The rules-based order as rhetorical entrapment: Comparing maritime dispute resolution in the Indo-Pacific

ABSTRACT

In response to challenges to Asia’s security order, regional powers such Australia, India, and Japan have adopted new “Indo-Pacific” strategic narratives to promote and defend the “rules-based order.” These narratives use China’s maritime disputes with smaller neighbors in the South China Sea as a key example of Beijing’s revisionist intentions. Yet such narratives expose “rules-based order” advocates to risks of “rhetorical entrapment” as other actors compel them to abide by the standards they have set. To what extent have Indo-Pacific powers been forced to follow the rules in their own asymmetrical maritime disputes? This article examines three Indo-Pacific cases: Timor Sea Compulsory Conciliation between Australia and Timor-Leste, the Chagos Island Marine Protected Area Arbitration between the United Kingdom and Mauritius, and the Bay of Bengal Maritime Boundary Arbitration between India and Bangladesh. To varying degrees, this article finds that strategic narratives constrained the policy options of all three Indo-Pacific powers.

KEYWORDS:

• Maritime disputes
• Indo-Pacific
• rules-based order
• rhetorical entrapment
• UNCLOS

Over the past two decades, it has become increasingly clear that the liberal international order established after the second World War is under challenge. Power shifts have undermined the existing order as new (and old) powers dispute the norms, laws, and standards that govern international conduct (Flockhart, 2016, p. 3; Jorgensen, 2018). In Asia, the United States (US) and its regional allies and partners have been primarily concerned about the rising influence of China and its intentions and capacities in revising the international order to suit its own priorities and worldview (on revisionism see Cooley et al., 2019, p. 697; see also Duncombe & Dunne, 2018, p. 29). Such dynamics intersect with enduring questions in International Relations about how international orders are “produced and legitimated” (Barnett, 2021, p. 1), the relationship between coercion and consent in maintaining or altering order, and the conditions under which rules, norms and law constrain or enable the behaviors of states, particularly the most powerful (Krisch, 2005).

In response to emerging challenges to Asia’s security order, regional powers have adopted new strategic narratives to promote and defend their own preferred vision of international order. “Indo-Pacific” strategic narratives have emerged primarily in response to China’s rising influence and perceptions of its revisionist intentions to disrupt, re-write, or violate the so-called “rules-based order” (Pan, 2014). States such as Australia, India, Japan, and the United Kingdom (UK) have all employed Indo-Pacific narratives to preserve, stabilize, and defend an order underpinned by existing norms, and as such, have integrated the concept of the “rules-based order” within their Indo-Pacific strategic narratives (Byrne, 2020; Turner & Nymalm, 2019; Strating, 2020; Wirth & Jenne, 2022, p. 214). The rules-based order (RBO) is thus a central discourse that pertains to a dominant Indo-Pacific strategic narrative, which adopter states use to present an ideal vision of order in which all states—even global powers—comply with existing and commonly agreed upon standards of behavior.

In the new Indo-Pacific regional construct, maritime disputes over land features, boundaries, resources, and navigational rights are particularly salient. They are important to how regional states have conceptualized and expressed the shifting balance of power and its consequences for their vision of the RBO. In particular, the US and key allies and partners have used China’s maritime and sovereignty disputes with five smaller maritime powers in the South China Sea (SCS) to argue that Beijing desires to “re-order the region” by “bullying” its neighbors in maritime disputes and pursuing “unilateral changes to the status quo” through coercive activities (see Strating, 2020 and for example: U.S. Department of State, 2019, p. 4, 7; U.S. White House, 2022, p. 5; Australian Department of Defence, 2020, p. 12). They have also presented Beijing’s rejection of the 2016 Arbitral Tribunal ruling, which found China’s “historic rights” claim in the South China Sea inconsistent with international law, as a challenge to prevailing norms. Coupled with artificial island-building, naval modernization, and militarization, and the use of “grey zone” tactics in the South and East China Seas, Beijing is presented as challenging the legitimacy of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS provides universal rules and legal instruments for creating and preserving maritime order, and Indo-Pacific narratives have encouraged all states to abide by the maritime “rules-based order” and peacefully resolve maritime disputes (Strating, 2020, p. 1).

Yet such RBO narratives present a potential problem for Indo-Pacific states. If they press emerging powers to abide by the rules, then they can be held to the same standard. To what extent have RBO narratives legitimized or constrained the power of these regional states? This article examines the processes by which states become entrapped by their own rhetoric in their attempts to constrain the behaviors of revisionist powers through strategic narratives. Rhetorical entrapment refers to the ways in which states may become hemmed in by their own narratives as others shame and/or praise according to the principles of conduct that they have expressed (Lai, 2019; Petrova, 2016, p. 388). This article examines rhetorical entrapment through the responses of three regional “Indo-Pacific powers” to the use of international maritime dispute resolution (IMDR) processes and rulings in their own maritime disputes. Like China, these states have been forced into their own IMDR proceedings by smaller states. The paper compares three asymmetrical bilateral disputes in the Indo-Pacific region: the Timor Sea United Nations Compulsory Conciliation between Australia and Timor-Leste, the Bay of Bengal Maritime Boundary Arbitration between India and Bangladesh, and the Chagos Island Marine Protected Area Arbitration between the UK and Mauritius. It focuses primarily on the rhetoric and actions of the bigger “Indo-Pacific powers” in each case: the UK, Australia, and India. While Australia and India are perhaps more obviously Indo-Pacific powers, the UK maintains its own territorial and maritime interests in the region—through its British Indian Ocean Territory (BIOT)—and employs Indo-Pacific narratives to pursue its interests in this domain.

For the purposes of this study, “Indo-Pacific powers” are those that are not globally dominant, such as the US and China, but possess considerable influence within a geographical region or are considered global second-tier powers. India and Australia, for example, are regional powers respectively in the Indian Ocean Region and Oceania, such that the “middle power” designation underestimates their relative power, foreign policy orientation, and ambitions (Carr, 2019). States such as Japan, India, Australia, France, and the UK have adopted Indo-Pacific narratives in their security policies to preserve the order that emerged under conditions of US primacy in the twentieth century and prevent a new order dominated by a rival regional hegemon emerging. They also seek, to differing degrees, expanded influence across the maritime region through strategic narratives and regional diplomacy.

While security scholars and analysts tend to focus on the complex and enduring maritime disputes featuring China, this comes at the expense of understanding successful examples of maritime dispute resolution initiated by smaller powers against regional powers. New York University School of Law’s recent Maritime Dispute Resolution Project found that IMDR processes have been employed all over the world to resolve maritime disputes. There is, however, little comparative analysis on how regional powers approach the use of IMDR processes in cases where they are the “bigger” power, or how broader geopolitical trends such as normative contestation shape their interests in resolving specific disputes. There is also little research on how regional powers respond to the demands of smaller states and advocates for “normative coherence”—that is, abiding by the “rules” of the rules-based order.

This article seeks to understand how this need for normative coherence between rhetoric and action has compelled Indo-Pacific regional powers to shift their policies. It argues that RBO narratives constrained the behaviors of these states, making them more likely to abide by international law. Whether states accept international legal processes and tribunal findings is partly conditional on how the “rules” fit within their strategic calculations but is also determined by their need to project legitimacy through normative coherence between rhetoric and action. This article begins by providing a conceptual framework for understanding rhetorical entrapment in dyadic bilateral disputes: how it works, how it is operationalized, and how it applies to case studies. It then discusses the interplay between Indo-Pacific and RBO strategic narratives and what they reveal about how Indo-Pacific powers imagine a desirable regional order. The article then uses a qualitative case study approach to address three subsidiary questions: How did the policies of Indo-Pacific powers evolve in these maritime disputes? What role did RBO narratives play in policy continuity or evolution? What role did broader strategic exigencies play in how Indo-Pacific powers approached the use of IMDR processes and legal rulings? Ultimately, the article finds that RBO narratives constrain the behaviors of states that adopt the term with positive implications for international law compliance.

Strategic narratives and rhetorical entrapment

States seek to shape regional and international order through strategic narratives. While the liberal order is not something that objectively exists, “liberal world ordering” can be considered a practice in which the use of narratives plays an important role (Dunne, Flockhart and Koivisto as cited in Wirth & Jenne, 2022, p. 216). Ordering “implies a performative element,” and through both rhetoric and action, new orders (or components) can emerge (Bueger & Edmunds, 2021, p. 174). Narratives or stories “provide an organizing framework for collective action, defining a community’s identity, its values and goals, and the stakes of its struggles … they can [shape] how international order is imagined and constructed” (Levinger & Roselle, 2017, p. 94). Such “representational strategies” attach meaning to the material world but are “rarely if ever politically neutral” (Price, 2021, p. 166). Political actors use them to pursue their interests and values and to disseminate their ideal vision of international order (Miskimmon et al., 2017). Through such narratives, states seek legitimacy by rationalizing behavior in relation to rules and standards and by “appealing to shared norms and values” (Goddard, 2018, p. 17). Such rhetorical legitimization strategies can make identity claims by categorizing states and their activities in accordance with their compliance with norms, rules, and values, delegitimizing the interests and actions of other powers, and signaling their own constraint and willingness to abide by community standards (Goddard, 2018, p. 17). They can also set rhetorical traps by denying opponents grounds upon which to mobilize against them.

