Maritime disputes abound in Asia. Ordinary reefs and rocks have become sites of coercion, and if rising tensions are not managed well, they could be the sites of armed clashes and conflict, causing unnecessary loss of life and disrupting economic output in an increasingly important region of the world.
Out of concern over the trajectories of these disputes in the East and South China Seas, CNAS hosted an event on November 21st titled “Political, Legal and Other Policy Measures for Reducing Maritime Security Risks” as part of its ongoing Maritime Security Project (view the event highlights). A select group of speakers participated ranging from current and former government officials and military officers to experts from think tanks, academia and the private sector from the Philippines, Japan, Taiwan, the United States and Canada. Precisely because the various disputes are fraught with nationalistic emotions, the goal of the event was to investigate pragmatic steps that – instead of solving sovereignty issues – could help claimants and other interested parties to mitigate the chance for clashes and conflict.
The discussions focused on a number of types of measures, including resource-sharing agreements, various types of international arbitration and the establishment of maritime communication mechanisms. For example, Taiwan and Japan, which both claim the Senkaku/Diaoyutai Islands, signed a fisheries agreement in April 2013. The deal, which does not attempt to resolve sovereignty issues, does take pragmatic steps to reduce tensions while providing for the well-being of the constituents of each claimant. Though the deal is not perfect, it nevertheless served as a confidence building measure in the region. Some expressed hope that further agreements could be signed over energy resources, but many states see this is as tantamount to relinquishing a sovereignty claim, as the very decision implies that the territory in question is not wholly owned.
During the event, Philippine Assistant Secretary Henry Bensurto, Jr. outlined Manila’s arbitration case before the International Tribunal for the Law of the Sea (ITLOS), which questions the legality of China’s 9-dash line. Though the ITLOS case represents only one of several avenues for arbitration – others being the international Court of Justice, Annex 7 of the United Nations Convention on the Law of the Sea and special arbitration – each results in a winner and a loser, which Dr. James Manicom pointed out was not always the ideal outcome for managing tensions. Furthermore, arbitration is not always an option available to claimants. Taiwan, despite occupying the largest of the Spratly Islands and maintaining a capable and active coast guard to enforce its claims, does not have access to the same international legal mechanisms to resolve disputes as the other claimants due to its unique international status.
Furthermore, there is a clear lack of maritime communication mechanisms among countries in the East and South China Seas. Despite a strong push from several areas within the Japanese government, there has been little political appetite in China for making progress on the Japan-China Maritime Communication Mechanism (JCMCM), negotiations on which started in 2008. And though the Japan Coast Guard does have daily communication with one of China’s maritime services, it is with China’s Maritime Safety Administration – the one of the “five dragons” not included in China’s recent maritime consolidation and therefore, not ideally suited for reducing tensions and defusing potential conflict.
Former Commander of the 7th Fleet, Vice Admiral Timothy Wright, USN (Ret.) argued for more pragmatic steps by calling for an incidents at sea (INCSEA) agreement among claimants, pointing to the deal signed between the United States and the Soviet Union in 1972 as an example. He also suggested multilateral initiatives such as intelligence, surveillance and reconnaissance (ISR) sharing among multiple countries in the disputed regions would reduce conflict by deterring coercive efforts of stronger countries.
Another avenue for risk reduction is through international treaties – primarily the United Nations Convention on the Law of the Sea (UNCLOS) – but this is not without controversy either. John Bellinger, the former legal advisor to the State Department, argued that even though the George W. Bush administration was not widely viewed as being receptive to advancing international law, it advocated for UNCLOS ratification because it was deemed to be in the national interest of the United States. Despite widespread support, the prospects for UNCLOS ratification are slim given the toxic political environment in Washington. Worse still, China’s ratification of the treaty has not prevented Beijing from adopting an unconventional interpretation and pushing to change the status quo.
The event’s discussions reinforced how difficult it is to get past the emotional historical claims and identifying the best approaches for managing risk. However, multiple alternatives exist and it is critical, in the words of Japan expert Sheila Smith, that we have a menu of options to increase the chances of successfully managing the maritime disputes.