• Order and safety at sea linked to stability and prosperity
• Small and middle powers maintain sovereignty and agency by reinforcing legitimacy and cooperation

Small island nations like Sri Lanka are disproportionately challenged in the prevailing world order – and disorder – creating pressure on domestic governance and public well-being. Sri Lanka, situated next to one of the busiest shipping lanes, which carries a majority of the world’s trade and energy, and with a high density of undersea data cables lying on the seabed around it, is increasingly vulnerable to the growing geopolitical contests in the Indian Ocean. 

Against this backdrop, Sri Lanka needs to assert its agency and improve resilience. A key tool and shield it has in that pursuit is a robust set of international laws, which the island championed in the 1970–’80s, an era where Sri Lanka punched above its weight in diplomacy, especially in the maritime space.

Last week, La Trobe Centre for Global Security Director and La Trobe University, Melbourne Professor of International Relations Dr. Bec Strating was in Colombo and held a discussion at the Lakshman Kadirgamar Institute (LKI) on ‘Middle Power Agency in a Changing World Order: Navigating Geopolitical Headwinds through Rules, Norms, and International Law’.

In an exclusive interview with Dr. Strating, The Sunday Morning discussed the evolving nature of the global maritime order, the governance challenges it brings, and why collective action is important for small and middle powers to navigate the climate effectively.

Following are excerpts:

Welcome to Colombo. Can you explain your area of study and why you think it’s important for our region?

I’m the Director of the La Trobe Centre for Global Security at La Trobe University in Melbourne. Our centre examines complex, multifaceted global security challenges. When we think about security, we don’t just think about national security and defence. We think about economic security, the environment, information, people’s health, all these sorts of issues which are very interconnected, but my own research looks at maritime disputes. In particular, I’m interested in how smaller and middle powers can win their maritime disputes and advance their interests, which is obviously a very important topic in the region that Australia and Sri Lanka share.

Your visit to Colombo is the latest by an Australian maritime specialist. Does it indicate that Australia is taking a keener interest in the Indian Ocean?

That’s an interesting question. I think that in Australia, the Indian Ocean Region (IOR) is becoming more important and there is a real emphasis on not just thinking about the areas of the Indian Ocean that are proximate to Australia, like the northeast Indian Ocean, but thinking about it more broadly. I’m thinking about the importance of things like sea lines of communication and, as we’ve seen over the last few months, disruptions in areas like the Strait of Hormuz have very real effects on the lives of people.  

I understand that this is happening in Sri Lanka and it’s also happening in Australia. When you go to buy petrol, oil, or gas, prices have increased because of something that is going on in the Western Indian Ocean. There is an increasing emphasis on the Indian Ocean in Australia, but I’ll be honest with you – we (Australia) could be doing more.

Australia has one of the longest coastlines, the longest coastline of an Indian Ocean country, so we cannot afford to think that the Indian Ocean is just an area that takes care of itself.

With all the disruptions and changes happening in the maritime sphere, is there a need to reinforce international laws such as the United Nations Convention on the Law of the Sea (UNCLOS) today?

I think UNCLOS was a really remarkable achievement. One of the things that I find the most exciting and valuable about how that was negotiated in the 1970s and the early 1980s is the fact that a lot of the discussions and advocacy were led by smaller and middle-power countries and particularly new and post-colonial countries from across Asia. Sri Lanka played an important role in those negotiations. 

There were lots of ambassadors and politicians from across Asia and the Pacific, who were paramount to the formation of the UNCLOS, which is a really important international convention governing nearly 70% of the Earth’s surface. Therefore, the more that states can do to shore up the legitimacy of UNCLOS, the better.

Yes, there are some challenges that UNCLOS faces. For example, in the South China Sea, which is an area that I look at, there are these grey zone challenges where one particular actor is putting pressure on other countries and undermining their rights under UNCLOS. There are some areas where UNCLOS doesn’t really have clear guidelines, because issues in the 1970s and early 1980s were different to what they are now – things like technology or climate change.

But in essence, UNCLOS is very effective. Dozens of maritime boundaries were negotiated after the signing of this important piece of international law. It’s within the interests of smaller and middle powers to support these international conventions because they make it harder for great powers to do whatever they want.

Now that the new Biodiversity Beyond National Jurisdiction (BBNJ) international legislation which will govern the high seas has been rolled out, do you think there is a need to reinforce international laws and build awareness about them, especially since the new legislation will govern a part of the ocean domain which has not been governed by law thus far?

It’s important to talk about the BBNJ Agreement because there are global narratives about how there’s a rupture in the rules-based order and that might is winning out over right, but in fact states are still getting together to negotiate these standards and rules and norms because they serve a purpose. They help stabilise maritime politics and produce predictability. Importantly, for smaller and middle-power countries, they help to distribute resources in a way that depends more on geography than on sheer military power or the ability of a country to be able to do what it wants because it happens to have greater military capacity.

