An INCSEA type of arrangement (including safety-at-sea) could provide some parameters for co-operation between the competing navies. It must be appreciated that when a naval boat opens fire on a non-naval combatant, besides the usual diplomatic protests, the state is not likely to respond by using force. But, the moment a naval vessel opens fire at another vessel whether by accident or not, it is likely to be challenged by force. This incident becomes a different ball game altogether.
A related challenge to the introduction of INCSEA in the South China Sea is how to deal with non-parties which exercise the rlght of innocent passage in the area and the traditional right of freedom of navigation through the South China Sea. While international law prohibits interference with the freedom of navigation, their mere presence or passage could be misinterpreted and this could cause misunderstanding. Should third parties be part of the regional INCSEA arrangement as well? If we go by the South East Asian Nuclear Zone treaty, outsiders, particularly nuclear powers found it difficult to endorse the treaty. Another problem is how to deal with offensive platforms e.g., submarines. Some claimant nations take the view that submarines be included in an INCSEA agreement, as the platform could be used by rival claimants to reinforce national claims. Some claimants to the Spratlys, e.g., China possess a formidable submarine fleet. On the other hand, any proposal to regulate passage or presence of submarines passing through the INCSEA area is bound to be challenged by naval powers, as inconsistent with customary international law.
An equally serious challenge to the applicability of INCSEA is the power asymmetry in the region, given that CBM works best in an environment of power equilibrium. The decision by China to construct a complex concrete structure/installation on the Mischief Reef has expectedly elicited angry response from the Filipinos. As explained earlier, the action had not only breached some understanding to maintain the status quo amongst the claimants, but it has also undermined the confidence of many that China would be willing to play by the rules of the game. There is now increasing anxiety as to what would be the next step Beijing would take after the Mischief Reef. In response to the assertive action by the PLA Navy, the Philippines has taken steps to strengthen its naval presence there and has also sought outside help, apart from talking to China.
It is not uncommon for naval vessels assigned to patrol a disputed area to engage in a "chicken game", to test the will of the other party. Should this happen, the possibility of one of these dangerous games turning into an accident is very great. This game is after all not uncommon in other parts of the region. Institutionalising a mechanism like the INCSEA to prevent naval accidents can help reduce tensions.
Despite the challenges, the prospects for the application of INCSEA as a CBM tool to prevent the escaiation of military conflicts should be pursued in the South China Sea for the various reasons cited earlier. There are certainly conditions that merit the pursuance of cooperative security mechanisms particularly among the claimant nations.
Political endorsement is important to push through a regional INCSEA programme. Any arrangement not officially sanctioned at the highest political level is unlikely to get the desired commitment from the various levels (chain of command). Service-to-service arrangements could even be misconstrued by some as an attempt to undermine others' security.
In this regard the existence of regional politico-economic fora such as ASEAN, ARF, CSCAP, etc. could be fully exploited. As we are fully aware, within ASEAN with diverse ethnic, reilgious as well as historical background, the ASEAN's Treaty of Amity and Cooperation could be a useful framework to build INCSEA on. This cooperative platform would give a sound foundation for INCSEA to work on. For a CBM tool to function, some elements of trust and transparency are needed. Most importantly, there must be a common desire to resolve conflicts through peaceful means amongst the parties involved.
In the desire to promote regional peace and stability, the ASEAN Regional Forum (ARF) has been assigned to seriously discuss and initiate regional CBMs. At the moment however, discussions are mostly confined to policy makers and diplomats. Not many, if any, actual practitioners have been involved. Perhaps because issues related to territorial disputes are highly sensitive, the idea of INCSEA has not been pursued at the politico-diplomatic level though the subject had been extensively discussed at naval fora such as the WPNS. This means that, given the political greenlight, most regional navies are quite prepared to seriously explore the operational practicalities of INCSEA-type of arrangements.
It must be impressed upon regional political leaders and bureaucrats alike that the value of an INCSEA-type agreement lies in the obligation to consult on safety on a regular basis at the navy-to-navy level. That obligation is the foundation of face-to-face contact between naval professionals, which an INCSEA-type agreement seeks to promote. In a multilateral agreement, these reviews would have to include both regular multilateral meetings, where all parties could discuss the operation of the agreement. Individual parties could also sit down to discuss their bilateral matters of common concern.
Another condition conducive for INCSEA to be put into practice is the existence of communication channels both in terms of interpersonal as well as equipment amongst most regional navies. The representation of most regional navies in WPNS provides an excellent avenue for them to acquire a common understanding of-the meaning and objective of INCSEA besides providing the much-needed networkings.
