- Email: [email protected]
Conclusions, regime building and the way forward
ARTICLE IN PRESS
Marine Policy 28 (2004) 89–96
Conclusions, regime building and the way forward Mark J. Valencia* East-West Center, 1601 East-West Road, Honolulu, Hawaii 96848-1601, USA
Abstract Military intelligence gathering activities in the EEZs are becoming more controversial and more dangerous due to increasing and changing demands for technical intelligence; robust weapons and electronic warfare; and widespread development of information warfare capabilities. There is agreement that freedom of navigation and overflight should not interfere with the coastal state’s right to protect and manage its EEZ resources and environment. But there is considerable disagreement on the meaning of some key 1982 UNCLOS language, the means of resolving these disagreements, or whether there is a need to do so. Each alternative approach to resolving these disagreements has its advantages and disadvantages. Needed now is a common understanding of terminology and guidelines for military and intelligence gathering activities in the EEZ. What is being proposed is regime building, a process which has its own conditions for, and constraints to, success. Foremost among the conditions for success is the recognition of the necessity of co-operation, and agreement on its form such as the SUA Convention, or ocean management, which may have a spillover effect to enhanced multilateral security. Given the constraints, a loose blueprint for the way forward can be constructed in which the continuity of this informal dialogue plays a major role. Specific next steps include fact finding regarding previous incidents; production of a glossary of definitions of critical terms; categorization of activities in the EEZ as to which are allowed and not allowed; the manner of implementation of coastal states’ rights; the means and manner of enforcement of any agreed rules; and specific suggestions for policy. r 2003 Elsevier Ltd. All rights reserved. Keywords: EEZ regime; Military and intelligence gathering activities; Disagreements; Regime building; The way forward
1. Conclusions Military activities in the EEZ were a controversial issue during the negotiation of the text of the 1982 UNCLOS and continue to be so in state practice. This is confirmed by recent incidents such as the collision between a US EP3 and a Chinese fighter jet over China’s EEZ, the pursuit and engagement by the Japanese coast guard of a North Korean boat in Japan’s EEZ, and the protest by Vietnam regarding Chinese live fire exercises in its claimed EEZ. As technology advances, misunderstandings regarding military and intelligence gathering activities in foreign EEZs are bound to increase. Complicating this issue is confusion and double standards regarding the existing regime and uncertainty regarding boundaries and therefore jurisdiction. Clearly, there is a growing dichotomy between coastal states and maritime powers on these issues. And as military and intelligence gathering activities of maritime powers in foreign *Tel.: +1-808-944-7247; fax: +1-808-944-7399. E-mail address: [email protected] (M.J. Valencia). 0308-597X/$ - see front matter r 2003 Elsevier Ltd. All rights reserved. doi:10.1016/j.marpol.2003.10.013
EEZs increase, developing coastal states are increasing their surveillance and control of their EEZs. This dichotomy is further exacerbated by US and others’ scrutiny of possible terrorist activities in foreign EEZs. A major conclusion of this dialogue is that military and intelligence gathering activities in EEZs are going to become more controversial and more dangerous. In Asia, this disturbing prospect reflects the increasing and changing demands for technical intelligence; the robust weapons acquisition programs, especially increasing electronic warfare capabilities; and the widespread development of information warfare capabilities. Further, the scale and scope of maritime and airborne intelligence collection activities are likely to expand rapidly over the next decade, involving levels and sorts of activities quite unprecedented in peacetime. They will not only become more intensive but will also be generally more intrusive. They will generate tensions and more frequent crises; they will produce defensive reactions and escalatory dynamics; and they will lead to less stability in the most affected regions, especially in Asia.
ARTICLE IN PRESS 90
M.J. Valencia / Marine Policy 28 (2004) 89–96
There could well be more than a hundred signals intelligence (SIGINT) aircraft operating in East Asia within a decade, including dozens of UAVs. These are likely to cause substantial air traffic control problems, and increase the chances of accidents due to navigation failures and collisions. Countries subject to several daily SIGINT flights around their borders, or continuous surveillance by high-altitude UAVs such as the Global Hawk, will inevitably take counter-actions. These actions could range from shooting down the offending aircraft in extreme cases, to more likely, the development of electronic counter-measures. The latter will in turn generate more competitive actions regarding EW capabilities. ‘‘Peacetime’’ EW engagements will become more common. And in crisis situations, SIGINT and EW activities can become inflammatory and escalatory. Adversaries will want to protect their electronic secrets—e.g., the locations of emergency transmitters, new communications frequencies and circuits, air defence system alert, and back-up e-networks. Some aspects of regional SIGINT and EW capabilities may even encourage pre-emptive action. Many new long-range missile systems, including land-attack cruise missiles, anti-ship missiles, anti-radiation air-to-surface missiles, and some air-to-air missiles require over-thehorizon or beyond-visual-range targeting information, frequently provided by electronic intelligence (as well as radar and electro-optical imaging) systems. If these systems are degraded by an adversary, so is the utility of the missiles. At the strategic level, the collection systems which provide strategic intelligence to decision-makers as well as operational intelligence to defence commanders, and which are typically vulnerable to both physical and electromagnetic attacks, become high-priority targets in counter-command and control strategies. Anticipating this, the adversary is pressed to take preemptive action. Moreover, peripheral aircraft flights are particularly provocative because they are visible signs of efforts being made to penetrate the electronic secrets of the targeted country. And some such activities even deliberately provoke and then monitor the target country’s electronic responses, such as the changes in radar operating modes and communications frequencies, and in the chains of command and reportage at higher alert levels. Fortunately, there is at least some agreement on the conduct of military and intelligence gathering activities. In particular, there is agreement that the exercise of the freedom of navigation and overflight in and above EEZs should not interfere with or endanger the rights of the coastal state to protect and manage its own resources and its environment and should not be for the purpose of marine scientific research. And the exercise of such freedoms of navigation and overflight should not
interfere with the rights of the coastal states with regard to the establishment and use of artificial islands, installations and structures in the EEZ. But there is much more disagreement regarding these issues. Some of the disagreements relate to different interpretations of the relevant Law of the Sea provisions, some relate to the means of attempting to resolve the disagreements, and some relate to whether or not there is even a need to resolve such disagreements. The disagreements relating to the interpretations of 1982 UNCLOS provisions generally relate to the exact presumed meaning of the terms in the Convention as well as the meaning of specific Articles. There are specific differences with regard to the meaning of ‘‘freedom’’ of navigation and overflight in and above the EEZ, i.e., whether such freedoms can be limited by certain regulations—national, regional or international—or whether such freedoms are absolute. There are also different interpretations regarding the precise meaning of the Convention’s phrase allowing ‘‘other internationally lawful uses’’ of the sea in the EEZ. It is not clear what other lawful uses of the sea this term includes other than the right to navigate and overfly the EEZ. For example, some argue it does not include warfare in the EEZ of other countries. The interpretation of this phrase will in turn be affected by the interpretation of such terms as ‘‘due regard,’’ nonabuse of rights, peaceful activities, and the obligation not to threaten or use force against other countries. In this context, different interpretations arise as to whether particular military and intelligence gathering activities are a lawful exercise of the freedom of navigation and overflight, whether they are a non-abuse of rights, whether they pay ‘‘due regard’’ to the interests of the coastal countries, and whether some such activities are a threat to peace and security as well as the interests of the coastal countries. If the activities do not satisfy the above conditions, then the coastal state has the right to protect itself and to request the foreign ship or aircraft not to carry out the questionable activities. There would be a problem, however, if the foreign ship or aircraft disregarded the request and whether in such a situation the use of force or ‘‘board and inspect’’ might be justified. If such action is motivated by the need to protect marine resources and the environment, the request would be legitimate. But it is not clear whether such rules can be applied to foreign military vessels and aircraft conducting military and intelligence gathering activities in and above the EEZ. There also continues to be disagreement whether some military intelligence gathering and ‘‘hydrographic surveys’’ are scientific research and should be under a consent regime. The US and other maritime powers argue that military intelligence-gathering activities and military hydrographic surveys are distinct from marine
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
scientific research and are therefore not restricted by the provisions of the 1982 UNCLOS. According to this view, military intelligence gathering is not related to resource exploitation, and also would not normally be published or disseminated like scientific research. And hydrographic surveying is the mapping of the sea floor to facilitate navigational safety, particularly for submarines, and it is usually eventually made available to other countries and to the general public. Articles 240(a) and 246(3) of the 1982 UNCLOS state clearly that ‘‘marine scientific research shall be conducted exclusively for peaceful purposes.’’ Some argue that at least some activities may not be permitted because of this restriction, such as the implanting of surveillance devices monitoring the exit of submarines from ports, as well as devices which are capable of rendering ineffective the defenses of the coastal state. Scientific research on the marine environment can be undertaken by planes as well as from outer space. Planes have the right of overflight over the EEZ, but if they are gathering information regarding resources, some coastal states feel they should have some legal means of challenging the plane and investigating its activities. There is also disagreement on how to deal with these uncertainties. One opinion is that there is no need to be concerned, because there is no general pattern of such behavior or incidents. According to this view, each case should be dealt with separately by the parties concerned either through direct bilateral discussions or through direct bilateral agreements or arrangements. This option may work in some cases but not in others, particularly if the relations between the parties are poor or if there is no bilateral arrangement or agreement between them. Leaving the problem to chance could be dangerous in the long run. Moreover, the solution may be influenced by the comparative power of the parties in the sense that those who have the means to force their will would in the end prevail. A possibility for dealing with ‘‘terrorism’’ is the development of an international convention and regime. The SUA Convention is the only current international instrument dealing with terrorism, but it deals with specific acts, with or without political motivation and thus overlaps robbery at sea. It also lacks a regime. So action has to be based on the old rules on a case by case basis. The International Maritime Organization is considering expanding the SUA Convention to cover such terrorist acts as the transport of weapons of mass destruction and the use of a ship as a weapon. A key problem is that no one country can resolve these problems by itself. But co-operation may be difficult to achieve given different political perspectives on the definition of terrorism and ‘‘terrorist’’ and developing country concerns regarding sovereignty and jurisdictional issues.
