China-ASEAN Maritime Cooperation in the SCS: BUILDING TRUST THROUGH SHARED RULES & NORMS AILEEN SAN PABLO-BAVIERA UNIVERSITY OF THE PHILIPPINES Presented at Boao Forum Roundtable on South China Sea MARCH 28-29, 2015

The situation in the South China Sea is becoming more and more complex, with different layers of security challenges evading solution  sovereignty disputes  disputes over maritime rights and resources  common security challenges  competition among major powers Given trajectory of last few years and unless reversed, we can expect more rather than less conflict Security Challenges

Competition is growing, certain claimants becoming more assertive and showing readiness to use or threaten use of force to assert sovereignty  Reclaiming land, building new structures with potential military uses; preventing others from enjoying lawful rights under UNCLOS  Using navies or paramilitary forces v. fishermen  Reactions by weaker states lead to escalation of tensions Trend among regional states to build up military/law enforcement capabilities with maritime disputes and rise of new powers in mind Deep mistrust and no consensus on how to approach the different security challenges

 The situation may be ripe for negotiating a compromise – Zartman’s “mutually hurting stalemate”, or higher costs of non-compromise for all parties  Adjustments in China’s diplomacy: 2014 conference, “New type of major power relations”, “new security concept”, Maritime Silk Road Initiative, resumption of China-Japan and trilateral China-Japan-S.Korea dialogue, Boao Forum speech of Xi Jinping emphasized Nontraditional security  ‘Dual track’ approach  concern over soft power-hard power balance Opportunities

Maritime security and good order at sea  preservation of the maritime environment  access to and sustainable use of the ocean’s resources  safety of life at sea, including response to natural disasters  freedom of navigation  freedom from threat or use of force  Regulation of illegal activities harmful to economic and security interests of bordering states Common interests of ASEAN and China

 promoting regional architecture to ensure peace, security, prosperity  Important for ASEAN’s successful integration efforts and to China’s continued economic growth and power aspirations  How to deepen economic linkages without creating new dependencies  ongoing power transitions should not aggravate security dilemmas  Inclusive, open vs exclusionary?

 More intra-regional trade -> more maritime activity -> more risks to maritime security (from piracy/armed robbery at sea to marine pollution to maritime accidents)  Maritime Silk Road Initiative (MSRI) vision of connectivity and win-win approach (e.g. ports, energy, resources but also infrastructure for sustainable fisheries, marine environmental protection, and marine eco-tourism) In the SCS…

 Quanzhou: “MSR will pass through EEZs, archipelagic waters, high seas”  Under stable political atmosphere and mutual accommodation, govts, business, local communities, NGOs will welcome new cooperation initiatives  Trust and cooperation, chicken and egg

 How to rebuild mutual trust and confidence, especially of smaller states?  Power asymmetry – hedging/soft balancing behavior, capability building (short-term trust-eroding effects)  Self-restraint – subjective, situational, unverifiable

 Effect of overlapping claims has been confusion over what rules apply – domestic law, rules of engagement, UNCLOS, IMO conventions?  Philippine arbitration case, Code of Conduct discussions, CUES – all seeking clarification of rules  Grey areas, different interpretations exist e.g. mil activities in EEZ  Not enough LOS/Intl law experts in all the countries; politicians and media prone to biased misunderstanding of rules We need agreement on rules!

 Current rules balance between protecting rights of coastal states, needs of maritime (military) powers and need for maritime cooperation for common interests  Territorial disputes crystallize the grey areas, the disagreements regarding interpretation or even applicability of these norms and rules  Sovereignty issues and resulting mistrust obstruct cooperation – MPC (Indonesia) workshops, IUU fishing, inoperative Regional Fisheries Management Organization (RFMOs)

 Do the current rules suffice for future scenarios, in terms of clarity and enforceability?  If territorial and maritime rights disputes sharpen (e.g. when are claimant states coastal states?)  If SCS becomes arena for armed conflict among great powers, as Chinese naval and air power grow (when regional and extra-regional powers differ in interpretations of the law or some are not party to it);  If arms build-up/ arms race occurs amid aggravated threat perceptions

 What rules matter? (triggers of conflict, obstacles to cooperation)  Dispute settlement procedures and mechanisms  “Shelving sovereignty disputes” and freezing status quo (how long?)  Activities in occupied features  Military activities in maritime zones and disputed areas  Treatment of fishing and illegal fishing in disputed areas  Modus vivendi on oil & gas exploration  Rules for joint development or joint management of fisheries & oil/gas  Search and rescue

 Most fundamental norm is rule of law  power can be constrained by law;  there are penalties – however soft - for disregard of the law and for impunity;  law applies equally to small and big states  Given asymmetries in power capability, agreement on the force of law, consensus on shared norms, and predictability of agreed rules can help build trust and assuage fundamental insecurity of states in an anarchic order.

 Rules are also meant to enable cooperation, not only to constrain power  With agreement on norms and a commitment to clear rules, we can build regimes (law enforcement cooperation, RFMOs, etc…), and build Asia’s “community of common destiny”  ASEAN +China, ASEAN+3 agreement on cooperation for sustainable development of fisheries and other ocean resources in SCS and ECS  EAS agreement on cooperation for the promotion of freedom and safety of navigation and of safety of life at sea, incl. HADR  International community to continue formulation of rules governing military activities at sea

 Rules, norms, law will not be enough; patient diplomacy will always be needed to arrive at rules, and to wisely apply them.