By Carlyle A. Thayer
Indirect Cost Imposition Strategies in the
South China Sea:
U.S. Leadership and ASEAN Centrality
A P R I L 2 015
MARITIME
STRATEGY SERIES
The views expressed in this paper are those of the author alone and do not represent the
views of ASEAN, its member states, or the ASEAN Secretariat.
Cover Image
ASEAN leadership at the 25th ASEAN Summit Plenary Session, November 2014.
(ASEAN SECRETARIAT/Flickr)
About this Series
Maritime tensions in the East and South China Seas have raised significant questions about the long-term peace and stability
that has enabled Asia’s economic rise over the last several decades. While these disputes are longstanding, recent years
have seen attempts to unilaterally change the status quo through tailored coercion that falls short of war. These activities
do not appear to be abating despite growing international concern. While policy efforts to alleviate tensions must include
engagement and binding measures, a comprehensive approach must include countering coercive moves by imposing
costs on bad behavior. This series aims to explore various types and facets of strategies to deter, deny and impose costs on
provocative behavior in maritime Asia. Hopefully these papers will, jointly and severally, generate new thinking on how to
both maintain security and build order across the Indo-Pacific region.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality
By Carlyle A. Thayer
A P R I L 2 0 1 5
About the Author
Carlyle A. Thayer is Emeritus Professor, The University of New South
Wales at the Australian Defence Force Academy in Canberra, and
Director of Thayer Consultancy, registered in Australia.
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INTRODUCTION
By Carlyle A. Thayer
Any discussion about cost imposition strategies to
deal with coercion in the South China Sea should
begin with a discussion about critical background
and institutions within Southeast Asia. In August
1967, when the foreign ministers from Indonesia,
Malaysia, the Philippines, Singapore, and Thailand
met in Bangkok to form the “Association of South-
East Asian Nations” (ASEAN), they declared that
ASEAN was “open for participation to all States
in the South-East Asian Region.”1 This aspiration
was met over the following years with the admission
of Brunei in 1984, Vietnam in 1995, Laos and
Myanmar in 1997, and Cambodia in 1999. Timor-
Leste’s membership is pending.
Since its founding, ASEAN has sought to place
itself at the center of Southeast Asia’s security
architecture, most notably with the creation of the
ASEAN Regional Forum (ARF) in 1994, ASEAN
Plus Three in 1997, the East Asia Summit in 2005,
the ASEAN Defence Ministers’ Meeting Plus in
2010, and the Expanded ASEAN Maritime Forum
in 2012.
ASEAN has also sought to preserve Southeast
Asia’s autonomy from intervention by external
powers. The first step toward this end was taken
during the Cold War with the adoption of the Zone
of Peace, Freedom and Neutrality Declaration
(ZOPFAN) in Kuala Lumpur in November 1971.2
The declaration stated:
1. That Indonesia, Malaysia, the Philippines,
Singapore and Thailand are determined to
exert initially necessary efforts to secure the
recognition of, and respect for, South East Asia
as a Zone of Peace, Freedom and Neutrality,
free from any form or manner of interference by
outside Powers [emphasis added];
2. That South East Asian countries should make
concerted efforts to broaden the areas of
cooperation which would contribute to their
strength, solidarity and closer relationship.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
4 |
A major turning point in reinforcing ASEAN’s
centrality in regional security affairs and as a guarantor
of Southeast Asia’s autonomy was reached
in 1976 with the adoption of the ASEAN Treaty
of Amity and Cooperation (TAC) by the heads of
state/government of the five founding members.3
This treaty noted the desire of ASEAN states “to
enhance peace, friendship and mutual cooperation
on matters affecting Southeast Asia” by adhering to
six principles:
a. Mutual respect for the independence, sovereignty,
equality, territorial integrity and national
identity of all nations;
b. The right of every State to lead its national existence
free from external interference, subversion
or coercion [emphasis added];
c. Non-interference in the internal affairs of one
another;
d. Settlement of differences or disputes by peaceful
means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves.
The ASEAN Treaty of Amity and Cooperation was
“open for accession by other States in Southeast
Asia” and became a prerequisite for membership
in the Association. Later, accession to the ASEAN
TAC became a requirement for external states in
order to join the East Asia Summit.
Finally, in December 1995 ASEAN adopted the
Treaty on the Southeast Asia Nuclear Weapon-Free
Zone (SEANWFZ).4 The treaty committed each
member of ASEAN:
… not to, anywhere inside or outside the Zone:
(a) develop, manufacture or otherwise acquire,
possess or have control over nuclear weapons;
(b) station or transport nuclear weapons by any
means; or
(c) test or use nuclear weapons.
This treaty for the first time defined the geographical
limits of Southeast Asia as follows:
(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) [emphasis
added];
(b) “territory” means the land territory, internal
waters, territorial sea, archipelagic waters, the
seabed and the sub-soil thereof and the airspace
above them [emphasis added].
Each new member of ASEAN was required to subscribe
to all of the above declarations and treaties.
A second major turning point in ASEAN’s
endeavor to ensure its centrality in regional security
affairs and as guarantor of Southeast Asia’s
autonomy came in October 2003, when ASEAN
heads of government/state adopted the Declaration
of ASEAN Concord II (Bali Concord II).5 The
declaration announced the goal of establishing an
ASEAN Community “comprised of three communities:
ASEAN Political-Security Community
(APSC), ASEAN Economic Community and
ASEAN Socio-Cultural Committee” by 2020. This
deadline was later brought forward to the end of
2015.
The Declaration of ASEAN Concord II stated that:
The Treaty of Amity and Cooperation in
Southeast Asia (TAC) is the key code of conduct
governing relations between states and a diplomatic
instrument for the promotion of peace
and stability in the region … and the ASEAN
Regional Forum (ARF) shall remain the primary
forum in enhancing political and security
cooperation in the Asia Pacific region, as well as
| 5
the pivot in building peace and stability in the
region. ASEAN shall enhance its role in further
advancing the stages of cooperation within the
ARF to ensure the security of the Asia Pacific
region.
In 2009, ASEAN adopted a blueprint for the APSC
that reiterated ASEAN’s centrality and proactive
role in the regional architecture.6 The blueprint
also declared that the APSC would “uphold
existing ASEAN political instruments” such as
ZOPFAN, ASEAN TAC, and SEANWFZ, “which
play a pivotal role in the area of confidence building
measures, preventive diplomacy and pacific
approaches to conflict resolution.”
As ASEAN has progressed in its plans to establish
an ASEAN Community and an ASEAN Political-
Security Community by the end of 2015, no single
issue has been as divisive in reaching these objectives
as territorial disputes in the South China Sea
between and among ASEAN members and China.
I . THE SOUTH CHINA SEA
CONUNDRUM
ASEAN first raised its concerns about territorial
disputes in the South China Sea in the early- and
mid-1990s.7 In July 1992, ASEAN issued its first
statement on the South China Sea in response
to rising tensions between China and Vietnam
(not yet a member of ASEAN) over oil exploration
in contested waters. ASEAN called on the
unnamed parties “to exercise restraint.”8 This call
went unheeded, and both China and Vietnam
proceeded to take control of unoccupied islets and
reefs within the Spratly archipelago.
In March 1995, ASEAN issued its second statement
on the South China Sea in response to
China’s occupation of Mischief Reef, claimed by
the Philippines. ASEAN ministers expressed their
“serious concern” and urged the two parties “to
refrain from taking actions that de-stabilize the
situation.”9 Over the next five years ASEAN and
China entered into fruitless negotiations on a Code
of Conduct (CoC) in the South China Sea.
In December 2002, the two sides expediently
agreed to a nonbinding political statement titled
“Declaration on Conduct of Parties in the South
China Sea.” Point 5 stated:
The Parties undertake to exercise self-restraint
in the conduct of activities that would complicate
or escalate disputes and affect peace and stability
including, among others, refraining from
action of inhabiting on the presently uninhabited
islands, reefs, shoals, cays, and other features
and to handle their differences in a constructive
manner [emphasis added].
