Why the Indian Ocean Must Not Become Like the South China Sea

French Navy frigate FS Guepratte (F714) prepares to come alongside the USS Stephen W. Groves (FFG 29) as part of an exercise during Africa Partnership Station (APS) East in the Indian Ocean, March 14, 2011. DOD photo by Mass Communication Specialist 3rd Class William Jamieson, U.S. Navy/Released. / U.S. Department of Defense Flickr

The maritime domain has been marked as the latest theater of war, and so a code of conduct is needed.

Rising Strategic Uncertainty in the Indian Ocean

The pursuit of contesting regional orders by major powers has engendered a strategic environment of uncertainty and mistrust in the Indo-Pacific. As geopolitical developments at land and sea feed off one another, the maritime domain has been marked as the latest theater of war. These dynamics have been most evident in the East and South China Seas, where the complexity of issues at hand is telling. A case in point is China’s construction of military facilities on artificial islands proximate to disputed maritime areas, against a backdrop of contesting interpretations of international law.

As regional and extra-regional states face a rising China on all fronts, a climate of strategic anxiety prevails in anticipation of its potential impact on the existing rules-based international order. Such anxieties inevitably spill over into the Indian Ocean Region and manifest in ways unique to that part of the world. A rising India with aspirations to global-power status finds its regional dominance challenged by China’s two-ocean strategy and Belt and Road Initiative. In the maritime realm, India’s response comprises internal naval and port modernization, and increased naval engagements and exercises with neighboring littorals and external powers that have major stakes in the region. This has not, however, had any noticeable effects in tempering regional anxieties.

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Heavy maritime traffic in increasingly congested regional waters operate alongside this tense backdrop. The risk that various surface vessels could collide—whether naval or commercial—and the risk of submarine accidents is on the rise. A number of regional and extra-regional states have forward-deployed their navies in the Indian Ocean, independently or as part of various task forces. There have already been several maritime accidents involving warships and air crashes in the Persian Gulf and the northern Arabian Sea between regional and extra-regional navies—some of which escalated politically. The Iranian Navy, for instance, has confronted its smaller neighbors and the U.S. Navy by conducting high-speed naval maneuvers and missile firings, and it has used drones to shadow U.S. naval assets. Late last year, an Indian submarine attempted to enter into waters close to Gwadar Port and was reportedly repelled by the Pakistan Navy.

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Miscommunications and misperceptions are likely to result from such incidents and could escalate very fast to negative political and military expressions. It is against this setting that a code of conduct (COC) for the Indian Ocean was first proposed.

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Code of Conduct: Key Components

A COC for the Indian Ocean was first articulated earlier this year by the prime minister of Sri Lanka—one of the smaller, yet strategically placed, littorals in the Indian Ocean. A COC was seen as an essential precursor to good order at sea and for handling the emerging traditional and nontraditional security complexities offered by a fast-changing regional landscape.

The primary scope of a COC in this region is clearly expected to be related to the conduct of naval vessels and aircraft traversing the Indian Ocean. During the Lankan prime minister’s February 2017 lecture, he emphasized foremost the need for a stable legal order for the freedom of navigation and overflight. He cautioned that differing interpretations of the United Nations Convention on the Law of the Sea and the shifting balance of power in the region negates the original utility of the existing legal system. Inter-state conflict and unilateral control of the global commons may follow, so there is a pressing need for new mechanisms that can accommodate the evolving strategic landscape.

Discussions on what a COC would entail, however, have been more ambitious. The COC has at times being tasked with tackling nontraditional-security issues, like human and drug trafficking, and sea piracy and maritime terrorism. It has also been flagged as an appropriate avenue for governance over emerging “blue economy” activities such as seabed mining, hydrographic surveying and bioprospecting. A COC, typically considered as a confidence-and-security-building measure, risks overreaching by taking on practical operational cooperation outside its jurisdiction. Attempting to address maritime issues across such a broad spectrum also runs the danger of becoming a meaningless catch-all framework.

How Will It Be Implemented?