91
As alternatives, the following approaches have been suggested. 1. A legal opinion on a particular matter could be sought either through the International Court of Justice as an ‘‘advisory opinion’’ or through the International Tribunal for the Law of the Sea. 2. The issues could also be dealt with through national legislation. Although this is not the ideal, national governments may be forced to deal with these matters unilaterally in order to protect their security and other interests. Indeed, where the text of a governing treaty leaves matters ambiguous or unresolved, the subsequent practices of states become particularly important to determine the proper interpretation of the treaty’s provisions. If more and more coastal countries enact unilateral national legislation prohibiting the exercise of military and intelligence gathering activities in and above their EEZ, then the prohibition against conducting such exercises could become part of customary international law through state practice, despite the opposition of some countries, particularly if those countries are not parties to the 1982 UNCLOS. 3. Another option is bilateral or regional arrangements between maritime powers and coastal countries as well as between adjacent and opposite neighboring countries. But it should be understood that the rules may differ between various bilateral or regional arrangements. The benefit of such an arrangement would be practical, in the sense that the countries involved would avoid regional tension by seeking solutions that could be acceptable to the countries in the region. Thus failing the resolution of these issues by the ICJ or the Tribunal, these disputes must be addressed through a chaotic and disorderly process whereby countries assert and defend their positions through state practices, followed by protests by disagreeing countries, and eventually by the give and take of diplomatic negotiations. Sooner or later a consensus emerges through this process. But meanwhile many sailors, pilots, and fishers may die as nations assert their unilateral positions, and even violent interstate conflicts may result. A more orderly option would be to increase dialogue, CBMs, and co-operative efforts among the states involved and strive for collective compromise and consensus. In this regard, the practice and experience with regard to the management of potential conflicts in the South China Sea could be instructive. A similar dialogue could be promoted on military and intelligence gathering between the regional or global maritime powers and the relevant coastal states, particularly those that are sensitive to such activities in their EEZ.
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
92
This dialogue would have as its objective the development of guidelines regarding such activities. The process should be all-inclusive and not exclude any directly interested parties; be as flexible as possible and avoid institutionalization, unless it is absolutely necessary; be informal, at least in the beginning; start with less sensitive issues which participants feel comfortable discussing without encouraging the concern of their respective governments or authorities; involve participants who are senior or important personalities in their governments, albeit in their private capacities; involve leaders who are widely perceived to be impartial and dedicated interlocutors, and who understand that managing potential conflicts requires a long-term effort and continuity; minimize differences and emphasize commonalities; be cost effective and step-by-step; have a simple objective, in this case to avoid misunderstanding, dispute and conflict; and be supported by sufficient resources, both financial and human. To summarize, the focus should be on developing a common understanding of terminology; guidelines for military and intelligence gathering activities in the EEZ; and, ultimately, a draft declaration of conduct analogous to that for the South China Sea.
* *
*
values and beliefs about reaching goals through cooperation are changed.2 While the establishment and operation of a functioning inclusive regional security dialogue appears unlikely at this particular moment, step-by-step movement in this direction is essential.3 2.1. Contributing factors to regime formation Contributing factors to maritime regime formation include: *
* *
*
*
*
2. Regime building What is being proposed is regime building. The first step in such a process is the creation of a sense of international community.1 The creation of such a community presupposes at least the mitigation and minimization of conflict, so that the interests and common needs shared by different nations outweigh the interests separating them. Common recognition that even a poor regime is better than none compels nations to collaborate to the extent of developing a minimally satisfactory solution. A functional approach can help the growth of positive and constructive common work and of common habits and interests, decreasing the significance of boundaries or conflicting claims by overlaying them with a natural growth of common activities and administrative agencies. The challenge for Asia then is to develop a variety of multilateral arrangements that will demonstrate that a habit of dialogue and working together can build common—and eventually—co-operative security. Tactical learning—in which the behavior of states towards co-operation is changed—must give way to complex learning in which 1
Aldo Chircop, ‘‘The emergence and evolution of Mediterranean regional environmental corporation: Lessons for regime building.’’ Paper presented at the Planning Meeting for a possible project on maritime regime building: Lessons Learned and their relevance for northeast Asia, 28–30 August 2000, Honolulu, Hawaii.
*
*
*
*
*
pre-existing habits of co-operation and institutional development, whether in the same sector or more generally, including the presence of relevant functioning institutions; national and regional leadership; clearly defined benefits to be gained through regional co-operation, which may be based on the presence of significant management challenges with clear regional dimensions; the need for capacity building, whether at the national level or through regional sharing of management capabilities; the presence of external threats, which may consolidate the regional position, and which may require a united front for an effective response; intra-regional maritime disputes which threaten security generally, and which motivate formation of a regime for conflict avoidance and/or dispute resolution; the existence of significant transnational networks of scientific or other communities which can provide both information on management issues and the stimulus for action; public awareness and concern with a given issue or range of issues; similar levels of economic development and capacity to fund the regime; a regional perception of participation of extraregional states as beneficial, or at least not opposed by major regional leaders; and informal arrangements and institutional approaches which avoid the pit-falls of formal ratification.
2 Steinar Andresen, ‘‘Lessons from marine regional co-operation: the North Sea and beyond.’’ Paper presented at the Planning meeting for a Possible Project on Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia, 28–30 August 2000, Honolulu, Hawaii. 3 Hasjim Djalal, ‘‘Lessons learned and their relevance for Northeast Asia: the experience of managing potential conflicts in the South China Sea.’’ Paper presented at the Planning meeting for a Possible Project on Maritime Regime Building: Lessons Learned and their Relevance for Northeast Asia, 28–20 August 2000, Honolulu, Hawaii.
