ADM GARCIA

Satyam – Admiral, you are the presenter.

Adm Garcia - Thank you very much.

Kraska -Oh, that looks great. That's perfect.

Adm Garcia - My task today is to address the question of the impact of increasing recourse to
Lawfare upon the rules based Indo Pacific Martime order. But before I proceed with my
presentation, please allow me to clarify that this presentation does not reflect the views or
perspective of the government office and representing the Philippines. This is my own personal
views based on my analysis and years of experience dealing with martime security issues. I'm
here to represent the Philippine council for Foreign Relations- Track 2 non-government
organisation, chaired by former Philippine interior minister Rafael Alunan. I shall cover the topic
in three parts with focus on the Philippines, China, Vietnam and Malaysia as claimants to the
spratly islands, hereinafter they shall be referred to as claimant states. While we all agree that
___(?) of the security are the underlying cause of conflict in the South China Sea, in part one of
my presentation, I shall demonstrate that the top two triggers of conflict among these states are
disputes over fishing, and disputes over hydrocarbon resources. However, due to time
constraints, my presentation shall cover only fisheries disputes and related lawfare in South
China Sea. With respect to the arbitral ruling in the case of the Philippines vs. China, I shall
discuss only the portion dealing with unauthorised fishing by China in the Philippine EEZ. I shall
not include the other parts of the arbitral award, as this requires considerable amount of time,
given the technical and legal nuances of the award. Besides, while the arbitral ruling binds China
and the Philippines, paragraph 67 expressly states that it is not binding on Vietnam and
Malaysia. While these two countries may have invoked the ruling nullifying China's nine
dashline, however, they have not formally and fully accepted the declaration of the Philippines’
exclusive economic zone entitlements. In part two, I shall delineate the existing rules based order
governing the fisheries disputes among the claimant states in the South China Sea. In the final
part, I shall discuss an increasing recourse to three modes of lawfare relating to fisheries, namely
national regulation, cooperative arrangements and arbitration. I conclude by providing a
preliminary assessment of the impact of these modes of lawfare on the settlement of fisheries
dispute. The triggers of conflict in the South China Sea can be identified using data on fisheries
disputes over the period 1980 to the present, coming from Centre for Strategic and International
Studies and other online resources.

The following data show that in 1998, two incidents over fishing transpired. The Philippine Navy
arrested Chinese fishermen in Scarborough Shoal, and Vietnamese soldiers fired on a Philippine
fishing boat near Tennant reef (?). In September 2005, Indonesian Navy pursued and arrested the
Chinese fishing vessel ____ (?) that was illegally fishing off ___ (?) province. In May 2010, a
Chinese maritime law enforcement vessel threatened to fire at an Indonesian boat after being
caught fishing near the Natuna Islands, purportedly within Indonesia’s EEZ. In January 2011, a
standoff which transpired between Chinese fishing vessels and the Taiwanese coast guard off the
coast of ____ (?) island. In March 2012, the Chinese Coast Guard detained 21 Vietnamese
fishermen after they were found fishing near the Paracel islands. In May 2013, a shooting
incident occurred involving patrolling personnel in the Philippine Coast Guard and the Bureau of
Fisheries and Aquatic Resources and the Taiwanese fishing vessel at Burlington channel (?)
within the EEZ of the Philippines which resulted in the death of a Taiwanese fisherman. In
September 2017, two Vietnamese crew died and five were arrested after a Philippine Navy
vessel encountered a poaching Vietnamese fishing vessel in the Philippines EEZ or about 32
nautical miles _____ (?) northwest of Manila. In August 2020, a Vietnamese died from gunshot
wounds after a confrontation broke out when Malaysia's Coast Guard sought to inspect two boats
believed were illegally fishing in the South China Sea, purportedly within Malaysia’s EEZ. The
foregoing incidents illustrate that disputes over fishing have consistently triggered violent
confrontation. This screen provides the numbers of Chinese, Vietnamese and Filipinos fishing in
the West Philippine Sea, particularly in the island _______ (?), from the period 1 January, 2021
October 14 2021.

