This article is part of the ‘Blue Security’ project led by La Trobe Asia, University of Western Australia Defence and Security Institute, Griffith Asia Institute, UNSW Canberra and the Asia-Pacific Development, Diplomacy and Defence Dialogue (AP4D). Views expressed are solely of its author/s and not representative of the Maritime Exchange, the Australian Government, or any collaboration partner country government.
Maritime governance – much like its closely associated term “maritime security” – is increasingly becoming an unescapable buzzword, particularly in the Indo-Pacific region. In Southeast Asia, states are engrossed with the day-to-day challenges of identifying and deterring crimes as necessary to enforce laws and regulations in their maritime jurisdictions. As a general definition, “maritime governance” refers to the capacity to enforce the framework of laws, regulations, policies, and institutions generated both within the legal jurisdictions of states and the international community that seek to establish “good order at sea.” This is no easy task in Southeast Asia where the maritime geography is highly complex, threats abound, political competition undermines cooperation, and many states lack the resources needed to meet their governance responsibilities.
National leaders, military officers and analysts regularly lump together a diverse set of challenges – including natural disasters, ship collisions and navigation hazards, mariner safety, illegal marine salvage, unregulated fishing, forced labor, crimes against marine ecology, drug trafficking, irregular migration, piracy, maritime terrorism, and interstate disputes – as important elements of an evolving tapestry of threats that is slapped with the shorthand label “maritime security.” In some other contexts, “maritime security” is a mission, something that navies and coast guards do. For commercial interests, the term may be associated with the protection of maritime vessels or meeting regulatory requirements. More broadly, maritime security may refer to a state of affairs where all people can safely benefit from the sea without risk. This highlights that the idea of “securing” the maritime domain has different dimensions and associated responsibilities. As maritime security is such an amorphous term, analysis regarding what states can do better to provide safe and secure seas can be better examined by reviewing their maritime governance capacity.
Governance is more complex at sea than on land
As a governance space, the sea is not analogous to land. Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), states have primary responsibility for governing the seas. While the UNCLOS was a remarkable achievement, it required an uncomfortable compromise between two key conceptions of governance: one that establishes the seas as a “free” communal resource for mankind and another that provides states with greater rights to impose laws and gain exclusive economic benefit from their adjacent waters. Consequently, the rights and privileges of states are limited and constrained depending on a system of tiered maritime zones that can be complex and ambiguous, at least in comparison to the relative simplicity of surveyed land borders.
UNCLOS provides for a graduated set of sovereign rights to coastal states in these different zones: territorial seas (extending up to 12 nautical miles from the coastline), contiguous zones (up to 24 nautical miles), exclusive economic zones (EEZ) (up to 200 nautical miles) and continental shelves (up to 350 nautical miles based on seabed topography). Beyond these lies the high sea, approximately two-thirds of global ocean space. Although the meanings of these zones are laid out in the treaty, states have differing views on the specific rights and responsibilities that they convey. The issues are multiplied by disputed claims, making it all inordinately complex. Further confusing the situation, responsibilities for ships and crews are assigned to the states of their registry and most ship owners find it economically advantageous to register with the states (referred to as “flags of convenience”) least likely to exercise those responsibilities.
While UNCLOS shapes the acceptable law-making limits imposed on states across different maritime zones, states are close to possessing full sovereign rights in the territorial sea with some key exceptions, including the rights of navigating states to “innocent passage.” In the EEZ, states are more constrained under UNCLOS but are entitled to make their own laws and decisions over living and nonliving resources. In contrast, the high sea remains a space for “ocean governance” – that is, the collective responsibility of the international community, rather than the domain of an individual state. Often, maritime security challenges are transnational in that they move across these different zones, which further complicates maritime governance and the prevention and deterrence of aggressions or crimes.
Ashore, it is all much more clear. The Westphalian system firmly assigns states as responsible for controlling both territory and populations and assigns those states with responsibilities for protecting those lands and people. While some land borders remain disputed, most are clear and transitions from one side to the other, even by a centimeter, means a distinct change in the functional governing authority. Transnational threats may undermine the international system, but states still reign supreme. With rare exception, we know which state rules what land, and states focus on governing their territories and populations.
