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[Presentation to Topic 3 EAMF: Enhancing Regional Maritime Security, Freedom
of Safety of Navigation through Practical Implementation of Confidence Building
Measures as well as Regional Instruments to Prevent and Manage Incidents at
Sea]
C'&,5.8*&$5'
I would like to thank the Organising Committee for the 3
rd
Expanded ASEAN
Maritime Forum for their invitation to speak to you today.
I am here in my private capacity and the views I express are not those of the
Australian Government or any of its departments, organisations or agencies.
The topic for this session is entitled, EAMF: Enhancing Regional Maritime
Security, Freedom of Safety of Navigation through Practical Implementation of
Confidence Building Measures as well as Regional Instruments to Prevent and
Manage Incidents at Sea. As I will note in my paper measures to prevent and
manage incidents at sea are now taking us into uncharted waters.
My presentation considers three issue areas:
1. The Purpose of Confidence Building Measures/Maritime Confidence
Building Measures
2. Developments Related to the South China Sea Since the 2
nd
EAMF
3. The Expanded AMF and Maritime CBMs
Issue Area 1: The Purpose of Confidence Building Measures/Maritime
Confidence Building Measures
I confess that I feel like a heretic addressing an audience of true believers on the
subject of practical implementation of CBMs because I am an agnostic or skeptic
of CBMs for at least three reasons.
First, I join fellow Australian Sam Bateman in noting that today confidence
building is viewed as a prerequisite for cooperation when the reverse should be
the case cooperation should be viewed as a confidence building measure in
itself.
All states that have acceded to the United Nations Convention on the Law of the
Sea (UNCLOS), Part IX in the case of enclosed and semi-enclosed seas should
+
cooperate with each other in the exercise of their rights and in the performance of
their duties under this Convention.
1

States that are a party to UNCLOS, Article 74(3) shall make every effort to enter
into provisional arrangements of a practical nature (when they are unable to
agree to a delimitation of their Exclusive Economic Zones [EEZ]), and, during
this transitional period, not to jeopardize or hamper the reaching of the final
agreement. Such arrangements shall be without prejudice to the final delimitation.
To summarize my first reservation, littoral states have been remiss in failing to
cooperate and also to enter into provisional arrangements set out in UNCLOS.
Cooperation is an essential confidence building measure.
Second, I am a skeptic of CBMs because they become ends in themselves. They
do no harm and they can lead to what one observer has called conference
building measures. In other words discussions of CBM practical measures can
become endless talkfests.
Third, it is not always explicit how a certain CBM will address the source of a
particular issue of concern. Sometimes a CBM is adopted because that is the
path of least resistance. Once adopted these CBMs have a life of their own.
Having laid out my three reservations let me offer the following observations:
Cooperation under the provisions of UNCLOS is a confidence building measure.
CBMs in general are designed to engender habits of cooperation to reduce
misperception, suspicion and uncertainty among states by promoting confidence,
trust, and contribute to assurance/reassurance with the objective of addressing,
lessening and eliminating tensions and the potential for armed conflict.
In other words CBMs contribute to strengthening security and peace by reducing
the dangers of armed conflict due to misunderstanding, miscalculation or
misadventure.
Maritime Confidence Building Measures (MCBMs) refer to confidence building
measures in the maritime domain, including the littoral area between land and
sea. MCBMs address both traditional and non-traditional challenges to security.

1
arL lx conLlnues: 1o Lhls end Lhey shall endeavour, dlrecLly or Lhrough an approprlaLe reglonal
organlzaLlon:
(a) Lo coordlnaLe Lhe managemenL, conservaLlon, exploraLlon and explolLaLlon of Lhe llvlng resources of
Lhe sea,
(b) Lo coordlnaLe Lhe lmplemenLaLlon of Lhelr rlghLs and duLles wlLh respecL Lo Lhe proLecLlon and
preservaLlon of Lhe marlne envlronmenL,
(c) Lo coordlnaLe Lhelr sclenLlflc research pollcles and underLake where approprlaLe [olnL programmes of
sclenLlflc research ln Lhe area,
(d) Lo lnvlLe, as approprlaLe, oLher lnLeresLed SLaLes or lnLernaLlonal organlzaLlons Lo cooperaLe wlLh
Lhem ln furLherance of Lhe provlslons of Lhls arLlcle [emphasls added].
B
Any MCBM considered by the Expanded ASEAN Maritime Forum should
recognize and respect ASEANs centrality and be guided by regional norms, in
particular, the ASEAN Way.
MCBMs should be implemented in a gradual and incremental fashion on the
basis of consensus. They should not be overly ambitious.
MCBMs should be realistic and pragmatic with clearly defined objectives on
which there is consensus. They should contribute to lessening tensions and the
potential for conflict.
MCBMs are a process. They have been likened to stepping-stones or building-
blocks that ultimately lead to community-building.
MCBMs should promote personal contact by government and military officials
and open new channels of communication.
Last but not least, the basic prerequisite for adopting a program of CBMs is that
the states concerned actually want to cooperate with one another because the
value of implementing a particular CBM is greater than maintenance of the status
quo. In other words, for each particular state implementing a CBM the benefits
should outweigh the risks of non-cooperation. All sides should benefit.
