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

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.

First, some countries continue to make excessive maritime claims, even those already declared invalid or without basis under international law by a competent and authoritative international tribunal. In other words, there is a lack of good faith, an important international law principle, vis-à-vis adherence to related international legal regimes.8 In the South China Sea, Beijing continues to insist on its nine-dash lines, a claim outrightly rejected in July 2016 by an arbitration tribunal constituted in The Hague under Annex VII of UNCLOS. China has also been attempting to reverse Japan’s administration of the Senkaku Islands, not through peaceful means such as judicial procedures, but by resorting to coercive maneuvers in the East China Sea

This lack of good faith and blatant disregard for international law can be seen in Beijing’s dispatch of fishing vessels with maritime militia to neighboring states’ EEZ that also fall within the discredited nine-dash lines. It has also been using Coast Guard and other government vessels to put into question the longstanding control and jurisdiction of many Indo-Pacific littoral states over their waters, and to initiate a new status quo. Maritime experts call these actions gray zone operations, activities below the threshold of an armed attack, but consequential enough to achieve security or political objectives. Maritime scholar Jonathan Odom described operating in the gray zone in terms of a black to white continuum.  “On the spectrum’s ‘white end,’ the mere existence or presence of military forces would not constitute a use of force. On its ‘black end,’ dropping bombs, launching missiles, or landing combat forces ashore would constitute a use of force.”9 In between the two ends are a wide range of activities characterized as ‘gray zone.’

Regional countries have been struggling to respond to these types of activities. For U.S. allies in the region, Washington’s security commitment is triggered only by an ‘armed attack,’ not by gray zone challenges. Hence, deterrence through collective security has been harder to achieve. U.S. treaty-ally the Philippines, for instance, lost Mischief Reef in 1995 and Scarborough Shoal in 2012 because of failure to respond to Beijing’s gray zone maneuvers (and arguably enabled by the U.S. alliance system’s inability to deter and respond to gray zone strategies). Some in Japan, another U.S. treaty-ally, have expressed concerns about China’s intrusions into the contiguous zone and territorial waters of the Senkaku Islands. What to do should Chinese government vessels, which under international law enjoy sovereign immunity, enter the territorial waters of the Senkaku Islands and refuse to leave? The answer to that question may spell the difference between war and peace. For others in the region, dealing with increasing Chinese presence in their waters is even more difficult owing to factors such as insufficient maritime domain awareness and weak offshore law enforcement capacity, among others.

Second, while ASEAN-led institutions remain important to advancing a rules-based maritime order  in the Indo-Pacific Region, they are almost by design inherently infirm in addressing high stakes security issues, especially those that involve the great powers. The ASEAN Regional Forum (ARF) has long been a platform for foreign ministry officials to discuss regional challenges and promote confidence-building measures, preventive diplomacy, and cooperation on a range of security issues among its 27 members. Likewise, the ASEAN Defense Ministers Meeting Plus (ADMM+) has engaged ASEAN and eight dialogue partners in closely looking at regional security challenges and pushing for cooperative mechanisms among their armed forces on a variety of issues including maritime security. But the “ASEAN Way” of non-interference and consensus approach to decision-making has constrained the regional mechanisms’ effectiveness in dealing with disputes over the South and East China Seas. These regional institutions debate terminologies to use and words to include in their post-meeting statements, and while they trigger discussions on some functional cooperative engagements, they have not shaped the strategic environment of the region in ways that strengthen the rule of law. For instance, the so-called South China Sea Code of Conduct has never materialized despite countless meetings and negotiations between ASEAN and China since the idea was introduced in 1995. Moreover, as Kyoko Hatakeyama has discussed extensively in her chapter, the Quad too, has struggled to achieve the united front necessary to prop up maritime rule of law given the four countries’ varying threat perceptions, security priorities, and approaches in dealing with China.

Given these weaknesses in multilateral security mechanisms, many in the region value U.S. leadership and seek a clear strategy. The Biden Administration’s promised multilateralist approach to foreign policy has been widely welcomed in the region. It is time for the United States to deliver on that promise and lead in strengthening regional institutions to better advance a rules-based maritime order. 

Finally, the framing of maritime issues in the region as part of the so-called U.S.-China ‘strategic rivalry’ or ‘competition’ has not been helpful in fostering a rules-based maritime order. For one, many in the region do not want to take part in that competition. But most importantly, the framing of the increasingly tense security environment in maritime Asia as a by-product of ‘great power competition’ results in two unfavorable and inaccurate narratives that prevent regional states from taking stronger positions based on international law: 1) false equivalence, which equates U.S. legitimate maritime operations and presence in the region as akin to China’s disruptive, illegal, and domineering behavior; and 2) Washington and Beijing are both implicitly forcing Southeast Asians to make a choice–hence the prevalence of the “do-not-make-us-choose” refrain from political leaders and key decisionmakers in the region. At times, when the United States or its allies and partners insist on adherence to international law, some in the region take that as anti-China. This obscures the real choice, which is between a rules-based maritime order and a power-based maritime order. The former is based on the primacy of international law. The latter is based on might and would result in an arbitrarily governed Indo-Pacific. Instead of ‘competition with China,’ the United States and its allies and partners are better served with a narrative that focuses on advancing a rules-based maritime order, in which countries, big and small, can benefit.