There’s a really important story around BBNJ. Some areas still need to be ironed out and there are concerns about how countries might also weaponise international law and BBNJ, but again we can’t just say that the rules-based order doesn’t matter anymore. Yes, there are really high-profile examples of countries not abiding by the rules, but there are also many examples where new rules are being created or where the rules just continue to work and have an effect. For example, the fact that Amazon packages still arrive via sea freight is a demonstration of the maritime order at work.

In your opinion, what are the key maritime security and maritime law enforcement issues that coastal nations of the Indian and Pacific Oceans face?

The thing that keeps me up at night is the idea of a great power conflict breaking out in the Pacific or Indian Ocean. Now that’s probably less likely to happen in the IOR than it is over in Taiwan, the South China Sea, the East China Sea, or the Korean Peninsula. But that doesn’t mean that the Indian Ocean isn’t a region of importance.

One of the things that concerns me is the rise in incidents of unplanned encounters between naval vessels and aircraft. Such unprofessional encounters at sea between vessels or assets of states may lead to conflict or trigger more hostilities. Perhaps that’s why the Indian Ocean hasn’t always received as much attention, because, historically, there have been fewer of those in the IOR. That could be because it’s vast; there’s plenty of space for ships to move around with little incident, whereas if you look at the South China Sea or the Strait of Malacca, they are very congested and contested and there are concerns that there might be some sort of incident. 

It doesn’t matter which sub-region we are talking about; these issues related to professional and safe transits over seas or in the airspace over those maritime domains are areas in which states will need to create some new standards, protocols, or norms, as it will not be in anyone’s interest to see an incident escalating to a great power conflict. 

There is an increase in the use of unsafe/unprofessional tactics by civil law enforcement agencies, with an increase in the use of civil/paramilitary elements by some states to further their influence at sea. These are part of the so-called grey zone tactics. Why do they complicate governance at sea?

The grey zone activities are a serious governance challenge. One of the issues that we are seeing across the Indo-Pacific more broadly is the ways in which crime or law enforcement issues increasingly interact with national security issues.

It’s not just private actors who are conducting Illegal, Unreported, and Unregulated (IUU) fishing, for example. It’s the fact that fishing vessels might be used to advance strategic ends. That difference between civil and military can become increasingly eroded and it’s really difficult for states to counter some of these grey zone tactics, because they sit in an illegal grey zone and they are often difficult to categorise, just as the sheer presence that they create in a maritime sense is difficult to push against. 

That’s one of the big governance challenges, in that it’s not just about law enforcement anymore. It’s about how issues are interacting with geopolitics and national security. There are issues with the militarisation of aspects like coastguards as well.

There are also issues of capacity. Across the Indo-Pacific, different countries have different abilities and resourcing capacities, which is why you have countries like Australia, which has been doing things like creating the Pacific Maritime Security Programme. It is focused on the Pacific, but it also provided a boat to the Maldives recently, for example. I understand that Australia has also been working with Sri Lanka in terms of filling some of the capacity gaps. 

A central perspective out of Canberra is the importance of sovereign capacity, that countries themselves have the interest and the ability to govern their Exclusive Economic Zones (EEZs). This doesn’t only help to combat issues like IUU fishing, but also things like drug smuggling and people smuggling. People smuggling is an enormous issue in the IOR and it goes to the heart of protecting human rights at sea. These are the kinds of issues that states deal with on a day-to-day basis.

It’s important to think about them because not all states are thinking about the great power competition all the time. They’re just thinking about how to protect their maritime borders from harmful acts or prevent harmful goods coming in. The importance of cooperation on transnational issues is high. No one state alone can create maritime order. It needs to be a truly collective effort. This is why cooperation on transnational issues is paramount. As States that share maritime zones, Sri Lanka and Australia are neighbours in that regard.

With an increase in the influx of narcotics/methamphetamine to Australia from Southeast Asia and from across the South Pacific, are there concerns about an evolution in trafficking tactics with the emergence of ‘narco subs’? Are autonomous systems being used by smugglers a real concern for governance and law enforcement?

I think that is a part of a bigger question about how countries are governing their underwater domains. If you think about maritime domain awareness, it’s already really difficult for a state to see what occurs on the surface of maritime areas. This is why crime is able to take place in the maritime area because not as many people are out there living in the sea and able to observe what’s going on. Maritime Domain Awareness (MDA) is already a challenge for countries in being able to identify what’s going on and to then be able to effectively govern their maritime areas.