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
3. Constraints There are also serious constraints to regime formation and evolution such as the use of an inappropriate model; excessive diversity; low capacity; low priority; no longterm commitment; insufficient public awareness of the problem and solutions; high politics, and a lack of regional consciousness. Indeed, active opposition from a major regional power can severely retard regime formation. The difficulties experienced so far in promoting the formation of ocean regimes in Northeast Asia may be due to the special, if not entirely unique, political characteristics of the region. The region lacks any modern history or tradition of political co-operation. The Northeast Asian states have always been uneasy neighbors at best, and often bitter enemies. Even given the recent warming of relations, the cultivation of trust between governments continues to tax the diplomatic skills of these countries’ most enlightened officials and politicians. Accordingly, the political milieu of Northeast Asia does not seem congenial to a formal initiative for inter-governmental regime building in this area. Indeed, a bold proposal in this regard by one of these countries would almost certainly provoke suspicions on the part of at least two of the others. There is also a marked degree of distinctiveness in the marine geography of Northeast Asia. Whereas most other marine regions consist of countries that look out at a single sea or ocean that is perceived as a shared, and potentially unifying environment—as an extension of their land-based economies—the countries of Northeast Asia face either the North Pacific, which is too vast to be perceived as their ‘‘shared dominion,’’ or a number of discrete Seas (Yellow, East China, Japan [East]) where sovereignty concerns tend to undermine the concept of shared authority and responsibility. Thus the geography of Northeast Asia seems unfriendly to the ideal of regional co-operation in the semienclosed seas—at least as a linked whole.
4. The necessity and form of co-operation There are myriad threats to maritime security, and vulnerabilities abound. In this situation, co-operation between flag and coastal states presents a powerful tool for improving mutual security while respecting the principles of sovereignty. However, such co-operation must be based on the principles of international law, and respect for the sovereign equality of states as well as the freedom of navigation. Moreover, co-operation based on these principles must not be confined to a limited number of offenses, but instead include interventions involving any threat to maritime security seaward of any state’s territorial sea.
93
The international community can draw on existing and proven co-operative models for law enforcement intervention in international waters, particularly those employed to combat illicit narcotic and migrant trafficking during the past 25 years. For example, boarding states must promptly seek, and flag states must promptly confirm, claims of vessel nationality, at any time. Additionally, flag states should be willing to use their own forces or to authorize the boarding and search of their vessels by others when presented by boarding states with reasonable grounds to believe that a vessel claiming the nationality of the flag state is involved in illicit activity. The boarding state should employ a three-part intervention model pursuant to international law, existing conventions and ad hoc arrangements. First, it must obtain evidence regarding vessel nationality and seek its confirmation. Second, upon confirming the nationality of the vessel, it must secure authorization to board and search from the flag state. And third, if evidence of illicit activity is detected, the boarding party should be able to detain the vessel, cargo, and persons on board on behalf of the flag state pending expeditious disposition instructions from the flag state. The approach to the flag state may include all three parts at the same time. Whatever the non-military threat to maritime security, the unifying principles of mutual cooperation and flag state jurisdiction provide the legal foundation for shipboarding, and the subsequent exercise of enforcement jurisdiction.
5. Co-operative ocean management as confidence building It would be enormously helpful if all Asian countries could appreciate the potential benefit of co-operative ocean management, such as confidence and security building. Indeed, co-operation in ocean management could have positive spillover effects in naval security cooperation in Asia. Given the rapprochement on the Korean Peninsula, and the warming of ties among China, Japan, South Korea and Russia, it is not too early to start thinking about multilateral security cooperation in Northeast Asia. And the best place to start may be with maritime affairs. Indeed, there is a growing need for maritime trustbuilding initiatives due to the new uncertainties and conflict points created by the 1996 wave of maritime jurisdictional extensions in the region to 200 nautical miles. These jurisdictional extensions and resulting disputes over maritime space and resources were thrust upon an already transitional and unstable political environment. However, these disputes can be mitigated by co-operative ocean management. Indeed, co-operative bilateral maritime arrangements have been proliferating over the past two years and may
ARTICLE IN PRESS 94
M.J. Valencia / Marine Policy 28 (2004) 89–96
provide the basis for possible trust-building multilateral agreements. These arrangements include bilateral fisheries agreements between Japan and South Korea, Japan and China, and China and South Korea and a prior notification regime for scientific research between China and Japan. But more to the point is the rapid increase in bi- and multilateral naval exercises and exchanges (Table 1). To build confidence among navies, multilateral initiatives must be realistic and pragmatic, using gradual, methodical approaches with clearly defined objectives. The best way is to begin small, avoid excessive formality, and use the bilateral initiatives as a foundation. The initial focus should be on low-level matters such as bilateral Incidents at Sea (INCSEA) agreements, which already exist between the United States and Russia, Japan and Russia, Japan and South Korea, and South Korea and Russia. Given this network of INCSEA agreements already in place, and China’s agreement with ASEAN on a Declaration of a Code of Conduct for the South China Sea, a multilateral agreement on a ‘‘code of conduct’’ for
Northeast Asian seas would be a natural step forward. Initially, any multilateral arrangement should not be strictly military but address common civil maritime problems like search and rescue, environmental protection, drug trafficking, and smuggling. In particular, multilateral co-operation in ocean management could have positive spillover effects on trust building among navies. However, there are still formidable obstacles to any multilateral security arrangement. North Korea has shown little desire to participate in multilateral discussions on security issues that would be necessary for a subregional INCSEA agreement. It has, however, joined the Association of Southeast Asian Nations (ASEAN) Regional Forum as an observer, as well as Track Two discussions in the Conference on Security Co-operation in the Asia-Pacific. China and Taiwan, on the other hand, still pose a serious problem. Any attempt to include both in an official agreement would be folly, unless the arrangement was instead considered an informal ‘‘understanding.’’ This is another reason why beginning with co-operative ocean management can help build the trust necessary to take further steps.
Table 1 Recent Maritime Co-operation ‘Experimental’ direct shipping between the PRC mainland (Xiamen) and the Taiwan (Kaohsiung)a China (CNOOC)–Taiwan (CPC) agreement to jointly explore for oil and gas in the Taiwan Straitb Japan (JNOC)–South Korea (KNOC) resumption of joint exploration for oil and gas in their Joint Development Areac China–South Korea discussion of the possibility of joint development in the Yellow Sead Resumption of joint South Korea–Japan joint maritime search and rescue drill off Cheju in the East China Seae The August 2002 Joint Russian–Japanese Coast Guard exercises in Aneva Bayf The May 2002 exchange of warship visits between China and South Korea and joint search and rescue exercisesg Russia–China joint naval maneuvers The June 2001 joint naval exercise of 16 nations hosted by Singapore including Chinese, Japanese, Russian, Indian and US forcesh An April 2002 five nation submarine rescue drill in Japanese waters involving Australia, Japan, Singapore, South Korea, and the United Statesi The May 2002 Cobra Gold exercise involving US, Thai and Singaporean forces and Team Challenge adding Philippine and Australian forces as well as aircraft from South Korea and Japanj The annual US hosted RIMPAC exercises including from Asia this year Australia, Japan and South Koreak US/China talks on military maritime safety under then Military Maritime Consultative Agreement and the agreement by Beijing to allow a US Navy ship to visit one of its ports in November 2002l The April 2002 APEC marine affairs ministerial meeting hosted by South Korea focused on maritime business, ocean science and technology, and the marine environmentm a
