INCSEA
In the broader context of CBMs, the Incidents-at-Sea (INCSEA) agreements have proven to be useful tools to minimise potentially dangerous naval overtures. INCSEA Agreements were proven effective by the US Navy in dealing with the Soviets (1972). United Kingdom (1986), Canada (1989), Germany (1989), France, Italy, the Netherlands, Norway, Spain, Greece, Japan, ROK, to name a few. Other INCSEA or similar Maritime safety Arrangements that have been found useful include those between Germany and Poland, the US and China Agreement on Establishing a Consultative Mechanism to strengthen Military Maritime Safety. Similar arrangements have also been introduced in the Middle East.
Incidents-at-sea can take different forms and levels. They vary from a minor disrespect of traditional naval practice or etiquette to a serious breach of the rules of engagement. There are numerous dangerous or potentially dangerous interactions between ships that may be categorised as "Incidents-at-Sea". Perhaps the most common are manoeuvres by ships which create dangers of collision. These manoeuvres may be international violations of the recognised "International Regulations for Preventing Collisions-at-Sea". Equally dangerous manoeuvres, such as, when a ship having the right of way proceeds to the point of causing a danger or imminent collision. Other common incidents include shining of fire control radar, training search lights on bridges, firing flares or dropping them from aircraft close to ship and buzzing of ship by low flying aircraft. The implications of these acts are serious in times of high tension or crisis. They could evolve into action reaction cycles of escalation leading to hostilities at sea or even invite a pre-emptive attack for some trigger-happy commanders.
INCSEA or Incidents-At-Sea arrangement is meant to provide the means by which regional navies or other enforcement agencies could promote their interests at sea in a more predictable manner and to ensure the minimum use of force at all times especially during crisis. On a higher plane, this arrangement is meant to develop mutually beneficial international cooperation and transparency in naval operations. lNCSEA involves establishing special rules to minimise the chances of accidents that could result from normal activities which could include ships' manoeuvres. Essentially, an INCSEA arrangement would include negotiated procedures to lessen dangers of collisions as well as to prevent making unnecessary first strike as a result of unintended actions by the other party. The arrangement would usually include special communication procedures. All these are not only in line with today's aspirations or promoting peace and stability but also in conformity with customary international law. In other words, other than to avoid collisions at sea and the airspace that could affect relations between Navies, one of the goals of INCSEA is to develop a more predictable standard operating procedures at sea. With this general concept in mind the Maritime Institute of Malaysia (MIMA) with the co-operation of the Royal Malaysian Navy has initiated a series of discussions with some navies in the region that hopefully could lead to an INCSEA-type regime.
In our view the INCSEA-type arrangement could be applicable to the South China Sea or the Spratlys for the following reasons:
・Too many navies with different operating procedures in an enclosed sea,
・Poor communication network between the navies,
・Conflicting areas of operations which result from overlapping maritime claims,
・Naval protection for certain activities in disputed areas. For example, some navies have been instructed to firmly act against "illegal" fishing, dumping of waste, pollution, etc
・To prevent an accident from being construed as a deliberate act of attack,
・To provide a flexible framework for self defence,
・To prevent escalation of military conflicts.
The applicability of INCSEA in the South China Sea ought to be seen within the context of the overall regional setting. The strategic situation in the South China Sea as explained in the preceding pages is complex. It could perhaps be more complicated than the multilateral INCSEA debut in the Middle East under the so-called "Madrid Formula" in 1991. Unlike in other areas e.g., in the Middle East where the concept of INCSEA still remains in its infancy stage, in the South China Sea the problems are too multifaceted. Firstly, establishing the rightful owner of a particular feature or area at sea is a tricky subject. The legal ownership is a sixty four thousand dollar question. The second aspect derives from the problem of ownership, i.e., how to regulate the behaviour of naval vessels deployed in the contested area. We know that all navies have been tasked with the primary mission to assert and defend the sovereignty of features or areas which they have staked claims to. There have been occasions in the recent past where the Navy of one country has to politely "invite" another Navy to leave a disputed area. In some cases, regional navies have been advised not to arrest fishing vessels. Although thus far, we have no incident of navies engaging each other in the contested area, we have plenty of examples of fishing vessels defying naval instructions and in certain cases tried to ram naval vessels. This would place naval vessels with the awkward tasks of responding with force to effect arrests or use force in self-defence. In a likely situation where fishing vessels seek naval protection, the situation could break loose and develop into a free for all.
One of the challenges to naval commanders operating in a disputed area is to be able to assert national rights without the need to use force. In such a situation, without some agreed procedures two navies could be a collision course when neither side concede ground.
