THE AUSTRALIAN MEMBER COMMITTEE OF THE COUNCIL FOR
SECURITY CO-OPERATION IN THE ASIA PACIFIC (Aus-CSCAP)
WITH
ASIALINK- MELBOURNE UNIVERSITY
42nd MEETING
Friday 22 May 2015
Venue
Sofitel Hotel
25 Collins St
Melbourne
AusCSCAP /Asialink Meeting – 22 May 2015
AusCSCAP will be holding its 42nd meeting in association with Asialink at the Sofitel Hotel,
Melbourne (Victoria Suite 2) on Friday 22 May 2015, commencing at 09.30 (for 10.00)
The theme of the meeting will be –
Agreeing a Rules-based order in the Asia Pacific:
The South China Sea and Other Issues.
AusCSCAP and Asialink have invited two prominent Asian specialists to this
event, along with leading Australian strategists and academics in the field.
The Minister for Defence, the Hon. Kevin Andrews, may sit in on the
dialogue for a short period, and will then deliver a key-note address on
Australia’s new Defence White Paper at a luncheon at the hotel at 12.30. All
participants at the discourse are welcome (gratus) at the lunch.
Our international guests includeYang Yi
Secretary General, China Institute of International Studies (CIIS), Beijing;
and
Kwa Chong Guan
Senior Fellow, S. Rajaratnam School of International Studies (RSIS),
Singapore;
Co-Chair CSCAP Singapore, and recent Co-chair CSCAP.
While AusCSCAP meetings do not involve set-piece presentations, papers or powerpoints, preferring instead an informal, open and collegiate exchange of ideas guided
by the chair under Chatham House rules, we do identify lead-in topics and
speakers to spend a couple of minutes to introduce the subject and encourage open
debate.
AGENDA
Agreeing a Rules-Based Order in the Asia Pacific:
The South China Sea and Other Issues.
Victoria Suite 2, Sofitel Hotel, 25 Collins St Melbourne.
Friday 22 May
09.30
Registration /coffee
10.00
Welcome and introductions Professor Tony Milner, ANU Co-chair of AusCSCAP
Associate Professor Ron Huisken, Strategic and Defence Studies Centre, ANU
10.15
Summary of AusCSCAP’s 41st meeting on ‘Rules-based Order’
10.30
Sub-themes-
1.
Are the States of the Asia-Pacific coping well with the
challenges to order and stability in the maritime domain?
2.
Are the Rules clear and understood? Are the available
institutions and processes for dispute management and resolution both up
to the task and being utilised? In what way do the various approaches to
maritime rights by China, Vietnam, Philippines, Malaysia, Indonesia and
Australia differ?
3.
How can we drive events/trends toward, rather than away
from, peaceful management and resolution?
12.15
Arrival of the Minster for Defence, the Hon Kevin Andrews.
12.30- 14.00
La Trobe Ballroom
Luncheon- with address from the Minister on Australia’s Defence White Paper.
14.00 - 15.00
Meeting resumes
Further discussion, summary and close.
15.00-15.15
AusCSCAP Committee meeting (for members)
Business report-new members
-study groups
-CSCAP activities
-next meeting
Angus Macdonald: Executive Administrator, AusCSCAP
AusCSCAP 42 nd Meeting-Participants
International Guests
Yang Yi
Secretary General, China Institute of International Studies (CIIS), Beijing;
and
Kwa Chong Guan
Senior Fellow, S. Rajaratnam School of International Studies (RSIS),
Singapore;
Co-Chair CSCAP Singapore and recent Co-chair CSCAP
Other Guests
Acceptances
Professor Tony Milner, ANU
Assoc. Professor Ron Huisken, ANU
Ms Jenny McGregor, Asialink
Ms Georgina Downer, Asialink
Dr Craig Synder, Deakin Uni.
Dr Avery Poole, Melbourne Uni.
Dr Alexey Muraviev, Curtin Uni.
