Council for Security Cooperation in the Asia-Pacific

MEMORANDUM

4GUIDELINES FOR REGIONAL MARITIME COOPERATIONIntroduction
This document puts forward the proposed Guidelines for Regional maritime Cooperation
which have been developed by the maritime Cooperation Working Group of the Council for
Security Cooperation in the Asia Pacific (CSCAP). The Guidelines are a set of fundamental,
non-binding principles to guide regional maritime cooperation and to ensure a common
understanding and approach to maritime issues in the region.
These Guidelines were developed on the basis of proposals advanced at several regionalforums, at both Track One and Track Two levels, for a Regional Agreement on the Avoidanceof Incidents at Sea (INCSEA) agreement. As a consequence of papers delivered anddeliberations at the first two CSCAP Maritime Cooperation Working Group meetings, held in
Kuala Lumpur in June 1995 and April 1996, the concept evolved through the possibility of aRegional Risk Reduction of Maritime Safety Agreement to the idea of more wide-ranging
guidelines covering the full scope of regional maritime cooperation. Subsequently a proposed
draft of the Guidelines was considered by an ad hoc meeting of the Working Group, held inJakarta in December 1996, and accepted for submission to the CSCAP Steering Committee.
After subsequent comment by CSCAP members, discussion at the Third Meeting of theWorking Group held in Bangkok in May 1997 and a further opportunity for comment by
CSCAP members, the Guidelines are now issued for consideration for adoption in the region.
The Guidelines adopt a comprehensive approach to regional security. If adopted by regionalcountries, they will constitute a major contribution to regional security. They cover themaritime confidence and security building and preventive diplomacy measures identified by
the ASEAN Regional Forum (ARF) and reflect the strong support in the region for the 1982
UN Convention of the Law o the Sea (UNCLOS). The Guidelines are consistent withUNCLOS and have been influenced by State practice with regard to developments in oceansmanagement and international law since UNCLOS was opened for signature. They combine
this State practice with the obligations pertaining to maritime cooperation laid down inUNCLOS.

Importance of these guidelines
The importance of these Guidelines flows from the nature and complexity of the regionalgeographical environment, the significance of maritime issues in the region, and thepropensity for illegal activities and disputes to occur at sea. Maritime cooperation willcontribute to regional stability by easing tensions and reducing the risks of conflict. TheGuidelines also reflect the entry into force of the UNCLOS. They demonstrate the strong
regional support for UNCLOS which has been ratified by most ARF member states.

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Purpose of guidelines
The Guidelines serve several purposes:▪

First, they constitute an important regional confidence-building measure, laying down
general principles for regional maritime cooperation in line with the ARF’s long term
objective of becoming a mechanism for conflict resolution. They should serve todampen down tensions, particularly in areas of enclosed or semi-enclosed sea withdisputed or overlapping maritime jurisdiction.

▪

Secondly, they serve as a step in the process of building an oceans governanceregime for the Asia Pacific region based on UNCLOS and the inter-related nature ofoceans issues, and devoted to the notion of integrated management of such issues.

▪

Thirdly, the Guidelines should help promote a stable maritime regime in the region
with the free and uninterrupted flow of seaborne trade, and nations able to pursue
their maritime interests and manage their marine resources in an ecologicallysustainable manner in accordance with agreed principles of international law.

▪

Fourthly, the Guidelines apply the concept of comprehensive security in the Asia
Pacific region. They should provide a link between the various concepts andprocesses of comprehensive security and the various forums which are concernedwith elements of comprehensive security.

▪

Lastly, the proposed Guidelines encapsulate the progress achieved in the maritime
Cooperation Working Group meetings and pave the was for further work within eachof the maritime security issue areas covered by the broad principles for cooperation
laid down in the Guidelines.