The declaration of conduct (DoC) set out four
trust- and confidence-building measures and five
voluntary cooperative activities. Significantly, the
parties reaffirmed “that the adoption of a code of
conduct in the South China Sea would further promote
peace and stability in the region and agree to
work, on the basis of consensus, toward the eventual
attainment of this objective [emphasis added].”10 It
took another 25 months before ASEAN and China
reached agreement on the terms of reference for
a Joint ASEAN-China Working Group (JWG) to
implement the DoC.11 The JWG spent the next six
years debating 21 drafts before they agreed in 2011
on Guidelines to Implement the DoC.12
In January 2012, ASEAN and China agreed to set
up four expert committees on maritime scientific
research, environmental protection, search and
rescue, and transnational crime based on four of
the five cooperative activities included in the 2002
DoC. Significantly, no expert committee on safety
of navigation and communication at sea was established
due to its contentious nature.
Another two years passed before ASEAN and
China at long last commenced their first formal
consultations on a CoC within the framework of
the Joint Working Group on the Implementation of
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
6 |
the DoC. As of February 2015, despite subsequent
meetings of the JWG, not one trust- or confidencebuilding
measure or cooperative activity has
commenced.
Most recently, at an ASEAN Foreign Ministers
Retreat held in Malaysia in late January 2015,
according to the ASEAN chair, “the ministers
instructed our senior officials to intensify efforts
towards achieving the full and effective implementation
of the Declaration on Conduct of Parties in
the South China Sea and work vigorously towards
the early conclusion of the Code of Conduct on the
South China Sea.”13
Since 2009, when Beijing officially tabled its
ambitious nine-dashed line map claiming all the
land features (rocks, reefs, submerged shoals and
islands) and adjacent waters, comprising an estimated
62 percent or more of the South China Sea,14
China has undertaken a number of assertive – if
not aggressive – actions to consolidate and expand
its control over the South China Sea. These actions
include but are not limited to:
• harassment of Vietnamese, Filipino, and other
fishermen operating in waters within China’s
nine-dashed line in the South China Sea,
including ramming, sinking, destroying and/
or stealing property, and arrest of their crews
and confiscation of their fish catch;
• threats to and/or cutting the cables of ships
engaged in seismic surveys within the EEZs of
Vietnam and the Philippines;
• the virtual annexation of Scarborough Shoal15
and the contestation of Second Thomas Shoal
– which the Philippines claims and on which
it maintains a small garrison of marines –
by permanently stationing armed Chinese
maritime enforcement vessels in surrounding
waters and harassing Filipino attempts to
resupply the marines;
• encouragement of Chinese fishermen to poach
in waters where China’s nine-dashed line claim
overlaps with the EEZs of littoral states;
• coercion by Chinese maritime law enforcement
ships to force Southeast Asian authorities
to release Chinese fishermen who have been
apprehended for illegal fishing;
• deployment of the HD 981 mega oil drilling
platform, accompanied by an armada of 80 to
100 escorts (including naval warships, maritime
enforcement agency vessels, tugboats, and
fishing craft associated with China’s militia)
into Vietnam’s EEZ and the use of such tactics
as ramming and high-pressure fire hoses
against Vietnamese Coast Guard and Fisheries
Surveillance Force vessels;
• harassment and other dangerous encounters
with U.S. Navy ships and aircraft operating
in international waters and airspace in the
South China Sea (e.g., USS Cowpens and P-8
Poseidon maritime patrol aircraft); and
In January 2012, ASEAN and
China agreed to set up four expert
committees on maritime scientific
research, environmental protection,
search and rescue, and transnational
crime based on four of the five
cooperative activities included in the
2002 DoC. Significantly, no expert
committee on safety of navigation and
communication at sea was established
due to its contentious nature.
| 7
• extensive land reclamation and construction
activities on five features in the South China
Sea, including the construction of an airstrip
and docks capable of berthing military
vessels.16
Throughout ASEAN’s years of development, its
major policy documents and treaties included
implicitly or explicitly Southeast Asia’s maritime
domain within their geographic scope. As noted
above, the SEANWFZ defined Southeast Asia’s
geographic boundaries as including the land territory,
internal waters, territorial sea, archipelagic
waters, EEZs, continental shelves, the seabed and
the subsoil thereof, and the airspace above them.
China’s assertive and aggressive actions, combined
especially with recent land reclamation activities,
represent nothing less than the slow and deliberate
excision of ASEAN’s maritime heart from the
Southeast Asian region. China’s actions threaten to
undermine ASEAN’s 48-year endeavor to bolster
Southeast Asia’s autonomy from external intervention
through altering “facts on the ground” by
annexing the South China Sea and placing it under
Chinese administrative and military control.
China also aims at undermining U.S. alliances and
security guarantees by using civilian maritime
enforcement ships and fishing fleets to conduct
carefully orchestrated acts of intimidation and
coercion against the Philippines and Vietnam,
advancing China’s physical control over the South
China Sea – a stratagem to which the United States
has yet to work out an effective response. Finally,
China seeks to exploit differences among ASEAN
members and draw ASEAN into East Asian exclusivist
security arrangements, thus undermining
ASEAN’s centrality in regional security affairs.17
The next sections offer proposals to impose costs
on China’s unilateral efforts to change the status
quo in Southeast Asia’s maritime domain.
I I . U.S. LEADERSHIP AND
LEVERAGING ALLIANCES AND
PARTNERSHIPS
It is unlikely that any one cost imposition strategy
will dissuade China from its present course of
action. It is more likely that multiple overlapping
cost imposition strategies implemented by various
sets of actors will be more effective. This section
considers two options for the United States acting
in part on its own but also in conjunction with
allies and security partners – an “information warfare
campaign” and joint and combined exercises
and deployments between coast guards.
First, the United States should take the lead in a
campaign of “information warfare” to publicize
details of Chinese unilateral destabilizing activities
in the South China Sea, ensuring that this
information is put in the public domain for use
by the media, scholars, security specialists, other
analysts, and elected officials. For example, the
Defense Department should be required to include
a detailed section on Chinese activities in the
South China Sea in its Annual Report to Congress:
Military and Security Developments Involving the
People’s Republic of China. The commander of
the U.S. Pacific Command should be required to
report in detail on Chinese activities in the South
China’s assertive and aggressive
actions, combined especially with
recent land reclamation activities,
represent nothing less than the slow
and deliberate excision of ASEAN’s
maritime heart from the Southeast
Asian region.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
8 |
China Sea in his or her annual posture statement
to the respective Armed Services Committees of
the House and Senate.
U.S. officials who attend ASEAN-related security
meetings, such as the ARF, Expanded ASEAN
Maritime Forum, and ASEAN Defence Ministers’
Meeting Plus should use these occasions to provide
detailed background briefings on Chinese activities
in the South China Sea. U.S. scholars who regularly
attend Track 1.5 and Track 2 regional workshops
and conferences should be offered briefings on a
voluntary basis.
The Department of Defense and the State
Department should provide funds and other assistance
to American-based think tanks to research
and report on current Chinese activities in the
South China Sea and how these are likely to impact
adversely on regional security. Funding should be
made available to support specialized conferences
and workshops to which Southeast Asian scholars
and officials are invited.
The purpose of this “information warfare” campaign
is to maintain unrelenting public pressure on
China to be more transparent about its activities
and to bring its actions into accord with regional
norms such as the self-restraint clause in the DoC.
Another aim of this campaign would be to counter
Chinese propaganda.
Second, the United States should develop a strategy
to counter Chinese activities using primarily
– but not exclusively – nonmilitary assets. Under
this new strategy, the United States should avoid
directly confronting People’s Liberation Army
Navy warships with its own naval forces. Nor
should the U.S. Navy directly confront Chinese
paramilitary law enforcement agency ships and
fishing craft because this would raise the risk of
conflict and/or scare off some Southeast Asian
states.
The United States should implement a cost imposition
strategy involving joint and combined
cooperation between civilian maritime agencies of
like-minded external powers and the Philippines
and Vietnam. This strategy should be carried out
on three levels: among like-minded ASEAN dialogue
partners (Australia, Japan, South Korea, New
Zealand, and India); multilaterally with regional
allies and security partners; and bilaterally with
regional states.
