 Good morning. Good afternoon. Good evening. It is a pleasure to have you all here at day two at the Alexander C. Cushing International Law Conference. Today we will focus on the need for development. I would like to remind you of a few administrative matters. First off, I'm Lieutenant Commander Cynthia Parmele. I'm the U.S. Navy military professor at the Stockton Center for International Law. We're delighted to have you with us today. First, the conference will run from 1,100 to 1,530 Eastern daylight time each day. And we are respectful of your time and we'll try to remain on schedule as best we can. Second, the chat feature is disabled. So you must use the Q&A feature at the bottom of your screen to ask questions. And using this feature, you may also upload questions, questions you also want answered or particularly like. And so we encourage you to engage with our expert panelists by asking questions in the community box. Third, Zoom has a closed caption option for those who would like to read a live transcript of the conference. You can activate the live transcript feature at the bottom right of your Zoom application. Finally, the entire conference is being recorded and will be available on the Naval War College YouTube channel early after the conference concludes tomorrow. Now I'm honored to introduce our first speaker of the day, Vice Admiral John G. Hannick, Judge Advocate General of the U.S. Navy, to provide an opening keynote address. Vice Admiral Hannick, over to you, sir. Great, thanks very much, Cynthia. I appreciate the chance to speak to you today. Can you somewhat confirm am I on camera and broadcasting? Yes, sir, you are. Okay, thanks so much. What a great privilege to be able to open day two of this conference on rule of law and a great power competition in the Indo-Pacific region. At the start, if you would, just let me add the disclaimer very similar to those stated by yesterday's lineup of staff, judge, advocates, and that is that my comments represent my personal views and don't constitute the official position of the U.S. Navy, the Department of the Defense, or the U.S. government. Now, yesterday's discussions were entitled staff, judge, advocate perspectives and those presentations, along with that of the Deputy Commander of the Pacific Area for the U.S. Coast Guard, recent number of themes that I think are going to translate and carry over into today's discussion. Let me just outline a few. One is the importance that our operations be underpinned by the rule of law and that they have a solid legal framework. Number two is that the international law that's related to maritime zones and operations at sea are part of a broader set of international law and norms that have led to a stable and open international system. And further, that to continue to provide the greatest benefit to all nations. This law, these norms, using the words that were used yesterday must be shared, common, universal, and inclusive. They should not easily bend or be shaped to the benefit of a single nation, whether such changes are pronounced through fiat or pursued through incremental changes and safe practice that go on challenged or a combination of those methods. And three, that while the term great power competition might include some aspects, primarily associated with military power and be associated with nations having a relative greater amount of military power. Today's competition requires a whole government approach with allies and partners of all capabilities playing a crucial role. So today's session shifts towards naval force developments. And I think the forthcoming presentations on the Senkaku Islands, gray zone operations involving the maritime militia and the Indian Ocean maritime security, they promise to reinforce and to bring new light to these themes in the context of ongoing and significant developments in the Indo-Pacific. Now let me speak for a few minutes on the broader topic of naval force developments from my perspective. The People's Liberation Army Navy or PLA Navy has become the world's largest naval force. The PLA Navy has tripled in size over the past 20 years to about 350 platforms, including surface combatants, submarines and amphibious ships and auxiliaries. Many of these platforms have been fitted with advanced anti-ship, anti-aircraft and anti-submarine weapons and sensors. The growth of China's shipbuilding facilities and enhancement of its submarine force capabilities in particular are unmatched in the region. New weapons, weapons systems and platforms have been researched, developed and fielded. These include land-based conventional and ballistic cruise missiles, hypersonic weapons, integrated air defense systems and even unmanned and artificial intelligence-enabled vessels and systems. And all of these are rapidly changing U.S. views and U.S. strategy. According to a recent D&D report, China has already reached parity with or even exceeded the capabilities of the United States in some of these areas. China is also rapidly expanding its information operations in attempt to achieve information dominance. The development of increased cyber warfare capabilities has become a part of China's strategy to disrupt enemy military operations in the initial stages of a conflict, including honing its ability to launch cyber attacks that could cripple critical infrastructure. Electronic warfare aimed at degrading or deceiving electronic equipment and information systems has also become an increasing focus. Added to this, is China's growing interest in further developing its space and nuclear weapon capabilities, both of which seem to be moving ahead at a notable pace. And it is this context in which the former and current commanders of U.S. Indo-Pacific Command have testified to the U.S. Congress that the erosion of conventional deterrence is the greatest danger in the Indo-Pacific region. Now, to avoid that erosion of conventional deterrence, the U.S. Navy, the Marine Corps and other military services are adapting. The Navy has reviewed and continues to assess the force structure that is needed for the future. Yes, numbers and types of platforms matter, but so do capabilities and weapons and networking and the ability to connect and operate with allies and partners. We heard yesterday of new operating concepts of the U.S. Marine Corps. These are significant changes that tie in to the Tri-Service Maritime Strategy that was issued in December 2020, signed by the Secretary of the Navy and Service Chiefs of the Marine Corps, the Coast Guard and the Navy. The Tri-Service Maritime Strategy recognizes that while the military services must be prepared to prevail in the event of conflict, they must also operate effectively across the competition continuum. As I expect today's discussions will highlight, effective operations in the day-to-day competition are not easy, but the objectives outlined in the Tri-Service Maritime Strategy emphasize some of the same themes we heard yesterday and that will continue today, that the U.S. and like-minded nations must uphold the rules-based order. That we must find ways to deny use of incremental coercion. That U.S. operations will uphold global maritime security and governance by setting the standards for acceptable conduct at sea through principled leadership in the international maritime organization and other multilateral institutions and forums. That in concert with allies and partners, U.S. will uphold these standards around the world. And that a resilient network of allies and partners is the fabric of this free and open order. And together we must detect and expose actions that violate international law, steal resources and infringe on the sovereignty of other nations. Now let me shift just for a few minutes to a topic that I don't believe was discussed yesterday, but is a growing concern to the United States and likely other nations in the Indo-Pacific. And that's the topic of marine scientific research known as MSR. Recently, the U.S. has seen China aggressively increase its marine scientific research activities. And with a larger perspective of China's naval expansion and increasing maritime activity, it might be to gloss over MSR, which can be routine and perfectly legitimate and consistent with the UN Convention on the Law of the Sea. And we may therefore assume China's activities are not of great interest or consequence. However, China's MSR endeavors are increasingly far from the customary practices envisioned by the Convention for Scientific Research. In recent years, China has been attempting to blur the distinction between what constitutes research for civilian scientific purposes and what information gathering will, in fact, have militaries. So China's alleged use of civilian academics on board civilian operated vessels to conduct military surveys can and should be called out as inconsistent with the law of the sea. And just a few weeks ago, China signed a deal for the construction of the largest scientific research vessel in its fleet. The new vessel will be capable of operations anywhere in the world, except for the polar regions, indicating that China anticipates continuing and expanding its MSR program. And while this expansion is not in itself objectionable, growth of the speed and significance should not go underappreciated by the international community. China's close civil military integration, evident in a variety of locations and MSR related efforts should be cause for concern. While this activity wasn't limited to the first island chain early on, the US has seen its expansion into the Pacific, particularly surrounding Guam and more recently into the Indian Ocean as well. This appears to be coordinated and intentional efforts to increase China's expertise in the undersea domain. And the potential implications for US operations and the security of US territory does not go unnoticed. Now there's one final aspect of naval force developments that I wanna touch on, and that's operations. It's been a very challenging year for every nation, including the need to mitigate impacts from COVID-19 throughout activities in which we undertake experimentation, exercises, training, and deployments. US forces have continued their presence in the Indo-Pacific. And we heard yesterday of recent exercises involving Japan, France, and the US. We also heard of a forthcoming deployment of United Kingdom naval forces to the Indo-Pacific AOR. And while these exercises and operations continue together, we must ensure that China's experimentation, its exercises, training, and deployments, which also continue, do not leave in their wake either sudden or incremental changes to the free and open international order. Regarding today's discussion on the Senkakus, it's worth noting that the Senkakus were under the administration of Japan and therefore fall under Article V of the 1963 of Mutual Security and Cooperation between the United States and Japan. President Obama, Trump, and Biden all recognized Japan's administration. And in the fiscal year 2013 National Defense Authorization Act, the US Congress clearly stated that the unilateral action of a third party will not affect the United States acknowledgement of the administration of Japan over the Senkaku violence. And in today's discussion about both the Senkakus and the South China Sea, concerns stated yesterday about the new China Coast Guard law should ring loudly. To quickly summarize yesterday's discussion, the China Coast Guard is the world's largest and has been increasing in size substantially in recent years. It's regularly employed to defend China's maritime claims as well as to engage in more assertive actions in and around disputed waters and features, often as the preferred alternative to the PLA Navy. This allows the China Coast Guard to operate under the guise of merely engaging in local law enforcement efforts, masking national intentions that are contrary to the rule of law under the facade of what should be, I say should be a benign, lawful and in fact law enforcing activity. In particular, the new law authorizes the China Coast Guard to use all necessary measures, including firing weapons to stop what it views as infringement of its national sovereignty, sovereign rights and jurisdiction by former vessels. It says the China Coast Guard can defend key islands and reefs, protect maritime boundaries and guard artificial islands and facilities in the exclusive economic zone and continental shelf in quote, waters under PRC jurisdiction and quote, in the airspace above waters under PRC jurisdiction. Now, of course, what constitutes these waters in their space was not defined in the law, raising obvious questions about whether these terms are grounded in international law or whether they rely on China's excessive maritime claims and whether the maritime zones are based on China's legally unsound and soundly rejected nine-dash line. If that is the case, as many commentators anticipate, China could interpret the new law to extend jurisdiction to all of the disputed waters and features in the South China Sea, as well as disputed waters in the East China Sea. China's enactment of domestic law is likely intended to strengthen enforcement of unlawful claims is of significant concern. In particular, China Coast Guard enforcement of maritime claims within the nine-dash line would mean China is enforcing claims rejected outright by the arbitral tribunal in its binding, ruling in the 2016 South China Sea case. Now, I want to add a brief discussion of the 2016 arbitral tribunal ruling and involved China and the Philippines. We'll start with a short story. About the May 2018 conference in Beijing, it was sponsored by the Center for Ocean Law and Policy at the University of Virginia. Also by the National Institute for South China Sea Studies, the Chinese Society of International Law and the Korea Maritime Institute. I'm sure some of you were there as well. I don't have a transcript, but I recall one of the final presenters was a UK professor and public international lawyer from London. He spoke frankly, including summarizing a discussion he had during the conference with a Chinese law student. That student had included in an academic paper some comments or analysis of the arbitral tribunal ruling. And upon review, as I recall it, a professor advised the student to remove those comments and ignore the ruling. Now, as we were in Beijing, you can imagine that the room quiet with everyone waiting for what would be said next. And then the speaker continued, with a simple deliberate declarative statement, something like this, the ruling is not going away. And so part of the challenge for all of us who care about the rule of law is that the ruling not be allowed to just go away. And so despite China's initial attempt to ignore the ruling and its later attempts to raise substantial doubts about the validity of the ruling, it mattered. That in July, 2020, on the anniversary of the 2016 ruling, the United States restated its commitment to a free and open Indo-Pacific and strengthened its policy on the South China Sea in light of the ruling. The US Secretary of Defense made this statement in reinforcing the effect and validity of the arbitral tribunal ruling. He said, we are making completely clear. Beijing's claims to offshore resources across most of the South China Sea are completely unlawful. As is its campaign of bullying to control them. Other nations have made statements in support of the ruling. And as you listen to today's presentations on gray zone operations and maritime militia, you might also think about how you and about how your nation can uphold the rule of law as it relates to the South China Sea and the arbitral tribunal ruling. I may conclude by noting that we are at an inflection point centered on the Indo-Pacific region. It's critical that we uphold the foundational principles of international law to maintain the rules-based international order. Together, we must strive to defend the principle of peaceful resolution of disputes, which is facilitated when we maintain law and policy transparency. Together, we must continue to defend the principle of freedom of the seas, which is guaranteed to all nations under international law. And together, we must continue to challenge the actions that limit this freedom by invoking questionable or flawed legal arguments. So thanks again to the Naval War College and to the Stockton Center for hosting this event. And I look forward to today's important sessions from every presenter, as you talk about your perspectives on events and activities in this vital and critical region of the world. Thanks for your time today. And again, it's my privilege to be here with you. Thank you Vice Admiral Hannock for a fantastic opening of day two for our conference and a great synthesis of the discussion yesterday on staff to navigate perspectives. We'll now continue with this session five on East and South China Seas, moving to our first panel discussion, the Senkaku Islands Intentions in the East China Sea. Our moderator today is Captain Toshinari Matsuo, Director, Operational Law Office, Japan Maritime Self Defense Force, Professor Atsuko Kanahara, Faculty of Law, Sophia University and President of the Japanese Society of International Law, and Professor Rob McLaughlin, Australian National Center for Ocean Resources and Security. And you may find their detailed biographies in the conference program. So I'd like to shift over to our first moderator, Captain Matsuo. Okay, can you hear me? Am I on the casting? Yes, sir. Okay, good morning, good afternoon, and good evening to everyone. I am Captain Matsuo, Director of Operational Law Office, Komarama South College, Japan Maritime Self Defense Force. I will modulate the topic of the Senkaku Islands and the tensions in the East China Sea today. This topic is structured by three presentations. I will start with an introduction and overview, and Professor Kanahara will follow and talk about the Senkaku Islands and maritime law enforcement, and Japan's Senkaku policy, plus the Chinese coast guard law. And then Dr. McLaughlin talks about the Senkaku situation links to how the Senkaku situation links to the South China Sea situation, how and why the East China Sea and the South China Sea situations are similar, but also different. After the presentations, we have some time for Q&A. Let me start with an introduction and an overview part. I will prepare for sharing the screen. Okay, let me start. First, geography. The Senkaku Islands, a group of islands, which include Wotsubi and other islands. The Senkaku Islands are located at the west edge of the Nansei Shoto Islands of Japan. The Senkaku Islands are also situated approximately 170 kilometers from Taiwan and 330 kilometers from China. Although they are currently uninhabited, the islands were once home to Japanese people who run fishing businesses there. History of Japan's administration and valid control over the Senkaku Islands. In January 1895, after having carefully ascertained that there had been no trace of control over the Senkaku Islands by another state prior to that period, the government of Japan incorporated the islands into the Japanese territory by lawful means and the international legal framework. After the incorporation, Japanese civilians settled on the previously uninhabited islands, having obtained permission from the government of Japan. The islands counted more than 200 inhabitants at one point and the taxes were collected from the inhabitants. After World War II, the San Francisco Peace Treaty placed the Senkaku Islands under the administration of the United States as part of Okinawa, thereby reaffirming the islands status as part of Japanese territory. Furthermore, the Senkaku Islands were included in the 1972 Okinawan Reversion Agreement between the United States and Japan as part of the area over which the administrative lights were returned to Japan. The Chinese government didn't contest Japan's sovereignty over the Senkaku Islands for approximately 75 years. Picture above is a World Atlas collection published in 1958 by a Chinese cartographic publisher. The Senkaku Islands are referred to here as Senkaku Group of Islands and World to the Islands. They appear as part of Okinawa. This changed in the 1970s when significant attention was drawn to the islands due to the potential existence of the oil reserves in the East China Sea. In May 1969, the Economic Commission for Asia and the Far East report indicated the possible existence of oil reserves in the East China Sea. After the announcement of the study results, China and Taiwan began to claim sovereignty over the islands for the first time. Neither state had made any claim whatsoever prior to this. Chinese sovereignty over the Senkaku Islands claims were made by the Ministry of Foreign Affairs of China in December 1971. Following this, China altered textbooks, maps to create its own claim to the sovereignty of the Senkaku Islands. Picture bottom left, Chinese textbook from 1970 called the Islands the Senkaku Group of Islands. This was modified to the picture bottom right. 