Dr Richard Tanter, Nautilus
Assoc. Professor Anthony Bergin, ASPI
Dr John Blaxland, ANU
Mr Dan Flitton, Fairfax Media
Dr Euan Graham, Lowy Institute
Assoc. Professor Douglas Guilfoyle, Monash Uni.
Dr Max Richter, Monash Uni.
Andrew Hewett, La Trobe Uni.
Professor Simon Evans, Melbourne Uni,
Mr Rowan Callick, The Australian
Mr Chris Birrer, Department of Defence
Dr Pradeep Taneja, Melbourne Uni.
Mr Jeremy Kruse, Department of Foreign Affairs and Trade
Professor Baogang He, Melbourne Uni.
Dr Mark Briskey, Curtin Uni.
Mr Greg Sheridan, The Australian
Mr Colin Heseltine, Australi Korea Business Council
Dr Sow Keat Tok, Asia Institute, Melbourne Uni.
Angus Macdonald, AusCSCAP
Apologies
John Buckley, John Mc Farlane, Hugh White, Michael Smith, Joseph Camilleri, Nick Bisley, Andrew
McIntyre, Clive Williams, Nick Farrelly, Ian Sinclair, James Goldrick, Justin Jones, Andrew Forbes,
Richard Mc Millian, Noel Wainwright, Ian Steward, Amil Seikal, Andrew Goodwin, John Broome, Ian
Dudgeon, Benjamin Habib, Gloria Davies, Graeme Dobell, William Maley, Murray Mclean, Melissa
Conley-Taylor, Maria Rost-Rublee.
Luncheon
Address by the Minister for Defence, the Hon Kevin Andrews12.30 to 14.00- la Trobe Ballroom.
41st meeting record: ‘Strengthening a rule-based order in the Asia
Pacific; perspectives from ASEAN, Japan and Australia.’
Executive Summary:
1. The basic rules concerning a ‘rules-based’ order, can be easily found – eg. UN Charter;
UNCLOS; WTO etc)- identifying norms and conventions surrounding inter-state behaviour
however is a harder process. Most difficult of all is to understand and articulate how a set of
rules which may be seen as imbued by the values, traditions and interests of one group of
states, do not act to the detriment of others.
2. The ‘rules’ regime has not yet been extended to space, cyber-space and other domains.
Developing rules for these newer domains might provide a foundation from which to
scrutinise established rules for perceived cultural bias.
3. Australia (and other Western states) may be unduly focussed on carefully crafted rules as
outcomes, while Asian counterparts are content to gravitate toward norms and evolved
standards, and to regard the process (of arriving at agreed order-eg. meetings/discussions)
as an essential component of the outcome and part of the confidence building measures
needed to forge agreement.
4. When engaging in collaborative undertakings to promote a rules-based order, Australia
should select partners/collaborators to both offset this cultural propensity, and to better
understand the virtues of the Asian approach.
5. Any concerted effort to promote stronger compliance with ‘established’ rules must take an
honest look at the compliance record and the examples set by each state, and particularly at
how the distribution or balance of power shaped attitudes toward the rules and the
available instruments of arbitration. A focus on where there is common agreement on
readily identified mutual benefits is a positive way of building confidence (by identifying lowlevel, everyday traffic issues).
6. China’s claim in the South China Sea cuts across the view that rights in the seas and oceans
stem ultimately from adjacent sovereign territory. China’s South China Sea claim may rest on
a concept of ‘blue land’. This would be revolutionary and, in all probability, very destabilising.
Record of Meeting:
Some 38 to 40 members and associates attended the 41st meeting of AusCSCAP at ANU on Friday 19
December 2014, which included a seminar on the theme of ‘Strengthening a rule-based order in the Asia Pacific; perspectives from ASEAN, Japan and
Australia.’ The meeting coincided with the release of a special report by the Australian Strategic
Policy Institute (ASPI) on their research assignment on the same theme. (See ASPI website for
Special Report on ‘Strengthening rules-based order in the Asia Pacific’).