The United States should use its two trilateral
security dialogues (U.S.-Japan-Australia and
U.S.-Japan-India), at the same time promoting a
quadrilateral security dialogue with India, Japan,
and Australia, to coordinate their approaches to
ASEAN and individual Southeast Asian states. For
example, in 2014 Vietnam was reported to have
conducted diplomatic soundings for a trilateral
security dialogue with Japan and the United States.
This sort of ad hoc arrangement should be pursued.
Japan, the United States, and Australia are currently
providing material assistance to the
Philippines to improve its capacity for maritime
security, including the provision of patrol boats
and training. This assistance should be stepped up
and better coordinated through closer cooperation
bilaterally and multilaterally. It could serve as a
model for similar activities by other external and
regional coast guards.
The United States should implement
a cost imposition strategy involving
joint and combined cooperation
between civilian maritime agencies
of like-minded external powers and
the Philippines and Vietnam.
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At the same time, the United States and other
maritime powers, such as Japan, could conduct
their own bilateral engagement activities. The
United States and Vietnam already have an agreement
for cooperation between their Coast Guards,
but this entails training on land in the form of
short courses. U.S.-Vietnam cooperation now
needs to move offshore in the form of joint training
exercises that gradually expand their scope from
search and rescue to anti-piracy drills and maritime
surveillance patrols.
Vietnam recently joined the Proliferation Security
Initiative. This provides an opportunity for the
United States to help Vietnam further develop its
capacity for maritime domain awareness.
The purpose of these maritime interactions is to
build trust to reach the stage where both sides can
agree to exchange observers on each other’s ships
and patrol aircraft. Initially this exchange could
take place during planned training exercises; over
time it could lead to the cross-posting of Coast
Guard officers for longer deployments. Joint patrols
should be carried out either in the EEZs of littoral
states or on the high seas that are notionally within
China’s nine-dashed line.
This model could be expanded to include similar
activities between the U.S. and Philippine
Coast Guards, the Japanese and Philippine Coast
Guards, and the Philippine and Vietnamese Coast
Guards. Over time, these bilateral arrangements
could be expanded to trilateral or even multilateral
exercises. China would be confronted with the
uncertainty of directly challenging vessels containing
maritime officials from the United States or
its treaty allies. This could involve, for example,
the deployment of U.S. and Japanese Coast Guard
personnel on Coast Guard vessels operated by the
Philippines and Vietnam. It could also involve a
mix of Filipino and Vietnamese maritime enforcement
personnel.
U.S. Navy maritime surveillance aircraft based in
the Philippines under the recent Enhanced Defense
Cooperation Agreement could operate flights with
Philippine military observers. U.S. Navy maritime
surveillance aircraft could be deployed over the
South China Sea and land in Vietnam on a temporary
basis before returning to their base in the
Philippines. U.S. maritime patrol aircraft could
also conduct joint maritime surveillance missions
with their Filipino and Vietnamese counterparts.
U.S. military personnel could fly on Philippine and
Vietnamese reconnaissance planes as observers
and vice versa.
Regional security analysts expect China to continue
mounting annual aggressive naval displays
in the South China Sea from May to August. This
provides an opportunity for the U.S. Navy and
Japan Maritime Self-Defense Force to organize
a series of continuing maritime exercises and
surveillance flights with Vietnam, the Philippines
and other like-minded regional states prior to the
arrival of Chinese forces each year. The details of
all operations should be completely transparent to
all regional states, including China.
The United States and its treaty allies should
conduct regular naval operations designed to
assert freedom of navigation and overflight in
the waters and airspace near the artificial islands
currently being built by China, to prevent China
from making excessive claims to maritime space or
intimidating regional naval forces.
The indirect cost imposition strategy provides
the means for the United States to give practical
expression to its declaratory policy of opposing
intimidation and coercion to settle territorial
disputes. An indirect strategy does not require
the United States to directly confront China. This
strategy puts the onus on China to decide the risk
of confronting mixed formations of Coast Guard
and naval vessels and aircraft involving the United
States, Japan, the Philippines, Vietnam, and other
like-minded states.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
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These combined maritime and air forces would
operate in international waters and airspace that
traverse China’s nine-dashed line. Interchanging
the naval and aircrews in all exercises could
promote deterrence. The objective would be to
maintain a continuous naval and air presence to
deter China from using intimidation and coercion
against Vietnam, the Philippines, and other
regional states by raising the risk of directly
confronting the United States or a U.S. treaty ally.
The scope and intensity of these exercises could be
altered in response to the tempo of Chinese naval
activities.
I I I . AN INDIRECT COST IMPOSITION
STRATEGY FOR ASEAN
ASEAN as an organization is unlikely to support
collectively the indirect cost imposition strategy
suggested above, because that would lead to
direct political confrontation with China. ASEAN,
however, could pursue an indirect cost imposition
strategy using legal, diplomatic, and political
means that would reinforce Southeast Asia’s
autonomy and ASEAN-central role in the region’s
architecture. A central feature of this strategy
might be adopting an ASEAN Treaty of Amity and
Cooperation in Southeast Asia’s Maritime Domain
(hereafter “the Treaty”).18
The geographical limits of Southeast Asia’s
maritime domain, following SEANWFZ, should
include the respective continental shelves and EEZs
of all ASEAN members (and future members).19
This treaty should have a protocol of accession
inviting all ASEAN dialogue partners to sign. This
treaty would be in essence a binding code of conduct
for Southeast Asia’s maritime domain.
ASEAN’s dogged pursuit of confidence-building
measures under the DoC and a binding Code
of Conduct in the South China Sea with China,
while an important security goal, is fundamentally
flawed for five reasons:
First, this approach reinforces divisions in
ASEAN between (a) front-line claimant states, the
Philippines and Vietnam, and the other claimant
states, Brunei and Malaysia, and (b) claimant and
nonclaimant states, thus undermining ASEAN
unity.
Second, China will not agree to a binding CoC that
has treaty status; this will result in a compromise
CoC that falls short of meeting the security and
other concerns of Southeast Asia’s claimant states.
Third, because ASEAN and China have agreed to
proceed with consultations on the drafting of a
CoC on the basis of consensus, China can delay
these proceedings indefinitely.
Fourth, because there is no agreed road map and
time limit on this process, China can continue to
consolidate its presence in the South China Sea and
extend its de facto control over waters that overlap
with the EEZs of littoral states.
The United States and its treaty
allies should conduct regular
naval operations designed to
assert freedom of navigation
and overflight in the waters
and airspace near the artificial
islands currently being built by
China, to prevent China from
making excessive claims to
maritime space or intimidating
regional naval forces.
| 11
Fifth, the geographical area of ASEAN’s proposed
CoC cannot be defined until China either clarifies
or withdraws its nine-dashed line claim to the
South China Sea.
Why should ASEAN adopt a Treaty of Amity
and Cooperation in Southeast Asia’s Maritime
Domain? There are five reasons:
First, the security of Southeast Asia’s maritime
domain is indivisible for all ASEAN members,
whether coastal or landlocked states.
ASEAN’s proposed CoC, because it is focused
solely on the South China Sea, does not cover
many other waterways of critical importance to
ASEAN states, including maritime approaches
to the Malacca Strait on the western seaboards of
Myanmar, Thailand, and Indonesia; the Gulf of
Thailand; the waters surrounding the Indonesian
archipelago; or waters to the north, east, and south
of the Philippines archipelago.
Second, international law, including the United
Nations Convention on the Law of the Sea
(UNCLOS), applies equally throughout Southeast
Asia’s maritime domain and not just the South
China Sea. It is applicable to all states.
Third, the Treaty would incorporate the norms and
legal obligations that are unlikely to be included in
the CoC.
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 center of relations with outside maritime
powers. The Treaty would overcome differences
between claimant and nonclaimant states by
making all ASEAN members stakeholders,
including Cambodia, Myanmar, and landlocked
Laos.20 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 of 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, with particular attention
to eliminating excessive baselines and clearly
distinguishing islands from rocks for purposes of
maritime delimitation.
