Regional Maritime Security

and the Role of ASEAN

Part 2 of 2
Emeritus Professor Carlyle A. Thayer
Presentation to Strategy and Policy in the Indo-Pacific
National Security College, The Australian National University
Canberra, November 28, 2019
ASEAN and the Code of Conduct
in the South China Sea
 What is Militarization?
To give a military To make preparations
character to… for war

Dual civil-
military

Red Line?
Chinese Militarisation in 2018
• Military Cargo Aircraft
• Xian Y-7 and Shaanxi Y-8
transport
• Mobile Electronic Jammers
• Mischief Reef
• Anti-ship Cruise Missiles
• YJ-62 anti-ship cruise missile
• Surface-to-Air Missiles
• HQ-9 long range active radar
homing
• Surface-to-Air Missiles,
Woody Island, Paracels
• Nuclear capable bomber,
Woody Island
 Haiyang Dizhi 8

AIS
Track-
ing

Vanguard Bank Standoff July-October 2019

China Coast
Guard ship
harasses service
vessels operating
in LD-3P block
operated by
Russia’s Rosneft
Vietnam
China Coast
Guard,
Maritime
Militia and
Fishermen
active in
Philippine,
Vietnamese
and Malaysian
waters
 U.S. Freedom of
Navigation Operations and Overflight
• Assert freedom of navigation and overflight
rights and freedoms worldwide under UNCLOS
• Freedom of Navigation Operational Patrols -
FONOPS
• No acquiescence to unilateral acts
• Highlight UNCLOS navigation provisions to
protect maritime rights worldwide
• Triple track – diplomatic representations,
operational assertions and bi- and multi-lateral
consultations
 U.S. FONOPS Under
Obama Administration
No US Navy Ship Date Location
.
1. USS Lassen October Subi Reef, Northeast
(DDG-82) 27, 2015 Cay, Southwest Cay,
South Reef, and Sandy
1991-2018 Cay
2. USS Curtis January Triton Island
Wilbur (DDG-54) 29, 2016
3. USS William P. May 10, Fiery Cross Reef
Lawrence (DDG- 2016
110)
4. USS Decatur Oct 2016 Islands in the Paracel
(DDG-73) archipelago
5. USS Nov 26, Paracels
Chancellorsville 2018
(CG-62}

Chart Left: US FONOPS, 1991-2018 (<2 excluded)

Compiled by Luc Tuan
 1
USS Dewey May 24, Mischief Reef and
U.S. FONOPS (DDG-105) 2017 other artificial islands
2
UNDER TRUMP USS Stethem Jul 2, Triton Island
(DDG-63) 2017
ADMINISTRATION, 3
USS John S. Aug 10, Mischief Reef
2017-2018 McCain (DDG- 2017
56)
4
USS Chafee Oct 10, Paracel Islands
*protest excessive (DDG-90) 2017
5
maritime claims USS Hopper Jan 17, Scarborough Shoal
(DDG-70) 2018
*protest prior 6
USS Mustin March Mischief Reef
notification of (DDG-89) 23, 2018
7
innocent passage USS Higgins May 27, Tree, Woody, Triton
(DDG-76) and 2018 and Lincoln islands,
USS Antietam Paracels
(CG-54)
8
USS Decatur Sept 30, Gaven and Johnson
(DDG 31) 2018 Reefs
 U.S. FONOPS, 2019

9 USS McCampbell (DDG-85) January 7, 2019 Paracels

10 USS Preble (DDG-88) & USS February 2019 Mischief Reef
Spruance (DDG-111)
11 USS Preble (DDG-88) & USS May 6, 2019 Gaven and Johnson Reefs,
Chung Hoon (DDG-93) Spratlys

12 USS Preble (DDG-88) May 19, 2019 Scarborough Shoal

13 USS Wayne E. Meyer (DDG- Aug 28, 2019 Fiery Cross and Mischief
108) Reefs
14 USS Wayne E. Meyer (DDG- Sept 13, 2019 Paracels
108)
Continuous Bomber Presence Patrols
 Single Draft South China Sea
Code of Conduct Negotiating Text
Overview of Diplomatic Efforts

DOC = Declaration on
Conduct of Parties in the
DOC 2002 South China Sea
ASEAN
Statements
1992 & 1995 ASEAN-
China
exchange
Draft Codes
of Conduct
March 2000
Declaration on Conduct of Parties in the
South China Sea (DOC )
• 5. 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.
• November 2002 (non-binding political statement)
 Declaration on
Conduct of Parties in the South China Sea
Article 5 - Build Trust and Confidence
a. holding dialogues and exchange of views as appropriate
between their defense and military officials;
b. ensuring just and humane treatment of all persons who are
either in danger or in distress;
c. notifying, on a voluntary basis, other Parties concerned of
any impending joint/combined military exercise; and
d. exchanging, on a voluntary basis, relevant information.
 Declaration on
Conduct of Parties in the South China Sea
Article 6 - Cooperative Activities
• a. marine environmental protection;
• b. marine scientific research;
• c. safety of navigation and communication at sea;
• d. search and rescue operation; and
• e. combating transnational crime, including but not limited
to trafficking in illicit drugs, piracy and armed robbery at sea,
and illegal traffic in arms. [illegal unregulated unreported fishing]
Declaration on Conduct of Parties in the
South China Sea (DOC)
• 10. The Parties concerned reaffirm 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,
towards the eventual attainment of this
objective.
• November 2002
Major Turning Points, 2004-2012