An unintended consequence of rhetorical legitimation is self-entrapment. Rhetorical entrapment is a causal mechanism through which states are compelled to abide by the norms and standards of behavior they expect from themselves and others (Schimmelfennig, 2021, p. 139). When they violate self-imposed standards, states may be shamed into compliance if the inconsistency between their normative commitments and actual behavior is exposed (Schimmelfennig, 2021, p. 139). As Petrova (2016) notes, “[i]n the process of argumentative exchange and scrutiny from interlocutors,” actors can find themselves “locked in” by their own narratives because “they cannot argue against the already accepted principle without appearing inconsistent and losing their credibility” (p. 388).

States are rational, self-interested actors that “interact strategically based on exogenous policy preferences” (Schimmelfennig, 2021, p. 140). They are weakly socialized but engage with other states in a community environment wherein collective ideas and norms shape their identities and interests (Schimmelfennig, 2021, p. 141; Hansen, 2006, p. 117). As Schimmelfennig (2001, p. 63) argues, while actors may strategically use “norm-based arguments in the pursuit of one's self-interest” (what he calls “rhetorical action”), they may not necessarily internalize those norms (see also Hansen, 2006, p. 118; Krisch, 2005, p. 347). States may become entrapped when the rationalist state goals of maximizing strategic and material gains clash with their legitimacy concerns: that is, being seen by others within the international community as behaving appropriately (Hanson, 2006, p. 118).

The rhetorical entrapment framework provides a useful avenue for analyzing asymmetrical bilateral dispute resolution. Bilateral disputes are dyadic, involving two states engaging with each other, so an account of rhetorical entrapment must consider the strategies and approaches of both parties. In asymmetrical disputes, smaller states may adopt strategies to compel the more powerful state to do what it otherwise would not. They can capitalize on rhetorical legitimation by shaming and/or praising the more powerful state in accordance with their declared normative commitments (Lai, 2019). Scholarly literature already exists on how small states have used entrapment and public diplomacy (Strating, 2019) alongside litigation strategies (Guilfoyle, 2021) to compel policy change from bigger powers.

Yet, rhetorical entrapment requires understanding how the interests and behaviors of bigger powers shifts. This article focuses primarily on the actions and behaviors of the bigger powers. How do they become “entrapped” to the extent that it shapes policy? This requires analyzing how they balance their geo-strategic, economic, and normative interests when negotiating disputes, and how they might develop counter-narratives to avoid or sidestep entrapment or cast their own actions as legitimate to domestic and international audiences. Entrapment may occur when such counter-narratives are ineffective in blunting pressure and condemnation. The literature suggests that in making normative arguments, states must be conscious of their own legitimacy. If they are perceived as not complying with professed standards, this undermines their credibility and “the chances that their emphasis on rules and norms will cut through to affect the conduct of other states” (Price, 2021, p. 162). As Krisch (2005, p. 375) notes, great powers may be able to convince allies and partners that their dominance is preferable to an alternative order. Such “hegemonic socialization”—setting the standards of legitimacy—“can explain how non-great powers can be recruited into stabilizing the status quo” (Krisch, 2005, p. 375). As conceptions of legitimacy “shape the interests and identities of the states,” “compliance pull” works when status quo states seek legitimacy by promoting and complying with dominant norms (Krisch, 2005, p. 374). Perceived hypocrisy of status quo states can make it more difficult to prosecute their own rhetorical legitimation strategies to preserve international order or constrain the power of great powers.

Entrapment can also depend on whether states are susceptible to pressure by virtue of their own identity and stated principles and values. While Goddard (2018) convincingly argues that even great powers must pay attention to the demands of international legitimacy, there is an assumption in the literature—but not always borne out in reality—that compliance pull is more likely to affect democracies (Steinsson, 2018, p. 341). For Indo-Pacific powers, identity claims can create rhetorical traps that foreclose certain options and limit the range of activities that may be considered legitimate. Democratic states are susceptible to moral suasion in a way that authoritarian states may not be as they feel the “compliance pull” of maintaining their self-image and reputation within the international community. Whether this entrapment leads to policy change, however, is also dependent on material and structural factors: bilateral disputes do not occur in a vacuum. Contemporary disputes occur within an international structure increasingly determined by strategic and normative contestation. Concerns about credibility are balanced against other objectives. Reputational legitimacy may become prioritized ahead of commercial and/or strategic interests or absorbed within how states view their strategic interests and approaches to regional diplomacy. Rhetorical entrapment is effective when neutralizing critical narratives becomes part of states’ broader strategic imperatives.

The three cases examined below are examples of asymmetrical Indo-Pacific maritime disputes. They feature smaller states initiating IMDR processes under UNCLOS against an Indo-Pacific power that is also a self-described democracy. The case studies examine how policy evolved over time and how normative pressure was applied. They also examine how states sought to justify behaviors within the confines of their strategic narratives, and how external exigencies contribute to rhetorical entrapment. “Smaller powers” are classified as such because power is relational. In each case, there is a meaningful differential in terms of economic resources and population and territory size, and material capabilities of smaller powers are limited when compared with their adversary (Long, 2017). While the extent of material difference is not equal across these cases—for example, India’s GDP is roughly 10 times the size of Bangladesh, while Australia’s is 555 times the size of Timor-Leste’s—the material differences in each dyad are substantial enough to classify them as asymmetrical, and to justify the claim that the Indo-Pacific power—Australia, India, and UK—holds the upper hand. They also have important roles in order-shaping security minilaterals such as the Quad (Australia, India, US, and Japan) and the new AUKUS pact (Australia, UK, and US). Asymmetrical bilateral disputes allow us to examine how these Indo-Pacific powers modulate their conduct in line with their strategic narratives, national interests, and projections of order (Table 1).

Table 1. Comparing material dimensions of power.⁵

	Territory (square kilometer)	Population	GDP (2018, millions US$)
Case 1: the Timor Sea Compulsory Conciliation
Timor-Leste	14,874	1,291,358	2,581
Australia	7,741,220	23,232,413	1,433,904.35
Case 2: Bay of Bengal Maritime Boundary Arbitration
Bangladesh	148,460	157,826,578	274,024.96
India	3,287,263	1,281,935,911	2,718,732.32
Case 3: Chagos Island Marine Protected Area Arbitration
Mauritius	2,040	1,356,388	14,220.35
United Kingdom	242,495	65,648,100	2,855,296.73

Indo-Pacific strategic narratives and the maritime rules-based order

The order-shaping interests of regional powers is revealed through the Indo-Pacific concept. Australia, Japan, and India led the global diffusion of this regional construct, subsequently adopted by the US and its partners and allies such as France, the UK, and Germany (Wirth & Jenne, 2022). A vague and contested term, the Indo-Pacific is variously used to describe strategy, an approach or orientation, strategic geography, conceptual mapping, and discourse (Barthwal-Datta & Chacko, 2020, p. 244). Indo-Pacific powers hold different visions of Indo-Pacific order, reflecting their own geography, strategic cultures, and domestic political influences. As Doyle and Rumley (2019, p. 26) argue, both realist and constructivist lens are required to understand the maritime imagining of the Indo-Pacific, including through the strategic narratives employed by Indo-Pacific adopters. Whether the Indo-Pacific exists as a strategic reality is debatable. Scholars have noted, inter alia, the divergent conceptions of regional order among proponent states, its under-institutionalization via the absence of inclusive multilateral forums, the disjuncture between Indo-Pacific rhetoric and state actions and its weak integration as a strategic theater (see for example Barthwal-Datta & Chacko, 2020; Taylor, 2020). Even analysts who argue that the Indo-Pacific is a strategic reality adopt constructivist ideas when describing its form and function. In tracing its development, for example, Medcalf (2020, p. 12) views it as a “mental map” for understanding Asian geography, geo-politics, and geo-economics that is more expansive than the regional concept it replaces, the Asia-Pacific.

Rather than a strategic reality, the Indo-Pacific is better conceptualized as a “strategic narrative,” a political construct that allows adherents to project a status quo vision of regional order across Asia and the Pacific. While there are differences in state narratives, there are unifying themes. First, they tend to position China as a “revisionist” power (Strating, 2020, p. 1). Scholars have linked the (re-) emergence of the Indo-Pacific to anxieties about rising China and the loss of US primacy, as it reveals the “geopolitical imaginations” of “influential observers and practitioners” about the shifting nature of power in the region (Pan, 2014, p. 453; see also Rajagopalan, 2020, p. 75). These anxieties are not unfounded; China’s leaders have a history of criticizing the “US-led world order,” arguing it is “unfair and unreasonable” or “a suit that no longer fits” (International Crisis Group, 2021; Rolland, 2020, p. 5). The Indo-Pacific is an effort to stabilize, preserve, and defend pre-existing elements of regional order in the context of rapidly transforming power relations and normative contestation.