The Treaty should include provisions 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 overflight.
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.
...the security of Southeast Asia’s
maritime domain is indivisible
for all ASEAN members, whether
coastal or landlocked states.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
12 |
The Treaty should incorporate references to
previous ASEAN treaties, such as the TAC
and SEANWFZ, and international maritime
conventions such as UNCLOS, the Convention
for the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation, Code for
Unplanned Encounters at Sea, and other relevant
conventions.
The Treaty should include a binding commitment
to resolve all disputes through peaceful means,
including political-diplomatic negotiations, thirdparty
mediation, or international legal arbitration.
The Treaty should include a provision for the
demilitarization of islands and rocks and prohibit
the deployment of specified types of weapon
systems, such as land-based anti-ship missiles.
However, for purposes of general security,
including protection against piracy and armed
criminals, the Treaty should permit the stationing
of coast guard and police personnel on occupied
features.
The Treaty should contain a provision requiring
all signatories to cooperate in marine scientific
research, marine pollution, fisheries management,
search and rescue, anti-piracy, and other agreed
areas.
Finally, the Treaty should make provision for
setting up a mechanism to handle complaints and
disputes that may arise. Such a mechanism should
be included under the ASEAN Political-Security
Community Council.
The proposals presented in the paper are unlikely
on their own to cause China to cease its unilateral
destabilizing activities in the South China Sea.
The recommendations are designed to increase
political pressure on China to act in conformity
with international law and regional norms by
taking the initiative away from China. In addition
to actions that can be undertaken by the United
States and like-minded ASEAN dialogue partners
in cooperation with claimant states, the above
proposals are also aimed at reinforcing Southeast
Asia’s autonomy.
Finally, the proposals in this paper should be
combined with other cost imposition strategies
proposed by other papers in this series to create a
web of multiple overlapping pressures on China to
accept the new status quo.
| 13
ENDNOTES
1. Association of Southeast Asian Nations, The Asean Declaration (Bangkok
Declaration) Bangkok, 8 August 1967 (August 8, 1967), http://www.asean.
org/news/item/the-asean-declaration-bangkok-declaration. At the meeting,
Malaysia was represented by its deputy prime minister.
2. Association of Southeast Asian Nations Foreign Ministers Meeting, “Joint
Press Statement Special ASEAN Foreign Ministers Meeting To Issue The
Declaration Of Zone Of Peace, Freedom And Neutrality Kuala Lumpur, 25-26
November 1971” (November 26, 1971), http://www.asean.org/communities/
asean-political-security-community/item/joint-press-statement-specialasean-
foreign-ministers-meeting-to-issue-the-declaration-of-zone-ofpeace-
freedom-and-neutrality-kuala-lumpur-25-26-november-1971.
3. Association of Southeast Asian Nations, Treaty of Amity and Cooperation
in Southeast Asia Indonesia, 24 February 1976 (February 24, 1976), http://www.
asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asiaindonesia-
24-february-1976-3.
4. Association of Southeast Asian Nations, Treaty on the Southeast Asia Nuclear
Weapon-Free Zone (December 15, 1995), http://www.asean.org/news/item/
treaty-on-the-southeast-asia-nuclear-weapon-free-zone.
5. Association of Southeast Asian Nations, Declaration of ASEAN Concord
II (Bali Concord II) (October 7, 2003), http://www.asean.org/news/item/
declaration-of-asean-concord-ii-bali-concord-ii.
6. Association of Southeast Asian Nations, ASEAN Political-Security Community
Blueprint (March 1, 2009), http://www.asean.org/archive/5187-18.pdf.
7. For an overview of ASEAN efforts to implement the DoC and reach
agreement with China on a Code of Conduct, see Carlyle A. Thayer, “ASEAN,
China and the Code of Conduct in the South China Sea,” The SAIS Review of
International Affairs, 33 no. 2, (Summer-Fall 2013), 75-84.
8. ASEAN Ministerial Meeting, 1992 ASEAN Declaration on the South China
Sea (July 22, 1992), http://cil.nus.edu.sg/rp/pdf/1992%20ASEAN%20
Declaration%20on%20the%20South%20China%20Sea-pdf.pdf.
9. ASEAN Foreign Ministers, “1995 Joint Communiqué of the 28th ASEAN
Ministerial Meeting,” quoted in “Documents on ASEAN and the South China
Sea” (Singapore: National University of Singapore Centre for International
Law, June 2011), 33, http://cil.nus.edu.sg/wp/wp-content/uploads/2011/06/
Documents-on-ASEAN-and-South-China-Sea-as-of-June-2011.pdf.
10. Association of Southeast Asian Nations, Declaration on the
Conduct of Parties in the South China Sea (November 4, 2002), Point
10, http://www.asean.org/asean/external-relations/china/item/
declaration-on-the-conduct-of-parties-in-the-south-china-sea.
11. Association of Southeast Asian Nations, “ASEAN-China Senior Officials
Meeting on the Implementation of the Declaration on the Conduct of
Parties in the South China Sea Kuala Lumpur, 7 December 2004,” December
7, 2004, http://www.asean.org/asean/external-relations/china/item/
asean-china-senior-officials-meeting-on-the-implementation-of-thedeclaration-
on-the-conduct-of-parties-in-the-south-china-sea-kualalumpur-
7-december-2004; and Association of Southeast Asian Nations, “Terms
of Reference of the ASEAN-China Joint Working Group on the Implementation
of the Declaration on the Conduct of Parties in the South China Sea,”
December 7, 2004, http://www.asean.org/asean/external-relations/china/
item/terms-of-reference-of-the-asean-china-joint-working-group-on-theimplementation-
of-the-declaration-on-the-conduct-of-parties-in-the-southchina-
sea.
12. Tran Truong Thuy, “Recent Developments in the South China Sea: From
Declaration to Code of Conduct,” in The South China Sea: Towards a Region
of Peace, Security and Cooperation, ed. Tran Truong Thuy (Hanoi: The Gioi
Publishers, 2011), 104.
13. Kyodo News Agency, “ASEAN seeks early conclusion of a maritime pact for
South China Sea,” South China Morning Post, January 28, 2015.
14. United States Department of State, Bureau of Oceans and International
Environmental and Scientific Affairs, Limits in the Seas: China: Maritime Claims
in the South China Sea, No. 143 (December 5, 2014). The media and many South
China Sea specialists cite figures upward of 80 or even 90 percent. As the State
Department analysis says on page 4, “The exact percentage depends upon the
assumed geographic extent of the South China Sea.”
15. Carlyle A. Thayer, “The China-Philippines Face Off at
Scarborough Shoal: Back to Square One?,” E-International
Relations, April 26, 2012, http://www.e-ir.info/2012/04/26/
the-china-philippines-face-off-at-scarborough-shoal-back-to-square-one/.
16. For an analysis of the most recent satellite imagery taken by
Airbus Defence and Space, see Michelle FlorCruz, “South China Sea Land
Reclamation: Satellite Images Show Chinese Progress on Made-Made Island,”
International Business Times, February 17, 2015, http://www.ibtimes.com/
south-china-sea-land-reclamation-satellite-images-show-chinese-progressman-
made-1818986.
17. Carlyle A. Thayer, “Southeast Asia: Patterns of Security Cooperation”
(Australian Strategic Policy Institute, 2010), 13-30.
18. This proposal is a modification of an idea first articulated by the author
in “Maritime Security: Towards a Regional Code of Conduct” (presentation to
Eighth Council for Security Cooperation in the Asia Pacific General Conference,
“Dangers and Dilemmas: Will the New Regional Security Architecture Help?,”
Hanoi, November 21-22, 2011). This proposal was refined in two subsequent
presentations: Carlyle A. Thayer, “Positioning ASEAN between Global Powers”
(presentation to the 14th Regional Outlook Forum, Institute of Southeast
Asian Studies, Singapore, January 5, 2012); and Carlyle A. 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. Such as Timor-Leste.
20. Cambodia and Myanmar were the only 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 for
the first time in ASEAN’s history. 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.