‘‘Xinhua Commentary urges Taiwan not to delay direct shipping links across strait,’’ BBC Monitoring Asia Pacific-Political, 20 April 2002. ‘‘Taiwan: Cross-strait joint-venture oil exploration plan revived,’’ BBC Monitoring Asia Pacific-Economic, 16 August 2001. c ‘‘South Korea, Japan to resume joint exploration for oil, gas reserves,’’ BBC Monitoring Asia Pacific-Political, 1 August 2002. d Following a joint symposium on Yellow Sea oil and gas exploration in October 1990, CNOOC officially proposed joint development of the Yellow Sea in March 1991, and the next month a South Korean mission was dispatched to discuss the CNOOC proposal. In June 1992, CNOOC repeated its request through a formal diplomatic channel for South Korean companies’ participation in Yellow Sea hydrocarbon exploration. Soon after the establishment of diplomatic relations in August 1992, the second South Korean–China international symposium on the petroleum potential of the Yellow Sea and the East China Sea was held in Seoul. In late 1992, a South Korean consortium composed of eight companies took part in the fourth international bidding for East China Sea oil and gas exploration and development, announced on 30 June 1992, and purchased the data package. Thus the possibility of Sino–South Korean co-operation in oil and gas development in areas of overlapping claims has been strengthened. e ‘‘South Korea, Japan hold joint naval drill,’’ Choson Ilbo, BBC Monitoring International Reports, 11 September 2002. f ‘‘Japanese–Russian coast guard exercises begin near Sakhalin,’’ BBC Monitoring Asia Pacific-Political, 28 August 2002. g ‘‘Chinese navy ships visit South Korea for the first time,’’ BBC Monitoring, Asia Pacific-Political, 8 May 2002. h ‘‘Armada aweigh: policing troubled waters,’’ The Statesman, New Delhi, 14 June 2001. i ‘‘5 Nations to conduct submarine drill in Japanese waters,’’ Korea Times, 3 April 2002. j ‘‘Chinese agency says US ‘core strategy’ in Asia-Pacific unchanged,’’ BBC Monitoring Asia Pacific-Political, 24 May 2002. k ‘‘Korea, Pacific nations to hold naval drill,’’ Korea Herald, 8 June 2002. l ‘‘Robert Burns, US, China repairing military d!etente,’’ Associated Press, 7 November 2002. m ‘‘APEC marine ministerial meeting to be held in South Korea,’’ 22–26 April, BBC Monitoring Asia Pacific-Political, 27 February 2002. b
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
Given Russia’s domestic turmoil, it is not likely to be a steady partner in any co-operative regime for some years to come, but nevertheless, to build a foundation for regional peace, it must be included. Including South Korea would be a political signal that the agreement was not exclusive or aimed at facilitating ‘‘a new concert of powers.’’ The US should be included because of its longterm regional naval involvement, its alliances with Japan and South Korea, and its forward deployed troops. Indeed, a US role may be critical because without its intelligence support, Japan and South Korea would probably be reluctant to join any multilateral security process or arrangement. Further out to sea—in space and time—an international naval or ‘‘self-defense’’ force might be created to ensure ocean peacekeeping, including safety of navigation. This joint force could focus on the area beyond national jurisdiction and emphasize protection of high-seas fisheries, air–sea rescue, and open-ocean environmental monitoring. However, when all is said and done, navy-to-navy arrangements will depend on the quality of political relations. And this can surely be enhanced by comprehensive bilateral and multilateral ocean management.
6. The way forward Given the constraints, the way forward for maritime regime building in Northeast Asia would include the following elements: * *
*
*
*
*
* *
an influential sponsoring organization; a ‘‘loose’’ second track initiative which would build the network from which could emerge national leaders or co-ordinators with some influence within national bureaucracies and which could help convert the effort into a dual-track process of regime building; an initial focus on a subregion which is not shared by a major unco-operative power, unless of course that power chooses to lead or support the multilateral effort; identification of an acceptable leading country and sufficient funding for at least the initial stages of the effort; differentiated obligations tailored to the capacity of the different participants; a definition of the region which is acceptable to all participants, possibly excluding areas of overlapping claims; addressing of the interests of outside powers; praise for existing arrangements while underscoring the rationale for co-operation;
*
*
*
*
95
encouragement of bilateral discussions and arrangements as complementary to the subregional effort and the goal of a multilateral regime; and avoidance of any impression that this is an effort to resolve or mitigate boundary or territorial issues; the effort should emphasize that boundaries are a matter only for the parties concerned that; this co-operative effort is necessary whether or not boundaries are resolved; and that the goal is to create a positive atmosphere—a sense of community—and a tradition of co-operation.
7. Next steps Given this conceptual and experiential context, the specific next steps for this effort can be deduced. It should start with the premise that limitations on military activities in the EEZ are greater than they are for civilian activities on the high seas. For example, there is agreement that there are limitations on these activities regarding threats to resources and the environment. However, the range of possible impacts of military activities on resources and the environment needs to be defined, including, e.g., live fire exercises and active sonar. It should also be recognized that it is dangerous to leave the interpretation of ‘‘due regard’’ solely to the operator on the spot. The guidelines for the operator must be clear. Also, there is concurrence that if the activity constitutes a threat of use of force against the state, it is not allowed. A second premise is that the activities of a foreign state should not interfere with the duties of the coastal state to monitor and manage its resources, particularly its surveillance and patrol in its own EEZ. There is agreement that the coastal state has the right to protect, manage and exploit the living and non-living resources of its EEZ; the duty to protect and preserve the marine environment of its EEZ; the right to conduct and to give permission for marine scientific research in its EEZ; and the exclusive right to construct, operate and use artificial islands, installations and structures in its EEZ. A working group should be established to develop a range of understanding of key terms. This would help future meetings and be a first step in a CBM process. This working group should be drawn from the concerned countries and would compile the definitions, and work out a draft set of guidelines. It would also produce a plan of action and next steps. And it would suggest co-operative programs that could eliminate misunderstandings on this topic. However, it must avoid stale and unproductive legal debates. Rather, it should focus on delineating common understandings or even a range of understandings and guidelines. It must be understood that the intended product is not a legal document. Whether or not it
ARTICLE IN PRESS 96
M.J. Valencia / Marine Policy 28 (2004) 89–96
becomes soft law will be in the eye of the beholder. If agreed guidelines are produced, they can be transmitted to governments. Governments may not agree with them, but this is the role of an informal group. Above all, it must be remembered that this is not an attempt to settle the disputes—only to manage them. To summarize, the specific next steps are 1. fact finding regarding previous incidents; 2. production of a glossary of definitions of critical terms or a range thereof; 3. categorization of activities in the EEZ as to what should or should not be allowed or restricted, i.e., draft guidelines; 4. the manner of implementation of coastal states’ rights; 5. the means and manner of enforcement of the agreed rules; and 6. suggestions for policy. These tasks should be approached step by step, perhaps beginning with the commissioning of papers on these topics. Also needed is an examination of INCSEA agreements to see if some provisions may be applicable to this topic and generally agreeable. The South China Sea Declaration may serve as a model objective. In pursuing a similar product, the group must be particularly mindful of the interests of the maritime powers, for without their involvement, the effort would be moot, at least for them. But such efforts could still be focused on building arrangements within the region. It is important to the process to include all those who wish to participate. Because the military is an extension of the state, policy planners should be involved in the dialogue, and it should examine political as well as military views. Also needed are ‘‘locomotives’’ as the leaders. It is also important to keep the planning group balanced and independent of specific national interests. This requires independent funds. The approach to this
task may be likened to that of a consultant. The present effort is the strategic stage. The next stage is the mission which requires the choice of technology, resources and process. There are some issues that can be addressed right away and some that need to be addressed over the longer term. Perhaps a steering group is required to make decisions regarding the composition of the working group and their agenda. This should include the organizing organizations and one or two others. There could also be reiteration and feedback from a wider network via e-mail. Focus must be maintained and ambitions curtailed. That is where the guidance of the steering group will be very important. The specific problems must also be defined. Is it the perceived threat of military activities in the EEZ to coastal state security? Is it the fear that hydrographic surveys are really intelligence gathering? Is it the effect of military activities on resources or the environment? The process needs to address one problem at a time and to seek solutions. And it needs to consider existing arrangements and previous studies that can be used to move forward. Moreover, there should be timelines and ‘‘deliverables.’’ Continuity in the process is of utmost importance. It is also important to keep these meetings informal and uninstitutionalized. The participants should act as individuals—but they should act. The participants should not be like-minded persons in similar professions. And the active participation of the navy is particularly important. They understand better than most that the common enemy is the sea. And as operators they are badly in need of guidance for ‘‘due regard.’’ In this sense, this dialogue reminds one of the best days of the law of the sea negotiations. There the navy captains were called the custodians of the oceans. Indeed, this dialogue has acquired much maturity in only one year and it could have a very significant impact on the resolution of these issues all over the world. Progress has been achieved and the momentum must be maintained.