1971 textbook changed the name of the islands to Dio-Utah Islands and the borderline is carved toward northeast. During the Japan-China summit talks in 1972, Chinese Premier Joe Enlai mentioned the Senkaku Islands to Japanese Prime Minister Kakuya Tanaka stating that it became an issue because of the oil out there. If there wasn't oil, neither Taiwan nor the United States would make this an issue. From this, it is clear that the unilateral argument made by China was not based on international law or history, but on the potential existence of oil reserves. In 1992, China enacted the law on the territorial sea and the contiguous zone, decreed by law for the first time that the Senkaku Islands were part of China's territory. In fact, its statement on China's territorial sea of 1959-58 made no reference to the Senkaku Islands and there was a clear change in China's position. For these reasons, there is no doubt that the Senkaku Islands are clearly an inherent part of the territory of Japan in light of its critical facts and based upon international law. Indeed, the Senkaku Islands are under the valid control of Japan. There exists no issue of territorial sovereignty to be resolved concerning the Senkaku Islands. Chinese fishing boats surging around the Senkaku Islands pose significant security concerns. September 2010, a Chinese fishing trawler in Japanese waters near the Senkaku Islands deliberately crushed into Japanese coast guard patrol vessels. It is pointed out that the so-called maritime militia is playing the role of the front guard for supporting China's maritime interests. Since 2008, China has been sending government ships to the waters of the Senkaku Islands and has repeatedly made incursions into Japanese territorial waters. The number of incursions has significantly increased since September 2012. China's coast guard is becoming increasingly militarized. China revised the National Police Registration and put the CCZ under the command of the Central Military Committee in June 2020. In February first this year, Chinese coast guard law was enacted and entered into force. This law allows the CCZ to use all necessary means, including the use of weapons against foreign ships. Professor Karehara will talk more on this later. Chinese naval vessels have been conducting operations in the East China Sea actively. A China Military Online article reported that in recent years, the average number of days in a year that all major combatants in the East Sea fleet of the Chinese Navy conducted operations exceeded 150 days. Chinese Navy continued to transit the waters near Japan to advance into the Pacific Ocean and return to base with high frequency. Recently, six Chinese Navy ships, including the aircraft carrier Liaoning, transited through between Okinawa and Miyako Islands this April. In 2013, China designated the airspace above the Senkaku Islands as the East China Sea Air Defense Identification Zone. The Chinese government claims that any aircraft traveling through this zone must comply with the rules defined by China's Ministry of National Defense and obliges aircraft flying in international airspace. China has been intensifying its maritime activities in other oceans close to China, as you see in the South China Sea. Robeson will talk on this later. China claims the so-called nine dotted line or nine dashed line and has continued to attempt to unilaterally change the status quo in the South China Sea by force or coercion ever since. That's all from me. Now, I would like to turn it over to the first panelist, Professor Kanihara. She is going to talk about conjunction of issues of the maritime rule and territorial sovereignty for Japan and the Chinese coast guard law. Let me prepare her slides. Thank you, Captain Masuo. My name is Atsuko Kanihara, Professor of International Law and President of the Japanese Society of International Law. I would like to express my sincere gratitude to James, the Neighborhood College and all the organizers. Next. My presentation will focus on the conjunction between the issues of maritime law and territorial sovereignty. From the perspective of this conjunction, I will make practical analysis in context on the Coast Guard Law of China, CCC. The maritime law problems that Japan has faced more than a decade are Chinese aggressive conducts, particularly in Japan's territorial sea surrounding the Senkaku Islands. China has frequently dispatched its coast guard vessels and even military vessels. Chinese fishermen have also come to Japan's territorial sea and in some cases escorted by China's coast guard vessel. The Chinese fishermen suddenly become malicious. Regarding territorial sovereignty over the Senkaku Islands, Japan has taken the position that based upon both history and international law, the islands doubtlessly belong to Japan and thus Japan denies an existence over dispute with China. Then, for the conjunction of these issues, the key task for Japan is to protect its national interests from Chinese behaviors. But the critical point is that Japan should make the task accomplished without undermining in any sense its long-standing position that there is no dispute with China on the sovereignty over the Senkaku Islands. This requirement makes the task very daunting for Japan. Why? And in this regard, CGC comes to under scrutiny. How? Then I will explain this why and this how in this order. Next. Let me explain the meaning of dispute. Dispute is international legal parlance that is very different from ordinary language and has been established in the world called jurisprudence for almost 100 years. Perfectly in accordance with the legal parlance, Japan coherently takes the position of existence or non-existence of territorial disputes. There is a dispute regarding the Takeshima Island with Korea and there is not a dispute regarding the Senkaku Islands with China. No incoherence in Japan's positions. I will pick up the most important requirements, two requirements for an existence of a dispute. First, as a dispute is a conflict in law and fact between two rival parties, the differences of opinions need to be officially addressed to each other. Second, the opinions of the both sides should have reasonable grounds in fact and in law. Mere assertions without grounds cannot satisfy the element of different opinions to form a dispute. For what purposes the legal parlance of dispute is established? If a state is determined as a party to dispute under international law, it has to comply with the obligation of the peaceful settlement of a dispute. Please see article two paragraph three of the United Nations Charter. The second requirement of a dispute is that there should be difference of opinions that have reasonable grounds in fact and in law. Let's imagine that suddenly a stranger comes to you and says both the house and the land are mine and there is a dispute and so you and I have to resolve this dispute peacefully and to sort the negotiation and if necessary to go to a court could you accept such a request upon mere assertion without grounds in fact and in law? Definitely no. Roughly speaking this can explain Japan's position of non-existence over dispute with China regarding the Senkaku Islands. Why is the task daunting for Japan to protect Japan's national interest? Without undermining in any sense Japan's position of non-existence over dispute with China the first element of dispute is difference of official positions that were addressed to each other to protect its national interests Japan may take measures at sea in accordance with the United Nations Charter to exclude Chinese vessels from Japan's territorial sea surrounding the Senkaku Islands to justify such measures Japan will emphasize its territorial sovereignty over the islands then what will happen in this regard we need to take measures in this regard we need to do that as if the two countries were looking at a mirror they conduct in the same way to each other as a result of a mirror effect absolutely China would insist its territorial sovereignty over the islands is doing as a result the formal opinions of both China and Japan conflict to each other there might be an existence of a dispute then what are the possibilities for Japan in order to counter such situations Japan in an extremely prudent manner has declared its position to directly oppose to that of China this is a sort of negative attitude policy in contrast to this for the following two reasons Japan should consider a sort of positive attitude policy which means clear negation of China's sovereignty Japan should prove that China's claim of sovereignty is solely a mere assertion and that there is no dispute considering the China's conduct first sorry first Chinese offensive activities aim at unilaterally changing the status quo even by possible means considering the China's conducts that Captain Matsuo and I explained before nobody would deny that these offensive acts are aggravating the tense situations of the East China Sea China is taking possible measures unilaterally change the status quo it is definitely contrary to the rule of law that has been widely shared as a common value in the world from a worldwide perspective for the purpose of contributing to the world order and world peace Japan should clearly deny any legal effects of Chinese unilateral ambition to change the status quo by its possible measures from a bilateral perspective the second reason for Japan to take a positive stance in combatting China's claim is to enable Japan to institute stronger measures at sea against Chinese vessels in Japan's territorial sea surrounding the Senkaku islands in this context the examination of CGC is significant there has been theoretical criticism on CGC with several points as seen in the slide 9 however rather I would like to analyze CGC in context in a practical and problem-solving manner I will take up actual conducts of China as the context in which we examine CGC first under CGC China's enforcement and the organs to conduct it are provided for thus far Chinese public vessels persistently chase Japanese fishing boats in the territorial sea surrounding the Senkaku islands China insists that Chinese public vessels are discharging their mission of law enforcement because according to China the sea areas are China's territorial seas surrounding the Daoyutai that is Chinese name of the Senkaku islands by a mirror effect both China and Japan continuously insist their sovereignty over the Senkaku islands to bring a breakthrough to this impasse no method other than to defeat China's mere assertion of its sovereignty would work second CGC admits the designated organs to take forcibly measures against foreign vessels including foreign public vessels that enjoy under influence according to Anglos immunity from being the targets of such measures with strong possibility Chinese public vessels will take forcible measures against vessels of Japan coast guard and even Japan maritime self-defense force immediately after Japan's future criticism against China's violation of immunity given to Japanese vessels as a mirror effect China would stage the same protest against Japan's measures targeting Chinese public vessels here again to bring a breakthrough to the central impasse moving beyond the issue of immunity under the law of the sea that denial of China's sovereignty is indispensable Japan needs to prove that China's claim of its sovereignty over the Senkaku island is groundless both in fact and in law and therefore this mere assertion there is no dispute China is violating sovereignty of other states and such a state should not be allowed to enjoy immunity CGC repeatedly mentions protection of national interest and law enforcement at the same time without clear demarcation between them for China both issues come to reality at the same time this is totally true as a matter of fact therefore lack of recognition of the following fact is really fatal to Japan Japan is facing irrecoverable infringement on its sovereignty over the Senkaku islands and even its usurpation China by China under CGC thank you for your kind attention this is the end of my presentation Thank you Professor Kanahara for an excellent and interesting presentation also I am looking forward to questions from audience our following presentation is the ECS and SCS some legal and operational linkage by Dr. Mark Laughlin Robeson please thank you very much and good morning to everyone I will just check that hopefully you can see the screen there good morning all and it's a great pleasure to be here with you this morning or this evening wherever you may be and it's a great honour to be on this panel with with Kevin Matiuo and with Professor Kanahara so as the moderator indicated I'll look briefly at the East China Sea and look for some legal and operational linkages I'll look first at two points of context and that is why the date 2049 appears to be quite significant and just to remind many of you you'll already of course be very aware of this about the three warfare legal doctrine and in particular the legal warfare aspect and as Professor Kanahara has discussed yesterday the China Coast Guard law has a role to play in assessing how that doctrine applies to the East China Sea and South China Sea situation I'll then look briefly at how the situations link looking to three things a little bit of strategy some law and sequencing and then I'll have a quick look at how the East China Sea and South China Sea situations might be differentiated in particular in relation to the presence of garrisons and who the adversary might be and then of course how the East China Sea and South China Sea situations might be considered similar in terms of legally characterisable risks and the application or the practice of lawfare so the context first the two key pieces of context I wanted to emphasise when looking at the differences and similarities between the East China Sea and the South China Sea are first the significance of the date 2049 as many of you will be aware at the 19th National Congress of the CCP in 2017 it was made very clear by President Xi that the rejuvenation of the Chinese nation needs to be achieved by 2049 which is the 100th anniversary of the Civil War and that the reunification of China is a condition and there was specific reference to the reunification of China with Taiwan and not only Taiwan also with other outlying claimed Chinese territories and of course that reunification is intended to be by peaceful means but the option of military or forcible reunification was certainly on the table. The second element of context is the three warfare doctrine and you'll recall that the three warfare apparently in Chinese military doctrine are media or public opinion warfare psychological warfare in particular in relation to targeting foreign decision makers and the third being legal warfare which you can see there described in a blog from war on a rock says shaping the legal context for Chinese actions including building the legal justification for Beijing's actions and that's a very outwardly focused sort of international war focused aspect but the part that's sometimes forgotten is it also involves using Chinese domestic law to signal China's intentions and as Professor Kanahara has just talked about and as was discussed a little yesterday as well China's Coast Guard law the recent China's Coast Guard Chinese Coast Guard law potentially is an important indicator of that domestic legal signaling by China so that brings us to how the East China Sea and South China Sea situations could be considered linked. Now strategically they are linked in several ways but the two of interest to us when we're looking at legal issues are first that they form parts of the First Island chain which you can see here so we have for example the missiles up here in more than part of the South China Sea already occupied by China having been taken from South Vietnam in the in the 70s we've got the Spratly islands down here of course the subject of ongoing disputes and ongoing maritime militia and other operations and also of course as the JAG described this morning the subject of a 20 of very important ASEAN arbitral award up here we have Prattas which is in the northern part of the South China Sea at all actually occupied by Taiwan of course also holds a single feature in here the largest feature and then what we're talking about today the Senkaku's here now these features all form part of the First Island chain but they also form links in the A2AD scheme so for example we know that there have been anti air missiles anti surface missiles and also obviously aircraft and hardened shelters runways etc put on some of the features that have been extended to the South China Sea that's a part in the A2AD link and we also know that there are interests or China has interests in the Senkaku's area in terms of ensuring passage for the Chinese SSN and SSBN fleet out through the First Island chain into the into the open ocean how are they linked in terms of legal issues well the first is the nature of the claims and a key point to remember is that all of the assertions