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Indirect Cost Imposition Strategies in the
South China Sea:
U.S. Leadership and ASEAN Centrality
A P R I L 2 015
MARITIME
STRATEGY SERIES
The views expressed in this paper are those of the author alone and do not represent the
views of ASEAN, its member states, or the ASEAN Secretariat.
Cover Image
ASEAN leadership at the 25th ASEAN Summit Plenary Session, November 2014.
(ASEAN SECRETARIAT/Flickr)
About this Series
Maritime tensions in the East and South China Seas have raised significant questions about the long-term peace and stability
that has enabled Asia’s economic rise over the last several decades. While these disputes are longstanding, recent years
have seen attempts to unilaterally change the status quo through tailored coercion that falls short of war. These activities
do not appear to be abating despite growing international concern. While policy efforts to alleviate tensions must include
engagement and binding measures, a comprehensive approach must include countering coercive moves by imposing
costs on bad behavior. This series aims to explore various types and facets of strategies to deter, deny and impose costs on
provocative behavior in maritime Asia. Hopefully these papers will, jointly and severally, generate new thinking on how to
both maintain security and build order across the Indo-Pacific region.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality
By Carlyle A. Thayer
A P R I L 2 0 1 5
About the Author
Carlyle A. Thayer is Emeritus Professor, The University of New South
Wales at the Australian Defence Force Academy in Canberra, and
Director of Thayer Consultancy, registered in Australia.
| 3
INTRODUCTION
By Carlyle A. Thayer
Any discussion about cost imposition strategies to
deal with coercion in the South China Sea should
begin with a discussion about critical background
and institutions within Southeast Asia. In August
1967, when the foreign ministers from Indonesia,
Malaysia, the Philippines, Singapore, and Thailand
met in Bangkok to form the “Association of South-
East Asian Nations” (ASEAN), they declared that
ASEAN was “open for participation to all States
in the South-East Asian Region.”1 This aspiration
was met over the following years with the admission
of Brunei in 1984, Vietnam in 1995, Laos and
Myanmar in 1997, and Cambodia in 1999. Timor-
Leste’s membership is pending.
Since its founding, ASEAN has sought to place
itself at the center of Southeast Asia’s security
architecture, most notably with the creation of the
ASEAN Regional Forum (ARF) in 1994, ASEAN
Plus Three in 1997, the East Asia Summit in 2005,
the ASEAN Defence Ministers’ Meeting Plus in
2010, and the Expanded ASEAN Maritime Forum
in 2012.
ASEAN has also sought to preserve Southeast
Asia’s autonomy from intervention by external
powers. The first step toward this end was taken
during the Cold War with the adoption of the Zone
of Peace, Freedom and Neutrality Declaration
(ZOPFAN) in Kuala Lumpur in November 1971.2
The declaration stated:
1. That Indonesia, Malaysia, the Philippines,
Singapore and Thailand are determined to
exert initially necessary efforts to secure the
recognition of, and respect for, South East Asia
as a Zone of Peace, Freedom and Neutrality,
free from any form or manner of interference by
outside Powers [emphasis added];
2. That South East Asian countries should make
concerted efforts to broaden the areas of
cooperation which would contribute to their
strength, solidarity and closer relationship.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
4 |
A major turning point in reinforcing ASEAN’s
centrality in regional security affairs and as a guarantor
of Southeast Asia’s autonomy was reached
in 1976 with the adoption of the ASEAN Treaty
of Amity and Cooperation (TAC) by the heads of
state/government of the five founding members.3
This treaty noted the desire of ASEAN states “to
enhance peace, friendship and mutual cooperation
on matters affecting Southeast Asia” by adhering to
six principles:
a. Mutual respect for the independence, sovereignty,
equality, territorial integrity and national
identity of all nations;
b. The right of every State to lead its national existence
free from external interference, subversion
or coercion [emphasis added];
c. Non-interference in the internal affairs of one
another;
d. Settlement of differences or disputes by peaceful
means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves.
The ASEAN Treaty of Amity and Cooperation was
“open for accession by other States in Southeast
Asia” and became a prerequisite for membership
in the Association. Later, accession to the ASEAN
TAC became a requirement for external states in
order to join the East Asia Summit.
Finally, in December 1995 ASEAN adopted the
Treaty on the Southeast Asia Nuclear Weapon-Free
Zone (SEANWFZ).4 The treaty committed each
member of ASEAN:
… not to, anywhere inside or outside the Zone:
(a) develop, manufacture or otherwise acquire,
possess or have control over nuclear weapons;
(b) station or transport nuclear weapons by any
means; or
(c) test or use nuclear weapons.
This treaty for the first time defined the geographical
limits of Southeast Asia as follows:
(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) [emphasis
added];
(b) “territory” means the land territory, internal
waters, territorial sea, archipelagic waters, the
seabed and the sub-soil thereof and the airspace
above them [emphasis added].
Each new member of ASEAN was required to subscribe
to all of the above declarations and treaties.
A second major turning point in ASEAN’s
endeavor to ensure its centrality in regional security
affairs and as guarantor of Southeast Asia’s
autonomy came in October 2003, when ASEAN
heads of government/state adopted the Declaration
of ASEAN Concord II (Bali Concord II).5 The
declaration announced the goal of establishing an
ASEAN Community “comprised of three communities:
ASEAN Political-Security Community
(APSC), ASEAN Economic Community and
ASEAN Socio-Cultural Committee” by 2020. This
deadline was later brought forward to the end of
2015.
The Declaration of ASEAN Concord II stated that:
The Treaty of Amity and Cooperation in
Southeast Asia (TAC) is the key code of conduct
governing relations between states and a diplomatic
instrument for the promotion of peace
and stability in the region … and the ASEAN
Regional Forum (ARF) shall remain the primary
forum in enhancing political and security
cooperation in the Asia Pacific region, as well as
| 5
the pivot in building peace and stability in the
region. ASEAN shall enhance its role in further
advancing the stages of cooperation within the
ARF to ensure the security of the Asia Pacific
region.
In 2009, ASEAN adopted a blueprint for the APSC
that reiterated ASEAN’s centrality and proactive
role in the regional architecture.6 The blueprint
also declared that the APSC would “uphold
existing ASEAN political instruments” such as
ZOPFAN, ASEAN TAC, and SEANWFZ, “which
play a pivotal role in the area of confidence building
measures, preventive diplomacy and pacific
approaches to conflict resolution.”
As ASEAN has progressed in its plans to establish
an ASEAN Community and an ASEAN Political-
Security Community by the end of 2015, no single
issue has been as divisive in reaching these objectives
as territorial disputes in the South China Sea
between and among ASEAN members and China.
I . THE SOUTH CHINA SEA
CONUNDRUM
ASEAN first raised its concerns about territorial
disputes in the South China Sea in the early- and
mid-1990s.7 In July 1992, ASEAN issued its first
statement on the South China Sea in response
to rising tensions between China and Vietnam
(not yet a member of ASEAN) over oil exploration
in contested waters. ASEAN called on the
unnamed parties “to exercise restraint.”8 This call
went unheeded, and both China and Vietnam
proceeded to take control of unoccupied islets and
reefs within the Spratly archipelago.
In March 1995, ASEAN issued its second statement
on the South China Sea in response to
China’s occupation of Mischief Reef, claimed by
the Philippines. ASEAN ministers expressed their
“serious concern” and urged the two parties “to
refrain from taking actions that de-stabilize the
situation.”9 Over the next five years ASEAN and
China entered into fruitless negotiations on a Code
of Conduct (CoC) in the South China Sea.
In December 2002, the two sides expediently
agreed to a nonbinding political statement titled
“Declaration on Conduct of Parties in the South
China Sea.” Point 5 stated:
The Parties undertake to exercise self-restraint
in the conduct of activities that would complicate
or escalate disputes and affect peace and stability
including, among others, refraining from
action of inhabiting on the presently uninhabited
islands, reefs, shoals, cays, and other features
and to handle their differences in a constructive
manner [emphasis added].
