Conflicts and Disputes over Maritime Interests in East Asian Seas: The Role of Maritime Law Enforcement Agencies

Conflicts and disputes over so-called maritime interests in the waters off East Asian countries have become more frequent and serious in recent years. The situation is particularly critical considering the strategic location of the South China Sea between the Pacific Ocean and Indian Ocean, which makes it a vital sea lane for international shipping; its extensive fishery and rock phosphate resources; and its potential wealth of other natural resources, particularly oil and gas.

In the South China Sea, Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam all claim territorial dominion over some or all of the Spratly Islands, which lie between the Philippines and Vietnam; and China, Taiwan, and Vietnam have a territorial dispute over the Paracel Islands, which lie south of China’s Hainan Island. These South China Sea islands have been forcefully seized and occupied, and observation stations, runways, and wharfs have been built on them. Some of the waters have been designated by unilateral declaration as areas where unauthorized fishing activities are prohibited, and fishing boats of foreign countries are being seized, and their crews arrested and detained. Furthermore, warships and other government ships dispatched by the concerned countries to regulate fishing and perform other tasks are frequently getting entangled in direct encounters.

Consider, for instance, an encounter between a ship of the US Navy and Chinese vessels in March 2009. While operating about 70 nautical miles south of Hainan, the USNS Impeccable, a US Navy warship for ocean surveillance, was approached by Chinese ships including a People’s Liberation Army Navy warship for ocean surveillance, a China Marine Surveillance patrol vessel, and a China Fisheries Law Enforcement Command patrol vessel. The Chinese ships approached and surrounded the Impeccable, interfered with its navigation, obstructed its operations, and demanded that it leave the area. Again, in May 2011 a Vietnamese resource survey vessel operating about 320 nautical miles south of Hainan, and roughly 120 nautical miles east of the central region of Vietnam, had its survey cables severed by Chinese patrol vessels. In response to Vietnamese protests, China responded that its ships were merely conducting normal surveillance activities in waters under China’s jurisdiction. Then, in April 2012, an even more disturbing incident began when a ship of the Philippine warships attempted to inspect Chinese fishing boats working in the waters around the Spratly Islands’ Scarborough Shoal (over which China, the Philippines, and Taiwan all claim sovereignty), roughly 100 nautical miles west of the Philippines. The situation escalated into a direct confrontation lasting about two months between Philippine Coast Guard ships and patrol vessels of both China Marine Surveillance and China Fisheries Law Enforcement Command.

China Marine Surveillance (CMS) is an organ of the State Oceanic Administration under the Ministry of Land and Resources, and China Fisheries Law Enforcement Command (FLEC) is an organ of the Bureau of Fisheries under the Ministry of Agriculture. The CMS and FLEC are not organs that ordinarily get involved in military operations; their responsibility instead is law enforcement at sea. Following the adoption in 1982 of the United Nations Convention on the Law of the Sea (UNCLOS), China took a number of steps to strengthen its system of law enforcement at sea. It brought the CMS into being, constructed an improved setup for fishery administration, and got to work on systematizing the forces in charge of enforcing laws regulating fishing. Currently the Chinese government has five maritime administrative agencies—also known as the “Five Dragons”—in charge of law enforcement at sea: the CMS, FLEC, the Maritime Safety Administration, China Coast Guard, and China Customs. When China enacted the Law on the Territorial Sea and the Contiguous Zone in 1992, it aimed to clarify its sovereignty over the various territories whose ownership is in dispute or de facto dispute, beginning with the Paracels as well as the Senkakus in the East China Sea. Since that time it has continued to enhance domestic laws and strengthen their enforcement in order to secure maritime interests, most notably through the enactment of the “Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf” in 1998 and the “Law of the People’s Republic of China on the Administration of the Use of Sea Areas” in 2001.

In the hope of easing tensions from conflicts and disputes among the countries claiming territorial rights in the South China Sea, China and the Association of Southeast Asian Nations adopted the Declaration on the Conduct of Parties in the South China Sea in 2002. Known as the DOC, the declaration asks China and the ASEAN members to reaffirm their commitment to the purposes and principles stipulated by the Charter of the United Nations (UN Charter) and the UNCLOS; reaffirm their respect for the freedom of navigation and overflight; undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force; and undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability (such as inhabiting currently uninhabited islands). Because this sort of declaration is not legally binding, the DOC includes a promise to work toward the adoption of a legally binding Code of Conduct in the South China Sea in order to promote peace and stability. Furthermore, in 2011 China and the ASEAN agreed on Guidelines for the Implementation of the DOC, saying they should lead to the eventual realization of a legally binding Code of Conduct.