China makes in relation to these claims in particular we think about the South China Sea claims certainly with Prattus already with the Paracels and now with the Senkaku's these claims are all based on territorial claims so down here in the South China Sea whilst we had the 9-dash line for a long time which is as the arbitral award said legally inexplicable China's in recent times tend to talk about the four shahs the four island groups in the South China Sea claims to indicate that China's placing a much more territorial emphasis on its claims as opposed to the broad amber claim that that was disclosed by the old 9-dash line claim the Senkaku's claim as Professor Kanahara and Kepman Tua have talked about is very much a territorial base claim excuse me and so the maritime resources and the maritime claims that he's had in the territorial sea claims are important but they're secondary and they do hinge it appears off the assertion of territorial claims as the primary issue of concern for China the second legal issue that links to two situations is again as Professor Kanahara has talked about the use of the maritime militia and fishing vessels as state agents or proxies and I'll return to that in a moment the final thing that possibly possibly links the East China Sea and the South China Sea in this respect is the idea of campaign sequencing so if we take the date of 2049 as as what you know it has been expressed to be which is the sort of the drop dead date for the reunification of all the outlying parts of China including most significantly Taiwan then it raises questions about well is there a sequence that will be used in order to get to that point might there be more activity and more operations to take features in the Spratlys followed by perhaps an operation to take the practice at all followed by the Senkaku's followed by Taiwan or might it be Spratlys followed by Senkaku's because the Senkaku's are uninhabited whereas the Pratas of course is linked to Taiwan because it's occupied by Taiwan at the moment has Taiwanese soldiers on it followed by Taiwan so there's a series of different ways we can think about that strategic sequencing or campaign sequencing in terms of linking these different features along the first island chain so how are the situations in East China Sea and South China Sea potentially different first of all if you're thinking of it from a PRC perspective obviously in the East China Sea and we're concerned with the Senkaku's here the adversary so to speak would be Japan now Japan is a very capable state a very very capable self-defense force and Japan obviously has a very significant alliance the US alliance Japan will also want to seek a peaceful solution or a peaceful resolution where possible in the South China Sea in the Spratlys area there are a variety of possible adversaries from a PRC perspective thinking about the two perhaps most likely the Philippines has already sought peaceful resolution via dispute resolution mechanisms has been rebuffed as we know the Chinese response to the 2016 arbitral award has been very clear that it ignores the award and the award may as well not have happened but of course there are significant capability differentials between the forces including the Maritom Lisha that the PRC can bring to bear and the South China Sea and that's a very significant difference between the Senkaku's situation and the South China Sea situation there's also of course asian and US links in the Philippines in the Philippines that the Philippines can leverage but whether those links are of the same robust nature as the US Japan alliance that's an interesting issue to think about Vietnam the other possible adversary from a PRC perspective in the South China Sea if it seeks to take over a further or additional features especially in the Spratlys well we know that Vietnam and the PRC have a history of conflicts certainly 1974 when the parasols were taken from South Vietnam and more recently in 1988 the Johnson Reese South operation by the PRC again against Vietnam but of course Vietnam also enjoys the support of asian but of course asian has had some challenges in dealing with Chinese maritime operations in the past the other big or key differentiation point I think is the fact that there are boots on the deck in the Spratlys so there are garrisons on a number of features in the Spratlys whereas the Senkaku's as was noted previously are not inhabited they have been in the past but they're not inhabited at the moment so that might have strategic implications might the PRC seek to exploit the Senkaku situation before the Spratlys because when there's not people there it reduces the legal risks to an extent whereas when there are people involved and possibly killings and deaths involved that of course escalates or elevates the legal risks so it'll be interesting to work out whether they might adopt different approaches in terms of using the Maritime Militia so in both in both places at the moment the Maritime Militia is used and Capmatsuo and Professor Kanahara have talked about those sorts of operations but in the next step up a differentiating point might be that in the East China Sea we actually see Fisher landings, Fisher people landings on the Senkaku's and then the PRC seeks to respond so to speak to Japanese reactions to those landings by Fishermen or Fisher people on the Senkaku's whereas in the South China Sea we're probably more likely to see activity directly by the CCG in terms of landings rather than by the Maritime Militia. This also therefore paints the potential for different lawfare approaches in East China Sea China might seek to paint the action as being the action of Fisher people and needing to protect the Fisher people from a Japanese response whereas in the South China Sea more likely to see it as a routine China Coast Guard operation in land and sea areas under undoubted by the PRC perspective undoubted PRC jurisdiction so there's no dispute resolution is necessary. So how are the situations therefore potentially similar? Well thinking about this eye on Taiwan and by 2049 both the South China Sea and East China Sea share a strategic commonality and that is that they offer smaller scale potentially lower risk proof of concept areas to test operations including joint warfare capabilities including lawfare capabilities but of course there are legally characterizable risks that come with that when thinking about this from the PRC perspective and it's important for us to think about those legally characterizable risk because they might offer leverage points for us to use encountering operations. The first is the escalatory legal effect that comes when you have people or boots on the deck on some of these features. That's something that is in the South China Sea but is not currently in the East China Sea because there's no one on the Senkaku side. We need to think about the nature of the alliances and mutual defence agreements that are different as between East China Sea and the South China Sea but we also need to think about state responsibility issues because when you think about the law of the sea and sovereignty claims there's a degree of contestation and we're seeing that already in the way that China talks about law of the sea and sovereignty issues in the international arena and of course the potential for effective countermeasures within for example the Arctic's on state responsibility and noting that those countermeasures themselves can be what would otherwise be an unlawful act but they're legitimised by the fact that they're a response to an internationally wrongful act and that will complicate things for China because the law is essentially saying that states can use these otherwise unlawful acts as countermeasures and that reduces China's ability to leverage the law. The second is that both the South China Sea and the East China Sea offer options for increased use of proxies and in particular the maritime militia as a force multiplier and for waging warfare and in particular I think it'll be interesting to see in the South China Sea and the East China Sea how significant increased use of the maritime militia and the fishing vessels as the initiator or the provoking force element is and whether that is different between the South China Sea and the East China Sea. The maritime militia of course will be the subject of the next session but the key point that we need to think about is that the maritime militia does create very useful legal ambiguities as to the status of the actors and the character of the conduct and that creates complications for responders think about Japan and the East China Sea do I characterize fishermen landing on the Senkaku's as the private act of fishes and fishing vessels and invoking a law enforcement response or do I have to think about that as a state act and those people are state agents of the vessels effectively a state vessels and I need to assess that conduct in terms of state responsibility and use of force responses. So thank you very much for your attention and very happy to share in some questions with my fellow panelists. Thank you. Another excellent presentation and I appreciate that you introduced an article by some Japanese author titled by a Chinese coast guard alone challenges rule based order. I wrote the same idea in a column which is posted on JMSDF commander staff college homepage. Thank you very much. Thank you very much. Thank you. Now we have a lot of questions thanks to the audience. Let me pick just two of them. The first question is going to Professor Kanihara's one. Has China ever proposed settling its claims and its confidence in the strength of its own case? Professor Kanihara, you mentioned the positive attitude policy to solve the problem. Can you address to this question? Thank you, Captain Matsuo. To answer the question, let me repeat some contents of my presentation. Japan has taken the position that Japan has no dispute with China regarding sovereignty over the Senkaku Irons. Japan has no obligation or peaceful settlement over dispute. Japan does not go to the court. That is my clear answer, I hope. Thank you very much. We can pick one more question. This is going to Rob Sa. Professor McLaughlin. Given the emphasis that the Senkaku are uninhabited, would it be in Japan's interest to situation JSDF or JCC on the various features in the Senkaku to raise the risk associated with the Chinese occupation of the Irons? Rob Sa, can you answer this question? Certainly. Thanks, Pete. Yes, is the short answer. I think that's a very, very significant way for Japan to step up in protective intent, so to speak. But as I noted, which I think is something that we can step up on, when you put people on features, it escalates the legal complications that any adversary who wants to take the feature will face because of course the moment you've got boots on the deck and then you have to use force in order to remove those boots on the deck, the potential for loss of life or destruction of sovereign property escalates very significantly and that can then lead to the legal characterization of the issue out of the realm of perhaps just general run of the middle law enforcement dealing with Raquel Street Fisherman into something that's much more significant, much more sovereign and needs to be dealt with in terms of state responsibility and the law around use of force. So I think that would definitely provide a dissuasive effect but what comes out of that of course is if the adversary is determined then it also increases the cost when we assume that they're going to take or occupy the islands, whatever might be before them. Okay, let me thank our panelists for your excellent presentations and discussion and thank you to the audience for listening to us without your support we can do much for these panelists. Now I will turn it back to the secretariat we run out of our time in our session. Thank you very much and good evening. Thank you very much Captain Matsuo Professor Kanahara and Professor McLaughlin what a great discussion and also big thank you to the audience for engaging with such great questions. It is certainly a complex issue. We are trying to stay on schedule so we will take a 10 minute break. We are at minute 15 and we will reconvene with session 6 gray zones maritime militias at minute 25. So see you all back here in 10 minutes. Thank you. Welcome back everyone we are now starting session 6 gray zones maritime militias. So first we have our moderator Dr. Hitoshi Nasu Professor of International Law University of Exeter. We have our two panelists Dr. Lai Tai Bin Deputy Director General EC South China Sea Institute Diplomatic Academy of Vietnam and Professor Jay Baton Bacall Executive Associate Dean University of the Philippines College of Law. So I will turn it over to Dr. Nasu to open and then we will play two pre-recorded remarks from both our panelists and then we will open for live questions and answers. So Dr. Nasu over to you. Thanks Pam. And welcome everyone to this gray zone and maritime militia session. It's a real privilege to be involved in this important session as a chair to facilitate the discussion on one of the most pressing maritime security challenges that we are facing today. In this panel we explore various strategic and legal issues arising from the presence and activities of maritime militia and so-called gray zone situation created as a result. And we have two highly qualified experts joining us from Southeast Asia to present regional perspectives on this issue. Dr. Lai Tai Bin from Vietnam and Professor Jay Baton Bacall from the Philippines. The issue of maritime militia is nothing new. For China, maritime militia played a critical role in establishing an organized means to defend its coastal waters when their naval capabilities were still underdeveloped. Their role has changed over the course of years however making significant contributions to establishing presence in areas where sovereignty and maritime claims are disputed. A classic example is the involvement in the seizure of the Paracel Islands in January in 1974 where Chinese fishing vessels played a critical role in slowing down Vietnam's response to counter the offensive campaigns. Nowadays, maritime militia are instrumental to China's maritime strategy in challenging other states' ability to maintain control over disputed areas posing a threat to regional stability. Their operation in the East China Sea has caused tensions with Japan as we just heard from the previous panel in challenging Japan's control over the Senkaku Islands and surrounding waters. And more recently, as we all know, maritime militia vessels have been maintaining their presence in the West Philippine Sea over the Whitsun Reef. This latest incident reminds us of the standoff over the Scarborough Shoal that took place in April 2012 and continued Chinese presence since then. These activities by maritime militia raise strategic and legal issues due to the so-called grey zone situation whereby traditional boundaries between peacetime law enforcement and wartime military operations are deliberately blurred. For example, there is an issue regarding how maritime militia and their operations should be legally characterised and what response options are available We may also need to think about the possibility of responding in kind as Vietnam has started doing by forming and deploying maritime militia to protect or advance sovereign interests in disputed waters. Or should we perhaps reconsider the traditional stress hold of a forceful or an escalatory response against routine employment of irregular forces in grey zone operations in the South China Sea? These are some of the questions we would explore in this panel. So on that note, let me now introduce our first speaker of this panel, Dr. Lai Tai Bin. Dr. Lai is Deputy Director General of the East Sea Institute at the Diplomatic Academy of Vietnam. In his diplomatic career, he took various posts in the American division of the Vietnamese Ministry of Foreign Affairs to facilitate US-Vietnam relations. Dr. Lai has also been involved in various research projects on US-Vietnam relations. And in his presentation, Dr. Lai will discuss what grey zone activities are and assist China's maritime militia activities conducted in the South China Sea. Good morning, ladies and gentlemen. Thank you for inviting me to speak at this very important forum about the grey zone strategy and maritime militia. And first of all, let me share with you my thoughts on the definition of this concept. The grey zone strategy has a long history, as you know, and is usually used in military strategy. This concept has been emerging in poor city debt in recent years to describe revisionist powers. And I think that grey zone is a very popular western concept to characterize the South China Sea disputes or especially the China's action in the South China Sea. But on the other hand, the Chinese leaders don't know the term grey zone. In China's perspective, there are tactics of using parallel forces like the Coast Guard and the militia allowed them to find optimal balance between exploitation and stability maintenance. Parallel forces are much less provocative than warships. And these tactics are originated from the Art of War by Shenzhen winning without fighting. As far as I understand as a scholar, there are some main characteristics of grey zone. First, ambiguity. Grey zone is a state between peacetime and emergency situation. And it is based on different interpretation of rules, norms and laws. Second, asymmetry. Talking about capability, asymmetry. With a smaller, it is not necessary for the challenger to resort to military forces. Talking about interest asymmetry, the smaller independent ties might not dare to accept the risk of prevailing war with the challenger. And third, incrementalism. The challenger do not resort to direct and sizable with the force. Instead, they are taking incremental actions that are not likely to provoke a military response. Here, I'd like to refer to the situation like the salami slicing or the cabbage clearing. In recent years, grey zones are being used to usually describe the sagacity of these peels in which low-intensified conflicts usually take place and parties employ non-military or paramilitary zones and forces. China has been described as a party that employ grey zone operations most frequently in the sagacity and employ maritime militia as one of the grey zone forces, which can be comprised of maritime law enforcement forces, maritime militia and FISMA. China's maritime militia fits in as a grey zone force below the first hull of war. Talking about ambiguity, the maritime militia has an ambiguous nature. Their status is similar force but actually they have connection with the government and under command of the China's military. And it is difficult to differentiate maritime militia from traditional fishing activities. Most of the maritime militia vessels operate on high seas and are usually engaged in commercial fishing. But occasionally, are called on to assist the China's navy or China's