The declaration of conduct (DoC) set out four
trust- and confidence-building measures and five
voluntary cooperative activities. Significantly, the
parties reaffirmed “that the adoption of a code of
conduct in the South China Sea would further promote
peace and stability in the region and agree to
work, on the basis of consensus, toward the eventual
attainment of this objective [emphasis added].”10 It
took another 25 months before ASEAN and China
reached agreement on the terms of reference for
a Joint ASEAN-China Working Group (JWG) to
implement the DoC.11 The JWG spent the next six
years debating 21 drafts before they agreed in 2011
on Guidelines to Implement the DoC.12
In January 2012, ASEAN and China agreed to set
up four expert committees on maritime scientific
research, environmental protection, search and
rescue, and transnational crime based on four of
the five cooperative activities included in the 2002
DoC. Significantly, no expert committee on safety
of navigation and communication at sea was established
due to its contentious nature.
Another two years passed before ASEAN and
China at long last commenced their first formal
consultations on a CoC within the framework of
the Joint Working Group on the Implementation of
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
6 |
the DoC. As of February 2015, despite subsequent
meetings of the JWG, not one trust- or confidencebuilding
measure or cooperative activity has
commenced.
Most recently, at an ASEAN Foreign Ministers
Retreat held in Malaysia in late January 2015,
according to the ASEAN chair, “the ministers
instructed our senior officials to intensify efforts
towards achieving the full and effective implementation
of the Declaration on Conduct of Parties in
the South China Sea and work vigorously towards
the early conclusion of the Code of Conduct on the
South China Sea.”13
Since 2009, when Beijing officially tabled its
ambitious nine-dashed line map claiming all the
land features (rocks, reefs, submerged shoals and
islands) and adjacent waters, comprising an estimated
62 percent or more of the South China Sea,14
China has undertaken a number of assertive – if
not aggressive – actions to consolidate and expand
its control over the South China Sea. These actions
include but are not limited to:
• harassment of Vietnamese, Filipino, and other
fishermen operating in waters within China’s
nine-dashed line in the South China Sea,
including ramming, sinking, destroying and/
or stealing property, and arrest of their crews
and confiscation of their fish catch;
• threats to and/or cutting the cables of ships
engaged in seismic surveys within the EEZs of
Vietnam and the Philippines;
• the virtual annexation of Scarborough Shoal15
and the contestation of Second Thomas Shoal
– which the Philippines claims and on which
it maintains a small garrison of marines –
by permanently stationing armed Chinese
maritime enforcement vessels in surrounding
waters and harassing Filipino attempts to
resupply the marines;
• encouragement of Chinese fishermen to poach
in waters where China’s nine-dashed line claim
overlaps with the EEZs of littoral states;
• coercion by Chinese maritime law enforcement
ships to force Southeast Asian authorities
to release Chinese fishermen who have been
apprehended for illegal fishing;
• deployment of the HD 981 mega oil drilling
platform, accompanied by an armada of 80 to
100 escorts (including naval warships, maritime
enforcement agency vessels, tugboats, and
fishing craft associated with China’s militia)
into Vietnam’s EEZ and the use of such tactics
as ramming and high-pressure fire hoses
against Vietnamese Coast Guard and Fisheries
Surveillance Force vessels;
• harassment and other dangerous encounters
with U.S. Navy ships and aircraft operating
in international waters and airspace in the
South China Sea (e.g., USS Cowpens and P-8
Poseidon maritime patrol aircraft); and
In January 2012, ASEAN and
China agreed to set up four expert
committees on maritime scientific
research, environmental protection,
search and rescue, and transnational
crime based on four of the five
cooperative activities included in the
2002 DoC. Significantly, no expert
committee on safety of navigation and
communication at sea was established
due to its contentious nature.
| 7
• extensive land reclamation and construction
activities on five features in the South China
Sea, including the construction of an airstrip
and docks capable of berthing military
vessels.16
Throughout ASEAN’s years of development, its
major policy documents and treaties included
implicitly or explicitly Southeast Asia’s maritime
domain within their geographic scope. As noted
above, the SEANWFZ defined Southeast Asia’s
geographic boundaries as including the land territory,
internal waters, territorial sea, archipelagic
waters, EEZs, continental shelves, the seabed and
the subsoil thereof, and the airspace above them.
China’s assertive and aggressive actions, combined
especially with recent land reclamation activities,
represent nothing less than the slow and deliberate
excision of ASEAN’s maritime heart from the
Southeast Asian region. China’s actions threaten to
undermine ASEAN’s 48-year endeavor to bolster
Southeast Asia’s autonomy from external intervention
through altering “facts on the ground” by
annexing the South China Sea and placing it under
Chinese administrative and military control.
China also aims at undermining U.S. alliances and
security guarantees by using civilian maritime
enforcement ships and fishing fleets to conduct
carefully orchestrated acts of intimidation and
coercion against the Philippines and Vietnam,
advancing China’s physical control over the South
China Sea – a stratagem to which the United States
has yet to work out an effective response. Finally,
China seeks to exploit differences among ASEAN
members and draw ASEAN into East Asian exclusivist
security arrangements, thus undermining
ASEAN’s centrality in regional security affairs.17
The next sections offer proposals to impose costs
on China’s unilateral efforts to change the status
quo in Southeast Asia’s maritime domain.
I I . U.S. LEADERSHIP AND
LEVERAGING ALLIANCES AND
PARTNERSHIPS
It is unlikely that any one cost imposition strategy
will dissuade China from its present course of
action. It is more likely that multiple overlapping
cost imposition strategies implemented by various
sets of actors will be more effective. This section
considers two options for the United States acting
in part on its own but also in conjunction with
allies and security partners – an “information warfare
campaign” and joint and combined exercises
and deployments between coast guards.
First, the United States should take the lead in a
campaign of “information warfare” to publicize
details of Chinese unilateral destabilizing activities
in the South China Sea, ensuring that this
information is put in the public domain for use
by the media, scholars, security specialists, other
analysts, and elected officials. For example, the
Defense Department should be required to include
a detailed section on Chinese activities in the
South China Sea in its Annual Report to Congress:
Military and Security Developments Involving the
People’s Republic of China. The commander of
the U.S. Pacific Command should be required to
report in detail on Chinese activities in the South
China’s assertive and aggressive
actions, combined especially with
recent land reclamation activities,
represent nothing less than the slow
and deliberate excision of ASEAN’s
maritime heart from the Southeast
Asian region.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
8 |
China Sea in his or her annual posture statement
to the respective Armed Services Committees of
the House and Senate.
U.S. officials who attend ASEAN-related security
meetings, such as the ARF, Expanded ASEAN
Maritime Forum, and ASEAN Defence Ministers’
Meeting Plus should use these occasions to provide
detailed background briefings on Chinese activities
in the South China Sea. U.S. scholars who regularly
attend Track 1.5 and Track 2 regional workshops
and conferences should be offered briefings on a
voluntary basis.
The Department of Defense and the State
Department should provide funds and other assistance
to American-based think tanks to research
and report on current Chinese activities in the
South China Sea and how these are likely to impact
adversely on regional security. Funding should be
made available to support specialized conferences
and workshops to which Southeast Asian scholars
and officials are invited.
The purpose of this “information warfare” campaign
is to maintain unrelenting public pressure on
China to be more transparent about its activities
and to bring its actions into accord with regional
norms such as the self-restraint clause in the DoC.
Another aim of this campaign would be to counter
Chinese propaganda.
Second, the United States should develop a strategy
to counter Chinese activities using primarily
– but not exclusively – nonmilitary assets. Under
this new strategy, the United States should avoid
directly confronting People’s Liberation Army
Navy warships with its own naval forces. Nor
should the U.S. Navy directly confront Chinese
paramilitary law enforcement agency ships and
fishing craft because this would raise the risk of
conflict and/or scare off some Southeast Asian
states.
The United States should implement a cost imposition
strategy involving joint and combined
cooperation between civilian maritime agencies of
like-minded external powers and the Philippines
and Vietnam. This strategy should be carried out
on three levels: among like-minded ASEAN dialogue
partners (Australia, Japan, South Korea, New
Zealand, and India); multilaterally with regional
allies and security partners; and bilaterally with
regional states.
