. The nations rimming the sea have all had
their disputes, and just as the U.S.-China conflict is
not likely to be the last between those two nations,
there are likely to be further disputes between other
nations, and disputes of increasing intensity. To reduce
the number and intensity of the disputes, a
multilateral confidence-building arrangement focused
on the practical issues of navigation (as opposed to the
territorial issues) would be ideal, but a regional agreement
is most likely to be achieved in increments, with
bilateral agreements paving the way. The agreements
should, while respecting the resource regulations of
coastal states, guarantee freedom of navigation and
regulate the behavior of naval activities in the air and
on the sea in the EEZs. First steps in this direction
were taken in January 1998, when China and the
United States entered into a Military Maritime Consultative
Agreement (MMCA) designed to establish a consultation mechanism comprising annual meetings,
working groups, and special meetings to strengthen
military maritime safety and prevent accidents at sea.
Though a meeting was held in July 1998, the agreement
was shelved by the Bush administration. But the
MMCA could serve as the first step in confidencebuilding
measures; eventually, it could be a model
for a regional agreement.
The South China Sea
The South China Sea is a strategic waterway providing
the key maritime link between the Indian Ocean
and East Asia. Sea lines of communication (SLOCs)
of the South China Sea are a matter of life and death
for the Asia Pacific countries, and SLOC security has
been a fundamental factor contributing to regional
economic development. More than 41,000 ships a
year pass through the South China Sea, more than
double the number that pass through the Suez Canal,
and nearly triple the total for the Panama Canal.
More than half of the world’s annual merchant-fleet
tonnage passes through the straits of Malacca, Sunda,
and Lombok. For the United States, the Malacca
Strait is critical to the mobility and flexibility of its
Seventh Fleet.
But the SLOCs are hardly secure. The provisions
of the UN Law of the Sea Convention (LOSC) relating
to the principle of freedom of navigation are interpreted
variously by different countries. Many navies,
including those of the maritime powers (nations with
blue-water navies), are maneuvering in EEZs of the
South China Sea, where multiplying and overlapping
jurisdictional claims confuse the rules of passage. In
addition, sea piracy and pollution, which observe no
national borders, are on the increase. The inability
to control them threatens SLOC security.
LOSC, EEZ, and Freedom of Navigation
The UN Law of the Sea Convention was opened for
signature in 1982, after more than 14 years of negotiations,
and entered into force in November 1994.
LOSC contributes to the building of a stable maritime
regime. To date, 135 countries have ratified it.
Though the United States played a key role in its
formulation, it wasn’t until 1994 that a U.S. president
signed the Convention, and the U.S. Senate has
yet to ratify it. Nevertheless, its provisions are widely
observed, although it offers only general rules and
principles and is ambiguous on many issues. The EEZ,
which the treaty formalized, is one of the most widely
accepted products of the Convention.
Based on the earlier concepts of “exclusive fishing
zone” and “fishing protection zone,” the EEZ regime
attempts to accommodate the competing interests of
coastal states and the maritime powers—the former
seeking greater control over offshore resources, and
the latter concerned with maintaining their traditional
freedom of action in waters beyond coastal
states’ territorial seas.The EEZ is a specific water area different from
territorial seas and from high seas. It does not belong
to the high seas, and is subject to the specific legal
regime established in LOSC. LOSC stipulates that in
the EEZ, the coastal state has sovereign rights over
the exploration and exploitation of natural resources
and has jurisdiction over marine scientific research;
the establishment and use of artificial islands, installations
and structures; and the protection and preservation
of the marine environment (Article 56). LOSC
also stipulates that in the EEZ, all states enjoy freedom
of navigation and freedom of overflight, and in
exercising their rights in the zone, “States shall have
due regard to the rights and duties of the coastal
State and shall comply with the laws and regulations
adopted by the coastal State in accordance with the
provisions of this Convention and other rules of international
law in so far as they are not incompatible
with this part” (the provisions regarding the EEZ)
(Article 58). Evidently LOSC recognizes the continued
freedom of navigation through the waters of an
EEZ, but the freedom is subject to the laws and regulations
of the coastal state that are in conformity
with the appropriate articles of LOSC.
As for air navigation in the EEZ, “In any event,
the application of this freedom of the air in EEZ or
of the special conventions that regulate it, must be
understood not as an extension of the regime of the
high seas, but as a part of the zone’s regime, and,
consequently, subject to the same rules, restrictions,
and modalities that emanate from the accommodation
of uses and interests to the extent applicable.”i
There are now two trends regarding the nature of
the EEZ, one favored by the maritime powers, and
the other favored by coastal states. The maritime
powers want to “internationalize” the EEZ. They
hold that the EEZ has to be assimilated into the high
seas without much concern for the jurisdiction of
the coastal state over the resources. The coastal states
want to “territorialize” the EEZ. They maintain that
the interests of the coastal states must predominate
in the EEZ, subordinating the freedom of navigation
to the satisfaction of those interests. The national
security concerns of many regional countries might
often lead to conflicts between navigation rights andcoastal states’ rights of control over their EEZs. The
challenge is to find a balanced relationship among
the vital interests involved in the issue.