coast guard. Talking about the exploitation of asymmetry, with maritime militia, China can therefore maintain a fast network of forward maritime observers and sheer volume of vessels in the first line of offshore defense without using naval forces. And because of their cheap fishing vessels we always outnumber the warships. Talking about the inquiry mentalism, the vastness of the fishing fleet affords the Chinese with a force that can maintain persistent presence near contested islands and fissures allowing for the gradual acceptance by the international community of Chinese sovereignty. And looking at history we have seen some incidents involving China's maritime militia. Maritime militia ships let the charge when Beijing occupied the mischievous in the spreading islands in 1994. In 2012, the militia of fishing vessels again let the charge for Beijing's occupation of the Scarborough shore. In 2014, during the oil rig incident, China carried out the cabbage strategy to protect the oil rig. This included 35 to 40 coast guard vessels, 30 transport ships and tug boats, 35 to 40 fishing vessels and four naval ships. Ships of the maritime militia have also been used to chop us into territorial waters around the central islands. And the project eliminating the Chinese's net fishing fleet concluded that a different kind of fishing fleet when engaged in paramilitary work on behalf of the state rather than the commercial enterprise of fishing has emerged as the largest force in the spreadleaf. The number of militia vessels operating in the area on behalf of China is much larger and more persistent than is generally understood. And most recently, in March, the Philippines formally protested the presence of about 200 Chinese posts more near the claim with the river in the South China Sea. And I do agree with some scholars saying that the river incident is unprecedented in scale and notable for its duration. The largest number of Chinese fishing vessels gathered at any time at one spreadleaf and staying there for several weeks. Therefore, I'd like to have some recommendation for the smaller countries with a symmetric disadvantage in the gray zone conflict. First of all, we should have greater transparency at sea like the maritime security information sharing. Second, we should pay attention to cover legal warfare. It means we should consider taking the legal proceeding as a deterrence tool and enhancing whose base order. And third, information warfare is very important in understanding the situation and how to solve the gray zone situation. And last but not least, smaller countries should consider partnering partnerships with other countries in order to deal with the gray zone tactics or strategy and the maritime militia effectively, especially enhancing capacity building and training with other countries. Thank you very much for listening to me and I am very happy to have further discussion with you on this important topic. Thank you very much. Good day to everyone. Thank you for inviting me to this prestigious conference. I was originally scheduled to be at the Naval War College last year, but unfortunately the pandemic aborted all flights and shattered all my travel plans. Hopefully, I will still get another chance to visit Rhode Island in the next few months. So I am going to talk a little bit more about what is less normal coping with jet lag by walking around and seeing new places certainly beats coping with insomnia by raiding the refrigerator in the kitchen. As we are talking about China's gray zone tactics in the South China Sea, China appears to have obliged the conference this year with an ongoing demonstration. Since March 2021, there has been a revelation that 220 Chinese maritime militia vessels were anchored and lashed together at Whitsun Reef, only 175 nautical miles from the nearest shore in the Philippines. And within the highly contested Spratly Islands region last March, spark of major sustained fewer that stands in very, very stark contrast to five years of downplaying and glossing over other incidents of utter disregard by the 2016 South China Sea arbitration. While domestic politics, in view of the fact that the next presidential election is just 12 months away, may certainly be playing a role in the public posturing of many government officials. It also cannot be denied that public pressure has long been building up against the deterred administration over its accommodation of China every turn. Furthermore, these latest incidents cast a light upon an overlooked aspect of China's strategy for taking control of the South China Sea by waging a veritable, protracted people's war, a maritime insurgency, so to speak, that pits ostensibly civilian fleets against the armed services of its rivals. Whether the Philippines have legal basis and right to demand the dispersal of the CMM fleet anchored at Whitsun Reef has been erased by various commentators. Such legal analysis is not unreasonable, given the complications of the geographical setting and inherent limitations and loopholes of the South China Sea arbitration award and UNCLOS. Whitsun Reef stands at a legal nexus. On one hand, it is physically located within 200 nautical miles of the Philippines and therefore within its EEZ and continental shelf, but it is also within 12 nautical miles of Chinese occupied MacKinnon Reef, which was recognized by the South China Sea arbitration tribunal as a high tide elevation. And Vietnamese occupied Grierson Reef, which was not similarly recognized, however. In the absence of an actual delineation and delimitation of any maritime boundaries, the status of the waters and seabed of Whitsun Reef itself is technically still unsettled. The legal issue that commentators try to address is whether it is legal for the Chinese fishing vessels to anchor in that disputed location. Conversely, whether it's legal for the Philippines to actually make an issue out of it. Now, anchoring in the high seas could be perceived as coinciding with the exercise or freedom of navigation. But this kind of an answer would actually decontextualize the situation and get China off the hook for what it's actually doing in the South China Sea. One must not forget that China's activities in the South China Sea are part of a broader strategy to establish de facto administration and control of that area. Thus, the incident at Whitsun Reef should not be seen as isolated from this broader purpose. The Chinese embassy in the Philippines admitted that such vessels were fishing, albeit sheltering from supposedly bad weather or sea conditions. Apparently clear sunny weather is something that they do not welcome. In other words, they were allegedly taking a pause from a longer term activity, fishing within the Philippine EEZ, which surrounds Whitsun Reef. So this anchoring is not part of the exercise of freedom of navigation. It is actually part of fishing operations, or it is a fishing operation. And fishing operations have already been adjudged to be in violation of the Philippines' sovereign rights under UNCLOS if they're being conducted by China within the EEZ. Now, so context changes everything, and this is an interesting example of how China's salami slicing or cabbage strategy seems to have also infected the legal field. It has become very easy, practically second nature, to similarly salami slice the legal issues in a way that makes it easy to hesitate and question the correctness of opposition once isolated from its factual environment. But there's more. What started the Philippine government on this appears to be the sheer spectacle of a massive number of silent fishing vessels lashed together on Whitsun Reef. Suspicions were raised that the CMM was preparing to carry out something other than fishing, either to deploy the foundation of another structure, like what they did back in 1995 on Mr. Frief, or to prepare Whitsun Reef for rapid destruction and reclamation. Today, no evidence has been cited of either foundations being laid or dredging ships being deployed and operated. But this does not diminish the possibility that China is already doing something else, and that is occupying the reef without evidence of occupation. Traditionally, occupation in the Spratly Islands has been carried out by building fixed structures. But the 2002 Declaration of Conduct, which China officially subscribes to, prohibits the construction of new facilities on features that were already occupied in 2002. The CMM deployment at Whitsun Reef, however, clearly points to a way around this. By making Whitsun Reef an anchorage site for this massive fleet, China is basically establishing a continuous presence without having to build anything. Lashing that many ships together in a line is an uncommon practice in the open sea, but is often seen in the congested ports of Southeast Asia and China. Mariners question the practicality of this move as a response to bad weather and sea conditions, because this is definitely not for the purpose of safe navigation. But thinking out of the box reveals that this is ideal for one thing, giving the cruise a larger space to move about and interact in and thereby also assembling a floating island that remains in a fixed position for extended periods of time. This is halfway through to occupation and possession de facto of the reef. Possession legally is comprised of two elements. One, the use and benefit of something, and two, the exclusion of everyone else from that benefit and from that thing. This is the situation established by China in 2012 on Scarborough Shoal, resulting in the Philippines' loss of control of that reef. So here on Whitsun Reef, you have a use and benefit, but a second element, exclusion, does not appear to have been done yet or does not appear to have emerged yet, but there have been precursors. In 2017, warning shots were reportedly fired against the Filipino fishermen in the vicinity of Whitsun Reef, well, in Union Bands, in at least five separate incidents which have discouraged the fishermen from returning. So if it has been done before, it can be done again. So it is not far-fetched to think that the threat of a new occupation actually is quite real. The CMM fleet at Whitsun Reef dispersed nearly three weeks after their initial discovery, likely to avoid further scrutiny by Philippine maritime air patrols as well as to avoid the tension of the world. A large bulk of the fleet apparently took shelter outside the Philippine EEZ, but others spread out to other Chinese-occupied reefs. Since then, it has been around in chase, as Philippine air and maritime units up their patrols seemingly bouncing back from five years of having to be kept from venturing out into the EEZ. Two weeks ago, a smaller group of vessels anchored in a similar fashion at Sabina Shoal 79 nautical miles from the mainland of Palawan. This was dispersed by the Philippine Coast Guard. This week, China seems to have bounced back from the initial shock of the Philippine response, and it has deployed reportedly 287 CMM ships, at least 287, and they're distributed in smaller numbers across all features in the South China Sea. The purpose, most likely, is to wear out the Philippines resistance, knowing fully well that the country, this small country, has very limited resources to support continuing patrol presence. It's probably also to convince the Philippines of the futility of confronting so many Chinese ships and interfering with so many Chinese activities across the West Philippine Sea. Now, CMM vessels in the Philippine EEZ don't often fish. That much is known. Investigations by Andrew Erikson and Ryan Martinson and CSIS with Greg Pauling have revealed a patrol pattern in their AIS tracks and raises the possibility of even more closely observing and gaining insight about the operations of this fleet. These countries can also shed light on the real fishing operations of ships that are not as deeply involved as the active militia members. And though the evidence may be a bit thin and requires better data, there seems to be some indication that the public pushback somewhat works. Comparison of various nighttime data displaying fishing vessel detections seem to support the hypothesis that strong public policy postures best result in what we assume to be real fishing vessels being discouraged from venturing into the Philippine EEZ. In 2017, and 2018 the Philippine government took a very soft and accommodating attitude towards Chinese fishing vessels and the CMM, but this began changing in 2019 when the DFA called out the persistent CMM operations around the Kalan Island Group. Now last year in this past March a significant number of foreign fishing vessel detections are clearly respecting somewhat the 200 nautical mile line of the Philippine EEZ. So, despite the modest impact thinning these massive numbers of Chinese fishing vessels in the Philippine EEZ to any measurable degree is certainly an improvement. But it just simply boggles the mind why thousands of large steel hulled fishing vessels should be assembled and deployed so recklessly across the entire South China Sea. The ecological and environmental impact of such a concentration catch effort in an already navigating fishery area simply does not make sense unless such deployment is for a totally different purpose unrelated to any kind of reasonable and sustained fishing food production. Now, so if anything this year's incident at Blitzenreef casts a much needed spotlight upon China's maritime insurgency against the South China Sea arbitration on close and regional and global legal order. It is something that is worth discussing and observing as it lightly signals the next phase in China's incremental and reason takeover of this vital maritime area. Thank you very much. Thank you, Pam. So, we have about 20 minutes or so for Q&A. And so if you have any questions, please simply free to post your questions on the Q&A box. While we are waiting for more questions, there are already some questions the audience wants to address. So can I ask Dr. Lai and Professor Batonbakal to be ready on the screen? Yes, yes, of course. Thank you. So, you talked about some of the options that are available to the state in the region. For example, Dr. Lai talked about possible judicial proceedings that can be brought against China. And Professor Batonbakal talked about persistent public response and protest against China. What do you think about the more forcible option? Should we one of the questions is that should we now characterise such multi-military activities as amounting to use of force which could justify more forcible response from countries like the Philippines and Vietnam? Do you have any thought on that? Let's start with Professor Batonbakal because he's already on the screen. Yes, yes. Thank you. Yes, that's a very good question and really a very the problem we face is that it can be a rather slippery slope. Earlier one of the questions raised was is it possible to distinguish between the CMM vessels and real fishing vessels? And of course it's very difficult. There are some ways to do it. You can identify perhaps a few that are clearly maritime militia vessels based on their history of behaviour. But the thing is there are thousands of them if it's easy to make a mistake at this point. Unless we come up with better means of identifying and distinguishing. And so just because of that I'm not yet ready to advocate making taking that step. But the short of that it is possible to at least make a public statement or declaration which clearly attributes to say China or the flag state this behaviour undertaken by these vessels which appear to be maritime militia vessels and that I think does have some kind of effect as well. The fact that you will treat them as essentially agents of the state could be a factor in how you then proceed with your diplomacy and if there is going to be an incident then the responsibility clearly can be laid on that side on their side rather than yours. And that I think is one way to address this situation. Back in 2019 for example the Philippine Government through the DFA came up with an unusual statement basically calling out the maritime militia vessels that were surrounding Pagasa Island at the time one of the islands in this practice and they made a rather innocuous statement saying that if China does not do anything about it it is deemed to have condoned the activities of those vessels which were called out by the DFA as being destabilizing and creating security issues. So I think that's one good step that can be taken for now. And then we can see what can be done later if the activities of these vessels become more serious. Thank you Professor Patambakal and Dr. Lai Vietnam seems to be taking different response as I understand it and also started forming maritime militia as a possible response to this. So do you have any thought about which options or possible options either by traditional conventional forces or militia type forces may be effective to challenge China's aggressive behavior. Thank you very much for your interesting question and this was a hard question and I think that both options are not enough to power the so-called maritime militia forces from China and as I said in my presentation in China they do not recognize the term maritime militia they do have the militia forces by law and let me explain a little bit because I saw one question before in general the militia forces in China are governed both by the local authorities and by the military agencies from the central government so if they had and if they had to differentiate like militia vessels and the civilian vessels which makes it harder for all of us in order to counter the so-called maritime militia as we usually call it when there are incidents of sea for the of course I think that the conventional forces not only of Vietnam but also of other countries are always ready for emergency situation in the sea but you know that all countries try to avoid using the conventional forces the military the conventional military forces in order to deal with such incidents of sea because it might provoke a very dangerous situation in the South China Sea or in any other seas and for our maritime militia forces we are very different from China you can recall in my presentation one of the characteristics of the of the gray zone tactics gray zone operations and the maritime militia forces of China is the asymmetry so asymmetry means it's only meaningful to the middle country to have such forces for the maritime militia the so called maritime militia of Vietnam we do not have the we have you know very different functions and capabilities so we don't pose any threats to any countries in the region and basically we are very defensive and you know I think that it's to use the Vietnamese maritime militia forces in order to counter with China's so called China's maritime militia forces so it's a very hard question and I think that here I think that we did a very different solution, a very comprehensive and international solution in order to you know so the issues that see that might you know rise out of the so called