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Examining the Flaws of the South China Sea Code of Conduct

By Ching Chang

The South China Sea has turned into a hotspot for potential regional conflicts in recent years. Nonetheless, parties concerned have already tried their best efforts to establish certain mechanisms to prevent crisis and reduce tension together. The first significant initiative was the “Declaration on the Conduct of Parties in the South China Sea”, known as the DOC, signed by all the members of the ASEAN and the People’s Republic of China on November 4, 2002.

 Although the Article Ten of the DOC explicitly noted with “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.”, yet no substantial progress has been achieved since then. On July 20, 2011, another joint statement signed by the ASEAN members states and the PRC known as the “Guidelines for the Implementation of the DOC” was noted as another milestone for “embodying their collective commitment to promoting peace, stability and mutual trust and to ensuring the peaceful resolution of disputes in the South China Sea.” Nonetheless, the Code of Conduct was never mentioned by the later established guidelines. It may also imply the actual pessimistic situation for formulating the South China Sea Code of Conduct.

According to the present structure for negotiating the South China Sea Code of Conduct, there are several arrangements that can be challenged since they may eventually undermine the legitimacy of the COC as an effective mechanism to affect behaviors of every party involved in theSouth China Sea.

 First, the Republic of China now in Taiwan was never invited to join the COC negotiation process. It is obviously opposed by Beijing for negating the ROC presence in the international community. And all ASEAN members follow the “one China” policy as the prior condition when they established the diplomatic relationship with the PRC. It is not surprised to see that the ROC is excluded from the collective effort so far. Nonetheless, the ROC is not only a claimant of the territories and waters of the South China Se,. Taipei is a substantial occupant of a major island, Tai-Ping Island, in the South China Sea. Further, Taiwan also actively conducts various maritime activities in the South China Sea. Without Taipei’s involvement and consent, how can the South China Sea Code of Conduct be a meaningful mechanism to assure the stability and peace in the South China Sea?

The ROC Coast Guard stationed in the South China Sea.
The ROC Coast Guard stationed in the South China Sea.

Compared to Myanmar, Thailand, Cambodia, Singapore and Laos, the Republic of China should have more reasons to be involved in the negotiation process since all these ASEAN states noted above are not adjacent to the South China Sea at all. Taipei should also have the better reason than Jakarta to sit together with other claimants of the territories in the South China Sea since Indonesia is not even a claimant but only concerned of its Economic Exclusive Zone. Although Beijing frequently implies that all Taipei’s privileges and interests in the South China Sea will be guaranteed by the People’s Republic of China, the proposal has never been accepted by Taipei. Any assurance like this will not be recognized by ASEAN member states.

Second, nations’ individual interests in the South China Sea have not been totally covered by the negotiation process. As addressed by the Article Nine of the DOC, “The Parties encourage other countries to respect the principles contained in this Declaration;” how can we expect that states never involved in the negotiation process of the future South China Sea COC can be constrained by a mechanism that they never explicitly accept. Many states use the South China Sea as major sea lanes of communication to serve their maritime interests and supporting their national economic welfare. If we expect the South China Sea COC to be a meaningful document to assure the peace and stability in the South China Sea, it should allow more states to be involved in the codification process and even subsequently signing and ratifying the international decree.

Tai-ping Island in the South China Sea is substantially stationed by the ROC garrison forces after World War II.
Tai-ping Island in the South China Sea is substantially stationed by the ROC garrison forces after World War II.

Based on the flaws already mentioned, the author would like to propose a “Multi-chaptered South China Sea Code of Conduct” in order to make this document can be more sensible and functional also. The South China Sea Code of Conduct should be categorized into several chapters according to participants’ conditions. In another word, it should be modularized by function and status accordingly.