The United States should use its two trilateral
security dialogues (U.S.-Japan-Australia and
U.S.-Japan-India), at the same time promoting a
quadrilateral security dialogue with India, Japan,
and Australia, to coordinate their approaches to
ASEAN and individual Southeast Asian states. For
example, in 2014 Vietnam was reported to have
conducted diplomatic soundings for a trilateral
security dialogue with Japan and the United States.
This sort of ad hoc arrangement should be pursued.
Japan, the United States, and Australia are currently
providing material assistance to the
Philippines to improve its capacity for maritime
security, including the provision of patrol boats
and training. This assistance should be stepped up
and better coordinated through closer cooperation
bilaterally and multilaterally. It could serve as a
model for similar activities by other external and
regional coast guards.
The United States should implement
a cost imposition strategy involving
joint and combined cooperation
between civilian maritime agencies
of like-minded external powers and
the Philippines and Vietnam.
| 9
At the same time, the United States and other
maritime powers, such as Japan, could conduct
their own bilateral engagement activities. The
United States and Vietnam already have an agreement
for cooperation between their Coast Guards,
but this entails training on land in the form of
short courses. U.S.-Vietnam cooperation now
needs to move offshore in the form of joint training
exercises that gradually expand their scope from
search and rescue to anti-piracy drills and maritime
surveillance patrols.
Vietnam recently joined the Proliferation Security
Initiative. This provides an opportunity for the
United States to help Vietnam further develop its
capacity for maritime domain awareness.
The purpose of these maritime interactions is to
build trust to reach the stage where both sides can
agree to exchange observers on each other’s ships
and patrol aircraft. Initially this exchange could
take place during planned training exercises; over
time it could lead to the cross-posting of Coast
Guard officers for longer deployments. Joint patrols
should be carried out either in the EEZs of littoral
states or on the high seas that are notionally within
China’s nine-dashed line.
This model could be expanded to include similar
activities between the U.S. and Philippine
Coast Guards, the Japanese and Philippine Coast
Guards, and the Philippine and Vietnamese Coast
Guards. Over time, these bilateral arrangements
could be expanded to trilateral or even multilateral
exercises. China would be confronted with the
uncertainty of directly challenging vessels containing
maritime officials from the United States or
its treaty allies. This could involve, for example,
the deployment of U.S. and Japanese Coast Guard
personnel on Coast Guard vessels operated by the
Philippines and Vietnam. It could also involve a
mix of Filipino and Vietnamese maritime enforcement
personnel.
U.S. Navy maritime surveillance aircraft based in
the Philippines under the recent Enhanced Defense
Cooperation Agreement could operate flights with
Philippine military observers. U.S. Navy maritime
surveillance aircraft could be deployed over the
South China Sea and land in Vietnam on a temporary
basis before returning to their base in the
Philippines. U.S. maritime patrol aircraft could
also conduct joint maritime surveillance missions
with their Filipino and Vietnamese counterparts.
U.S. military personnel could fly on Philippine and
Vietnamese reconnaissance planes as observers
and vice versa.
Regional security analysts expect China to continue
mounting annual aggressive naval displays
in the South China Sea from May to August. This
provides an opportunity for the U.S. Navy and
Japan Maritime Self-Defense Force to organize
a series of continuing maritime exercises and
surveillance flights with Vietnam, the Philippines
and other like-minded regional states prior to the
arrival of Chinese forces each year. The details of
all operations should be completely transparent to
all regional states, including China.
The United States and its treaty allies should
conduct regular naval operations designed to
assert freedom of navigation and overflight in
the waters and airspace near the artificial islands
currently being built by China, to prevent China
from making excessive claims to maritime space or
intimidating regional naval forces.
The indirect cost imposition strategy provides
the means for the United States to give practical
expression to its declaratory policy of opposing
intimidation and coercion to settle territorial
disputes. An indirect strategy does not require
the United States to directly confront China. This
strategy puts the onus on China to decide the risk
of confronting mixed formations of Coast Guard
and naval vessels and aircraft involving the United
States, Japan, the Philippines, Vietnam, and other
like-minded states.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
10 |
These combined maritime and air forces would
operate in international waters and airspace that
traverse China’s nine-dashed line. Interchanging
the naval and aircrews in all exercises could
promote deterrence. The objective would be to
maintain a continuous naval and air presence to
deter China from using intimidation and coercion
against Vietnam, the Philippines, and other
regional states by raising the risk of directly
confronting the United States or a U.S. treaty ally.
The scope and intensity of these exercises could be
altered in response to the tempo of Chinese naval
activities.
I I I . AN INDIRECT COST IMPOSITION
STRATEGY FOR ASEAN
ASEAN as an organization is unlikely to support
collectively the indirect cost imposition strategy
suggested above, because that would lead to
direct political confrontation with China. ASEAN,
however, could pursue an indirect cost imposition
strategy using legal, diplomatic, and political
means that would reinforce Southeast Asia’s
autonomy and ASEAN-central role in the region’s
architecture. A central feature of this strategy
might be adopting an ASEAN Treaty of Amity and
Cooperation in Southeast Asia’s Maritime Domain
(hereafter “the Treaty”).18
The geographical limits of Southeast Asia’s
maritime domain, following SEANWFZ, should
include the respective continental shelves and EEZs
of all ASEAN members (and future members).19
This treaty should have a protocol of accession
inviting all ASEAN dialogue partners to sign. This
treaty would be in essence a binding code of conduct
for Southeast Asia’s maritime domain.
ASEAN’s dogged pursuit of confidence-building
measures under the DoC and a binding Code
of Conduct in the South China Sea with China,
while an important security goal, is fundamentally
flawed for five reasons:
First, this approach reinforces divisions in
ASEAN between (a) front-line claimant states, the
Philippines and Vietnam, and the other claimant
states, Brunei and Malaysia, and (b) claimant and
nonclaimant states, thus undermining ASEAN
unity.
Second, China will not agree to a binding CoC that
has treaty status; this will result in a compromise
CoC that falls short of meeting the security and
other concerns of Southeast Asia’s claimant states.
Third, because ASEAN and China have agreed to
proceed with consultations on the drafting of a
CoC on the basis of consensus, China can delay
these proceedings indefinitely.
Fourth, because there is no agreed road map and
time limit on this process, China can continue to
consolidate its presence in the South China Sea and
extend its de facto control over waters that overlap
with the EEZs of littoral states.
The United States and its treaty
allies should conduct regular
naval operations designed to
assert freedom of navigation
and overflight in the waters
and airspace near the artificial
islands currently being built by
China, to prevent China from
making excessive claims to
maritime space or intimidating
regional naval forces.
| 11
Fifth, the geographical area of ASEAN’s proposed
CoC cannot be defined until China either clarifies
or withdraws its nine-dashed line claim to the
South China Sea.
Why should ASEAN adopt a Treaty of Amity
and Cooperation in Southeast Asia’s Maritime
Domain? There are five reasons:
First, the security of Southeast Asia’s maritime
domain is indivisible for all ASEAN members,
whether coastal or landlocked states.
ASEAN’s proposed CoC, because it is focused
solely on the South China Sea, does not cover
many other waterways of critical importance to
ASEAN states, including maritime approaches
to the Malacca Strait on the western seaboards of
Myanmar, Thailand, and Indonesia; the Gulf of
Thailand; the waters surrounding the Indonesian
archipelago; or waters to the north, east, and south
of the Philippines archipelago.
Second, international law, including the United
Nations Convention on the Law of the Sea
(UNCLOS), applies equally throughout Southeast
Asia’s maritime domain and not just the South
China Sea. It is applicable to all states.
Third, the Treaty would incorporate the norms and
legal obligations that are unlikely to be included in
the CoC.
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 center of relations with outside maritime
powers. The Treaty would overcome differences
between claimant and nonclaimant states by
making all ASEAN members stakeholders,
including Cambodia, Myanmar, and landlocked
Laos.20 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 of 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, with particular attention
to eliminating excessive baselines and clearly
distinguishing islands from rocks for purposes of
maritime delimitation.
The Treaty should include provisions 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 overflight.
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.
