The British had been fishing off the coast of Iceland since the 15th century. The early disputes over fishing grounds were between Denmark and Great Britain, as Iceland was under Danish control at the time. Eventually, in 1901, the two sides reached an agreement setting the limits of Iceland’s territorial seas at three miles.2
In October 1949, Iceland—which gained its independence in 1944—initiated the two-year abrogation process to end the 50-year agreement and declared its intention to extend its territorial seas from three to four miles, triggering the beginning of the dispute with Great Britain. From 1952 to 1958, the “war” was largely economic, involving sanctions and landing bans.3
In 1958, the United Nations convened the first International Conference on the Law of the Sea, during which several nations raised the possibility of extending the limits of their territorial waters to 12 miles. Following the Conference, on 1 September 1958, Iceland enacted a law extending its territorial sea from 4 to 12 miles, setting off the first of three cod wars. Each was precipitated by an Icelandic extension of its exclusive fishing rights— first to 12, then to 50, and then ultimately to 200 miles.4
With each extension, the Icelandic Coast Guard attempted to force the British fishing fleet out of Iceland’s waters. In doing so, it would often cut the nets off the backs of British fishing trawlers. Great Britain sent warships to protect the fishing fleet. This, in turn, resulted in direct “battles” between the Icelandic Coast Guard and British warships. By the time the wars concluded on 1 June 1976, there had been more than 60 ramming incidents involving Icelandic Coast Guard vessels or British warships.5
Half-way around the world and 40 years later, another territorial dispute over maritime resources is under way. This time it is in the East and South China seas, and the “warring” parties include at least six different countries. Once again, the battles involve coast guards.
On 28 April 2012, a Philippine Coast Guard ship conducting law enforcement activities in the vicinity of Scarborough Shoal came into contact with the Chinese Fisheries and Law Enforcement Command (now part of the China Coast Guard) patrol ship Yuzheng 310, which raced toward the Philippine Coast Guard ship, passing within 200 yards at a speed of 20 knots, her wake battering two of the Philippine Coast Guard vessel’s small boats.6
Six weeks later, on 26 May 2012, a Philippines Bureau of Fisheries and Aquatic Resources vessel, MCS 3008, on her way to Scarborough Shoal, was approached by Chinese Maritime Surveillance vessels (also now part of the Chinese Coast Guard) CMS 71 and CMS 84, and Chinese Fisheries and Law Enforcement vessel FLEC 303. At various times, all three Chinese vessels maneuvered aggressively, nearly causing collisions that the MCS 3008 avoided by taking dramatic evasive maneuvers.7
Later that same year, on 25 September, a Taiwanese Coast Guard vessel nearly collided with a Japanese Coast Guard vessel while the two exchanged water cannon fire in a dispute over fishing grounds in the Senkaku Islands. Japan and Taiwan generally have friendly ties, but congenial relations were an afterthought when it came to asserting sovereignty over maritime territory and resources.8
On 4 June 2014, a standoff between Vietnamese and Chinese Coast Guard vessels in the South China Sea resulted in several vessel collisions. Vietnamese Coast Guard vessels were subject to multiple rammings by the Chinese Coast Guard. Fortunately, no one was injured, nor did any vessels sink. The Vietnamese Coast Guard vessels, however, suffered large gashes to their hulls.9
As the “Cod Wars” demonstrated, disputes over sovereign waters and resources leading to collisions at sea by naval and coast guard vessels are not a new phenomenon. Their rising frequency in the East and South China seas, however, is alarming and should cause concern for all countries with maritime interests in the western Pacific. A collective agreement must be reached to de-escalate these encounters before they result in the loss of ships or lives.
Incidents at Sea Agreement and CUES
One of the first agreements put in place to prevent dangerous encounters at sea was the agreement between the United States and the Soviet Union on the Prevention of Incidents On and Over the High Seas—also known as the Incidents at Sea Treaty (INCSEA). The narrative preceding the agreement explains its necessity:
In the late 1960s, there were several incidents between forces of the U.S. Navy and the Soviet Navy. These included planes of the two nations passing near one another, ships bumping one another, and both ships and aircraft making threatening movements against those of the other side.
