- 4 months ago
As maritime tensions rise across the South China Sea and the Indo-Pacific, what does “maritime security” really mean today? Professor Stuart Kaye, Director of the Australian National Centre for Ocean Resources and Security (ANCORS) unpacks the evolving legal, political, and strategic battles playing out across the region’s waters.
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00:00Hello and welcome to Awani Global. I'm your host Fahna Shea and today we're very excited to be at the sideline of the 38th Asia-Pacific Roundtable at Hilton Kuala Lumpur.
00:18Now, today we're diving into shifting tides of maritime security where law, politics and strategy intersects across the Asia-Pacific and as regional tensions grow and legal norms are tested, how do we make sense of the contests for control, access and influence at sea?
00:36I'm very excited to have us. Joining us today is Professor Stuart Kay, Director of the Australian National Centre for Ocean Resources and Security at the University of Wollongong. Thank you so much for joining us today.
00:48Thank you very much.
00:48Right. We just finished your session just now. So let's dive into the whole landscape of maritime security. Let's start at the very beginning because we have time. How do different actors, you think, define maritime security? Let's start with that. I know it's very basic but I think it's quite an important question to address, especially from a legal standpoint where you are. What do this varying perspective reveal about the political and strategic undercurrents in this region?
01:14Look, it is a complicated question and it's one where there's no accepted definition that works for everybody in exactly the same way.
01:23Some states will look at it relatively narrowly and will look at interests very close to their coasts and want to make use of concepts of maritime security to deny access or to potentially deny access to certain waters.
01:37On the other hand, some states will take a much wider view and look at maritime security in a very holistic way to say that maritime security is vital in terms of their overall trade and the like, where they want to make sure that there's freedom of navigation so vessels can move about the world carrying all the goods that are needed to go hither and yon to help build wealth.
02:00States tend to be more of the latter approach than the former but it's not universal by any means and there are various international legal instruments that also are in this space and they provide for various aspects of security to ensure that ports are free from interference and that vessels are well found and safe when they're navigating.
02:23Right, so from what you're saying, there's sort of the legal aspect of the definition and there's also what states and regional actors, what they feel is the definition of maritime security.
02:35So from this differing interpretations, how has it evolved over time and what have contributed to today's fragmentation?
02:43So what are some of the most sort of striking contrasts if you talk about Western and regional actors conceptualising maritime security?
02:50Yeah. Look, I think there have been incidents that have occurred over time that have seen developments in the context of maritime security.
02:58The most famous one was a terrorist attack on an Italian cruise liner back in 1988 where people had assumed that that sort of activity could be dealt with under the laws relating to piracy.
03:12But the definition of piracy didn't cover this particular incident.
03:16And so that led to a series of meetings in the International Maritime Organisation to try to firm up an international agreement that would deal with what was called the suppression of unlawful acts against maritime navigation.
03:29Never referred to terrorism anywhere in the document, but that was what it was directed at.
03:32Now that has been adopted in parts of parts of the world, but it's not universally adopted here in Southeast Asia.
03:43And that that imposes some limitations.
03:46Post 9-11, that agreement was substantially updated.
03:49And again, the updating of that post 2005, relatively few states in Southeast Asia have gone for those further steps.
03:57Right. So it's sort of like a lack of information of this involvement or this deferring definitions and deferring legal aspect that not all states might understand and not all states are on board, you mean?
04:14Well, also, to be able to implement obligations of this nature, there's work that needs to be done.
04:19And a state will need to work domestically within its national legislation to be ready to be able to do these things.
04:27And that requires some work and it requires some effort.
04:30And different states have different demands on their time and different capabilities.
04:34And so it may not be a reluctance to take these obligations on.
04:37It may simply be that there have been other more urgent things to do and limited capacity in which they can be done.
04:43Right. I mean, definitely in today's context with what's happening around the world right now,
04:48a lot of the attention shiftings and, you know, people are focusing on on different, different things,
04:53be it economy, be it, you know, global politics or international conflicts.
04:58So, yeah, I understand what you mean.
04:59So let's focus on South China Sea.
05:03That was the big chunk of the discussion just now.
05:06And rightly so, because it's such a contested, it has been such a contested issue for so many times, for so many long years.
05:14So when we talk about South China Sea, how are competing legal claims like historic rights
05:20or, you know, interpretation of UNCLOS, for example, shaping the tensions there?
05:25Are we seeing a legal erosion of international maritime law?