...the security of Southeast Asia’s
maritime domain is indivisible
for all ASEAN members, whether
coastal or landlocked states.
Indirect Cost Imposition Strategies in the South China Sea:
U.S. Leadership and ASEAN Centrality A P R I L 2 0 1 5
12 |
The Treaty should incorporate references to
previous ASEAN treaties, such as the TAC
and SEANWFZ, and international maritime
conventions such as UNCLOS, the Convention
for the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation, Code for
Unplanned Encounters at Sea, and other relevant
conventions.
The Treaty should include a binding commitment
to resolve all disputes through peaceful means,
including political-diplomatic negotiations, thirdparty
mediation, or international legal arbitration.
The Treaty should include a provision for the
demilitarization of islands and rocks and prohibit
the deployment of specified types of weapon
systems, such as land-based anti-ship missiles.
However, for purposes of general security,
including protection against piracy and armed
criminals, the Treaty should permit the stationing
of coast guard and police personnel on occupied
features.
The Treaty should contain a provision requiring
all signatories to cooperate in marine scientific
research, marine pollution, fisheries management,
search and rescue, anti-piracy, and other agreed
areas.
Finally, the Treaty should make provision for
setting up a mechanism to handle complaints and
disputes that may arise. Such a mechanism should
be included under the ASEAN Political-Security
Community Council.
The proposals presented in the paper are unlikely
on their own to cause China to cease its unilateral
destabilizing activities in the South China Sea.
The recommendations are designed to increase
political pressure on China to act in conformity
with international law and regional norms by
taking the initiative away from China. In addition
to actions that can be undertaken by the United
States and like-minded ASEAN dialogue partners
in cooperation with claimant states, the above
proposals are also aimed at reinforcing Southeast
Asia’s autonomy.
Finally, the proposals in this paper should be
combined with other cost imposition strategies
proposed by other papers in this series to create a
web of multiple overlapping pressures on China to
accept the new status quo.
| 13
ENDNOTES
1. Association of Southeast Asian Nations, The Asean Declaration (Bangkok
Declaration) Bangkok, 8 August 1967 (August 8, 1967), http://www.asean.
org/news/item/the-asean-declaration-bangkok-declaration. At the meeting,
Malaysia was represented by its deputy prime minister.
2. Association of Southeast Asian Nations Foreign Ministers Meeting, “Joint
Press Statement Special ASEAN Foreign Ministers Meeting To Issue The
Declaration Of Zone Of Peace, Freedom And Neutrality Kuala Lumpur, 25-26
November 1971” (November 26, 1971), http://www.asean.org/communities/
asean-political-security-community/item/joint-press-statement-specialasean-
foreign-ministers-meeting-to-issue-the-declaration-of-zone-ofpeace-
freedom-and-neutrality-kuala-lumpur-25-26-november-1971.
3. Association of Southeast Asian Nations, Treaty of Amity and Cooperation
in Southeast Asia Indonesia, 24 February 1976 (February 24, 1976), http://www.
asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asiaindonesia-
24-february-1976-3.
4. Association of Southeast Asian Nations, Treaty on the Southeast Asia Nuclear
Weapon-Free Zone (December 15, 1995), http://www.asean.org/news/item/
treaty-on-the-southeast-asia-nuclear-weapon-free-zone.
5. Association of Southeast Asian Nations, Declaration of ASEAN Concord
II (Bali Concord II) (October 7, 2003), http://www.asean.org/news/item/
declaration-of-asean-concord-ii-bali-concord-ii.
6. Association of Southeast Asian Nations, ASEAN Political-Security Community
Blueprint (March 1, 2009), http://www.asean.org/archive/5187-18.pdf.
7. For an overview of ASEAN efforts to implement the DoC and reach
agreement with China on a Code of Conduct, see Carlyle A. Thayer, “ASEAN,
China and the Code of Conduct in the South China Sea,” The SAIS Review of
International Affairs, 33 no. 2, (Summer-Fall 2013), 75-84.
8. ASEAN Ministerial Meeting, 1992 ASEAN Declaration on the South China
Sea (July 22, 1992), http://cil.nus.edu.sg/rp/pdf/1992%20ASEAN%20
Declaration%20on%20the%20South%20China%20Sea-pdf.pdf.
9. ASEAN Foreign Ministers, “1995 Joint Communiqué of the 28th ASEAN
Ministerial Meeting,” quoted in “Documents on ASEAN and the South China
Sea” (Singapore: National University of Singapore Centre for International
Law, June 2011), 33, http://cil.nus.edu.sg/wp/wp-content/uploads/2011/06/
Documents-on-ASEAN-and-South-China-Sea-as-of-June-2011.pdf.
10. Association of Southeast Asian Nations, Declaration on the
Conduct of Parties in the South China Sea (November 4, 2002), Point
10, http://www.asean.org/asean/external-relations/china/item/
declaration-on-the-conduct-of-parties-in-the-south-china-sea.
11. Association of Southeast Asian Nations, “ASEAN-China Senior Officials
Meeting on the Implementation of the Declaration on the Conduct of
Parties in the South China Sea Kuala Lumpur, 7 December 2004,” December
7, 2004, http://www.asean.org/asean/external-relations/china/item/
asean-china-senior-officials-meeting-on-the-implementation-of-thedeclaration-
on-the-conduct-of-parties-in-the-south-china-sea-kualalumpur-
7-december-2004; and Association of Southeast Asian Nations, “Terms
of Reference of the ASEAN-China Joint Working Group on the Implementation
of the Declaration on the Conduct of Parties in the South China Sea,”
December 7, 2004, http://www.asean.org/asean/external-relations/china/
item/terms-of-reference-of-the-asean-china-joint-working-group-on-theimplementation-
of-the-declaration-on-the-conduct-of-parties-in-the-southchina-
sea.
12. Tran Truong Thuy, “Recent Developments in the South China Sea: From
Declaration to Code of Conduct,” in The South China Sea: Towards a Region
of Peace, Security and Cooperation, ed. Tran Truong Thuy (Hanoi: The Gioi
Publishers, 2011), 104.
13. Kyodo News Agency, “ASEAN seeks early conclusion of a maritime pact for
South China Sea,” South China Morning Post, January 28, 2015.
14. United States Department of State, Bureau of Oceans and International
Environmental and Scientific Affairs, Limits in the Seas: China: Maritime Claims
in the South China Sea, No. 143 (December 5, 2014). The media and many South
China Sea specialists cite figures upward of 80 or even 90 percent. As the State
Department analysis says on page 4, “The exact percentage depends upon the
assumed geographic extent of the South China Sea.”
15. Carlyle A. Thayer, “The China-Philippines Face Off at
Scarborough Shoal: Back to Square One?,” E-International
Relations, April 26, 2012, http://www.e-ir.info/2012/04/26/
the-china-philippines-face-off-at-scarborough-shoal-back-to-square-one/.
16. For an analysis of the most recent satellite imagery taken by
Airbus Defence and Space, see Michelle FlorCruz, “South China Sea Land
Reclamation: Satellite Images Show Chinese Progress on Made-Made Island,”
International Business Times, February 17, 2015, http://www.ibtimes.com/
south-china-sea-land-reclamation-satellite-images-show-chinese-progressman-
made-1818986.
17. Carlyle A. Thayer, “Southeast Asia: Patterns of Security Cooperation”
(Australian Strategic Policy Institute, 2010), 13-30.
18. This proposal is a modification of an idea first articulated by the author
in “Maritime Security: Towards a Regional Code of Conduct” (presentation to
Eighth Council for Security Cooperation in the Asia Pacific General Conference,
“Dangers and Dilemmas: Will the New Regional Security Architecture Help?,”
Hanoi, November 21-22, 2011). This proposal was refined in two subsequent
presentations: Carlyle A. Thayer, “Positioning ASEAN between Global Powers”
(presentation to the 14th Regional Outlook Forum, Institute of Southeast
Asian Studies, Singapore, January 5, 2012); and Carlyle A. 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. Such as Timor-Leste.
20. Cambodia and Myanmar were the only 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 for
the first time in ASEAN’s history. 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.
About the Center for a
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