On the question of what are the ‘rules’ of the rules-based order, the meeting was informed by a
legal expert, that they varied depending on the sphere of interest. For example for trade related
order, the World Trade Organisations (WTO)’s charters and protocols and regional trade
arrangements, applied. In terms of the governance of international relations, then the primary
document was the United Nations Charter and subsequent conventions and agreements, notably
those dealing with the laws of war. For collective security arrangements, some of the rules might be
found in documentation generated by the G77, the WEOG and other such UN groupings, along with
the myriad of treaties, agreements, and understandings associated with formal alliances between
countries, and a range of looser security arrangements between states. Finally for the governance of
the maritime domain, then the UN Convention on the Law of the Sea (UNCLOS) was seminal. Rules
surrounding the development agenda were raised later, with the Washington Consensus and the
Bretton Woods Institutes (IBRD etc) mentioned. All of these ‘rules’ had worked reasonably well up
to the present, but they were increasingly being challenged (by China and the other BRICs for
example) in favour of an alternative, non-western-dominated model. The question was thus posed
for later discussion as to whether the ‘rules’ that have emerged while the West has been dominant,
gave sufficient attention to Asian perspectives.
Debate turned to the maritime environment - where ambiguity and misinterpretation is currently
threatening regional stability and security, for example in the East China Sea and the South China
Sea. The meeting was informed that all international agreements retain some ambiguity or scope
for differing interpretations, principally to allow states to agree on the core thrust of an agreement,
while deferring consideration of its particular meaning in specific circumstances. With UNCLOS, for
example, which took 12 years to negotiate, some terms were left relatively ambiguous (eg. for some,
the term ‘ship’ specifies a commercial transport vessel while others consider that it also embraces
war-fighting ships). Other terms are more fully defined (eg, the term ‘island’ (able to support life) to
distinguish it from other oceanic features such as reefs or rocks), although absolute clarity is beyond
reach. The question was raised as to why the WTO rules, for example, were less challengeable were they better drafted? The ensuing debate suggested that some agreements were much more
contentious than others and needed to provide more ‘wriggle room’ to secure universal agreement
and adoption. Other things being equal, the wider the participation in forging an agreement, the
stronger the potential for the agreement to become part of the fabric or foundation of the rulesbased order. As long as states recognised the agreed jurisdictional mechanisms put in place for
dispute resolution, and /or did not overtly challenge these areas of deliberate (ie necessary)
ambiguity, then things worked well and order was maintained (eg. the numerous sea-border
disputes between some Pacific Island states). In recent times, however, some countries (China, in
particular) had begun to insist that their interpretation of ambiguous elements of existing treaties
should prevail over, rather than co-exist, with other interpretations - and that, more generally, the
‘Western’ flavour attached to the body of rules needed to be confronted and erased.
One participant drew attention to the way rules were interpreted at different times. A good
example for Australians was the Native Titles Act, and the now discredited concept of ‘terra nullius.’
History has shown that understanding of agreements can either strengthen overtime, or soften with
new interpretations arising. Another participant mentioned that the law was only one component
when it came to international agreements - other factors included evolved norms, agreed standards,
accepted human rights, civil and political rights, state power and great powers’ responsibilities. The
Treaty of Westphalia (1648) had codified the concept of state ‘sovereignty’ for the first time, and
some modern states were re-interpreting this.
Some participants felt that a pre-occupation with legalistic interpretation of rules was an Australian
fixation, not necessarily shared by other countries, especially some Asian countries. Australia acted
as a ‘good international citizen’ when it was in our overall national interest to do so - but we didn’t
always abide by this code. For example, Australia has appeared twice before the International Court
of Justice (ICJ) on issues relating to the Timor Sea boundary, and this suggests that we also ‘cherrypick’ international rules when it suits. At this stage the meeting’s attention was drawn to the fact
that China had a distinctive, well-established and substantial body of academic and normative
knowledge regarding the interpretation of international law upon which its ‘five principles of
peaceful co-existence’ are based. Chinese officials were often prepared to agree that, following the
“century of humiliation”, their country had done very well economically out of the international
rules environment. But they also contend that this benefit did not alter the fact that the rules-based
order was grounded in the West’s hegemony which China now had the weight to contest. This
raised the issue of China contemplating some cherry-picking of its own - embracing the WTO and
trade side of the equation, but not necessarily the security and strategic side.
