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Rough waters in the South China Sea : navigation issues and confidence-building measures

The April 1, 2001, collision between a U.S. spy plane and a Chinese jet fighter 70 nm off the southeast coast of Hainan dramatically brought to the world's attention an ongoing area of dispute between the United States and China: the rules governing navigation in the exclusive economic zones (EEZ) of the South China Sea. The United States says that its spy plane was flying over international waters and had freedom of navigation. China says that it was flying in China's EEZ and was subject to the laws and regulations of China. Though the return of the plane to U.S. soil brought the incident to an end, the underlying causes of the dispute remain and similar disputes can be expected to erupt. China demands that the United States halt its spy flights off the Chinese coast, the United States, saying its flights are standard and legal, resumed the flights in early May.This dispute, though exceptionally high profile, is one of many that occur each year on and over the South China Sea. Conflicts over freedom of navigation in EEZs are increasing in the South China Sea -a semi-enclosed sea bounded by China, Vietnam, the Philippines, Malaysia, Brunei, and Indonesia, in which extended jurisdictional claims are replacing the high seas with EEZs. Today, with virtually all travel through the South China Sea passing through one or more EEZs, the rules of navigation are frequently contested. The nations rimming the sea have all had their disputes, and just as the U.S.-China conflict is not likely to be the last between those two nations, there are likely to be further disputes between other nations, and disputes of increasing intensity. To reduce the number and intensity of the disputes, a multilateral confidence-building arrangement focused on the practical issues of navigation (as opposed to the territorial issues) would be ideal, but a regional agreement is most likely to be achieved in increments, with bilateral agreements paving the way. The agreements should, while respecting the resource regulations of coastal states, guarantee freedom of navigation and regulate the behavior of naval activities in the air and on the sea in the EEZs. First steps in this direction were taken in January 1998, when China and the United States entered into a Military Maritime Consultative Agreement (MMCA) designed to establish a consultation mechanism comprising annual meetings, working groups, and special meetings to strengthen military maritime safety and prevent accidents at sea. Though a meeting was held in July 1998, the agreement was shelved by the Bush administration. But the MMCA could serve as the first step in confidencebuilding measures; eventually, it could be a model for a regional agreement.The South China SeaThe South China Sea is a strategic waterway providing the key maritime link between the Indian Ocean and East Asia. Sea lines of communication (SLOCs) of the South China Sea are a matter of life and death for the Asia Pacific countries, and SLOC security has been a fundamental factor contributing to regional economic development. More than 41,000 ships a year pass through the South China Sea, more than double the number that pass through the Suez Canal, and nearly triple the total for the Panama Canal. More than half of the world's annual merchant-fleet tonnage passes through the straits of Malacca, Sunda, and Lombok. For the United States, the Malacca Strait is critical to the mobility and flexibility of its Seventh Fleet.But the SLOCs are hardly secure. The provisions of the UN Law of the Sea Convention (LOSC) relating to the principle of freedom of navigation are interpreted variously by different countries. Many navies, including those of the maritime powers (nations with blue-water navies), are maneuvering in EEZs of the South China Sea, where multiplying and overlapping jurisdictional claims confuse the rules of passage. In addition, sea piracy and pollution, which observe no national borders, are on the increase. …