Second, Indo-Pacific narratives are closely and deliberately intertwined with the term RBO (Wirth & Jenne, 2022). Primarily a political term, the RBO has attained a “hegemonic position in global governance discourses” and is generally understood to be “broader and more inclusive” than formal and authoritative international law as it incorporates soft law, norms, and agreements. Yet, as a key sub-narrative of Indo-Pacific discourses, the RBO carries a specific utility: to highlight and constrain revisionist activities in Asia. The UK’s 2021 Integrated Review expressed its long-term commitment to the “rules-based international order” (UK Government, 2021, p. 60). In a more competitive international environment, the Review committed the UK to reinforcing parts of the international architecture under threat, shaping international order by creating shared rules, and tilting its attentions towards the Indo-Pacific, “the focal point for the negotiation of international laws, rules and norms” (UK Government, 2021, p. 12, 62). A 2021 joint statement from Australia and India presented their comprehensive strategic partnership as based on “common interests and shared values of democracy and rule of law,” reiterating the importance of advancing “an open, free, prosperous and rules-based Indo-Pacific region” (Australian Department of Defence, 2021). The Quad states, including India and Australia, have also expressed their commitment to “free, open rules-based order, rooted in international law … [including] the rule of law, freedom of navigation and overflight, peaceful resolution of disputes, democratic values, and territorial integrity” (U.S. White House, 2021b). The AUKUS pact including Australia and the UK expressed its “enduring ideals and a shared commitment” to “a stable, secure and prosperous Indo-Pacific region,” including the “rules-based order” (Australian Government, 2022).

States are uncertain about whether a future regional order will be predicated more on material power and hierarchy than on universal rules or agreed upon standards of behavior. Indo-Pacific powers have used the RBO to reject unilateral assertions of great powers that are contrary to established rules. It is an antidote for Thucydides’ famous idiom that the strong do as they will and the weak do as they must. At the 2017 Shangri La Dialogue, Australia’s then-Prime Minister Malcolm Turnbull described the rules-based order as one where “right” defeats “might” and where “where nations big and small agree to play by the rules and respect each other’s sovereignty.” The following year, India’s Prime Minister Narendra Modi similarly invoked the principle of the equality among nations “large and small” in public declarations about Delhi’s Indo-Pacific concept (Rajagopalan, 2020, p. 76). In a time of shifting power dynamics, Indo-Pacific and rules-based order discourses reflect central challenges with maintaining international order, described by Hurrell (2008, p. 2) as “the need to capture shared and common interests, to manage unequal power, and to mediate cultural diversity and value conflict.” The emerging power hierarchy in Asia clashes with the extant US-led order, a trend which RBO defenders seek to curtail. As Wright (2020) notes, the UK’s use of the term “only increased in a period marked by its own relative decline in power as it withdrew from empire and the era of superpower rivalry began.” Scholars in Australia also argue that the term is a proxy for a regional order predicated on US dominance (Bisley & Schreer, 2018, p. 302).

It is important to reflect on the specific utility of the rules-based order in the context of the Indo-Pacific. Why not law-based order? International law had long been viewed as a benchmark for legitimization, positioned as an apolitical and binary standard “against which to measure the appropriateness of action” (Scott, 2018, p. 631). The RBO reflects US preferences for an “international legal order with weak centralized enforcement and adjudication” (Krisch, 2005, p. 392). It has in-built flexibility as it incorporates the “softer law” preferred by great powers unwilling to delegate power to smaller states. Others suggest that the move from international law to RBO as a normative standard for judging state behavior reveals anxieties that the balance of power is tilting away from the US, affecting its unique power in shaping international law (Scott, 2018, p. 640). This concern is particularly acute in Asia, home to the US’ peer competitor, China. Some international law experts express concern that the RBO framing undermines “the normative legitimacy and authority of international law” and that international rule of law is or will be superseded by “quasi-legal and political concepts” that are not legal rules (Jorgensen, 2021, p. 12). As a strategic narrative often used in support of a liberal conception of international order—arguably something that never existed in Asia—states may also downplay the extent to which international law is interpreted differently (Jorgensen, 2021, p. 225). They are rarely directed at the US, despite its history of avoiding or violating international law (Scott, 2018). The objective of these narratives, rather, is to maintain a “favorable” balance of power (Australian Government, 2017) in the context of China’s rise, relying on the continued presence of the US in Asia.

A third unifying theme is the moral claims Indo-Pacific powers make in projecting their image as “maritime democracies.” In making legitimacy claims to domestic and international audiences, they contrast themselves to the authoritarianism of China and Russia by emphasizing their democratic credentials. For instance, the 2021 statement announcing the AUKUS trilateral security partnership between the US, UK, and Australia began by expressing their shared tradition as “maritime democracies” (U.S. White House, 2021a). While China and Russia reject Indo-Pacific strategic narratives as a containment strategy, the RBO presents a vision in which states—powerful and small, democratic and non-democratic—agree to be bound by common norms, principles, and agreements.

As a maritime regional construct, Indo-Pacific adopters are especially interested in maritime disputes and the capacities of rules and norms to maintain good order at sea. It emerged in a context of normative contestation where battles are fought around the application and interpretation of maritime rules viewed as critical to preserving free and open trade and ensuring the peaceful resolution of disputes (Strating, 2019). In a joint statement in September 2021, the Quad declared that they were determined to “meet challenges to the rules-based maritime order in the East and South China Seas” (U.S. White House, 2021b). The states also committed prioritizing “international law in the maritime domain” and increase cooperation to enhance “the rules-based maritime order” in and beyond the SCS (U.S. White House, 2021b). A joint statement from India and Australia in 2020 also highlighted the seas as a theater of geopolitical contestation, noting that “many of the future challenges are likely to occur in, and emanate from, the maritime domain” (Indian Ministry of External Affairs, 2020b).

These states view the endurance and credibility of UNCLOS as under challenge from China. Annex VII, Article 287 of UNCLOS offers states a range of IMDR options, including the International Tribunal for the Law of the Sea (ITLOS), ad hoc arbitrations and compulsory conciliations. Beijing’s rejection of the Philippines’ use of an arbitral tribunal in the SCS disputes constituted under annex VII in 2013 has been used as an exemplar of China’s revisionist intentions (Strating, 2020). China’s “rule-breaking” provides the backdrop for understanding the centrality of sea-based norms in Indo-Pacific RBO sub-narratives, particularly freedom of navigation, international rule of law, and dispute resolution in accordance with international law. Indo-Pacific powers have pressed China to abide by and respect the SCS arbitral tribunal ruling. Australia, for example, followed the US with a 2020 note verbale to the UN rejecting China’s claims that the tribunal found inconsistent with the UNCLOS (Commonwealth of Australia, 2020). The UK also broadly objected to China’s historic rights claim in line with the arbitration, and in 2018, its Royal Navy conducted a US-style Freedom of Navigation Operation challenging China’s offshore archipelago claim in the SCS (UK Government, 2020). While India has been more circumspect in its public diplomacy, its officials expressed support for the Philippines’ decision to use IMDR processes, reaffirming that all parties should “show utmost respect for UNCLOS” and differences should “be resolved peacefully” (Strating, 2020, p. 12, 36).

In response, China argues that it legally excluded itself from the compulsory dispute settlement procedures outlined in UNCLOS in 2006. Article 298(1)(a) allows states to exclude themselves from compulsory procedures that entail binding decisions with respect to maritime boundary disputes. Nevertheless, the tribunal found itself competent to adjudicate, and ultimately rejected China’s “historic rights” claim within the nine-dash line as inconsistent with international law. It also found that none of the land features subject to the arbitration could be legally classified as islands, and thus carried no entitlements to an Exclusive Economic Zone (EEZ) or continental shelf. China’s political leaders refused to participate in, or accept the ruling of, the arbitral tribunal. Like many great powers, China prefers bilateral negotiations to court/arbitration settlements; these are more “receptive to exceptional rules for powerful states,” particularly in asymmetrical contexts (Krisch, 2005, p. 390).

Regional powers may also prefer bilateral negotiations in settling disputes with smaller powers as they are “far more likely to be influenced by the superior power of one party than are multilateral negotiations” (Krisch, 2005, p. 390), or for that matter, IMDR proceedings. Of the 186 bilateral maritime agreements analyzed by Ásgeirsdóttir and Steinwand (2015), 74 per cent explicitly stated that bilateral negotiations were the preferred way to settle future conflicts, rather than the IMDR options provided under UNCLOS. Even norm preservationist states such as Australia have sought to “untie” themselves from previously agreed upon commitments “to ensure flexibility and to minimize costs from future conflicts”, including in bilateral maritime disputes (Ásgeirsdóttir & Steinwand, 2015, p. 120). As the case studies below indicate, however, rhetorical entrapment strategies using the RBO can compel regional powers to change their approaches to IMDR mechanisms.