The Indian Ocean Rim Association (IORA) is currently the only regionwide mechanism designed to facilitate government-to-government dialogue at the multilateral level. Of late, the association has gained considerable momentum, as member states such as India, Australia and Indonesia, among others, have committed greater resources to revitalize this regional body. South Africa, the new association chair, revealed in a recent country statement that regional maritime safety and security was the first of its three priorities, and that it would lead to the establishment of a working group on Maritime Safety and Security. It pledged a financial contribution of approximately $150,000 to the association to fund the establishment of new working groups on the blue economy, maritime safety and security, women’s economic empowerment, and the International Core Group of Tourism, as per the IORA Action Plan 2017–21. An additional $50,000 was to be allocated in support of the African oceans economy projects under the 2050 African Integrated Maritime Strategy. The association appears, therefore, to be the most suited platform for an initiative such as the proposed COC.

However, there are the risks of a potential mismatch between regional perceptions of the association and its actual capabilities. IORA is not highly institutionalized, and is more of a coordination (than implementation) body. The association’s decisions also require consensus by all twenty-one member states. Given the diversity of interests that occupy each subregion within the Indian Ocean Region, this is likely to preclude regionwide consensus on a COC. This is reflected, for instance, in the varying priorities of each IORA chair, which at times prevents continuity of initiatives. It is also important to note that there are still some key Indian Ocean littoral states that are not members of the association (Djibouti, Maldives, Myanmar, Pakistan and Timor Leste), primarily due to a lack of capacity.    

A key question that needs to be asked here is the role of extra-regional states in the development of a COC for the Indian Ocean. Will regional powers like India be open to the idea of external states like China participating in the formation of a COC? Will the COC be effective if major extra-regional powers are excluded? Should non-state stakeholders also be involved? Khurana points astutely that varying strategic alignments of different Indian Ocean Region states could lead to geopolitical polarisation, exacerbated by lobbying by external stakeholders.

ASEAN-China Code of Conduct for the South China Sea: An Ill-Suited Blueprint?

Indian Ocean developing states, and the Indian subcontinent in particular, have long aspired to model after the success of Southeast Asian counterparts. It is not surprising then that the ASEAN-China code of conduct for the South China Sea is considered a suitable blueprint for a COC in the Indian Ocean.

The ASEAN-China COC seeks to establish a rules-based framework and norms that guide the conduct of parties and ensure safety and freedom of navigation and overflight in the South China Sea. Should maritime incidents occur, the COC aims to manage them and create a favorable environment for the peaceful settlement of disputes. More specifically, it aims to promote (1) the duty to cooperate; (2) promote practical maritime cooperation—these are likely to include search and rescue, maritime scientific research, environmental protection, and combating transnational threats; (3) promote self-restraint, trust and confidence; (4) incident prevention (through confidence-building measures and hotlines); (5) incident management (through means such as hotlines); and (6) other undertakings in accordance with international law, to fulfill the objectives and priorities of the COC.

More detailed analysis of this COC, however, may cause the observer to rethink its suitability as a model for the Indian Ocean. The Indian Ocean is a unique regional space, with its own geostrategic complexities and diverse set of actors; success within ASEAN may therefore not be as easily replicated. More important however is shortcomings of the ASEAN-China COC itself, most notably in the absence of enforcement and arbitration mechanisms, characteristic of most ASEAN documents. The framework concluded in August this year has been dismissed as “a skeletal one-page outline, consisting of a series of bland principles and provisions, some of which China has already violated, and a few operational clauses—the ones that ought to be the focus of a meaningful, binding COC of any sort—that have been left vague.” Moreover, the COC remains to be concluded, and with its efficacy untested, questions its credibility as a model in the first place.

Is a Code Of Conduct Really Necessary for the Indian Ocean?

Currently, there are several mechanisms in place within the Indian Ocean Region that seek to maintain good order at sea and address transnational maritime threats. The most recent and prolific of these is the 2017 Jakarta Concord, which was concluded during the first IORA Leader’s Summit in March 2017. The Jakarta Concord aims to build a more peaceful, stable and prosperous Indian Ocean Region through enhanced cooperation, which includes—but is not limited to—six priority areas that put first maritime safety and security.