In general, coastal states, flag states and port states have rights duties and responsibilities with
respect to fishing beyond their national territorial jurisdiction. These rights duties and
responsibilities are governed by the following binding and non binding international instruments.
Convention on Fishing and Conservation of the _____ (?) resources the high seas, Convention on
International Trade in Endangered Species of Wild Fauna and Flora, United Nations Convention
on the Law of the Sea, Food and Agriculture Organisation agreement to promote compliance
with international conservation and management measures by fishing vessels on the high seas,
Agreement for the implementation of the provisions of UNCLOS relating to the conservation
and management of straddling fish stocks and highly migratory fish stocks, Code of Conduct for
Responsible fisheries, International plan of action to prevent ___ (?) and eliminate illegal
unreported and unregulated fishing, international guidelines for the management of deep sea
fisheries in high seas, Agreement on Port State Measures to prevent ___ (?) and eliminate IUUF,
voluntary guidance for flag state performance, voluntary guidance for securing sustainable small
scale fisheries in the context of food security and poverty eradication, voluntary guidelines for
____ (?) documentation schemes, voluntary guidance and the marking of fishing gears. Any
regional arrangements as the regional guidelines for Responsible fisheries in Southeast Asia or
bilateral agreements such as Sino-Vietnamese agreement on fishery cooperation in the _______
(?) or the agreement concerning the facilitation of cooperation and enforcement in fishery
matters between the ____ (?) Economic and Cultural Office in the Philippines, and the Manila
Economic and Cultural Office in Taiwan. The status of the binding instruments with respect to
its claimant state is summarised in the table. With respect to the nine binding (?) instruments the
claimant states have neither expressed objection to nor formal adoption of the provisions. For
instance, although not binding the IPU and IUU (?) fishing guidelines have been incorporated by
China into its 2017 distantt water fisheries supervisory regulation. While the Philippines enacted
a legislation prohibiting IUUF. Concrete measures come on to (?) coastal, flag and port states on
vessel registration and recording (?) Each coastal state the right to regulate fishing in waters
under its jurisdiction. Regulation can take the form of domestic vessel registration and recording
of activities such as through the vessel monitoring system. Such regulation and recording
requirements can be enforced by the coastal state by providing that no domestic or foreign vessel
may undertake fishing activities in waters under its jurisdiction without valid authorization to
fish issued by said coastal state and that no such authorization shall be issued except on the basis
of the registration and record of the vessel. With respect to a foreign vessel, its authorization will
depend on prior authorization with the flag state which in turn would be based on vessel
registration and recording. This presupposes that the coastal state has performed its duty under
Article 61 paragraph 1, 2 and 3 (?) of UNCLOS to determine the total allowable catch in
exclusive economic zone as well as its duty under Article 62 paragraph 2, 3 (?) , to access
agreements or other arrangements,grant access to other states to the surplus and the ____ (?) that
its domestic trade is unable to harvest. It is notable that the good faith fulfilment of the foregoing
duties and responsibilities is without regard to any existing territorial or maritime disputes.
Ideally, within the foregoing framework, China, Vietnam, Malaysia and the Philippines can
perform said duties and responsibilities in good faith and without regard to their territorial or
maritime disputes. Ideally, disputes over illegal fishing can be managed merely through the strict
fulfilment with the claimant states of the rights and responsibilities as simultaneously coastal
states, flag states or port states. When it comes to the designation of the PAC, some provisional
arrangements can be adopted, such as the mechanism adopted by Taiwan and Japan in the joint
fishing zone. The foregoing binding and non binding instruments demonstrate that ideally,
lawfare can be a toolbox that claimant states- whether acting as coastal state, flag states or port
states can use to defuse tensions over fisheries through symmetric fulfilment of their duties and
responsibilities. The question is, how exactly have the claimant states use the existing
international legal regime to defuse the tensions and conflict.

In general, the claimant states employ the foregoing international legal regime in three ways.
They invoke it both to authorise fishery law enforcement within their national territorial
jurisdiction and at the same time, authorise the exercise of fishery law enforcement beyond their
respective national jurisdiction, including in disputed waters. They use it justify recourse to
cooperative arrangements. The Philippines successfully employed the existing IUUF regime in
its arbitration against China. The successful application of lawfare can have a demonstrative
effect on other coastal states. The claimant states use the IUUF regime to signal adherence to a
IUUF guidelines and at the same time extend enforcement jurisdiction into disputed waters.
According to one author, China adopted amendments to explain the ‘17 distant water fisheries
supervisory regulation to impose heavy penalties on its registered vessel that commit
unauthorised entry into waters of other countries for more than three times. It provides that the
relevant country or regional fisheries management organisations report such incursions, it
authorises fuel subsidies, as well as financial support for the modernization of China's distant
water fishing fleets. Some authors state that these incentives are dangled as an incentive for
avoidance of IUUF activities. However, because of the ____ (?) modernization of Chinese
fleets, they engage in more frequent and varying expeditions in disputed waters. The presence of
hundreds of Chinese fishing vessels in the vicinity ____ (?) is illustrative of this point. While
China is in possession of ____ (?). Nonetheless, these waters are also being claimed by Vietnam
and the Philippines. In effect, China used the IUUF regime to modernise its fishing fleet, and use
said fleet to strengthen its control of disputed waters. On the part of the Philippines in its
arbitration against China, it successfully invoked the state responsibility of China to regulate
IUUF of Chinese fishing vessels. The Philippines was able to prove that Chinese fishing vessels
were engaged in unauthorised fishing on the waters of ____ (?). As this waters were declared by
the tribunal as part of the Philippine EEZ the Philippines established its jurisdiction to authorise
or not authorise foreign fishing vessels. Moreover, the Philippines was able to prove the China
knew and moderated these illegal fishing activities in these vessels. The tribunal declared that
China ____ (?) state responsibility when it knowingly allowed its vessels to engage in IUUF
activities in the EEZ of the Philippines, particularly in the _____ (?). Hence, this declaration by
the tribunal has depicted China as an illegal occupant of ___ (?). However, at the same time that
the Philippines invoked IUUF against China, it also adopted fisheries _____ (?) which extends
the application of IUUF regulations on EEZs is defined as the full extent 200 nautical mile from
the Philippine baseline, including the ___ (?) The regulation did not take into account that inside
the Philippine EEZ are disputed rocks that have their respective territorial seas. Thus the
Philippines invoked the IUUF regime ___ (?) disputed territorial waters. Meanwhile, Vietnam
and China have been regularly engaging in joint fisheries inspection in the Gulf of ___ (?).
_____ (?) the relevant two countries have reached a consensus on the need to continue with joint
marine patrols. In the East China Sea, China and Taiwan, acting through their agencies have
concluded provisional fisheries arrangement with Korea and Japan in the disputed waters. _____.
(technical disturbance)

____ (?) apply in waters in the South China Sea where the Philippines, China, Malaysia and
Vietnam have accused each other of IUUF. Based on the foregoing practices in the South China
Sea, my preliminary assessment on the implications of lawfare are as follows: first, lawfare
enabled claimant states to build the ules based legal order in the South China Sea whether the
same consists of binding or non binding rules. Second, the claimant states use this rules based
legal order for both self restraint and self regulation as well as advancements for their territorial
and maritime claims. China incentivized the modernization of its fishing fleets using IUUF
regulations as both an incentive and a regulation. Finally, lawfare provides the underlying
justification for government agencies to directly negotiate and conclude provisional arrangement
to manage resource disputes. This enables competing states to obtain economic benefits under
dispute areas, which they could not have otherwise obtained had they confined themselves to
form a treaty negotiations. This reveal to us how the claimant states use the existing international
legal regime for fisheries to both defuse their tension and conflict and at the same time, advanced
their territorial and maritime claims. This is my presentation. Thank you very much.