Those who are concerned with the situations in the South China Sea are encouraged to read the contents of the “Declaration on the Conduct of Parties in the South China Sea” and the “Guidelines for the Implementation of the DOC.” It is obvious that many terms are totally irrelevant to some ASEAN member states since they have no position to engage with those activities. To some extent, these ASEAN member states are so innocent to be kidnapped into a process that may not serve their true interests simply because of the plot to use ASEAN to balance the PRC in the South China Sea. On the other hand, for many states actually involved into activities in the South China Sea, the negotiation process does not consider preparing a document for them to participate so that establishing constraints on their behaviors or activities in the South China Sea is unlikely.

A multi-chaptered South China Sea Code of Conduct may allow states using the South China Sea for whatever reason to choose those chapters they would like to sign and promise to follow the code accordingly. Several chapters like environmental protection, fishery regulation, search and rescue, scientific research, climate report, oceanographic survey, anti-piracy and smuggling, nature preservation, sewage and waste process, navigation aid and regulation can be easily established with no controversy. For those codes that intentionally restrict behaviors enhancing future territory claim position, we should consider to replace the term of “claimants” into “occupants” so reducing the de jure proclamation by more objectively expressing the de facto statement.

Eleven dash line map the territory and waters in the South China Sea published by the Republic of China in 1946.
Eleven dash line map the territory and waters in the South China Sea published by the Republic of China in 1946.

This may be the only way to accommodate the Republic of China in Taipei and have it join this mechanism but not provoking Beijing. Beijing is very sensitive to anyone who violates the one China principle by accepting any term that may imply “Two Chinas” or “One China, One Taiwan.” Taipei has no intention to use the South China Sea Code of Conduct as a stage to irritate Beijing. Adopting the term of occupants to replace claimants may allow the specific chapter to be a description of realities in the South China Sea but not a statement of expressing political aspirations. The author would like to remind all the readers that without the Republic of China, the South China Sea Code of Conduct is only a self-deceived paper. Without all other states actually involved in the maritime activities in the South China Sea to promise following the terms noted in the chapters they choose to sign, the South China Sea Code of Conduct cannot be meaningful.

Chang Ching is a Research Fellow with the Society for Strategic Studies, Republic of China. The views expressed in this article are his own.

A Bill Too Far? Japan’s Security Legislation and East Asian Security Dynamics

By Justin Chock

Recently, Japan’s parliament approved a set of historic bills: Japan is no longer limited to only defending its own military hardware, and is now able to use its Japan Self-Defense Force (JSDF) to assist its allies whether through military action or logistical support. The original restriction stems from Article 9 of Japan’s constitution, stating that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” These bills now reinterpret that passage.

The first bill, as explained by the Japan Times, amends ten laws, and includes lifting the previous restrictions on the JSDF’s collective self-defense capability (the ability to defend an ally under attack rather than one’s own units). Collective self-defense will be limited to three conditions however: Japan, or a close ally, must be attacked with a result threatening Japan’s survival and posing a clear danger to people; force must be the only appropriate means available to repel the attack; and the force is the necessary minimum to negate the aforementioned threat.

The second bill is a permanent law that allows Japan to deploy the JSDF overseas to support UN-authorized military operations by providing logistic support (which Japan previously conducted with the US).

But now that the long-anticipated bills are through, how does this change the strategic calculus in East Asia? Will the maritime territorial disputes over the Senkaku/Diaoyu Islands or the South China Sea ignite over a stronger, more capable Japan?

I argue that while the bills strengthen Japan’s alliances, especially the US-Japan Alliance, this change will not lead to conflict as the bill’s opponents suggest.

From Renouncing War to Proactive Peace

A brief look at the history of Japan’s pacifist constitution is in order for understanding these recent developments. During the US occupation of Japan following World War II, America held two complimentary worries in East Asia: a remilitarized Japan and the onset of the cold war, including a stronger Soviet Union and the increasingly popular Japanese Socialist Party. The solution to both concerns was to maintain an American foothold in Japan as was the same in Germany.