Legal status of the guidelines
The proposed Guidelines are non-binding in nature. They set down broad principles ofcooperative behaviour in the maritime sector, and do not create legally binding obligationsbetween states. In keeping with their non-binding but persuasive nature, the guidelines areframed in exhortatory rather than obligatory language.
The Guidelines will be regarded as ‘soft’ law by international lawyers. Soft law instruments area relatively recent phenomenon in respect of the growing body of international agreements
between states. They are generally regarded as non-binding instruments which do not create
legal obligations, but instead reflect agreement between states concerning the need tocooperate in identified issue areas. Some of these instruments have been uniquely successful
in articulating basic ground rules for international behaviour. This is especially true in the fieldof the international environment. For example, the 1972 Stockholm Declaration on the HumanEnvironment is widely accepted as laying down the general principle of a state’s responsibility
for environmental damage to areas beyond its national jurisdiction. This principle is reflected
in many other well-known ‘soft law’ instruments, such as the 1992 Rio Declaration onEnvironment and Development, as well as in binding instruments, including UNCLOS itself.
The proposed Guidelines aspire to a similar status in respect of the maritime relations
between states in the region. They represent a consensus among these states as to themaritime issues which in their view require cooperation in order to achieve the overall
objective of a stable regime for all aspects of maritime activities conducted within the region.

Recommendation
It is recommended that these Guidelines be put forward as a CSCAP initiative forconsideration by the ARF.

Council for Security Cooperation in the Asia-Pacific
Memorandum 4 – Guidelines for regional maritime cooperation

2The publication of this Memorandum should not be seen as endorsement of the Guidelines by
all members of CSCAP. Some CSCAP members have reservations about several of theGuidelines especially:
18-19 Naval Cooperation
20Maritime Surveillance30
Non-Prejudicial

GUIDELINES FOR REGIONAL MARITIME COOPERATION
The participating states of the ASEAN Regional Forum;
Conscious that the issues of oceans management are closely interrelated and need to beconsidered as a whole;Affirming the duty among all Sates to utilise the oceans for peaceful purposes;
Acknowledging the importance of resolving sovereignty and jurisdictional disputes peacefully
and without resort to force;
Supporting the intention of the ASEAN Regional Forum (ARF) to foster a regional
environment conducive to maintaining the peace and prosperity of the Asia Pacific region;
Taking into account the entry into force of the 1982 United Nations Convention of the Law ofthe Sea (UNCLOS);
Acknowledging the guiding principles for the Protection of the Oceans, All Kinds of Seas,
Including Enclosed and Semi-encloses Seas, and Coastal Areas and the Protection, Rational
Use and Development of their Living Resources set out in Chapter 17 of Agenda 21, agreed
at the United Nations Conference on Environment and Development (UNCED) in Rio deJaneiro in 1992;
Taking into account emerging practice with regard to maritime cooperation in all parts of theworld;
Acknowledging the importance of seaborne trade in the Asia Pacific region;
Mindful of the interests which countries share in the marine environment, and in a spirit ofcooperation, friendship and goodwill; andConvinced that these guidelines will promote regional maritime cooperation and contribute to
the peace, good order and continuing prosperity of the Asia Pacific region;
Hereby adopt the following non-binding Guidelines for Regional Maritime Cooperation:

Definitions
1.

For the purpose of these Guidelines:“archipelagic waters” means those waters enclosed by the archipelagic baselines of anarchipelagic State drawn in accordance with Article 47 of the UNCLOS.
“continental shelf” means the submarine area of seabed and subsoil as defined by part
VI of the UNCLOS;“enclosed or semi-enclosed sea” means a gulf, basin or sea surrounded by two or moreStates and connected to another sea or the ocean by a narrow outlet or consisting

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3entirely or primarily of the territorial seas and exclusive economic zones of two or morecoastal States, as defined by Part IX of the UNCLOS;“exclusive economic zone” means an area superjacent to the sea-bed, the sea-bed andsubsoil, as defined by Part V of the UNCLOS;“high seas” means those waters to which the provisions of Part VII of the UNCLOS
applies;“marine environment” includes the oceans and all seas and adjacent coastal areas;“pollution of the marine environment” means the introduction by man, directly orindirectly, of substances or energy into the marine environment, including estuaries,
which results or is likely to result in such deleterious effects as harm to living resources
and marine life, hazards to human health, hindrance to marine activities, including
fishing and other legitimate uses of the sea, impairment of quality for use of sea waterand reduction of amenities, as defined by part I of the UNCLOS;“sea lines of communication” is the term used to describe shipping routes used forseaborne trade;“surveillance” means the observation of aerospace, surface and sub-surface areas,
places, persons or objects by visual, aural, electronic, and photographic means; and“territorial sea” means the belt of sea which is claimed by the coastal State as territorial
sea in accordance with Section 2, Part II of the UNCLOS.

