Thayer Defense and Security Issues in an ASEAN Maritime Community: The Role of Navies

August 3, 2017 | Author: Carlyle Alan Thayer | Category: Association Of Southeast Asian Nations, International Politics, International Relations, Politics, Unrest
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This paper was presented at the Matritime Secuir9ty Forum 2017 hosted by the Philippine Navy. It presents an outsider’s ...

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Defense and Security Issues in an ASEAN Maritime Community: The Role of the Navies Carlyle A. Thayer

Presentation to Towards an ASEAN-Centric Maritime Security Community, 3rd Maritime Security Symposium 2017 hosted by The Philippine Navy, Office of Naval Strategic Studies Diamond Hotel, Manila May 10, 2017

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Defense and Security Issues in an ASEAN Maritime Community: The Role of Navies Carlyle A. Thayer1 Introduction The aim of this presentation is to present an outsider’s views and perspectives on how ASEAN Navies can contribute to fostering an ASEAN Maritime Community and the legal and policy challenges that will facilitate this endeavor. This presentation is divided into seven parts. Part one considers the geographic scope of the maritime domain where ASEAN Navies will operate. Part two discusses the notion of a maritime community. Part three delineates the roles ASEAN Navies might undertake. Part four provides the over-arching policy architecture for ASEAN maritime community building. Part five focuses specifically on the current role of ASEAN Navies. Part six discusses the policy and legal framework that ASEAN might adopt to enable ASEAN Navies to foster a maritime community. Part six offers some concluding remarks.

Part 1 What is the Geographic Scope of ASEAN’s Maritime Domain? In 1995, the members of the Association of Southeast Asia (ASEAN) adopted the South East Asia Nuclear Weapons Free Zone Treaty (SEANWFZ). This treaty defined for the first time ASEAN’s geographic scope: Article 1 (a) "Southeast Asia Nuclear Weapon-Free Zone", hereinafter referred to as the "Zone", means the area comprising the territories of all States in Southeast Asia, namely, Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam, and their respective continental shelves and Exclusive Economic Zones (EEZ); (b) "territory" means the land territory, internal waters, territorial sea, archipelagic waters, the seabed and the sub-soil thereof and the airspace above them… Article 2 This Treaty and its Protocol shall apply to the territories, continental selves, and EEZ of the States Parties within the Zone in which the Treaty is in force [emphasis added]. 2

Southeast Asia’s maritime domain may be divided into seven maritime sub-regions: the waters adjacent to the littoral states bordering the Bay of Bengal and Indian Ocean; the Straits of Malacca and Singapore; the waters to the south of Indonesia and Timor-Leste

1

Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra. Email: [email protected] Revised May 16, 2017. 2

Treaty on the Southeast Asia Nuclear Weapon-Free Zone; http://asean.org/?static_post=treaty-on-thesoutheast-asia-nuclear-weapon-free-zone.

3 stretching to Papua New Guinea (Banda and Arafura Seas); the Celebes and Sulu Seas; the waters to the east and north of the Philippines’ littoral; Gulf of Thailand and the semienclosed South China Sea. Southeast Asia’s vast maritime domain contains porous borders on land and sea that make it vulnerable to such non-traditional security challenges such as typhoons and tsunamis (along the so-called Ring of Fire), piracy, transnational criminal activity (people trafficking, arms and drug smuggling, terrorism), marine environmental pollution, and illegal migrants, refugees and asylum seekers. In addition, Southeast Asia’s congested maritime domain presents hazards to marine vessels. To complicate this picture virtually all littoral ASEAN states have maritime jurisdictional disputes with their neighbors. The South China Sea is particularly complex because no less than six parties have conflicting or overlapping claims to sovereignty over land features and/or maritime boundaries and sovereign jurisdiction. Southeast Asia is also the crossroads between the Western Pacific and Indian Oceans and therefore straddles important maritime passageways or sea lines of communication. The South China Sea poses the most severe challenges to ASEAN maritime communitybuilding, but ASEAN’s maritime extends much further to include the littoral areas of nine ASEAN member states.

Part 2 What is a Maritime Community? For purposes of this paper, a maritime community is viewed as a sub-set of a larger security community comprised of a group of states that • regularly interact with each other • attained a “sense of community” (we-feeling or togetherness) or collective identity • adopted formal or informal norms, institutions, and practices • become integrated economically, politically etc. • hold “dependable expectations of peaceful change” • rule out the use of force to solve disputes A security community is not an alliance or collective defense arrangement; but individual members may enter into or maintain defense relations with other states. In the case of Southeast Asia, Malaysia and Singapore are defense partners in the Five Power Defence Arrangements, and the Philippines and Thailand are treaty allies with the United States. Taking note of two features of a security community – dependable expectations of peaceful change and agreement not to use force – member states generally do not structure their forces to defend themselves from other members of the community. In the case of a maritime community security is viewed as interdependent as non-traditional

4 security challenges cannot be resolved by one state alone. This opens the door to cooperation to address shared challenges.

Part 3 What Roles Might ASEAN Navies Perform? It is useful here to draw on Geoffrey Till’s distinction between modern and post-modern navies to consider what role ASEAN Navies might perform to advance maritime community building.3 According to Till the roles of the modern navy include:  Sea control (war fighting, show of force, rapid deployment, versatility)  Nuclear deterrence/ballistic missile defense  Maritime power projection  Exclusive good order at sea (defense of national interests and sovereignty in the territorial sea and protection of resources such as oil, gas, and fisheries in the Exclusive Economic Zone) and  Competitive gunboat diplomacy In contrast, Till enumerates the following roles for the post-modern navy:  Sea control (the use of sea for whatever purpose determined by government, naval operations more likely in the littoral but not open ocean)  Expeditionary operations (dealing with shore based instability and threats from the sea)  Stability operations (including humanitarian assistance and disaster relief)  Inclusive good order at sea (safeguarding maritime commerce and energy infrastructure, protection of natural resources from illegitimate exploitation or environmental damage, and all forms of transnational crime including piracy), and  Cooperative naval diplomacy Generically, modern navies may be equated with the naval forces of the major maritime powers, and smaller ASEAN Navies generally may be equated to post-modern navies. Modern navies adopt a balanced fleet force posture, while post-modern navies generally are not balanced fleets due to resource constraints. The condition of post-modern navies puts a premium on relying on external partners for support and as sources of arms procurements but it also puts a premium on cooperative naval diplomacy to secure and protect the sea-based trade system. For ASEAN Navies, sea control could include: demonstrating deterrence (or compellence/coercion), assertions of sovereign jurisdiction in the host country’s EEZ, 3

Geoffrey Till, Seapower: A Guide for the Twenty-First Century, 3rd edition (London and New York: Routledge Taylor & Francis, 2013), 28-39. Till notes that the terms modern navy and post-modern navy “specifically link the development of navies to the nature of the state they serve and to competing attitudes towards globalisaton,” 28.

