A US warship anchored at a port on the island of Palawan, western Philippines. The Philippines held separate naval drills with top military allies, the United States and Japan, near the disputed South China Sea. With more naval forces deployed in the disputed seas, chances of a conflict may escalate. EPA pic

A NAVAL incident involving a vessel from the United States Navy and a vessel from China’s People’s Liberation Army (PLA) Navy was recently averted by the quick thinking of the “rival” commanders to apply the agreed protocols under the Code of Unplanned Encounters at Sea (CUES).

CUES is a simplified communication guideline for naval commanders to follow in unplanned encounters, to prevent conflicts at sea.

  The US Navy initiated this code of behaviour at sea under its Western Pacific Naval Symposium (WPNS) network that meets every other year. More than 20 navies in the Western Pacific (including the Royal Malaysian Navy) are party to CUES.

China’s PLA Navy became a party to the code last year. As an operational concept, CUES is quite similar to the 1972 Incident at Sea Agreement (INCSEA) between the US Navy and the Soviet Navy that proved useful during the Cold War era.

 This particular incident happened on May 11 this year, off the Fiery Cross Shoal in the Spratlys, where China is building a 3,000m- long airstrip to augment its forward defence in the South China Sea.

Evidently, the USS Fort Worth, a littoral combat ship from the US Seventh Fleet Command, on a mission to advance the Freedom of Navigation (FON) programme in the Spratlys was tracked and shadowed by the PLA Navy missile frigate, the Yangcheng.

 The US uses the FON programme to challenge what it considers “excessive claims” of other states at sea and in the air.

In this particular instance, the mission was to challenge China’s activities in the Spratlys, which it considers inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS).

China considers the waters in the Spratlys and its adjacent area as its Exclusive Economic Zone as defined under UNCLOS. The US, which has not ratified UNCLOS, considers the sea as international waters, like the high seas where it has unfettered freedom of navigation.  The US has particularly contested China’s domestic law (e.g., the 1998 law on EEZ) that regulates foreign military activities in its EEZ (a view shared by 26 other countries, including Malaysia), as excessive and inconsistent with UNCLOS.

  But for the quick thinking of the respective naval commanders to resort to CUES, the near miss could have transformed into an ugly incident in the volatile Spratlys.

Never has the danger of an armed conflict been so apparent in the Spratlys following recent geopolitical developments in the region. The geopolitical dynamics has complicated the regional maritime security landscape, with US and Japan pushing for a more coordinated effort, ostensibly to contain a rising China.

There is a pressing need to establish some form of a regional mechanism to prevent similar incidents between the navies operating in the Spratlys. Currently, the navies from four claimant states (China, Malaysia, the Philippines and Vietnam) are converged in the area and accidents could happen.

 Reliance on CUES alone is not enough; the claimant states have to embrace other agreements and protocols like the relevant International Maritime Organisation (IMO) Conventions, for example, the Convention for Safety of Life at Sea (SOLAS 1974 and its relevant protocols), the Convention on the International Regulations for Preventing Collisions at Sea (COLREG, 1972) and the International Convention on Maritime Search and Rescue (SAR, 1979), to name a few.

 Incidentally, all four claimant states are party to these IMO conventions. While the legal obligations are well established, the problem on the ground is the absence of a regional mechanism for the operational commanders to talk to each other.

The thesis is simple. If the commanders can talk and alert each other of their respective intentions in the disputed part of the Spratlys, it would minimise distrust and enhance confidence among them.

 There is a Track Two private-sector driven initiative aimed at enhancing greater predictability, transparency and reducing tensions toward a more sustainable maritime security environment in the Spratlys.

This group has proposed, among other trust building measures, the establishment of a Regional Forum (as an interim measure) for the naval commanders and commanders of other enforcement agencies (primarily from the claimant states) in the Spratlys to start talking to each other on a regular basis.

Establishing a direct link between the commanders would go a long way in trust building. Conducting simple classroom and desktop training and exercises on CUES for naval commanders, for example, would be a step forward.

It is observed that the PLA Navy and the US Navy have established a series of bilateral agreements/memorandums of understanding on conduct at sea.

They include:  the Military Maritime Consultative Agreement to establish a direct telephone link and the Memorandum of Understanding on rules of behaviour for maritime and air (the latter is yet to be in place), besides CUES.

In our opinion, the PLA Navy is in a position to establish the Regional Naval Forum and lead the peace process in the Spratlys. Four reasons work in China’s favour;

FIRST, it has the most naval assets in the Spratlys;

SECOND, although it can inflict the most damage on the other regional navies in the Spratlys, the cost for doing so will be politically prohibitive;

THIRD, in terms of foreign policy implication, the Regional maritime Forum is very much in line with President Xi Jinping’s promise to the world that China would not use force in the South China Sea; and,

FOURTH, a Regional Naval Forum would complement China’s other peace initiatives like the three billion Yuan China-Asean Maritime Cooperation (2012) and the US$40 billion (RM151.2 billion) Silk Road Fund (2014).

The ball is now in China’s court to kick start the process of peace-making in the Spratlys. 

The writer is a student of regional
geopolitics and commentator on
maritime security

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