Council for Security Cooperation in the Asia-Pacific

MEMORANDUM

13GUIDELINES FOR MARITIME COOPERATION IN ENCLOSEDAND SEMI-ENCLOSED SEAS AND SIMILAR SEA AREAS
OF THE ASIA PACIFICIntroduction
This document puts forward the proposed Guidelines for Maritime Cooperation in Enclosed
and Semi-Enclosed Seas and Similar Sea Areas of the Asia Pacific, which have beendeveloped by the Study Group on Facilitating Maritime Cooperation in the Asia Pacificestablished by the Council for Security Cooperation in Asia Pacific (CSCAP). The Guidelines
are a set of fundamental, non-binding principles to guide maritime cooperation in the enclosed
and semi-enclosed seas of the region, and to help develop a common understanding andapproach to maritime issues in the region.

Background
Many of the seas in the Asia Pacific region are enclosed or semi-enclosed seas within thedefinition in Article 122 of the 1982 UN Convention on the Law of the Sea (UNCLOS).
UNCLOS Article 123 states that:
States bordering an enclosed or semi-enclosed sea should cooperate with each otherin the exercise of their rights and in the performance of their duties under thisConvention. To this end they shall endeavour, directly or through an appropriate
regional organization:(a)to coordinate the management, conservation, exploration and exploitation of theliving resources of the sea;(b)

to coordinate the implementation of their rights and duties with respect to theprotection and preservation of the marine environment;(c)to coordinate their scientific research polices and undertake where appropriate
joint programmes of scientific research in the area;(d)to invite, as appropriate, other interested States or international organizations tocooperate with them in the furtherance of the provisions of this article.

This is a strong obligation, but cooperation in the management of regional enclosed and semienclosed seas falls short at present of what is desirable. This is due largely to the existence ofsovereignty disputes and overlapping boundary claims that inhibit the process of cooperation
and a perception that cooperation involves some giving up of sovereignty.
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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia PacificWhile resource management, the protection of the marine environment and marine scientificresearch are mentioned specifically as areas for cooperation, the opening sentence ofUNCLOS Article 123 sets a more general obligation to cooperate. That responsibility might beinterpreted as including security and safety, including the maintenance of law and order atsea.
Less than half the maritime boundaries required in the seas of Southeast and Northeast Asia
have been agreed. In many cases, sovereignty disputes over offshore islands and otherfeatures inhibit further progress with maritime boundary delimitation. These disputes areunlikely to be resolved in the short-term, and in the meantime, important areas of cooperation
are not being addressed, including cooperation for maintaining law and order at sea (including
against piracy, maritime terrorism, proliferation of weapons of mass destruction (WMD), andillegal trafficking in arms, drugs, protected resources or people), search and rescue,navigational safety, and marine environmental protection.

Importance of these guidelines
The importance of these Guidelines flows from the nature and complexity of the regional
geographical environment, the significance of maritime issues in the region, and thepropensity for illegal activities and disputes to occur at sea. Maritime cooperation in theenclosed and semi-enclosed seas will contribute to regional stability by easing tensions andreducing the risks of conflict.
In putting forward these Guidelines, the Study Group acknowledges that several importantmanagement regimes, including conflict avoidance mechanisms, are already in place for theenclosed and semi-enclosed seas of the Asia-Pacific. These include:•The ASEAN-China Declaration on the Conduct of Littoral states in the South China Sea
2002.

•The Japan-China Mutual Prior Notification Regime for Scientific Research in Waters ofInterest to each other.

•Various bilateral Fisheries Cooperative Agreements and Joint Development Zones.

The Guidelines seek to build on these existing mechanisms and extend the valuable lessons
that have already been learned through the development of these mechanisms.

Purpose of Guidelines
The Guidelines serve several purposes:•First, they should serve as a basis for preventive diplomacy, constituting an importantregional confidence-building measure that lays down general principles for regional
maritime cooperation in line with the ASEAN Regional Forum’s (ARF's) long term
objective of becoming a mechanism for conflict prevention. They should serve toencourage cooperation, particularly in enclosed or semi-enclosed seas with overlapping
claims to maritime jurisdiction.
••

Secondly, they serve as a step in the process of enhancing oceans governance in theAsia Pacific region based on UNCLOS and the notion of integrated management ofoceans issues.
Thirdly, the Guidelines should help promote a stable maritime regime in the region withthe free and uninterrupted flow of seaborne trade, and nations able to pursue theirmaritime interests and manage their marine resources in an ecologically sustainable
manner in accordance with agreed principles of international law.

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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia PacificLegal Status of the Guidelines
The proposed Guidelines are non-binding in nature. They set down broad principles ofcooperative behaviour, and do not create legally binding obligations between states. Inkeeping with their non-binding but persuasive nature, the guidelines are framed in exhortatory
rather than obligatory language.