The RBO and the evolution of interests: The Timor Sea Compulsory Conciliation

In April 2016, three months before the SCS ruling was announced, the small island state of Timor-Leste initiated the world’s first United Nations Compulsory Conciliation under annex V, section 2 of UNCLOS. The conciliation concerned its long-running dispute with neighboring Australia over maritime boundaries and lucrative hydrocarbon reserves in the Timor Sea. Historically, Canberra had assiduously avoided using formal IMDR processes in maritime boundary negotiations, preferring bilateral negotiations instead. At first reluctant to engage in international litigation, Australia was compelled to change its stance.

Background

By the time of Timor-Leste’s independence in 2002, realpolitik had guided Australia’s Timor Sea policies for over three decades (McGrath, 2017). The only Western country to provide de jure recognition of Indonesia’s illegal occupation of Timor-Leste, Canberra’s decision-making was driven by its commercial interests in splitting hydrocarbon resources in the Timor Sea with Jakarta. As the two states had differing approaches on continental shelf delimitation, they elected to defer maritime boundaries in favor of joint development.¹ The 1999 independence referendum in Timor-Leste meant that Australia needed to negotiate a new deal with the new state.

Like Indonesia, Timorese leaders held a different perspective from Australia on where continental shelf boundaries should lie in the Timor Sea. In March 2002, Australia’s Foreign Minister and Attorney General presented Canberra’s “strong view” that maritime boundary disputes are “best settled by negotiation rather than litigation,” an approach that provided Australia a strategic advantage given its relative power (Garrett, 2004). By the turn of the century, Australia’s view that the boundary should be drawn according to natural prolongation—extending it closer to East Timor’s coastline than a median line—had lost favor in international jurisprudence. Keen to avoid the use of an international court or arbitral tribunal to decide maritime boundaries, three months prior to Timorese independence, Australia withdrew from binding third-party adjudication of maritime boundaries under article 298(1)(a) (Australian Government, 2002a). As discussed above, such moves are compliant with UNCLOS, despite the “compulsory” nature of embedded dispute settlement mechanisms. Nevertheless, Australia’s actions were cast by pro-Timor advocates as contrary to the RBO because it sought to circumvent compulsory IMDR processes and avoid its responsibilities to peacefully resolve maritime boundary disputes (Beeson & Chubb, 2021).

Timor-Leste (represented by UN negotiators) was compelled to negotiate a treaty largely on Australia’s terms. The 2002 Timor Sea Treaty established a Joint Petroleum Development Area (JPDA) in which 90 per cent of the upstream revenues went to Timor-Leste. Yet its maritime boundaries remained undefined, and Australia gained valuable downstream revenues from oil and gas processing. This became a considerable source of tension in the bilateral relationship, as the Timor Sea Treaty avoided the issue of who owned the Greater Sunrise gas field straddling the JPDA (at one time valued at US$40 billion). The 2007 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) split Greater Sunrise upstream revenues 50:50 but deferred maritime boundary delimitation and the contentious issue of how the field would be developed (Schofield, 2007). In 2007, a new government in Dili began advocating a development plan to build a pipeline to transport the Greater Sunrise gas to a planned processing hub called Tasi Mane. Unable to convince Australia and joint-venture partners of the plan’s commercial viability, Timor-Leste’s leaders switched to discrediting the CMATS treaty and pursuing maritime boundaries.

Response to IMDR processes

Australia’s exclusion from compulsory adjudication blocked Timor-Leste from pursuing litigation relevant directly to maritime boundaries, although Dili instituted a range of legal proceeding on adjacent issues to put public pressure on Australia on maritime boundaries (Strating, 2017). While Australia maintained that the 2006 treaty was valid, it faced extensive criticism by Timorese leaders and civil society organizations that it was undermining the RBO by refusing to negotiate boundaries (see Strating, 2019). Timor-Leste’s leaders and supporters weaponized Australia’s RBO narratives against it, pointing out the double-standards in condemning China’s behavior in the SCS but refusing to the negotiate boundaries with the Timorese. Timor-Leste’s Ambassador Abel Guterres argued that Australia “does not conform to the behavior of a country that wants to also exert its international rules-based leadership in our region and beyond” (Allard, 2016). Criticism by Timor-Leste’s politicians also compared Australia’s preference for bilateralism with China’s in the SCS. On a visit to Washington DC in 2016, Timor-Leste’s Prime Minister, Rui Maria de Araújo, stated: “If we could not resolve these issues following the principles of international law, how can you expect one of your big allies to stand up to China and tell them to follow international law?” (De Luce, 2016). The intent was to encourage the US to push its junior ally into boundary negotiations. Timor-Leste’s public diplomacy strategy also engaged analysts and civil society organizations within Australia to call out Canberra’s “two-step” hypocrisy (Leach, 2016). While Australian commentators criticized China for “trashing” the RBO by refusing to recognize international arbitration in the SCS, they overlooked Australia’s “similar position” in its Timor Sea maritime boundary dispute (Bateman, 2016). China also publicly and privately accused Canberra of hypocrisy in its Timor Sea diplomacy (Wroe, 2018).

The rhetoric forced officials to publicly reject the claim that its approach mirrored Beijing’s (Cox, 2016a). Diplomats defended joint development on the grounds that UNCLOS “specifically encourages countries to enter into this type of provisional arrangement” (Cox, 2016b). They also argued that its approach cohered with Australia’s historical position that maritime boundaries be negotiated without interference by international institutions. While it was legal for any country to establish reservations under UNCLOS, Jorgensen (2016) pointed out that Australia itself “had set the objective of strengthening regional rules and architecture.” The debate highlights a crucial tension arising from these political discourses; gaps are inherent in international law and permit multiple and contradictory interpretations of conformance.

Australia’s exclusion led Timor-Leste to employ novel Compulsory Conciliation proceedings in April 2016. According to UNCLOS (article 297 and 298 and Annex V, section 2), Compulsory Conciliation may be instituted without the consent of the other party, is non-binding and produces a report that may or may not be factored into bilateral negotiations. Australia initially disputed the competence of the conciliation on the grounds that existing treaties already existed. Knowing it would likely fail, Australian officials publicly emphasized the “non-binding” nature of any resultant report. After the conciliation panel ruled itself competent, Australia described Timor-Leste as contravening “prior agreements between our countries not to pursue proceedings relating to maritime boundaries” to persuade the public that it was Timor-Leste not Australia undermining the RBO (Doran & Lloyd, 2016; United Nations Compulsory Conciliation, 2016). However, Australia’s hardball treatment of its smaller neighbor—particularly the allegations that Australia had spied on Timorese negotiators during treaty talks in 2004—damaged Australia’s RBO credentials, at a time when Australia’s use of the RBO had intensified as it targeted Beijing’s refusal to abide by the SCS arbitral tribunal ruling. As Timor-Leste argued that Australia had breach the “good faith” condition required under the Treaty of Vienna by spying during negotiations, Timorese Prime Minister Rui Maria de Araújo described Australia’s actions as “at least morally” criminal (Cannane et al., 2015).

The ruling

While initially reluctant, Australia ultimately participated in good faith in the conciliation, and the outcomes—most significant of which was the 2018 Treaty on the Timor Sea Maritime Boundary—reflected a “flexible pragmatism” from both sides (Strating, 2019). For its part, Australia conceded in two areas: delimiting maritime boundaries and abolishing the 2006 treaty. Why did Australia’s approach shift? Partly it was a result of the IMDR process itself: the conciliation acted more as a facilitated bilateral negotiation than an arbitration, and the panel emphasized creative problem-solving. While mostly adhering to equidistant delimitation principles, the resultant boundary deviated in several ways from the standards set out in UNCLOS. The treaty outlined that if the gas is piped to the Darwin plant, then revenues will be split 80–20 in Timor-Leste’s favor, and 70–30 if the pipeline goes to Timor-Leste (Governments of Australia & Timor-Leste, 2018). Yet the states again sidestepped the central and most materially consequential aspect of the dispute: how to develop the Greater Sunrise field. The Timor Sea Conciliation Report included an economic assessment of competing development models for Greater Sunrise that was not favorable towards the Tasi Mane/pipeline plan and was publicly denounced by influential Timorese leader Xanana Gusmão. While Timor-Leste’s share of the existing upstream revenues increased from 90 to 100 percent, the main JPDA field Bayu Undan was expected to expire in the early 2020s (Evans, 2021). Australia’s commercials losses in accepting the 2018 treaty were outweighed substantially by the gains it had accrued over nearly two decades by delaying maritime boundary delimitation. As its commercial stakes in the Timor Sea declined, Australia’s interests in shoring up the legitimacy of the UNCLOS-led maritime order increased. Structural factors such as China’s rising power and SCS actions coupled with declining JPDA revenue contributed to reorienting Australia’s Timor Sea policy.