As a result, the United States initiated talks on preventing such incidents from becoming more serious. The agreement, signed in May 1973, provided for: steps to avoid collisions; avoiding maneuvers in areas of heavy sea traffic; using accepted international signals when ships maneuver near one another; and informing vessels when submarines are exercising near them.10
More recently, on 22 April 2014, the 21 member states of the Western Pacific Naval Symposium (WPNS) entered into a similar agreement. The Code for Unplanned Encounters at Sea, known as CUES, is a non-binding agreement that provides for basic safety, maneuvering, and communication procedures. It draws upon the technical specifics of the 1972 Convention on the International Regulations for Preventing Collisions at Sea and the related Collision Regulations (COLREGS). Although it met strong resistance at first, in particular from China, CUES eventually was endorsed by the symposium’s naval chiefs, leading to its adoption by the WPNS. Soon after, in November 2014, the U.S. Navy and Chinese Navy (PLAN) announced a bilateral memorandum of understanding on the rules of behavior for the safety of air and maritime sea encounters. These rules largely are based on CUES and mainly deal with communication protocols, although they also cover maneuvering and general safety.11
CUES has been subject to some criticism, largely because of its nonbinding nature and its inapplicability to coast guards and maritime militias. The business charter of WPNS limits membership to navies. As such, coast guards are not covered by the terms of CUES. There is some language in the agreement’s definitions section about its applicability to “naval auxiliary” vessels, but that language is limited to vessels under the exclusive control of an armed force. Although the U.S. Coast Guard is an armed force under the laws of the United States, many countries do not consider their coast guards part of their armed forces. As noted earlier, many encounters in the East and South China seas have been between coast guard ships. Chinese law enforcement vessels were involved in 68 percent of the 45 major incidents in the South China Sea between 2010 and 2016. It is important, therefore, to explore agreements or commitments that may be able to fill this gap in CUES coverage.12
Coast Guard Maneuvering Agreements and ASEAN Statements
The North Pacific Coast Guard Forum (NPCGF) is an annual meeting for the cooperative member agencies, which include the coast guards of the United States, China, Japan, South Korea, and Canada, and the Russian Border Guard. In 2005, the NPCGF published the “Combined Operations Manual,” which is very similar to CUES in that it provides for voluntary safety, maneuvering, and communication procedures. The manual, however, only applies to planned or ad hoc operations. It does not cover unplanned encounters. In addition, although some of the NPCGF cooperative agencies have direct equities in the South China Sea and other disputed areas of the western Pacific, three members—Canada, Russia, and the United States—do not have competing territorial claims in the area and have not been involved in any of the contentious encounters that have occurred there over the past several years. The NPCGF does not include the coast guards of two nations—Vietnam and the Philippines—that have been involved in the disputes. So even if the “Combined Operations Manual” could be expanded to cover planned and unplanned operations, it still would not cover the vast majority of coast guard encounters in the South China Sea.13
On 24 and 25 September 2015, then-U.S. President Barack Obama hosted Chinese President Xi Jinping for a state visit, during which the two men exchanged views on a range of global, regional, and bilateral subjects. Presidents Obama and Xi agreed to work together to manage differences and expand cooperation in a variety of areas, including a commitment by the U.S. and Chinese coast guards to pursue an arrangement equivalent to the rules of behavior agreement reached by the United States and Chinese navies. This commitment was reaffirmed at the G20 Leaders’ Summit in September 2016 in Hangzhou, China, when both leaders, recognizing the importance of reducing the risk of accidents, improving navigational safety, and promoting professional standards of behavior, committed to finalizing the rules of behavior memorandum of understanding (MOU) as soon as possible. Pursuant to these commitments, the two coast guards have entered into active negotiations, yet no agreement has been finalized.14 In any case, such rules would be applicable only to interactions between the Chinese and U.S. coast guards. Thus, this MOU would leave out the vast majority of coast guard interactions in the South China Sea and the western Pacific.
On 9 September 2016, a joint statement was released by the Association of Southeast Asian Nations (ASEAN) members and China that they would observe CUES within the South China Sea. While positive, the statement reiterated that use of CUES would only be in relation to navy operations. Coast guard ships were not included.15
Western Pacific Coast Guard Forum and CUES for Coast Guards
All these efforts—CUES, the rules of behavior MOU between the U.S. and Chinese navies, the NPCGF manual, the Chinese and U.S. Coast Guard rules of behavior discussions, and the recent ASEAN statement—are steps in the right direction. However, a multinational code for unplanned encounters at sea applicable to coast guards that operate in the South China Sea and other disputed areas of the western Pacific is needed to protect coast guard ships and the men and women who operate them. The first step in establishing such rules of behavior is to form a governing body to oversee the formulation of the code of conduct.
The NPCGF and the Arctic Coast Guard Forum (ACGF) serve as good examples for a new organization. Collectively these two forums contain member agencies from 11 nations. Both were formed to foster safe, secure, and environmentally responsible maritime activity in their regions. The forums provide opportunities for information exchanges at high-level summit meetings, and they cultivate relationships—both operational and diplomatic—among the member nations.16
A Western Pacific Coast Guard Forum (WPCGF) should be established with similar goals and should include coast guards and coastal maritime services from throughout the region. A WPCGF would be set up for the same purposes as the NPCGF and ACGF, but eventually it would implement a code for unplanned encounters at sea applicable to coast guards operating in the region.