High Seas and International Waters
Traditionally, high seas and international waters had
the same meaning, i.e., sea areas beyond territorial
seas were high seas, and belonged to international
waters. But since the formulation of LOSC, this is
no longer the case.
High seas are now defined as those parts of the
world oceans beyond the limits of national jurisdiction.
According to LOSC, high seas refer to “all parts
of the sea that are not included in the exclusive economic
zone, in the territorial sea or in the internal
waters of a State, or in the archipelagic waters of
an archipelagic State” (Article 86). LOSC has not
addressed the term international waters.
Maritime powers now use the term international
waters in place of the term “high seas” and maintain
their traditional definition. For example, the United
States holds that: “All waters seaward of the territorial
sea are international waters where the ships and aircraft
of all States enjoy the high seas freedom of navigation
and overflight”; “International waters include
the contiguous zone, exclusive economic zone, and
high seas”; The international respect for freedom of
the seas guarantees legal access up to the territorial
waters of all coastal countries of the world.”ii It is the
United States’ intention to equate the EEZ with high
seas in freedom of navigation.
The freedoms of the high seas comprise the freedom
of navigation and overflight, freedom to lay
submarine cables and pipelines, freedom to construct
artificial islands and other installations, freedom of
fishing, and freedom of scientific research. But when
these freedoms are applied in the EEZ, they are subject
to relevant laws and regulations of coastal states.
Freedom of navigation and overflight in EEZs is subject
to the resource-related rights of coastal states.
Different countries have different attitudes toward
the stand taken by the maritime powers. Some support
it; some oppose it; and many countries have reservations
and take a neutral stance. Meanwhile, theUnited States regards others’ EEZs as international
waters, while demanding that foreign planes in its
“Air Defense Identification Zone” (500 miles from
its shores) obey its procedures and fly according to
its stipulated course.
Existing Problems in the EEZs of the South
China Sea
Due to the different interpretations of the freedom of
navigation in EEZs and overlapping jurisdictional
claims in the South China Sea, many problems now
exist.
Military activities and the danger of encounters
and collisions. Regarding the issue of military uses
of the EEZ, the coastal states have a firm basis for
opposing any non-peaceful use of their EEZs. Article
301 holds special importance in this regard because
it requires the abstention from “any threat or use
of force against the territorial integrity or political
independence of any State or in any other manner
inconsistent with the principles of international law
embodied in the Charter of the United Nations.” The
question here is what “peaceful use” means—is a spy
flight peaceful? And what if it were interfering with
communications or targeting sites? Another issue is
whether foreign naval and air forces have total freedom
in the EEZ. “There is no doubt that the key
principle of the 1982 Convention is that foreign war
fleets have open access to the EEZ, since in effect it
is an integral part of the freedom of navigation and
overflight. The exercise of this right, however, is subject
to some restrictions in reference to that zone, such
as the limitations of a political nature and those that
are derived from economic rights.”iii
The United States, Russia, Japan, China, and some
regional countries have conducted surveillance or spying
activities off the coasts of others. One report says
that the United States flies more than 400 reconnaissance
missions per year around China, an average of
over one per day. Other well-informed sources say that
Japan-based U.S. electronic-intelligence-gathering
(ELINT ) aircraft have for the past year been flying
about four missions per week off the Chinese coast.China conducts similar missions in the three China
Seas, but with much less frequency. It is reported
that China operates a major ELINT facility within
Lingshui Airbase, where the EP-3E spy plane was
grounded. The EP-3E incident is the latest in a series
of close encounters between the United States and
China. U.S. sources say, “Chinese fighters repeatedly
have interfered with U.S. air operations over the
South China Sea and nearby waters. In one case a
fighter flew so close to one U.S. aircraft that it broke
up a formation of carrier aircraft.”iv “U.S. aircraft routinely
fly such missions, and the Chinese routinely
intercept and monitor them. U.S. military sources
estimate one-third of these missions prompt the
Chinese to scramble their aircraft.”v
Dangers of encounters and collisions do exist.
The April 1 collision may have been preceded by
another potentially dangerous incident on the sea.