Crucially, the agreement provided Australian representatives with a tangible example of Australia’s commitment to the RBO at a time when these discourses where in their ascendency. In Parliament, Australia’s Minister for Foreign Affairs Julie Bishop described the signing as a “landmark for international law and the rules-based order" (Commonwealth of Australia, 2018). In justifying the treaty negotiation it had previously worked hard to avoid, Australia cast it as “an example of the rules-based order in action” (Australian Department of Foreign Affairs and Trade, 2018). Historically, Labor and Coalition governments had been willing to absorb reputational damage in their realpolitik treatment of Timor-Leste. Following the 2018 treaty, Australia delayed ratification for a year, allowing it to continue to accrue upstream revenues from the JPDA, exposing Canberra to criticism that it was “siphoning” millions of dollars in revenue from its smaller neighbor (Davidson, 2019). Australia’s handling of the claims of alleged spying on Timor-Leste’s negotiators by litigating secret trials against the whistle-blower “Witness K” (who exposed Australia’s spying) and his lawyer under the National Security Information Act also damaged Australia’s democratic credentials, casting doubt over political overreach in judicial affairs (McGrath, 2020).

Why did Australia change its decades-long approach to this bilateral dispute with a much smaller state? The policy shift needs to be understood within a broader context of structural change, yet realist theory alone cannot explain it. This is because if Timor-Leste’s (and China’s) rhetorical legitimation strategies had not used Australia’s RBO narratives to link the two sets of disputes—the Timor Sea and the SCS—then it is not otherwise clear that the Timor Sea dispute would have become entangled with broader regional politics. Australia would likely have been able to continue its realpolitik approach. The shifting balance of power, therefore, provides one part of the puzzle for how Australia became rhetorically entrapped. The second part is how Australia’s own rhetoric was mobilized against it. Indeed, scholars such as McGrath (2017, pp. 190–191) and Beeson and Chubb (2021) have argued that Australia was forced to change its approach to stem reputational damage domestically and internationally. Australia was both entrapped by the rhetorical legitimation strategies of others, and self-entrapped as its own argumentation ultimately failed to reconcile its RBO rhetoric with its actions in the Timor Sea. Rather than alter or downplay its RBO discourses, Australia instead shifted its approach to the maritime dispute. Its own Indo-Pacific strategic narratives—especially around the RBO and peaceful dispute resolution—played an important role in forcing a reconsideration of the compulsory conciliation, and then maritime boundary delimitation. There was strong impetus for the Australian government to resolve an inconvenient dispute that was blunting the cut-through of its Indo-Pacific narratives. Even after the maritime boundary signing, some argued that it was “a stretch” for Australia “to present itself as a staunch supporter of maritime rights and international dispute resolutions” given its approach to the Timor Sea (Bijl, 2019; see also Beeson, 2019). Ultimately, the unintended effects of rhetorical entrapment or “boomerang rhetoric” meant that the state constrained by Australia’s RBO narrative was Australia.

Aligning the RBO with regional leadership ambitions: Bay of Bengal Maritime Boundary Arbitration

On July 7, 2014, an Arbitral Tribunal constituted under Annex VII of UNCLOS was initiated by Bangladesh in its maritime boundary dispute with India in the Bay of Bengal. While primarily a maritime dispute, the contested ownership of New Moore/South Talpatti land feature constituted another barrier to resolution (Hasan & Jian, 2019, p. 328). In contrast to Australia, India—for the most part—accepted the use of IMDR mechanisms, reflecting its geopolitical considerations of power dynamics in the Indian Ocean Region (IOR).

Background

The Bay of Bengal disputes date to the partition of India in 1947, when a territorial border was established between India and Bangladesh (East Pakistan). They concerned overlapping claims to maritime jurisdiction, including the location of the land boundary terminus and delimitation of territorial sea, EEZ, and the continental shelf boundaries (Arbitral Tribunal, 2014). The emergence of a small, unoccupied land feature named New Moore by India and South Talpatti by Bangladesh off the coast of the Ganges-Brahmaputra delta region in 1970 intensified the disputes. India claimed New Moore as part of its territorial sea on the principle of discovery; Bangladesh deemed South Talpatti as part of its own territorial waters, claiming the mid-channel flows of the Hariabhanga River (on the India-Bangladesh border) were to the west of the island (Hasan & Jian, 2019, pp. 329–330). In 1981, India sent paramilitary fighters and hoisted an Indian flag to demonstrate effective occupation (Associated Press, 2020). Partly the dispute was driven by a growing demand for energy resources: in 2006, India discovered roughly 100 trillion cubic feet of hydrocarbon deposit in the vicinity of the land features, followed by Myanmar’s discovery of another 7 trillion cubic feet (Tanaka, 2011, p. 270). In the same year, India put up for bid oil and gas blocks including over 15,000 square kilometers in the contested Bay of Bengal area.

The parties conducted eight failed rounds of bilateral negotiations between 1974 and 2009, but the concave semi-enclosed geography of the Bay of Bengal created complications (Page, 2015). India argued that maritime boundaries should be based on an equidistance (or median) line, while Dhaka believed that such a delimitation method would “cut off” Bangladesh’s full access to maritime entitlements and deny it an equitable solution (Arbitral Tribunal, 2014, pp. 93–94; Rehman, 2017, p. 11). By 2008, sea boundary talks resumed, reflecting India’s preference for bilateral negotiations; like Australia, India believed the power asymmetry operated in its favor (Rehman, 2017, p. 1). Bangladesh, however, preferred international arbitration in which it could advocate an “angle-bisector” method of maritime delimitation.²

Response to IMDR processes

After failed talks in March 2009—and reports that an Indian survey ship, accompanied by two naval vessels, had entered disputed waters—Bangladesh officially sought judgement under UNCLOS in October 2009. Delhi initially adopted a “wait-and-see strategy,” coordinating with Myanmar and providing legal representation in its maritime dispute with Bangladesh. Neither Bangladesh or India specified an interest in an ITLOS or ICJ hearing, so the dispute automatically went to an arbitral tribunal (Rajput, 2018, p. 26). Unlike Australia, India did not withdraw from compulsory boundary dispute resolution clauses or dispute the tribunal’s competence. It did, however, hold firm to the argument that equidistance should be used to delimit the maritime boundary throughout the arbitral tribunal processes. As would later become evident, India’s resigned acceptance of the use of IMDR processes – despite its preference for bilateralism – would offer strategic benefits in the IOR.

The ruling

In 2014, the Arbitral Tribunal awarded nearly 80 per cent of the disputed maritime area to Bangladesh (19,467 km2 out of 25,602 km2 of disputed area), more than tripling the size of its EEZ (Rehman, 2017, p. 1). While the tribunal agreed with India that equidistance is the default delimitation method, it acknowledged that such a line would squeeze Bangladesh’s maritime entitlements and created a line ultimately similar to the bisector line (Song, n.d, p. 20). In the search of an equitable solution, the tribunal used a novel if arbitrary approach to boundary delimitation but failed to clearly show how it came to that boundary (Rosen & Jackson, 2017, p. iv). It established a “grey area” in which India holds EEZ rights to water column resources while Bangladesh holds extended continental shelf (seabed) rights. While Bangladesh appeared the winner in terms of maritime rights, India retained a “greater proportion of EEZ than Bangladesh relative to the ratio of their relevant coastlines, a standard measure of whether the delimitation of a maritime boundary is equitable” (Rosen & Jackson, 2017, p. iv). Most of the sea area surrounding South Talpatti/New Moore Island also went to India. By 2010, however, the question of New Moore Island/South Talpatti “sovereignty” had become redundant as rising sea levels had sunk the feature beneath the high-water tide.

India’s acceptance of the ruling highlights the “compliance pull” of international law in a time of strategic competition. An Indian Ministry of External Affairs spokesperson said Delhi accepted the Award and that the “settlement of the maritime boundary will further enhance mutual understanding and goodwill between India and Bangladesh by bringing to closure a long-pending issue” (Paul, 2014). Concerns about the regional order shaped India’s responses to IMDR processes in the Bay of Bengal, particularly concerning the balance of power in this important maritime domain. Bangladesh’s Foreign Minister, Abul Hassan Mahmood Ali, described the ruling as a “victory of friendship and a win-win situation for the peoples of Bangladesh and India” (as cited in Al Jazeera, 2014). He commended “India for its willingness to resolve this matter peacefully by legal means and for its acceptance of the tribunal’s judgment” (Al Jazeera, 2014).

There were three key strategic benefits for India in participating with the IMDR process and accepting the ruling. First, its engagement highlights India’s interest in developing its “role model” credentials and “diplomatic maturity” (Pattison, 2015), displaying its maritime power ambitions in the IOR. Singh saw India’s acceptance of the ruling as “graceful” and “remarkably accommodating of the claims and concerns of its regional neighbors” (Singh, 2018). Similarly, Rosen and Jackson viewed India’s response as reaffirming the rules-based order and “signaling that outcomes under UNCLOS are ultimately fair” (Rosen & Jackson, 2017, p. v). Pattinson also viewed the ruling as profound because a “potential” great power allowed its “smaller, poorer and less powerful neighbor to hold firm on integral aspects of its national interest” (Pattison, 2015). In strategic narratives, Delhi could depict itself as a “benevolent” power “ready to share in, rather than dominate” political and economic development in the IOR (Page, 2015). India’s approach allowed it to articulate normative coherence between its Indo-Pacific rhetoric and actions towards smaller neighbors.