Marine Policy 28 (2004) 89–96
Conclusions, regime building and the way forward Mark J. Valencia* East-West Center, 1601 East-West Road, Honolulu, Hawaii 96848-1601, USA
Abstract Military intelligence gathering activities in the EEZs are becoming more controversial and more dangerous due to increasing and changing demands for technical intelligence; robust weapons and electronic warfare; and widespread development of information warfare capabilities. There is agreement that freedom of navigation and overflight should not interfere with the coastal state’s right to protect and manage its EEZ resources and environment. But there is considerable disagreement on the meaning of some key 1982 UNCLOS language, the means of resolving these disagreements, or whether there is a need to do so. Each alternative approach to resolving these disagreements has its advantages and disadvantages. Needed now is a common understanding of terminology and guidelines for military and intelligence gathering activities in the EEZ. What is being proposed is regime building, a process which has its own conditions for, and constraints to, success. Foremost among the conditions for success is the recognition of the necessity of co-operation, and agreement on its form such as the SUA Convention, or ocean management, which may have a spillover effect to enhanced multilateral security. Given the constraints, a loose blueprint for the way forward can be constructed in which the continuity of this informal dialogue plays a major role. Specific next steps include fact finding regarding previous incidents; production of a glossary of definitions of critical terms; categorization of activities in the EEZ as to which are allowed and not allowed; the manner of implementation of coastal states’ rights; the means and manner of enforcement of any agreed rules; and specific suggestions for policy. r 2003 Elsevier Ltd. All rights reserved. Keywords: EEZ regime; Military and intelligence gathering activities; Disagreements; Regime building; The way forward
1. Conclusions Military activities in the EEZ were a controversial issue during the negotiation of the text of the 1982 UNCLOS and continue to be so in state practice. This is confirmed by recent incidents such as the collision between a US EP3 and a Chinese fighter jet over China’s EEZ, the pursuit and engagement by the Japanese coast guard of a North Korean boat in Japan’s EEZ, and the protest by Vietnam regarding Chinese live fire exercises in its claimed EEZ. As technology advances, misunderstandings regarding military and intelligence gathering activities in foreign EEZs are bound to increase. Complicating this issue is confusion and double standards regarding the existing regime and uncertainty regarding boundaries and therefore jurisdiction. Clearly, there is a growing dichotomy between coastal states and maritime powers on these issues. And as military and intelligence gathering activities of maritime powers in foreign *Tel.: +1-808-944-7247; fax: +1-808-944-7399. E-mail address: [email protected] (M.J. Valencia). 0308-597X/$ - see front matter r 2003 Elsevier Ltd. All rights reserved. doi:10.1016/j.marpol.2003.10.013
EEZs increase, developing coastal states are increasing their surveillance and control of their EEZs. This dichotomy is further exacerbated by US and others’ scrutiny of possible terrorist activities in foreign EEZs. A major conclusion of this dialogue is that military and intelligence gathering activities in EEZs are going to become more controversial and more dangerous. In Asia, this disturbing prospect reflects the increasing and changing demands for technical intelligence; the robust weapons acquisition programs, especially increasing electronic warfare capabilities; and the widespread development of information warfare capabilities. Further, the scale and scope of maritime and airborne intelligence collection activities are likely to expand rapidly over the next decade, involving levels and sorts of activities quite unprecedented in peacetime. They will not only become more intensive but will also be generally more intrusive. They will generate tensions and more frequent crises; they will produce defensive reactions and escalatory dynamics; and they will lead to less stability in the most affected regions, especially in Asia.
ARTICLE IN PRESS 90
M.J. Valencia / Marine Policy 28 (2004) 89–96
There could well be more than a hundred signals intelligence (SIGINT) aircraft operating in East Asia within a decade, including dozens of UAVs. These are likely to cause substantial air traffic control problems, and increase the chances of accidents due to navigation failures and collisions. Countries subject to several daily SIGINT flights around their borders, or continuous surveillance by high-altitude UAVs such as the Global Hawk, will inevitably take counter-actions. These actions could range from shooting down the offending aircraft in extreme cases, to more likely, the development of electronic counter-measures. The latter will in turn generate more competitive actions regarding EW capabilities. ‘‘Peacetime’’ EW engagements will become more common. And in crisis situations, SIGINT and EW activities can become inflammatory and escalatory. Adversaries will want to protect their electronic secrets—e.g., the locations of emergency transmitters, new communications frequencies and circuits, air defence system alert, and back-up e-networks. Some aspects of regional SIGINT and EW capabilities may even encourage pre-emptive action. Many new long-range missile systems, including land-attack cruise missiles, anti-ship missiles, anti-radiation air-to-surface missiles, and some air-to-air missiles require over-thehorizon or beyond-visual-range targeting information, frequently provided by electronic intelligence (as well as radar and electro-optical imaging) systems. If these systems are degraded by an adversary, so is the utility of the missiles. At the strategic level, the collection systems which provide strategic intelligence to decision-makers as well as operational intelligence to defence commanders, and which are typically vulnerable to both physical and electromagnetic attacks, become high-priority targets in counter-command and control strategies. Anticipating this, the adversary is pressed to take preemptive action. Moreover, peripheral aircraft flights are particularly provocative because they are visible signs of efforts being made to penetrate the electronic secrets of the targeted country. And some such activities even deliberately provoke and then monitor the target country’s electronic responses, such as the changes in radar operating modes and communications frequencies, and in the chains of command and reportage at higher alert levels. Fortunately, there is at least some agreement on the conduct of military and intelligence gathering activities. In particular, there is agreement that the exercise of the freedom of navigation and overflight in and above EEZs should not interfere with or endanger the rights of the coastal state to protect and manage its own resources and its environment and should not be for the purpose of marine scientific research. And the exercise of such freedoms of navigation and overflight should not
interfere with the rights of the coastal states with regard to the establishment and use of artificial islands, installations and structures in the EEZ. But there is much more disagreement regarding these issues. Some of the disagreements relate to different interpretations of the relevant Law of the Sea provisions, some relate to the means of attempting to resolve the disagreements, and some relate to whether or not there is even a need to resolve such disagreements. The disagreements relating to the interpretations of 1982 UNCLOS provisions generally relate to the exact presumed meaning of the terms in the Convention as well as the meaning of specific Articles. There are specific differences with regard to the meaning of ‘‘freedom’’ of navigation and overflight in and above the EEZ, i.e., whether such freedoms can be limited by certain regulations—national, regional or international—or whether such freedoms are absolute. There are also different interpretations regarding the precise meaning of the Convention’s phrase allowing ‘‘other internationally lawful uses’’ of the sea in the EEZ. It is not clear what other lawful uses of the sea this term includes other than the right to navigate and overfly the EEZ. For example, some argue it does not include warfare in the EEZ of other countries. The interpretation of this phrase will in turn be affected by the interpretation of such terms as ‘‘due regard,’’ nonabuse of rights, peaceful activities, and the obligation not to threaten or use force against other countries. In this context, different interpretations arise as to whether particular military and intelligence gathering activities are a lawful exercise of the freedom of navigation and overflight, whether they are a non-abuse of rights, whether they pay ‘‘due regard’’ to the interests of the coastal countries, and whether some such activities are a threat to peace and security as well as the interests of the coastal countries. If the activities do not satisfy the above conditions, then the coastal state has the right to protect itself and to request the foreign ship or aircraft not to carry out the questionable activities. There would be a problem, however, if the foreign ship or aircraft disregarded the request and whether in such a situation the use of force or ‘‘board and inspect’’ might be justified. If such action is motivated by the need to protect marine resources and the environment, the request would be legitimate. But it is not clear whether such rules can be applied to foreign military vessels and aircraft conducting military and intelligence gathering activities in and above the EEZ. There also continues to be disagreement whether some military intelligence gathering and ‘‘hydrographic surveys’’ are scientific research and should be under a consent regime. The US and other maritime powers argue that military intelligence-gathering activities and military hydrographic surveys are distinct from marine
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
scientific research and are therefore not restricted by the provisions of the 1982 UNCLOS. According to this view, military intelligence gathering is not related to resource exploitation, and also would not normally be published or disseminated like scientific research. And hydrographic surveying is the mapping of the sea floor to facilitate navigational safety, particularly for submarines, and it is usually eventually made available to other countries and to the general public. Articles 240(a) and 246(3) of the 1982 UNCLOS state clearly that ‘‘marine scientific research shall be conducted exclusively for peaceful purposes.’’ Some argue that at least some activities may not be permitted because of this restriction, such as the implanting of surveillance devices monitoring the exit of submarines from ports, as well as devices which are capable of rendering ineffective the defenses of the coastal state. Scientific research on the marine environment can be undertaken by planes as well as from outer space. Planes have the right of overflight over the EEZ, but if they are gathering information regarding resources, some coastal states feel they should have some legal means of challenging the plane and investigating its activities. There is also disagreement on how to deal with these uncertainties. One opinion is that there is no need to be concerned, because there is no general pattern of such behavior or incidents. According to this view, each case should be dealt with separately by the parties concerned either through direct bilateral discussions or through direct bilateral agreements or arrangements. This option may work in some cases but not in others, particularly if the relations between the parties are poor or if there is no bilateral arrangement or agreement between them. Leaving the problem to chance could be dangerous in the long run. Moreover, the solution may be influenced by the comparative power of the parties in the sense that those who have the means to force their will would in the end prevail. A possibility for dealing with ‘‘terrorism’’ is the development of an international convention and regime. The SUA Convention is the only current international instrument dealing with terrorism, but it deals with specific acts, with or without political motivation and thus overlaps robbery at sea. It also lacks a regime. So action has to be based on the old rules on a case by case basis. The International Maritime Organization is considering expanding the SUA Convention to cover such terrorist acts as the transport of weapons of mass destruction and the use of a ship as a weapon. A key problem is that no one country can resolve these problems by itself. But co-operation may be difficult to achieve given different political perspectives on the definition of terrorism and ‘‘terrorist’’ and developing country concerns regarding sovereignty and jurisdictional issues.