Some of these smaller island countries have maritime areas that are 23–25 times the size of their land. Sri Lanka’s maritime area is several times larger than its land area. In terms of trying to govern that space, to even be able to understand what’s happening on the surface of the oceans is difficult, let alone thinking about what’s going on beneath the surface. That’s what these issues are really bringing up: how are non-state actors able to mobilise these dark spaces? How are they able to circumvent maritime law enforcement by taking advantage of what the underwater domain offers? But it’s not just about what non-state actors do. It’s also about what state actors do.

This is an area of international law where there are some gaps. With technological advancements, new standards or norms need to be created, so that when incidents happen in the underwater domain, states have a sense of what they can do about it and what their rights and obligations are.

If a country finds a drone, a naval drone, or a foreign autonomous vessel in their waters or EEZ, which is happening in Southeast Asia and in Indonesia, what are their rights? What are they able to do with that drone? How are these drones classified under international law? Are they warships or maritime autonomous vehicles? Are they warships for the purposes of understanding rights and obligations under UNCLOS? These questions could do with some answers. That’s where middle powers and smaller states can come in to try to provide some of those answers and provide more certainty, so a conflict doesn’t break out because there’s an absence of law in these areas. 

We haven’t even begun to talk about submarine cables. These are very important. Nearly 99% of internet traffic is delivered via cables and they connect islands to the global digital architecture. Sri Lanka has a concentration of them in its seabed. While the vast majority of incidents concerning submarine cables are from accidents, they can become weaponised as well.

Both Australia and Sri Lanka have border security and resource protection challenges due to IUU fishing. Has Australia managed to deter such actions? What can Sri Lanka learn from such successful measures?

This is a really important issue. IUU fishing demonstrates the interconnectedness of security challenges. When we’re talking about IUU fishing, we’re not just talking about law enforcement and crime being committed. It’s also about food security, the environmental damage that it does, and sustainability. Trawling is quite regular across Sri Lanka’s northern region and it creates issues for future generations of fishing. It’s also geopolitical; it’s not just that you have an issue of dealing with fishermen, it also includes people who are sponsoring the fishers, sort of a ‘maritime mafia’.

In Sri Lanka’s case there might be an opportunity to use an international maritime dispute resolution process, if the dispute can be framed in a particular way, but it might not be and it probably wouldn’t be very politically wise to do that. You’ve got these kinds of limitations, so it becomes quite a diplomatic issue.

Australia has had quite a bit of success over two decades or so of dealing with IUU fishing, particularly in the seas to the north of Australia, but the drivers of such illegal fishing can be different from what Sri Lanka is facing. Those fishers were prosecuted through the courts. That has a deterrent effect as well: having a legal system that is capable of prosecuting such matters and having a government that is willing to prosecute. The problem with that of course is that most often the people in the boats are not the problem. Australia and Indonesia have signed an MOU on traditional fishing rights. I think that effectively dealing with something like IUU fishing is a collective action.  

There is growing concern about large Chinese fishing fleets trawling in the Indian Ocean and around the Pacific islands. Given China’s use of fishing fleets as auxiliary forces or so-called ‘maritime militia’ in the use of grey zone tactics, should international law be updated to reclassify such vessels?

I don’t think we are going to be able to update UNCLOS. It has been conceptualised as the constitution for the ocean, so it’s like the framework. What is instead required is to develop things that sit under the auspices of UNCLOS, like BBNJ; something that also deals with smaller conventions around things like classifying ships and maritime autonomous systems. 

I think we need an agreement that does not need a revision of UNCLOS. A start can be something like the Code for Unplanned Encounters at Sea (CUES), which is in effect in some parts of the world. But the problem with that kind of agreement is that it is non-binding. We need an agreement or framework to ensure safety and security at sea, especially during an unintended or unprofessional encounter, which will act as a safeguard against it escalating into a trajectory which leads to a kinetic confrontation. We need norms to classify types of ships and uncrewed platforms, like what a warship or survey vessel is and what rights they have.

Regional platforms and multilateral architecture can also be used to help formalise such norms and guidelines.

Maritime order not only impacts maritime security, but impacts across governance as well, doesn’t it?

Yes. I think part of this issue is about reframing the maritime order as being essential. Maritime order is essential to the everyday lives of people. The Strait of Hormuz is an example of this; when people try to fill up their vehicles and the cost of living is biting, suddenly they might not be able to afford transport or they might not be able to afford to provide their children with lunch that day. These are critical issues and they are inevitably linked with what happens at sea. 

Maritime order and maritime security cannot be bracketed out as just an issue that a few officials or selected countries are interested in. It is a sovereign resilience issue and it is about people. It’s not just about the nation and traditional conceptions of security. It’s about providing for people.