James Kraska, Confidence Building Measures to Facilitate Navigation in the South China Sea, 32 Int’l J. Marine & Coastal L. 268 (2017).
Abstract: This article considers the development and efficacy of maritime confidence-building measures (CBMs) to ensure safe and secure navigation in the region, and to reduce tension and prevent conflict. The 1982 United Nations Convention on the Law of the Sea (LOSC) and the 1972 International Regulations for Preventing Collisions at Sea (COLREG) are multilateral agreements that set forth legally binding obligations of all states. The 2014 Code for Unplanned Encounters at Sea (CUES) provides greater fidelity for duties of safe interaction at sea, but it is nonbinding. The two major powers signed in 2014 and 2015 a legally nonbinding Memorandum of Understanding (MOU) on the Rules of Behaviour for Safety of Air and Maritime Encounters. This article concludes that the nonbinding instruments are unlikely to enhance navigational safety or security, and in some respects, may even undermine it.