91
As alternatives, the following approaches have been suggested. 1. A legal opinion on a particular matter could be sought either through the International Court of Justice as an ‘‘advisory opinion’’ or through the International Tribunal for the Law of the Sea. 2. The issues could also be dealt with through national legislation. Although this is not the ideal, national governments may be forced to deal with these matters unilaterally in order to protect their security and other interests. Indeed, where the text of a governing treaty leaves matters ambiguous or unresolved, the subsequent practices of states become particularly important to determine the proper interpretation of the treaty’s provisions. If more and more coastal countries enact unilateral national legislation prohibiting the exercise of military and intelligence gathering activities in and above their EEZ, then the prohibition against conducting such exercises could become part of customary international law through state practice, despite the opposition of some countries, particularly if those countries are not parties to the 1982 UNCLOS. 3. Another option is bilateral or regional arrangements between maritime powers and coastal countries as well as between adjacent and opposite neighboring countries. But it should be understood that the rules may differ between various bilateral or regional arrangements. The benefit of such an arrangement would be practical, in the sense that the countries involved would avoid regional tension by seeking solutions that could be acceptable to the countries in the region. Thus failing the resolution of these issues by the ICJ or the Tribunal, these disputes must be addressed through a chaotic and disorderly process whereby countries assert and defend their positions through state practices, followed by protests by disagreeing countries, and eventually by the give and take of diplomatic negotiations. Sooner or later a consensus emerges through this process. But meanwhile many sailors, pilots, and fishers may die as nations assert their unilateral positions, and even violent interstate conflicts may result. A more orderly option would be to increase dialogue, CBMs, and co-operative efforts among the states involved and strive for collective compromise and consensus. In this regard, the practice and experience with regard to the management of potential conflicts in the South China Sea could be instructive. A similar dialogue could be promoted on military and intelligence gathering between the regional or global maritime powers and the relevant coastal states, particularly those that are sensitive to such activities in their EEZ.
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
92
This dialogue would have as its objective the development of guidelines regarding such activities. The process should be all-inclusive and not exclude any directly interested parties; be as flexible as possible and avoid institutionalization, unless it is absolutely necessary; be informal, at least in the beginning; start with less sensitive issues which participants feel comfortable discussing without encouraging the concern of their respective governments or authorities; involve participants who are senior or important personalities in their governments, albeit in their private capacities; involve leaders who are widely perceived to be impartial and dedicated interlocutors, and who understand that managing potential conflicts requires a long-term effort and continuity; minimize differences and emphasize commonalities; be cost effective and step-by-step; have a simple objective, in this case to avoid misunderstanding, dispute and conflict; and be supported by sufficient resources, both financial and human. To summarize, the focus should be on developing a common understanding of terminology; guidelines for military and intelligence gathering activities in the EEZ; and, ultimately, a draft declaration of conduct analogous to that for the South China Sea.
* *
*
values and beliefs about reaching goals through cooperation are changed.2 While the establishment and operation of a functioning inclusive regional security dialogue appears unlikely at this particular moment, step-by-step movement in this direction is essential.3 2.1. Contributing factors to regime formation Contributing factors to maritime regime formation include: *
* *
*
*
*
2. Regime building What is being proposed is regime building. The first step in such a process is the creation of a sense of international community.1 The creation of such a community presupposes at least the mitigation and minimization of conflict, so that the interests and common needs shared by different nations outweigh the interests separating them. Common recognition that even a poor regime is better than none compels nations to collaborate to the extent of developing a minimally satisfactory solution. A functional approach can help the growth of positive and constructive common work and of common habits and interests, decreasing the significance of boundaries or conflicting claims by overlaying them with a natural growth of common activities and administrative agencies. The challenge for Asia then is to develop a variety of multilateral arrangements that will demonstrate that a habit of dialogue and working together can build common—and eventually—co-operative security. Tactical learning—in which the behavior of states towards co-operation is changed—must give way to complex learning in which 1
Aldo Chircop, ‘‘The emergence and evolution of Mediterranean regional environmental corporation: Lessons for regime building.’’ Paper presented at the Planning Meeting for a possible project on maritime regime building: Lessons Learned and their relevance for northeast Asia, 28–30 August 2000, Honolulu, Hawaii.
*
*
*
*
*
pre-existing habits of co-operation and institutional development, whether in the same sector or more generally, including the presence of relevant functioning institutions; national and regional leadership; clearly defined benefits to be gained through regional co-operation, which may be based on the presence of significant management challenges with clear regional dimensions; the need for capacity building, whether at the national level or through regional sharing of management capabilities; the presence of external threats, which may consolidate the regional position, and which may require a united front for an effective response; intra-regional maritime disputes which threaten security generally, and which motivate formation of a regime for conflict avoidance and/or dispute resolution; the existence of significant transnational networks of scientific or other communities which can provide both information on management issues and the stimulus for action; public awareness and concern with a given issue or range of issues; similar levels of economic development and capacity to fund the regime; a regional perception of participation of extraregional states as beneficial, or at least not opposed by major regional leaders; and informal arrangements and institutional approaches which avoid the pit-falls of formal ratification.
2 Steinar Andresen, ‘‘Lessons from marine regional co-operation: the North Sea and beyond.’’ Paper presented at the Planning meeting for a Possible Project on Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia, 28–30 August 2000, Honolulu, Hawaii. 3 Hasjim Djalal, ‘‘Lessons learned and their relevance for Northeast Asia: the experience of managing potential conflicts in the South China Sea.’’ Paper presented at the Planning meeting for a Possible Project on Maritime Regime Building: Lessons Learned and their Relevance for Northeast Asia, 28–20 August 2000, Honolulu, Hawaii.