Second, India’s leadership was contrasted to China’s “open contempt” for the SCS ruling in strategic narratives (Chellany, 2019). While Bay of Bengal legal processes overlapped the SCS arbitration and pre-dated official Indo-Pacific discourses, government officials drew on the ruling as an example of India’s commitment to the RBO and peaceful resolution of disputes, providing a potential model for the SCS (Indian Ministry of External Affairs, 2015a; Pattison, 2015). At the 2015 East Asia Summit, Prime Minister Modi linked India’s responsible statecraft with the SCS disputes: “India and Bangladesh recently settled their maritime boundary using the mechanism of UNCLOS. India hopes that all parties to the disputes in the South China Sea will abide by the Declaration on the Conduct on South China Sea and the guidelines on the implementation” (Indian Ministry of External Affairs, 2015b). India’s projection of itself as a regional role model in maritime affairs by juxtaposing its actions against Beijing’s was accepted by other Indo-Pacific powers: U.S. Admiral Harry Harris, for example, also favorably compared India activities with China’s threat “to the rules-based architecture” (as cited in Rehman, 2017, p. 14).

Third, its engagement with the IMDR processes allowed India to promote itself as prioritizing good relations with neighbors (especially in the economic domain). Some analysts have expressed concern that “China is encircling India through its MSR [Maritime Silk Road] or String of Pearls strategy” in the Indian Ocean (Aryal, 2021, p. 7). Indeed, the “meme” that Beijing would seize strategic assets such as a port, or an airfield by offering unsustainable infrastructure loans—otherwise known as the “debt-trap diplomacy”—was created in an Indian think tank (Brautigam, 2020). Partly in response to these concerns, the Modi government sought to build upon India’s historical “Neighborhood First” policy to improve ties with neighboring states, including through maritime cooperation and forums such as the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) (Indian Ministry of External Affairs, 2020a). Prime Minister Modi’s first state visit to Bangladesh in 2015 saw twenty bilateral agreements signed, including on blue economy, maritime security, and coastguard cooperation (Song, n.d., p. 16). On visits to India by Bangladesh’s Prime Minister Sheik Hasina in 2016 and 2019, both states agreed to cooperate on maritime security and energy development, bolstered by their first joint naval drill in 2019 and India assisting Bangladesh to install coastal radars in the Bay of Bengal (Baruah, 2020). The resolution of maritime boundaries promised to provide greater economic certainty by unlocking hydrocarbons in the Bay of Bengal, with a potential boost for domestic political opinion in each state.

India’s strategic interests in dealing with a rising China was an important factor in how and why it elected to participate in an IMDR mechanism. Yet it was not the only factor: of particular importance was how the Bay of Bengal case became linked to the SCS through strategic Indo-Pacific narratives (similar to the Timor Sea). Without this issue linkage, it is not clear how balance of power explanations would have shaped India’s preferences in this discrete case. India’s strategic narratives in response to the Arbitral Tribunal suggests that it benefited reputationally from RBO compliance and normative coherence, and it used the case in its rhetoric to differentiate its regional leadership from that of China. Justifying its actions as a responsible, law-abiding state and regional leader in the context of China’s rising influence in the IOR was ultimately more important than persisting with failing bilateral negotiations or refusing to compromise on claims (Rajput, 2018, p. 32). Yet while India’s behaviors have been promoted as a win for the maritime rules-based order, it has not been without tension. In August 2017 India presented a note verbale to the UN protesting Bangladesh’s new baselines, arguing that a seaward shift in Bangladesh’s claimed EEZ violated the tribunal ruling (Song, n.d, p. 18). While the “grey area” was a novel solution to a delimitation puzzle, the overlapping area may be an area of ongoing disagreement.

Contested RBO and the Chagos Island Marine Protected Area Arbitration

The Chagos case is more complex as it constitutes a “mixed dispute” involving concurrent and interrelated contests over sovereignty and maritime jurisdiction (Bugat, 2012). Contested sovereignty is at the heart of many intractable maritime disputes, including in the SCS. That “land dominates the sea” is a law of the sea precept and means that maritime rights are derived from recognition of a coastal state’s sovereignty (Dupont, 2018). When sovereignty is unclear or ambiguous, this has implications for maritime claims. On April 1, 2010, the UK designated a Marine Protected Area (MPA) around the Chagos Archipelago, a small group of atolls it claims in the Indian Ocean. Mauritius—also a claimant state—responded by instituting legal proceedings under UNCLOS and amplifying public narratives contesting the legality and legitimacy of the UK’s actions. Mauritius has demonstrated some success in entrapping the UK through RBO narratives, evidenced by London’s recent decision to reopen negotiations around the sovereignty of Chagos.

Background

It is useful to briefly outline the political history of the Chagos Archipelago, which fell under British control in the nineteenth century as part of the colony of Mauritius (Allen, 2014). Prior to Mauritius’ decolonization, the UK detached the Chagos archipelago from Mauritius administration via the 1965 Lancaster House Undertakings. UK and Mauritian representatives agreed that the UK would hand back the islands to Mauritius when Chagos was no longer required for defense purposes, and Mauritius would be entitled to any oil or minerals discovered in or around the archipelago and retain fishing rights “as far as practicable” (Arbitral Tribunal, 2015, p. 28). In the same year, the UK formally established the islands as an overseas territory called British Indian Ocean Territory (BIOT). From 1967–1973, the UK forcibly removed around 1500 Chagossians to Mauritius and Seychelles and prevented them from returning. Over time, Mauritius has challenged the lawfulness of the UK’s actions in separating the Chagossians from their homeland and separating Chagos from Mauritius. Although UK compensated Mauritius in 1982, Mauritian officials claim they were coerced into an agreement that does not hold the status of a treaty (as Mauritius was not yet a sovereign entity), constituting a violation of self-determination.

The Chagos Archipelago would play an important geostrategic role in the IOR. In 1964, the UK and the US agreed that London would detach the islands to provide land for a US military facility as part of a Cold War containment strategy. In 1966, the UK leased the biggest island (Diego Garcia) to the US, providing US bombers “unparalleled reach” and subsequently used in major US military operations (Harris, 2015, p. 507, 509; Salter & Mutlu, 2013, p. 815, 822–823). UK officials have viewed the Chagos Archipelago as necessary for “regional and global security and defence” and supporting relations with the US and other partners (UK Parliament, 2017). Yet, in the post-September 11 period, the US has been accused of undermining international law by using Diego Garcia for “rendition” flights (conveying suspected terrorists to torture) (Robertson, 2012).

Incomplete decolonization has maritime affects. According to Mauritius, the BIOT is invalid as Britain is only a “temporary freeholder” of Chagos archipelago (Arbitral Tribunal, 2015, p. 85). Despite contested sovereignty claims, the UK proceeded with establishing an MPA in 2010 (De Santo et al., 2011, p. 258). Differing from an EEZ or continental shelf, the MPA was the world’s largest “no-take” area for fishing sustainability and conservation. Extending 200 nautical miles from the coastline of the archipelago, the MPA covered an area of more than half a million square kilometers.

In December 2010, Mauritius initiated a legal challenge to the MPA under Annex VII of UNCLOS and an arbitral tribunal was constituted. While UNCLOS is not designed to resolve sovereignty disputes, Mauritius argued the MPA was illegitimate because the UK was not the “coastal state” of the Chagos Archipelago, and it infringed its fishing entitlements.

Response to IMDR processes

Like Australia in the Timor Sea conciliation, the UK initially disputed the tribunal’s jurisdiction. Representatives declared the process “artificial and baseless” and cast Mauritius as attempting “an artificial re-characterization” of the sovereignty dispute by challenging the UK’s status as a coastal state under UNCLOS (Arbitral Tribunal, 2015, p. 75). Comparisons may be drawn with China’s view that courts or tribunals facing mixed disputes incorporating sovereignty and maritime claims should refrain from exercising jurisdiction (Qu, 2016).

The UK also drew on narratives that Mauritius was inappropriately internationalizing a bilateral dispute when Mauritius petitioned the UN General Assembly to request an International Court of Justice (ICJ) advisory opinion on Chagos sovereignty in 2017. A UK foreign office official declared this “an inappropriate use of the ICJ mechanism” and “an unwelcome precedent for other bilateral disputes” (Sonwalker, 2017). UK officials described Mauritius as undermining international principles of dispute settlement by “multilateralizing” the issue (UK Parliament, 2017; UK Parliament, 2019). Sir Alan Duncan, then-Minister of State for Europe and the Americas, viewed the ICJ advisory opinion as an “attempt to circumvent the principle that no state should be compelled to have its bilateral disputes submitted for judicial settlement without its consent, not least on matters of sovereignty” (UK Parliament, 2017). This privileging of bilateralism over multilateralism was similar to some of Australia and China’s strategic narratives. In all three cases, the bigger power viewed itself as entitled to choose the means of dispute resolution, with bilateralism assumed to work to their advantage (Ying, 2016).