But the US presence was in many ways, like the European case, invited; both General MacArthur and the newly appointed Prime Minister, Kujiro Shidehara, agreed that the introduction of the Article 9 peace clause to Japan’s new constitution would be to the benefit of all (although the originator of the idea is still under dispute). Japanese foreign policy soon adapted to Article 9, as seen by Japan’s newly elected government under Prime Minster Shigeru Yoshida. His “Yoshida Doctrine” relied on the US for security while Japan focused on its economy, and subsequent administrations did not stray far from this baseline (for example, the “Fukuda Doctrine” reiterated Japan’s peaceful orientation while adding a focus on development assistance).

But the most recent framework for Japan’s foreign policy, the “Abe Doctrine,” took a dramatic shift. Under Prime Minster Abe, Japan would no longer be held back by concerns over remilitarization, and would deepen engagement with the US while globally emphasizing “value-oriented” diplomacy. Japan as a “Proactive Contributor to Peace” expanded its defense organizations in various ways during the previous few years through the second-ever update of the US-Japan Defense Cooperation Guidelines (since its last version in 1997), the creation of a National Security Council modeling the American version, the update of the Japan National Defense Program Guidelines, and the recent expansion of Japan’s Defense Equipment and Technology Transfer program, among many other initiatives.

But the projects named above, as expansive for Japan’s defense policy as they were, all came in 2013. Even the 2015 bills were simply a formality to an already accepted change in interpretation by the Japanese cabinet in July 2014, and as noted earlier, there are many restrictions with the bills that keep the JSDF within its typical roles. Thus Japan’s security apparatus was already significantly transformed before any voting took place in the parliament, and the bills are not in and of themselves groundbreaking when seen in the backdrop of all of the other recent changes.

The Chinese Dragon’s Puff?

Supporters in Japan often argue that the bills are necessary in light of China’s growth as an Asian power, to include its military modernization and increasingly assertive foreign policy. So as a response, will China view the Japanese bills as the beginning of a security dilemma with its neighbor and force an East Asian arms race?

The answer is “not likely.” China’s response was actually quite muted. The Chinese government’s solemn but simple “urge” seems beneath its regional power standing, especially when directed to a country that some don’t even rank in the Top 5 militaries in Asia, and even more so when the US comparatively receives “strong opposition” for simply publishing a routine, annual report on China’s Military and Security developments.

But China’s restrained statement supports the idea that, despite anti-Japanese nationalistic protests and extravagant military parades commemorating WWII (read: “War of Resistance Against Japanese Aggression”), China’s focus isn’t Japan. If anything, the US and its Southeast Asian partners like the Philippines are China’s true focus with artificial island building in the South China Sea and ships sailing within 12 nautical miles of the US coast in Alaska.

So if China isn’t overly concerned with these bills nor with Japan itself, what do they, if anything, mean for Asia-Pacific security?

Shifting Security Tides?

First, the bills seem to make few changes to the JSDF’s defensive orientation. As noted earlier, the reinterpretation has already been in effect for a year, and although much has happened since July 2014, the JSDF’s operations have remained fairly routine. With the bills, the options for military action increase, but the probability of their implementation remains quite low and only toward the higher-end of the spectrum of conflict. Fears of a remilitarized Japan that stem from the post-WWII era seem similarly unlikely at this point, and a Sino-Japanese arms race seems similarly unlikely given China’s minimal response.

Second however, Japan’s international involvement will become increasingly global in nature in the “proactive” way that Abe hopes. The legal opening to participate in UN operations will allow Japan to send troops to a wider expanse of the globe as a part of these peacekeeping missions. Similarly, seeing the bills as strength for the US-Japan alliance could lead decision makers to begin the proposed joint patrols in the South China Sea, a move to China’s dismay. Japan playing a larger military role in the Asia-Pacific would, in theory, provide a counterweight to recent increases in Chinese military power (although perhaps the upcoming troop reduction is signaling the end of this growth), but it could just as easily create opportunities for friction that lead to an undesired crisis. The implications of a more proactive Japan are up to the future, but the idea of Japan operating in a wider expanse of the globe is quite certain.

