Managing unplanned encounters at sea

By Christian Le Mière, IISS Senior Fellow for Naval Forces and Maritime Security.

Asia-Pacific navies took a small step in confidence-building and safety at sea on 22 April 2014. At the 14^th meeting of the biennial Western Pacific Naval Symposium (WPNS), the 21 member nations agreed to a Code for Unplanned Encounters at Sea (CUES), a document that outlines the methods of communication for naval vessels and aircraft that meet unplanned beyond territorial waters.

CUES has been discussed since the 7^th WPNS in 2000. At the last WPNS, in Thailand in 2012, China was the only country that rejected CUES; this was because, according to Ding Yiping – deputy commander of the People’s Liberation Army Navy (PLAN) and presiding chairman of the 14^th WPNS – the word ‘code’ suggested a legally binding agreement. CUES is specifically a non-binding agreement that lays out how navies should interact at sea.



This is a region where various incidents, from a Chinese fire-control radar lock-on of a Japan Maritime Self-Defense Force ship and helicopter in early 2013 – admitted by China two months later – to a near-collision between a Chinese amphibious transport dock and the USS Cowpens in December 2013, have raised concerns about the possibility of escalation emanating from poor decision-making at sea. Forging ‘rules of the road’ for interaction is key to preventing accidental conflict, making CUES a significant document. The inclusion of naval aircraft in the agreement also suggests that greater norms and rules should apply to Chinese sorties through China’s Air Defence Identification Zone, announced in November 2013, over the East China Sea (where most of the Chinese aircraft operating are from the People’s Liberation Army Navy Air Force, PLANAF).  


CUES lays out how vessels and aircraft will communicate by sound, light and flags (which, in reality, has already been agreed through the 1972 International Regulations for Preventing Collisions at Sea (COLREGs) that applies to all vessels) and by radio (in English, with designated call-signs, and clear procedures for information exchange). This would assist in those instances where communication was absent, such as the radar lock-on incidents, when on both occasions the Chinese vessels did not attempt to open lines of communication, or where communication was poor, such as the USS Cowpens incident, where a Chinese vessel failed to transmit its change of tack and speed, leading to the US naval ship taking evasive manoeuvres (the Chinese vessel subsequently opened bridge-to-bridge communications).


Although the agreement is a useful confidence-building measure and a tentative introduction of rules for interaction among often mistrustful navies, it is, in truth, very weak. There are various omissions that will restrict its ability to prevent tense encounters in the East and South China seas. For a start, it officially applies only to navies, but the majority of deployments to disputed waters and incidents in recent years have involved maritime constabulary vessels. Whether, for example, the China Coast Guard will also abide by CUES is as yet unknown.


Equally, the Code only applies in Exclusive Economic Zones (EEZs) and on the high seas, not in territorial waters. This suggests that it would not need to be followed when vessels are within 12 nautical miles of disputed features in the seas, a factor that could be significant around the Senkaku/Diaoyu Islands in the East China Sea, or Second Thomas Shoal in the South China Sea, where China disputes sovereignty with Japan and the Philippines respectively. Operating here, the PLAN could claim that CUES is not applicable because these waters are claimed as sovereign by China.


Finally, and most importantly, the Code does not regulate behaviour in any way, instead suggesting communications protocols for signatory states. This stands in stark contrast to the Incidents at Sea Agreement (INCSEA) drawn up between the US and the Soviet Union in 1972. This not only regulates communications between vessels and aircraft in close proximity to one another, but also states that neither side would engage in, for instance, dazzling by powerful lights or simulated attacks, and will ‘avoid executing manoeuvres embarrassing or endangering’ ships under surveillance. In particular, paragraph six of Article III of INCSEA, which stated that vessels would not aim weapons in the direction of passing ships, would, theoretically, have legislated against the Chinese radar lock-on incidents; such radar-locks could perhaps be perceived as part of a targeting process.


CUES could be seen as the most that could be hoped for at the present time, given Chinese wariness of signing international agreements that may constrain its behaviour. It is a tentative first step in introducing rules of the road for the interaction of navies in the region. This is a process that Japan in particular has been keen to undertake with China, which has, given its historical inability to deploy naval and maritime patrol vessels with any significance beyond its territorial waters, by and large been excluded from the norms and rules built up over decades by navies interacting during the Cold War. The Code may also help defuse any crisis involving vessels and aircraft in the hotly disputed waters of the South and East China seas. However, it is inadequate to entirely prevent fractious encounters at sea, and hence it is likely that further incidents involving Chinese naval and maritime forces will continue to stoke tensions in the region in coming years.

http://www.iiss.org/en/militarybalanceblog/blogsections/2014-3bea/april-7347/managing-unplanned-encounters-at-sea-087b