Our international guests reminded the meeting that, broadly speaking, ASEAN preferred the softer,
less confrontational approach of articulating broad principles (as in the TAC of 1976 and the ASEAN
Charter of 1997), and proceeding patiently in the step-by-step ASEAN way to develop norms, rather
than aspire to build legal frameworks. Somewhat in contrast to this characterisation, another
international guest mentioned the need for an enforcement capacity when it came to UNCLOS.
Countries which lacked an enforcement capacity (eg. Micronesian states) needed alternative
approaches for reaching solutions and to make their voice heard - whereas powerful states were
not so constrained. At the moment, the maritime domain of the East and South China Seas was a
‘power game’ with totally different rules from those applying to terrestrial disputes, which tended to
be more bilateral in nature (and solution). Universal law gives small states a voice and at least a
nominal equivalence to powerful states.
An Australian government official raised the issue of the unregulated domain, where internationally
agreed norms and rules have not yet been established. The cyber sphere was a case in point, where
borders or boundaries were undefined and unregulated. The interpretation by states of acceptable
behaviour in the cyber-sphere – attitudes toward Internet usage in particular - very much related to
the different national and cultural approaches to individual freedom and intellectual expression. A
collective endeavour to see what sort of consensus regulation might be within reach was
inescapable. The issue of China’s approach in the South China Sea - termed elsewhere ‘salami
slicing’- was raised. It involved China created new precedents by pressing forward at several points,
before defusing the issue with conciliatory diplomacy and renewed pledges to negotiate (but also
ensuring that the precedents are substantively protected). The expectation is that, ultimately, the
contestant with the most power and patience will secure the prize, and appear to do so ‘peacefully’.
But the risks of this approach are not trivial (some refer to this as travelling without a seat-belt) and
promise to make the South China Sea a significant challenge to regional order and stability.
Debate then moved to whether states interpret these rules differently, or consider whether new
rules should apply. Some felt that even at the best of times there was a significant capacity for
differential interpretation - and now was certainly not the best of times. Strategic competition was
very much at play, and the ambiguity inherent in most international agreements (see above) was
being questioned (particularly by China) because it was in its national interest to now do so. China
had risen economically in the past twenty or more years under the existing power structures, but it
now had capacity and power to question this regime, particularly in the maritime sphere. The
meeting’s attention was drawn to the possibility that China may conceive its claim in the South
China Sea as territory, or ‘blue land’. This would be a revolutionary perspective. Territory in the
past had been land, and up to three miles offshore (ie. the range of early naval cannons). Under
UNCLOS, territorial seas were extended to 12 miles, and coastal states also secured qualified
privileges in exclusive economic zones (EEZs) extending out 200 miles. Where territorial seas
overlapped (as in the Malacca Straits) mid-point lines were agreed, and international maritime rights
of innocent passage privileged over the sovereignty rights of contiguous states.
How could these differences in interpretation be minimised? Firstly, it was agreed that grand
agendas were not the answer. Small areas of agreement should be explored, and a relationship built
from the ground up. States should seek out their common interests (there are many when it comes
to trade and sea-lanes of communication), and engage with each other where this was possible.
Seeking out and developing this “low-level, everyday traffic” was a sound basis for building
confidence between countries, and eventually agreed rules. As a former Australian Foreign Minister
privately lamented, his Asian counterparts often despaired when approached with ambitious and
extensive agendas for action when the necessary (and time-consuming) preparatory work had not
been done. One participant observed that Australia had been on the winning side of history, so it
was only natural that we see the rules imposed by the winners as fair, reasonable and just. The
‘winners bias’ in the prevailing rules-based order might be difficult to pin down but the meeting was
invited to imagine if Australia would feel as comfortable if the outcome of WW2, or of the Cold War,
had been different.