5 maintaining a national presence to demonstrate an interest in an area, gathering information or picture-building (maritime domain awareness), and show-casing new technology. For our purposes, cooperative naval diplomacy includes using naval assets to build capabilities for national defense, secure foreign policy objectives, influence the behavior of allies and friends through inducements and persuasion, build relationships and promote regional engagement, and maritime consensus building.4 Cooperative naval diplomacy is best viewed as a spectrum of activities ranging from maintaining a forward naval presence on behalf of regional interests to monitor and/or address threats to good order at sea, combined exercises, port visits, and naval diplomacy.5 It is this regional interaction that contributes to a sense of community arising from shared security concerns. In other words, cooperative naval diplomacy is an essential ingredient of maritime community building.

Part 4 ASEAN’s Policy Framework for Maritime Community Building Since its establishment in 1967, ASEAN has sought to promote the twin goals of Southeast Asian autonomy and ASEAN’s centrality in the region’s security affairs. As an example of the former, ASEAN adopted the Zone of Peace, Freedom and Neutrality Declaration in 1971,6 the Treaty of Amity and Cooperation in 1976,7 and the SEANWFZ Treaty in 1995. As an example of the latter, ASEAN initiated the ASEAN Regional Forum (ARF) in 1994. Creating an ASEAN Community In 1997, Southeast Asia’s leaders adopted the ASEAN Vision 2020 that set out the goal of creating “a concert of Southeast Asian nations, outward looking, living in peace, stability and prosperity, bonded together in partnership in dynamic development and in a community of caring societies.”8 This was the first major step towards ASEAN communitybuilding.

4

The discussion in this and the following paragraph draw on Till, Seapower: A Guide for the Twenty-First Century, 38-40. 5

Y.Bhg. Dato’ Noor Aziz Yunan, “China’s Naval Diplomacy in the South China Sea,” and Carlyle A. Thayer, “Maritime Security and the Role of Naval Diplomacy in the South China Sea,” Papers presented to MIMA Conference on the South China Sea: Recent Developments and Implications for Peaceful Dispute Resolution, The Maritime Institute of Malaysia, Kuala Lumpur, December 12-13, 2011. 6

1971 Zone of Peace, Freedom and Neutrality Declaration, adopted November 27, 1971; http://www.icnl.org/research/library/files/Transnational/zone.pdf. 7

ASEAN Treaty of Amity and Cooperation in Southeast Asia, February 24, 1976. http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24february-1976-3. 8

ASEAN Vision 2020, December 14-16, 1997.http://www.asean.org/news/item/asean-vision-2020.

6 In 1998, the 6th ASEAN Summit adopted the Ha Noi Plan of Action (1999-2004). It included seven proposals to strengthen regional peace and security that touched broadly on maritime security.9 These included: 7.6 Encourage greater efforts towards the resolution of outstanding problems of boundaries delimitation between ASEAN member states. 7.12 Encourage ASEAN Member Countries parties to a dispute to engage in friendly negotiation and use the bilateral and regional processes of peaceful settlement of dispute or other procedures provided for in the U.N. Charter. 7.13 Enhance efforts to settle disputes in the South China Sea through peaceful means among the parties concerned in accordance with universally recognized international law, including the 1982 U.N. Convention on the Law of the Sea. 7.14 Continue efforts to promote confidence-building measures in the South China Sea between and among parties concerned. 
 7.15 Encourage all other parties concerned to subscribe to the ASEAN Declaration on the South China Sea. 7.16 Promote efforts to establish a regional code of conduct in the South China Sea among the parties directly concerned. 7.17 Intensify intra-ASEAN security cooperation through existing mechanisms among foreign affairs and defense officials.

In 2003, the 9th ASEAN Summit adopted the Declaration of ASEAN Concord II (or Bali Concord II) that set the goal of creating “a dynamic, cohesive, resilient and integrated ASEAN Community by 2020.” 10 The ASEAN Community was to comprise three pillars: ASEAN Political-Security Community (APSC), Economic Community, and Socio-Cultural Community. In 2007, at the 12th ASEAN Summit in Cebu, the deadline for the ASEAN Community was brought forward to 2015. ASEAN Security Community In 2004, the 10th ASEAN Summit adopted the Vientiane Action Programme (2004-2010) and for the first time placed maritime security on ASEAN’s agenda. The Vientiane Action Programme contained the following three references to maritime security: Progressive accession and implementation of relevant International Maritime Organisation (IMO) instruments thereby enhancing maritime safety and security and protection of the marine environment Promote ASEAN maritime security cooperation: Explore the establishment of an ASEAN maritime forum

In addition, the 10th ASEAN Summit adopted the Plan of Action for the ASEAN Security

9

The Hanoi Plan of Action was adopted by the 6th ASEAN Summit on December 15, 1998. http://www.asean.org/news/item/ha-noi-declaration-of-1998-16-december-1998. 10

Declaration of ASEAN Concord II (Bali Concord II), Bali, Indonesia, October 7, 2003. http://www.asean.org/news/item/declaration-of-asean-concord-ii-bali-concord-ii.

7 Community (ASC). 11 It clearly revealed that national sovereignty trumped collective identity at this stage of ASEAN’s development. The Plan of Action stated: The ASC [ASEAN Security Community] promotes an ASEAN-wide political and security cooperation in consonance with the ASEAN Vision 2020 rather than a defence pact, military alliance or a joint foreign policy. The ASC Plan of Action is mutually-reinforcing with bilateral cooperation between ASEAN Member Countries while recognising the sovereign rights of the Member Countries to pursue their individual foreign policies and defence arrangements. In addressing future security challenges, ASEAN Member Countries share the responsibility for strengthening peace, stability and security of the region free from foreign military interference in any form or manifestation. The ASC shall contribute to the further promotion of peace and security in the wider Asia Pacific region. In this regard, the ASC is open and outward looking, engaging ASEAN's friends and Dialogue Partners to promote peace and stability in the region...

The Plan of Action also included references to the South China Sea in the section on sharing norms: Ensuring the implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) through, inter alia: a. Establishing an ASEAN–China Working Group on the Implementation of the DOC; b. Establishing a review mechanism on the implementation of the DOC; and c. Working towards the adoption of the Code of Conduct in South China Sea (COC).

