US, Japan, ASEAN and Maritime Security in Southeast Asia

US, Japan, ASEAN and Maritime Security in Southeast Asia

Aileen S.P. Baviera, University of the Philippines

Presented at a Workshop organized by the East-West Center in Washington, Japan Institute of International Affairs, Institute for Southeast Asian Studies, and the Sasakawa Peace Foundation,

12-13 June 2014, ISEAS Singapore

Introduction

Security challenges in Southeast Asia are diverse, comprising both traditional security (e.g. inter-state territorial disputes and intra-state armed conflicts) and nontraditional security (e.g. pandemics, climate change), state security as well as human security. This paper recognizes this but concentrates on a very important arena where recent developments have sharply aggravated concerns over security – i.e. the maritime security environment.

Maritime security in Southeast Asia itself covers at least four interconnected layers of security challenges, having different set of stakeholders and interests.  These include: (1.) territorial sovereignty disputes over islands and other features in Southeast Asian seas; (2.) disputes over maritime rights and jurisdictions (e.g. access to fish, energy and mineral resources, regulation of other activities at sea) arising from unclear and overlapping boundaries and in part from territorial disputes;  (3.) increasing geopolitical competition among major powers, attendant to perceptions of power shift;  (4.) nontraditional security challenges common to many states (e.g. threats to safety of life at sea, piracy, effects of natural disasters and of climate change)

The complexity of maritime security in Southeast Asia requires various levels and dimensions of cooperation and competition, implying complexity of possible roles of the US, Japan, ASEAN and other actors, separately and collectively, in addressing such challenges. 

 

Sovereignty disputes

When we refer to sovereignty disputes, often at stake are issues of national pride and identity, at times mixed up with historical grievances. Ultimately, the resolution of territorial disputes is perceived to be the responsibility of the parties directly concerned, ideally with encouragement of other regional states and in accordance with principles and norms of international law including non-use of force, equality, and mutual respect. In the case of the South China Sea disputes, which involve at least six parties (Brunei, China, Malaysia, Philippines, Taiwan and Vietnam), one can only imagine the length of time and intensity of political will required to sort out the various claims, some of which are multilateral disputes, and some of which are bilateral only if Taiwan’s claim is not treated separately from that of China (i.e., China-Vietnam over the Paracels, Philippines-China over Scarborough Shoal) If Taiwan’s or the ROC claim is distinct from that of the PRC, practically all claims in the South China Sea involving the Paracels, the Spratlys, and Scarborough Shoal may be said to be multilateral, thus requiring approaches other than the bilateral negotiations that China prefers.

The difficulties created by these facts are compounded by a number of factors:

(1) asymmetry in power  among the various claimant states  leading to trust deficiency,

(2) lack of capacity of some states to define in precise terms the extent of their claims and their inability to protect legitimate interests,

(3) lack of commonly accepted legal frameworks or other approaches for resolving territorial disputes,

(4) heightening nationalism and domestic pressures on the governments concerned, and

(5) growing geopolitical rivalry involving great powers, which can get entangled with the sovereignty claims through proxies.

In this connection, the possible roles for other non-claimant states with respect to the territorial claims, including Japan and the United States, may correspondingly be viewed in terms of :

(1) levelling the playing field, to ensure that powerful states do not use coercion or force against weaker ones at pain of destabilizing the region (to be done through a combination of persuasion and deterrence) ;

(2) capacitating weak states for the promotion of their legitimate interests (defined as the right to self-defense, equitable access to resources, freedom of navigation)  in ways consistent with international law (e.g. through training and the provision of needed technologies and infrastructure);

(3) helping to elaborate and strengthen the legal frameworks for peaceful settlement of territorial disputes specifically, and for addressing maritime boundary or jurisdiction disputes more generally -- including but not limited to adjudication by the International Court of Justice (ICJ), arbitration or mediation; resort to the International Tribunal on the Law of the Sea (ITLOS), International Maritime Organization (IMO) or other relevant international bodies;

(4) while encouraging resolution of the competing sovereignty claims, other states may also help build on regional arrangements and institutions for collectively addressing ocean governance issues such as dealing with piracy, biodiversity conservation, marine environment protection, safety of life at sea, etc. Such arrangements and institutions should however prioritize finding ways of mitigating disputes and triggers of tensions, e.g. with respect to fishing and energy-related activities;

(5) encouraging leaders of states to manage expectations and emotions from their publics by cultivating interest in and desire for state-to-state and people-to-people cooperation and dialogue rather than inciting hatred or extreme nationalism;

(6) working for more effective mutual security assurances among the great powers, particularly to reduce the tendency towards arms races and action-reaction cycles that can harm the interests of smaller and weaker states.

