Navigating  Uncharted  Waters:  Maritime  Confidence  Building  Measures  and  the  Expanded  ASEAN  Maritime  Forum  

Carlyle  A.  Thayer  

 

 

   

Presentation  to    3rd  Expanded  ASEAN  Maritime  Forum  Furama  Resort  Hotel,  Da  Nang,  Vietnam  

August  28,  2014  

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Navigating  Uncharted  Waters:  Maritime  Confidence  Building  Measures  and  the  Expanded  ASEAN  Maritime  Forum  

Carlyle  A.  Thayer    

[Presentation to Topic 3 EAMF: Enhancing Regional Maritime Security, Freedom of Safety of Navigation through Practical Implementation of Confidence Building Measures as well as Regional Instruments to Prevent and Manage Incidents at Sea]

Introduction  

I would like to thank the Organising Committee for the 3rd Expanded ASEAN Maritime Forum for their invitation to speak to you today. I am here in my private capacity and the views I express are not those of the Australian Government or any of its departments, organisations or agencies. The topic for this session is entitled, ‘EAMF: Enhancing Regional Maritime Security, Freedom of Safety of Navigation through Practical Implementation of Confidence Building Measures as well as Regional Instruments to Prevent and Manage Incidents at Sea.’ As I will note in my paper measures to prevent and manage incidents at sea are now taking us into uncharted waters. My presentation considers three issue areas:

1. The Purpose of Confidence Building Measures/Maritime Confidence Building Measures

2. Developments Related to the South China Sea Since the 2nd EAMF 3. The Expanded AMF and Maritime CBMs

Issue Area 1: The Purpose of Confidence Building Measures/Maritime Confidence Building Measures I confess that I feel like a heretic addressing an audience of true believers on the subject of practical implementation of CBMs because I am an agnostic or skeptic of CBMs for at least three reasons. First, I join fellow Australian Sam Bateman in noting that today confidence building is viewed as a prerequisite for cooperation when the reverse should be the case – cooperation should be viewed as a confidence building measure in itself. All states that have acceded to the United Nations Convention on the Law of the Sea (UNCLOS), Part IX in the case of enclosed and semi-enclosed seas ‘should

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cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention.’1 States that are a party to UNCLOS, Article 74(3) ‘shall make every effort to enter into provisional arrangements of a practical nature (when they are unable to agree to a delimitation of their Exclusive Economic Zones [EEZ]), ‘and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

To summarize my first reservation, littoral states have been remiss in failing to cooperate and also to enter into provisional arrangements set out in UNCLOS. Cooperation is an essential confidence building measure.

Second, I am a skeptic of CBMs because they become ends in themselves. They do no harm and they can lead to what one observer has called ‘conference building measures.’ In other words discussions of CBM practical measures can become endless talkfests. Third, it is not always explicit how a certain CBM will address the source of a particular issue of concern. Sometimes a CBM is adopted because that is the path of least resistance. Once adopted these CBMs have a life of their own. Having laid out my three reservations let me offer the following observations: Cooperation under the provisions of UNCLOS is a confidence building measure. CBMs in general are designed to engender habits of cooperation to reduce misperception, suspicion and uncertainty among states by promoting confidence, trust, and contribute to assurance/reassurance with the objective of addressing, lessening and eliminating tensions and the potential for armed conflict. In other words CBMs contribute to strengthening security and peace by reducing the dangers of armed conflict due to misunderstanding, miscalculation or misadventure. Maritime Confidence Building Measures (MCBMs) refer to confidence building measures in the maritime domain, including the littoral area between land and sea. MCBMs address both traditional and non-traditional challenges to security.

                                                                                                               1  Part  IX  continues:  To  this  end  they  shall  endeavour,  directly  or  through  an  appropriate  regional  organization:  (a)  to  coordinate  the  management,  conservation,  exploration  and  exploitation  of  the  living  resources  of  the  sea;  (b)    to  coordinate  the  implementation  of  their  rights  and  duties  with  respect  to  the  protection  and  preservation  of  the  marine  environment;    (c)    to  coordinate  their  scientific  research  policies  and  undertake  where  appropriate  joint  programmes  of  scientific  research  in  the  area;    (d)    to  invite,  as  appropriate,  other  interested  States  or  international    organizations  to  cooperate  with  them  in  furtherance  of  the  provisions  of  this  article  [emphasis  added].    

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Any MCBM considered by the Expanded ASEAN Maritime Forum should recognize and respect ASEAN’s centrality and be guided by regional norms, in particular, ‘the ASEAN Way’. MCBMs should be implemented in a gradual and incremental fashion on the basis of consensus. They should not be overly ambitious. MCBMs should be realistic and pragmatic with clearly defined objectives on which there is consensus. They should contribute to lessening tensions and the potential for conflict. MCBMs are a process. They have been likened to stepping-stones or building-blocks that ultimately lead to community-building. MCBMs should promote personal contact by government and military officials and open new channels of communication. Last but not least, the basic prerequisite for adopting a program of CBMs is that the states concerned actually want to cooperate with one another because the value of implementing a particular CBM is greater than maintenance of the status quo. In other words, for each particular state implementing a CBM the benefits should outweigh the risks of non-cooperation. All sides should benefit.