05:30Look, I don't think so.
05:32The issues in the South China Sea are complex.
05:35Right.
05:35But at their heart, they revolve around issues of sovereignty.
05:39Right.
05:40That there are small features in the South China Sea, small outcrops of land that are just above the water.
05:48The largest is only tens of acres in size, so not very large features at all.
05:57And these features, the sovereignty is contested.
06:00And these are issues that can be found in other parts of the world.
06:04And in Malaysia, they had issues with respect to Ligatan and Sipadan Islands off the coast of Borneo with Indonesia
06:13that led to a case to the International Court of Justice.
06:16The issues in the South China Sea at their heart are exactly the same.
06:20Where they become more complicated is any feature will generate a certain area of maritime jurisdiction around it.
06:27We'll give certain maritime rights.
06:30And the extent of those rights and the nature of those rights will be affected by the nature of the feature.
06:36And this is the subject of a significant dispute as well.
06:39Because the Philippines took China to an international arbitration.
06:44China refused to participate.
06:46It said the arbitration shouldn't occur.
06:49And in that arbitration, the Philippines argued that the small features in the South China Sea
06:54would not generate large maritime zones.
06:57China's view is diametrically opposed to that.
07:00They think that the features can generate such zones.
07:03And this is at the heart of the dispute.
07:05Because it's not just between the Philippines and China, but it also affects Malaysia.
07:09It affects Vietnam.
07:11And affects Brunei.
07:14And Taiwan, which isn't recognised by any of those, also has views in respect to it.
07:20So it makes it very complicated to try to unpick all these things.
07:23Right.
07:24And also taking very long to sort of have any concrete dialogue up till now
07:29and concrete sort of solution or the light of the end of tunnel
07:33when it comes to discussing on ways to resolve, you know, sovereignty claim,
07:38which is something that is very, very complex, like you mentioned.
07:41So when we talk about, you know, naval power projections in the South China Sea,
07:45either by the US and China and regional actors, how are they shaping the strategic calculus?
07:50And do you think this region is entering a phase of low intensity but also constant friction
07:57that we see between Philippines and China, for example?
07:59Look, there have been areas of friction that occur from time to time.
08:03What sets those off is usually determined by other factors.
08:09It may be a change in regime, for example.
08:12From the late 1990s through to the early years of Barack Obama's administration,
08:21the US and China often got into situations where there would be not so much a military confrontation
08:29but efforts to try to, from the Chinese point of view, to discourage American vessels being in the vicinity
08:36and the US holding the view that they had the right to be there.
08:39And those incidents would occur usually in the first few years of a, first few months, I should say,
08:45of a presidency in the United States.
08:48It was almost as if China was testing to see the resolve of the incoming president.
08:52That practice disappeared with the first election of Mr Trump.
08:56I'm perhaps a little uncertain as to what his reaction might be.
09:00But these sorts of things have gone on from time to time
09:04and different states have faced different levels of discouragement and confrontation.
09:09And I'm not sure that there's much that's different now
09:13that could be described over the last 25 years or so.
09:19But there's better reporting, certainly a lot more media about it.
09:23And that's perhaps brought these issues more into the public eye
09:27than they might have been in earlier times.
09:29Right.
09:30So I guess let's move on to regional governance and legal framework
09:34because this is somewhat the contested or the tensions
09:39or, you know, what people are seeing could drive solutions
09:43but are also critiquing it into, you know, either being in action
09:49or not serving its purpose, right?
09:51So ASEAN.
09:53We've talked a lot about ASEAN during the session just now.
09:55And ASEAN, with members with competing claims,
10:00has long tried to manage this space through consensus building,
10:04including efforts towards, you know, managing, establishing the code of conduct.
10:09So from a legal and diplomatic perspective,
10:11do you believe ASEAN still has the political space
10:15to act as a neutral convener or is it credibility being tested?
10:19Look, I think it's difficult for ASEAN.
10:20I'm not sure that ASEAN was ever intended to deal with disputes
10:24as difficult as these.
10:28ASEAN works best when it's engaged in coordination and cooperation,
10:33particularly between the members.
10:34And in the maritime space, it's been quite effective
10:36in relation to that sort of cooperation.
10:40ASEAN has provided a focus with respect to the code of conduct negotiations
10:44that have been going on with China over the last seven or so years.
10:50The level of progress is hard to assess
10:53because what goes on in those code of conduct negotiations is not public.
