MaritimeSecurity.Asia in cooperation with Ministry of Defense (Japan).
Presentation to: 2nd Tokyo Defense Forum Seminar Organized by the Ministry of Defense, Tokyo, Japan March 16, 2012
by Carlyle A. Thayer, Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra. E?mail: email@example.com
Threats and Challenges to Maritime Security
There is no legal definition of maritime security. Maritime security has been defined broadly by scholars and government officials to include any and all of the following: protection of sovereignty and territorial integrity in the maritime domain; security of shipping and seafarers; protection of facilities related to maritime affairs; port security; resource security; environmental security; protection against piracy and armed crimes at sea; protection of fisheries; safety and freedom of navigation and over flight; regulation of maritime affairs; and maintenance of law and good order at sea.
The central argument of this paper is that efforts to ensure maritime security require both recourse to international law, including the United Nations Convention on Law of the Sea (UNCLOS), and political negotiations among the major states concerned. Maritime security can only be secured by careful navigation between legal regimes and realpolitik. If the current status quo remains the implications are clear: maritime incidents could erupt at any time and undermine not only the bilateral relations of the states concerned but regional security as well. If current maritime differences are not addressed they could become a major driver in strategic relations rather a problem to be managed by mutual consent.
Legal regimes, such as UNCLOS, are necessary but not sufficient foundation for maritime security. This is because UNCLOS fails to define key terms used in the debate between maritime powers such as China and the United States. UNCLOS itself may have been overtaken by advances in technology – both civil and military. In addition, China and many other nations have adopted laws to regulate foreign military activities in their EEZs that are not supported by international law including UNCLOS. Finally, the United States, although a signatory to UNCLOS, has not yet acceded to the Convention. It is highly unlikely the US Senate will ratify UNCLOS for domestic political reasons and this possibility is likely reinforced by Chinese unilateral interpretations of the Convention.
The paper focuses mainly on Southeast Asia. It identifies four major threats and challenges to maritime security:
1. Unsafe actions against military vessels in EEZs and international waters
2. Disruption of commercial activities 3. Harsh treatment of fishermen
5. Regional Force Modernisation
Unsafe actions against military vessels in EEZs and international waters
The United States is the world’s leading naval power. Naval power requires the high seas for maneuver to bring this force to bear on critical security situations.2 During the negotiation process that led to UNCLOS the US was adamant in defence of customary freedom of the seas. As a matter of both international law and realpolitik the United States opposes all attempts by coastal states to limit access to their EEZs by military ships and aircraft.
China, on the other hand, is a continental power that is gradually emerging as a maritime power.3 China seeks to contest US naval dominance in the Western Pacific by expanding its naval reach from the first to second chains of islands off its eastern coast. China has adopted “legal warfare” as part of its military doctrine and utilizes both domestic legislation and its interpretation of international law to restrict as much as possible US military activities in its EEZ.
Given that both the United States and China are also nuclear powers with vital national security interests at stake it is improbable that any legal regime could be adopted that would satisfy both states.4 In these circumstances a political agreement based on realpolitik is the most likely solution. Both countries need to address the management of maritime incidents that regularly occur between their navies. In order to do so this matter needs to be addressed at the highest political level such as the China?United States Strategic and Economic Dialogue and its associated Defense Consultative Talks and the China?United States Consultations on Asia Pacific Affairs. Once political agreement is reached maritime security issues should be turned over to officials at their bilateral meeting under the 1998 Military Maritime Consultative Agreement.
