James Holmes

The Limits of Pacific Maritime Law

The new Code for Unplanned Encounters at Sea will not bring peace in our time.

The Limits of Pacific Maritime Law
Credit: Wikimedia Commons

Baby steps, baby steps. Last week, some twenty Pacific navies meeting at the Western Pacific Naval Symposium in Qingdao agreed to what participants are styling as a Code for Unplanned Encounters at Sea (CUES). CUES, like the Cold War-vintage INCSEA agreement between the United States and the Soviet Union/Russia, calls on mariners to forego provocative actions on the high seas and in international airspace, and to contact one another to clear up such misunderstandings as do arise. INCSEA is ironclad, as Russian forbearance toward the destroyer USS Donald Cook in the Black Sea proves. Right?

But still. Stupid things happen. Any American seafarer, and scurrilous ‘furriners as well, can relate a sea story or two about gobsmackingly dumb things he’s seen done while underway. Always by the other guy, mind you. One of mine: in the Persian Gulf many moons ago, a dhow skipper with a death wish decided it would be fun to pass fifty yards or thereabouts ahead of a 58,000-ton battleship that was traversing a narrow channel and couldn’t maneuver to avoid colliding. Imagine my relief when he reappeared on the other side of the ship after passing underneath the ship’s high bow. 1100 hours: Crunched small craft while exiting Abu Dhabi harbor is not a deck-log entry any naval officer wants to write. Some CUES guidelines would have been welcome about then. If, of course, that knucklehead abided by them.

Such informal pacts are worth pursuing whenever feasible, and whenever it appears mariners will comply with them. They could smooth out problems at the margins, easing misgivings over time among Pacific fleets that operate at close quarters. But let’s not break out the bubbly just yet. Rules of the road already exist to help vessels and aircraft steer clear of one another. And they have for many years. Rookie U.S. Navy, Coast Guard, and merchant mariners learn to navigate and pilot by COLREGs, as do most seamen around the world. CUES, INCSEA, et al. largely duplicate existing rules. Rather than something new in marine safety, such agreements essentially represent diplomatic commitments not to provoke rivals. Nice, but no panacea.

So let’s not delude ourselves into thinking these pacts will bring peace in our time. Consider China. Will Beijing foreswear its claims in the South China Sea, or in the East China Sea, simply because it assented to CUES? Puh-leeze. That would mean China’s leadership attaches more value to avoiding trivial incidents at sea than to restoring national sovereignty, and China’s place in the Asian order, as China’s leaders and ordinary citizens construe it. That strains credulity. If Beijing placed such weight on amity in the near seas, it would abide by the far more authoritative UN Convention on the Law of the Sea — an accord to which it subscribes, and which rules out such constructs as the nine-dashed line enclosing 80-90 percent of the South China Sea.

But it doesn’t. And indeed, Chinese officers started walking back expectations vis-à-vis CUES almost before the ink dried on the parchment. Bottom line, let’s put euphoria about new nautical accords on hold until old ones are upheld.