Archipelagic concerns: Territorial integrity and good order at sea

For archipelagic and island states such as the Philippines and Indonesia, recognition of sovereignty over island features is key to territorial integrity, defined as unity of land and water. Territorial integrity is vital not only to defense against potential external armed threats but to the prevention of other illegal activities. The near impossibility of the Philippines or Indonesia – both developing countries with thousands of land features and extensive coastlines and sea areas - monitoring, let alone, preventing, incursions into territorial seas and coastlines is further challenged by permissive rules allowing other states archipelagic sealanes passage. Such passage rights can be controversial even under peacetime conditions, but potentially fatal should there be hostile intent.

Archipelagic states suffer additional vulnerabilities compared with non-archipelagic states that need to be mitigated. The need for maritime domain awareness extends not only to what lies beyond the outermost coastlines but between islands, in coves, bays, etc. Challenges to peace and good order at sea can readily arise in these waters and if left unabated, may be the source of transnational criminality or illegal movements of people and even lead to inter-state tensions. A case in point was an episode in 2013 when a band of armed men calling itself the Royal Army of the Sultanate of Sulu left Sulu, Philippines and succesfully penetrated Sabah, requiring armed repression by the Malaysian state. Crossing borders to engage in kidnapping for ransom and armed robbery at sea are also still quite common occurences, a legacy from centuries-old practices in Southeast Asia of piracy and raiding coastal villages.

Enhancing maritime domain awareness for promoting good order at sea is one area of cooperation. Good order at sea, as defined by Geoffrey Till (Sea Power), has five attributes: good order from the shore, use of the sea as a resource, a medium of transportation, an area of dominion, and an environment. CSCAP defines it as follows: “Good order at Sea ensures the safety and security of shipping and permits countries to pursue their maritime interests and develop their marine resources in an ecologically sustainable and peaceful manner in accordance with international law. Hence, a lack of good order at sea is evident if there is illegal activity at sea or inadequate arrangements for the safety and security of shipping.” (http://www.cscap.org/index.php?page=principle-for-good-order-at-sea)

Competition for resources

One of the underlying causes of the territorial disputes, and an increasingly salient one since the entry into force of the UN Convention on the Law of the Sea (UNCLOS), is the competition for living and nonliving resources in the Exclusive Economic Zones and Continental Shelves of coastal states. Countries around the South China Sea rely greatly on fish as a protein source, on fisheries as a major source of livelihood for their nationals, and on energy supply to fuel rapidly growing or industrializing economies.

Like the sovereignty disputes, the competition for resources is a problem not just in the South China Sea but in the East China Sea. Inasmuch as not only the interests of states but the livelihood and safety of fishermen and of oil companies and their workers are affected, it behooves parties to the disputes, and those who wish to support a peaceful resolution, to find out if certain functional regimes may be designed and implemented that will be sufficiently respectful of each individual coastal states’ rights to these resources, pending the settlement of the sovereignty disputes.

Japan, the United States, and other countries may lend their technical expertise on fisheries and oil/gas management to support, for instance, a multilateral initiative by claimants or by ASEAN and China together to establish common fishing zones, joint development zones, or other resource-related functional cooperation areas (e.g. for prevention of oil spills, conservation of corals, etc).

Protection against natural hazards and disaster response

The large volume of domestic cargo shipping and passenger transport between islands and among maritime states has led to frequent maritime disasters, particularly as one encounters bad weather conditions. Enabling these states to better understand weather patterns and alerting users of the ocean of their impending occurence can contribute to reduced risk of maritime disasters.

Where prevention fails and major maritime disasters occur anyway, then coastal states and other users of the ocean have the responsibility to respond and may even be the first on the ground with an opportunity to help. Japan and the United States are two countries that have demonstrated they have the capacity to quickly mobilize emergency services. The maritime arena can be far more challenging but as the MH 370 incident demonstrated, a coordinated response can cover more ground than any individual state’s efforts.

Convergence and divergence of interests

Successful cooperation for maritime traditional and nontraditional security can be built on the basis of a strong convergence of interests, but it also requires successful management of differences where they exist.