Complex Political Geography Undermines Southeast Asia’s Maritime Governance
Maritime governance must be predicated on having rules to enforce and a system to deter rule breakers. Although all Southeast Asia’s coastal states (except Cambodia) have ratified UNCLOS, their interpretations differ and many states lack the domestic legal framework necessary to implement their responsibilities. Although ASEAN members have certain maritime governance strengths, these complications result in governance gaps that malicious actors can easily exploit.
In other areas, multiple states or law enforcement agencies compete with one another to provide governance and thereby create seams of insecurity. Maritime boundary disputes– particularly in the contested areas of the South China Sea where the jurisdictional claims of states overlap – particularly complicate the abilities of maritime Southeast Asian states to effectively enforce and govern the seas. So-called “grey zone” tactics where states take actions harmful to each other while keeping competition from escalating into conflict make it even more difficult for coastal Southeast Asian states to identify and respond to threats to maritime security or criminal activity. This is particularly true when commercial or law enforcement vessels are instrumentalized (or even militarized) by states to pursue strategic ends.
Too often states, especially those with resource shortages or that engage in political competition, treat the seas as places to reap whatever advantages they can while only selectively stepping up to their responsibilities. As a result, the sea remains home to all sorts of shady interactions and outlaw behaviors.
Southeast Asia’s Maritime Governance Resource Shortfalls
Even if both Southeast Asian states and extra-regional states active on the region’s seas were to agree to a fully common set of laws, and domestic legal systems were in place to implement those rules, regional states would still need to mobilize resources to conduct the law enforcement activities necessary to catch, punish and deter rule-breakers. However, given the size of the region’s maritime space and the density of human endeavors on those seas, the scope of the investment would be tremendous.
In Southeast Asia, some of the nations with the world’s lowest range per capita incomes also have huge maritime governance responsibility and therefore some of the largest capacity shortfalls. For example, Indonesia has a per capita GDP of $11,900 and governance responsibilities for 3,081,756 km² of archipelagic waters, and an EEZ of 6,159,032km². The Philippines has a per capita GDP of $8,100, 887,909 km² of archipelagic waters, and an EEZ of 1,590,780 km². It is no wonder these waters are poorly governed and rife with maritime security threats.
Vietnam and Thailand, two lower-income states, have smaller sea areas to govern but have been pressured by European sanctions to focus their maritime governance on managing fishing and the labor conditions of their fishers, many operating far from the national coast. The resultant emphasis on IUU fishing has improved the governance of fishing vis-à-vis the foreign standards, but other sectors of those nations’ maritime well-being have suffered as a result.
Smaller, more wealthy states in the region also face capacity challenges. Singapore has a per capita GDP of $106,000, only 10 km² of territorial waters, and no contiguous zone or EEZ. Yet, those Singaporean waters are some of the most heavily trafficked in the world with around 130,000 vessels transits each year. Singapore can deploy the maritime governance capacity to sustain its waters as some of the world’s safest and thereby create virtuous cycles that pay dividends in economic output. But this has required huge investment.
More wealthy states from beyond the region have been pitching in to help build local capacity with the United States, Japan, Australia, China, and European states doing the most. However, these efforts are often poorly coordinated and may bring relatively low returns on investment. There are also concerns that these projects might come with unwanted strings attached or could infringe on sovereign rights. Thus, Southeast Asia’s extra-regional powers need to do a better job of pairing their projects with priorities and ensuring the delivery follows the known best practices.
The Need to Take Stock of Regional Maritime Governance Capacity
Given the importance of good order at sea in Southeast Asia to regional resilience and global trade, it is essential to understand the maritime governance capacities of the regional states in terms far more nuanced than statistical ratios reveal. In fact, the ASEAN member states have certain, sometimes unique, maritime governance strengths. Unfortunately, there is no common reference for such information. Such a stocktaking is no simple task as each state faces different maritime challenges and organizes its capabilities to meet those challenges via different models. One cannot measure maritime governance capacity by simply summing the ships, sailors, and shillings a state assigns to maritime governance since their functions, objectives, and geographies vary so widely. Furthermore, maritime governance cannot be created at sea, it must be backed with diplomatic actions and effective justice systems ashore.
The papers in this series address the key maritime governance challenges and priorities for Southeast Asian states, their individual strengths and weaknesses, and what they view as critical areas of international cooperation and security frameworks.