Third, the US-Japan Alliance is receiving a legal and psychological upgrade. In addition to Japan’s new capabilities to include intercepting a missile bound for a US warship, the legislation mitigates America’s historic complaint of Japan not pulling its weight in the alliance. In addition, working alongside JSDF forces during UN operations or increased bilateral training supporting a stronger US-Japan Alliance will have a psychological effect on these countries. Trust is already increasing, as 2015 Pew polls show, “two-thirds of Americans trust Japan a great deal or a fair amount and three-quarters of Japanese say they trust the United States.” This trust will only increase as the two forces work even closer together.

Lastly, the political process for reinterpretation is somewhat worrying from a Japanese domestic legal order standpoint. The current bills still came at a substantial political cost; PM Abe’s approval rating now stands at 40 percent, with his disapproval rating at 47 percent. The bill’s disapproval rating was 54 percent (although the cause was linked to a perceived lack of explanation from the government) with only 31 percent approving, and protests outside the building further demonstrated the depth of opposition. The resulting physical “scuffle” within the parliament itself during the signing was also rare for Japanese politics. Despite all of the pushback, the bills still passed, once again demonstrating how Japan is historically adept at reinterpreting rather than amending its constitution. Technically speaking however, the constitution’s Article 96 outlines the amendment process, and requires both a two-thirds vote in the parliament and a majority vote by the public, with no such amendment ever occurring in the constitution’s history. While these current bills maintain the East Asian balance of power, future legislation may go too far; the potential still exists for a future government to reinterpret the constitution through this same process in a way that inadvertently starts a security dilemma.

Admittedly though, reinterpretations aren’t inherently bad. Reading a strict, literal interpretation of Article 9’s stipulation that “land, sea, and air forces… will never be maintained” would have rendered the JSDF unconstitutional a long time ago. Yet the reinterpretation (or rather the “self-defense” title) leading to their creation turned out to be the right decision as the JSDF continues to prove itself in numerous ways to be an incredibly beneficial force (the discussion of the JSDF itself to be saved for another day). Thus on the point of reinterpretations, the responsibility will be up to the Japanese public and government to continue striking just the right balance of force to maintain security for all.

Only time will tell whether the bills will make Abe’s “proactive contribution to peace” or create regional friction. But despite the domestic uproar in Japan over the bills’ passage, the Asia-Pacific relations as a whole looks set to proceed on its prior course.

Justin Chock is currently an MPhil in International Relations student at Oxford University. The views expressed in this article are his own.

Sea Control 97 – Falklands w/ Sharkey Ward

seacontrol2This is the second in Batch 2 of the Falklands War Series, and normally an introduction is required, but this podcast is special, the person taking part is like the most famous of celebrities – is often known by simple a single name. This podcast is with ‘Sharkey’, more properly known as Cdr Nigel Ward, aka ‘Mr Harrier’, in the Falklands War squadron commander of 801 sqn, operating from HMS Invincible. It was a sincere pleasure to record, and I really do hope, despite being long will be a true pleasure and of great use to listen to. ps. this is also the first I, Alex Clarke, have edited entirely – so if there are any problems, blame Matt Hipple who didn’t instruct me on how to do it – no seriously, it’s all on me, so please send me your feedback.

DOWNLOAD: Sharkey Ward

Determining Success: TRADEWINDS 2015 and Lessons Learned

By W. Alejandro Sanchez.

Between May 31 and June 24 of this year, U.S. Southern Command (SOUTHCOM) carried out joint naval exercises with its partners in the Greater Caribbean. The annual exercises, known as TRADEWINDS, brought together units from over a dozen countries. Without a doubt, multinational military exercises are useful as the personnel involved in the maneuvers learn new techniques from each other as well as how to work together. Nevertheless, a major concern is how well the lessons learned are properly applied to real-world operations.