On the part of the United States, its interests in the South China Sea and the Southeast Asian region would appear to include:  promotion of freedom of navigation and unimpeded commerce, freedom to conduct military activities at sea, prevention of a peer competitor using military power to undermine freedom of navigation or US influence in general, sustained credibility of its alliances and legitimacy of its leadership as a great power, among others. Moreover, even as it asserts neutrality on territorial sovereignty questions and on the contest for resources, it has an interest in protection of the rights and interests of US nationals and companies engaged in navigation and resource exploitation.

In the case of Japan, some primary concerns include unimpeded commerce, security of energy supply routes from the Middle East, and constraining the effect of the rise of new powers on its relationships with Southeast Asia.

US, Japan and the littoral states of Southeast Asia therefore have a convergence of maritime interests in unimpeded commerce, sealane security, good order at sea, and regional peace and stability defined largely as maintaining the status quo among the major powers in Southeast Asia. Although China shares concerns over freedom of navigation and good order at sea, its more recent behavior (since 2008) indicates that it hopes to unilaterally enforce its rules and predominantly benefit from the resources within its vaguely-defined claim areas. Moreover, it sees the South China Sea as an area for naval power projection, thus introducing a new element in the regional security configuration that challenges the status quo.

The US, and Japan for that matter, have a wide range of measures and instruments to influence the maritime security environment in the Southeast Asian region. On the political-security front, through active diplomatic engagement they can extend support for regional states’ efforts to evolve rules-based, multilateral approaches to conflict resolution, including by helping to strengthen ASEAN and the East Asian Summit. On the economic front, they can also rebalance through more intensified engagement in the Southeast Asian maritime economies, especially as the ASEAN region moves towards closer integration.  Cooperation on social concerns such as sustainable management of the marine environment, climate change mitigation, and disaster response will be welcome. Cooperation or even some leadership in evolving a new norms- and rules-based but inclusive regional security architecture based on empowered and capable states can help mitigate or even resolve threats both of a traditional and nontraditional nature.

Strengthening rules-based regional order for the maritime theater will however require strong support for UNCLOS, including ratification by US, helping develop public awareness on the law, clarifying its inconclusive and ambiguous provisions, and above all strengthening its implementation and enforcement mechanisms. In the context of the South China Sea disputes, support for regional order also means the early conclusion of a substantive and effective code of conduct (COC), one that is focused on conflict prevention rather than merely confidence building.

There are, however, possible differences in interests and challenges to unity of approach to maritime security. The fact that US is not formally part of UNCLOS, while claiming to abide by its rules, undermines efforts by other states to use UNCLOS as a framework for resolving maritime boundary and jurisdiction conflicts. It also sends the message that big powers may be exempted from international obligations unless they unilaterally so decide, a message that will not be lost on rising powers.

There are also apparent differences of position regarding certain practices and provisions of UNCLOS. Regarding military activities in EEZs of coastal states, some states (reportedly including Malaysia, India, China, and the Philippines) argue that foreign military activities must not take place within EEZs of coastal states without the latter’s permission and/or prior notification, whereas the US not only opposes this principle but continually tests it through its FON (freedom of navigation) programs. Archipelagic states such as the Philippines are wary of other states using passage rights in waterways connecting their islands, which the US insists on.

With respect to Japan, there may be residual concerns in the region over Japan’s military role, especially if it begins to evolve now in the context of sharp Sino-Japanese conflict. However, this will probably reflect ASEAN’s dislike of the military approach to conflict resolution and distaste for great power military competition, more than it will reflect distrust of Japan’s intentions or lack of sympathy for Japan’s legitimate security interests.

Conclusion

To conclude, there is potentially much room for US, Japan and ASEAN to cooperate on both traditional and nontraditional maritime security issues affecting Southeast Asia, and such cooperation should be seen as desirable and acceptable. The caveats are that (1) the major role and responsibility for management of maritime security eventually will rest upon the countries of Southeast Asia and those that share land and maritime borders with Southeast Asia; (2) there are existing inclusive multilateral arrangements and mechanisms as well as rules (UNCLOS, IMO, etc) in place that will need strengthening rather than undermining; (3) power rivalries among great powers have the potential to aggravate rather than mitigate security dilemmas in the region, an outcome which should be avoided; (4) while there are important and major convergent interests among US, Japan and ASEAN, there are some remaining divergent interests and perspectives that must be clarified so as not to impede cooperation.