Kraska – Thank you very much Admiral for those great comments and we’ll right into Ms. Jane
Chan. Ms Chan, your comments, please. You have 15 minutes.

MS. CHAN

Chan - A quick word of thanks to the organiser, especially my friends at the National Maritime
foundation for the kind invitation. It's a privilege to join this gathering to share my thoughts,
especially when placed in a panel of old friends who are experts I've been learning from. So
given the limited time that we have, I will simply share my perspective from three angles in
broad strokes. So to emphasise that these views are not nuanced at all. So first, I will share a
Southeast Asian perspective, since we often hear criticism on Southeast Asia or ASEAN for that
matter, so I believe it's important to set a regional context. Second to take a quick look at the
issue of impact as prescribing in the theme at the wider level and third, to consider the matter of
risk should these impacts that we are concerned about are left unaddressed. So onto the task at
hand, first to set a ___(?) context of why the issue of lawfare cannot be seen in isolation. We
often say that regional maritime environment depend global developments and partly on local
ones ____(?) Southeast Asia. And the reverse is also true. Safety and security of regional waters
is important for interests of countries far beyond this region, as it is for our immediate
neighbours in Southeast Asia. So the focus on some of Southeast Asians’ priorities and since
they are 10 ASEAN member states, I can really only use Singapore as an example in the first
instance (?). So as a small state in more ways than one, Singapore has a fundamental interest in
the peaceful settlement of international disputes, in accordance with international law and its
sanctioned processes , rather than on the basis that might is right. Again as an island state ___(?)
by big neighbours, Singapore relies on international law, including the implementation of the law
of the sea to preserve freedom of navigation and overflight and we need to ensure that these laws
are integrated and applied consistently. And third, as a Southeast Asian state, Singapore has an
interest in ensuring that ASEAN remains cohesive and united and that it’s processes effectively
advance common interests by engendering high degree of cooperation and integration amongst
all member states. So a key feature built into this ASEAN-led regional architecture is that it is
open and inclusive. So no single state’s influence is exclusive, so to speak, right? Not China, not
even the US. so the various ASEAN and ASEAN-led regional groupings provide inclusive
platform ___(?) and engage its partner and extra regional powers. While many in Southeast Asia
shares anxiety about China, and see the US as the resident power in the region, ASEAN member
states still need to be mindful of the robust and pragmatic relations with China that each has
painstakingly nurtured and Southeast Asian, observers amongst us will know how challenging
that can be from time to time. And since the region cannot exclude any of these powers, the best
strategy has been to engage them all and the fact that China is at Southeast Asian doorsteps, its
proximity and correlating social, economic and cultural ties are links that cannot be decoupled.
Of course, there are issues arising from those links, not to mention unresolved maritime disputes
China has with its neighbours, but in a way we could say that they are still ____(?) to make us
good neighbours just yet, but this doesn't mean that China and ASEAN can’t mend those fences.
So now to zoom the lens closer to the complexity in the South China Sea. The tension in the
South China Sea is no longer only about the complex competing territorial maritime disputes
between the claimants. Today, the core contention arising from the South China Sea, in my view,
at least, is that this is about a broader question on the universality of laws, rules and regulations
where stakeholders are no longer limited to the claimants alone. Major powers’ competition in
the South China Sea draws up tension (?), increased frequency of naval and enforcement
activities, arguably increasing the risk of ___ (?) at sea. And these conditions erode the much
needed atmosphere of ____ (?) for resolving regional maritime disputes. The battle of ____ (?)
which we've heard some speakers talk about a while back saw China receiving more serious
pushback from Southeast Asian states, coming both from claimants and non claimant states as
well as extra regional powers including US, Japan, Australia and major European states. All of
the objecting states have referred to UNCLOS and have to challenged the legality of Chinese
claims to sovereign rights and jurisdiction. In the South China Sea based on historic rights or the
nine dash line. And the most important development to note is that we see southeast Asian states
placing emphasis on the importance of UNCLOS and the arbitral award stepping out and clearly
iterating their position, albeit in their own ways. And this change in attitude is mainly abetted by
China's own attitude towards international law, and is perceived to be ______ (?). It is axiomatic
that an inclusive maritime region founded upon international rules and norms lay the foundation
for safe and secure seas. But even as friends and partners all emphasise the importance of a rules
based maritime order, in my view it is rather clear that there is no common outlook on what is
these southeast asian features should look like. And this lack of common outlook meant that
there is no alignment of priorities and less so on policy and strategy. So those whose _____ (?)
insists that this current strategic environment is a zero sum game, and that it is currently
dominated by great power competition and rivalry. So even as extra regional powers extend their
interest to cooperate with Southeast Asia, many are concerned that this could add complexity to
the ongoing ___ (?) rivalry. We’re familiar with the challenges to traditional freedoms of the seas
arising from territorial and maritime disputes ____ (?) about jurisdiction and obligation of the