ASEAN Defence Ministers’ Meeting The 2004 ASEAN Security Community Plan of Action included a provision for setting up an annual ASEAN Defence Ministers’ Meeting (ADMM). In May 2006, the ASEAN Defence Ministers met for the first time and began the process of institutionalizing defence cooperation on a regional basis. The ADMM became a formal part of the ASEAN PoliticalSecurity Council established by the ASEAN Charter (see below). The ADMM became the capstone, or the highest defence consultative mechanism, in ASEAN over what had been informal meetings of the service and intelligence chiefs. According to the Concept Paper establishing the ADMM its objective were: • To promote regional peace and stability through dialogue and cooperation in defence and security; • To give guidance to existing senior defence and military officials dialogue and cooperation in the field of defence and security within ASEAN and between ASEAN and dialogue partners; • To promote mutual trust and confidence through greater understanding of defence and security challenges as well as enhancement of transparency and openness; and • To contribute to the establishment of an ASEAN Security Community (ASC) as stipulated in the Bali Concord II and to promote the implementation of the Vientiane Action Programme (VAP) on ASC.

The ADMM has quickly evolved; four years after its founding it began to adopt triennial Work Plans and Concept Papers. The ADMM focused mainly on non-traditional security issues including Humanitarian Assistance and Disaster Relief (HA/DR). The creation of the ADMM resulted in a hierarchical structure that provided the ASEAN Navy Chiefs with a clear chain of command. The three service chiefs (Army, Navy and Air) and the chiefs of intelligence formed the bottom layer of this structure. They reported to 11

ASEAN Security Community Plan of Action was adopted by the 10th ASEAN Summit in Vientiane, Laos, 2930 November 2004. https://www.google.com.au/#q=Plan+of+Action+for+the+ASEAN+Security+Community+.

8 the Chiefs of Defence Forces Informal Meeting which in turn reported to the ADMM. ADMM Senior Officials Meeting (ADSOM) assisted the Defence Ministers. The role of the ASEAN Chiefs of Navy Meeting (ACNM) is discussed in Part 5 below. ASEAN Charter The 2004 ASC Plan of Action contained an Annex making provision for the adoption of the ASEAN Charter with the aim to reaffirm ASEAN's goals and principles in inter-state relations, in particular the collective responsibilities of all ASEAN Member Countries in ensuring non- aggression and respect for each other's sovereignty and territorial integrity... the maintenance of political stability, regional peace and economic progress; and the establishment of effective and efficient institutional framework for ASEAN.12

In 2008, the ASEAN Charter came into force. The Charter gave ASEAN a legal personality to enable it to negotiate with external parties. The Charter’s Preamble declared that ASEAN was “bound by geography, common objectives and shared destiny.” 13 The ASEAN Charter set out its purposes as: Maintain and enhance peace, security and stability and further strengthen peace-orientated values in the region Enhance regional resilience by promoting greater political, and security cooperation To promote an ASEAN identity To maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and inclusive.

The ASEAN Charter set out principles that balanced national sovereignty and collective responsibility. On the one hand, the Charter listed “respect for the independence, sovereignty, equality, territorial integrity and national identity of all members” and “collective responsibility in enhancing regional peace, security and prosperity” among its principles. Other relevant principles included: Respect for every member to lead its national existence free from external interference, subversion and coercion Enhanced consultations on matters seriously affecting the common interest of ASEAN Centrality of ASEAN in external political, economic, social and cultural relations.

12

Annex for ASEAN Security Community Plan of Action. http://www.asean.org/news/item/annex-forasean-security-community-plan-of-action. 13

The Charter of the Association of Southeast Asian Nations (The ASEAN Charter); http://www.asean.org/archive/publications/ASEAN-Charter.pdf and http://asean.org/storage/2012/05/13.-May-2016-The-ASEAN-Charter-19th-Reprint-Amended.pdf.

9 The ASEAN Charter also declared that, “ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN Cooperation.”14 In the case where there is no existing dispute settlement instrument, the Charter prescribed the creation of an ”appropriate mechanism” including arbitration. 15 The Chairman of ASEAN or the ASEAN Secretary General were empowered to offer their good offices or mediation. Disputes that could not be resolved were to be referred to the ASEAN Summit, composed of the ASEAN heads of state/heads of government for resolution. Finally, the ASEAN Charter set up a new structure of decision-making by creating three community councils: ASEAN Political-Security Council (APSC), ASEAN Economic Council and the ASEAN Socio-Cultural Council. The work of these three council is overseen by the ASEAN Consultative Council (ACC) composed of foreign ministers. The ACC reports directly to the ASEAN Summit of heads of state/government. ASEAN Political-Security Community Blueprint In 2009, ASEAN adopted the ASEAN Political-Security Community Blueprint (2009-2015) setting out three major objectives: a rules-based community of shared values and norms; a cohesive, peaceful, stable and resilient region with shared responsibility for comprehensive security; and (3) a dynamic and outward-looking region in an increasingly integrated and interdependent world.16 In 2010, ASEAN established the ASEAN Maritime Forum (AMF) whose remit was to focus on a comprehensive approach to maritime issues.17 The 46th AMM in June 2013 reviewed progress on the ASEAN Political-Security Community. A Joint Statement issued after the AMM declared with respect to the ASEAN Political-Security Community: 21. Recognising that maritime security, including maritime safety, is crucial to a vibrant, peaceful, stable and resilient Southeast Asia, we encouraged the strengthening of regional cooperation in maritime security through, inter alia, capacity building, exchanging of experiences and sharing of best practices by utilising existing ASEAN frameworks, including the ASEAN Regional Forum (ARF), the ASEAN Defence Ministers’ Meeting-Plus (ADMM-Plus), the ASEAN Maritime Forum (AMF)/Expanded ASEAN Maritime Forum (EAMF).

ASEAN Political-Security Community Blueprint 2015 was adopted in March 2016. Maritime security was addressed in Part B (Peaceful, Secure and Stable Region). Point B.6 called on ASEAN to “Enhance maritime security and promote maritime cooperation in ASEAN region and beyond, through the strengthening of ASEAN-led mechanisms and the

14

Ibid.

15

Ibid.

16

ASEAN Political-Security Community Blueprint (Jakarta: ASEAN Secretariat, June 2009. http://asean.org/wp-content/uploads/images/archive/5187-18.pdf. 17

Chair’s Statement of the 19th ASEAN Summit, Bali, November 17, 2011, Points 14-17 (Maritime Cooperation).

10 adoption of internationally accepted maritime conventions and principles.” 18 Part B.6 contained three sub-sections headed: B.6.1 Maintain the South China Sea as a sea of peace, prosperity and cooperation, B.6.2 Promote maritime cooperation to comprehensively address maritime issues, and B.6.3 Ensure peaceful, safe, free unimpeded international navigation and overflight, in accordance with relevant international laws. Regarding maritime cooperation, Part B.6.2 listed twelve activities: i.

Enhance coordination among ASEAN mechanisms on maritime cooperation, such as the ASEAN Maritime Forum, to comprehensively address maritime issues;

ii.