10:58But the progress has been slow.
11:00That's not a surprise.
11:01The issues are very, very difficult,
11:03even not to so much settle the dispute,
11:05but to settle how everyone should behave in the South China Sea
11:09is what the code of conduct is presumably aimed at.
11:12And so in those circumstances, ASEAN is doing its best to advance these things
11:18and with what is a very difficult thing to do.
11:21And so I think in the circumstances, ASEAN's efforts are laudable,
11:27but will it necessarily succeed?
11:29And will we see a code of conduct emerge?
11:31I think that's not clear yet.
11:34Right.
11:34I think from the discussion just now,
11:37the focus was, or the highlight of it was,
11:40ASEAN is not the ultimate solution provider.
11:43It's a mediator.
11:45And it's, like you said, it's doing its best.
11:47And I've heard an analyst say before,
11:49as long as we're not going to war with each other within ASEAN,
11:52I think it's still doing a good job at dialogue at least.
11:55That's what an analyst said to me before.
11:57Sure. Right.
11:58So moving away from, you know, looking at it more broadly,
12:02are international frameworks like UNCLOS, for example,
12:05still fit to purpose?
12:07Or are we due for an evolution in how global maritime laws
12:11address modern strategic behaviour, especially grey zone tactics?
12:15Yeah.
12:15Look, I'd countenance against looking at changing things.
12:21The Law of the Sea Convention took a very, very long time to negotiate.
12:25Right.
12:25At the time it was concluded,
12:27it was the longest set of negotiations in international legal history.
12:32That's now been exceeded by the Doha round of the WTO.
12:36But even so, we're talking with the preparatory discussions
12:39well over a decade,
12:41and the actual negotiations in 17 separate sessions
12:44over nearly a decade.
12:46And it still doesn't settle everything in relation to maritime affairs.
12:51So having invested that much time, effort and energy,
12:54the international community, I think,
12:56would be most unwise to say,
12:57well, let's tear it up and start again,
12:59because you would be settling down for 20 or more years of effort.
13:04When what we have deals with most things,
13:07and deals with most things reasonably well.
13:09Before the Law of the Sea Convention was concluded,
13:12there were nearly 40 states who asserted territorial seas
13:15that were much wider than the norm,
13:18more than 12 nautical miles wide.
13:21Today, nobody does.
13:22Everybody has a maximum of 12.
13:25And the Law of the Sea Convention has exerted a normative impact
13:28on state behaviour.
13:30Now, it was never intended to resolve all disputes,
13:33and so some types of issue remain unresolved.
13:36And some of these are prevalent in the South China Sea,
13:40particularly engaging in military activities
13:44or marine scientific research.
13:47These are areas which the Law of the Sea Convention
13:49either doesn't deal with,
13:50or only deals with in a relatively limited way,
13:56and in a way in which the South China Sea
13:58is not best suited to see these issues resolved.
14:02So the Convention won't solve all our problems,
14:05but throwing the whole thing out would be catastrophic.
14:09It would cause disruption in areas that are well settled
14:12and that work very well.
14:14So if we circle back,
14:15do you still think it fits its purpose,
14:18or is it due, although it took a long time to get here,
14:23is it due for a revamp or a look into probably more complex issues
14:29or settling sovereignty claims, for example?
14:31Well, the Law of the Sea Convention itself
14:33is in the form that it was in when it was first signed in 1982.
14:38But there have been three agreements concluded now,
14:41one yet to enter into force,
14:43that deal with additional issues,
14:45that are designed to work with the Convention.
14:47So the way you deal with issues that are emerging
14:49or issues that you would like to resolve
14:51is to add on, to put something else there.
14:56The most recent of these was only concluded in the last year or so,
15:00and that was to deal with protection of biodiversity
15:03beyond areas of national jurisdiction.
15:05And that agreement is yet to enter into force,
15:08but it's getting close and will enter into force soon.
15:11Before that, there was an agreement to deal with fisheries
15:14that were straddling the exclusive economic zone in the high seas
15:19or deal with highly migratory fish stocks.
15:22And those are ways that you can help improve the Law of the Sea Convention,
15:26make it more responsive and more alive to these sorts of concerns.
15:30There's talk that the next iteration of all of this
15:32will be in the context of dealing with marine plastic pollution
15:35because that's a terrible scourge.
15:38And certainly in Southeast Asia and other places,
15:42it's a big ecological problem.
