SINGAPORE: Recently, ASEAN and China agreed on a framework on the proposed Code of Conduct in the South China Sea, ahead of the mid-2017 timeline which both sides had set. And there has been no lack of official statements professing common desire to maintain peace and stability in the area.
Tensions may have flared up over the weekend when US Secretary of Defense James Mattis spoke out against China over its “disregard for international law” and “contempt for other nations’ interests”. Artificial island construction and militarisation of facilities on features in international waters undermine regional stability, he added.
But Mattis was also quick to strike a positive note on US-China relations, saying that while competition between the two countries is bound to occur, “conflict is not inevitable”.
Yet, there is a clear difference between rhetoric professing wanting to make concrete progress on the dispute for regional peace and stability on the one hand, and realities on the ground on the other. As Mattis highlighted, naval and coast guard buildups and various other related activities continue unabated in and around the disputed waters.
There have also been past incidents involving the ramming and harassment of fishing boats, obstruction of survey ships, stand-offs and collisions, including over the past year. So it is unclear how diplomatic rhetoric can change behaviour on the ground.
Miscalculations by tactical commanders on scene may still result in incidents arising from encounters between their forces and with non-government vessels at sea. One can imagine that policing disputed waters is a stressful endeavour where men on the ground do not want to be seen not doing their jobs or worse, ceding sovereignty to the other side.
We argue that the Code for Unplanned Encounters at Sea (CUES), which the US and Chinese signed up to since 2014, is a useful mechanism to help manage tensions arising from the South China Sea dispute. CUES constitutes a manual or set of ground rules on how to de-escalate an unplanned encounter between naval vessels.
But CUES in its present form is not a cure-all solution to the growing complexity of the South China Sea dispute; it needs to be strengthened.
POLITICALLY SYMBOLIC BUT GLARING OMISSIONS REMAIN
CUES was promulgated by 21 regional navies including China and the US in April 2014 following a spate of aerial and maritime encounters in the South China Sea. ASEAN and Beijing adopted through a joint statement to apply CUES specifically in the South China Sea in September 2016, which makes it a strong political symbol.
To be sure, CUES is not entirely new: Though in essence, it is a de-escalation mechanism for navies at sea, it merely formalises what is already commonly practised by several navies for some time. So it is no more than a gentlemen’s agreement.
On a positive note, since its inception, CUES has been practised by several signatory navies, as part of a move to create more professional exchanges between the Chinese and US navies in the South China Sea. However, the full implementation of CUES remains tenuous; CUES has many limitations.
At the military level, even though CUES applies to naval aircraft, it remains focused on encounters at sea, not in the air. Submarines are also not explicitly mentioned. If the recent coast guard stand-off between Indonesia and Vietnam over fishery enforcement near the Natuna Islands is illustrative enough, CUES also does not cover civilian coast guard vessels, or “white hulls”.
There had been earlier proposals among some regional governments, such as Singapore, to expand CUES to include “white hulls”. However, this potentially runs into problems concerning how one would define coast guards - should they comprise only government agencies or include irregular forces such as the maritime militia, of China and Vietnam in particular?
Worryingly, some claimant states have been actively operating maritime militia elements as a means to assert their sovereignty in disputed waters. Beijing has expanded its maritime militia recruited from its domestic fishing fleet, which is already the world’s largest, estimated at about 200,000 vessels. Chinese maritime militia have also shadowed foreign military vessels as seen in the March 2009 USS Impeccable incident off Hainan and more recently, supported Beijing’s island building and fortification work.
CODE NEEDS TO BE ACCEPTED BY ACTORS AT SEA
CUES’ centre of gravity is in managing the dispute at the operational and tactical levels. The prescriptions it sets out is aimed at directing behaviour of men on the ground and commanders at those sea command centres.
At the strategic level, CUES sets the stage for the proposed Code of Conduct on the South China Sea, as a tactical cooperation mechanism that enhances mutual trust. In the absence of an agreed Code of Conduct, CUES serves as a useful de-escalation mechanism for incidents in the South China Sea.
But CUES needs to be strengthened further, to enhance understanding and promote norms of good behavior among other actors on the ground.
For a start, navies who have signed onto CUES could take a leaf from the Shared Awareness and De-confliction Meeting, held in Bahrain and co-chaired by the Combined Maritime Forces, European Union and North Atlantic Treaty Organization, which brings together multi-national forces, including navies, maritime security organisations and merchant marine representatives to share information and propose measures to deal with piracy.
Similarly, the Information Fusion Centre, based in Singapore, brings together maritime security agencies and merchant mariners to build awareness and discuss measures to deal with piracy and sea robbery in the straits of Malacca and Singapore.
Such inclusive multi-lateral meetings to develop such procedures have proven effective in the Gulf of Aden and in those straits.
Navies involved in CUES could also embark on studying safe passage and measures to prevent incidents in the South China Sea. A regular, working-level meeting between the participating navies could be sponsored and hosted by non-claimant ASEAN member states, aimed at working out actions required to implement CUES and facilitate adherence to the Code of Conduct once it is promulgated.
BUILDING COMMUNICATIONS, BREAKING BARRIERS
In some ways, there is no need to re-invent the wheel in promulgating CUES to other actors – CUES navies can “cut and paste” existing solutions that have proven useful.
So one idea is to replicate the International Maritime Organization’s publications on maritime safety, for example the Safety of Lives at Sea and International Regulations for Preventing Collisions at Sea. A safe passage guide for transit through the South China Sea for merchant shipping could equip private operators with the norms, expectations and knowledge of how navies are likely to respond, to prevent incidents.
At present, CUES only outlines actions to be taken in an emergency, by which time it may be too late to avoid an incident. But a remodelled CUES could incorporate a graduated level of actions to prevent and mitigate incidents. In that connection, voluntary reporting of incidents by all maritime users – government and non-government – could also be an option to explore.
Some countries have published CUES in two languages - English and their national language, to help operators better understand and translate the provisions into executable actions. However, to address limitations in effective communication between ship operators of different nationalities, pre-programmed messages for ship-to-ship communications should be developed.
Finally, CUES’ implementation requires training, testing and evaluation of its effectiveness. These could be realised through table-top exercises, shore-based simulations and at-sea training. These serials could be included in existing exercises such as the ASEAN Defence Ministers' Meeting - Plus maritime security exercises.
NOT A CURE-ALL BUT STILL A WORTHY BASIS FOR FUTURE INITIATIVES
In its present form, CUES is not a solution to the latent risks of unplanned encounters between vessels across various agencies. Yet it remains a worthy starting document to facilitate the building of confidence and trust between diverse actors operating in the South China Sea, or even the wider Asia-Pacific region.
The value of CUES is precisely tactical and operational. Negotiations over political documents such as the Code of Conduct remain fraught with uncertainty, and could be a long-drawn process. So an agreement like CUES outlining how to manage disputes at the operational level serves as a bulwark against the potential of escalation of inadvertent incidents at sea.
Therefore, efforts ought to be made to re-conceptualise CUES to keep pace with the evolving dynamics in the South China Sea and make real progress at the diplomatic level on the Code of Conduct, now the framework has been completed.
Bernard Miranda is an Adjunct Senior Fellow with the Maritime Security Programme, S. Rajaratnam School of International Studies, Nanyang Technological University. Graham Ong-Webb and Collin Koh are research fellows at the same school.