Promote dialogue and cooperation on maritime issues in other ASEAN-led mechanisms, such as the Expanded ASEAN Maritime Forum while ensuring ASEAN centrality;

iii.

Enhance maritime security and safety in the region in order to ensure greater maritime connectivity, anchored on secure and safe sea lines of communication and freedom of navigation;

iv.

Enhance maritime security cooperation, especially maritime law enforcement, including through information sharing, to identify maritime security challenges and their potential impact on regional peace and security;

v.

Promote linkages between national, regional and international mechanisms on maritime cooperation, particularly in combating piracy and armed robbery against ships;

vi.

Promote closer maritime cooperation in the protection and preservation of the marine environment, including the sustainable use of maritime resources and the protection of biodiversity;

vii.

Expand ASEAN maritime cooperation to effectively combat transnational crimes such as maritime terrorism, smuggling of goods, people and weapons, drug trafficking, trafficking in persons, piracy, hijacking, armed robbery against ships, as well as to address transboundary challenges including oil spill incidents and illegal, unreported, and unregulated fishing, through concrete and practical activities, while maintaining the respective reporting lines;

viii.

Strengthen ASEAN cooperation in enhancing maritime domain awareness and its increased impact on security, safety, economy and environment of the region;

ix.

Enhance cooperation in maritime safety and search and rescue as well as strengthen implementation of the ASEAN Declaration on Cooperation in Search and Rescue of Persons and Vessels in Distress at Sea, through activities such as information sharing, technological cooperation, exchange of visits of authorities concerned, tabletop exercises and field training exercises at sea, as well as collaboration with Dialogue Partners and relevant international maritime organisations;

x.

Strengthen existing maritime cooperation mechanisms, in cooperation with relevant external parties, with a view to augmenting the capacity to combat illegal activities at sea;

xi.

Enhance cooperation with relevant external parties in combating piracy in cases affecting nationals of ASEAN Member States in other regions; and

xii.

Strengthen and expand activities on capacity building of maritime law enforcement agencies in the

18

See; http://www.asean.org/wp-content/uploads/2012/05/ASEAN-APSC-Blueprint-2025.pdf.

11 region, including through engaging external parties, particularly Dialogue Partners. 19

At the most recent 30th ASEAN Summit held in Manila on April 29, 2017, the Chairman’s statement addressed maritime security and cooperation in these words: We reaffirmed the need to strengthen cooperation and constructive dialogue on maritime security, maritime safety, maritime environment, and other maritime issues, including search and rescue, piracy and armed robbery against ships at sea, illegal, unreported and unregulated (IUU) fishing and other crimes related to fisheries, and other crimes at sea, through ASEAN led-mechanism such as the AMF [ASEAN Maritime Forum] and EAMF [Expanded AMF], ARF, ADMM, and ADMM-Plus. We looked forward to strengthening ASEAN cooperation to deal with these threats and discuss with our Dialogue Partners cooperative frameworks and measures as soon as practicable. We expressed anticipation of the forthcoming Seventh AMF [ASEAN Maritime Forum] and the Fifth EAMF be held in Jakarta later this year.

ASEAN and its Dialogue Partners ASEAN Regional Forum The ARF is a regional security dialogue forum, established in 1994, whose membership currently includes twenty-seven countries in the Indo-Pacific Region. The original Concept Paper for the ARF (1995) set out three phases of development – confidence building measures (CBMs), preventive diplomacy (PD) and conflict resolution (later amended to “approaches to the resolution of conflict”).20 Later the ARF decided that phases one and two, CBMs and PD, could take place in tandem. In July 2009, the 16th ARF Ministerial Meeting adopted a Vision Statement setting out the ARF’s goals to 2020.21 The following year the ARF Ministerial Meeting approved the Hanoi Plan of Action to implement the Vision Statement.22 The Plan of Action identified five areas of cooperation: disaster relief, counter-terrorism and transnational crime, maritime security, non-proliferation and disarmament and peacekeeping operations. With respect to maritime security the Plan of Action stated: By 2020, ARF should serve as a regional forum for maritime security issues that promotes and enhances maritime domain awareness, and develop concrete and effective regional responses to maritime security challenges. 3.1. Support the work of the ARF ISM on MS [ASEAN Regional Forum Inter-Sessional Meeting on Maritime Security] as an established regional framework that addresses maritime security issues.

19

Ibid.

20

The ASEAN Regional Forum: A Concept Paper; https://2001-2009.state.gov/t/pm/rls/fs/12052.htm.

21

ASEAN Regional Forum Vision Statement, adopted July 23, 2009; https://cil.nus.edu.sg/rp/pdf/2009%20ASEAN%20Regional%20Forum%20Vision%20Statement-pdf.pdf. 22

Hanoi Plan of Action to Implement the ASEAN Regional Forum Vision Statement, May 20, 2010. http://worldjpn.grips.ac.jp/documents/texts/arf/20100520.O1E.html. Both the Vision Statement and Plan of Action endorsed the development of the ARF’s capacity for preventive diplomacy. In July 2011, the 18 th ARF Ministerial Meeting adopted the Work Plan for Preventive Diplomacy.

12 3.2. Promote compliance and adherence to relevant international legal instruments and regional arrangements. 3.3. Forge close cooperation toward enhancing the safety and security of navigation, including the implementation of standards, best practices, and data-sharing for small vessel registration on a national and, as appropriate, regional basis, taking into account existing regional mechanisms and frameworks. 3.4. Utilize the work of national and regional think tanks to assist the work of the ISM on Maritime Security to enhance transparency in regional maritime security. 3.5. Promote regional maritime security capacity-building through concrete activities such as information-sharing, exchanges of officials, and holding maritime security-related tabletop and joint training exercises as and when appropriate. 3.6. Promote networking among ARF, ASEAN Maritime Forum (AMF), IMO [International Maritime Organization], IOR−ARC [Indian Ocean Region-Association for Regional Cooperation-], ReCAAP [Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia], as well as other maritime-related fora, as part of a comprehensive and mutually beneficial approach to maritime cooperation. 3.7. Promote cooperation in maritime issues, including maritime security and safety and search and rescue, through activities such as information sharing and technological cooperation in line with national and international laws. 3.8. Forge closer cooperation in combating maritime terrorism and transnational maritime crimes such as piracy, armed robbery against ships, hijacking, smuggling, and trafficking in persons, in accordance with national and international laws through concrete and practical activities.