Both China and the United States should agree that the existing International Regulations for Avoiding Collisions at Sea are the foundation for the management of safety of navigation. The US?China Military Maritime Consultative Council (established 1998, suspended in 2001 and resumed in February 2009)5 should task its Maritime and Aviation Safety Working Group to draft an Incidents at Sea Agreement (INCSEA) that specifies regular consultations, dangerous conduct, means of communication and a mechanism to adjudicate, review procedures and correct transgressions. It is notable that several scholars from China and the US are in agreement that an INCSEA should be adopted.6 Such an agreement should also be accompanied by confidence and trust building measures.7
In addition, China and the United States need to work out a modus vivendi – or code of conduct – governing military and intelligence gathering activities in each other’s EEZs. Mark Valencia suggests that one relevant guideline would enjoin both parties to refrain from the threat or use of force and provocative acts such as active intelligence collection to support the use of force against the coastal state, or interfering with that state’s electronic systems.8
International law, including UNCLOS, is a necessary but not sufficient condition for establishing maritime security in disputed waters of the South China and East China Seas. It is clear that geo?political rivalry between China and the United States at any moment can threaten the fabric of weak legal regimes. International law, which reflects the consensus of the international community, can go only so far when major powers are in disagreement.
Disruption of commercial activities
China’s actions in threatening to ram a commercial oil exploration vessel operating in the Reed Bank area claimed by the Philippines and cutting the cables of two commercial exploration vessels operating well within Vietnam’s EEZ represent an unprecedented threat to the safety of navigation in the South China Sea. In China’s eyes its actions were
justified because China held legal jurisdiction over these waters and the oil exploration vessels were assisting in plundering resources to which China was legally entitled.
If this situation is not addressed through political means it will only be a matter of time before confrontation takes place in the South China Sea between armed state vessels. The immediate solution is for all parties to recommit themselves to refraining from the threat or use of force without prejudice to their sovereignty claims.
As an immediate measure, China and the ASEAN states should expedite their Joint Working Group to carry out the recently adopted Guidelines to Implement the DOC. And on a bilateral basis, China and Vietnam should adopt practical measures under their recently signed Agreement on Basic Principles to Settle Sea Disputes.
All parties should publicly commit not to interfere in the commercial operations of oil exploration vessels and oilrigs pending the adoption of a legally binding ASEAN?China Code of Conduct for the South China Sea. At the same time, the ASEAN states should endorse, flesh out and adopt specific measures to implement the initiative by the Philippines to turn the South China Sea into a Zone of Peace, Freedom, Friendship and Cooperation. This proposal is aimed at creating enclaves that divide the South China Sea into areas that are recognized as being in dispute from those areas that are not. Once areas in dispute have been identified, the state parties should proceed with a pilot scheme to test the efficacy of joint development.
Harsh treatment of fishermen
Three points need to be made with respect to fishing in the South China Sea. The first is that millions of people are dependent on fish for their daily source of protein; the fish stock in the South China Sea is being depleted through overfishing and marine pollution. The second point is that fish do not respect maritime boundaries and easily pass from one state’s EEZ to another. Third, the waters of the South China Sea are in dispute.
Over the past four years Chinese civil enforcement agencies have acted harshly to enforce China’s unilateral annual fishing ban in waters of the South China Sea above twelve degrees north north latitude. Chinese vessels have not only chased Vietnamese craft out of the area but have arrested fishing boats, seized their catch, and held their crews until payment of a fine (ransom). Chinese enforcement activities have extended beyond this to include ramming and sinking fishing craft. This has led to the loss of life on several occasions. Further, Chinese enforcement officials have fired at Vietnamese fishing craft, used physical force to beat fishing crews including the boat captain, seized all items of value including navigational and communications equipment (GPS systems, radios, spare parts), and Chinese officials have reportedly siphoned off fuel. Finally, there are reported instances where Chinese enforcement ships have driven off Vietnamese fishermen seeking refuge from storms. The 2002 Declaration on Conduct of Parties in the South China Sea (DOC), to which China is a signatory, enjoins the parties to treat fishermen in distress humanely.
The DOC suggests that cooperation between China and littoral states could be carried out to address marine environmental protection, marine scientific research, safety of navigation and communication at sea and search and rescue.9 The current situation calls out for a regional approach to manage the fisheries, control marine pollution and ensure the safety of navigation of all fishermen – without prejudice to sovereignty claims by individual states.