It is reported that on March 24, 2001, the Chinese
Jiangwei III-class frigate Huangshi switched on its
gunnery control radar and closed to within 100 m
of the U.S. underwater surveillance vessel Bowditch,
which was tracking the Chinese nuclear-powered
ballistic missile submarine Xia in the Yellow Sea at
the time of the incident. And the April 1 air collision
may be followed by other clashes if no measures are
taken. On May 28, 2001, as a U.S. ship was conducting
intelligence-gathering activities in the East
China Sea, a Chinese Y8 plane flew over the ship
several times, and there was a standoff.
Conflicts over the activities of survey ships. Seeking
resource security, littoral states are increasing their
surveys for oil and gas resources in their overlapping
EEZs. China has sent several survey ships to the South
China Sea, and this has aroused several protests from
Vietnam and the Philippines.
The disputes between China and Japan in the East
China Sea serve as an example. For decades, China
and Japan have clashed over each other’s survey activities
in contested and overlapping areas in the East
China Sea. The latest round of tensions followed a
sharp rise in the number of Chinese survey vessels in
the past two years, in areas that Japan considers to be
within its own EEZ. Japan wants notification beforeChinese maritime research ships enter its EEZ; China
says that it does not recognize the EEZ announced
unilaterally by Japan and that its activities are in
accordance with international law.
The controversial deployment of sea-based TMD
component. It is reported that the U.S. Defense
Department has concluded that a sea-based component
using the Aegis air defense system is critical
to the success of the theater missile defense (TMD)
system. Missiles launched from sea-based systems
could avoid being misled by decoys by destroying an
enemy missile in its boost phase, shortly after liftoff.
But to do so, the surface ships and submarines
carrying the anti-ballistic missiles would have to be
rather close to the launch site—within a few hundred
miles.vi The South China Sea is one possible place
for deploying such a sea-based component. The seabased
component’s mobility and need for proximity
to a country’s coast illustrate the U.S. Navy’s growing
concern with freedom of navigation in the South
China Sea. If the U.S. deploys sea-based TMD components
in the South China Sea, it would arouse
strong opposition from China.
The need for coordinated anti-piracy measures
in EEZs. Sea piracy has emerged as a growing and
significant threat to maritime security in the Asia
Pacific region. Piracy in Southeast Asia has generally
accounted for about 60 percent of the total reported
piracy in the world. According to the International
Maritime Organization, pirate attacks in the year
2000 rose by 57 percent over the previous year to
469 incidents worldwide; more than two-thirds of
these attacks occurred in Asian waters, and 75 were
in the Malacca Strait.
Defining piracy is a problem. Under LOSC, piracy
is limited to an illegal act committed on the high
seas. Because most attacks occur within territorial
waters, they fall outside the LOSC definition. LOSC
is at fault in this regard, but littoral states should fill
the gap.
The different spheres of jurisdiction over waters in
the South China Sea have caused severe problems in
the regional fight against piracy. Given the sensitivitiesin the region regarding maritime jurisdiction and sovereignty,
cross-jurisdictional arrangements between
the region’s coastal states have been conspicuously
absent. The restrictions on cross-jurisdictional rights
written into most countries’ maritime agreements
have undermined efforts against piracy. In a number
of instances, pirates have used this legal gap to their
advantage, deliberately fleeing to territorial or archipelagic
waters, or to areas of contested jurisdiction,
where it is most risky for naval vessels to operate unilaterally.
Overlapping claims over EEZs further complicate
the problem. Littoral countries are generally
unwilling to prosecute offenders for acts of piracy
committed in overlapping EEZs, and prefer to deport
them instead.
Disputes over fishing. Continuing population
growth in regional countries has placed heavy pressure
on the region’s fishing industry. Countries in
the region are expanding their fishing efforts, and
disputes among them over fishing have been increasing.
Fishermen are routinely arrested and their equipment
confiscated by coast guard authorities in the
region. Chinese fishing boats are frequently sighted
off Palawan, situated east of the disputed Spratly
Islands, and several incidents involving naval units
from the Philippines and Chinese fishing boats have
been reported. In March 2000, Vietnamese fishermen
were arrested by the Philippine navy and coast guard
on Fearless Shoal, near the southern tip of Palawan.
On June 25, 2001, the captain of a Malaysian vessel
suspected of illegal fishing in Indonesian waters was
reportedly shot by an Indonesian navy boat.
Disputed EEZ claims, outright poaching, and the
ambiguity regarding the extent to which coastal states
can govern the passage of foreign vessels in their EEZs
are factors contributing to the fishing disputes. While
recognizing the rights of vessels, including fishing
vessels, of all states to enjoy freedom of navigation in
the EEZ, LOSC stipulates that coastal states have
sovereign rights over living and non-living resources
in EEZs, and that foreigners cannot fish without permission.