At the July 2012 meeting of the ASEAN foreign ministers, however, arguments broke out over the content of the proposed code. Views diverged not just between ASEAN and China but also among the nations of Southeast Asia. (The Philippines, Vietnam, and some other countries wanted the code to feature rules for resolving territorial disputes, but such countries as Cambodia and Thailand wanted it to serve as a framework for international cooperation contributing to efforts to foster and strengthen mutual trust among the concerned countries, which is also the Chinese position.) The meeting came to an end without any agreement on the code or even a statement setting forth ASEAN’s position on South China Sea issues.

In the seas around Japan as well, conflicts are on the increase. In addition to the problem of foreign fishing boats that catch fish illegally and obstruct the performance of the public duty in Japan’s territorial sea and exclusive economic zone, confrontations between Japan and China are growing sharper in the East China Sea. China has dispatched government ships to explore and develop undersea resources in areas that have yet to be delimitated, and used the CMS ships to conduct scientific surveys in Japan’s EEZ without prior notifications to the Japanese government. Moreover, there have been repeated passages which are not innocent in Japan’s territorial sea, notably intrusions of the CMS and FLEC patrol vessels into the waters around the Senkaku Islands. The Japanese government has responded through measures by the agencies in charge of law enforcement at sea, especially the Japan Coast Guard.

Exercise of Authority by Maritime Law Enforcement Agencies

As I have noted, the maritime law enforcement agencies in Asian countries, such as coast guard, maritime police, or navy with the authority to exercise the law enforcement, have acted to resolve problems when conflicts and disputes over maritime interests have broken out or intensified. Here, we need to consider the contents and objectives that fall within the exercise of authority by maritime law enforcement agencies, as well as the limits of their authority.

The exercise of authority by these agencies of each country basically means the application and enforcement of, each country’s laws regulating acts by private individuals under their jurisdiction. What the exercise of authority amounts to is maritime law enforcement aimed at what each country’s legislation has defined as a crime. More specifically, the agencies verify whether laws are being obeyed and prevent the occurrence of crime; when criminal acts are discovered, they suppress and investigate the criminal behavior; when it is clear who the offenders are, they can also detect and arrest them, and send them to the public prosecutor’s office in accordance with each country’s criminal proceedings. By means of maritime law enforcement, the agencies can, for instance, put a stop to unauthorized fishing activities by foreign nationals in their territorial sea or EEZ, thereby contributing to the conservation and management of marine resources. They can also prevent goods regulated by import and export laws from being smuggled into a country and deter foreigners from illegally landing, thereby contributing to the maintenance or restoration of each country’s borders.

The exercise of authority by maritime law enforcement agencies can also enhance national security by, for example, securing a country’s sovereignty over its territory and preventing violations of territorial integrity. This, though, should be regarded not as the contents and objectives of law enforcement at sea but just its side effect; therefore, law enforcement at sea differs, in terms of contents and objectives, from military operations for establishing and maintaining national and international security.

Such are the contents and objectives of the activities by agencies that enforce each country’s laws at sea. In carrying out their duties, these agencies do not have a free hand to use force. The excessive use of force could make it impossible to institute criminal proceedings, such as investigating criminal behavior or detecting and arresting offenders. That would not be consistent with the objectives of the exercise of authority by maritime law enforcement agencies, and it would not also be justified under international law.

In a limited number of international trials, governments have sought legal rulings on the use of force against foreign ships that disregard orders to stop and try to escape. One was the SS I’m Alone case, which involved the sinking in 1929 of a British vessel of Canadian registry engaged in smuggling liquor into the United States. Another was the Red Crusader case, which involved a British trawler accused of illegal fishing in Danish waters in 1961. And a third was the M/V Saiga case, which involved a bunkering vessel registered in Saint Vincent and the Grenadines supplying oil to fishing boats. It was fired on, boarded, and arrested by Guinean patrol boats in 1997. The international rule on the use of force that emerged from these legal rulings is that it can be permitted in the course of law enforcement at sea only as long as the exercise of force is “necessary and reasonable.”

Further complicating matters, however, are instances in which even though an agency has resorted to force only to ensure the effectiveness of its authority to enforce laws at sea, its exercise of authority may be interpreted as the “threat or use of force” under Article 301 of the UNCLOS and Article 2(4) of the UN Charter. Article 301 of the UNCLOS stipulates: In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. At the same time, though, the UNCLOS permits the Parties to exercise enforcement jurisdiction concerning the matters correspondent to each body of water—the territorial sea, contiguous zone, EEZ, and high seas. This is interpreted to mean that a line can be drawn between maritime law enforcement activities and military operations. But where this line should be drawn is not necessarily clear.