Previous CSCAP Memorandums
The previous CSCAP Memorandums are relevant to these Guidelines:•CSCAP Memorandum No. 4 – Guidelines for Regional Maritime Cooperation (December1997)•CSCAP Memorandum No.5 – Cooperation for Law and Order at Sea (February 2001)•CSCAP Memorandum No. 6 – The Practice of the Law of the Sea in the Asia Pacific(December 2002)

Recommendation
It is recommended that these Guidelines be endorsed by the ARF.

29th CSCAP Steering Committee Meeting
Kuala Lumpur, Malaysia
2 June 2008.

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3Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia PacificGUIDELINES FOR MARITIME COOPERATION IN THE
ENCLOSED AND SEMI-ENCLOSED SEAS OF
THE ASIA PACIFIC
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 States to utilise the oceans for peaceful purposes;
Acknowledging the importance of resolving sovereignty and jurisdictional disputes peacefullyand 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 provisions of the 1982 United Nations Convention on the Law of theSea (UNCLOS), particularly those in Part IX;
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 Maritime Cooperation in the Enclosed
and Semi-enclosed Seas of the Asia-Pacific:

Definitions
1.

For the purposes of these Guidelines:"archipelagic waters" means those waters enclosed by the archipelagic baselines ofan archipelagic State drawn in accordance with Article 47 of the UNCLOS;"continental shelf" means the submarine area of seabed and subsoil as defined byPart VI of the UNCLOS;"enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or
more States and connected to another sea or the ocean by a narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive economic zones of
two or more coastal States, as defined by Part IX of the UNCLOS;"exclusive economic zone" means an area superjacent to the sea-bed, the sea-bed
and subsoil, as defined by Part V of the UNCLOS;"high seas" means those waters to which the provisions of Part VII of the UNCLOS
applies;“littoral states” means states in the Asia-Pacific region bordering on an enclosed orsemi-enclosed sea;

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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia Pacific"marine environment" includes the oceans and all seas and adjacent coastal areas,
as well as the seabed and ocean floor and subsoil thereof;“marine scientific research” means ship or air-based activities undertaken in themarine environment for peaceful purposes and for the benefit of humanity as a whole
to enhance scientific knowledge regarding the nature and natural processes of theseas and oceans, the seabed and subsoil;“overlapping claims” refers to marine areas over which two or more states claim
sovereignty or sovereign rights;"pollution of the marine environment" means the introduction by man, directly or
indirectly, 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 ofsea water and 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; 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.

Non-prejudicial
2.

Nothing contained in these Guidelines should be interpreted as prejudicing theposition of any littoral state in its claims to territorial sovereignty, sovereign rights overresources, or jurisdiction over territory or maritime zones.

Rights and duties
3.

Littoral states recognise:▪ the sovereignty and responsibilities of states in respect of their internal waters,
territorial seas, and archipelagic waters;▪ the sovereign rights, jurisdiction and duties of coastal states with regard toexclusive economic zones and continental shelves; and▪ the rights, jurisdiction and duties of other states in the various maritime zones asprovided by the UNCLOS, other conventions, treaty obligations and generalinternational law.

Maritime cooperation
4.

Littoral states recognise the importance of cooperation for the management of themarine environment, particularly for enclosed and semi-enclosed seas.

5.

Littoral states acknowledge and appreciate the progress already being made withactivities to prevent conflict and promote cooperation in the enclosed and semienclosed seas of the Asia-Pacific. These experiences provide valuable lessons inpractical maritime cooperation.

6.

Littoral states accept the importance of an inclusive approach to maritime
cooperation, noting the interests of relevant stakeholders.

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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia PacificUse of force
7.

Littoral states agree to use the sea for peaceful purposes only and without resortingto the threat or use of force except as provided for in the Charter of the United
Nations.

Sea lanes of communication
8.

Littoral states recognise the importance of the freedoms and rights of navigation, inaccordance with the provisions of UNCLOS, to the maintenance of seaborne trade in
the Asia Pacific region.

Humanitarian assistance9.

Littoral states recognise the benefits of working together on the prevention, mitigationand management 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 programs.

Search and rescue
10.

Littoral states are encouraged to promote greater sharing of maritime Search andRescue (SAR) experience and expertise, as well as facilitate coordination andcooperation in SAR training and procedures.

11.

Littoral states are encouraged to consult with regard to the ratification,implementation and participation in relevant conventions and instruments concerning
maritime SAR.

12.

Littoral states are encouraged to develop cooperative arrangements on SAR
operations with other states surrounding enclosed and semi-enclosed seas.

Navigational safety
13.

Littoral states are encouraged to promote navigational safety by measures such asadequate charting, notices to mariners, navigational aids, and notification ofrecommended shipping routes, as appropriate.

14.

Littoral states are encouraged to consult with regard to the ratification,implementation and participation in relevant conventions and instruments concerning
maritime safety.

15.

Littoral states are encouraged to cooperate to promote navigational safety including
in areas of overlapping maritime claims within enclosed and semi-enclosed seas.

Contingency planning
16.