Issue  Area  2:  Developments  Related  to  the  South  China  Sea  Since  the  2nd  EAMF  

In discussing developments in the South China Sea I knowingly walk into a political minefield. Both facts and interpretations of these developments are subject to debate. This past year has witnessed an unprecedented rise in tensions in the South China Sea. I would like to discuss two case studies. Case Study 1. China and the Philippines are locked in a confrontation at Second Thomas Shoal. The Philippines maintains a small detachment of marines on the BRP Sierra Madre (LT-57) and these marines must be provisioned with food and water on a regular basis. The BRP Sierra Madre was beached on the shoal a decade and a half ago and is still commissioned in the Philippines Navy. This year Chinese Coast Guard ships physically interfered with resupply efforts. They succeeded in the first attempt but failed in the second. China justified its actions by alleging that the Philippines attempted to supply construction materials and therefore violated a clause in the 2002 Declaration on Conduct of Parties in the South China Sea to exercise self-restraint. China also alleges that the Philippines reneged on a promise to remove the Sierra Madre. During the second resupply effort a U.S. Navy reconnaissance aircraft made its presence known. Case Study Two. In early May, China unilaterally deployed a mega oil drilling platform – HD 981 – in what it claims are waters forming the contiguous zone off Triton Island in the Paracels. Vietnam claims these waters form part of its Exclusive Economic Zone.

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When China dispatched the oilrig it was accompanied by an armada consisting of civilian fishing craft, law enforcement vessels, and military warships. These were joined by civilian and military aircraft. The size of the armada reportedly reached over one hundred vessels at its height. Vietnam protested by dispatching Coast Guard and Fishery Surveillance Force ships that broadcasted demands in three languages that the Chinese oilrig and armada leave Vietnamese waters. China charged that these Vietnamese vessels attempted to interfere with the operations of the oilrig. The confrontation around the oilrig was unprecedented not only because of the numbers of ships and vessels involved but also because of the tactics employed. China expanded the safety or exclusion zone around the oilrig to distances well in excess of international norms and took determined steps to prevent Vietnamese vessels from entering this area. Chinese ships and tugboats deliberately rammed Vietnamese law enforcement vessels. These incidents lead to structural damage and injury to Vietnamese crew members. China charged that Vietnamese boats also engaged in deliberate ramming. Chinese Coast Guard vessels directed their high-pressure water canons at the bridges of their Vietnamese counterparts in an effort to demast communications and navigational antennae. Chinese Coast Guard ships unsheathed their deck guns, and Chinese crewmembers deliberately trained their weapons at the Vietnamese boats. The Vietnamese kept their deck weapons under canvass. In one incident, removed from the oilrig, a Chinese fishing boat deliberately smashed into and capsized a Vietnamese fishing boat trapping some of its crew inside the bridge. There were other scattered incidents in which Chinese fishermen threw hard objects onto the decks of smaller Vietnamese fishing craft. These two case studies raise larger issues. For example, Vietnam experienced a violent outburst of violence by workers directed at Chinese-owned factories and enterprises operating in industrial estates. The riots quickly spread to other foreign-owned businesses. Many factories were heavily damaged or burned to the ground, there were fatalities and a large number of injuries. China evacuated its staff and workers. In sum, confrontations at sea can spill over and have a larger impact. In the case of the China-Vietnam confrontation this involved not only the factories that were burned down or gutted, but economic relations between the two countries. The China-Vietnam confrontation also had reverberations that affected the general investment climate. Oil companies operating in the South China Sea are currently busy undertaking risk analysis for current operations and future

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investments. They are also seeking assurances that their assets will be protected against future incidents. On July 15-16 the confrontation abated when China withdrew its oilrig and both sides prudently withdrew their ships and vessels in the face of an oncoming typhoon. A major casualty of the confrontation surrounding the deployment of the oilrig was the erosion of strategic trust between Vietnam and China. Strategic trust can only be built up over a long period of time but can be undermined quite easily as this case study illustrates. If China and Vietnam had cooperated under the terms of UNCLOS this confrontation could have been prevented. It is uncertain whether the next year will bring a repeat of the incidents I just described. For example, will China continue to attempt to block Philippine efforts to resupply its marines at Second Thomas Shoal? What new tactics will be adopted by China and the Philippines? Will their actions draw in third parties? It is also uncertain whether China will bring its oilrig back to the same area where it operated this year, or whether the oilrig will be deployed elsewhere in the South China Sea, say in Reed Bank claimed both the Philippines and China.