Establishing such a forum in the western Pacific might at first seem inconsistent with the U.S. Coast Guard’s current focus in the Western Hemisphere. It is unlikely, though, that establishing a WPCGF would distract too much from those efforts. In addition to laying the groundwork for CUES for coast guards in the region, a western Pacific forum likely would bolster current cooperation efforts in the region, including rules of behavior negotiations with the Chinese Coast Guard; the transfer of U.S. Coast Guard cutters to Vietnam, Bangladesh, and the Philippines; the strengthening of relations between the Vietnamese and the U.S. Coast Guards; and U.S. government and U.S. Coast Guard support for establishment of the Philippine Coast Guard’s National Coastal Watch Center.17
Most important, establishing the WPCGF and implementing CUES for coast guards in the western Pacific would help pave the way for a successful and safe deployment of a U.S. Coast Guard national security cutter to the South China Sea—a future move recently signaled by Coast Guard Commandant Admiral Paul Zukunft.18 In the interest of safety and security in the western Pacific, and specifically for the safety and security for the men and women of the U.S. Coast Guard who will deploy there, it is imperative to establish a Western Pacific Coast Guard Forum and to insist that its first agenda item be the agreement and establishment of CUES applicable to coast guards within the region.
1.Kyle Lockwood, “The Cod Wars,” Strategy and Tactics Magazine, 28 March 2016, http://strategyandtacticsmagazine.com/site/the-cod-wars/.
2. UHP Staff, “A Serious Joke: Britain and Iceland Go to War,” www.ultimatehistoryproject.com/cod-war-britain-and-iceland-go-to-war-over-fishing.html.
3. British National Archives, “The Cabinet Papers 1915-1988: The Cod Wars,” www.nationalarchives.gov.uk/cabinetpapers/themes/cod-wars.htm.
4. Lockwood, “The Cod Wars.”
5. TED Case Studies, “The Cod War,” American University, http://www1.american.edu/TED/icefish.htm.
6. Arbitration Between the Republic of the Philippines and the Peoples Republic of China, Permanent Court of Arbitration, Award pages 417-419, 12 July 2016.
7. Ibid, 418-420.
8. “Japan Fires Water Cannon to Turn Away Taiwan Boats,” Reuters, 25 September 2012, www.reuters.com/article/us-china-japan-taiwan-idUSBRE88O02C20120925.
9. Ankit Panda, “Chinese, Vietnamese Coast Guard Boats Collide,” The Diplomat, 4 June 2014, http://thediplomat.com/2014/06/chinese-vietnamese-coast-guard-boats-collide/.
10. Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas, 25 May 1972.
11. Zhou Bo, “Avoiding Incidents at Sea,” China Focus, 26 April 2014, www.chinausfocus.com/peace-security/avoiding-incidents-at-sea; Mark J. Valencia, “The US-China MOU on Air and Maritime Encounters,” 17 November 2014, http://thediplomat.com/2014/11/the-us-china-mou-on-air-and-maritime-encounters/.
12. Hoang Thi Ha, “Making the CUES Code Work in the South China Sea,” Today (Singapore), 8 September 2016, http://m.todayonline.com/commentary/making-cues-code-work-south-china-sea.
13. “The North Pacific Forum: Shaping An Infrastructure For Collaboration – An Interview with Rear Admiral Bob Day,” Second Line of Defense, 2 April 2001, www.sldinfo.com/shaping-an-infrastructure-for-collaboration/.
14. White House Fact Sheet: President Xi Jinping’s State Visit to the United States, 25 September 2015; White House Fact Sheet: President Obama’s Bilateral Meeting with President Xi Jinping, 3 September 2016.
15. Thi Ha, “Making the CUES Code Work.”
16. LT Katie Braynard, USCG, “Establishment of the Arctic Coast Guard Forum,” Coast Guard Compass: Official Blog of the U.S. Coast Guard, 30 October 2015, http://coastguard.dodlive.mil/2015/10/establishment-of-the-arctic-coast-guard-forum/; LT Stephanie Young, USCG, “A Safe, Secure North Pacific,” Coast Guard Compass: Official Blog of the U.S. Coast Guard, September 17, 2014, http://coastguard.dodlive.mil/2014/09/a-safe-secure-north-pacific/.
17. Prashanth Parameswaran, “U.S., Vietnam Eye Deeper Coast Guard Cooperation,” The Diplomat, 30 September 2015, http://thediplomat.com/2015/09/us-eyes-deeper-coast-guard-cooperation-with-vietnam/; “U.S. Ambassador Helps Open National Coast Watch Center to Enhance Philippine Maritime Domain Awareness,” PACOM News, 30 April 2015, www.pacom.mil/Media/News/Article/587080/us-ambassador-helps-open-national-coast-watch-center-to-enhance-philippine-mari/.
18. Elizabeth Shim, “U.S. Commandant: Coast Guard Could Play Broader Role in Asia-Pacific,” United Press International, 30 November 2016, www.upi.com/Top_News/World-News/2016/11/30/US-commandant-Coast-Guard-could-play-broader-role-in-Asia-Pacific/5501480528590/.
CAPT Bruen is the senior U.S. Coast Guard legal advisor and the staff judge advocate for Coast Guard Pacific Area. He is a member of the Coast Guard team negotiating the rules of behavior memorandum of understanding with the Chinese Coast Guard.