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In discussing developments in the South China Sea I knowingly walk into a
political minefield. Both facts and interpretations of these developments are
subject to debate.
This past year has witnessed an unprecedented rise in tensions in the South
China Sea.
I would like to discuss two case studies.
Case Study 1. China and the Philippines are locked in a confrontation at Second
Thomas Shoal. The Philippines maintains a small detachment of marines on the
BRP Sierra Madre (LT-57) and these marines must be provisioned with food and
water on a regular basis. The BRP Sierra Madre was beached on the shoal a
decade and a half ago and is still commissioned in the Philippines Navy.
This year Chinese Coast Guard ships physically interfered with resupply efforts.
They succeeded in the first attempt but failed in the second. China justified its
actions by alleging that the Philippines attempted to supply construction materials
and therefore violated a clause in the 2002 Declaration on Conduct of Parties in
the South China Sea to exercise self-restraint. China also alleges that the
Philippines reneged on a promise to remove the Sierra Madre. During the second
resupply effort a U.S. Navy reconnaissance aircraft made its presence known.
Case Study Two. In early May, China unilaterally deployed a mega oil drilling
platform HD 981 in what it claims are waters forming the contiguous zone off
Triton Island in the Paracels. Vietnam claims these waters form part of its
Exclusive Economic Zone.
C
When China dispatched the oilrig it was accompanied by an armada consisting of
civilian fishing craft, law enforcement vessels, and military warships. These were
joined by civilian and military aircraft. The size of the armada reportedly reached
over one hundred vessels at its height.
Vietnam protested by dispatching Coast Guard and Fishery Surveillance Force
ships that broadcasted demands in three languages that the Chinese oilrig and
armada leave Vietnamese waters.
China charged that these Vietnamese vessels attempted to interfere with the
operations of the oilrig.
The confrontation around the oilrig was unprecedented not only because of the
numbers of ships and vessels involved but also because of the tactics employed.
China expanded the safety or exclusion zone around the oilrig to distances well
in excess of international norms and took determined steps to prevent
Vietnamese vessels from entering this area.
Chinese ships and tugboats deliberately rammed Vietnamese law enforcement
vessels. These incidents lead to structural damage and injury to Vietnamese
crew members. China charged that Vietnamese boats also engaged in deliberate
ramming.
Chinese Coast Guard vessels directed their high-pressure water canons at the
bridges of their Vietnamese counterparts in an effort to demast communications
and navigational antennae.
Chinese Coast Guard ships unsheathed their deck guns, and Chinese
crewmembers deliberately trained their weapons at the Vietnamese boats. The
Vietnamese kept their deck weapons under canvass.
In one incident, removed from the oilrig, a Chinese fishing boat deliberately
smashed into and capsized a Vietnamese fishing boat trapping some of its crew
inside the bridge.
There were other scattered incidents in which Chinese fishermen threw hard
objects onto the decks of smaller Vietnamese fishing craft.
These two case studies raise larger issues. For example, Vietnam experienced a
violent outburst of violence by workers directed at Chinese-owned factories and
enterprises operating in industrial estates. The riots quickly spread to other
foreign-owned businesses. Many factories were heavily damaged or burned to
the ground, there were fatalities and a large number of injuries. China evacuated
its staff and workers.
In sum, confrontations at sea can spill over and have a larger impact. In the case
of the China-Vietnam confrontation this involved not only the factories that were
burned down or gutted, but economic relations between the two countries.
The China-Vietnam confrontation also had reverberations that affected the
general investment climate. Oil companies operating in the South China Sea are
currently busy undertaking risk analysis for current operations and future
D
investments. They are also seeking assurances that their assets will be protected
against future incidents.
On July 15-16 the confrontation abated when China withdrew its oilrig and both
sides prudently withdrew their ships and vessels in the face of an oncoming
typhoon.
A major casualty of the confrontation surrounding the deployment of the oilrig
was the erosion of strategic trust between Vietnam and China. Strategic trust can
only be built up over a long period of time but can be undermined quite easily as
this case study illustrates. If China and Vietnam had cooperated under the terms
of UNCLOS this confrontation could have been prevented.
It is uncertain whether the next year will bring a repeat of the incidents I just
described. For example, will China continue to attempt to block Philippine efforts
to resupply its marines at Second Thomas Shoal? What new tactics will be
adopted by China and the Philippines? Will their actions draw in third parties?
It is also uncertain whether China will bring its oilrig back to the same area where
it operated this year, or whether the oilrig will be deployed elsewhere in the South
China Sea, say in Reed Bank claimed both the Philippines and China.
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I now turn to my third issue area, the EAMF and MCBMs.
My research into confrontations involving civilian law enforcement ships and
fishing vessels from 2007 to the present, with one exception, has not turned up
any examples of a flag state reprimanding or punishing the captains of these
ships for acting beyond their authority.
And I am unaware of any skippers of fishing boats being reprimanded or
punished for sea robbery and violence directed against the fishing crews of other
flag states. In other words these non-state actors have been given license to act
with impunity knowing that they will be protected by their flag states naval
vessels.
