Cause and Effect: The Right Security Architecture for the Indo-Pacific

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The Indo-Pacific maritime security order consists of international treaties, multilateral diplomatic forums and, increasingly, minilateral security initiatives. The first two are under tension due to China’s assertive behavior in the maritime domain and led to the formation of the latter.

The primary treaty that underpins the rules-based global maritime order is the United Nations Convention on the Law of the Sea (UNCLOS) of 1982. A product of the Cold War and the consensus of more than 100 developed and developing nations development, UNCLOS contains ambiguities and imperfections. But it remains the most important treaty governing maritime standards, rights and responsibilities.

In the Indo-Pacific, UNCLOS has been eroded by China’s actions, especially in the South China Sea. The biggest problem is China’s broad jurisdictional claims, indicated by its “nine-dash line”. In 2013, the Philippines challenged these claims under UNCLOS dispute settlement proceedings and won: in July 2016, an arbitral tribunal ruled that the nine-dash line was inconsistent with UNCLOS and that the actions of China had violated the sovereign rights of the Philippines in its exclusive economic zone (EEZ) – and by extension the sovereign rights of the other claimants from Southeast Asia, Brunei, Indonesia, Malaysia and Vietnam. China not only refused to participate in the legal proceedings, but also rejected the decision and has continued its illegal activities in the EEZs of Southeast Asian countries ever since.

Although the United States has repeatedly denounced these illegal activities, because it has not ratified UNCLOS, China has accused Washington of hypocrisy. Unfortunately, it seems unlikely that the United States will ratify UNCLOS anytime soon.

It is equally unlikely that the international community will come together to revise, refine and renovate UNCLOS to resolve these ambiguities, build buy-in and take into account new challenges such as climate change.

The chances of Beijing changing its behavior and giving up its so-called “historic rights” in the South China Sea are slim.

Southeast Asian maritime states strongly believe in the importance of UNCLOS because, in theory, international law levels the playing field between large and small countries.

ASEAN and China are currently negotiating a code of conduct for the South China Sea. There’s a lot that all 11 parties agree on – at least rhetorically. But China inserted several problematic provisions in the draft texts aimed at promoting its nine-dash claims and undermining the arbitral tribunal’s award.

It is imperative that the five Southeast Asian claimants coordinate their positions in the code of conduct talks and present a united front in defense of UNCLOS. Indonesia’s call in December 2021 for a five-state plus Singapore meeting to discuss the situation in the South China Sea is an encouraging first step, although it remains to be seen whether it signals that Jakarta is finally willing. to assume a leadership role.

ASEAN itself has stressed the importance of maritime security for decades. However, ASEAN-led forums have not been very effective. The ASEAN Regional Forum has failed to adopt effective confidence-building measures, let alone preventive diplomacy and conflict resolution. The East Asia summit is too high to produce detailed agreements. And although the ASEAN Plus Defense Ministers’ Meeting promoted the use of the Code of Unplanned Encounters at Sea (CUES) during naval exercises, the agreement is voluntary, does not cover the Coast Guard and there were gaps between practice and implementation.

Due to ASEAN’s limitations, countries have formed minilateral security initiatives that are more flexible, informal, and focused than larger multilateral forums.

Southeast Asian countries have set up minilateral security initiatives to deal with the problem of piracy and sea robbery in the Strait of Malacca and the Sulu-Celebes Seas. Thailand and Laos have joined China in carrying out coordinated patrols in the Mekong to crack down on maritime criminals. All three initiatives have been relatively successful and, sovereignty sensitivities aside, they have not been controversial.

More controversial are the Quad (Australia, India, Japan and USA) and AUKUS (Australia, UK and USA). The two minilaterals were created in response to the perceived threat of a rising China. The Quad is not yet a letterhead organization, and AUKUS is primarily a technology sharing agreement. Both can still evolve into something else. Other regional states may plug and play on an ad hoc basis, but Southeast Asian countries will be wary of antagonizing China and undermining the concept of ASEAN centrality by actively endorsing them. Yet at the same time, due to concerns about China, they will not actively oppose it.

USS Dewey transiting the South China Sea in January (US Pacific Fleet/Flickr)

The chances of Beijing changing its behavior and giving up its so-called “historic rights” in the South China Sea are slim.

Southeast Asian countries are not without influence or agency, and well understand the costs to their economies and strategic autonomy if they recognize China’s claims. Countries like the UK and Australia can provide relief, if done sensitively and in a coordinated manner. The provision of equipment such as radars, drones, surveillance aircraft and patrol boats would help regional states improve their maritime domain awareness. This would allow SE Asian claimants to draw attention to China’s violations of UNCLOS. Sharing best practices with regional navies and especially coast guards would also be beneficial.

Australian and UK universities are also well placed to offer courses and workshops for Southeast Asian officials, postgraduates and security practitioners on the importance, essence and complexity of UNCLOS. – both to highlight the rights of regional states and to disabuse Southeast Asians of China’s insidious narratives regarding its “historic rights” in the South China Sea and misinterpretations of the Law of the Sea.

This article is part of a series examining regional perspectives on maritime security. This project is led by La Trobe Asia, Kings College London and Griffith Asia Institute with support from the UK High Commission in Canberra.

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