3-1. Strife over the demarcation and possession of territorial waters in the oceans is a recurring theme among the nations of East Asia. With nationalism on the rise, disputes about jurisdiction grow ever more difficult to resolve. Worse, the region' s powers appear to be vying to upgrade their naval capabilities, aiming to assert sovereignty over broader areas and to establish supremacy over ocean resources. Experts on the geopolitics of this region agree that, if war were to break out in East Asia, it would more likely than not be touched off in a dispute at sea. A declaration on the Code of Activities in the South China Sea would be welcome, but as always the devil is in the implementation. As a confidence-building measure, a much-needed agreement could be reached on measures to prevent incidents at sea, but it is questionable whether China will take the initiative.

　

3-2. For the past decade, China has asserted its sovereignty over the Spratly Islands. Recent years, however, have seen a marked shift in Chinese policy. At first, China insisted that the Spratlys belonged to China and no room for negotiation existed. In 1990, however, China signaled a sea change in its position, clearly indicating that it was willing to come to the negotiating table in 1995, China stated that it was prepared to resolve the dispute over the territory in accordance with international law. This, too, was a dramatic reversal. The third dramatic policy shift came when China dropped its insistence on bilateral discussions only (the country had hitherto spurned any suggestion of multilateral negotiations). So it was that discussions began in 1999 under the aegis of "ASEAN + China." Moreover, whereas China had previously insisted that any statement on action in the South China Sea would be tantamount to an infringement of Chinese sovereignty, in 2000 China took the initiative to begin cooperating with ASEAN with a view toward signing an agreement on action. These momentous changes in China's foreign policy amply demonstrate its shift to a more conciliatory stance. Clearly, China wants to build confidence with the countries involved, including the United States.

　

3-3. In workshops on the South China Sea for the past 12 years, originally, China was unsure whether to participate in the forum at all, but has emerged as a steadfast supporter of the process. In short, China's standpoint has changed. Although China had been opposed to a newly expanded military presence, some progress has been made in the confidence-building measure. This is a welcome development. However, doubts remain about the country's stance toward joint development. China prefers to emphasize bilateral talks, but a bilateral approach to disputes over areas of sea disputed by multiple countries is in our view unworkable.

　

3-4. So in what form does China intend to pursue confidence-building measures (CBMs)? Unquestionably China has many areas of concern in common with her neighbors. On cross-border crimes, for example, concerted dialog is needed with all of the countries of the Asia-Pacific region, including the United States. For all of the problems the region's oceans face, measures to build confidence are urgently needed Regional players need to talk about how to respond to threats such as smuggling and piracy. A few years ago, open discussion of many of these topics would have been considered too delicate. Today we believe that understanding is much improved and a firm foundation for cooperation exists.

　

3-5. China is currently considering joint development under a multilateral framework. We believe that NGOs can play a fruitful role in building confidence in this area. NGOs and academic conferences are valuable because participants who are government officials participate in their own individual capacities, providing a more solid basis for consensus. Conditions are not yet ripe for official dialog, so further preparation is needed. The key missing element is US ratification of UNCLOS. Without wholehearted American participation, it may be impossible to decide anything.

　

3-6. In the "Track One" process, CBMs between navies is well under way, but here China seems to lag the other players and to lack enthusiasm.

　

3-7. Military activities in EEZs have arisen in discussion, but it is understood that these zones were conceived as an economic, not military, element. Obviously naval maneuvers that may change the topography of the ocean floor are out of the question, so we fail to understand why related countries want to prohibit reconnaissance activities. Certainly there are many situations where scouting activities have to be restricted, but in the EEZs, whose purpose is economic in nature, this stance makes little sense. Similarly, we fail to see why freedom of passage in archipelagic waters for naval vessels should be a problem.

　

3-8. Although UNCLOS is vague in many ways, it clearly states that the interests of coastal states must be safeguarded. Therefore military activities require the agreement of coastal states. If foreign navies are allowed to encroach too close to coastal regions, coastal states may feel threatened. Accordingly, such countries must notify coastal states of any such exercises in advance.