The ARF conducts its activities through two Inter-Sessional Groups and four InterSessional Meetings. Maritime security issues are addressed through the ISM on Maritime Security. In July 2011, the 44th ARF Ministerial Meeting approved the ISM on Maritime Security’s Work Plan on Maritime Security.23 It focused on information sharing, capacity building, and training. A Work Plan for Maritime Security (2015-2017) was adopted in July 2015. The ARF currently conducts biennial civil-military disaster relief exercises, known as the ARF Disaster Relief Exercise (DiREx). The first DiREx was held in the Philippines in May 2009, the second DiREx was held in Manado, Indonesia in March 2011, the third DiREx was held in Hua Hin, Thailand in May 2013, and the fourth DiREx took place in Kedah, Malaysia in May 2015. East Asia Summit In 2005, in a major development, ASEAN elevated it relations with its dialogue partners by creating the East Asia Summit (EAS) comprised of the heads of state/government of the ten ASEAN member states and six dialogue partners - Australia, China, India, Japan, South Korea, and New Zealand. In 2011, the Russian Federation and the United States were admitted as new members at the 6th EAS. Leaders at this summit called for “dialogue involving EAS participating countries to utilize opportunities and address common 23

See: https://www.yumpu.com/en/document/view/38893760/annex-h-arf-work-plan-on-maritimesecuritypdf-asean-regional-.

13 challenges on maritime issues building upon the existing ASEAN Maritime Forum (AMF).”24 ADMM-Plus In October 2010, the structure of the EAS (ten ASEAN members plus eight dialogue partners) became the model for defence relations with the creation of the ASEAN Defence Ministers’ Meeting Plus (ADMM-Plus),25 the ASEAN Defence Senior Officials Meeting-Plus (ADSOM-Plus), and five Expert Working Groups (EWG): maritime security, counterterrorism, humanitarian assistance and disaster relief, peacekeeping operations and military medicine.26 In 2013 and 2016, the EWG on Humanitarian Mine Action and the EWG on Cyber Security, respectively, were stood up. The EWGs report their deliberations to the ADSOM-Plus. Within two years the ADMM-Plus began a practical program of defence interaction among its members. In July and September 2012, respectively, the EWG on Military Medicine and EWG on Maritime Security conducted table-top exercises. The following year ADMM-Plus members conducted their first practical exercises in four areas: humanitarian assistance/disaster relief, military medicine, counter-terrorism and maritime security. The first ADMM-Plus Maritime Security Field Training Exercise was held in Sydney from late September-early October 2013. During the ADMM-Plus second three-year cycle (2014-2017), two further maritime security exercises were conducted the first in Singapore (May 2016) and the second in New Zealand (November 2016). Expanded ASEAN Maritime Forum The call by EAS leaders at their sixth summit to “address common challenges on maritime issues” was followed up by the 20th ASEAN Summit that met in Phnom Penh in April 2012. ASEAN leaders called for the expansion of ASEAN maritime cooperation through “joint collaborative efforts in marine related fields.”27 This resulted in the establishment of the Expanded ASEAN Maritime Forum (EAMF) comprising the ten ASEAN member states and their eight dialogue partners. The EAMF was designated a Track 1.5 organization and included, in addition to government officials, representatives from relevant stakeholders, such as international organizations, maritime training institutes, ship owners, academia, 24

“Chairman’s Statement of the Sixth East Asia Summit, Bali, Indonesia, 19 November 2011,” in East Asia Summit Document Series, 2005-2016 (Jakarta: ASEAN Secretariat, 2016), p. 94; http://asean.org/storage/2017/02/59.-December-2016-East-Asia-Summit-Document-Series-20052016.pdf. 25

The purpose of the ADMM-Plus was “to strengthen security and defence cooperation for peace, stability, and development in the region.” “About the ASEAN Defence Ministers’ Meeting (ADMM Plus), February 6, 2016; https://admm.asean.org/index.php/about-admm/about-admm-plus.html. 26 27

In 2011 the terms of reference for the five ADMM-Plus Experts’ Working Groups were approved.

“2012 Phnom Penh Declaration on ASEAN: One Community, One Destiny,” Point 6, Phnom Penh, 3 April 2012. https://cil.nus.edu.sg/rp/pdf/2012%20Phnom%20Penh%20Declaration%20on%20ASEAN-pdf.pdf.

14 and civil society. The first meeting of the EAMF was held in Manila on October 5, 2012 back-to-back with the annual meeting of the AMF.28 The EAMF met annually from 2012 to 2015. No meeting was held in 2016 and the fifth EAMF is scheduled for 2017.29

Part 5 Current Roles of ASEAN Navies ASEAN Navies Interaction (2001-2010) Cooperation among ASEAN Navies commenced in 2001 when the Chiefs of Navies convened in Thailand in what was termed ASEAN Navies Interaction (ANI). The second and third ANI meetings took place at two-year intervals - ANI-2 met in Malaysia 2003 and ANI-3 was held in Singapore 2005. There was a five-year break until ANI-4 met in Indonesia 2010. ASEAN Chiefs of Navy Meeting (2011-2017) A major turning point took place in July 2011 when the ASEAN Chiefs of Navies convened in Hanoi and held their first formal meeting. Under the Terms of Reference the Navy Chiefs agreed to enhance collaboration and cooperation between naval forces of each ASEAN member. The purpose of the ASEAN Chiefs of Navy Meeting (ACNM) was to create a collective platform to exchange views and opinions on regional maritime security issues in order to enhance understanding, trust and confidence and to promote joint operations and the capability of ASEAN Navies to meet future challenges. All ASEAN naval cooperation was to take place on the basis of non-interference, mutual respect, the rights of sovereignty, non-coercion, voluntary actions, and harmony in accord with basic principles of the ASEAN Community. In sum, ASEAN Navies were now formally included in the ASEAN community-building process set to commence in 2015. Host Vietnam “welcomed practical co-operation in humanitarian assistance and disaster relief, joint patrols, establishment of communication hot lines among naval units, exchanges of intelligence, joint training and the exchange of delegations.” 30 Vietnam successfully proposed the inauguration of ASEAN Navy Young Officers Interaction. Discussion at the ANCM-5 covered accelerating cooperation in maritime security including anti-terrorism, search and rescue, and humanitarian activities; partnerships among ASEAN navies; a hot line to improve coordination between naval headquarters; and the expansion of naval cooperation outside the region. Finally, the ANCM-5 agreed to meet annually with hosting on a voluntary basis and to hold their first tabletop HA/DR exercise. 28

Chairman’s Statement, 1st Expanded ASEAN Maritime Forum Manila, October 9, 2012; http://asean.org/1st-expanded-asean-maritime-forum-manila/. 29 30

Brunei was scheduled to host the fifth EAMF. ASEAN has yet to explain why this meeting was cancelled.

“ASEAN navy chiefs advance co-operation,” Viet Nam News, July 28, http://vietnamnews.vn/politics-laws/213790/asean-navy-chiefs-advance-co-operation.html.