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
3. Constraints There are also serious constraints to regime formation and evolution such as the use of an inappropriate model; excessive diversity; low capacity; low priority; no longterm commitment; insufficient public awareness of the problem and solutions; high politics, and a lack of regional consciousness. Indeed, active opposition from a major regional power can severely retard regime formation. The difficulties experienced so far in promoting the formation of ocean regimes in Northeast Asia may be due to the special, if not entirely unique, political characteristics of the region. The region lacks any modern history or tradition of political co-operation. The Northeast Asian states have always been uneasy neighbors at best, and often bitter enemies. Even given the recent warming of relations, the cultivation of trust between governments continues to tax the diplomatic skills of these countries’ most enlightened officials and politicians. Accordingly, the political milieu of Northeast Asia does not seem congenial to a formal initiative for inter-governmental regime building in this area. Indeed, a bold proposal in this regard by one of these countries would almost certainly provoke suspicions on the part of at least two of the others. There is also a marked degree of distinctiveness in the marine geography of Northeast Asia. Whereas most other marine regions consist of countries that look out at a single sea or ocean that is perceived as a shared, and potentially unifying environment—as an extension of their land-based economies—the countries of Northeast Asia face either the North Pacific, which is too vast to be perceived as their ‘‘shared dominion,’’ or a number of discrete Seas (Yellow, East China, Japan [East]) where sovereignty concerns tend to undermine the concept of shared authority and responsibility. Thus the geography of Northeast Asia seems unfriendly to the ideal of regional co-operation in the semienclosed seas—at least as a linked whole.
4. The necessity and form of co-operation There are myriad threats to maritime security, and vulnerabilities abound. In this situation, co-operation between flag and coastal states presents a powerful tool for improving mutual security while respecting the principles of sovereignty. However, such co-operation must be based on the principles of international law, and respect for the sovereign equality of states as well as the freedom of navigation. Moreover, co-operation based on these principles must not be confined to a limited number of offenses, but instead include interventions involving any threat to maritime security seaward of any state’s territorial sea.
93
The international community can draw on existing and proven co-operative models for law enforcement intervention in international waters, particularly those employed to combat illicit narcotic and migrant trafficking during the past 25 years. For example, boarding states must promptly seek, and flag states must promptly confirm, claims of vessel nationality, at any time. Additionally, flag states should be willing to use their own forces or to authorize the boarding and search of their vessels by others when presented by boarding states with reasonable grounds to believe that a vessel claiming the nationality of the flag state is involved in illicit activity. The boarding state should employ a three-part intervention model pursuant to international law, existing conventions and ad hoc arrangements. First, it must obtain evidence regarding vessel nationality and seek its confirmation. Second, upon confirming the nationality of the vessel, it must secure authorization to board and search from the flag state. And third, if evidence of illicit activity is detected, the boarding party should be able to detain the vessel, cargo, and persons on board on behalf of the flag state pending expeditious disposition instructions from the flag state. The approach to the flag state may include all three parts at the same time. Whatever the non-military threat to maritime security, the unifying principles of mutual cooperation and flag state jurisdiction provide the legal foundation for shipboarding, and the subsequent exercise of enforcement jurisdiction.
5. Co-operative ocean management as confidence building It would be enormously helpful if all Asian countries could appreciate the potential benefit of co-operative ocean management, such as confidence and security building. Indeed, co-operation in ocean management could have positive spillover effects in naval security cooperation in Asia. Given the rapprochement on the Korean Peninsula, and the warming of ties among China, Japan, South Korea and Russia, it is not too early to start thinking about multilateral security cooperation in Northeast Asia. And the best place to start may be with maritime affairs. Indeed, there is a growing need for maritime trustbuilding initiatives due to the new uncertainties and conflict points created by the 1996 wave of maritime jurisdictional extensions in the region to 200 nautical miles. These jurisdictional extensions and resulting disputes over maritime space and resources were thrust upon an already transitional and unstable political environment. However, these disputes can be mitigated by co-operative ocean management. Indeed, co-operative bilateral maritime arrangements have been proliferating over the past two years and may
ARTICLE IN PRESS 94
M.J. Valencia / Marine Policy 28 (2004) 89–96
provide the basis for possible trust-building multilateral agreements. These arrangements include bilateral fisheries agreements between Japan and South Korea, Japan and China, and China and South Korea and a prior notification regime for scientific research between China and Japan. But more to the point is the rapid increase in bi- and multilateral naval exercises and exchanges (Table 1). To build confidence among navies, multilateral initiatives must be realistic and pragmatic, using gradual, methodical approaches with clearly defined objectives. The best way is to begin small, avoid excessive formality, and use the bilateral initiatives as a foundation. The initial focus should be on low-level matters such as bilateral Incidents at Sea (INCSEA) agreements, which already exist between the United States and Russia, Japan and Russia, Japan and South Korea, and South Korea and Russia. Given this network of INCSEA agreements already in place, and China’s agreement with ASEAN on a Declaration of a Code of Conduct for the South China Sea, a multilateral agreement on a ‘‘code of conduct’’ for
Northeast Asian seas would be a natural step forward. Initially, any multilateral arrangement should not be strictly military but address common civil maritime problems like search and rescue, environmental protection, drug trafficking, and smuggling. In particular, multilateral co-operation in ocean management could have positive spillover effects on trust building among navies. However, there are still formidable obstacles to any multilateral security arrangement. North Korea has shown little desire to participate in multilateral discussions on security issues that would be necessary for a subregional INCSEA agreement. It has, however, joined the Association of Southeast Asian Nations (ASEAN) Regional Forum as an observer, as well as Track Two discussions in the Conference on Security Co-operation in the Asia-Pacific. China and Taiwan, on the other hand, still pose a serious problem. Any attempt to include both in an official agreement would be folly, unless the arrangement was instead considered an informal ‘‘understanding.’’ This is another reason why beginning with co-operative ocean management can help build the trust necessary to take further steps.
Table 1 Recent Maritime Co-operation ‘Experimental’ direct shipping between the PRC mainland (Xiamen) and the Taiwan (Kaohsiung)a China (CNOOC)–Taiwan (CPC) agreement to jointly explore for oil and gas in the Taiwan Straitb Japan (JNOC)–South Korea (KNOC) resumption of joint exploration for oil and gas in their Joint Development Areac China–South Korea discussion of the possibility of joint development in the Yellow Sead Resumption of joint South Korea–Japan joint maritime search and rescue drill off Cheju in the East China Seae The August 2002 Joint Russian–Japanese Coast Guard exercises in Aneva Bayf The May 2002 exchange of warship visits between China and South Korea and joint search and rescue exercisesg Russia–China joint naval maneuvers The June 2001 joint naval exercise of 16 nations hosted by Singapore including Chinese, Japanese, Russian, Indian and US forcesh An April 2002 five nation submarine rescue drill in Japanese waters involving Australia, Japan, Singapore, South Korea, and the United Statesi The May 2002 Cobra Gold exercise involving US, Thai and Singaporean forces and Team Challenge adding Philippine and Australian forces as well as aircraft from South Korea and Japanj The annual US hosted RIMPAC exercises including from Asia this year Australia, Japan and South Koreak US/China talks on military maritime safety under then Military Maritime Consultative Agreement and the agreement by Beijing to allow a US Navy ship to visit one of its ports in November 2002l The April 2002 APEC marine affairs ministerial meeting hosted by South Korea focused on maritime business, ocean science and technology, and the marine environmentm a