coastal states versus the rights and duties of users states. about environmental concerns, and ____
(?) principles of laws, rules and regulations. So we see nation states ___ (?) the UNCLOS was a
product of the great bargain, one that was forged thought to very difficult compromises which we
may not achieve again. In this region of the world, we can expect very little cooperation, a very
high risk of ____ (?) regional institutions and that of conflict. And the reason I raise this point
about there being a common vision is really ___ (?) the issue of narratives and I believe James
already touched on this in terms of terms, terminology and interpretation. Why because prima
facie ASEAN and China are using the same words, same narrative sometimes, right? Both speak
of the importance of rules and governance, importance of cooperation, and the important role
regional international institutions play but do we mean the same thing? And this is perhaps
where we ought to take time question what terms like rules and norms building meant to China
and what does the new order mean and how it should look like. So back to the point of whether
we in the region can realistically have a common vision that we're committed to one that's based
on rules that are consistently interpreted and applied and an order that is universally accepted.
Now to move on to my second point on global implications, and this is perhaps where its most
revealing on how naive these researchers have been. I've long assumed that you know, all
maritime stakeholders agree on the following three propositions. First, our aspiration for peace at
sea can only be achieved if we have the international rule of law. Second, in the maritime
domain, the legal order is contained in UNCLOS also we must therefore, protect UNCLOS and
not undermine it, and third and in the event of a dispute between states on the interpretation or
application of UNCLOS disputes should be resolved peacefully in accordance with international
law and if the dispute cannot be resolved by negotiation, the parties should agree to refer the
dispute to a binding third party mechanism.
So what changed? On the first point on placing our aspiration for peace on international rule of
law, I now question and genuinely am worried about whether there is still such a consensus to
place our bets on international law. My only point about a common outlook or actually the lack
of a common outlook will hint on where my inclination is on this question. Second, on the need
to protect UNCLOS and not undermine it.. And this is perhaps where I'm often confused by the
different positions taken, hearing calls from regional partners, who on the one hand talks about
upholding the rules of law, but on the other hand, call on amendments to UNCLOS. So I'm very
inclined to refer this particular question actually, to our expert moderator, James, on whether he
sees a conflict here, whether a core amendment to UNCLOS is in a way, also a challenge to
international law. Ofcourse, we're all familiar with the ___ (?) argument that is we are open to
the prospect of amending UNCLOS we may never reach a consensus to finalise the convention
ever again. No doubt, the effectiveness of UNCLOS is often up for debate in the region and its
provisions still a source of contention between states and is not just with China. And there are
many examples of non-compliance by many countries not just China as well, including the uses
and abuses of straight baselines, perceived illegal restrictions on freedom of navigation or coastal
states’ reluctance to acknowledge the rights and duties of user states in the exclusive economic
zones. One could also argue that the current tension between US and China has magnified the
differences in interpretation and application of international law. We see tension between our
interests of coastal states on the one hand and those of major maritime powers or users on the
other. So if we follow this line of debate, is there an argument to be made that even if China
recognises that it is in its own interest as a rising maritime power to align its position on
UNCLOS closer to that of the US? It may only perpetuate the current tension between coastal
states and the major naval powers. The underlying tension arising from the ambiguity and
different interpretation of vital provisions of the UNCLOS remains unresolved. So if we are
against amending UNCLOS, what can we do? We have lawyers here who are much smarter than
me and I keep calling out James, in this panel who can answer this question, but I suspect we
might need to have a totally conference altogether on this topic alone. And third, on being ready
to utilise the dispute settlement mechanisms. I think this third conversation is perhaps where we
see the most disagreement or most reluctance even amongst major maritime powers. So since the
theme of this panel is on impact, my third and final point ____ (?) if these impact that we are
concerned about are left unaddressed, will we be faced with a crisis? With reference to the
context of this conference in our discussion today, there's a lot of discussion about risk in the
region, risk of an ____ (?) at sea, risk of an open conflict between claimants, risk of an open
military conflict between the great powers, risk of irreversible environmental degradation and the
correlating food security issues. In my mind, the top of the crisis meant that some if not all of the
risk management safeguards that we talked about or are still talking have failed in one way or
another. For discussion purposes, let's assume worst case scenario where all the prerequisite for
effective risk management do not exist anymore. ____ (?) the platform or institutions
dysfunctional, zero information sharing. So if we are in agreement that we're not quite there yet,
can we then focus on working on these three key channels? ___ (?) institutions, information
sharing, to better manage the subject matter on hand and the problems that we have now? Thank
you very much, and I look forward to our discussion. Thank you for your patience ___ (?).