15:44So an international agreement that provided for stronger protections
15:48to stop marine plastic pollution would be very positive.
15:52When it gets to issues like those that might be found in the South China Sea,
15:56I'm not sure that there'll be a huge diplomatic effort
15:59to resolve these in the short term or even in the medium term.
16:03They're complex issues,
16:05and it will be an effort that I'm not sure
16:10the international community is quite ready for.
16:11So it takes more than international law, basically, to solve it.
16:15It takes political will, dialogue,
16:19and sort of states' willingness to sort of sit down
16:22and discuss possible solution, right?
16:25Well, that's the way international law gets made.
16:27For the most part, it's derived from treaties and conventions
16:32or from what's called customary international law,
16:35which is essentially state behaviour,
16:36as well as their belief that the law is binding upon them.
16:40But mostly, it's treaties and international agreements
16:43that give rise to it,
16:45and that, by definition, requires political will
16:47at the very highest levels of government.
16:50Right.
16:50So I guess if I can show you this,
16:53you know, states are hardening their maritime postures,
16:57you know, building bases,
16:59asserting EZs,
17:00and, you know, reinforcing FONOPS, for example.
17:02Paul, do you think the idea of global commons at sea
17:06is losing its ground to hard sovereignty
17:08and security competition?
17:12Look, I think the answer is a yes and a no.
17:15I'd say no, because if you consider the volume
17:20of international trade that passes through Southeast Asia,
17:24that trade is going through waters
17:26which are under the sovereignty of some states.
17:30A vessel making a voyage from the Mediterranean
17:32through the Straits of Malacca
17:35and then up to China or Japan
17:37is going to pass through half a dozen states'
17:40areas of sovereignty in their territorial seas.
17:45And those voyages are being made largely
17:47without interference and without difficulty.
17:51So to that extent, I think the law of the sea is robust
17:54and sovereignty claims aren't stopping that key area.
17:58But we do see evidence that there are places
18:02where states are concerned,
18:04particularly about warships and warship transits,
18:08and that can lead to areas of tension.
18:11But that sort of activity has been going on for a long time.
18:14And to some extent, although we see instances of tension,
18:18it doesn't always lead to conflict.
18:21Right.
18:21And so to that extent,
18:23mostly states have been able to rein themselves in.
18:27In some parts of the South China Sea,
18:29that's been difficult, though.
18:31And confrontations between China and the Philippines
18:33have been quite robust.
18:36But to date, as far as I'm aware,
18:38without loss of life.
18:40But even so, there's tension there.
18:43And that's something which ultimately
18:46the two states will need to manage.
18:48Right.
18:48So you're saying there's flashpoints
18:50and there's tensions in certain areas,
18:52contested areas, like South China Sea, for example.
18:54But in general, trade is still ongoing.
18:58Cooperation is still there.
19:00States are still abiding to some sort of global commons
19:02when it comes to maritime security.
19:05Look, ocean space, on some levels, is shared space.
19:09To be able to get from Malaysia to Europe,
19:13you have to pass through somebody else's territorial sea.
19:16Or you have a very long voyage ahead.
19:20And one that is not the most direct.
19:23In those circumstances,
19:25some level of cooperation,
19:26some level of common use,
19:29has been understood for a very long time.
19:31And rights of innocent passage,
19:35special rights of passage through straits and archipelagos,
19:38have long been accepted by the international community.
19:42And so to that extent,
19:43there are protections there for the things that we need.
19:47But when states face off against each other
19:49with sovereignty claims,
19:50where these are contested,
19:53backing down may have a detrimental effect on their claim.
19:57So that can lead to where you have tension
19:59and some robust exchanges.
20:03And it explains why states are very reluctant to back down.
20:06Right.
20:06I mean, we can sit here all day
20:08and discuss the solutions to South China Sea,
20:10but you know it's not going to go anywhere.
20:12So let's continue with what contribution we can take
20:17with Track 2 diplomacy, for example.
20:20So what role can Track 2 diplomacy,
20:22like the APR conference, for example,
20:25in contested maritime spaces,
20:27what role do they play?
20:27Are there examples, say,
20:30the Indian Ocean or even the South China Sea,
20:32where informal or non-state engagements have moved the needle?
20:36Look, there have been efforts that have worked
20:39to try to help in the South China Sea.
20:41Certainly the Canadian government provided support
20:46through the 1990s into the early 2000s
20:50to efforts that were principally made within the region
20:53to try to have Track 2 discussions.