The Exercises

TRADEWINDS 2015, the 31st iteration of these month-long exercises, took place in two phases: first in Saint Kitts and Nevis and then in Belize. U.S military personnel trained with their counterparts from 18 other nations, including Grenada, Guyana, Haiti, nations from the Greater Caribbean, Mexico, and even overseas partners like the Kingdom of the Netherlands and the United Kingdom (which both have territories in the Caribbean). Caribbean multinational agencies also present included the Regional Security System (RSS), the Regional Intelligence Fusion Center (RIFC), and the CARICOM Implementation Agency for Crime and Security (IMPACS), among others. According to SOUTHCOM, the exercises were aimed at strengthening “the capacity of Caribbean nations to respond to natural disasters, humanitarian crises and counter transnational organized crime.”

There have been several reports that enumerate and explain the nature of the exercise. For example, off the coast of Belize, the navies from Belize, Mexico and the United Kingdom carried out a simulated vessel boarding, search, and seizure operation. Mexican naval personnel from the Mexican Navy ship ARM Independencia, travelling in an interceptor boat, boarded the British vessel the HMS Severn and “simulated [the] arrests of a group of merchant mariners who tried to resist.” Other exercises included crowd control, safety techniques like clearing buildings, and gunnery with a 50-caliber

Members of the Dominican Navy participate in .50 cal exercises aboard a USCG Cutter. (Source: USCG)
Members of the Dominican Navy participate in .50 cal exercises aboard a USCG Cutter. (Source: USCG)

machine gun. A June 10 video posted in the Coast Guard Compass, the official blog of the U.S. Coast Guard, shows USCG personnel aboard a patrol boat from Grenada, explaining various techniques to their counterparts regarding how to understand the sea states and navigate effectively as they pursue a suspicious vessel.

In addition to praise from SOUTHCOM, the exercise has enjoyed the public endorsement and support from various Caribbean governments. For example ZIZ News, a Saint Kitts news agency, quoted Captain Kayode Sutton of the St. Kitts and Nevis Defence Force as saying, “the support from the government [in Basseterre] has been tremendous… Mr. Osbert DeSuza, the Permanent Secretary in the Office of the Prime Minister… visited the Exercise Control Centre and he received a brief as to what is going on for the entire exercise, the training, all the exercises that are going on right now.” Meanwhile, Guyana deployed its navy’s flagship, the GDFS Essequibo, to the exercise’s maritime phase, highlighting Georgetown’s commitment to display the best it has to offer to operate along its regional allies.

How to Determine Success?                                                    

During the TRADEWINDS 2015 opening ceremony in Saint Kitts, Lt. Col. Patrick E. Wallace, commander of the

Lt. Col. Wallace addresses partner nations as part of the 2015 Opening Ceremonies (Source: SOUTHCOM)
Lt. Col. Wallace addresses partner nations as part of the 2015 Opening Ceremonies (Source: SOUTHCOM)

St. Kitts and Nevis Defense Force, declared, “I stress that the knowledge and skill that comes from this exercise is essential … However, just as important, is the strengthening of multi-nation

Mexico's ARM Independencia. The vessel participated extensively in this year's TRADEWINDS exercise.
Mexico’s ARM Independencia. The vessel participated extensively in this year’s TRADEWINDS exercise.

nating with each other will be similarly successful in real life-or-death situations. As one retired Colonel from the Peruvian military told me, “ultimately, the only way to know if an exercise is successful is if you test the lessons in real life.”

Making a multinational exercise successful so it can be properly applied in the real world includes coming up with realistic scenarios, as explained to this author by John Cope, a Senior Research Fellow at the Institute for National Strategic Studies at the National Defense University. He suggests that what’s needed are  “players (other than the US) had a major role in shaping the exercise scenario and the organization of the event so that the exercise emphasizes what they see as their needs rather than what the US/SOUTHCOM thinks are their needs, also the non-US players assume important positions in the structure of the exercise.”

