Rough Waters in the South China Sea: Navigation Issues and Confidence-Building Measures JI GUOXING AsiaPacific ISSUES Analysis from the East-West Center SUMMARY In the wake of a collision between a U.S. spy plane and a Chi- No. 53 August 2001 nese jet fighter off the coast of Hainan in April 2001, verbal skirmishing between The U.S. Congress established the East-West Center in 1960 to the United States and China revealed sharply different conceptions of jurisdic- foster mutual understanding and cooperation among the govern- tional and navigational principles. These differences persist and will likely be ments and peoples of the Asia Pacific region, including the United the cause of future conflicts; they have already caused strife among countries States. Funding for the Center comes from the U.S. government ringing the South China Sea. Central to these conflicts are the exclusive eco- with additional support provided by private agencies, individuals, nomic zones (EEZ) that extend 200 nm into the sea from coastal nations’ base- corporations, and Asian and Pacific governments. lines. Created by the UN Law of the Sea Convention, these zones attempt to The AsiaPacific Issues series contributes to the Center’s role as accommodate coastal states’ interest in controlling offshore resources and mari- a neutral forum for discussion of issues of regional concern. The time powers’ interests in maintaining freedom of navigation. But ambiguities in views expressed are those of the author and not necessarily those the Convention’s language combined with coastal states’ proliferating EEZ of the Center. 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. 2 Analysis from the East-West Center The April 1, 2001, collision between a U.S. spy plane consultation mechanism comprising annual meetings, and a Chinese jet fighter 70 nm off the southeast working groups, and special meetings to strengthen coast of Hainan dramatically brought to the world’s military maritime safety and prevent accidents at sea. attention an ongoing area of dispute between the Though a meeting was held in July 1998, the agree- United States and China: the rules governing navi- ment was shelved by the Bush administration. But the gation in the exclusive economic zones (EEZ) of the MMCA could serve as the first step in confidence- South China Sea. The United States says that its spy building measures; eventually, it could be a model plane was flying over international waters and had for a regional agreement. freedom of navigation. China says that it was flying in China’s EEZ and was subject to the laws and reg- The South China Sea ulations of China. Though the return of the plane to U.S. soil brought the incident to an end, the under- The South China Sea is a strategic waterway provid- lying causes of the dispute remain and similar dis- ing the key maritime link between the Indian Ocean putes can be expected to erupt. China demands that and East Asia. Sea lines of communication (SLOCs) the United States halt its spy flights off the Chinese of the South China Sea are a matter of life and death coast, the United States, saying its flights are standard for the Asia Pacific countries, and SLOC security has and legal, resumed the flights in early May. been a fundamental factor contributing to regional This dispute, though exceptionally high profile, is economic development. More than 41,000 ships a one of many that occur each year on and over the year pass through the South China Sea, more than Ship traffic through South China Sea. Conflicts over freedom of naviga- double the number that pass through the Suez Canal, the South China tion in EEZs are increasing in the South China Sea and nearly triple the total for the Panama Canal. Sea is more than —a semi-enclosed sea bounded by China, Vietnam, More than half of the world’s annual merchant-fleet the Philippines, Malaysia, Brunei, and Indonesia, in tonnage passes through the straits of Malacca, Sunda, double that through which extended jurisdictional claims are replacing the and Lombok. For the United States, the Malacca the Suez Canal and high seas with EEZs. Today, with virtually all travel Strait is critical to the mobility and flexibility of its triple that through through the South China Sea passing through one or Seventh Fleet. the Panama Canal more EEZs, the rules of navigation are frequently But the SLOCs are hardly secure. The provisions contested. The nations rimming the sea have all had of the UN Law of the Sea Convention (LOSC) relat- their disputes, and just as the U.S.-China conflict is ing to the principle of freedom of navigation are inter- not likely to be the last between those two nations, preted variously by different countries. Many navies, there are likely to be further disputes between other including those of the maritime powers (nations with nations, and disputes of increasing intensity. To re- blue-water navies), are maneuvering in EEZs of the duce the number and intensity of the disputes, a South China Sea, where multiplying and overlapping multilateral confidence-building arrangement focused jurisdictional claims confuse the rules of passage. In on the practical issues of navigation (as opposed to the addition, sea piracy and pollution, which observe no territorial issues) would be ideal, but a regional agree- national borders, are on the increase. The inability ment is most likely to be achieved in increments, with to control them threatens SLOC security. bilateral agreements paving the way. The agreements should, while respecting the resource regulations of LOSC, EEZ, and Freedom of Navigation coastal states, guarantee freedom of navigation and regulate the behavior of naval activities in the air and The UN Law of the Sea Convention was opened for on the sea in the EEZs. First steps in this direction signature in 1982, after more than 14 years of nego- were taken in January 1998, when China and the tiations, and entered into force in November 1994. United States entered into a Military Maritime Con- LOSC contributes to the building of a stable mari- sultative Agreement (MMCA) designed to establish a time regime. To date, 135 countries have ratified it. 3 Analysis from the East-West Center Though the United States played a key role in its The EEZ is a specific water area different from formulation, it wasn’t until 1994 that a U.S. presi- territorial seas and from high seas. It does not belong dent signed the Convention, and the U.S. Senate has to the high seas, and is subject to the specific legal Some seek to yet to ratify it. Nevertheless, its provisions are widely regime established in LOSC. LOSC stipulates that in ‘internationalize’ observed, although it offers only general rules and the EEZ, the coastal state has sovereign rights over the EEZ; others to principles and is ambiguous on many issues. The EEZ, the exploration and exploitation of natural resources which the treaty formalized, is one of the most widely and has jurisdiction over marine scientific research; ‘territorialize’ it accepted products of the Convention. the establishment and use of artificial islands, instal- Based on the earlier concepts of “exclusive fishing lations and structures; and the protection and preser- zone” and “fishing protection zone,” the EEZ regime vation of the marine environment (Article 56). LOSC attempts to accommodate the competing interests of also stipulates that in the EEZ, all states enjoy free- coastal states and the maritime powers—the former dom of navigation and freedom of overflight, and in seeking greater control over offshore resources, and exercising their rights in the zone, “States shall have the latter concerned with maintaining their tradi- due regard to the rights and duties of the coastal tional freedom of action in waters beyond coastal State and shall comply with the laws and regulations states’ territorial seas. adopted by the coastal State in accordance with the provisions of this Convention and other rules of inter- national law in so far as they are not incompatible No High Seas in the South China Sea with this part” (the provisions regarding the EEZ) (Article 58). Evidently LOSC recognizes the contin- China Taiwan ued freedom of navigation through the waters of an EEZ, but the freedom is subject to the laws and reg- PratasPratas Is.Is. ulations of the coastal state that are in conformity with the appropriate articles of LOSC. Hainan As for air navigation in the EEZ, “In any event, s. I el the application of this freedom of the air in EEZ or acelac Is. ar ScarboroughScarborough s ParP of the special conventions that regulate it, must be ReefReef d n a understood not as an extension of the regime of the MacclesfieldMacclesfield l s BankBank I high seas, but as a part of the zone’s regime, and, consequently, subject to the same rules, restrictions, nam and modalities that emanate from the accommoda- ThituThitu e Viet n i Is.Is. i tion of uses and interests to the extent applicable.” p p i ItuItu AbaAba l There are now two trends regarding the nature of SpratlySpratly Is.Is. i Is.Is. h P 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 Malaysia a seas without much concern for the jurisdiction of esi on IndonesiaInd 0 100 200 nm the coastal state over the resources.