maritime militia from China thank you now some of the audience are asking some of the technical aspects of a possible response options particularly identifying which vessels can be a legitimate fishing vessels and which ones are not so I think Philippine actually has an experience of bringing some effort to prosecute some of those Chinese fishermen but perhaps it didn't go well perhaps you could talk about and share with us some of the experiences the Philippine has been making in prosecuting or in making law enforcement action against those vessels yes indeed there have been instances where the Philippines did actually apprehend Chinese fishers conducting fishing operations especially those close to Palawan basically the mainland and during the Aquino Administration it even occurred while the arbitration was pending and we found the Philippines arrested Chinese fishing vessel with 500 marine turtles on board and the incident in Scarborough shore in fact started with the Philippines trying to arrest fishermen on Scarborough shore extracting giant clams and thereby destroying the coral reef before from the late 1990s up to the early 2010s up to 2012 there were efforts to do so so there were instances of fishermen being apprehended and tried and convicted but during this time also the policy of the executive was a bit accommodating as well to China especially early late 1990s there were always diplomatic representations being made by the Chinese Embassy which led to these fishermen being acquitted or charges not being dropped the present administration does not have an appetite for prosecuting Chinese fishmen but well this year at least the past three weeks there have been it has been making overtures that the Chinese fishing should stop but I don't see any real improvement in the current administration's posture towards Chinese fishermen at least for the near future until the administration is replaced by presidential elections next year maybe then we'll see some change assuming that the next administration takes a totally different posture from the current one Thank you Professor Batonbaco and Dr Lai these in Vietnam might take similar steps in trying to use law enforcement mechanisms to deal with the fishing vessels Actually we are open to own options but as I said before this issue is quite difficult so we should be very careful before we have further decisions and steps The other question is about public opinion given that the Chinese interest is engaging in sort of a law fair using law and public relations do you think that there may be some scope or Professor Batonbaco talked about a certain effectiveness certain degree of effectiveness in making persistent public protests and taking pictures and disseminating their images do you think that would be an effective law or maybe perhaps limited options that countries have I think it's effective on two levels in terms of domestic awareness it was the fact that this incident happened the past week and you had such imagery pictures of these vessels really galvanized public opinion and so unlike in previous years this time there's really been a lot of interest a lot of statements being issued by many different sectors including the business sector falling on the government to take a stronger stand against China and its fishing operations in the Philippines on an international level I think exposing these operations is one way of starting them from achieving their objectives because I believe that the fact that attention was focused on the fleet at which soon we led to it being dispersed so whatever objective they had in doing so in a way was probably neutralized by that and so having international communities eyes on them on these militia operations I believe does discourage them from pushing through with particular objectives but that requires however that this attention be really trained on them at the right time these militia operations work because they're able to establish they're able to create a fight they've been able to achieve their objectives and then the fact that they take place in isolated areas far from the public eye is what lets them become so effective they're able to control the flow information and therefore shape the narratives around the incident afterwards but if they're immediately exposed then it becomes much more difficult for them to control that narrative and therefore that neutralizes to a certain extent the effectiveness of these gray zone operations Thank you the questions from the audience have sort of disappeared from my screen so let me pose the last final question to both of you to address what we have been talking about challenges when there is a challenge there is always an opportunity as well so what sort of strategic opportunity do you see in meeting these challenges that are posed by the presence and activities of maritime militia activities let's start with Dr Lai As I said many times from my presentation and we also heard from my colleagues from the Philippines it's hard in order to deal with the gray zone operations tactics and the maritime militia and you know gray zone tactics and maritime militias are not new but actually I strongly believe that it is not very common issues from the even from the western perspective so I think that it's hard in order to solve this problem by any single solution in the meantime that awareness even in the western countries you know I don't think that is strong enough regarding this issue and so I think that we need a very total solution including but not limited to you know the the transparency the transparency the you know like information sharing and a lot of things that Professor Patumbakan just mentioned and and I think that we should be very flexible and and sometimes you know we should combine a lot of efforts not only information sharing but also the which should make it more clear with the even with the international laws and norms to certain activities in the industry not only the South China Sea but also maybe the Senkaku the East China Sea and I think that we need more regulation and laws and we need to we need to have you know better coordination among countries and I believe that only you know combined solution and efforts can be able to you know address this issue and solve this issue more effectively thank you Dr. Lai so there are quite a lot of opportunities we can see Professor Patumbakan you have the final words on strategic opportunities you see from the Philippines perspective well I think Dr. Lai the opportunities here are in terms of information sharing because one way to really combat this is by enhancing maritime domain awareness awareness of the presence of these CMM fleet and their operations is key we need to look at it as as I mentioned it's like an insurgency and I think we probably need to draw lessons from anti-insurgency campaigns on this information on the activities of the insurgents in this case the maritime militia is very important and anticipating the operations and objectives is key and that can be gleaned from these operations and important awareness of course and exposing their operations is the other factor these can have deterrent effects and then and lastly would be I guess it further ended the line that's when you can consider now the questions of attribution of the operations of these supposedly civilian vessels to government to the state by establishing that link and announcing that there is a link that then could cause China and the state that controls this to reconsider its behavior and of course we don't want it but if it does come to the point where an armed conflict even a limited armed conflict might occur then that's when implications of attribution in an armed conflict scenario can also be considered and so making a clear policy decision on that I think would help towards deterring these activities and making the flag state more careful and more restrained in using them in this arena thank you thank you very much certainly the issue of characterization in situations of armed conflict is certainly a challenge perhaps the issue that we didn't have time to address in this panel but the learned audience should be aware that there is a very excellent article written by Professor James Kraska and published in the International Law Studies about this exact topic on the vehicle status of maritime militia in situation of armed conflict so I'm sure that the people will revisit that article in thinking about this exact question so thank you very much I'm aware that this is a very light night in Asia so thank you very much for being up late at night and I would hand back over to you Pam thank you Dr. Nassu and thank you so much to Dr. Lai and Dr. Bedank Bakal what a great discussion as they say gray zone of warfare and gray zone of law and this we've got quite a few questions so appreciate you answering them and enriching us with this great discussion so again as Dr. Nassu said thank you for joining us so late and this now question 6 gray zones maritime militias and we will take a intermission so we will return at minute 45 so 1345 eastern time and hope to see you all back then thank you thank you thank you thank you thank you thank you guys good night thank you welcome back everyone to day 2 of the Alexander Cushing International Law Conference so we will open now with session 7 on Indian Ocean Maritime Security and I have the great honor of introducing our moderator and two panelists for our moderator today we have Rear Admiral Sudarshan Shukrande Indian Navy Retired Adjunct Professor Indian Naval War College and we have Mish Darshanaburu Associate Fellow Carnegie Endowment for International Peace and Dr. Anrita Rajput Member UN International Law Commission and you can find their detailed bios in the conference program Admiral Shukrande over to you to open thank you thank you Commander Pamli good day to the audiences in the United States and elsewhere in the world and while I am about to begin a middle watch in Goa India my co-panelist Mr. Darshanaburu is in Washington DC and Dr. Anirudh Rajput joins us from the United Nations in Geneva it's a great privilege for me to be back at Newport and to the Naval War College even if only you went to it for the first time after graduating with the CNW class of 2003 I learned a great deal in that one year and I have tried to keep building on what I studied there through the learning that teaching well enables us to do I must confess thinking that the conference and the road on which the Naval War College is officially located were both named after the eponymous US Civil War hero Alexander Cushing I didn't know that there was a Navy Tag Officer also with the surname Cushing at a critical time for the United States and the world in the Second World War it underscores two obvious matters as semen we need to know the law and its application in times of peace in conflict we need a good grasp of the laws of armed conflict and the room for maneuver and interpretations that any side would apply in this session my co-panelist Ms. Bharua presents a geo-strategic review of the state of play in the Indo-Pacific including non-traditional security issues in the IOR emerging partnerships like the pod and the earlier ones like the IORA and the IONS that is the Indian Ocean Naval Symposium and the Indian Ocean Regional Association Dr. Rajkul examines existing frameworks of UNCLOS other measures and regional arrangements maritime terrorism in the next 10 minutes I propose to state closer to the issues of international law specifically how concerns raised for all in China today but especially for the United States and India have a not so distinct illustration from the 18th century let's briefly look at how Britain and the East India Company brought similar concerns for a partially colonized India and the more colonized America in the 1760s Robert Clive and the rapacious East India Company were not yet quite colonial masters of India there was a lot of fighting coalition building and alliance disruptions ahead even as the ideas of Edmund Burke and Thomas Payne were capturing the imagination of America in India these urgings were a few decades away when the East India Company consolidated power and became the first private corporation that built its own empire India's colonization was the British was with the EIC as an instrument unlike the more crowned colonization of American colonies the larger concerns in the 18th century were of course geopolitical and geo-strategic because local rulers sultans and Rajas in India were mainly outmaneuvered by the British East India Company where trade did precede the flag but later on worked simultaneously here is the American connection I would like to reiterate the company's export of opium to China and imports of tea to India of course well known in India less known are the East India Company's exports not only of tea but several other possible goods to the American colonies British crown of course having done much of the nasty work of conquest, rule and taxation unlike what the court and court who are East India Company had to endure with much lesser help from the crown in India at least in the initial years but it raised alarms alright in the 13 American colonies William Dalrymple puts it well and I quote one of the principal fears of the American patriots the run up to the war was that parliament would unleash the East India Company in the Americas to loot as it had done in India in a few decades from then the East India Company to court Dalrymple again and I quote it controlled almost half the world's trade and as Edmund Burke famously put it as state as a state in the guise of a merchant in doing so the militarized East India Company broke several laws, treaties and conventions of the time and created its own laws and treaties as it went along in India in the Indo-Pacific in Britain itself and of course on the sea leverage the support of the parliament and invented lobbying that has become the fine art it is today in a manner of speaking China is the new Britain its one belt one road is both the instrument action plan as well as the objective for global dominance I won't stretch the analogy because the tactics and strategy are contextually different but some major signposts are similar or China the crown and the company are almost one entity entity and they become an increasingly militarized one China has a raft of state-owned enterprises some that are quasi-private but no allegiance with dodgy financial support and overt and covert links to the communist party of China as opposed to the essentially private EIC and without the irritance of having to deal say the wigs, the liberals or conscientious objectors here and there the communist party is an all-powerful monolith as sophisticated internal mechanism for lobbying and state-owned enterprises which are willing instruments moreover just like a few officials in London take care of an expanding companies policies issue by bribing politicians in Britain or officials and rulers in India and elsewhere for favours much like what the CPC's United Front is able to do globally today in doing so as recent revelations show the Chinese twist when ignore or violate several laws and conventions that govern a rules-based order with spanning trade intellectual property corporate governance and ethics, diplomacy information and communications health of course as we experience now environment nuclear and missile proliferation and even space and maritime environment we have heard already there are of course claims and intent impacting on south and east China seas and the literal but let's watch out in the Arctic and more distant waters in terms of fishing environment, ocean resources and so on Politically and militarily India has seen conventions and agreements along the Himalayan border impact us for decades and in recent times and can quite violently talks and tranquility agreements seem little more than words to China as a supporter of rules-based orders across the Indo-Pacific India needs to be more publicly concerned about the excessive Chinese claims in the south China sea and east China sea but there are rubs and one needs to be fair in saying that some departures or even dismissal of rules-based order in particular cases is something that almost all nations including the United States and India are guilty of at time and ethical relativism is rarely correct in personal ethics in state ground as we understand it often does exist however in pushing for a rules-based order in our world contradictions create strategic operational and tactical difficulties with several sectors spanning diplomacy, information military and economic lines plus the United States attitude with the British Indian Ocean territory ruling that impacts Ego Garcia and Mauritius and its reluctance to ratify unclaws or India's own departures from unclaws provisions for certain matters relevant to innocent passage in territorial waters or to the freedoms of navigation available in the exclusive economic zone with EEZ or need some rethinking and the recent case with John Paul Jones and the press release thereafter only underscore these such departures from a rules-based order increases the degree of difficulty in state craft and even military craft in these conditions no one is really very keen to change the country yet 250 years after the time in the East India Company and the British created some common challenges for both our peoples today we have new challenges which could and must bring the two largest democracies together in a strategic way and not merely at times looking at arms sales and trade greater adherence therefore for system of rules and laws many of which came into existence precisely because the perils of the East India Company began to be seen even by the British government who benefited from them for some time is I think a better way to go forward there is merit and a good dose of reality in the naval maxim those who rule the waves can more easily wave the rules question is a decade from now which nation or coalition might that be in the end of the specific that may rule the waves and increasingly wave the rules thank you so much for your attention and now I would request Ms. Barua to make her presentation thank you thank you so much thank you so much Naval War College for this opportunity to speak at this conference I just recently moved to DC so it is definitely a pleasure to be joining you all from a similar time zone Admiral Shukande really spoke about the vast region and the historical perspective when you did touch on the issue of Diego Garcia I thought I would just briefly provide an overview of the Indian Ocean region and its geopolitical dynamics as what I call as the understudied theater of the Indo-Pacific framework and from there I would initially I may have been a little too ambitious with my time but from there I would perhaps focus on the issue of Diego Garcia in laying out how the issue of rules based order or the legal issues around the disputed case is affecting the geopolitical dynamics across the Indian Ocean region the