Issue  Area  3:  The  Expanded  AMF  and  Maritime  CBMs  

I now turn to my third issue area, the EAMF and MCBMs. My research into confrontations involving civilian law enforcement ships and fishing vessels from 2007 to the present, with one exception, has not turned up any examples of a flag state reprimanding or punishing the captains of these ships for acting beyond their authority. And I am unaware of any skippers of fishing boats being reprimanded or punished for sea robbery and violence directed against the fishing crews of other flag states. In other words these non-state actors have been given license to act with impunity knowing that they will be protected by their flag state’s naval vessels. This has led me to the conclusion that for certain states passivity or self-restraint in defence of sovereignty is no virtue, and that degrading the ability of other states’ ships and fishing craft to safely navigate and communicate, intimidation and physical force is no vice. This is a serious challenge to good order at sea and needs to be addressed as a matter of urgency. The use of fishing boats to advance a state’s sovereignty claims is, in my opinion, taking us into unchartered waters. There are eleven ASEAN Sectoral Bodies concerned with maritime issues, including the ASEAN Regional Forum’s Inter-Sessional Meeting on Maritime Security and the ASEAN Defence Ministers’ Meeting Plus Expert Working Group on Maritime Security. They both address Maritime CBMs but neither of them directly addresses the actions of civilian law enforcement agencies, oilrigs,

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fishing boats and the civil, economic and commercial issues raised by my two case studies. The time is ripe for the Expanded ASEAN Maritime Forum to navigate into these uncharted waters. The EMAF should lay the foundation for the exploration of Maritime Confidence Building Measures related to the deployment of law enforcement vessels, oilrigs and fishing boats in the South China Sea with the objective of encouraging self-restraint, promoting cooperation, building confidence and trust, and lowering if not eliminating tensions. Let me conclude by suggesting seven proposals for your consideration: 1. Members of the EAMF should go on record and reaffirm the obligations of state parties to UNCLOS as follows:

• pending agreement on the delimitation of overlapping EEZs to enter into provisional arrangements (Article 74([3]);

• settle their disputes peacefully (Article 279); • to exchange views through dialogue and consultations (Article 283); • to submit the dispute to conciliation (Article 284); and • cooperate in areas identified by UNCLOS (Part IX). 2. The EAMF should take note that the new security issues raised by recent developments discussed in this paper are not being addressed by ASEAN’s other sectoral bodies and the EAMF should resolve to take steps to address these issues with a view to lowering tensions and prevent their reoccurrence. 3. The EAMF should consider steps to institutionalize itself. For example, the EAMF should consider setting up one or more Working Groups tasked with:

• Developing current programs and activities as outlined in the Report of the 2nd Expanded ASEAN Maritime Forum held in Kuala Lumpur, October 3, 2013.

• Discussing new maritime security issues that cut across issues currently under discussion, such as the use of oilrigs, civilian fishing boats, and law enforcement agency ships to advance sovereignty claims. The objective here is to identify those practices that should be discouraged and subject to self-restraint such as deliberate ramming, the use of high-powered water cannons, unsheathed weapons etc.

• Adopt policies and procedures to clarify the legal role of fishing fleets as a state’s third maritime force after the navy and civilian law enforcement agencies. In particular, adopt policies to reduce and eliminate the use of force or threat of force by one state’s fishing boats against those of another. Legal procedures should be adopted to ensure the fair and humane treatment of fishermen that are arrested and detained by littoral states. The confiscation of navigational aids, communications equipment, and radar used for locating fish should be prohibited; legal channels should be established for compensation and restitution of unwarranted damage and illegal seizure.

• The recommendations by various Working Groups could result in pilot projects to test their feasibility. The EAMF should forward its recommendations to the East Asia Summit.

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4. The EAMF should consider inviting industry representatives to attend its meetings as observers. These could include representatives from broad-based peak bodies as well as representatives from industries such as shipping, fishing, oil and gas, etc. These representatives should be able to provide their perspectives on how current developments affect their commercial operations and the investment climate. These representatives should also be invited to attend specialized Working Groups as appropriate. 5. The EAMF should recommend that the Heads of ASEAN Coast Guards Meeting should become more proactive. Consideration should be given to non-Coast Guard maritime law enforcement agencies (for example Vietnam’s Maritime Surveillance Force that comes under the Ministry of Agriculture and Rural Development). EAMF dialogue partners could offer further assistance in training and capacity building. The Heads of ASEAN Coast Guards should work out a common position to present at the annual meeting of the Heads of Asian Coast Guard Agencies, an organization that comprises nine ASEAN states (Laos is landlocked) as well as Bangladesh, China, Hong Kong, India, Japan, South Korea, Maldives, Pakistan, and Sri Lanka. ASEAN Dialogue Partners that are not members of the Asian Coast Guard Agencies should consider joining. 6. Members of the EAMR should redouble their efforts to commit to submitting an Annual Security Outlook to the ASEAN Regional Forum, including a section that addresses their perspectives on maritime security issues and challenges that fall under the purview of the EAMF. Individual states could be invited to provide voluntary briefings on the relevant portions of their Annual Security Outlook. Here the role of ASEAN’s dialogue partners who are not directly involved in South China Sea disputes is especially important because they can offer disinterested assessments based on their experience to members who are in dispute. 7. The EAMF as a Track 1.5 organisation should move to develop a website that includes annual reports of its meetings, including annexes, the papers submitted by subject matter experts and other relevant documents. These should be provided on a timely basis.