If China’s claims that its annual fishing ban is to protect the fish stock, why are Chinese fishing boats permitted to put to sea while the ban is in force? A regional mechanism to manage fisheries should involve all parties with a direct interest. Each of these state parties could cooperate together enforce an annual fishing ban on their own citizens. The state parties could mount joint patrols to enforce the ban with the minimum use of force and due respect to domestic law. And state parties could render assistance to fishermen in distress.
Two proposals were tabled at the third international workshop on the South China Sea held in Hanoi in November 2011. The first proposed resolving fishery disputes through a regional cooperation and management mechanism.10 The second proposal considered the northwest quadrant of the South China Sea where jurisdiction is contested by China and Vietnam. This proposal advanced the concept of a marine protected area between the two countries. As a matter of urgency, the states involved should adopt informal and voluntary procedures to prevent incidents involving the threat and use of force such as described above, including the aiming and firing of weapons by warships, deliberate ramming, and the confiscation of navigational aids such as Global Positioning Systems.
Piracy in the Straits of Malacca and Singapore has largely been addressed by the littoral states through coordinated patrols (Malsindo) and aerial reconnaissance (Eyes in the Sky), and by the international community through the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP). Piracy has relocated from the straits into the southern reaches of the South China Sea where older ships, anchored until the global economy picks up, have been the prime victims. Combating piracy and armed robbery at sea was one of the points for multilateral cooperation outlined in the 2002 DOC (Point 6e) that could be taken up by regional states.11
One new proposal to address this threat to safety of navigation is to establish a limited purpose Maritime and Air Identification Zone.12 This proposal argues that past impediments in international law against the use of force to combat piracy could be overcome by the application of Article 105 of UNCLOS. This would stimulate greater cooperation among regional states and the international community to address this growing threat to freedom of commercial shipping and navigation.
Regional Force Modernisation
China’s military modernisation and transformation, especially naval modernisation, coupled with increased Chinese assertiveness in the South China Sea, has created a security dilemma for Southeast Asia’s states. China’s efforts to safeguard its security by developing what it considers a reasonable force structure to deter the United States has created insecurity in several ASEAN states due to China’s lack of transparency. ASEAN states have been circumspect in public statements but their concerns can be discerned by the significant rise in defence expenditures and the kinds of weapon systems and platforms that they have acquired. Southeast Asia’s arms procurements go beyond force modernisation and include the introduction of new capabilities that can be operated at extended ranges. It should be recognized, however, that not all of these new capabilities have been acquired in response to China’s military build up.
In Southeast Asia the conventional submarine has been the new hallmark of naval acquisitions.13 Singapore recently modernised its submarine fleet. Malaysia has taken delivery of two Scorpene?class submarines. Vietnam has ordered six conventional Kilo? class submarines. Indonesia is in the process of acquiring submarines from South Korea. Thailand and even the Philippines are reportedly in the market for submarines. Nearby Australia has recently called for tenders to construct twelve large conventional submarines. In addition, Australia, Malaysia, the Philippines, Singapore and the United States are stepping up investment in their anti?submarine warfare capabilities.
Security analysts warn that the proliferation of submarine fleets may be destabilizing in times of tensions and crises due to the complexities of command and control. In other words, Southeast Asia’s arms buying spree, although largely intended for defensive purposes, may have a destabilising impact on regional security.14 So far there have been few if any indications that this issue is being addressed by ASEAN?centric multilateral organizations to which this paper now turns.
ASEAN-centric security cooperation
In East Asia, international law serves to a certain extent to modify state behaviour, but state behaviour is largely motivated and constrained by realpolitik. Solutions to maritime security issues in the South China Sea should be addressed by the maritime working group established by the ADMM Plus process and as part of the ARF work process. In addition, maritime security issues in general should be addressed by summit meetings among the major powers (China?US, US?Japan?South Korea, China?Japan etc.) and by ASEAN member states themselves (i.e., the four claimant states and the six non? claimant states). Both of these processes could feed into East Asia Summit process and strengthen the region’s newly emerging security architecture.