Kraska - Thank you, Miss Chan for those excellent comments. And now we'll turn directly to
Dr. Wirth from the GIGA Institute. The floor is yours.

DR. WIRTH

Wirth- Okay, I think now you should be able to see the first one. Thank you very much for the
opportunity to participate in the discussion of this very important topic. ___ (?) the National
Maritime foundation for convening, this IPRD, which, with its comprehensive professional
sessions is certainly a very important institution and really shows its leadership in thinking about
all dimensions of maritime affairs. And I think leadership is still needed in these times when the
body of international law which has been created to ensure the oceans’ peaceful, equitable, and
also ecologically sustainable use is increasingly getting politicised including contradiction to
_____ (?). If the rules based order as codified in the UN Convention on the Law of the Sea has to
persist, I would argue it must be made more resilient against shocks such as, for instance, the
Chinese nine dash line and other claims South China Sea. This can only happen if all major
actors steadfastly adhere to the UNCLOS provisions and norms and laws, participate in legal
debates and beyond that also, as we also have from previous ____ (?), engage in political debates
such as they've been happening in the run up to the adoption of UNCLOS in 1982- four decades
(?) and actually, as they continue. So what I'd like to do in the following minutes is to focus on
specific legal issues and political issues in the attempt to really give some guidance on how
specific issues can be addressed effectively instead of lumped together and then made even more
bigger and kind of inflating the problems. And this also includes some views on the limits of
UNCLOS as a legal body and where the political dimension should come in. This is necessary
because the instrumentalisation of UNCLOS norms will lead to the weakening or even perhaps
the legitimization of certain norms and the body of law and I would think even those who deem
this instrumentalisation as being in the interest of their national interests today, may in the future
actually regret the absence of general consensus, general norms about peaceful use of the oceans.
Specifically, the freedom of navigation is in the interest of everybody. It is of course, even more
in the interest of the coastal states. But it's in everyone's interest. So it means it's also in
everybody's interest to preserve it. Or in other words, sea lane security is not a national but
public international ___ (?). Unfortunately, the current trend points to fragmentation whereby
powerful actor seek to preserve favourable interpretations of legal principles within their spheres
of influence or what could become their spheres of influence. Looking at developments
surrounding the freedom of navigation over the past two decades, I think we can see a major
paradox or conundrum emerging. Not only but especially in the semi enclosed seas of East Asia,
states have been employing an increasingly diverse range of tools for expanding their reach.
Recent legal and political action such as attempts to incorporate traditional maritime space into
domestic administrative structures, the enforcement of expansive EEZ claims, and the
declaration of new and enforcement of existing air defence identification zones actually
potentially limit the freedom of navigation further. We can see here the expanse of EEZ is quite
vast around the region. So this dimension of UNCLOS, is something to focus on in particular.
So, the increase in public awareness, rhetorical political support and legal practice, also with the
use of Navies, for upholding freedom of navigation has been insufficient for preventing or
stopping such actions to extend sovereign power and they have proven to be largely ineffective.

In fact, legal norms and tactics ____ (?) had the opposite effect. Coastal _____ (?) tensions. ____
(?) for international status, governments have reinforced the efforts and ___ (?) to secure the
freedom of navigation, to secure the openness of the seas, from their points of view any term
implicitly or explicitly also used to secure he freedom of navigation of national conceptions of
the freedom of the seas or of sea lane security. This has led to a general extension of sovereign
power into high sees formally but also beyond formal declarations. So what we are seeing is a
partial repoliticisation of UNCLOS package deal that had been made possible, not least so the
introduction of the EEZ regime, which had reached at the time the gap between the interests of
naval powers or user states on the one hand and often newly independent developing states ____
(?). So the situation nowadays is slightly different from that of three,four decades ago. EEZs
have come to cover much of ocean space and also maritime transport has increased dramatically
to an extent that made free flow of goods across the oceans, freedom of navigation even more.
So I think it's important given that this situation that we seek to decouple, as it has been intended
in 1982 in the convention, to decouple security political demands from the spatial conception of
the EEZ with its clear economic focus. So what I mean by that is that we should try to create the
conditions under which coastal states can refrain from using the EEZ as coordinates for framing
foreign naval presence _____ (?). Be that as a part of restrictive official policies, when they
generally forbid or do not allow foreign military activity in their EEZ or even if they allow
activities, there's still a tendency to ____ (?)frame of reference for pushing objectives ____ (?).
So in fact, the difference might not be that big. Between those states that have this overly
restrictive views and other states, often what the difference is only in terms of whether the
political relationships between the countries are good or not and in what context this foreign
naval presence happens. To recall, according to Article high seas freedoms stated in ___ (?) they
extent to exclusive economic zones; they are limited only by the need to exercise these freedoms
with due regard to other parties or other states. So the limits on high seas freedom in the EEZs is
quite small. They exist but they are small. Still, the history of UNCLOS renegotiations ___ (?)
practice shows that ___ (?) number of coastal states have long been harbouring security concerns
and therefore require prior authorization for navigation of warships or prohibited certain military
activities. Starting from 2007 ____ (?), for instance, identified more than 60 mostly non-western
status ____ (?). So in fact, broad security considerations include both the misuse of EEZ for
keeping foreign naval forces at bay and also the assertion of freedom of navigation for
conducting military surveys and oceanographic research. These security political considerations
go against the prevailing legal view that military activity in the EEZ only constitutes ____ (?) of
peace and security and therefore violate international law. The UN Charter and parts of
UNCLOS, when they're directly related to____ (?). Nevertheless, coastal states security
concentrations need to be taken into concentration, not in the sense of endorsing them or
understanding them, but accepting that they exist and easily be removed simply by opposing.