Indian Ocean region of course is a very vast area which encompasses a lot of strategic subregions whether it's the Bay of Bengal the Persian Gulf or the eastern coast of Africa the traditional players in the Indian Ocean region and this is a 19 post 1945 world have traditionally been India, US, France and UK and the ocean over the years from 1945 especially after the end of the Cold War era has been increasingly divided into the eastern Indian Ocean and the western Indian Ocean traditionally again India takes a lead in the eastern and northern Indian Ocean France who takes lead in the western Indian Ocean along with the United Kingdom in the post Cold War era while US has been very much present in the Indian Ocean region it has been more in a sense to address or engage with its problems arising from continental Middle East this is all of course changing in the new Indo-Pacific environment there are new rising powers as you can't even mention but it's not just China that is coming into the region as an alternative or as a new player into the Indian Ocean but also Russia Saudi Arabia and to an extent Turkey depending on which sub-region of the Indian Ocean you look at the division of the Indian Ocean over the years has also meant that governments where they have been engaging with the Indian Ocean region has been engaging in silos in sub-region and unfortunately more often to continental sub-regions such as South Asia from the Middle East point of view but when you look at the Indian Ocean as one theater a maritime space going from the streets of Malapka to the eastern coast of Africa the Prussian Gulf and the southern Indian Ocean you see there is a visible change and difference in the Indian Ocean region where also developments and threats and challenges in the western side that connect to the eastern side but because again this is why I started with the division of the Indian Ocean because it has been so vast of countries over time especially after the end of the Cold War government has chosen to engage with the Indian Ocean more so in silos and more so through continental desk than it has as one continuous space one of the new changes I would say in the Indian Ocean region geopolitically has been the rise of islands or the islands coming to assume a more important or critical role in Indian Ocean politics simply because of the geography the islands again the strategic islands are of course divided between island nations which are southern nations of Sri Lanka all these Mauritius, Seychos, Madagascar and Comorals stretching from the east in the streets of Malapka to the west of Africa and island territories or strategic island territories which would be the Cocos Keeling of Australia and the Mananikubar Islands of India Diego Garcia which is again which has a US and UK base but is claimed by Mauritius La Reunion of France it is the geography and the access or proximity to key points connecting the Indian Ocean to the Pacific to Southeast Asia as well as the sea lines of communication that makes these islands so strategic it's also why it was very important to the British Empire in dominating the Indian Ocean region because of the geography and the proximity to these points even as the Indian Ocean remains somewhat divided today there is a parallel and simultaneous rise of a new Indian Ocean maritime identity across the island nations in the Indian Ocean region if soon after their independence most of the island nations were divided into sub blocks of whether it's African Union or whether it is South Asia or within the rim of Iora Indian Ocean Rim Association with of course again includes members from Iran to Australia and South Africa to Indonesia which is very vast today they identify there is more for rise of an identity as an Indian Ocean or an Indonesian actor which is assuming very critical geography in the maritime space each of the traditional players that I mentioned India, US France and UK has its own relationship with the islands because of the division of the ocean and to an extent because of the diaspora India's relationship traditionally has been strongest with India Sri Lanka Maldives and Mauritius India Sri Lanka Sri Lanka, Maldives, Mauritius and Seychelles France has very deep rooted history and relationship Madagascar and Cameroons but also with Mauritius and Seychelles which again speak French UK is also present in Mauritius, Seychelles and across the other island chain as well as the eastern coast of Africa US is present essentially through its base in the Evo Garcia but as I mentioned the increasing engagement in the Indian and its engagement for the Middle East and its Gulf Wars the only country which even has a China is the only country with a diplomatic mission in each of the six island nations at this point in time for all of these island nations sitting in this key geographic location across the Indian Ocean region spanning from eastern to the western end of the ocean China is quickly emerging as the new and at times also the preferred alternative to traditional players in the region because of time constraints I'm having to go into why China is the preferred alternative at times in Q&A but as here I wanted to talk about the interesting kind of interplay of geopolitics in an international law in the Indian Ocean region in most conversations across the region in a changing narrative in a changing security environment as the traditional players are scrambling to re-engage with the island nations of the Indian Ocean region the narrative in the conversations has been about a rules based international order laws in custom that traditional players respect the international norms and the China do not respect international norms or rules as much by pointing to the cases in the South China Sea and the Tribunal with Philippines the Diego Garcia dispute does change that narrative on the ground and to an extent I'm afraid that Washington and London are perhaps not thinking as much about it also brings in a layer of complexity between India and its partners in the region when the initial general assembly resolution that went on Mauritius France abstained from voting on that while India voted in favor of Mauritius and against of course US and UK but this is not to say that Diego Garcia is not important or that US presence is not welcome or is a reflection of India-US deteriorating relationship it's not, in fact India-US relationship on the maritime domain is perhaps at its strongest level we have signed some of the most foundational level agreements in the exercise are getting more complex but this is also reflective of the dynamics in the region and the narrative of the rules based international order whose rules and which which nonce and who enforces them the US concern is that the base will go to China if it acknowledges the dispute or the sovereignty issue but we have the Mauritian Prime Minister at multiple forums at the highest level has assured and reassured that Mauritius has no intention of dismantling the base or asking US to relieve rather it is a question of acknowledging a colonial left over a decision made at a time of Mauritius independence over the issue of Chagos Archipelago of which Diego Garcia is only one island 60 islands together comprised of Chagos Archipelago London is of course driving this conversation because the agreement was between Mauritius and the United Kingdom and too much of London's disappointment US has been sorry India has been supporting Mauritius on this case on issues of both in the on the need to support international rules and norms and also on the issue of kind of you know that Mauritius has arrived to take to seek or clarify the issue at the UN level on the on the sovereignty issue but the country which is really maximizing the opportunity of this of this dispute is really China who is using this opportunity to reshape the narrative on the map whereas China is going across the island nations and saying that the issue at hand is not about laws or customs that it is about containing China there is also a great level of encouragement from Beijing going to other island nations such as Madagascar and Comoros to go to the UN over territorial dispute with other partners for instance France's territorial disputes with Madagascar and Comoros in the Mozambique Channel and Beijing is consistently encouraging these islands to go to the UN to drag the traditional players to the UN and to see whether they would accept or they would respect the rulings and the rulings and the resolutions that come out of it because the world did unite in condemning China when China refused to abide by the ruling of the PCA ruling in 2015 China's reshaping of the narrative on the ground which is based on these facts which has been happening is to also divide and undermine both the impact of UN rulings and the UN General Assembly's resolutions and also to say that China is a victim to international bullying and not the threat as it is presented to be the case of Diego Garcia who will certainly is and will be an important test for Indian Ocean dynamics and going forward even if it is a dispute with Mauritius it impacts all the other smaller nations across the Indian Ocean region who have been under colonial rules with its traditional players for a very long period of time and that is also one of the reason why they see China as an alternative is to say that well if the argument really is about that China is a country that does not respect international rules, laws, norms and custom that neither do the traditional players who have become now the security partners for a lot of these countries I'll end on this because I hope we can discuss a lot more during the Q&A session is that islands in the pre-1945 world did not have much agencies to affect change or impact international environment or the international geopolitical competition as they didn't have that as they were colonies today their choices foreign policy interests, economic partnerships as well as defense partnerships will shape the security environment given the geographic location in the Indian Ocean region so it is not going to be enough that every time U.S. India or any of the countries whether it's France, UK, Australia, Japan reacts every time there's a new port that comes up in China the submarine docking in one of Chinese submarine docking in one of the islands in the Indian Ocean region but it would require consistent engagement and understanding the perceptions views of the islands of the Indian Ocean region because the way we interacted, the way we engaged in the maritime space in the Indian Ocean region has drastically changed from the 70s and 80s to where we are standing today. Today islands do have a lot of agency and they do the role it can play the power that it carries and shaping the international narrative as well as their role in upholding the rule space international order which is what most of the traditional players are trying to do I'll stop here and I hope we can discuss a little bit more in detail to some of these issues there in Q&A. Thank you Ms. Barwa for all the review of the Indian Ocean islands and the nuances of that which are very very important and of course you know of the older players like Russia coming back after the Cold War where it was a big Indian Ocean player once again and for outlining the complexities of what the islands are doing, what the islands are experiencing and they will engage in their own space in the Indian Ocean region. So thank you very much for that and now I request Dr. Rajapur to present. Thank you. Thank you Admiral Shrikhande. I must say it's indeed a privilege to be speaking at this conference since I've already heard a lot of good things about the conference from my colleagues and I'm equally delighted that I too have a chance of speaking at this conference and this certainly would not have been possible without the very generous invitation from the Naval War College. I express my gratitude towards the institution and in particular to the world's Professor James Kraska for very kindly extending this invitation. I would be failing in my duties to also thank, if I do not thank Commander Pamli for an excellent organization of this session and she has been very patient and helpful in the process of organizing this session. It's also indeed a great privilege to be a part of this distinguished panel being headed by Admiral Shrikhande. My task really is to speak about the legal issues so I'm going to look at the issues of maritime security in the Indian Ocean region from the perspective of international law. One of the early areas of international law which were codified or where we developed hard rules is the area of the law of the sea because seas are something which not just divide the world but they also connect the world and when I say connect the world it implies joint interests and effects on security of multiple stakeholders whether they are coastal states in the Indian Ocean or they are not. So when we are speaking about issues of maritime security in relation to Indian Ocean we need to ask two fundamental questions first whose security are we speaking about and the second what are those threats to maritime security. Now addressing the first issue whose security we are speaking about a traditional understanding would have been of the coastal states the issue would have been about the states which about the seas and it's essentially about the security of these states what is also understood to be as conventional maritime security that is stable relationship between coastal states and now if we look at it from that perspective which is just one way of looking looking at this issue but not the only way so when we are looking at this issue in terms of the security of the coastal states we do see that the region is relatively stable I'm using the words relatively except for some peculiar relationships let's say between India and Pakistan and some other efforts taken by Iran in stopping some ship some vessels from on and off but apart from that the region is broadly stable when it comes to relationship between states and I deliberately use this phraseology because I'm comparing it in relation to the South China Sea we do have occasions of Chinese vessels throwing water balloons on Filipino vessels and certain other actions also against fishing and other activities so in relation to that this area could be called to be relatively stable and one of the reasons for that relative stability is most of the maritime delimitation disputes in the region are resolved now when we look at the maritime delimitation disputes in the region a large number of these maritime delimitation disputes have been peacefully resolved through agreement between states without having the need to go to any international court or tribunal whenever there was such a necessity states have gone and a very good example is what Myanmar Bangladesh did it lost international tribunal of the law of the sea and what happened between India and Bangladesh and India although being a relatively power very happily gave away its share of maritime claims in favor of Bangladesh so that makes the region broadly stable when it comes to the relationship between states that doesn't mean that the region is peaceful because we do have the peculiar relationship between India and Pakistan and this peculiar relationship raises several issues of maritime security particularly in relation to maritime terrorism now the understanding and conceptualizing of conceptualization of maritime security has certainly broadened over the years and when we speak of maritime terrorism one of the conventional understanding of maritime terrorism which led to the of the SUA convention was that the threats are essentially to the vessels which are in the sea so the objective of protection was maritime navigation and that's what the objective of the SUA convention is but as times have passed by we do realize that the seas are being used to target the land as well therefore the threat of maritime terrorism is not just limited for installations on the sea or for vessels flying on the sea that is maritime navigation but even on land so where the sea is being used as a conduit for committing some of the maritime terrorist activities and we have had some of these experiences for example the bomb blasts in Bombay in 1992 or 2611 incidents in Mumbai those speak about those were both all the occasions where seas were fundamentally used to attack the land now that's one area of maritime terrorism the second area of security concern is in relation to IUU fishing illegal unauthorized and unreported fishing now on its face IUU fishing should not create much problems because one might say it's just a group of people who are over exploiting the fishing resources but the problem is much broader than what meets the eye the reason for this broader problem is it often involves taking over fisherman of a different country and prosecuting them and therefore despite excellent relationships between India and Sri Lanka we often see certain degree of discomfort when it comes to fisherman from one country going into jurisdiction of another country and fishing so IUU fishing may result into mixed relationships between states it may not be as serious as a boundary dispute but it can nevertheless be an extremely sensitive issue which might bring states at loggerheads unfortunately not many states in the Indian Ocean region are state parties to the IUU convention which means a lot of the area remains unregulated now in relation to maritime security apart from the threats to navigation and apart from the threats to the coastal states as I already mentioned that broadly speaking most of the maritime delimitation disputes are settled in the region so there's relatively peace in the region but now the question is what is the power that a coastal state can exercise in relation to countering some of these maritime security threats now in response to these maritime security threats we go back to the most classical framework of United Nations convention on the law of the sea now one of the problems of the approaches of the law of the sea that it was still taking into account the classical threats of maritime security in fact doesn't really deal about maritime security issues except to the extent of piracy which is the only prominent issue which figures out in unclose and the curious part about the provisions on piracy is that a coastal state can interdict a vessel not just within the territory but even outside the territory in the continental shelf and in the high seas this gives a great deal of discretion to the coastal states in terms of the right to interdict a vessel ask for information however the problem is if the information if the interdiction was found to be improper the coastal state might have to pay compensation now let us take the situation of a threat of a terrorist attack where there is a small vessel which is intended to commit a terrorist act either ramming itself in a vessel or that small vessel which is intended to be used to be taken on a coastal state