Rights and duties
2.

Parties recognise:▪ the sovereignty and responsibilities of other Parties in respect of their internal waters,
territorial seas, and archipelagic waters;▪ the sovereign rights and duties of other Parties with regard to exclusive economic
zones and continental shelves; and▪ the rights and responsibilities of other States as provided by the UNCLOS, otherconventions, treaty obligations and general international law.

Maritime cooperation
3.

States are encouraged to become parties to the UNCLOS and other relevant
instruments, noting that this will contribute to the strengthening of peace, security,cooperation, sustainable development and friendly relations.

4.

Parties accept that a comprehensive concept of regional maritime security requires amultidisciplinary approach, necessitating cooperation and coordination among allinterested bodies and activities.

5.

Parties recognise the importance of cooperation for the management of the marine
environment, particularly for enclosed and semi-enclosed seas.

6.

Parties acknowledge and appreciate the progress being made with activities to prevent
conflict and promote cooperation in the South Pacific and the South China Sea. Theseexperiences provide valuable lessons in practical maritime cooperation.

Sea Lines of Communication
7.

Parties recognise the importance of freedom of navigation, in accordance with theprovisions of UNCLOS, to the maintenance of seaborne trade in the Asia Pacific region.

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48.

Taking into account the promotion of the safety of navigation and the protection of themarine environment, parties are encouraged to develop cooperative approaches to themaintenance and protection of sea lines of communication. Such cooperative
approaches might begin with exchanges of information and training in such areas as
humanitarian assistance, search and rescue, marine safety, and law and order at sea.
The exchange of information should include information on likely threats to, or security
incidents relating to, sea lines of communication.

9.

Further implementation of this cooperative approach could include naval cooperationand the sharing of information resulting from maritime surveillance.

Humanitarian assistance
10.

Parties recognise the benefits of working together on the prevention, mitigation andmanagement of maritime natural disasters, including preparedness and early warning
systems, the exchange of information, compilation of data bases, planning, disaster
reduction and relief activities, as well as training and education programmes.

Search and rescue
11.

Parties are encouraged to promote greater sharing of maritime Search and Rescue(SAR) experience and expertise, as well as facilitate coordination and cooperation in
SAR training and procedures.

12.

Parties are encouraged to consult with regard to the ratification, implementation andparticipation in relevant conventions and instruments concerning maritime SAR.

Maritime safety
13.

Parties are encouraged to promote navigational safety by measures such as adequate
charting, notices to mariners, navigational aids, and notification of recommended
shipping routes, as appropriate.

14.

Parties express support for regional and international efforts to deal with the problem of
sub-standard ships, including the establishments of regional systems of port state
control.

15.

Parties are encouraged to consult with regard to the ratification, implementation andparticipation in relevant conventions and instruments concerning maritime safety.

Law and order at sea
16.

Parties recognise the importance of cooperation in the maintenance and enforcement of
law and order at sea, including the prevention of piracy, drug smuggling, and othercrimes at seas, acknowledging the rights of states to enforce their domestic laws at sea
to the extent permitted by international law.

17.

Parties are encouraged to institute regular meetings to enhance cooperation andcoordination in their maritime enforcement activities.

Naval cooperation
18.

Parties acknowledge the confidence building benefits of naval cooperation, including
increased personnel contacts and voluntary measures to promote naval transparency.

19.

Parties may wish to consider a framework of bilateral or multilateral instruments on theavoidance of naval incidents that would be open to interested navies.

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Maritime surveillance20.