It further stipulates that “Nationals of other
States fishing in the EEZ shall comply with the conservation
measures and with the other terms andconditions established in the laws and regulations
of the coastal State” (Article 62:4). Thus, a coastal
state can require foreign fishing vessels in its EEZ to
obey its fishing laws and regulations, but the extent
to which a coastal state could govern the passage of
foreign fishing vessels in its EEZ is controversial. For
example, Malaysia’s Fisheries Act of 1985 “allows
foreign vessels to exercise the right of innocent passage
in Malaysian fishery waters which are the waters
of the EEZ,” but “the law requires prior notification
for fisheries vessels to enter the Malaysian EEZ.”vii
The provisions have aroused protests from Thailand.
A Confidence-Building Arrangement
To reduce the continued threat to SLOC security in
the South China Sea, regional countries must establish
confidence-building measures on navigation, or
a navigational code of conduct. These might begin
with the United States and China, since their conflicts
may be the most dangerous of all. Based on
the 1998 MMCA, the two sides might formulate
an agreement along the lines of the 1972 “Incidents
at Sea” agreement (INCSEA) between the United
States and Soviet Union, which has proven effective
in regulating the interaction of their fleets on the
high seas. One defense analyst suggested: “A Chinese-
American Incidents at Sea Agreement would be
desirable because it would supplement the security
dialogue of MMCA with formal rules of interaction.
This would reduce both the likelihood of inadvertent
clashes, as well as promote understanding and
reduce the long-term likelihood of conflict.”viii
The value of a regional INCSEA agreement lies in
the obligation of regional countries to consult regularly
on safety. The purpose of a regional INCSEA
would be to prevent collisions at sea and in the air
that could affect relations among regional countries;
to minimize the chance of accidents resulting from
normal activities; and to develop more predictable
standard operating procedures at sea for promoting
mutually beneficial regional cooperation in naval
operations.
An INCSEA-type arrangement in the South China
Sea could take different forms and operate at differentlevels. Initially, its contents could be simple and later,
more comprehensive. The development of a mutual
prior-notification regime for surface and air reconnaissance
missions might be the first step. Prior notification
is a procedure normally frowned upon by
the U.S. military out of fear that it could represent
the first step down the slippery slope toward prior
approval. But, “[t]he fact that a country has a right
to fly surveillance missions in international waters
adjacent to another country without prior notification
does not preclude them from providing such
notification as a military confidence-building measure.”
ix The agreement on a mutual prior notification
mechanism reached between China and Japan
in mid-February 2001, pertaining to maritime research
activities in the Chinese and Japanese EEZs,
provides a useful model for regional countries to
study.
An INCSEA-type arrangement might be bilateral
at first and multilateral later. An immature multilateral
approach could quickly become bogged down
by particularistic interests. “China is also unlikely to
accept a regional solution to the problems of accidents
at sea: it has a marked preference for bilateral
agreements that escape the influence of third parties.”
x Putting aside China’s considerations, a multilateral
agreement would be more feasible once a
number of regional bilateral agreements have been
established.
In the longer term, a comprehensive regional
INCSEA for the South China Sea, together with
supervisory mechanisms, would be needed to prevent
or minimize conflict escalation and the likelihood
that potentially dangerous naval confrontations
would occur. Its contents might include the following.
• Definition and clarification of the extent of the
jurisdiction coastal states have over resources andmarine scientific research in the EEZ, vis-Ã -vis the
detailed application of the principle of freedom
of navigation in the EEZ
• A set of rules to govern air-to-air and air-to-sea
encounters, including methods of preventing aircraft
collisions; rules governing the interception
of reconnaissance aircraft and of engagement at
sea; and standard operating procedures
• Procedures governing notification of the intent to
conduct marine research in the EEZ
• Procedures governing notification of the intent to
conduct naval exercises in the EEZ
• Procedures to prevent the collision of submarines
with other undersea craft and with surface craft
• Regulations governing the tracking of submarines
• Emergency consultation systems, such as on the
deployment of sea-based TMD components
• Procedures to prevent the escalation of conflicts
that result from accidental or unintended weapons
use, or unauthorized weapons use by subordinates,
and implementation of a reporting process
for such incidents
• The means for increasing military transparency,
especially with regard to naval build-ups and naval
strategy
• Plans for cooperative action to guarantee transportation
of oil and gas imports
• Anti-piracy measures and systems for joint patrol
• Cooperation in humanitarian assistance, search
and rescue, mine countermeasures, and cooperation
in combating drug trafficking and illegal
migration
• Regulations governing fishing
• A regime governing sea transport of ultrahazardous
radioactive materials
• Initiatives for the protection of the environment

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