The Debate

Improving Order in the East China Sea

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The Debate

Improving Order in the East China Sea

A stronger Code for Unplanned Encounters at Sea is vital for avoiding the threat posed by interstate incidents at sea.

The accidental escalation of interstate incidents at sea has the potential to pose a serious threat to maritime security and stability in the Asia-Pacific Region. Competing territorial claims and disputes over freedom of navigation have generated a growing number of standoffs at sea involving military, law enforcement, and civilian vessels. With aircraft playing chicken, fishing vessels ramming coast guard ships, and naval forces intimidating one another’s auxiliaries, there is a growing potential for an accident that could escalate into conflict.

Statesmen in the region have sought to reduce this risk through a maritime security order undergirded by confidence-building mechanisms. The most recent development in this order is the Code for Unplanned Encounters at Sea (CUES). Adopted a year ago in April 2014 by the West Pacific Naval Symposium (WPNS), CUES institutionalizes a set of suggestions for prudent behavior and clear communication at sea. As highlighted at a recent CSCAP meeting, however, the CUES agreement has some significant limitations.

Four major problems keep CUES from constituting an effective regime for maritime stability and order:

  • CUES is underspecified, particularly with regards to advance notification of hazardous maneuvers or exercises. CUES encourages national authorities to provide “warnings” of dangerous activities but does not stipulate when these warnings should be issued. This stands in sharp contrast to INCSEA – one of the inspirations behind CUES – a similar accord between the US and the Soviet Union which contained a provision requiring parties to notify one another “not less than 3 to 5 days in advance” of activities which could “represent a danger to navigation or to aircraft in flight.”
  • CUES is designed to apply only to naval forces. Many interstate marine incidents in the Asia-Pacific do not involve naval forces, however. These conflicts frequently involve coast guards and fishermen. If regional statesmen truly hope to preserve stability at sea, these guidelines must be broadened and adjusted to apply to all ships regardless of the color of their hull.
  • CUES contains no explicit provisions requiring joint training. By failing to incorporate joint exercises, drills, or education, the code squanders an opportunity to reinforce its guidelines and to facilitate confidence-building at the operational level.
  • Most importantly, CUES’ guidelines are a voluntary code rather than a binding agreement. CUES makes this immediately clear in its text: “WPNS navies that choose to adopt CUES for naval cooperation do so on a voluntary and non-binding basis.” As a consequence, states can defect from the code as they see fit without consequences for their international reputations or national honor.

These limitations suggest that CUES, while constituting a step in the right direction, is insufficient to maintain stability at sea in the Asia-Pacific region. The U.S. must seek to develop an improved code – an upgraded CUES. A better agreement would include the same guidelines as CUES but 1) incorporate coast guards into these regulations, 2) develop annual training and exercises, and 3) further specify requirements for advanced notifications regarding hazardous activities. U.S. policymakers must also push for a binding agreement, similar to the 1972 INCSEA deal with the Soviet Union. Although binding agreements do not guarantee compliance under an anarchic international system, there is a reason why states give more weight to them than they do to voluntary codes: Leaders recognize that both their government’s reputation and their nation’s honor will be undercut if they violate the agreements.

An updated maritime order should also aim to alleviate public pressure on leaders to remain intransigent in the event of an unplanned incident at sea. Previously, Beijing has imposed media blackouts on incidents at sea to stymie the outbreak of nationalistic protests. Coordinating press blackouts in the event of an accident at sea might give policymakers the opportunity to de-escalate without losing face.

One major challenge to these proposals is China’s hesitancy to sign binding pacts that could limit its freedom of action at sea; indeed, China’s concern that the term “code” connoted a legal arrangement initially held up CUES. The U.S. should deploy a mix of policies to overcome Chinese reluctance. First, policymakers can bolster the incentives for China to consent to a CUES 2.0 by incorporating limitations on armed surveillance in EEZs into the new maritime regime. U.S. military surveillance in China’s EEZ has long been a source of consternation for Beijing. Incorporating restrictions on armed surveillance would help alleviate some of these concerns for China but still allow the U.S. to conduct unarmed naval surveillance in EEZs in accordance with international law. Second, the U.S. and its allies should seek to limit the potential gains China could derive from noncompliance. In particular, Washington must demonstrate its resolve to oppose any use of provocative naval tactics to alter the regional status quo. Finally, the U.S. and its allies should strengthen coast guard and military contacts with China, using these opportunities to persuade Chinese officers that an upgraded CUES agreement will serve the interests of all regional states.

Erik French is a non-resident Sasakawa Peace Foundation fellow with Pacific Forum, Center for Strategic and International Studies, a contributing analyst with Wikistrat Inc., and a PhD Candidate at the Maxwell School of Citizenship and Public Affairs.