The 27th Asean Summit in Kuala Lumpur ended on an historic note with the adoption of the Kuala Lumpur Declaration on the establishment of the Asean Community and Asean 2025.
As emphasised by this year’s chairman, Prime Minister Datuk Seri Najib Razak: “The Asean Community is based on three pillars: the Asean Political and Security Community, the Asean Economic Community and the Asean Socio-Cultural Community.”
The issue of the South China Sea (SCS), which is the world’s second busiest international sea lane conveying a quarter of global crude oil and oil products, is considered part of the political security of the “Asean way” of solving regional disagreement. The coastal states, major maritime powers and shipping industry are concerned about the security of their merchant vessels plying this sea lane, although, under the United Nations Convention on the Law of the Sea (UNCLOS 1982) there exists the principle of freedom of navigation, which obliges user states to observe their rights and respect the rights of the Exclusive Economic Zones (EEZ) of sovereign states.
Of immediate concern is the overlapping claims in the Spratly Islands, which stretch over 500 nautical miles from north to south, by Brunei, China, Malaysia, the Philippines, Vietnam and Taiwan. The claim is pursuant to the EEZ concept as stated in Article 55 of UNCLOS 1982, owing to the strategic interests and their freedom to exploit sea-bed resources, such as hydrocarbon.
China, Vietnam, Malaysia, the Philippines and Taiwan have stationed their troops on the islands or reefs within the Spratly area.
This discussion highlights Asean’s adoption of security mechanisms in strengthening stability and prosperity in the SCS, including pursuing other suitable concepts to enhance security in the maritime domain.
FIRST, Asean has adopted a maritime diplomacy that complies with international and regional maritime agreements to promote peace and security in the SCS. Two important foundations to attain this are the formation of Asean in 1967, and the Agreement on the Zone of Peace, Freedom and Neutrality (ZOPFAN) adopted in 1971 in Kuala Lumpur.
Other key components of ZOPFAN are the Treaty of Amity and Cooperation 1998 (TAC) and the Treaty of Southeast Asian Nuclear Weapon Free Zone 1997 (SEANWFZ). As testimony of its relevancy, TAC 1998 was subsequently opened for accession by states outside Asean, such as India, China, Japan, South Korea, Australia, New Zealand and the United States.
On maritime diplomacy, the claimant states of the SCS and their political leaders pursue personal diplomacy in solving major maritime issues in accordance with international law. A case in point is when former prime minister Tun Abdullah Ahmad Badawi and the Sultan of Brunei Sultan Hassanal Bolkiah signed the Letters of Exchange on March 16, 2009, to end the maritime territorial dispute in the SCS between the two countries. The agreement stipulated that Blocks L and M initially belonged to Malaysia (Petronas Carigali Sdn Bhd), but, under the EEZ in accordance with Articles 56 and 57 of UNCLOS 1982, it rightfully belonged to Brunei.
With that, Malaysia gained from two aspects. Petronas was invited by Brunei to enter into an agreement to develop Blocks CA1 and CA2 (formerly Blocks L and M) under the concept of “Special Arrangement Area”, where oil and gas revenue in the disputed area would be shared between the two states. Also, both agreed to the existence of “unsuspendable rights of maritime access” which guaranteed the right of movement of Malaysian vessels in Brunei territorial waters subject to Brunei’s laws and regulations. This personal diplomacy advocated by Brunei and Malaysia should be emulated.
SECOND is the Asean-China Declaration on the Code of Conduct of Parties in the SCS (DoC) signed on Nov 4, 2002. The concerned parties agreed to resolve territorial disputes through peaceful means in accordance with international law. But, there are caveats to the DoC. It is not a formal code of conduct and non-binding. It does not enumerate sanctions in the event of infringement and does not include Taiwan. DoC represents a political statement meant to reduce tension and to engage in cooperative activities.
Asean and other claimants in the SCS would prefer to negotiate with Beijing on a multilateral basis to increase their advantage and to lessen China’s superiority in the region.
In 2012, Asean formulated the Code of Conduct (CoC) in the SCS to upgrade the level of conduct and commitment as a rule-base treaty among claimant states.
Is the CoC the answer to the current tension in the Spratly Islands? Will it stop claimant states from taking provocative actions? The CoC is only a crisis management tool, it does not resolve the maritime dispute.
THIRD is the formulation of a framework of Prevention of Incident at Sea (INCSEA) or navigational code of conduct. The arrangements are to promote a culture of cooperative security at sea. INCSEA should be established between Asean and China, and between China and the United States.
The first INCSEA agreement in the maritime domain was established between the Soviet Union Navy and the US Navy in 1972 during the Moscow Summit and has proven effective in regulating interaction of both fleets in the high seas.
Indonesia and Malaysia signed an INCSEA agreement in 2001. In reality, the value of regional INCSEA lies in the obligation of the Southeast Asian coastal states to consult regularly on maritime security matters, prevent collisions at sea and in the air that could affect relations among regional states.
FINALLY, establishing a light footprint in the form of an “Asean Maritime Peacekeeping Operations” for deployment in troubled waters in the region is the most suitable concept. This maritime peacekeeping force has to perform two major tasks: maintain the safety and security of sea lanes of communication at all times and deter military skirmishes. This commitment demonstrates Asean’s concerted effort towards commonality of maritime security interests, particularly in the surveillance of the Spratly Islands.
Lasting peace and stability in the SCS require political will of the major stakeholders namely, Asean member states, China and the US. Hence, it is important for all to maintain freedom of sea for the transportation of strategic commodities which contribute towards regional economic development and prosperity.
The writer is senior fellow, Department of Strategic, National Defence University of Malaysia, and former military adviser at the Permanent Mission of Malaysia to the UN in New York