Since its establishment in 1967 ASEAN has sought to promote the twin goals of Southeast Asia autonomy and ASEAN’s centrality in the region’s security affairs. As an illustration of the former, ASEAN adopted the Zone of Peace, Freedom and Neutrality in 1971, the Treaty of Amity and Cooperation in 1976 and the Southeast Asia Nuclear Weapons Free Zone Treaty in 1995. As an example of the latter, ASEAN initiated the ASEAN Regional Forum in 1994, the East Asia Summit in 2005 to include India, Australia and New Zealand (and later Russia and the United States) and the ADMM Plus in 2010.
ASEAN’s attempt to promote Southeast Asian autonomy and its central role in security affairs often comes under pressure by the centrifugal forces of the engagement strategies pursued by China and the United States. No where is this more apparent than in the maritime domain where tensions in China?U.S. relation have been transmitted to Southeast Asia and overlay tensions in relations between China and ASEAN claimant states in the South China Sea. Maritime security has now emerged as the main issue facing ASEAN and its relations with the major powers.
Although ASEAN has set itself the goal of becoming an ASEAN Community by 2015 composed of three pillars (Political?Security Cooperation, Economic Cooperation and Socio?Cultural Cooperation) it is highly unlikely that ASEAN will develop a common foreign policy or common security and defence policy by that deadline. The reality of ASEAN?centric security cooperation is that it co?exists and overlays the security alignments of its individual members. Thailand and the Philippines are treaty allies of the United States, Malaysia and Singapore are members of the Five Power Defence Arrangements, while Singapore is a close strategic partner of the U.S. ASEAN is also divided on South China Sea issues between the four claimant states (Vietnam, the
Philippines, Malaysia and Brunei) and the non?claimant states. Even among the four claimant states there are differences between the Philippines and Vietnam on the one hand and Malaysia and Brunei on the other. The former are more proactive in resisting Chinese assertiveness, while the latter maintain a very low?key profile.
Regional force modernization combined with tensions in the South China Sea has raised the salience of maritime security issues. ASEAN faces the twin prospects that (1) major power tensions will continue to be transmitted into Southeast Asia and (2) ASEAN’s centrality in the region’s security architecture could be undermined by a major power taking unilateral action to deal with security challenges in the maritime domain.
ASEAN has the means to position itself between the global powers to mitigate the spillover of their rivalry in its maritime domain. In May 2006, ASEAN Defence Ministers met for the first time and began the process of institutionalizing defence cooperation on a regional basis. This enabled a new structure to emerge that now forms part of the ASEAN Political?Security Council under the ASEAN Charter. The ASEAN Defence Ministers Meeting (ADMM) became the capstone over what were informal meetings of the army, air force, navy and military intelligence chiefs.
At present practical guidance to ASEAN Defence Ministers and their subordinates to address maritime security issues as a priority appears to be lacking and the prospect for practical cooperation among ASEAN navies does not appear good. At the 4th ADMM in May 2010, it was agreed that ASEAN navies would cooperate to patrol their maritime boundaries. Little has been done to implement this agreement. At the most recent ASEAN Navy Chiefs Meeting (ANCM?5) in Vietnam in July 2011 there was disagreement over a number of issues including the formal name of the meeting, how often it should meet, the conduct of joint patrols and a proposal for an ASEAN communications protocol when navy ships passed each other at sea.15
ASEAN has also initiated other mechanisms to deal with maritime security. In 1994 ASEAN took the initiative to form the ASEAN Regional Forum (ARF). The ARF has successfully carried out a live disaster relief exercise (ARF DiREx). In March 2011 the ARF established the Inter?Sessional Meeting (ISM) on Maritime Security. The ISM on Maritime Security’s Work Plan on Maritime Security was approved at the 44th ASEAN Ministerial Meeting in July 2011.16 It focuses on information sharing, capacity building, and training rather than addressing the potentially disruptive impacts of current regional force modernization programs. Indeed, in 1995 a proposal to create a regional arms register has yet to be adopted.
