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N.E. Asia needs a maritime code of conduct

by Mark Valencia

KANEOHE, Hawaii — Japan and China have wisely stepped back from the political brink in the East China Sea. But if the past has anything to say about the future, there will be similar serious confrontations at sea disturbing not only relations between the disputants but the security regime in Asia. Indeed, Japan and South Korea have had similar serious faceoffs regarding the Dokdo/Takeshima islets in the Sea of Japan.

This instability is not acceptable — not only for the parties directly concerned but for their neighbors and extra-regional partners. What is needed is some guidelines or an agreed declaration of expected behavior in disputed areas that could avert such confrontations.

For many years the East China Sea and the Sea of Japan were dangerous no man’s land. But Northeast Asian nations avoided escalating tension with their neighbors by refraining from extending their maritime jurisdiction and in general forgoing provocative activities. Once they extended their jurisdiction and disputes arose, they forged an ad hoc maritime conflict avoidance regime incorporating principles of self-restraint and sharing of resources in disputed areas.

Once the region wipes the sweat off its collective brow, the recent race toward a political cliff — and the fervent nationalism it released — should encourage the expansion of this regime. The fundament and intent already exist. In February 2007, the six parties to the talks regarding peace on the Korean Peninsula agreed to negotiate a regional security mechanism in an appropriate separate forum.

More to the point, all Northeast Asian states except North Korea have ratified the 1982 U.N. Convention on the Law of the Sea (UNCLOS). The convention provides a general framework and some specific confidence and security building measures. For example, some agreements in the region already implement the convention’s stipulation that pending agreement on exclusive economic zones (EEZ) and continental shelf boundaries, the parties concerned shall enter into “provisional arrangements of a practical nature” for management of resources in areas of overlapping claims. Such provisional arrangements in Northeast Asia include agreements between China and Japan, China and South Korea, and Japan and South Korea to share fish stocks in their respective disputed areas.

More significant, Japan and South Korea have been undertaking joint development of hydrocarbons for nearly 40 years in their area of overlapping continental shelf claims in the northern East China Sea. Even more remarkable, in December 2005 North Korea and China forged a similar arrangement in the West Korea Bay. And Japan and China have agreed in principle to do the same in the central East China Sea.

Moreover after several serious incidents, Japan and China established a mutual “prior notification” regime for scientific research in their disputed area in the East China. Bilateral military arrangements of direct security significance include incidents at sea agreements between the United States and Russia, Russia and South Korea, and Russia and Japan, and a maritime consultative agreement between the U.S. and China. Given this network of conflict avoidance arrangements, an agreed declaration of expected conduct would be a logical next step.

But what should such a code contain? We have just witnessed one necessary item — the question of arrest and detention of fishing vessels of fellow claimants. It should also govern any and all other activities in disputed areas, e.g., resource exploration and exploitation, marine scientific research, marine and aerial “spy probes,” and other military activities in disputed EEZs. Right up front must be a clause stating that nothing in the declaration prejudices any party’s sovereign rights or jurisdiction in its claimed territory, territorial sea, continental shelf, EEZ or its rights and responsibilities under the 1982 UNCLOS.

It should reaffirm the use of the sea only for peaceful purposes and the resolution of disputes without the threat or use of force in accordance with international law including the 1982 UNCLOS. It should also reaffirm the freedom of navigation and overflight consonant with international law.

The parties would commit to self- restraint in the conduct of activities that might complicate or escalate disputes, including refraining from occupying presently uninhabited features. They would also agree to negotiate provisional arrangements of a practical nature to manage and share the resources and activities in disputed areas. And they would agree to notify each other of any pending activities including military exercises in waters of interest to other parties.

Most important, outside parties would be encouraged to adhere to the provisions of the declaration. Looking forward, the parties would agree to consider making the declaration a formal code of conduct.

While this all may appear to be wishful thinking, China agreed to a similar declaration promulgated by ASEAN in 2002 for the South China Sea. And this came about only after years of confrontation and actual conflict over maritime issues. The geopolitical conditions in the two regions are significantly different. However there is a growing consensus that it is not too early to begin discussing security architecture in Northeast Asia. That discussion should begin “at sea.”

Mark Valencia, a former senior fellow with the East-West Center, is a maritime policy analyst.