Littoral states should ratify and take all necessary measures to implement theInternational Maritime Organization (IMO) Conventions on preparedness, response
and cooperation to deal with spills of oil or noxious and hazardous substances.

17.

Littoral states are encouraged to cooperate with each other and with the private
sector in the development of regional and sub-regional contingency plans to mitigate
the effects of marine natural hazards and to manage the consequences of a major
maritime disaster, including a serious environmental threat, such as an oil spill, or an
accident on an offshore oil or gas installation.

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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia PacificLaw and order at sea
18.

Littoral states recognise the importance of cooperation in the maintenance andenforcement of law and order at sea, including the prevention of piracy and armed
robbery against ships, poaching of marine resources, the illicit transport of people,drugs, arms and weapons of mass destruction, and other illegal activities.

19.

Littoral states are encouraged to institute regular meetings to enhance cooperationand coordination in their maritime enforcement activities.

Information sharing
20.

Littoral states recognize the importance of information for the exercise of their rights
and the fulfillment of their obligations in enclosed or semi-enclosed seas, and areencouraged to work towards arrangements for the sharing of information with otherlittoral states.

21.

Littoral states are encouraged to discuss and form mechanisms with other littoral
states for future information exchange with other littoral states on military exercises,
especially in areas where there are overlapping claims.

Protection and preservation of the marine environment
22.

Littoral states recognise their individual and collective obligation to protect andpreserve the marine environment.

23.

Littoral states should consult with regard to:▪
▪
▪
▪

cooperation in taking all measures necessary to prevent, reduce, monitor andcontrol pollution of the marine environment from all sources;
the ratification, implementation and participation in relevant conventions andinstruments concerning all aspects of protection, preservation and monitoring of
the marine environment;
measures to implement the relevant IMO Conventions that establish liability toensure that funds for compensation and clean-up are available; andthe development and implementation of contingency plans to respond to pollution
incidents in the marine environment.

Marine resources24.

Littoral states are encouraged to consult in the formulation and harmonisation ofpolicies for the conservation, management and sustainable utilisation of marine living
resources that straddle maritime zones, or which are highly migratory, or occur in thehigh seas.

25.

Littoral states are encouraged to consult in the formulation and harmonisation ofpolicies for the exploration and exploitation of marine non-living resources which
occur across two or more zones of national jurisdiction, especially in cases where ashared resource can be exploited, wholly or in part, from one or more of the zones ofnational jurisdiction.

Provisional arrangements
26.

Littoral states are encouraged to consider entering into provisional arrangements of apractical nature in areas of overlapping claims in accordance with UNCLOS Articles
74 and 83; and should seek to reach agreement on the sharing of resources in areasof overlapping claims or the resources accruing therefrom in an equitable manner,bearing in mind relevant state practice in the Asia Pacific.

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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia Pacific27.

Littoral states which cooperate in areas of overlapping claims have the right todeclare that their cooperation shall not prejudice or diminish in any mannerwhatsoever their position with respect to existing sovereignty and maritime boundaryclaims.

28.

Littoral states are free to declare that their cooperation with other states in an area ofoverlapping claims does not constitute any form of recognition of the legitimacy of thesovereignty claims or maritime boundary claims of other states in the overlappingarea.

Marine scientific research
29.

Littoral states are encouraged to cooperate, directly or through competentinternational, regional or sub-regional organisations, for the purpose of promoting
studies, undertaking programs of scientific research and encouraging the exchange
of information and data acquired about the marine environment, particularly about
pollution of the marine environment and changing sea levels.

30.

Littoral states should promote the establishment of regional marine scientific andtechnological research centres in accordance with UNCLOS Article 276.

31.

Littoral states are encouraged to consult on efforts to harmonise their respective
procedures, in accordance with Part XIII of UNCLOS, for granting consent toproposed marine scientific research projects in their exclusive economic zones andon their continental shelves.

Capacity building
32.

Littoral states recognise the benefits of technical cooperation and capacity-building,and are encouraged to implement relevant programs in the maritime sector designed
to build infrastructures, institutions and capabilities for policy formulation andimplementation. This includes information sharing and development of databases.

33.

Littoral states are encouraged to cooperate on capacity building, including thedevelopment and promotion of training and educational programs for themanagement of the marine environment, particularly for the maintenance of safety
and law and order at sea, the preservation and protection of the marine environment,
and the prevention, reduction and control of marine pollution. Such cooperation might
include:▪ the offer of places on national training courses to other parties;▪ sharing curriculum and course information;▪ the exchange of naval and law enforcement personnel, scientists and otherexperts;▪ the exchange of views on maritime issues;▪ holding conferences, seminars, workshops and symposiums on maritime subjectsof common interest;▪ fostering cooperation among maritime training institutions and research centres;and▪ cooperation in the collection and analysis of biological and ecological data.

34.

Littoral states are encouraged to seek assistance in capacity building frominternational aid agencies and developed countries.

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Memorandum 13 – Guidelines for maritime cooperation in enclosed and semi-enclosed
seas and similar sea areas of the Asia Pacific