2011;

15 In July 2012, the Republic of Singapore Navy and Indonesian Navy co-hosted the inaugural ASEAN Maritime Security Information-Sharing Exercise (AMSISX) at the Changi Command and Control Centre. AMSISX was attended by navy chiefs from Brunei, Malaysia and Thailand. The exercise included not only the participants in Singapore but also their respective countries’ operations centers that were linked up through the ASEAN Information-Sharing Portal (AIP). The AIP provides a common platform for all ASEAN navies to share maritime security related information in the region and enhance information-sharing procedures among the ASEAN countries. ANCM-6 was hosted by Brunei from September 2-4, 2012 on the theme Friendship at Sea for Regional Maritime Peace and Security. The ANCM-6 discussed possible areas of cooperation including marine environmental protection, marine scientific research, safety of navigation and communication at sea, and search and rescue. This meeting endorsed a proposal to establish an ASEAN Navy Chiefs’ Secretariat at Singapore’s Information Fusion Center with priority to maritime cooperation, piracy, terrorism, and search and rescue. Finally, this meeting endorsed the drawing up of an ANCM Roadmap. ANCM-7 was hosted by the Philippines from September 9-11, 2013 on the theme Partnership for Peace and Prosperity, with aim the of enhancing cooperation and interoperability. Philippine Navy Vice Admiral Jose Luis Alano, host, stated that the objective of the ACNM was “to address many challenges of maritime security that threatens current peace and stability of the region – internal strife, global crisis, transnational crimes, natural calamities, competition for resources, and even cyberspace attacks.”31 ANCM-7 was also addressed by President Benigno Aquino who stressed that when the ASEAN Economic Community is established in 2015 it would be important for ASEAN Navies to solidify their ties in order to protect the common seas to ensure freedom of navigation, safety of commercial vessels and security of civilian passengers. Aquino called for sharing lessons in conducting maritime patrols, search and rescue, interdiction of pirates and other security threats. Aquino emphasized the importance of individual sovereignty and regional solidarity. The agenda for ANCM-7 included a review of past discussions, consideration of new initiatives and the conduct of future meetings. Navy Chiefs exchanged views on recent developments affecting regional maritime security and how to promote peace through dialogue, consultation, and practical activities that would build confidence, trust, and transparency. The Navy Chiefs reaffirmed their commitment to existing bilateral and multilateral joint and coordinated patrols that addressed maritime security concerns in waters bordering their countries. They agreed to bring forward the implementation of agreed greeting and communication procedures among ASEAN Navies as a CBM and to maintain direct

31

“’We have not lost Panatag – PH Navy chief,” http://www.rappler.com/nation/38579-philippines-panatag-navy.

Rappler,

September

10,

2013;

16 communications through hotlines to be maintained and regularly updated at the ASEAN Information Sharing Portal in Singapore. The Navy Chiefs approved the development of an ACNM Road Map, establishment of a permanent ANCM Secretariat, development of an ANCM-Plus process with Dialogue Partners, formulation of a common ASEAN Navies HA/DR Protocol and hosts for ANCM-8 and ANCM-9. The Navy Chiefs discussed a future Fleet Review to celebrate ASEAN’s 50th founding anniversary. The second ASEAN Navy Young Officers’ Interaction was held in Brunei in October 2013. By the end of the year the ACNM had held three field exercises: ASEAN Militaries HA/DR and Military Medicine Exercise (AHMX); counter-terrorism; and maritime security. In February 2014, the Philippines hosted an ASEAN Navies Workshop to draw up a draft protocol on HA/DR cooperation outlining common procedures for planning, training and operations. Thirty ASEAN Navy officers from eight countries attended (Thailand and Laos were not represented). The workshop also reviewed mutually agreed Standard Operating Procedures for organization, administrative support, planning and communications. ANCM-8 was hosted by Thailand from August 27-28, 2014 on the theme Roles ASEAN Navies after ASEAN Integration in 2015. The Navy Chiefs reviewed cooperation activities currently underway; exchanged views on the maritime security situation in the region; how to develop better approaches to search and rescue, piracy, maritime violations and crimes, and maritime terrorism; and ASEAN Navies’ action plan for the next two years. The Navy Chiefs also considered the draft ASEAN Navies Roadmap aimed at aligning ASEAN navies to the same purpose and objectives and considered Thai proposals to host an international fleet review in 2017 and a multilateral combined naval exercise among ASEAN navies. In October 2014, the Philippine Navy hosted the 3rd ASEAN Navy Young Officers Interaction, involving two representatives from eight ASEAN Navies (Cambodia and Laos were not present). In June 2015, Thailand hosted the first meeting of the ASEAN Multilateral Naval Exercise Standard Operating Procedure (AMNEX SOP) Working Group Meeting. This meeting reviewed the AMNEX SOP before forwarding it to the ACNM-9 for consideration. ANCM-9 was hosted by Myanmar August 20, 2015 on the theme ASEAN Naval Teamwork Towards ASEAN Integration 2015. Navy Chiefs exchanged views on “Fostering ASEAN Naval Teamwork in Regional Maritime Security” to build on established friendship and cooperation to conduct activities that would enhance practical cooperation and build mutual trust at multiple levels. The Navy Chiefs approved a ANCM Logo as a badge of ASEAN Naval Cooperation. ANCM-10 was hosted by Malaysia from August 22-25, 2016 on the theme Enhancing Operational Interoperability. The Naval Chiefs were briefed by their host on Malaysia’s plans for reorganizing its fleet and the experiences of the Royal Malaysian Navy in coping

17 with the threat from Islamic State activities within the ANCM framework. The Chiefs approved the INDOMALPHI tri-lateral joint patrol in the Strait of Malacca, The Navy Chiefs discussed the current regional security situation including terrorism, rising ethnic and religious conflicts, and challenges and threats to regional maritime and aviation security. They also discussed procedures to deploy regular armed forces in HA/DR missions, the training program for ASEAN naval cadets with practical exercises at sea, and a maritime information sharing exercise in 2017. ACNM-10 agreed on the need to develop CBMs, enhance sharing of information on maritime and aviation security by promoting the role of the Regional Maritime Security Information-Sharing Center and the ADMM-Plus Information Sharing Portal, and the need for members to meet their responsibilities to effectively implement initiatives previously agreed.