In 2010, ASEAN established the ASEAN Maritime Forum (AMF) under the terms of the ASEAN Political Security Community (APCS) Blueprint.17 The AMF is focused on a comprehensive approach to maritime issues and has so far not dealt with either maritime security or South China Sea issues in detail.18 The second meeting of the AMF was held in Thailand in August 2011 and proposed expanding its membership to include dialogue partners in a separate meeting (AMF Plus).
More significantly, in October 2010 ASEAN inaugurated the ASEAN Defence Ministers Meeting Plus (ADMM Plus). This meeting approved the creation of the ASEAN Defence Senior Officials Meeting Plus (ADSOM Plus) and five expert working groups.19 The ADMM Plus agreed to meet every three years with the second meeting scheduled for Brunei in 2013. A year after its establishment, the terms of reference for the ADMM Plus Experts’ Working Group on Maritime Security was approved. This group will now report its deliberations to the ADSOM Plus. In order to be effective, the ADMM Plus process must be speeded up with at least annual meetings. The second ADMM Plus meeting will convene in Brunei in 2013.
Finally, in mid?2011 ASEAN member states and China agreed on Guidelines to Implement the DOC – nine years after the DOC was adopted. The ASEAN?China Joint Working Group to Implement the DOC, originally formed in 2004, recommenced its work in January 2012 at a meeting hosted by China.20 In November 2011, ASEAN Senior Officials began discussions on what activities and projects to include in a separate Code of Conduct. Once agreement is reached, the draft COC is scheduled to be presented to China ‘to determine what, when, where and how the project would be carried out’.21
In summary, the rise of China has raised the importance of the maritime security for all states in East and Southeast Asia. China is at the centre of four of the five major challenges to maritime security identified in this paper. Southeast Asia sits at the critical juncture of SLOCs that cross the Indian Ocean to the Western Pacific. The security of these SLOCs could be undermined by great power rivalry that is transmitted into Southeast Asia as well as on?going force modernization programs. According to one think tank, regional SLOCs are set to become more “crowded, contested and vulnerable to armed strife”.22
ASEAN has established a number of mechanisms to deal with maritime security issues. At present these overlap and are uncoordinated. What is missing is ASEAN leadership in giving direction to these multiple bodies and establishing a structure so that policy recommendations can be transmitted to ministerial and head of state level. ASEAN leaders should position themselves between China and the United States as the brokers of consensus on what form a streamlined regional architecture should take and what policy priorities should be adopted to ensure maritime security in Southeast Asia. The most recent expanded East Asia Summit (EAS) discussed maritime security issues thus establishing a precedent for retaining maritime security as an agenda item. The EAS could become focal point to address maritime security issues across the Asia?Pacific Region.
ASEAN can best position itself between global powers by first getting its own house in order with respect to maritime disputes among its members. This would enhance ASEAN’s unity and cohesion and better enable ASEAN to promote Southeast Asian autonomy and ASEAN’s centrality in the region’s security architecture.
ASEAN’s dogged focus on promoting confidence?building measures with China in the South China Sea under the DOC, while an important security goal, is fundamentally a misplaced priority. This approach divides ASEAN into two categories, claimants and non? claimants, and prevents ASEAN itself from adopting a common policy. This approach also allows China to play on differences among ASEAN members and drag out not only discussions on DOC confidence?building measures but also discussions on a more binding Code of Conduct. A COC for the South China Sea is too restrictive as it does not cover Southeast Asia’s larger maritime domain.