and then to commit a terrorist attack there on such occasions the framework of unclose is quite unhelpful in fact the SUA convention the protocol tried to address some of these problems but still the focus is on the flag state it might be too late for a coastal state to wait for a flag state to really get into these issues to address them therefore in view of this peculiarity we do see that unclose does not provide for necessary flexibility or necessary power as one might say when it comes to matters of protecting their own coasts or protecting maritime navigation but then another argument is that the continental shelf as well as the high seas are to be used with due regard the obligation of due regard stipulated by unclose is on all states and since all states are under that obligation if there is a threat to a coast the coastal state and its naval force would be very much justified in use of necessary force which is proportionate to neutralize such a threat so what we do see is there are aspects of uncovered areas of international law and it's not uncommon for international law to have several areas uncovered so it is not it should not be seen as a drawback of unclose in any manner rather it should be rather seen as a flexibility which states have which is of course subject to the overarching principles and overarching rules of the United Nations chart now one prominent issue of the Indian Ocean which has rather made the Indian Ocean a topic of great discussion or maritime security in the Indian Ocean of great discussion is the concern of piracy which has been happening off the coast of Somalia now it's really rare to get a Security Council to pass a resolution under chapter 7 which is a binding resolution and it is one of the rare occasions in relation to piracy along the coast of Somalia has allowed or rather it allowed for initial period of six months for any state to go and take enforcement measures against pirates in the territorial sea of Somalia because otherwise would not be allowed to go into territorial sea of another state because the restriction is you can go only in terms of an innocent passage now this kind of a paradigm is a situation which was necessitated as a peculiarity and it existed only as a peculiar situation in relation to threats arising out of Somalia but as we progress over the years the threat has reduced Secretary General in his reports to the Security Council has informed the Security Council that the threats are reduced but nevertheless the threat exists and collective action in relation to piracy would certainly remain on the edge now to speak briefly very briefly for a couple of minutes about the regional architecture we certainly do not have any strong solid structure like the NATO in place in the Indian Ocean region which is understandable or rather obvious due to the diverse interests of various states involved in this region and their interests don't necessarily align with each other we do have the IRA and the IRA is also trying to have some sort of discussions it had its first meeting in 2019 on security issues but we see that the discussion is essentially about rescue missions on the sea and it doesn't get into what you might say hard maritime security related issues of course there is the Quad where there is not under the IRA framework but between four states there is the discussion ongoing but this is again about collaboration between militaries between naval forces of these states it's essentially about threats to the state per se from another state but there are smaller threats in the form of say are you fishing or in the form of a threat of a terrorist vessel which may attack a vessel flying on the sea or which may create a threat for the coastal state so we do have these host of threats but we don't have any solid discussion happening under the framework of IRA ASEAN in relation to its own states is having some sort of discussions but the Indian Ocean region is honestly far away from getting anywhere close to have a stronger collaboration to address some of these points I haven't addressed the issue of travel of weapons of mass destruction because we do have the proliferation of security initiative which was floated by President Bush trying to have an informal network between states in order to interdict and stop transport of weapons of mass destruction we still don't know how such a regime would function within the region because not many states are parties to this PSI so we do see a situation where law is relatively nascent and the law is relatively nascent because the attention to the region is nascent as the attention of scholars as the attention of these states and the stakes increase I do see that here is the potential for international law to grow because if international law grows then we are in a position of having a rule based international legal order it's not an order just for the sake of it it's an order to ensure that the relationships between states are peaceful and stable since we all are a part of a global society I would stop there and look forward to questions and answers Thank you Dr. Rajput for that overview on what is happening in Indian Ocean with regard to IOU issues of the marry time terrorism particularly very important and some of the other issues and the need for IOU itself to get more proactive come together for better making of rules and then of course following more participation in the rules based order I would like here when we wait for audience questions perhaps would you touch upon the recent cases a lot of drugs having been confiscated at sea by India, by Canada and others over the past few years but of late the catches are growing and we know now in various conferences Sri Lanka and Maldives are also very very concerned about this new marry time drug rule that is something that I think more needs to be done on a cooperative basis and what would be the long term for the vendors that come out on that and what would be some measures other than ships of course going out and confiscating them as has happened in the recent past yeah that's a very interesting question and we have to look at it from the law and the factual part of it looking at the factual part the major part of it would be addressed through collaboration and coordination and speaking to each other and information exchange which is an integral part in such processes but the legal part is equally important and that is an issue of who can exercise jurisdiction and to what extent now the problem is when it comes to issues of drugs peddling often it's a matter which falls within the enforcement jurisdiction of coastal state and enforcement jurisdiction would normally go up to the territorial sea then go up to further 12 nautical miles in the contiguous zone interestingly the very reason why the contiguous zone was created because there were these drug dealers who used to often ply just outside the territorial sea teasing the Navy of the coastal state saying you can't touch us because we are in the high seas so that's why we have that 24 12 more nautical miles of contiguous zone where still the rights are not as rigorous as in the territorial sea but as not as weak in the continental shelf or but nevertheless they are of a higher degree but they're still in enforcement nature so that's also to what extent they can be pursued not because the only way under the under unclaws you can pursue people outside the territorial sea or the contiguous zone isn't in relation to piracy so there are restrictions otherwise so there is a large element of coordination and collaboration so despite silence of the legal regime it doesn't mean that measures cannot be undertaken there is a possibility of mutual coordination and cooperation between the states and that is something which can help them to address these issues and you know Ms. Parva could you could you explain a little more what your thoughts are on two issues one is what both in the Indian Ocean and the other is what the Indian Ocean do in terms of maritime security in terms of other issues of you know I don't personally like the term non-traditional security threats because you know all these are actually very traditional security threats including climate change itself which has happened in centuries past so they are very traditional threats nonetheless even if you want to call them you know scholarly angles and as non-traditional what more can AYORA do and the second question is therefore what do you think might be changing American position on Diego Garcia as you mentioned the Prime Minister has made the point several times about having some arrangement do you think there is progress on that as far as UK, US and Mauritius circumstances Prime Minister Kande actually I think you probably perhaps the first person I've heard from the naval community who is thinking of a thing to the non-traditional security issues usually it's the opposite when you try to talk about you know these issues it's like well it's not important enough so do we really need to assign that much sources or resources to it but no absolutely and I think today there is even more of an convergence or I would say overlap hard security versus soft security because as you were aware of course today you're using fishing vessels for intelligence collections or even surveillance and other I guess methods and purposes that has a more implication for harder security issues than say for fishing or any of these issues like illegal fishing or climate change I think the problem with AYORA is also the challenge has been that it's a very big regional institution which has members from as I mentioned from Iran to Australia and Indonesia to South Africa so the social fabric the politics of each of the member states is so different attempts and so varied that it is quite difficult to come to I guess agreement on issues of that are of importance to everybody but there are some issues like for instance blue economy there is a pillar like kind of within the AYORA pillar that AYORA is trying to do more but there is in fact very little agreement on what constitutes blue economy and what the process should be going forward in fact it has been the island nations like sessions who's taken a lead on this and I think they should be driving that conversation that AYORA could become the platform to discuss debate and perhaps negotiate or some sort of framework for some of these issues whether it's climate change, whether it's illegal fishing, whether it's blue economy even from a point of view of say if you look at the Pacific islands you have the Pacific Island forums and where you have bigger players as part of it either as members or as observers but the conversation is driven by the 14 islands together of course there are divisions within it as we are seeing today but we don't have a framework like that in the Indian Ocean region you have the Indian Ocean Commission of four actually Mauritius sessions Madagascar and Kamara said there is not inclusion of Sri Lanka and Maldives which are the non-strength speaking countries so I think it could be useful to kind of create or lead some of these softer issues or soft security I guess these security issues by the smaller nations or littoral nations who face more of an existential threat from these issues than rather say I would say US or India or France or UK on the question of Diego Garcia I think it is a complicated position on it because for a very long time Washington's position was also officially whether it was in conversation with India or with Mauritius is that it's a bilateral dispute between UK and Mauritius and then of course the bases utilized and is of use to the US and UK but it's very important transatlantic ally I don't see US taking a different path unless London is willing to have a conversation around it in the sense I do not see US and UK taking different paths to it in which UK says that it is not willing or it is not looking to discuss or renegotiate the agreement around Diego Garcia and US says that it does even if the government here maybe some level recognizes the need to go back to the table or there might be conversations around it it is not going to be a bilateral conversation between the US and Mauritius although they might be married to it because it has to be a joint collaboration between US and UK because the US agreement is with the United Kingdom and United Kingdom's agreement is with Mauritius because it's not a straightforward in fact the Mauritius Prime Minister has also indicated that perhaps it can renew the base directly with the United States through London but it would complicate the transatlantic relationship so it is going to be very complicated politically I have not seen or heard conversations when Washington might be willing already to have that conversation bilaterally or individually with Mauritius or willing to take a path which is not consistent with the London view Thanks there are a couple of audience questions and one of them is about what does it need to expand its scope and try and include Southeast Asian countries to make it more inclusive I would say that what initially it does need to consolidate within itself and look for getting into a quad plus in various areas and there is certainly a great consonance between all quad members currently and the ASEAN itself in issues of freedom of navigation freedom of the Indo-Pacific and the ASEAN's concerns that relate to these issues as well as more specific concerns about South China Sea itself so yes what needs to consolidate needs to deepen and gradually expand because that is one way of bringing some coherence into action plans and in some cases form a counter balance to some of the steps that China is taking to be able to actually further peace and some level of tranquility in times to come there was also another question about China coming into the Indian Ocean region as I mentioned China is already in the Indian Ocean region as a has of course legitimate interests and therefore presence but it has other concerns as I brought tried to bring out in my opening remarks itself there are parallels without tracking the analogy as I said between what happened with Britain and I do feel that it is probably not incorrect to say that in some ways the US and for India and for various smaller island nations in the Indian Ocean region the Indian Ocean rim itself that in many ways China is the new Britain and that is something we need to think about there was another question which I am trying to create again Sir I think we might have to close out because we are on our edge of time but very glad to have these questions close the panel and then we will take a shorter break and move to our final keynotes over to you Admiral Thank you so much Commander Bonsley and thank you for arranging this session I think we are running out of time so I won't sum up anything but certainly the Indo-Pacific and specifically the Indian Ocean region is a place for a lot of issues and concerns and I think larger aspects of diplomacy political coherence are very important and to some extent I think the maritime services that operate in the Indian Ocean region need to maintain a very close visual about a whole lot of threats and activities that are taking and therefore I think this space is going to remain interesting and we will all be interested in the interesting environment in the Indian Ocean region so thank you very much Newport for this opportunity signing off Thank you all, thank you Admiral very much for moderating such a rich discussion Thank you to Ms. Barua and Dr. Rajput for bringing some very interesting perspectives about the Indian Ocean maritime security which indeed is a broad region and as Dr. Rajput said we're going to connect the world and I'm very grateful we could all connect on Zoom today and hopefully soon we can do this in person so thank you very much we will take a brief break we'll cut it short for about five minutes and return at minute 45 eastern standard times that would be 1445 eastern standard time for our keynote address from Professor Natalie Klein so see you all in about five minutes food, thank you Ms. Barua Thank you very much all participants and the administration, thank you Welcome back everyone it's quite incredible that we've already almost completed day two we've had such a vibrant discussion today and now we're moving to session eight keynote and final remarks and we're delighted to have Professor Natalie Klein faculty of law University of New South Wales, Sydney for closing keynote remarks so Dr Klein over to you Thanks so much Palm and well good morning to everyone from where I am but good afternoon to you all I very much appreciate the opportunity to be able to present I'm hoping I can share my screen and show you a power point with my presentation if you can confirm that you're seeing that Yes ma'am looks great all right good to know all right as you can see the title of my presentation is to focus on Australian maritime legal challenges that was the topic I was asked to address and I thought that what might be useful to focus on in a conference that's sort of looking at the rule of law is to think a little bit more about those challenges in the context of the rules based international order Australia sits well within the frame of the Indo-Pacific region and that's particularly because one of Australia's strategic defence interests is a stable Indo-Pacific region and also a rules based global order so as a stable Indo-Pacific region seems to go hand in hand with a rules based order I thought it would be useful to address Australia's maritime legal challenges through this lens of a rules based order and consider the international implications of such an approach so in doing so I just wanted to give you a very brief overview of what Australia's position is within the Indo-Pacific and consider then given Australia's constant rhetoric around the rules based order contemplate briefly what that might actually mean and particularly then what it means for international law and then look at that there are we in on three specific challenges that I think Australia faces and that concerns first navigation then what we tend to refer to is both migration or migration by sea and are you fishing and then try and draw out some common themes from all of that now looking at Australia's position in the Indo-Pacific I note my map audience is a little further south than the map that you've been looking at but what's interesting for Australia and one of my colleagues who's based at the University of Western Australia and focuses a lot of her research on the Indian Ocean and the blue economy she's observed that when we look at Australia's different policy approaches to the oceans we can divide them along the four points of the compass and essentially depending on which way you're looking that varies Australia's particular policy approach given that we're focused on the Indo-Pacific the southern point of our compass is perhaps less relevant but I do think it's important to mention Australia has keen interest in the southern ocean which