ASEAN’s
Proposed
Guidelines to Elements of a
Implement the Regional COC
DOC 2011 June 13, 2012
Terms of
Reference
ASEAN-China
Joint Working
Group 2004
 Guidelines to Implement the DOC
• “ASEAN will continue its current practice of consulting
among themselves before meeting with China.”
• Original draft (August 2005)
• After twenty-one successive drafts:
• “The Parties to the DOC will continue to promote
dialogue and consultations in accordance with the
spirit of the DOC.”
• Final wording (July 2011)
• China and ten ASEAN members (not ASEAN)
ASEAN-China Consultations on DOC/COC

Summit

Foreign Ministers

Senior Officials

Joint Working Group

Technical Group
Major Turning Points, 2012-16

2013 Philippines files

Claim against China
under UNCLOS

Hotline &
ASEAN CUES
Consensus August 2016
ASEAN’s 6 July 24-25,
Principles on 2016
the SCS July
20, 2012
CUES = Code for Unplanned
Encounters at Sea
Major Turning Points, 2017-18

First
Reading
Single Draft Aug 2019
SCS COC
Framework Negotiating
Text Final Code
of the Code
of Conduct
of Conduct August 2018
by 2021?
August 2017
 Single Draft Negotiating Text
Part 2, Section c, Basic Undertaking
• i. Duty to cooperate
• ii. Promotion of practical maritime cooperation
• iii. Self-restraint/Promotion of trust and confidence
• iv. Prevention of incidents
• v. Management of incidents
• vi. Other undertakings, in accordance with international law,
to fulfil the objectives and principles of the COC
 Code of Conduct and International Law
• 1972 International Regulations for Preventing Collisions at Sea (COLREG)
• 1974 International Convention for the Safety of Life at Sea (SOLAS)
• 1979 International Convention on Maritime Search and Rescue (SAR)
• 1988 Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (SUA)
• 1990 International Convention on Oil Pollution Preparedness, Response
and Co-operation
• Operational procedures for the promotion of safety of overflight and
navigation under the International Civil Aviation Organization (ICAO) and
the International Maritime Organization (IMO)
 Single Draft Negotiating Text
• holding dialogues and exchanges of views as appropriate
between their defense and military officials
• voluntary notification of any impending joint-combined
military exercises
• voluntary exchange of relevant information
• mutual port calls of military vessels
• joint patrol on a regular basis
 Single Draft Negotiating Text

• joint military exercises among China and ASEAN Member

States on a regular basis
• notification mechanism on military activities, and to notify
each other of major military activities
• self-defence under international law, but should have due
regard for the other side’s military vessels and military
aircraft
 Single Draft Negotiating Text
• safety and communication procedures for naval ships
and aircraft as set out in the Western Pacific Naval
Symposium CUES
• joint exercises for the implementation of CUES
• MFA-to-MFA Hotline with regard to maritime
emergencies
• Procedures for managing and resolving incidents
 Single Draft Negotiating Text
• Establish bilateral and multilateral military hotlines among
defence authorities at all levels
• Shall not
• Militarize occupied features in the South China Sea;
• Blockade vessels carrying provisions or personnel for rotation;
• Declare an Air Defence Identification Zone (ADIZ) in the South
China Sea;
• Conduct simulated attacks that aim guns, missile launches, inter
alia, at targets of other countries.
 China Seeks To Bind ASEAN

d. The Parties shall establish a notification mechanism

on military activities, and to notify each other of major
military activities if deemed necessary. The Parties shall
not hold joint military exercises with countries from
outside the region, unless the parties concerned are
notified beforehand and express no objection; [CH]
 China Seeks To Bind ASEAN

3(e) Oil and gas exploration and development in

disputed waters shall be carried out through
coordination and cooperation among the littoral states
to the South China Sea, and shall not be conducted in
cooperation with companies from countries outside the
region; [CH]
 Three-Year Planning Framework, 2019-21
• China’s Premier Li Keqiang:
• “It is China’s hope the COC consultation will be finished in three
years time to that it will contribute to enduring peace and stability
in the South China Seas”
• Remarks in Singapore, November 13, 2018
• Philippines as ASEAN Dialogue Coordinator, 2018-21
• President Duterte’s term in office 30 June 2016-30 June 2022
• ASEAN Chair
• Singapore (2018), Thailand (2019), Vietnam (2020), Brunei (2021)
 Six Major Issues Remain to be Resolved
1. Geographic scope and disputed areas
2. Military activities, exercises, and militarization
3. Cooperation among Maritime Law Enforcement
Agencies
4. Dispute resolution
5. Legal status of the Code of Conduct
6. Role of third parties
 Future
• U.S.-China maritime rivalry
• Proliferation of submarines
• Increased deployment of aircraft carriers
• Unmanned underwater vehicles
• Cyber security
• Climate change
Regional Maritime Security
and the Role of ASEAN
Emeritus Professor Carlyle A. Thayer
Presentation to Strategy and Policy in the Indo-Pacific
National Security College, The Australian National University
Canberra, November 28, 2019