　

3-9. UNCLOS is especially vague on the subject of navigation in EEZs. The handling of residual rights in EEZs will need to be considered carefully in the future.

　

3-10. On the unidentified ship that sank in China' EEZ, China's official view is that Japan violated its sovereignty. Yet the country also explains that it gave permission for Japan to raise the vessel, so how Japan supposedly violated China's sovereignty is not clear.

　

3-11. On the delimitation of the continental shelf in the East China Sea, China and Japan stand on opposing sides. The unidentified ship was discovered by the Japan Coast Guard, which attempted to seize the vessel. The vessel took flight, however, and crossed into the Chinese EEZ. The Japanese vessel pursued. The problem in China's view is that Japan failed to notify the Chinese of the presence of a vessel with advanced weapons. The Chinese assert that prior notification was required. When the unidentified ship sank, talks between China and Japan followed in which China agreed to permit the Japanese to recover and raise the vessel. This is a good example of a successful problem-solving outcome as the result of negotiation and consultation.

3-12. This affair illustrates a broad and fundamental disagreement between China and Japan with regard to the concept of the EEZ. In the case of the unidentified ship, if Japan's pursuit is seen as legitimate, then naturally this implies that the pursuing vessel has the right of hot pursuit provided the pursued vessel does not enter another country's territorial seas. As described above, however, China's interpretation of UNCLOS does not permit a battleship or other armed vessel to enter the EEZ of another country. On this interpretation, armed vessels of other countries may not enter another's EEZ even in pursuit.

3-13. Specific regimes exist to cover passage through archipelagic waters. One is the right of innocent passage. The other is called archipelagic sea-lane passages (ASLP). Innocent passage is provided in the case of archipelagic waters and includes warships. Submarines, however, must fly their national flags as they pass through. Aircraft carriers may not launch airplanes from their decks in archipelagic waters, because the right of innocent passage does not provide over-flying rights in the territory. UNCLOS advocates the designation of archipelagic waters, which Indonesia has done. In ASLP, submarines can pass through submerged and aircraft can fly over. When archipelagic waters are established, the waters must have sufficient depth for safe passage and be at least 12 nautical miles from the coastal state's coast. When warships pass through archipelagic waters, they are asked to use the ASLP.

　

3-14. The Philippines asserts a radically different claim. According to the Philippines, all waters within a line called the archipelagic baseline are considered the country's internal waters. The Philippines does not recognize ASLP at all. Obviously, this divergence of opinion can be a source of considerable confusion, for which a solution must be found in the times ahead.

　

3-15. The Philippines case is more complex than Indonesia's. The Philippines consider its internal waters as all waters within a line called the archipelagic baseline. This definition exists in the Philippine constitution, which takes precedence over UNCLOS in Philippine law. Any change would require an amendment to the constitution, which is inordinately difficult. Yet the Philippines is a signatory to UNCLOS and has recognized ASLP in its waters-the same waters that its constitution defines as internal waters. The right of innocent passage is provided in these seas, but only upon the agreement of the authorities. In other words, international passage is recognized as innocent passage only upon the agreement of the Philippine government. This stance is diametrically opposed to UNCLOS, which clearly states that signatory states have no right to object to innocent passage.

3-16. Indonesia's three north-south passages are provided with conditions attached. The International Hydrographic Organization (IHO) has asked for an exhaustive survey and full disclosure of information on these passages, to prevent passage through shallow or otherwise dangerous waters. At present, no such survey has even been conducted for the east-west shipping lane.

3-17. As for the passage of ships carrying nuclear weapons, the passage of such ships through archipelagic waters is permitted. Specific rules cover these cases. For safety reasons, foreign tankers, nuclear-powered vessels, ships carrying radioactive substances or other hazardous cargo, foreign fishing vessels and foreign warships must accept Indonesian supervision of using the appointed archipelagic sea lanes when passing through the country's archipelagic waters.