‘‘Xinhua Commentary urges Taiwan not to delay direct shipping links across strait,’’ BBC Monitoring Asia Pacific-Political, 20 April 2002. ‘‘Taiwan: Cross-strait joint-venture oil exploration plan revived,’’ BBC Monitoring Asia Pacific-Economic, 16 August 2001. c ‘‘South Korea, Japan to resume joint exploration for oil, gas reserves,’’ BBC Monitoring Asia Pacific-Political, 1 August 2002. d Following a joint symposium on Yellow Sea oil and gas exploration in October 1990, CNOOC officially proposed joint development of the Yellow Sea in March 1991, and the next month a South Korean mission was dispatched to discuss the CNOOC proposal. In June 1992, CNOOC repeated its request through a formal diplomatic channel for South Korean companies’ participation in Yellow Sea hydrocarbon exploration. Soon after the establishment of diplomatic relations in August 1992, the second South Korean–China international symposium on the petroleum potential of the Yellow Sea and the East China Sea was held in Seoul. In late 1992, a South Korean consortium composed of eight companies took part in the fourth international bidding for East China Sea oil and gas exploration and development, announced on 30 June 1992, and purchased the data package. Thus the possibility of Sino–South Korean co-operation in oil and gas development in areas of overlapping claims has been strengthened. e ‘‘South Korea, Japan hold joint naval drill,’’ Choson Ilbo, BBC Monitoring International Reports, 11 September 2002. f ‘‘Japanese–Russian coast guard exercises begin near Sakhalin,’’ BBC Monitoring Asia Pacific-Political, 28 August 2002. g ‘‘Chinese navy ships visit South Korea for the first time,’’ BBC Monitoring, Asia Pacific-Political, 8 May 2002. h ‘‘Armada aweigh: policing troubled waters,’’ The Statesman, New Delhi, 14 June 2001. i ‘‘5 Nations to conduct submarine drill in Japanese waters,’’ Korea Times, 3 April 2002. j ‘‘Chinese agency says US ‘core strategy’ in Asia-Pacific unchanged,’’ BBC Monitoring Asia Pacific-Political, 24 May 2002. k ‘‘Korea, Pacific nations to hold naval drill,’’ Korea Herald, 8 June 2002. l ‘‘Robert Burns, US, China repairing military d!etente,’’ Associated Press, 7 November 2002. m ‘‘APEC marine ministerial meeting to be held in South Korea,’’ 22–26 April, BBC Monitoring Asia Pacific-Political, 27 February 2002. b
ARTICLE IN PRESS M.J. Valencia / Marine Policy 28 (2004) 89–96
Given Russia’s domestic turmoil, it is not likely to be a steady partner in any co-operative regime for some years to come, but nevertheless, to build a foundation for regional peace, it must be included. Including South Korea would be a political signal that the agreement was not exclusive or aimed at facilitating ‘‘a new concert of powers.’’ The US should be included because of its longterm regional naval involvement, its alliances with Japan and South Korea, and its forward deployed troops. Indeed, a US role may be critical because without its intelligence support, Japan and South Korea would probably be reluctant to join any multilateral security process or arrangement. Further out to sea—in space and time—an international naval or ‘‘self-defense’’ force might be created to ensure ocean peacekeeping, including safety of navigation. This joint force could focus on the area beyond national jurisdiction and emphasize protection of high-seas fisheries, air–sea rescue, and open-ocean environmental monitoring. However, when all is said and done, navy-to-navy arrangements will depend on the quality of political relations. And this can surely be enhanced by comprehensive bilateral and multilateral ocean management.
6. The way forward Given the constraints, the way forward for maritime regime building in Northeast Asia would include the following elements: * *
*
*
*
*
* *
an influential sponsoring organization; a ‘‘loose’’ second track initiative which would build the network from which could emerge national leaders or co-ordinators with some influence within national bureaucracies and which could help convert the effort into a dual-track process of regime building; an initial focus on a subregion which is not shared by a major unco-operative power, unless of course that power chooses to lead or support the multilateral effort; identification of an acceptable leading country and sufficient funding for at least the initial stages of the effort; differentiated obligations tailored to the capacity of the different participants; a definition of the region which is acceptable to all participants, possibly excluding areas of overlapping claims; addressing of the interests of outside powers; praise for existing arrangements while underscoring the rationale for co-operation;
*
*
*
*
95
encouragement of bilateral discussions and arrangements as complementary to the subregional effort and the goal of a multilateral regime; and avoidance of any impression that this is an effort to resolve or mitigate boundary or territorial issues; the effort should emphasize that boundaries are a matter only for the parties concerned that; this co-operative effort is necessary whether or not boundaries are resolved; and that the goal is to create a positive atmosphere—a sense of community—and a tradition of co-operation.
7. Next steps Given this conceptual and experiential context, the specific next steps for this effort can be deduced. It should start with the premise that limitations on military activities in the EEZ are greater than they are for civilian activities on the high seas. For example, there is agreement that there are limitations on these activities regarding threats to resources and the environment. However, the range of possible impacts of military activities on resources and the environment needs to be defined, including, e.g., live fire exercises and active sonar. It should also be recognized that it is dangerous to leave the interpretation of ‘‘due regard’’ solely to the operator on the spot. The guidelines for the operator must be clear. Also, there is concurrence that if the activity constitutes a threat of use of force against the state, it is not allowed. A second premise is that the activities of a foreign state should not interfere with the duties of the coastal state to monitor and manage its resources, particularly its surveillance and patrol in its own EEZ. There is agreement that the coastal state has the right to protect, manage and exploit the living and non-living resources of its EEZ; the duty to protect and preserve the marine environment of its EEZ; the right to conduct and to give permission for marine scientific research in its EEZ; and the exclusive right to construct, operate and use artificial islands, installations and structures in its EEZ. A working group should be established to develop a range of understanding of key terms. This would help future meetings and be a first step in a CBM process. This working group should be drawn from the concerned countries and would compile the definitions, and work out a draft set of guidelines. It would also produce a plan of action and next steps. And it would suggest co-operative programs that could eliminate misunderstandings on this topic. However, it must avoid stale and unproductive legal debates. Rather, it should focus on delineating common understandings or even a range of understandings and guidelines. It must be understood that the intended product is not a legal document. Whether or not it
ARTICLE IN PRESS 96
M.J. Valencia / Marine Policy 28 (2004) 89–96
becomes soft law will be in the eye of the beholder. If agreed guidelines are produced, they can be transmitted to governments. Governments may not agree with them, but this is the role of an informal group. Above all, it must be remembered that this is not an attempt to settle the disputes—only to manage them. To summarize, the specific next steps are 1. fact finding regarding previous incidents; 2. production of a glossary of definitions of critical terms or a range thereof; 3. categorization of activities in the EEZ as to what should or should not be allowed or restricted, i.e., draft guidelines; 4. the manner of implementation of coastal states’ rights; 5. the means and manner of enforcement of the agreed rules; and 6. suggestions for policy. These tasks should be approached step by step, perhaps beginning with the commissioning of papers on these topics. Also needed is an examination of INCSEA agreements to see if some provisions may be applicable to this topic and generally agreeable. The South China Sea Declaration may serve as a model objective. In pursuing a similar product, the group must be particularly mindful of the interests of the maritime powers, for without their involvement, the effort would be moot, at least for them. But such efforts could still be focused on building arrangements within the region. It is important to the process to include all those who wish to participate. Because the military is an extension of the state, policy planners should be involved in the dialogue, and it should examine political as well as military views. Also needed are ‘‘locomotives’’ as the leaders. It is also important to keep the planning group balanced and independent of specific national interests. This requires independent funds. The approach to this
task may be likened to that of a consultant. The present effort is the strategic stage. The next stage is the mission which requires the choice of technology, resources and process. There are some issues that can be addressed right away and some that need to be addressed over the longer term. Perhaps a steering group is required to make decisions regarding the composition of the working group and their agenda. This should include the organizing organizations and one or two others. There could also be reiteration and feedback from a wider network via e-mail. Focus must be maintained and ambitions curtailed. That is where the guidance of the steering group will be very important. The specific problems must also be defined. Is it the perceived threat of military activities in the EEZ to coastal state security? Is it the fear that hydrographic surveys are really intelligence gathering? Is it the effect of military activities on resources or the environment? The process needs to address one problem at a time and to seek solutions. And it needs to consider existing arrangements and previous studies that can be used to move forward. Moreover, there should be timelines and ‘‘deliverables.’’ Continuity in the process is of utmost importance. It is also important to keep these meetings informal and uninstitutionalized. The participants should act as individuals—but they should act. The participants should not be like-minded persons in similar professions. And the active participation of the navy is particularly important. They understand better than most that the common enemy is the sea. And as operators they are badly in need of guidance for ‘‘due regard.’’ In this sense, this dialogue reminds one of the best days of the law of the sea negotiations. There the navy captains were called the custodians of the oceans. Indeed, this dialogue has acquired much maturity in only one year and it could have a very significant impact on the resolution of these issues all over the world. Progress has been achieved and the momentum must be maintained.