Pacific Forum, in cooperation with the government of Japan, assembled a small number of scholars, policy analysts and subject-matter experts to form the Indo-Pacific Maritime Security Expert Working Group that held its inaugural workshop on November 13, 2019 in Honolulu. The first workshop brought together 18 participants, including several international security experts, government officials, legal scholars and lawyers, and a historian from Japan, North America, Southeast Asia and Australia, interested in probing key maritime security challenges in the region. The goal was to examine different approaches to maritime security issues and to generate actionable and pragmatic policy solutions through an interdisciplinary approach, and off-the-record exchanges, and debates. The focus of the workshop was “rule of law in the context of maritime security.”
Promoting effective cooperation on maritime security issues requires rigorous research on different legal interpretations and national policies to understand what is driving regional maritime tensions and what can be done to reduce them.
One of the key factors that has increased maritime tensions in the region is the lack of consensus on the meaning of the “rule of law.” While rule of law is universal, maritime applications of it often become regionally distorted.
Every state in the region, including China, claims adherence to international law. However, there exist varying conceptions of what that means, as a matter of policy. In most cases, rhetoric about adherence to the rule of law becomes diplomatic talking points devoid of substance. Tensions continue to heighten over maritime claims and are exacerbated by great power competition and weaknesses in regional multilateral mechanisms.
The concept of “rules-based order” remains ambiguous and contested despite the implicit recognition that the UN Convention on the Law of the Sea (UNCLOS) is the major legal instrument underpinning the global maritime order.
States can begin reconciling their different conceptions of “rules-based order” by agreeing to the following three principles: clarifying claims based on UNCLOS and related international law; committing to avoid the use of force or coercion in trying to drive unilateral claims; and seeking to settle disputes by peaceful means.
The global nature of UNCLOS must persist to avoid the creation of spheres of influence in regions of the world.
International law is not a standalone solution to resolving maritime disputes in Asia. However, it can be used to evaluate the reasonableness of claims, and therefore can open avenues for compromise and cooperation.
Beijing’s excessive claims and actions in the South China Sea have weakened the applicability of UNCLOS in the region. China’s role as a significant trade and economic partner of all littoral states in Southeast Asia constrains the options available to these states to confront China’s excessive claims.
The passage of foreign warships in coastal states’ territorial waters without prior notification or authorization, and foreign military activities in the exclusive economic zones (EEZ) are the two biggest contestations related to freedom of the seas in the region. Many Indo-Pacific states hold opposing interpretations.
UNCLOS contains ambiguities related to navigational rights of military vessels in coastal states’ EEZs. There is also no common understanding of what constitutes military activities. Other ambiguities include the contested meaning of “due regard” in UNCLOS.
It was suggested that the US should consider voluntary prior notification when exercising innocent passage in foreign states’ territorial seas as a confidence building measure (CBM) given modern surveillance, satellite and radio-navigation systems. Several US participants protested the suggestion, expressing concerns that it would erode the rights of innocent passage and other user state rights.
Failing to address these maritime challenges means having a power-based order, instead of a rules-based order, and the emergence of an arbitrarily-governed Indo-Pacific.
It is difficult to reconcile modern international law with historical notions of sovereignty and sovereign rights and claims. Nevertheless, states do compromise on these issues when they ratify international agreements.
There are no ancient claims in the South China Sea. The claims by all coastal states are modern or have modern origins. There is value in exposing this fact, especially if the goal is to emphasize the primacy of modern international law in resolving disputes.
There is a disconnect between the priorities of Southeast Asian states and the United States in the South China Sea. Washington’s top priority lies on freedom of navigation, supported by the unhampered passage of its warships in the South China Sea. Southeast Asian states want to access their maritime entitlements to resources free from coercion.
There is a need for the US, Japan and ASEAN to align maritime priorities in the Indo-Pacific if they wish to create a common narrative to promote a broad rules-based order that includes navigational rights as well as resource exploration, marine environmental preservation, and resolution of disputes. More broadly, it would be beneficial to find creative ways to promote a free, open and inclusive Indo-Pacific through a more coordinated maritime strategy that integrates other countries that share an interest in promoting a rules-based order.