Parties recognise that maritime surveillance may be conducted for peaceful purposes aspart of the exercise of freedom of navigation and overflight in areas claimed as exclusive
economic zone or continental shelf, and on the high seas. This should be conductedwithout prejudice to the jurisdictional rights and responsibilities of the coastal state within
its exclusive economic zone or over its continental shelf, as provided for underUNCLOS.*

21.

Parties are encouraged to work towards arrangements for the sharing of surveillance
information with other Parties to these Guidelines.

Protection and preservation of the marine environment
22.

Parties recognise their individual and collective obligation to protect and preserve themarine environment.

23.

Parties are encouraged to consult with regard to:▪ cooperation on a bilateral, sub-regional and regional basis in taking all measuresnecessary to prevent, reduce, monitor and control pollution of the marine environment
from all sources.
▪ the ratification, implementation and participation in relevant conventions andinstruments concerning protection, preservation and monitoring of the marineenvironment.
▪ the implementation of Chapter 17 of Agenda 21, adopted at the 1992 United Nations
Conference on Environment and Development (UNCED), particularly those
programme areas concerning integrated management and sustainable development,
marine environmental protection and the strengthening of international, including
regional cooperation and coordination; and▪ the development and implementation of national, sub-regional and regional
monitoring programmes and contingency plans in response to pollution incidents inthe marine environment.

Marine resources
24.

Parties are encouraged to consult at the bilateral, sub-regional and regional levels in theformulation and harmonisation of policies for the conservation, management andsustainable utilisation of marine living resources that straddle maritime zones, or which
are highly migratory, or occur in the high seas.

25.

Parties are encouraged to consult at the bilateral, sub-regional and regional levels in theformulation and harmonisation of policies for the exploration and exploitation of marine
non-living resources which occur across two or more zones of national jurisdiction,
especially in cases where a shared resource can be exploited, wholly or in part, fromone or more of the zones of national jurisdiction.

Marine scientific research
26.

Parties are encouraged to cooperate, directly or through competent international,
regional or sub-regional organisations, for the purpose of promoting studies, undertaking
programmes of scientific research and encouraging the exchange of information anddata acquired about the marine environment, particularly about pollution of the marineenvironment and changing sea levels.

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627.

Parties are encouraged to consult on efforts to harmonise their respective procedures, inaccordance with Part XIII of UNCLOS, for granting consent to proposed marine scientificresearch projects in their exclusive economic zones and on their continental shelves.

Technical cooperation and capacity building
28.

Parties recognise the benefits of technical cooperation and capacity building, and areencouraged to implement relevant programmes in the maritime sector designed to build
infrastructures, institutions and capabilities for policy formulation and implementation.
This includes information sharing and development of databases.

Training and education
29.

Parties will cooperate on the development and promotion of training and educational
programmes for the management of the marine environment, particularly for themaintenance of safety and law and order at sea, the preservation and protection of themarine environment, and the prevention, reduction and control of marine pollution. Suchcooperation might include:▪ the offer of places on national training courses to other parties, subject to payment ofrelevant costs;▪ sharing curriculum and course information;▪ the exchange of naval and law enforcement personnel, scientists and other experts;▪ the exchange of views on maritime issues;▪ holding conferences, seminars, workshops and symposiums on maritime subjects ofcommon interest; and▪ fostering cooperation among maritime training institutions and research centres.

Non-prejudicial30.

Nothing contained in these Guidelines, or activities taking place thereabove, should beinterpreted as prejudicing the position of any Party in its claims to territorial sovereignty,
sovereign rights or jurisdiction over territory or maritime zones.

*CSCAP Malaysia is not able to agree with this formulation of Paragraph 20 and proposesthat it should read:“Parties recognise that maritime surveillance may be conducted for peaceful purposesas part of the exercise of freedom of navigation and overflight in areas claimed as
exclusive economic zone or continental shelf, and on the high seas. This should be
conducted with agreement, and without prejudice to the sovereign rights, of the coastal
state within its exclusive economic zone or continental shelf”.

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