Nevertheless of course state practice is quite diverse, often law is used to keep foreign naval
forces at bay to prevent or attempt to prevent military surveillance while at the same time doing
the same thing in other states, possibly weaker states’ EEZ or if not doing so there's also state
practice to align the strongest states to conduct military activities. So what can be done to
address this conundrum that security politics, security concentrations risk undermining the
original navigation regime ___ (?) I think the use of the freedom of navigation term in political
sense has worked very well for mobilising regional and extra-regional actors to at least
symbolically oppose China's excessive sovereignty and maritime claims. Yet, there has been as
we know difficulty in sending legally unambiguous signals with freedom of navigation
operations and in many discussions about specific operations they have often been misconceived
and specialists’ attempts to clarify what is meant by certain actions have not necessarily been
able to change the discourse. So overall I think the effect of these operations has been doubtful in
legal terms and potentially actually only have increased political tensions. So given that
situation, I think it's necessary to have a closer look at what the problems are and how each of
these specific issues can be addressed more effectively. And I would argue that even though the
Chinese government conflates and combines all of these different issues also with this three
warfare doctrine, it is really important for other parties to distinguish between different problems
and to address each of them separately. So the first one is the historically divergent views on
UNCLOS navigational regimes ____ (?) long standing and against which the US had also
devised its freedom of navigation programme. The second problem is expansionist territorial
claims. Then the third problems is practices that seek to advance expansive maritime claims of
course, often from these expansive territorial claims. All of them tend to be driven by security,
political considerations. _____ (?) without necessarily endorsing them or providing legitimacy.
The most immediate mean to do so of course, and that's been done for some time now, is to look
for confidence and security building measures, to have dialogues on the specific meaning and
application of UNCLOS principles. These have not been extremely successful, I'm aware of that,
but I think they remain important. There's also additional agreements, MoUs that have been
signed between the US and China especially and it's important that these are there despite their
limits. I also wonder whether in this category it might make sense for the US and China to think
about an agreements similar to or deals similar to the dangerous ___ (?) activities agreements
that the US had signed with the Soviet Union and also which had enabled identification of so
called Special Caution Area. And I think, well I wonder whether this might be useful to be
applied to areas that are not disputed as a means to really make sure that disputes can be confined
geographically in one space from each other and then address each of them separately instead of
having the disputes basically hijack the overall relationship and agenda.

So what this means for building comprehensive security may fail and obviously there are limits. I
think it would also be important for us to acknowledge the limits of UNCLOS, because
UNCLOS had not been putting much attention to military activities as they cause problems these
days. And of course, because UNCLOS also provides the possibility option to exclude such
military conflicts or the procedures all together and not least because major parties have not
signed UNCLOS at all. So given these limits, I would think that two more ways of ___ (?) to
lend themselves and one is that regional actors, especially Southeast Asian states have capacities
to govern maritime space and capacities for ocean government should be supported. And at the
same time, it's also these actors who should be able to take the lead; obviously, when you talk
about the South China Sea, the conundrum here is that it's also these actors who themselves,
excluding now China, who cannot agree on the delimitation of continental shelves, exclusive
economic zones and territorial seas and it would be very useful if these actors could among
themselves, align their positions more closely, and therefore, and act more effectively in
governing the seas and possibly also stand up to China. And I would think that the considerations
that have been made in the context of the arbitration award provides some guidance on how to go
forward. Thank you very much for your attention. Looking forward to hearing your thoughts on
this.

Kraska- Thank you very much. Dr. Wirth, for the great comments. We'll move directly into
Captain Parmar from the National Maritime Foundation. Captain, the floor is yours.

CAPT PARMAR

Capt Parmar- Just give me a thumbs up when you can see my slide.

Kraska - Yeah, that's perfect right there.

Capt Parmar - All right, thank you. And it's been a long two days for us. But this is something
that has to be discussed and I'm going to exercise the right of freedom and use a difference show
___ (?) I would say. And let's see how many of you would like to follow me or question the ___
(?) and I'm about to take Alright, so having said that, and I love this statement of Otto Von
Bismarck, I think it spells out exactly where legalese and UNCLOS stands or any international
law convention ____ (?). But before I launch into my main argument, I'm going to look at two
baselines. One is that all nations interpret international laws and conventions in pursuance of
their national interests. I think that that's a very clear and bland and bold statement to make. But
the second one is rule based orders flow from convergences on international laws and
conventions, and a common approach to challenges and ___ (?). More often than not both these
baselines are more or less, in some sort of conflict or divergence. And this is where, I think a
common approach to understanding UNCLOS and I'm going to stick to the South China Sea for
my argument, and certain examples and what is it that we can do maybe a little differently some
issues have been discussed, discarded, but I think it's time to look at them once again. Let's just
have a look at most of them. So there are some facts that I'd like to just share, and I'm calling
them facts ____ (?). One is we should clearly understand that UNCLOS was established with
regard to the sovereignty of states as mentioned in the preamble, and this is, I think, the
statement on which China rejected whole Philippine arbitration cases is that this is not a question
of maritime zones, question of sovereignty, which is, I think, the bedrock of all problems right
now in the South China Sea. And then of course, we have a number of ICJ rulings based upon
which it has become an accepted principle of international law, that sovereignty over land is the
basis to determine maritime rights. And there are certain examples which are outside the South
China Sea. One is Germany- Netherlands in ’69, __ (?) in 78, Qatar-Bahrain in 2001, Nicaragua-
Honduras in __ (?). These are just certain examples that sets the base for my argument that that if
you are going to look at maritime zones, first of all the sovereignity has to be established. If you
don't accept the sovereignty then there is no there's no point in arguing with that nation about the
maritime claims which they are trying to push. That's one issue. And then disputes would
continue until the issue of sovereignty of land Islands is not settled and I think that's a very clear
indication of what's happening in the SCS and then of course, the complexity increases on the
number and extent of the landmasses involved. Thumb rule is this 50 figure of (?) islands in the
South China Sea Spratlys, which has been around for some time, none of them have any
indigenous population one and none of them in any way support, economic requirements or even
the ability to sustain habitation except one and it's said ___ (?) has got a fresh source of fresh
water. But then of course the Philippines arbitration has more or less killed that option insofar as
___ (?) concerned, but this is something that we need to look at and keep in mind. So resolution
of maritime zones of claims related to disputes depends on first of all recognition of nation
sovereignty. Hence, the maritime zones claim in accordance with UNCLOS. So here itself, there
is a little problem because first of all, if you recognise maritime zones, it means that you accept
the baselines promulgated by nations is a huge debate. And if you look at the US Judge Advocate
General website maps there which clearly indicate the coordinates which have been deposited by
nations UN ocean affairs division and most of the maps which are there, the US very clearly
stated, we do not recognise these baselines because mostly nations have taken advantage of
straight baselines, which apparently goes which is very clearly against the spirit of UNCLOS
where they're supposed to follow the lay of the land. And then of course, recognition of other
nations national laws established either in consonance with UNCLOS or based on their
perception interpretation of UNCLOS. Many nations either dont have them as of now. They still
do it. But many nations are coming out and China is one example just being too soft coated.