The ruling

Mauritius was partially successful in challenging the UK’s MPA around the Chagos Archipelago. The nuanced ruling, however, has permitted different interpretations to emerge. The 2015 award stated that the UK’s declaration of the MPA failed to accommodate certain legitimate interests of Mauritius and breached certain obligations under UNCLOS. While unable to arbitrate on sovereignty issues (Arbitral Tribunal, 2015, p. 90), Mauritius came close as the judges split 3–2 on whether the Lancaster House Undertakings were legitimate.

The UK accepted the ruling but adopted a two-pronged approach in protecting its material and strategic interests. First, it created a narrative that the UK had “won” the sovereignty dispute (Appleby, 2015). Officials insisted that the UNCLOS tribunal had affirmed the 1965 agreement and that “no international court or tribunal has ever found our sovereignty to be in doubt” (UK Parliament, 2019). Second, in relation to UNCLOS breaches, the UK established a minimalist interpretation of its post-arbitration legal responsibilities. Mauritius viewed the MPA as violating international law and argued that it should be rescinded and re-negotiated (Mauritius Parliament, 2016, p. 9). In contrast, London’s public position was that nothing of substance was altered by the ruling, including the MPA’s legality.³ For the UK, Mauritius holds legally binding rights to fish in the waters surrounding BIOT which required the UK to consult with Mauritius on the MPA. To that end, the BIOT administration expressed its commitment to the ruling through its “efforts to engage” Mauritius, reaffirming that sovereignty would only be ceded when Chagos is no longer needed for defense purposes.⁴ While three meetings were held following the Award, Mauritian officials declared that “hardly any progress” was made and very little had changed after the ruling (Mauritius Parliament, 2016, p. 10).

Critics have argued that the UK’s actions do not align with its rules-based rhetoric. The UK government was presented as “greenwashing” colonialism and militarism through the MPA (Pearce, 2010; Rambaree, 2020). WikiLeaks cables showed UK and US officials negotiated to safeguard US interests in the Chagos Archipelago, with a UK official reportedly stated that the Chagossians would find it difficult to pursue a resettlement claim “if the entire Chagos Archipelago were a marine reserve” (United Kingdom, 2009). This was denied by the relevant minister in UK parliament (UK Parliament, 2016). In parliamentary debates, the strategic significance of Diego Garcia justified the MPA and one government official argued the arbitral tribunal “found no evidence of improper purpose” in its creation (UK Parliament, 2016). Other allegations questioned the sustainability rationale of the marine park while Diego Garcia damaged the environment, including reports that the US military poured hundreds of tons of human sewage and wastewater into a protected coral lagoon (UK Parliament, 2014).

Other legal opinions have consolidated the notion that the BIOT violates Mauritius’ territorial integrity. As maritime claims run with the land, these rulings also cast doubt on the legitimacy of the UK’s maritime zoning in the BIOT. In 2019, an ICJ advisory opinion rejected UK sovereignty over the Chagos Archipelago on the grounds that Mauritius’ decolonization was not lawfully completed. The same year, the UN General Assembly voted in favor of strongly condemning British occupation of Chagos Islands, calling for Mauritius’ complete decolonization. In 2021, a Special Chamber in the Mauritius-Maldives maritime boundary dispute re-affirmed the ICJ’s advisory opinion as having legal effect and “Mauritius’ sovereignty over the Chagos Archipelago can be inferred from the [Court’s] determinations” (ITLOS, 2021). Mauritius’ leaders reaffirmed its position that the MPA was illegal and has shifted to considering its own MPA around the archipelago (Mauritius Parliament, 2019, p. 172).

In Westminster, critics also argued that the UK was acting in contrary to the RBO that it champions in strategic narratives. There are ongoing concerns about Britain’s compliance with self-determination norms, including the validity of its historical claim over Chagos and the Lancaster House undertakings (UK Parliament, 2019). The rulings placed the UK in an “awkward position of having to defend a colonial legacy in the Indian Ocean whose establishment is at least in tension with the legal principles applicable to decolonization” (Guilfoyle, 2021, p. 765). Katselli (2019), for example, argues that “Britain’s expressed policy that it will protect its interests at any cost, even at the expense of international law and fundamental human rights, has unwelcome echoes of colonialism and discrimination that should have no place in the twenty-first century.” In response, UK supporters argued that compensation had absolved the UK of further responsibilities in negotiating self-determination claims, and the UK would hand over Chagos when it no longer served its defense purposes (essentially a subjective decision left to the UK).

The most important driver of the UK’s desire to maintain the BIOT in the face of adverse international legal rulings, opinions, and advocacy is its broader strategic interests. On Chagossian self-determination—a separate issue from Mauritius’ sovereignty claim—UK politicians have said this needed to be balanced against the “need to operate a military facility that is vital to our security” (UK Parliament, 2016). Like India, the UK is concerned about China’s potential to advance its security position in the Indian Ocean. India, however, has not supported the UK’s Chagos claims. While Australia sided with the UK in the UN, India has prioritized good relations with other IOR states, recognizing the normative power of an anti-colonization stance in the region. Prime Minister Boris Johnson was reportedly unable to convince the Modi government to “‘restrain’ Mauritius from its legitimation and litigation strategies against Britain” (Thakkar, 2021).

Realist balance of power theory alone does not provide a complete explanation for the UK’s actions in the Chagos disputes. If it was only about balance of power, then the UK would have been unlikely to shift on negotiating with Mauritius on the sovereignty question or sought to defend its reputation domestically and internationally. Nevertheless, in this case, Diego Garcia has been perceived by the UK as important for containing the rise of China, which explains the UK’s reluctance to cede Chagos despite the reputational costs of RBO non-compliance (Bashfield, 2020, p. 177). Yet this has posed reputational problems as the UK has sought to build its regional power credentials via the “Indo-Pacific tilt” and a rhetorical commitment to rules (UK Government, 2021). In November 2022, the UK announced it would open negotiations with Mauritius on the Chagos Archipelago sovereignty issue. While it is unclear how these negotiations will unfold, this move suggests that the UK is susceptible to Mauritian demands for normative coherence, and dispute resolution may be increasingly viewed as important to its broader strategic interests and relationships in the Indo-Pacific.

The RBO: Entrapping Indo-Pacific powers?

Does “rhetorical entrapment” influence the interests and behaviors of Indo-Pacific powers in their asymmetrical disputes? Each of the cases demonstrated policy evolution over time as bigger powers recognized the importance of engaging with IMDR processes in maritime boundary disputes for reputational reasons. Indo-Pacific powers are invested in demonstrating the legitimacy of their actions and behaviors in relation to rules-based rhetoric, particularly given concerns about China’s rule-breaking in the maritime domain. In this sense, rhetorical entrapment does not solely exist in opposition to explanations such as the balance of power; rather, broader structural changes help explain how and why states become rhetorically entrapped, and how this then influences their decision-making in specific cases. The rhetorical entrapment framework provides a more complete understanding of how states might be pressured—both domestically and internationally—to change policy in cases where realist balance of power approaches alone cannot produce satisfactory explanations. In the cases discussed above, the extent to which RBO narratives affected policy development depended on how states judged their interests in maritime disputes within a broader regional context, and their ability to adapt strategic narratives to justify their behaviors as conforming with international rules. One benefit of the RBO is that it is more flexible and less precise than a law-based order, providing a greater range of interpretations of what conforming entails and, therefore, more options for states in their legitimation strategies. Yet, as the cases show, there are limits to this flexibility.

Broader strategic considerations such as China’s maritime dominance and the SCS disputes were shown to factor into the narratives around these specific cases. Concerns about maritime order constrained the realpolitik impulses of India and Australia, although this was also supported by the type of IMDR process. While India’s reaction to the use of IMDR processes was one of resigned acceptance, the UK viewed Mauritius as inappropriately engaging in “strategic litigation” to advance a sovereignty claim (Guilfoyle, 2021). Australia initially tried to argue that its reluctance to involve UN processes demonstrated its RBO commitment, as it supported principles of pacta sunt servanda and the existing CMATS treaty. Yet, it changed its position on the use of compulsory conciliation, partly because it lost its jurisdictional challenge but also because it functioned in practice as a facilitated bilateral negotiation rather than an arbitration imposing a binding outcome. In the Chagos case, the UK accepted the MPA ruling but was largely unwilling to concede on either maritime or territorial claims, and emphasized the advisory, non-binding nature of the ICJ judgement.

The nature of the rulings also mattered for how Indo-Pacific powers responded to the IMDR processes. While the smaller states in each case have been described as “winning” their disputes (Baker, 2018), a critical reading finds this not so straight forward. In the UK case, the MPA ruling permitted minimalist and maximalist interpretations, and the UK was able to accept the ruling while doing very little to reconstitute the MPA. India complied with the ruling because the outcomes were considered “equitable enough” and provided India with enough valuable maritime area to sell the award to a domestic constituency. Australia and Timor-Leste used the compulsory conciliation to help negotiate a maritime boundary, which meant finding new and novel delimitation solutions beyond those offered by UNCLOS. Each ruling did not have a “winner-takes-all” outcome and could bolster the appeal of IMDR processes to countries that might otherwise be disincentivized to seek UNCLOS resolution for fear they might comprehensively lose.