This issue was considered, for instance, in the 2007 arbitration decision on a conflict that occurred in 2000 when Suriname evicted a CGX drilling rig from a maritime area in dispute with Guyana. We may conclude from that and other rulings that the legal character of exercise of authority at sea is not determined by the classification of the agency exercising authority under that country’s laws, such as its Constitution or the laws establishing the agency. That is, it will not be determined by whether the country has made the agency part of its law enforcement administration or part of its military. Instead, the agency’s exercise of authority will be evaluated with reference to three sets of factors: (1) the circumstances of the exercise of authority by the agencies (for example, whether the exercise of authority occurred in waters where the countries concerned are disputing territorial dominion or the delimitation of boundaries); (2) the legal evaluation as the basis of the measures exercised by the agencies (whether the act by the offending country was a violation of the sovereignty, a breach of international rules stipulating rights and obligations, a passage which is not innocent, or an illegal with reference to the country’s laws); and (3) the contents and objectives of the measures exercised by the agencies (for example, whether the exercise of authority had the objective of instituting criminal proceedings).

For these reasons, it cannot be taken for granted that an exercise of authority will be automatically regarded under international law as a law enforcement activity, just because government ships belonging to maritime law enforcement agencies, rather than warships, were the subjects exercising authority. Depending on the case, the ships may be viewed as engaging in a military operation. As we have seen, encounters are becoming frequent in the seas off East Asia between the government ships of each country’s maritime law enforcement agencies. Patrol vessels on one or both sides have been exercising authority with a variety of objectives, such as to demand that ships engaging in unauthorized scientific research stop such researching within one country’s EEZ or to demand that government ships engaging in passage which is not innocent depart from one country’s territorial sea. When considering how such exercise of authority should be evaluated from the perspective of international law, and whether it falls within the scope of law enforcement activities, the details must be ascertained in reference to the foregoing three sets of factors.

Avoiding Armed Conflict Between Government Ships Engaging in Law Enforcement Activities

In view of the increasing frequency of direct encounters of government ships belonging to each country’s maritime law enforcement agencies in Asian seas, the countries involved need to consider measures for preventing such encounters from escalating into confrontations that may involve the use of force. Toward this end, the construction of a crisis management mechanism would surely have a beneficial effect. A useful reference in this endeavor would be the “incidents at sea” (INCSEA) agreements that have already been concluded to avoid collisions between warships, prevent one side’s ships from interfering with the other side’s operations, and accomplish other objectives. One example is the 1972 US-Soviet Incidents at Sea Agreement, and another is the 1993 Japan-Russia Agreement Concerning the Prevention of Incidents at Sea.

Such a crisis management mechanism would have two important components. First, it should be provided with a reciprocal communication mechanism enabling the maritime law enforcement agencies of each country to work smoothly together toward crisis resolution. In the event of an emergency, the law enforcement officers on the scene need to be able to make direct use of this mechanism for mutual communication. Second, it should be provided with a safety standard that can be mutually utilized by all concerned, including the officers on the scene.

In order to construct the reciprocal communication mechanism and assure its effectiveness, a mutual agreement must be reached on what kinds of circumstances constitute emergencies. Among the waters covered by the reciprocal communication mechanism, those that are in areas where conflicts and disputes between countries occur need to be specially designated by making use of the so-called “disclaimer clauses”. (A disclaimer clause in this case would provide that when a maritime law enforcement agency of a party to an agreement engages in an action in accordance with this agreement, that action has no effect whatsoever on the assertions about that particular body of water by the party.) Furthermore, a mutual understanding needs to be established on the details of the responses required in the specified circumstances and waters. This understanding should be as specific as possible about the basic items requiring mutual notification and the means and methods of reciprocal communication.

The safety standard is needed for confirming that all concerned parties abide by the International Regulations for Preventing Collisions at Sea, which were adopted under the Convention on International Regulations for Preventing Collisions at Sea 1972 (COLREGs). This is also necessary for confirming that all parties involved obey the international rules on the use of force for cases in which, as discussed earlier, a law enforcement agency uses force in order to ensure the effectiveness of its law enforcement activity.

After the construction of the reciprocal communication mechanism and establishment of the safety standard, attention must be given to facilitating efficient functioning of the crisis management mechanism. For this purpose, the concerned maritime law enforcement agencies must arrive at a shared understanding of the purposes of constructing the mechanism and of the contents, objectives, and limits of maritime law enforcement activities.

(Originally written in Japanese.)