So I just go back to the Philippines versus China case, there are somethings that have emerged
from this that I think we need to relook. So first of all, Philippines made 15 submissions there
were four main aspects addressed. One was historic claims, status of islands on rocks,
construction on islands and reclamation and a report I read said that China has reclaimed as
much as 3200 acres in the group of islands, the Spratlys, which is a huge amount. But the
tribunal rulings and I'm going to stick to two mainly said that China, there is no legal basis for
historic rights for China. So that's one ruling. The other ruling was that none of these features are
eligible for any EEZ or a continental shelf, but identified some high tide features ___ Scarborogh
Shoal etc. Query crossfeed Johnson brief McKenna? No. Usually books called Gavin read not so
it can be argued by anyone who claims sovereignity or whose sovereignty, is recognised in this
case, let's say China, that maybe these features are entitled to territorial sea and a contiguos zone.
But I'd like you to remember these names because I'm going to show you some snapshots of
these islands and how this aspect also gets. You can argue that it doesn't exist anymore for these
speeches. So what happens? After this arbitration case China obviously did not participate but it
had a change of tactic realise this maritime claims issue was not going too far. There were too
many things happening. FONOPS was one of them. Of course, the presence of ships and aircraft
in the region is reason. So China said, Okay, I'm going to go for a sovereignity claim, which was
again, going back to the principle of the first slide I showed you that sovereignty over land
dictates the ability to, for a nation to seek maritime claims but in accordance with UNCLOS. So
China said I'm going to have a look at four island groups and just follow the cursor. We've got
___, we've got Paracels, got Macclesfield bank, and you've got the main Spratly islands that are
going to look at ___ (?) sovereignity. And how did it follow that tactic? So it says that in
accordance with provisions of UNCLOS, China shall enjoy sovereign rights and jurisdiction or
EEZ upto 200 nm and the continental shelf that one statement which was made, the other was in
accordance with the 1992 law of Territorial Sea and Contiguous Zone, that as per article two,
there's a list archipelago of islands and China claims sovereignty over all of them. It's an
impressive list, you must go through it. Then, of course, as per the 1998 law on the continental
shelf, each island in the SCS has an EEZ that is what China said, No, these are national laws. So
again, this is where the problem starts, if you're not going to be in agreement with them, but the
China's going to tell you, this is my interpretation. This is my law and I’m going to enforce it.
That's one aspect. And then of course, China very clearly said in a submission that it ratified
UNCLOS that it does not accept any of the procedures provided for in section two of part 15 of
the convention. With respect to all categories of ___ (?). And that is a huge list. Therefore, any of
the four possible methods of arbitration are rejected automatically. So further on to that in the
Shangri La dialogue of 2019 Chinese Defence Minister very clearly stated, we hold different
views of the US side on regarding ____ ( technical disturbance). US in Taiwan in SCS, we
express our firm opposition, that's one statement which was made but the other statement which I
think we need to look at closely was when the issue of the arming of islands took place. And the
map here shows you the diagram, it shows you Paracels over the island, which if you remember
was started in way back in 2012 to the first one in which they established a garrison and they
also extended the runway, they doubled it almost. And then of course you have ___ ( technical
disturbance) these are just examples given to you but more importantly, what did the defence
minister say? He said it is the legitimate right of a sovereign state to carry out construction on its
own territory. Sovereignty is again, the bedrock here, China built limited defence facilities on the
islands for self defence. It is only when there are threats with defences in the face of heavily
armed warships, military aircraft, how can we not deploy any defence facilities? This is
obviously a reference to FONOPs. One interpretation you can take from here is that China says if
you do anything to any of these places where I'm sitting, I reserve the right of self defence as to
the event.