20:57Indonesia is very involved in Track 2 discussions
21:00and even Track 1.5 discussions
21:02in relation to the South China Sea
21:04through the 90s and into the 2000s and beyond.
21:07So there are a lot of goodwill to try to help in this regard.
21:11And certainly while there's discussion taking place,
21:15while there's constructive discussion,
21:17then it does lead to hope.
21:21Events like this one have diplomatic attendees
21:26and they listen, they may get ideas.
21:29And so a Track 2 work can be very helpful
21:31in helping sow some seeds that may lead
21:34to discussions around where cooperation might be possible
21:38and chip away against these difficult issues.
21:42Right, we're basically throwing the seeds around the garden
21:44but the house is still occupied
21:45by those who are in contact with each other
21:48and they are the ones who need to solve the problems in the house.
21:51Ultimately, yes.
21:53These are matters that have to be resolved
21:55ultimately at the very highest levels of government.
21:58These are things for presidents and prime ministers
22:01to ultimately make the decision
22:04and to decide what level of solution might be possible.
22:08But getting help from this kind of forum is very useful
22:14because it can give ideas for where cooperation might be possible
22:18and help push things along.
22:20Right.
22:20It's a nice way of looking at it.
22:22So I guess looking ahead,
22:23do you think we're heading towards
22:25a more fragmented maritime order
22:27in the Indo-Pacific or Asia-Pacific?
22:29Or are there still potential
22:30to strengthen the rule-based order
22:33through regional or multilateral efforts?
22:35Look, I think there's still potential to do good things.
22:38I think the Law of the Sea Convention
22:40and some of the other instruments associated with it
22:42provide for opportunities at cooperation.
22:45Cooperation in relation to things like search and rescue
22:49or responding to a large oil spill,
22:52these are things which states can do
22:54which are in everybody's interest to respond to.
22:56Where cooperation is relatively low-hanging fruit,
23:01doesn't require giving up sovereignty claims,
23:03doesn't require difficulties having to be resolved.
23:07And then if you can proceed incrementally,
23:10you can get some way along.
23:12And once cooperation is taking place,
23:15then it becomes easier.
23:17One of the things that's being promoted at the moment,
23:20particularly by the UN
23:22through its Food and Agriculture Organisation,
23:24is what's called the Port State Measures Agreement,
23:27which is designed to deal with illegal fishing.
23:31But it does so,
23:32rather than arresting fishing vessels on the sea,
23:35setting minimum standards for fishing vessels
23:37to be able to come into ports.
23:39And if everybody cooperates in that way,
23:41then you can help stop illegal fishing.
23:45Now, that measure doesn't require anybody
23:46to get concerned about sovereignty claims
23:48or arresting vessels at sea,
23:50and it is a good way to cooperate.
23:53And there's been slow but increasing take-up
23:55of this Port State Measures Agreement
23:57in Southeast Asia,
23:59and I think that's a very positive development.
24:01I mean, it's those low-hanging fruits
24:02that you talk about,
24:03you know, those areas of cooperation
24:05that you can agree on
24:08and you can just move forward
24:09and let, you know,
24:11the big boys handle the big stuff.
24:12We can handle the little stuff
24:15and sooner or later,
24:16it will accumulate to something even bigger, right?
24:19Well, cooperation, I like to think,
24:21is a bit of a reflex.
24:22That once you start to cooperate with a neighbour,
24:24you begin to find greater common cause.
24:26More common grounds.
24:27And everything can work a little better.
24:28Yeah, I agree.
24:29And so to that extent,
24:30I think states,
24:32if they cooperate where they can,
24:34then it makes it easier to find solutions
24:36to more difficult issues down the track.
24:38Right.
24:39I think that's a nice way
24:40to wrap up this discussion.
24:42Thank you so much, Professor, for your time.
24:44And that brings us
24:45to the end of today's conversation.
24:47Now we remember maritime security
24:48isn't just about ships and sovereignty.
24:51It's about rules, cooperation,
24:53how we navigate contested spaces together.
24:56A big thank you for you,
24:57Professors Stuart Kaye,
24:58for sharing your insights
24:59and deep expertise with us.
25:01That's all from me.
25:02I'm Fahana Shea.
25:14I'm Fahana Shea.
25:15I'm Fahana Shea.
25:17I'm Fahana Shea.
25:17You
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