Part 6 Policy and Legal Framework for an ASEAN Maritime Community This section discusses the policy and legal frameworks that will facilitate ASEAN Navies’ contribution towards an ASEAN Maritime Community. As noted in Part 1 above, the geographic scope of ASEAN’s maritime domain includes the territorial seas and EEZs of all member states. The maritime domain of ASEAN littoral states is contested by China’s claim to “indisputable sovereignty” to the islands and adjacent waters as shown on in its nine-dotted line map encompassing 62 percent or more of the South China Sea. Ever since China tabled its nine-dotted line map with the United Nations Commission on the Limits of the Continental Shelf in May 2009 it has refused to clarify its claims. China has not, for example, promulgated straight base lines around any of its seven artificial features in the Spratly islands. The Arbitral Tribunal that heard the claims brought by the Philippines against China ruled in July 2016 that China could not base its claims on historic/historical rights. The Arbitral Tribunal also ruled illegal any attempt to draw straight base lines around all the land features in the Spratlys. China also refuses to accept the jurisdiction of the Arbitral Tribunal and its final Award. China further compounds maritime disputes in the South China Sea by invoking its domestic legislation as the legal basis to enforce its sovereignty. For example, China’s Law on the Exclusive Economic Zone and the Continental Shelf claims sovereignty over the Paracel and Spratly islands and other land features in the South China Sea. Article 14 states that the “provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China.”32 In past years China has interfered with attempts by the Philippines and Vietnam to resupply their occupied land features. China also challenged foreign military ships and aircraft on the basis that they are threatening the safety of People’s Liberation Army Navy 32

Zou Keyuan, ‘China’s U-shaped line in the South China Sea Revisited’, Ocean Development and International Law, 43(1), 2012, p. 21.

18 (PLAN) ships and facilities by flying through a military alert (or safety) zone. PLAN warships and aircraft regularly shadow foreign naval ships and aircraft and on occasion interfere with their right to freedom of navigation and overflight. However, the brunt of Chinese assertiveness is conducted by white-hulled China Coast Guard civilian vessels. In 2014 and 2015 China implemented a master plan to construct seven artificial islands in the Spratlys. China has since built military infrastructure including three-kilometer long runways on three features (Mischief, Johnson South and Subi Reefs). After the Arbitr4al Tribunal Award China erected reinforced hangars adjacent to its runways and later added close in weapons systems and structures to house surface to air missiles. ASEAN states, both individually and collectively, have chosen wisely not to use their military forces to confront China directly. China’s assertiveness, ambit maritime claims, and militarization of its artificial islands pose major challenges to “peace, cooperation and development” in the South China Sea. In addition, Sino-American strategic naval rivalry in the South China Sea adds a complicating factor that has spawned an arms buildup in Southeast Asia. But China’s actions have also posed an opportunity for ASEAN states to assert Southeast Asia’s autonomy and ASEAN centrality by collectively pushing for the full implementation of the 2002 Declaration on Conduct of Parties in the South China Sea and the negotiation of a legally binding Code of Conduct in the South China Sea. But these efforts are not sufficient in themselves to bring peace and stability to Southeast Asia’s maritime domain. There are two additional actions ASEAN can take to shore up the legal and policy framework to facilitate the activities of ASEAN Navies in building a maritime community. First, ASEAN states should conclude a Treaty of Amity and Cooperation in Southeast Asia’s Maritime Domain. Second, ASEAN states should work to strengthen further the ASEAN Political-Security Community. These two actions are discussed in turn below. Treaty of Amity and Cooperation in Southeast Asia’s Maritime Domain ASEAN should adopt an ASEAN Treaty of Amity and Cooperation in Southeast Asia’s Maritime Domain (hereafter the Treaty) among its members.33 This Treaty would bind ASEAN members to resolve territorial disputes among themselves and set an example to the East Asian and global communities. ASEAN should enlist the support of its dialogue partners to support this initiative. The Treaty should set out the geographical boundaries of Southeast Asia’s maritime domain; following SEANWFZ these should include the 33

This proposal is a modification of an idea first presented by the author to “Maritime Security: Towards a Regional Code of Conduct,” 8th CSCAP General Conference, Dangers and Dilemmas: Will the New Regional Security Architecture Help?, sponsored by the Council for Security Cooperation in the Asia-Pacific, Hanoi, November 21-22, 2011. This proposal was refined in two subsequent presentations: Thayer, “Positioning ASEAN between Global Powers,” Presentation to the 14th Regional Outlook Forum, Institute of Southeast Asian Studies, Singapore, January 5, 2012 and Thayer, “Beyond Territoriality: Managing the Maritime Commons in the South China Sea,” Paper delivered to the 28th Asia-Pacific Roundtable, International Institute of Strategic Studies, Kuala Lumpur, June 2-4, 2014.

19 respective territorial seas, continental shelves and EEZs of all ASEAN members (and future members).34 This Treaty should have a protocol of accession inviting all ASEAN Dialogue Partners to sign. There are five reasons why ASEAN should adopt a Treaty Amity and Cooperation in Southeast Asia’s Maritime Domain: First, security of Southeast Asia’s maritime domain is indivisible for all ASEAN members, whether coastal or landlocked states. ASEAN’s current proposed Code of Conduct with China, because it is focused solely on the South China Sea, does not cover maritime approaches to the Malacca Straits or the western seaboards of Myanmar, Thailand and Indonesia, the Gulf of Thailand, the waters surrounding the Indonesian archipelago and waters to the north, east and south of the Philippines archipelago. Second, international law, including UNCLOS, applies equally throughout Southeast Asia’s maritime domain and not just the South China. It is applicable to all states. Third, the treaty should incorporate the norms and legal obligations that may be stumbling blocks in consultations between ASEAN and China on a COC but would appeal to ASEAN’s other Dialogue Partners. Fourth, China would be put under pressure to join other Dialogue Partners in acceding to the treaty or bear the political costs of remaining outside its provisions. Fifth, the treaty would reinforce ASEAN unity and Southeast Asia’s autonomy by placing ASEAN at the centre of relations with outside maritime powers. The ASEAN Treaty would overcome differences between claimant and non-claimant states by making all ASEAN members stakeholders, including Cambodia, Myanmar and landlocked Laos.35 The Treaty would also reinforce ASEAN’s corporate and legal identity and enhance its ability to deal with external powers. What should be included in a Treaty Amity and Cooperation in Southeast Asia’s Maritime Domain? The Treaty’s Preamble should include pledges by all ASEAN members to bring their maritime boundaries and claims into accord with international law, including UNCLOS

34 35

Such as Timor-Leste.

Cambodia and Myanmar were the only two members of ASEAN to remain silent when maritime security/South China Sea issues were first raised at the November 2011 East Asia Summit Leaders’ Retreat. Cambodia played a spoiling role when it was ASEAN Chair in 2012 by preventing any mention of South China Sea issues in the customary joint statement; none was issued. Cambodia and Laos both demurred when ASEAN foreign ministers held a retreat in early 2015 to discuss China’s ‘land reclamation’ activities in the South China Sea. On Cambodia’s role in 2012 see: Carlyle A. Thayer, "ASEAN’S Code of Conduct in the South China Sea: A Litmus Test for Community-Building?," The Asia-Pacific Journal, 10(34), No. 4, August 20, 2012, 1-23.