And as far as I think, China is not going to fire the first shot, its going to force, a nation or a
situation in which it can say that now I have the right to act. This is where FONOPS in a manner
of speaking, aggravates the situation, but a little bit more of that later. So let's have a look at what
is freedom of navigation and what is freedom of navigation operations. These are used in tandem
together, but I think there's a need to differentiate between both of them because FON provides
an avenue whereas FONOPS may not provide you an avenue to tackle the situation. What you
see is a snapshot taken from the Indian maritime security strategy 2015. And this is something
we created to indicate that this is how we understand the traditional UNCLOS, I don't think you
can find anything wrong with it because we actually measured all these areas in case somebody
decided to do some accurate measurements and workout as per UNCLOS. But it's not. So
freedom of navigation can be defined as the customary right of nations to sail their ships in all
the waters of the world without undue interference of any state subject to the exception stipulated
in international law. And because it's a customary right is perhaps the reason why the UNCLOS
did not define but only emphasis on it because it was a given, its customary has been coming
down through the centuries. But the second issue is that this is applicable across high seas,
recognised maritime zones, even disputed ones. So this is where I will now take you onto what is
FONOPS, of course, this is an example from the United States, but there are other nations who
are doing FONOPS but I'm taking the page from the US because FONOPS is more or less a US
creation and has been invoked since the days of Reagan and __ (?). So US enforces the concept
of freedom of navigation by FONOPS to counter excessive maritime claims and I want you to
hang on to these words, excessive maritime claims of nations. So it’ll come up a little later.
FONOPS preserves US national interest and global mobility by challenging excessive maritime
claims. It demonstrates US non-acquiescence in unilateral acts of other states and other lawful
use of the seas related to those rights and freedom. So this is the base of FONOP, apart from the
requirement of the US giving an Annual Report to Congress on the FONOPS which has been
carried out for that particular fiscal year. It's conducted in a worldwide basis to ___(?)
diplomacy. And then of course intended to non provocated exercise of rights, laws and use of the
sea and this non provocated exercises is, again something that most nations take with a pinch of
salt. So FONOPS against China, I can give you the example of the fiscal year 2020 FONOPS
was carried out against China by the US to counter straight baseline claims restrictions through
___ (?) mapping activities jurisdiction overall so they may including both marine ___ (?) over
the contiguous zone by permission for innocent passage, but more importantly, not entitled
territorial sea islands this is going to focus on because if you're talking about non entire territorial
space, and that means the contiguous zone the EEZ, continental shelf are also not entitled so why
discuss about it? Again, this is a map I've taken from the United States __ (?) and it's very
interesting to see that these are the baseline coordinates which have been joined by a line out
here, coming here and you can see the Senkaku Island, the Paracels Yeah. So baseline
coordinates in 1996, China deposited the baseline coordinates for the mainland and Paracel
Islands. And in that, in the deposition, it said the balance would follow later subsequently, in
2004. An understanding of Vietnam provided coordinates for the limitation of the territorial seas,
EEZ and the continental shelf and in 2012 it deposited baseline coordinates for the Senkaku and
affiliated Islands, which you can see is our more like archipelagos out here. So this is where we
are, but Spratly Islands no mention as for anything else in the SCS.

To give an example for what I said, if we go back to those high tide elevations This is an image
of the ____ (?) reclaimed area- 56 acres, ___ cross reclaimed areas- 677 acres, ____ reef- 34
acres, Johnson reef- 27 acres and the ____ reef is 90 acres. So these islands are at high tide
elevation and therefore, as per article 121 would actually be eligible for a territorial sea.
Contiguous zone would depend upon the sea space available beyond the territorial sea limits, but
these have been reclaimed. So we'll keep this article 121 in mind. When I came on two points to
ponder, you know, this is where I thought that we need to maybe relook some old issues and look
at newer issues. So do we recognise China's sovereignty claims at all by harping on freedom of
navigation operations or whatever we do? Are we willy-nilly telling China, Alright fine, we are
against the maritime zones. But again, if you go back to the issue of sovereignty in a way, you
may be giving it some sort of legal recognition. So the validity UNCLOS based on recognition of
sovereignty I think we need to relook our argument. Another platform maybe the UN or the
International Court of Justice ___ (?) case between Singapore and Malaysia as an example, took
I think around three decades but it got sorted out, not the Chinese will be willing to do it. But
there needs to be a need to be a case in sovereignity to be launched in some international
organisation or platforms. And therefore the need to forcefully pursue non recognition of
sovereignty and therefore claim maritime zones without baseline coordinates, which for the
Spratlys have not been deposited. So is FONOPS de facto supporting sovereignty claims? I don't
want know, let's leave it for the audience to ask questions or comments to come through. And
because remember, FONOPS says it's against excessive maritime claims, which means you are
accepting that it is beyond the acceptable limits. So it goes back to the issue of sovereignty
acceptance, and therefore, some sort of maritime claim is there but you are beyond it to therefore
we are in ____ (?), exercise navigation, the customary navigation may be a better option. Don't
use the term FONOPS, and then of course, it would lend more support to the arbitration ruling
and enforce respect and adherence which I think should be the base argument for all nations to
work together. Reclamations status of islands just a reminder and recap article 121 para 1, an
island is a naturally formed area of land. Now I've shown you reclamation figures, so
reclamation or tampering with nature revokes the status of islands. It's a question. If the answer
is yes, then we can pursue this further. And therefore if the answer is yes, that means all these
high tide elevations or any island that has been reclaimed , land has been reclaimed, makes it a
manmade entity or an artificial island and as per article 60, an artificial island can only have ___
(?). This will also support the arbitration ruling which came out in favour of the Philippines. Loss
of all possible maritime zones. There are nations who may not like this approach because they
will get back equally, but I think there is a need for a common approach and I go back to the idea
of a rules based order there has to be convergences. Last slide if you follow this pattern, so
perhaps, or could support UNCLOS and rulings, most certainly that's my opinion. Reduce
overlaps of zones that if you say that, alright, you're only restricted to territorial seas with
sovereignty you recognise your baseline coordinates. Will it simplify the conundrum in an
already contested water? Possibly, yes. Strengthen customary freedom of navigation? Most
certainly. Reduce use of FONOPS as a term and therefore perhaps reduce the possibility of
conflict? Maybe. Its not as though China is going to stop questioning the ships that come
especially warships and aircraft, but perhaps FON is looked upon as a more user friendly term
than FONOPS. You had an incident in the past where one of those of course made public, the
US-India issue out there. I'll stop here. So I have done my freedom of navigation ___ (?), I love
disagreements. So I think I'm looking forward to the discussions. Thank you so much.

Kraska- Thank you, Captain. Alwaysa pleasure to listen to you talk. And finally, Dr. Do Than
Hai…..