With regard to maritime safety and security, the agreement commits to manage accidents and incidents at sea and promote effective coordination between the association member states’ aeronautical and maritime search and rescue services; encourage sharing of expertise and resources to manage risks to the safety of vessels and the marine environment; strengthen regional cooperation to address transboundary security challenges; and ensure the freedom of navigation and overflight in the Indian Ocean Region in accordance with international law, including the United Nations Convention on the Law of the Sea.

Code for Unplanned Encounters at Sea

The Western Pacific Naval Symposium developed a Code for Unplanned Encounters at Sea in 2014, with regard to guidelines and standard operating procedures when warships and military aircraft meet at sea unexpectedly. There have been calls for a similar code for the Indian Ocean Region as well, through the Indian Ocean Naval Symposium. However, successful emulation is unlikely, given the symposium’s high dependence on India’s funding and leadership, making the conclusion of a truly cooperative arrangement no easy task. If an operational-level confidence-and-security-building measure among regional navies such as Code for Unplanned Encounters at Sea is unachievable so far in the Indian Ocean Region, how much more difficult is it for a political-strategic mechanism like a COC to be concluded?

Djibouti Code of Conduct

The Djibouti Code of Conduct is a regional instrument, originally designed to counter piracy and armed robbery against ships in the western Indian Ocean. It was later expanded through the Jeddah Amendment to cover other illicit maritime activities, including human trafficking and illegal, unreported and unregulated fishing. The participatory states work together, with support from IMO and other stakeholders, to build national and regional capacity to address wider maritime security issues.The more recently passed Jeddah Amendment recognizes the important role of blue economy, alongside the need to counter transnational organized crime in the maritime domain.

The contents of the above initiatives (both existing and proposed) encompass many of the key components of the proposed COC for the Indian Ocean Region. This is especially true of the more comprehensive Jakarta Concord. This raises questions of whether a dedicated COC is even necessary for the Indian Ocean as further duplication would only distract limited resources and political attention of regional states, and delay operationalization of existing commitments.

Conclusion

Initial responses to a COC in the Indian Ocean have been mixed. While there has been considerable support for the initiative by various country representatives at forums like the Indian Ocean Conference held recently in Colombo, diverse maritime priorities within Indian Ocean Region subregions and competing interests of actors resident and nonresident to the region, and the lack of an Indian Ocean identity/community have been flagged as potential roadblocks to any meaningful negotiations, realization and maintenance of such a mechanism.

The absence of a common driving force is another possible impediment. It was rising tensions in the South China Sea since 2010 that resulted in some ASEAN states calling for talks on the COC in the South China Sea to be expedited; China, too, agreed to accelerate talks only after the July 2016 Arbitral Tribunal. Similarly, China only conceded to a COC in 2002 after its first seizure of a feature (Mischief Reef from the Philippines in 1995) and had subsequently encountered more pushback from the United States and ASEAN states than anticipated. The Indian Ocean Region lacks similar crises at present, which are often essential to jumpstart such cooperative endeavors.

In fact, the Indian Ocean Region has been on several occasions a model for cooperation in the maritime domain. While tensions flare in the South and East China Seas, maritime border disputes between India-Bangladesh and Bangladesh-Myanmar were resolved in adherence to international law and norms. Piracy in the western Indian Ocean has mostly been eradicated by the joint efforts of regional and extra-regional states and stakeholders. Meanwhile, the Seychelles and Mauritius are conducting joint management of their extended exclusive economic zone. These minilateral instances of success may very well be indicative that such forms of cooperation are better suited and more achievable for the Indian Ocean than a multilateral code of conduct.

Rajni Gamage is a senior analyst with the Maritime Security Programme at the Institute of Defence and Strategic Studies, S. Rajaratnam School of International Studies, Nanyang Technological University, Singapore.

Image: French Navy frigate FS Guepratte (F714) prepares to come alongside the USS Stephen W. Groves (FFG 29) as part of an exercise during Africa Partnership Station (APS) East in the Indian Ocean, March 14, 2011. DOD photo by Mass Communication Specialist 3rd Class William Jamieson, U.S. Navy/Released. / U.S. Department of Defense Flickr