As for the question as to what ASEAN, Japan and Australia could do to advance a rules-based order,
the Chair asked the ASPI representative to introduce their report on Rules-based engagement. This
generated a discursive discussion with widespread participation. Some questioned whether
cooperation by Australia and Japan could be seen as ‘ganging-up’ on China, and also wondered how
this action was viewed in the rest of Asia. Our international guests commented that while ASEAN
was happy to see other actors apart from ASEAN pushing a rules-based order in the region, they did
not want to confront China directly, or have it identified as being at fault. There was danger that the
Australia/Japan nexus could be seen as at least constraining China, if not containing. They continued
to see ASEAN centrality as important, while recognising that the involvement of other countries such
as India could be positive. ASEAN may be perceived as acting slowly, not only in the strategic
domain but also in areas of social and economic development, but in their view the EU, for example,
was now paying the price for rushing things and failing to take account of the different levels of
development of each member. It was vital for ASEAN’s advancement that adequate consideration be
given to the differences in development across the membership.
The issue of Japan’s relationship with the US arose. Hitherto, Japan had relied heavily on the US and
its protective regime, but despite recent assurances Japanese doubts about the reliability of the
alliance persisted. Australia has recently claimed a natural partnership with Japan and many in the
region had noted the deepening of this relationship. It remained the case, however, that Japanese
interests in ASEAN were much stronger than with Australia. The question was asked how (and with
whom) Australia could engage China on the issue of a rules-based order. It was suggested that USChina engagement seemed to be faltering and that China might be slipping into a lonelier, more
inward-looking posture. The big question was where to find that ‘creative spark’ that would incline
these states, and others in the region, to address the strategic transformation of East Asia as a
common challenge and opportunity. One participant offered the suggestion that Australia needs to
modify its outcomes-oriented focus and work more through the East Asian Summit (EAS) which
could avoid sensitivities with both ASEAN and China. In 2015, with Malaysia as Chair of ASEAN, it
might be possible to engage China more intensively in a region-wide attempt to achieve consensus
on a rules-based order.
Summary

There are real differences regarding what ‘rules’ should operate in a rules-based order. For
example, China views parts of the East China Sea and the South China Sea as ‘territory’, termed
‘blue territory’, as if water was blue, national soil. This is a radical departure from accepted
definitions.

Technological change provides ongoing challenges to the achievement of a rules-based
order – for example, in dealing with the cyber-sphere, space and the implications of the
development of interstate, manufacturing production chains. Rules will need to be
developed, but will require a broad consensus to be successful.

There is disagreement over the advantages of clarity/precision in international agreements,
as against a degree of ambiguity in establishing consensus on a rules-based order. This
works as long as the ambiguities are not challenged.

The power of example can be a vital issue in achieving consensus on a rules-based order –
for example, Australia’s approach to East Timor disputes; Japan’s resistance to the
International Court re. whaling, and the United States refusal to sign UNCLOS and other
conventions.

The framework for developing a rules-based order is vital. The process must be inclusive. A
Japan-Australia initiative could provoke suspicion in China if not carefully developed.

There may be an opportunity in 2015, with Malaysia as the Chair of ASEAN. Malaysia –
despite its disagreements with China in the South China Sea – has maintained close, positive
relations with China. ASEAN under Malaysia might be ideally positioned to promote a more
inclusive attempt to achieve a rules-based order in the Asia Pacific.

Australia should seek out areas where there was ready and common agreement on mutual
benefit (eg. trade areas and sea-lines of communication) as a mechanism for building
confidence between states. Reference was made to identifying this ‘low-level, everyday
traffic” and working with other states (China) in developing these areas of agreed cooperation. The ‘process’ involved could be just as productive, or more so, than trying for
legal agreement.

In fact, a too legalistic interpretation of the rules, compared to recognition of evolved norms
and standards, can be counterproductive in the Asian- setting where the processes involved
in forging agreement, if handled well, can just as readily produce the desired outcomes than
a more direct and possibly confrontational approach.
NOTES