The main priority for ASEAN should be to adopt a Code of Conduct for Southeast Asia’s Maritime Domain. This proposal is based on two premises. First, the security of the maritime domain in Southeast Asia is indivisible for all ASEAN members, whether coastal or landlocked states. Second, international law, including the United Nations Convention on Law of the Sea, applies equally throughout Southeast Asia’s maritime domain and not just the South China. It is applicable to all states.
Southeast Asia is beset by a number maritime boundary disputes among ASEAN members: Vietnam and the Philippines, Cambodia?Thailand (Gulf of Thailand), and Indonesia and its neighbours, as well as between Myanmar and Bangladesh.
Regional maritime disputes involve both claims to sovereignty over islands and features and sovereign rights over resources in the sea and continental shelf. The purpose of a Code of Conduct for Southeast Asia’s Maritime Domain is to provide a framework for state behaviour pending the settlement of disputes over sovereignty and sovereign rights. An agreement to a code of conduct should be without prejudice to claims to sovereignty and sovereign rights.
Who should be included in a regional code of conduct? What area should it cover?
The regional maritime code of conduct should include all ten ASEAN members of the Association (and future members),23 and cover Southeast Asia’s maritime domain ? not just the South China Sea ? in a manner analogous to the Zone of Peace Freedom and Neutrality (1971), Treaty of Amity and Cooperation (1976) and Southeast Asia Nuclear Weapons Free Zone Treaty (1995).
Coverage of the entire Southeast Asian maritime domain would make all of ASEAN’s members stakeholders in the Code of Conduct, including Cambodia and Myanmar.24 This would overcome the present division of ASEAN states into claimant and non? claimant states with respect to the South China Sea. The adoption of a Code of Conduct for Southeast Asia’s Maritime Domain would reinforce ASEAN’s corporate and legal identity and enhance its ability to deal with external powers.
All signatories to the code of conduct should renounce the threat of and use of force to:
settle their disputes over sovereignty and sovereign rights,
- disrupt good order at sea including safety of navigation and over flight.
All ASEAN states should bring their maritime claims into line with international law, with particular attention to eliminating excessive baselines and clearly distinguishing islands from rocks for purposes of maritime delimitation. The expertise of an independent panel of technical and legal experts could be called to assist in determining base lines and the classification of islands and rocks.
All signatories should commit themselves to a resolution of maritime disputes within a mutually agreed time frame through negotiations or other mutually agreed methods. If, at the expiration of the agreed time frame no resolution of maritime disputes is reached the states involved should agree to a settlement based on arbitration by an appropriate international court or tribunal (International Tribunal on Law of the Sea or International Court of Justice) or other agreed procedure.
All parties to the Southeast Asia Maritime Code of Conduct should commit themselves to demilitarising the features (islands and rocks) that they physically occupy, including the prohibition of deploying specified types of weapon systems such as land based anti? ship missiles.
For purposes of security, including protection against piracy and armed criminals, police or coast guard personnel may be stationed on occupied features.
A maritime code of conduct should also contain provisions for all parties to cooperate in: marine scientific research, marine pollution, fisheries management, search and rescue, anti?piracy and other agreed areas.
A regional code of conduct should set up a body to oversee its implementation and to handle complaints and disputes that may arise. Such a body should be included under the ASEAN Political?Security Community Council. ASEAN should then encourage its dialogue partners to sign on the Regional Code through an appropriate protocol.
The security environment is Southeast Asia is overlayed by three competing patterns of security cooperation: U.S.?led alliances and security networks; China’s exclusivist East Asia security framework; and ASEAN?centric security cooperation.25 The third approach offers the most likely path to ensuring maritime security. ASEAN first needs to reach consensus among its member about how to streamline the existing regional security architecture. It then needs to bring all of its dialogue partners on board. The East Asia Summit of heads of government and state appears the best structure for a leaders’ led forum that can authoritatively deal with proposals to enhance maritime security vetted through either or both the ARF and the ADMM Plus processes.