20 with particular attention to eliminating excessive baselines and clearly distinguishing islands from rocks for purposes of maritime delimitation. The Treaty should include provision for setting up an independent panel of technical and legal experts who could be called on to assist in determining base lines and the classification of islands and rocks. The Treaty should commit all signatories to renounce the threat of and use of force to settle their disputes over sovereignty and sovereign rights and disruption of good order at sea including safety of navigation and over flight. The Treaty should include a pledge to resolve all outstanding disputes regarding land features in Southeast Asian waters, overlapping EEZs and delimitation of continental shelves between and among ASEAN members.36 The Treaty should incorporate references to previous ASEAN treaties such as the TAC and SEANWFZ and international maritime conventions such UNCLOS, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Convention on the International Regulations for Preventing Collisions at Sea, Code for Unplanned Encounters at Sea,37 and other relevant conventions. The Treaty should include a binding commitment to resolve all disputes through peaceful means. The Treaty should define militarization and include provisions for the demilitarization of islands and rocks and prohibit the deployment of specified types of weapon systems, such as land based anti-ship and anti-air craft missiles. The Treaty should contain a provision requiring all signatories to cooperate in marine scientific research, marine pollution, fisheries management, search and rescue, antipiracy and other agreed areas. The Treaty should include a provision of a protocol; for ASEAN Dialogue Partners and other interested states to sign on to the Treaty. Finally, the Treaty should make provision for setting up a mechanism to handle complaints and disputes that may arise. Such a mechanism should include the ASEAN High Council or third party mediation or international legal arbitration. ASEAN Political-Security Community ASEAN must be more proactive in shaping consensus among its member as part of the ASEAN Political-Security Community-building process. ASEAN should hold its members

36

Note the recurrent tensions between Indonesia and Malaysia over the waters around Ambalat; “Jet fighters, war boats ready to launch attack,” Jakarta Post, June 19, 2015. 37

On September 7, 2016 China and ASEAN member states adopted a Joint Statement on the Application of the Code for Unplanned Encounters at Sea in the South China Sea.

21 who are littoral states to the highest standards of transparency with respect to three areas: 1. bringing their maritime zones into conformity with international law including UNCLOS; 2. clarifying their claims to features and maritime zones in the South China Sea;38 and 3. providing a detailed account of the chronology of when features in the South China Sea were occupied and report on the extent and purpose of all infrastructure developments, including so-called land reclamation, undertaken since the DOC was adopted in November 2002. ASEAN should review these accounts and assess whether they violate the letter and spirit of the DOC regarding “self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability” in the South China Sea. In addition, ASEAN’s Political-Security Community Council should develop a whole-ofASEAN approach to South China Sea issues by directing its subordinate agencies (ASEAN Defense Ministers, ASEAN Navy Chiefs, ASEAN Coast Guards, etc.) to develop effective policies to address security challenges arising from disputes in Southeast Asia’sa maritme domain . Once ASEAN has established a common position, ASEAN officials should take its policy proposals to ASEAN-centric multilateral institutions such as the ARF, Expanded ASEAN Maritime Forum,39 ADMM-Plus for endorsement. Taken together, the ASEAN Treaty and a strengthened ASEAN Political-Security Council would provide the policy and legal basis for ASEAN Navies to craft specific regional programs for security cooperation and community-building.

Part 7 Conclusion This paper has offered a brief stock take of current ASEAN and ASEAN-centric mechanisms that focus on maritime security and cooperation relevant to Southeast Asia’s maritime domain. Five major conclusions can be drawn: 1. Maritime security initially had no forum within ASEAN but now it has been institutionalized into several multilateral institutions including the ACNM. 2. Maritime security is now formally on the ASEAN agenda at the highest-level. 3. Maritime security was once conceived of as state security it is now being viewed as part of regional security.

38

See the discussion in Robert Beckman, “The UN Convention on the Law of the Sea and Maritime Disputes in the South China Sea,” The American Journal of International Law, 107(1), January 2013, 142-163. 39

See the author’s suggestions to the EAMF: Carlyle A. Thayer, “Navigating Uncharted Waters: Maritime Confidence Building Measures and the Expanded ASEAN Maritime Forum,” Presentation to “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,” 3 rd ASEAN Expanded Maritime Forum, Furama Resort Hotel, Da Nang, Vietnam, August 28, 2014.

22 4. Discussion on maritime security has moved beyond general discussion to specific proposals and activities. 5. Cooperative naval activities under the ACNM are contributing to ASEAN’s community-building project in the armed forces and defense establishments of member states. From the above discussion, it is clear that ASEAN has adopted a comprehensive approach to addressing security issues with an emphasis on non-traditional challenges and threats. All ASEAN littoral states face similar challenges because Southeast Asia’s maritime domain links these states rather than separates them. These challenges include:  Safety of navigation and overflight  Protection and management of marine resources  Marine environmental protection  Humanitarian assistance and disaster relief  Search and rescue at sea  Combating transnational crime, people trafficking, piracy, armed robbery, smuggling and illegal unreported unregulated fishing. ASEAN also has developed an elaborate architecture to deal with these issues under the ASEAN Charter and ASEAN Community, including the ASEAN Political-Security Community. Maritime community-building is nested in this architecture. Since 2011 the ACNMs have set out systematically to address these concerns through regional maritime cooperation including capacity building, technical cooperation and information sharing in the maritime domain. Regional maritime cooperation thus contributes to communitybuilding among armed forces and defence establishments of the ASEAN member states. ASEAN Navy Chiefs are constrained by the policy and legal framework adopted and approved by their heads of state and government. At present multiple maritime disputes in the South China Sea between ASEAN claimant states and China remain unresolved. This paper suggests that an improvement in ASEAN’s legal and policy regime will create a more conducive environment for maritime community building because ASEAN Navy Chiefs will have a clearer picture of where they can sail, conduct combined exercises and perform the constabulary functions of post-modern navies. In addition, ASEAN has created a parallel structure to put ASEAN-centrality at the center of ASEAN’s relations with its eight major dialogue partners: East Asia Summit, ADMMPlus, and the Expanded ASEAN Maritime Forum. This new architecture should serve as insulation for ASEAN against strategic naval rivalry between China and the United States. If ASEAN sets its priorities and seizes the initiative it can draw its dialogue partners into cooperative naval arrangements that strengthen Southeast Asia’s autonomy and ASEAN centrality. One example is to involve all dialogue partners in implementing the Code for Unplanned Encounters at Sea (CUES) throughout Southeast Asia’s maritime domain, including the South China Sea, under the auspices of an Expanded ASEAN Navy Chiefs Meeting or ACNM-Plus.

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