This has led me to the conclusion that for certain states passivity or self-restraint
in defence of sovereignty is no virtue, and that degrading the ability of other
states ships and fishing craft to safely navigate and communicate, intimidation
and physical force is no vice. This is a serious challenge to good order at sea
and needs to be addressed as a matter of urgency.
The use of fishing boats to advance a states sovereignty claims is, in my opinion,
taking us into unchartered waters.
There are eleven ASEAN Sectoral Bodies concerned with maritime issues,
including the ASEAN Regional Forums Inter-Sessional Meeting on Maritime
Security and the ASEAN Defence Ministers Meeting Plus Expert Working Group
on Maritime Security. They both address Maritime CBMs but neither of them
directly addresses the actions of civilian law enforcement agencies, oilrigs,
E
fishing boats and the civil, economic and commercial issues raised by my two
case studies.
The time is ripe for the Expanded ASEAN Maritime Forum to navigate into these
uncharted waters. The EMAF should lay the foundation for the exploration of
Maritime Confidence Building Measures related to the deployment of law
enforcement vessels, oilrigs and fishing boats in the South China Sea with the
objective of encouraging self-restraint, promoting cooperation, building
confidence and trust, and lowering if not eliminating tensions.
Let me conclude by suggesting seven proposals for your consideration:
1. Members of the EAMF should go on record and reaffirm the obligations of
state parties to UNCLOS as follows:
pending agreement on the delimitation of overlapping EEZs to enter into
provisional arrangements (Article 74([3]);
settle their disputes peacefully (Article 279);
to exchange views through dialogue and consultations (Article 283);
to submit the dispute to conciliation (Article 284); and
cooperate in areas identified by UNCLOS (Part IX).
2. The EAMF should take note that the new security issues raised by recent
developments discussed in this paper are not being addressed by ASEANs
other sectoral bodies and the EAMF should resolve to take steps to address
these issues with a view to lowering tensions and prevent their reoccurrence.
3. The EAMF should consider steps to institutionalize itself. For example, the
EAMF should consider setting up one or more Working Groups tasked with:
Developing current programs and activities as outlined in the Report of the 2
nd

Expanded ASEAN Maritime Forum held in Kuala Lumpur, October 3, 2013.
Discussing new maritime security issues that cut across issues currently
under discussion, such as the use of oilrigs, civilian fishing boats, and law
enforcement agency ships to advance sovereignty claims. The objective here
is to identify those practices that should be discouraged and subject to self-
restraint such as deliberate ramming, the use of high-powered water cannons,
unsheathed weapons etc.
Adopt policies and procedures to clarify the legal role of fishing fleets as a
states third maritime force after the navy and civilian law enforcement
agencies. In particular, adopt policies to reduce and eliminate the use of force
or threat of force by one states fishing boats against those of another. Legal
procedures should be adopted to ensure the fair and humane treatment of
fishermen that are arrested and detained by littoral states. The confiscation of
navigational aids, communications equipment, and radar used for locating fish
should be prohibited; legal channels should be established for compensation
and restitution of unwarranted damage and illegal seizure.
The recommendations by various Working Groups could result in pilot
projects to test their feasibility. The EAMF should forward its
recommendations to the East Asia Summit.
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4. The EAMF should consider inviting industry representatives to attend its
meetings as observers. These could include representatives from broad-based
peak bodies as well as representatives from industries such as shipping, fishing,
oil and gas, etc. These representatives should be able to provide their
perspectives on how current developments affect their commercial operations
and the investment climate. These representatives should also be invited to
attend specialized Working Groups as appropriate.
5. The EAMF should recommend that the Heads of ASEAN Coast Guards
Meeting should become more proactive. Consideration should be given to non-
Coast Guard maritime law enforcement agencies (for example Vietnams
Maritime Surveillance Force that comes under the Ministry of Agriculture and
Rural Development). EAMF dialogue partners could offer further assistance in
training and capacity building.
The Heads of ASEAN Coast Guards should work out a common position to
present at the annual meeting of the Heads of Asian Coast Guard Agencies, an
organization that comprises nine ASEAN states (Laos is landlocked) as well as
Bangladesh, China, Hong Kong, India, Japan, South Korea, Maldives, Pakistan,
and Sri Lanka. ASEAN Dialogue Partners that are not members of the Asian
Coast Guard Agencies should consider joining.
6. Members of the EAMR should redouble their efforts to commit to submitting an
Annual Security Outlook to the ASEAN Regional Forum, including a section that
addresses their perspectives on maritime security issues and challenges that fall
under the purview of the EAMF.
Individual states could be invited to provide voluntary briefings on the relevant
portions of their Annual Security Outlook. Here the role of ASEANs dialogue
partners who are not directly involved in South China Sea disputes is especially
important because they can offer disinterested assessments based on their
experience to members who are in dispute.
7. The EAMF as a Track 1.5 organisation should move to develop a website that
includes annual reports of its meetings, including annexes, the papers submitted
by subject matter experts and other relevant documents. These should be
provided on a timely basis.