August 23, 2017
Regional security in Southeast Asia, to a large extent, means maritime security. All but one of the 10 Association of Southeast Asian Nations (ASEAN) member states are coastal states; two of these are the world’s largest archipelagic nations. The joint communiqué of the recent 50th ASEAN foreign ministers’ meeting in Manila, Philippines, highlighted the importance of “strengthening linkages in maritime cooperation to further promote mutual trust and confidence.” Maritime tensions in the region reached a high a little over a year ago when the United Nations tribunal ruled largely in favor of the Philippines in a case it brought against China over the latter’s claims in the South China Sea.
Southeast Asia is a critical maritime region for commerce and resources, as $5.3 trillion in goods transits through Southeast Asian waters each year. Photo/Flickr user salehi hassan http://bit.ly/1SjxL8H
There is no set definition of “maritime security.” In its 2008 Oceans and the Law of the Sea report, the UN General Assembly noted how it encompasses a wide range of threats:
At its narrowest conception, maritime security involves protection from direct threats to the territorial integrity of a State, such as an armed attack from a military vessel. Most definitions also usually include security from crimes at sea, such as piracy, armed robbery against ships, and terrorist acts. However, intentional and unlawful damage to the marine environment, including from illegal dumping and the discharge of pollutants from vessels, and depletion of natural resources, such as from IUU (Illegal, Unreported, and Unregulated) fishing, can also threaten the interests of States, particularly coastal States.
In this vein, the ASEAN Regional Forum Work Plan for Maritime Security (2015–2017) divides threats relating to maritime security into two broad categories: conventional security issues, such as “military threats and state sovereignty concerns,” and non-traditional security threats. The Work Plan regards the latter as “useful early building blocks” to cultivate “mutual trust and consensus in the region.” Still, there are two significant challenges to addressing non-traditional security threats: first, getting countries to ratify relevant conventions and to then implement them in national legislation; and, second, building enforcement capacity, including the capacity to police waters.
The focus on non-traditional security threats has meant that for many working in this realm in Southeast Asia, “maritime security” has largely become synonymous with ensuring that the seas are safe and secure from non-traditional threats.
The South China Sea dispute, however, is the elephant in the room, posing challenges to maritime security in several ways. First, competing territorial and maritime claims can lead to incidents at sea as states seek to assert or defend sovereignty or resource interests.
Second, the lack of clarity over the status and maritime entitlement of features negatively impacts user states and their security interests. This issue has caused considerable tension between the United States and China, most obviously manifested in U.S. assertions of maritime rights in the South China Sea under its Freedom of Navigation Program as well as China’s objections to them.
Third, the dispute poisons and destabilizes the overall security environment given its impact on intra-ASEAN relations, ASEAN’s relations with China and the United States, and the relationship between the two superpowers. It also undermines attempts to widen or deepen cooperation on non-traditional security threats. When Singapore set up its Information Fusion Centre in 2009 to facilitate information-sharing and collaboration between partners to enhance maritime security, it was careful to emphasize the sharing of less-sensitive commercial shipping information (as opposed to intelligence) and collaboration on non-traditional security issues like piracy and terrorism.
The South China Sea dispute must be carefully managed if it is not to undermine maritime security. The tribunal’s award in the Philippines case against China is arguably an important building block to fostering maritime security insofar as it brings legal clarity to various contested issues.
First, while the tribunal did not rule on competing claims to territory, it made clear that China cannot claim historic rights to resources in the waters within the nine-dash line if those waters are within the exclusive economic zones of other coastal states. Such rights were extinguished when China ratified the UN Convention on the Law of the Sea in 1996. The tribunal also ruled that none of the features in the Spratlys, in the southern part of the South China Sea, is entitled to a 200-nautical-mile exclusive economic zone. The ruling thus dramatically reduced the areas of overlap in the Spratlys to a 12-nautical-mile ring around rock features.
Second, the award clarified applicable passage regimes by ruling on the status and maritime entitlement of features in the Spratlys occupied by China. In the 12-nautical-mile territorial sea around features the tribunal identified as rocks, user states are entitled to exercise innocent passage. Around features identified as low-tide elevations or submerged features not entitled to a territorial sea, user states can exercise high sea freedoms. Yet, the effect of the ruling in this respect should not be overstated: there are still hundreds of features in the South China Sea that were not the subject of the tribunal’s decision.
Third, the arbitral case demonstrated that disputes can be resolved without recourse to force and in accordance with international law. Thus, if China attempts to exercise rights over resources within the exclusive economic zone of littoral states of the South China Sea, these states can pursue proceedings against China. The award’s reasoning applies equally to the exclusive economic zone claims of these states.
Recently, Vietnam blinked first when it stopped drilling in its exclusive economic zone after Beijing reportedly threatened war. Hanoi, however, is not bereft of options short of force: it can bring China before an international court or arbitral tribunal. Any judgment, while not enforceable, could help to further bring the weight of international opinion to bear against China. Beijing has maintained the position that the tribunal’s decision in the Philippines case against it is “null and void” and of “no binding force.” It did not participate in proceedings, but the UN Convention on the Law of the Sea makes clear that absence of a party shall not constitute a bar to proceedings or a tribunal making its award.
The arbitral award has also arguably helped to improve maritime security by creating momentum toward agreement between ASEAN member states and China on the application of the Code for Unplanned Encounters at Sea (Cues) in the South China Sea. Cues is a non-binding agreement concluded by 21 Western Pacific Naval Symposium countries in 2014.
Further, after 15 years of glacial progress toward a code of conduct meant to manage tensions in the South China Sea, the foreign ministers of ASEAN and China finally endorsed a framework for the code on Aug. 6, 2017. Negotiations begun in earnest a month after the award. ASEAN diplomats describe the framework as akin to little more than the “contents page” of a book. But if Cues is applied and a meaningful code of conduct eventually reached and adhered to, this will help in managing an intractable dispute and to bolstering maritime security in Southeast Asia.
This is part of an ongoing series from the May 2017 “U.S.-ASEAN Conference on Legal Issues of Regional Importance” in Singapore, convened by The Asia Foundation in partnership with the U.S. Department of State and the S. Rajaratnam School of International Studies (RSIS).
Lynn Kuok is a senior visiting research fellow at the Centre for International Law, National University of Singapore, and senior research fellow at the Centre for Rising Powers, University of Cambridge. She rejoins Brookings Institution in September 2017. The views and opinions expressed here are those of the author and not those of The Asia Foundation or its funders