Overwhelmingly, however, the most significant factor in how Indo-Pacific powers responded to IMDR processes was the extent to which they viewed dispute settlement in the context of their overarching strategic interests. The Timor Sea and Chagos cases demonstrated that Indo-Pacific powers may resist or elude international law when it suits their perception of national interest, while continuing to justify their actions as complying with the RBO. In Australia’s case, its use of strategic rules-based narratives coupled with its concerns about China’s maritime revisionism in the SCS ultimately provided an example of rhetorical entrapment as Australia was ultimately forced to change four decades of policy on the Timor Sea. While domestic politics was a factor in Australia’s policy shift, its interests shifted due to two evolving realities: First, Australia’s commercial interests were reduced by the fact the hydrocarbon resources in the JPDA were expected to expire by the early 2020s. By prolonging the moratorium in maritime boundary delimitation for as long as it did, Australia had already gained a significant profit than it might otherwise would have had maritime boundaries been drawn according to median line principles following Timor-Leste’s independence. Second, China’s rejection of the SCS arbitral ruling altered Australia’s calculation of its Timor Sea interests. Canberra’s actions had exposed it to accusations of hypocrisy from Beijing as well as pro-Timor activists, blunting the power of Australia’s strategic narratives. This case provides a cautionary tale for Indo-Pacific powers about the potential power of strategic narrative and litigation approaches of small states, particularly in a period of normative and strategic contestation.

The UK also found itself rhetorically entrapped and has opened bilateral negotiations on Chagos sovereignty while simultaneously maintaining its commitment to leasing Diego Garcia to the US. In grappling with the misalignment between rhetoric and action, leaders relied upon two somewhat contradictory narrative strands: first, the UK was conforming with the RBO (and the ICJ opinion is not legally binding) (BBC, 2019); and second, even if the UK was acting beyond the bounds of the RBO, these would be legitimate given broader concerns about national and regional security. In this second strand, China was cast as a bigger threat to the RBO than its own non-compliance. Countering a revisionist China requires the UK and its partners to secure the IOR through the deployment of hard power and improving its strategic positioning, such as through military basing on Diego Garcia and the role it plays in preserving a US-led regional security order. In 2016, the US and UK agreed that US presence on Diego Garcia would continue until 2036. While Mauritius sought to reassure Washington that it would maintain the Diego Garcia lease agreement if it were to gain control of the islands, the US supported London’s position that UK sovereignty is “essential for the security that the US and the UK provide around the world” (Mauritius Parliament, 2016, p. 12). While new avenues for negotiation suggest that the UK has factored reputation concerns into how it perceives its strategic and relational interests in the Indo-Pacific, it seems unlikely to agree to a solution that would not maintain Diego Garcia as a US-held military base.

India’s refusal to side with the UK (unlike Australia or the US) in its Chagos claims highlights the role of anti-colonial values in its leadership aspirations in the Indian Ocean Region. Such regional considerations also shaped its own interests in the Bay of Bengal dispute. India’s perception of the IOR is not purely of strategic competition between the US and China, but one in which India is the predominant power. Its maritime interests concentrate primarily on the IOR, including the Bay of Bengal. Increasingly, China’s rising influence in the region, expressed through expansionist memes such as the “string of pearls” and “debt-trap diplomacy” have created concerns within India’s strategic elite. Like Australia, these considerations constrained India’s realpolitik impulses in the bilateral context. Compromising on the Bay of Bengal would offer other strategic benefits to India, including the ability to promote itself as a credible and benevolent regional leader that would manage regional relationships differently from aggressive China.

Conclusion

The Indo-Pacific is a concept of region that states have constructed through strategic narratives, of which the “rules-based order” is one of the key discourses. RBO narratives constrain the behaviors of states that adopt the term. In the Indo-Pacific, regional powers have used RBO narratives to target China’s excessive maritime assertions and failure to comply with the SCS arbitral tribunal ruling. Yet this study shows how Indo-Pacific powers can become rhetorically entrapped. Rather than forcing great powers to comply with international law, RBO adopters have themselves been compelled to take different approaches in their own maritime disputes with smaller powers to reduce the perceived inconsistencies between their RBO rhetoric and their actions. In an increasingly contested region, reputation and credibility can play an important role in regional diplomacy as Indo-Pacific powers seek to persuade other states that the US-led order is preferable to authoritarian alternatives. As self-declared maritime democracies, these states were susceptible to the shame and/or praise strategies of smaller states. Ultimately, this produces positive affects for the legitimacy of international regimes such as UNCLOS even though it is not necessarily the intended outcome of Indo-Pacific states’ rhetorical legitimation strategies. As a strategic narrative, the RBO is less effective in changing the approaches of the primary disrupters, including authoritarian powers such as China and Russia.

The case studies demonstrated how the three Indo-Pacific powers under investigation—Australia, India, and the UK—altered their approaches to maritime disputes with smaller states in line with their RBO narratives. In balancing their material (military and commercial) interests and reputational (normative) interests, these states made concessions in the use of IMDR mechanisms and acceptance of legal rulings to varying degrees. Australia contested the jurisdiction of the UN Compulsory Conciliation initiated by Timor-Leste but when this failed, ultimately engaged in the conciliation process that produced a negotiated maritime boundary treaty. India initially adopted a “wait and see” approach to the use of arbitration to solve its long-running boundary dispute with Bangladesh in the Bay of Bengal yet accepted its jurisdiction and ultimately the ruling. The Chagos case also offers some limited optimism around the use of IMDR processes, including the UK’s preparedness to engage with the MPA arbitration initiated by Mauritius. However, its minimalist approach to fulfilling the conditions of the ruling and its response to the broader mixed sovereignty-maritime disputes raises serious questions for Indo-Pacific powers when their material interests clash with their RBO rhetoric.

The RBO has become part of the “strategic” calculus for Indo-Pacific powers. The rhetoric constrains the range of options of adopter states not necessarily because they have internalized the norm but because they projected the idea that law-breaking is illegitimate behavior undertaken by rogue and rival states. India leaned into praise narratives that positively displayed its role-model credentials in the IOR. The other two Indo-Pacific powers in this article—Australia and the UK—produced counter-narratives that sought to align their actions with the RBO rhetoric without changing policies, suggesting weak internalization of the norm. It was the failure to persuade other states and advocacy campaigns that ultimately meant they had to change course. In the UK case, power projection, alliance politics and strategic positioning was viewed as more important for contending with the China challenge than “normative coherence” in its dealings over Chagos; but international pressure has even forced it to the negotiating table with Mauritius over the sovereignty issue it had long sought to avoid.

Although reluctant about the use of IMDR processes, the post-arbitration justificatory language of Indo-Pacific states signaled to China and other states that maritime disputes must be resolved in accordance with international law. Australia and India’s narratives directly invoked the SCS in justifying their acceptance of international legal rulings, and they positioned themselves as “maritime democracies” that provide an alternative form of regional leadership to authoritarian China. Australia’s decisions were shaped by its own RBO rhetoric, which made it susceptible to accusations of hypocrisy by international and domestic audiences. The role of India’s rhetoric is more ambiguous given that the arbitration and ruling came before the SCS arbitration and its intensification of Indo-Pacific narratives. What was compelling, however, was India’s perception of its own leadership role in the Indian Ocean in contrast to China’s as evidenced in the justifications that followed the Bay of Bengal ruling. Like Australia, the UK faced domestic and international criticism for not complying with the RBO, and hard power calculations provided powerful motivations to resist international advocacy campaigns. Yet its recent decision to engage with Mauritius on the issue of Chagos sovereignty is indicative of a “compliance pull” generated in part by its own rhetoric. Perhaps counter-intuitively, then, China’s excessive maritime assertions have had an unintended consequence in encouraging the use of IMDR processes in other regional maritime disputes.

Acknowledgements

The author would like to thank Associate Professor Maria Rost Rublee, Professor Mark Beeson and Associate Professor Jasmine Westendorf for their generosity in providing useful comments and advice on early drafts, and Kate Clayton for her research assistance. The author would also like to thank the anonymous reviewers and editors for their very helpful feedback.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 In the early 1970s, Australia and Indonesia had negotiated continental shelf maritime boundaries that excluded the so-called “Timor Gap.”

2 According to Bangladesh case, the angle-bisector method minimises the role of “micro-geographical features” by rendering the Parties’ coasts “as straight lines depicting their general direction … [and] bisects the angle formed by the intersection of these straight lines to yield the direction of the delimitation line” (Arbitral Tribunal, Award, pp. 93-94; Rosen & Jackson, 2017, p. iii).

3 BIOT Administration, via email.

4 BIOT Administration, via email.

5 Data for population, territory and GDP is drawn from CIA, “Country Comparison: Area”, The World Factbook. Available at: https://www.cia.gov/library/publications/the-world-factbook/rankorder/2147rank.html; CIA, “Country Comparison: Population,” The World Factbook. Available at: https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html; World Bank, GDP (current US$). https://data.worldbank.org/indicator/NY.GDP.MKTP.CD