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Advancing a Rules-Based Maritime Order in the Indo-Pacific

Issues & Insights Vol. 21, SR 2, pp. 1-3

Volume Overview

“Advancing a Rules-Based Maritime Order in the Indo-Pacific” is the introductory chapter of Issues & Insights Vol. 21, SR 2 — Advancing a Rules-Based Maritime Order in the Indo-Pacific. Authors of this volume participated in the Indo-Pacific Maritime Security Expert Working Group’s 2021 workshop that took place, virtually on March 23-24. The working group, composed of esteemed international security scholars and maritime experts from Japan, the United States, and other Indo-Pacific states, was formed to promote effective U.S.-Japan cooperation on maritime security issues in the region through rigorous research on various legal interpretations, national policies, and cooperative frameworks to understand what is driving regional maritime tensions and what can be done to reduce those tensions. The workshop’s goal is to help generate sound, pragmatic and actionable policy solutions for the United States, Japan, and the wider region, and to ensure that the rule of law and the spirit of cooperation prevail in maritime Indo- Pacific.

Chapter Excerpt

Over the past decade, there has been a growing call for greater rule of law in maritime Indo-Pacific. From Washington, Tokyo and Canberra, to the capitals of Southeast Asia, leaders and policymakers have been constantly stressing the importance of adherence to the principles of international law, and to cooperate, bilaterally and multilaterally to address maritime challenges. The Association of Southeast Asian Nations (ASEAN) has been, year-after-year and statement-after- statement, constantly repeating the same refrain regarding “the need to pursue peaceful resolution of disputes in accordance with the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea (UNCLOS).” During their first summit meeting, in April 2021, U.S. President Joe Biden and Japanese Prime Minister Yoshihide Suga expressed their shared opposition to “any unilateral attempts to change the status quo in the East China Sea,” and reiterated “shared interest in a free and open South China Sea governed by international law, in which freedom of navigation and overflight are guaranteed,” consistent with UNCLOS. But despite the seeming regional consensus, achieving a rules-based maritime order appears farther than ever. This volume gathered expert voices to critically assess issues of maritime law and policy to better understand what drives maritime tensions in the region, and what can be done to reduce them, to achieve greater rule of law.

But why is a rules-based order so desirable and critical for maritime security in the Indo-Pacific? First, the region is characterized by a large number of enclosed or semi-enclosed water regions, which Article 122 of UNCLOS defines as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet, or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” This fact has significant geopolitical implications. It means maritime entitlement dispute would inevitably be a common feature of almost every bilateral relationship in the region. Indeed, every body of water in the Indo- Pacific is contested. The alternative to rules-based management and resolution of these offshore territorial disputes and overlapping maritime entitlement claims is the use of coercion and force.

Second, maritime security is of paramount importance to the economies of littoral states in Asia, and beyond. It is estimated that nearly half of all commercial sea trade is delivered through the region’s waterways. The Malacca Strait alone is traversed by at least 25% of the world’s commercial shipping. In the South China Sea, where multiple states have overlapping claims, the Center for Strategic and International Studies’ ChinaPower Project found that an estimated US$3.4 trillion in trade passed through it in 2016. That figure constitutes about 21 percent of global trade that year. There has been no updated study on the matter since, but it is reasonable to expect that trade volume that passes through the South China Sea could have only grown over the past five years. All major economies have stakes in ensuring the safe passage of shipping through the seas of the Indo-Pacific and any interruption would have tremendous consequences to the global economy. Some would argue that trade remains uninterrupted despite periodic tensions. While that may be true, acquiescing to a state’s expansive claim not based on international law is akin to giving that state a lever through which to coerce others in the future by applying rules arbitrarily. In essence, not pushing back is shortsighted.

Moreover, while the region’s maritime spaces contain relatively modest proved and probable hydrocarbon reserves–not really sizable enough to reverse East Asia’s reliance on Middle Eastern energy–littoral states in the region are keen to tap them. For countries like the Philippines and Vietnam, oil and gas resources in their exclusive economic zone and continental shelf are critical for long term energy security. Manila sees resources at the Reed Bank as most viable replacement to its existing Malampaya gas field, currently delivering as much as 20% of the country’s electricity requirements, but is expected to run dry in the coming years.6 The Reed Bank, while clearly inside the Philippines’ exclusive economic zone (EEZ), is also within China’s nine-dash lines, and Chinese coercion has prevented oil exploration since 2011. Meanwhile, some media reports in 2019 and 2020 revealed that Hanoi had to pay around a billion dollars to two foreign energy companies for terminating their South China Sea operations, reportedly because of pressure from Beijing.7 Additionally, the maritime domain provides livelihoods to millions of fishermen. The South China Sea alone accounts for 12% of the world’s annual fish catch.

A rules-based order means lawful maritime commerce will continue without interruption, countries will be able to tap new sources of energy critical for their rapidly growing economies, and the livelihoods and well- being of millions of people in coastal communities will be ensured.

Finally, beyond interstate disputes, there are other significant security concerns associated with the waters of the Indo-Pacific. These include piracy and armed robbery against ships, maritime terrorism, illicit narcotics and human trafficking, pollution and environmental degradation, illegal, unreported and unregulated (IUU) fishing, climate change and rising sea-levels, among many others. Some littoral states in Southeast Asia view these challenges as more urgent that should be prioritized. But many of these transnational problems require interstate cooperation based on international law. This is inhibited by the perception that it may involve some loss of sovereignty, or risks of legitimizing the other parties’ jurisdictional claims, amidst unsettled maritime and/or territorial disputes. For instance, many states are reluctant to establish joint marine environmental protection areas because such may give way for rival claimants to conduct law enforcement or be present in areas already under their jurisdiction, per the current status quo.

Despite the apparent regional consensus on the benefits of a rules-based maritime order, why do tensions continue to rise and the applicability of international rules and norms to the region’s maritime spaces continue to weaken? The seven other authors of this volume have provided numerous answers, but each fall into one of the following key factors—lack of good faith vis-à-vis international law, inherent weaknesses in regional multilateral mechanisms, and the geopolitics surrounding the so-called great power competition.

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Jeffrey Ordaniel is Director for Maritime Security at the Pacific Forum. Concurrently, he is also Assistant Professor of International Security Studies at Tokyo International University in Japan. The author wishes to acknowledge the Japan Society for the Promotion of Science (JSPS) and Research Assistant Nguyen Xuan Nhat Minh for assistance in completing this paper.

The Indo-Pacific Maritime Security Expert Working Group’s 2021 workshop and this volume were funded by a grant from the U.S. Embassy Tokyo, and implemented in collaboration with the Yokosuka Council on Asia Pacific Studies (YCAPS).

The statements made and views expressed are solely the responsibility of the authors and do not necessarily reflect the views of their respective organizations and affiliations. For questions, please email [email protected].

Photo: USS Ronald Reagan (CVN 76) transits the Strait of Malacca, one of the world’s busiest trade routes, with the Arleigh Burke-class guided missile destroyer USS Halsey (DDG 97) and the Ticonderoga-class guided-missile cruiser USS Shiloh (CG 67). Source: U.S. Navy Photo by Mass Communication Specialist 1st Class Rawad Madanat/Public domain.