A SOUTHCOM press release announcing the beginning of the exercises went over the two operational phases of TRADEWINDS 2015. But there is also a third phase, the “Key Leader Seminar,” designed to facilitate a discussion of the other phases and the way ahead. Ideally, a comprehensive report will be drafted regarding the lessons learned, as well as lessons that still need to be fully learned, from TRADEWINDS 2015. (In the interests of full-disclosure: in preparation for this commentary, I contacted SOUTHCOM for further information on the lessons learned aspect of TRADEWINDS 2015, but received no reply.)

Numerous military agencies, both U.S. and international, have published reports discussing how to properly adapt lessons learned from both exercises and operations. As the Establishing a Lessons Learned Program Handbook by the Center for Army Lessons Learned ponders, is a military organization “willing to openly discuss its mistakes, and is it willing to share those mistakes across organizational lines to make everyone better?” If not, it will be very difficult to implement an effective [Lessons Learned] program… The act of ‘saving face’ precludes individuals from admitting their mistakes.”

Hopefully phase 3 of TRADEWINDS 2015 included an open and honest discussion between representatives from the participating militaries, where there was not only praise for the event, but admitting, even if it was off the record, which areas they still need improving, in order to work in greater cohesion with the security forces of neighboring countries. Cope explains that, at least

A Coast Guard vessel from St. Kitts participates in a boarding exercise with a U.S. vessel. (Source: USCG Blog)
A Coast Guard vessel from St. Kitts participates in a boarding exercise with a U.S. vessel. (Source: USCG Blog)

regarding the Caribbean, a base for institutionalizing operational and tactical procedures and processes that worked during an exercise may already be standard across various regional states. “Where CARICOM countries are struggling to perfect common approaches is in standardizing procedures for strategic and operational planning and strategic/political decision making. Their comprehensive disaster management process and experience with the Cricket World Cup have helped Caribbean countries, but leaders continually change.”

A PR Campaign?

Part of the problem may be simply a lack of a consistent PR campaign by regional navies (and security forces in general) to highlight the effectiveness of exercises. In other words, if a narco-speedboat is detained in the Caribbean by units of the U.S. and Jamaican coast guard services, it would be helpful if a subsequent press release could tie the hypothetical successful operation with lessons learned from TRADEWINDS. Another initiative would be to invite high-ranking government officials as well as journalists and other experts to the exercises as they take place, as this would help showcase the level of cooperation militaries from different states can achieve. This would have the added benefit of serving as a prime example to support similar exercises in the future.

At a time of budget constraints and with SOUTHCOM being the lowest-priority command center in the U.S. military, said agency needs to better demonstrate to Washington that its activities, including multinational exercises, are beneficial for both U.S. and regional security.

Concluding Thoughts

This discussion is not meant to question the validity of TRADEWINDS specifically, but rather to address multinational military exercises in general. The U.S. conducts quite a number of these in the Western Hemisphere, such as UNITAS, PANAMAX, Continuing Promise, and Beyond the Horizon/New Horizons.

Multinational exercises are important but a strong link has yet to be made between a successful naval exercise (i.e. in which units from two nations operate together to stop a suspicious vessel in the Caribbean), and whether the lessons learned from said simulation were successfully applied in the real world. Given the ongoing amounts of drug trafficking that flow through Caribbean waters, putting these lessons learned to the test would not be difficult.

Ultimately, SOUTHCOM is not lacking in exercises to increase its relations with regional allies in the Greater Caribbean and rest of Latin America; but it seems that the agency could do with a better PR campaign to explain how effective these exercises are in the long run.

W. Alejandro Sanchez is a Senior Research Fellow at the Council on Hemispheric Affairs (COHA) where he focuses on geopolitics, military and cyber security issues in the Western Hemisphere. Follow him on Twitter: @W_Alex_Sanchez.