extend down to Antarctica and there our focus really is more so on questions about conservation and research even though Australia is also of course keenly aware of some of the geopolitical strategic competitions in relation to Antarctica as well when we go west I think it is fair to say that Australia's focus has not been very strong on the Indian Ocean compared to our approaches looking north and east traditionally and I or itself you've just been hearing about it's still a relatively recent and as was just noted by one of the speakers a disparate organization Australia's really only stepped up to try and take more of a leadership role really within the last seven years or so when Australia looks north we have direct national security interest given the relative proximity of our neighbors to the north and the need to ensure sea lanes of communication through the Indonesian and Philippine archipelago and China does remain one of Australia's most significant trading partners despite recent and ongoing tensions so passage through the South China Sea for commercial shipping is critical to charity has observed in going through these points of the compass that Australia's high level of engagement with regional organizations to our north includes with the Asian regional forum and also the East Asia summit and there are many bilateral initiatives being pursued to meet security and strategic objectives finally to Australia's East lies the Pacific and to charity considers that Australia's approach to the east is primarily focused on capacity building and development Australia has traditionally been involved in the regional governance mechanisms that are established in the east around the Pacific especially relating to fisheries so in some Australia's policy interests do shift depending on whether we're moving north to the west to the east across the Pacific but what is consistent is that Australia stresses the need for stability and adherence to the rules based order so Australia's department of defence emphasised just last year in a strategic update that Australia will continue to be an active and vocal advocate for rules based international order designed to support economic growth security prosperity and our values and this includes support for laws and treaties such as the UN convention on the law of the sea so what do we actually mean by the rules based order the department of defence has kindly sought to provide a definition for us and said that it means a shared commitment by all countries to conduct their activities in accordance with agreed rules which evolve over time such as international law and regional security arrangements Australia's really referring to the international governance mechanism that's been in place really since the end of World War II in terms of what other countries mean Australia's not of course unique in referring to the rules of other countries it seems that when it's referred to within the Asian region that there is more of an emphasis on the rule of law certainly Japan has advocated for a rules based international order and one that promotes peaceful conflict resolution free navigation and free trade less emphasis on democratic arrangements and human rights China's foreign minister has also referred to a rules based order as well but emphasises sovereignty and UN charter in that context one commentator thinks that has noted that Russia's view of the rules based order is that it is really an attempt to deviate from international law for political expediency now I was quite excited when I began seeing so much emphasis on the rules based order in various government statements naively I thought this reflected a warm embrace of international law and its relevance to manage state decision making and state interactions and while there are different views on the rules based order I think it's safe to say that the rules based order and international law are not the same thing the rules based order is broader than international law so it's not just the formal sources of international law that would be familiar with in terms of treaties and customary international law but also encompasses the use of soft law or non binding agreements or informal agreements as I tend to call them so in the international system informal agreements can be quite useful because they create shared expectations as to the standards of behaviour or conduct in relation to specific international issues the rules based order also is not just hard law or soft law but also encompasses shared norms or governance structures or arrangements or processes so it's not just actual agreements but also the processes and institutions that produce the agreements, monitor them and potentially engage in their revision so the rules based order definitely anticipates that the rules will evolve and change over time so let's consider this dynamic in relation to some of Australia's challenges so as I mentioned before Australia's navigational interests to the north include being able to transit through the Indonesian archipelago and reach important ports in both south east Asia and north Asia so the legal challenges for Australia to the north can be summarised really there's quite a few as including ensuring the passage of commercial shipping consistent with navigation and while navigational rights for commercial shipping hasn't really been directly challenged we did face a situation earlier this year of ships holding Australian goods being barred from entering Chinese ports and this was not so much about the freedom of navigation under UNCLOS but really more so about customary law rights of access to ports as well as international trade rules in a timely manner also raised a number of questions about the carriage of goods by sea insurance claims and also the rights of the crew who were on board and who were then held on vessels for much longer than anticipated another legal challenge of course includes the movement and actions of warships and in this respect you would be familiar with the range of challenges and I'm sure have been talked about over the last two years including issues around prior notification or authorization in the territorial sea challenges merging in relation to military activities in the EEZ of other countries including military research and also questions concerning contested territorial sovereignty and contested maritime delimitation affecting the characterization of maritime zones and the concomitant rights and duties in those particular zones and of course the exercise of law enforcement powers also comes up and particularly the roles being ascribed to fishing militia and the new powers being given to the Chinese Coast Guard considering the lawful parameters of escort and considering if there's any change in the rules relating to the use of force so for Australia to respond to some of these legal challenges Australia does have its own freedom of navigation program that began in the 1990s and is similar to the US program in as much that it involves at sea operations as well as diplomatic exchanges but despite Australia's strong economic and strategic interest to the North we haven't really gone as far as the United States in terms of the types of locations of the phonops that the US has undertaken so for example as far as I'm aware Australia does not send its warships through the territorial sea of contested islands in the South China Sea though the Australian Navy does sail through the South China Sea often on its way to joint military exercises with its allies and it has been closely followed by the Chinese military and reportedly last year had what were called unplanned interactions with the Chinese and that was what the US government applied last year a statement issued by the Australian Department of Defense at the time observed that the interactions were conducted in a safe and professional manner and this statement I thought alluded to an underlying legal regime of the coal regs which the regulations relating to collision which we tend to think of as the rules of the road at sea and also potentially having bearing forward for unplanned encounters at sea or the queues and the two main aspects of the queues are to set out safety procedures and provide communication procedures so although the queues has as a standard that it is seeking to establish international standards the documents very clear as to the status of the queues as a non binding legal instrument so it's an informal agreement as part of our rules based order and arguably it does provide some more details on what we might expect of the legal standard of due regard at sea but the queues has its limitations as recognised by various commentators including some of you who are here today and not least because it's legally non binding but also because of its scope of application in that only covers warships and it's only for unplanned encounters now rather than direct confrontations or operations at sea Australia has issued statements to the United Nations in which among other things it has objected to China's use of straight baselines to encircle the island groups in the South China Sea and the statement that was issued most recently was notable because of its categorical statements about which of China's actions Australia considered to be in violation of international laws and I think it's quite good for Australia to stand firm on these specifics of international law and also preferable to emphasise the coal regs as the binding legal regime rather than the queues I think would be beneficial what does it mean if we put binding rules of international law and instruments that are explicitly stated to be non binding we need to be careful not to diminish treaty rules and instruments turning to the second specific challenge that I wanted to mention for Australia again looking north but also to our west we can consider Australia's efforts to reduce if not eliminate migration by sea to Australia so both migration has been an issue for Australia really since the 1970s but more particularly since the turn of the century following the arrival of the Tampa which had over 400 irregular migrants on board who had been rescued by a Norwegian cargo ship which then sought to deliver those people to Christmas Island but were met by Australia's special armed services the Tampa introduced sweeping changes to Australia's migration laws and also changes at the international level around the rules relating to search and rescue and we do have a strong legal approach to the safety of life at sea convention the search and rescue convention and also the migrant smuggling protocol some of the ambiguities in the search and rescue convention and also to the solace convention have been addressed in a set of guidelines which is an informal instrument that was adopted by the international maritime organisation at the same time as the more recent amendments to those instruments now Australia could be accused I think of cherry picking it's preferred rules when it comes to the rules based order because it places little emphasis on international refugee law and international human rights law when it responds to migration by sea and in implementing these obligations into its domestic law so for example concerns have been raised under international refugee law when Australia has sought to return Sri Lankan migrants who are seeking asylum to Sri Lanka and a recent Australia border force initiative has seen the delivery of drones to Sri Lanka to assistant surveillance to counter people smuggling operation as well as other crimes at sea and this surveillance raises a range of legal questions that feed into others relating to the use of maritime autonomous vehicles but in our rules based order we also have to look not just at the resources of law and these soft law instruments I've mentioned but also to the regional arrangements that support strategic endeavors sorry consistent with the view from Australia's foreign policy white paper to support a balance in the Indo-Pacific favourable to our interests and promote an open and inclusive rules based region Australia also works more closely with the region's major democracies and in small groupings and I think the Bali process which Australia co-chairs with Indonesia and that was set up to deal with amongst other things the resettlement of refugees and also migrants smuggling is kind of notable in this regard and the Bali process was established in 2002 again not long after the Tampa incident as a forum for policy dialogue information sharing and practical cooperation to help the region and the Bali process has been put in the spotlight recently with the Andaman Sea migration movements and there's no doubt an important place for mechanisms that promote information sharing and cooperation as well as allowing for capacity building these dimensions I think are critical for a stable Indo-Pacific region so it makes sense for the rules based order to encapsulate these mechanisms which are intended to take legal frameworks into account my concern is that things like the Bali process should not come at the expense of applicable international law the 2016 declaration coming from the Bali process does reference international law quite generally but the only international law mentioned in the 2018 declaration from the Bali process are the two global compacts which are important but non-binding requirements. Now to turn to our third maritime legal challenge and that concerns Australia's responses to IUU fishing and this is a problem for Australia in several different directions certainly south extending into the Antarctic where Australia has been particularly concerned about overfishing of Patagonian tooth fish and also other illegal fishing around the herd in McDonald Islands down to the south and Australia has encountered difficulties with the enforcement of what's known as the Indonesian MOU box which is an area within Australia's fishing zone where traditional Indonesian fishers are allowed to come and are not compelled to follow Australia's laws that there have been concerns about more commercial fishing happening and also exploitation around the outside of the MOU box and similarly Australia has the Torres Strait Treaty with Papua New Guinea which supports traditional fishing again but concerns around increasing commercialization of fishing within that area and other influences in the fishing industry emerging recently. Now these two particular fishing arrangements in relation to Indonesia and Papua New Guinea are covered by an MOU and a treaty respectively that has also engaged in this issue in the region to the north particularly one example is the 2017 statement of cooperation on the need to deter RUU fishing which was adopted at the ASEAN regional forum but also notably Australia has taken a range of steps to address illegal fishing in the Pacific Ocean as well and as I mentioned at the outset Australia is very involved in the relevant regional forum including the Pacific Islands fishing agencies agency. Now when it comes to RUU fishing I think the legal framework is actually quite vast and it does include a plethora of treaties as well as informal agreements and these include UNCLOS the 1995 Fish Stocks Agreement the more recent Port State Measures Agreement there are instruments being adopted under the FAO the Food and Agriculture Organization also within regional which have treaties and decisions that are adopted. Australia does dedicate resources to supporting monitoring control and surveillance of course a question whether it dedicates enough resources because law enforcement remains really the critical challenge in being able to address RUU fishing but in terms of the rules based order in this instance I have less concerns about the diversity of tools being brought to bear to deal with this problem and the international laws being diminished as a result. In this instance the rules based order with all of its component parts can potentially work when these parts are complementary and positively reinforcing the response to the problem. So to try and bring these points together I should just note though that though I've highlighted very briefly three maritime legal challenges for Australia those of course the only ones we've also have concerns around the security of our submarine cables also of course concerns about the marine environment and pollution of the marine environment also some elements in Australia have concern about climate change and the necessary responses for that and also concerns about maritime crime including drug smuggling. Now to meet these challenges Australia does need international law it's international law that provides us with our maritime rights that we are now seeking to protect in different ways. But as Bisley notes over the past decade or so the rules based international order has become a rhetorical centrepiece of Australian international policy now rhetoric has its place and its value but I think as international lawyers it is incumbent on us to dive a bit more deeply and insist on a preeminent place for international treaties and customary international law we have to realise that there are limits to the value that should be ascribed to informal agreements and we need to ensure that they are not antagonistic to borrow a term from Chaperone Pollock that they are not antagonistic to the existing hard law and when we are dealing with mechanisms and processes and arrangements developed within the rules based order we should think carefully about how they might reinforce international law do they allow for accountability do they enhance the day-to-day implementation of international standards do they provide an appropriate mechanism to revise or update international law so as the title of my presentation suggests it might be a juggling act but I would say let's make sure international law is the safety net and not one of the balls being tossed around at risk of being dropped so thank you for your attention I should also do a little disclaimer these are quite preliminary thoughts and I'm looking to elaborate on these for the full written paper for the international legal studies and I'd be very pleased to receive comments even by email on my thoughts on that so thank you for your attention and your time Thank you Professor Klein for a lovely close to our second day of the conference really appreciate your thoughts and I like the idea of the warm embrace of a rules based order but imagine we have far to go for that thank you in particular for getting up so early I know it's quite early where you are in Sydney and a gracious thank you to all our panelists that tuned in from across time zones today to provide such a rich and dynamic discussion on such a variety of topics I've learned a lot and I certainly hope our audience has as well so this closes day two of the Cushing Conference we thank you all for joining us today I hope you will all join us tomorrow for day three we start again promptly at 1100 Eastern Daylight Savings Time and thank you all again this ends day two have a great afternoon evening and morning