16Dec15: Why Australia shouldn’t join the U.S. FONOPs in the South China Sea

Australia and the Law of the Sea – Why we shouldn’t join the U.S. FONOPs in the South China Sea.
By Sam Bateman*
There have been recent calls both in Australia and the U.S. for Australia to join the U.S. in conducting freedom of navigation operations (FONOPs) in the South China Sea. This is not a good idea for several reasons, including because our interests in the law of the sea are not always the same as Washington’s.

The first consideration is how our involvement in FONOPS would be perceived in the region. The regional reaction to the U.S. FONOPs has been less than favourable. Only the Philippines has come out unequivocally in support. Our closest neighbour, Indonesia has strongly criticized the operations with Luhut Pandjaitan, the Coordinating Minister for Political, Legal and Security Affairs saying of the operations, “We disagree, we don’t like any power projection.” (http://www.scmp.com/news/china/diplomacy-defence/article/1873456/indonesia-calls-us-china-restrain-themselves-lashes-us?page=all) Japan has declined to participate, and Singapore, Malaysia and Vietnam have been ambivalent. Joining the U.S. in FONOPs in the South China Sea would do nothing to help our image in the region. It would likely lead to a rekindling of regional perceptions that Australia tries to play the role of ‘deputy sheriff’ in the region.

Australia should be particularly sensitive to the critical reaction by Indonesia. Law of the sea issues are a tricky part of our bilateral relations with Indonesia. We saw this with the Indonesian response to the inadvertent intrusion by Australian warships and customs vessels into the Indonesian territorial sea in January 2014. Australian warships would have to transit through the Indonesian archipelago to undertake FONOPs in the South China Sea. This would be an overt display of power projection subject to criticism in Indonesia.

The second reason for Australia not joining the U.S. FONOPs is that the purpose of these operations remains unclear. The confusion is over whether the FONOPs were an exercise of innocent passage, or a demonstration that a low tide elevation is entitled to nothing more than a 500 metre safety zone. Steaming inside 12 nautical miles of a low tide elevation that should only have a 500 metre safety zone and claiming it as innocent passage risks being de facto acknowledgement of China’s claims. Until there is greater clarity of the U.S. intentions, Australia is wise to keep clear of this complex and confused situation.

Another reason for our non-participation concerns the dubious argument that China threatens general freedoms of navigation in the South China Sea and that the FONOPs are intended to preserve those freedoms. American allusions to this threat are a smokescreen to cover Washington’s real concern which is the perceived threat to its freedom to conduct military activities in the sea, particularly intelligence collection and so-called military surveys in the exclusive economic zone (EEZ) of China. However, this freedom is subject to qualifications in UNCLOS that the U.S. appears not to respect, particularly the requirement for military activities in another country’s EEZ to be conducted with due regard to the rights and duties of that country. As a party to UNCLOS, Australia should not share the American position.

Despite some rhetoric to the contrary, Australia’s freedoms of navigation through the South China Sea are not under threat. China has repeatedly said it does not pose a threat to freedoms of commercial navigation in the sea, and there is no reason to doubt this, given that a large proportion of trade across the sea is bound to or from China. In Australia’s case, it’s only about 20 per cent of our foreign trade that transits the area and most is with China.

As a maritime State with one of the largest EEZs in the world, an extensive outer continental shelf, and a heavy dependence on seaborne trade, Australia has a vital interest in the law of the sea. However, this interest is not always smooth sailing. We have been in disagreement, for example, with the U.S. over several issues, including compulsory pilotage in the Torres Strait, our claimed EEZ off the Australian Antarctic Territory, and our claims to several historic bays.

A policy dilemma can arise between Australia’s position as a coastal State with a keen interest in protecting the marine environment, its interests in the freedoms of navigation and overflight (FON), and the political and strategic issues that can arise with the law of the sea. Politics condition the evolution of the law of the sea, including FON. After all, just over 30 years ago, we were still regarding the Java Sea as ‘high seas’, but now it is under the full sovereignty of Indonesia, which robustly defends that sovereignty.

Australia’s interests in the South China Sea lie in the broader political and economic stability of the region rather than in the right to conduct certain military activities in the sea. The potential costs of Australia supporting the U.S. FONOPs in the South China Sea outweigh any benefits. If we are unhappy with what China is doing, then formal diplomatic protests rather than military actions are the most appropriate response. We have a long-standing pattern of surveillance flights in the South China Sea through Operation Gateway. These should continue but we should not escalate our military activity in the sea.

*Sam Bateman is a Senior Fellow in the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University. He is a former Australian naval commodore with research interests in regimes for good order at sea.

3 Comments

  • Richard Adams, LCDR, RAN says:

    Commodore Bateman published an article (Australia and the Law of the Sea – Why we shouldn’t join the U.S. FONOPS in the South China Sea). In his article, Commodore Bateman argues “it is not a good idea” for Australia to participate in Freedom of Navigation exercises, alongside the United States.

    Commodore Bateman’s claim rests on three legs. Firstly, he argues, “our interests in the law of the sea are not always the same as Washington’s”.

    Secondly he argues that Australia should be terribly concerned about offending our regional neighbours, who regard actions of the United States “less than favourably”.

    Lastly, Commodore Bateman claims that Australia should not support the United States since “the purpose of these operations remains unclear….[are these freedom of navigation exercises] an exercise of innocent passage, or a demonstration that a low tide elevation is entitled to nothing more than a 500 metre safety zone”?

    But each of Commodore Bateman’s arguments makes the same mistake.

    This is the failure to recognise Chinese manoeuvring for what it is: which is arrogant realist aggression. The Chinese have revealed absolute disrespect for the claims of neighbouring states and their complete disregard for the opinion and the stability of the international community.

    The Chinese are playing a hard power game with an ordinary instrument. In a classic case of lawfare, China is using our own scruples and our liberal respect for the law against us.

    Confronted by crafted Chinese policy, it does no good to cavil on legal fine points. It does no good to worry that regional neighbours will look “less than favourably” on us, should we resist counterfeit diplomacy. The Chinese have banked on our timidity.

    Commodore Bateman is right to alert us to the niceties of the conventions and the treaties. But his argument offers insufficient attention to underpinning principles, which Lon Fuller acknowledges as the foundation of law.

    In this case, the Chinese are using the law and our respect for it, as a weapon, in just the way Charles Dunlap intended when he coined the term “lawfare”. The Chinese are not respecting the ideas of “right” which underpin the law. Their encroachment is aggressive, and not even thinly veiled. Theirs is an international trespass which deserves resistance not appeasement.

    Writing in 1923, Churchill offered words of caution, we would be wise to recall: Churchill wrote acidly: our concerns, he said, might be nothing. Our fears might be nothing. Our worries of conflict might also be nothing. Surely, he needled:

    Civilization has climbed above such perils. The interdependence of nations in trade and traffic, the sense of public law, the Hague Convention, Liberal principles, the Labour Party, high finance, Christian charity, common sense have rendered such nightmares impossible. [But] Are you quite sure? It would be a pity to be wrong. Such a mistake could only be made once—once for all. (The World Crisis, vol. 1, 1911-1914)

    Churchill recognised that independence and freedom are the values that underpin our democracies. They are also the values on which our alliances are built. They are values enshrined in the rule of law to which Commodore Bateman refers.

    They are values which need to be watched over and defended vigorously. Now is not the time to quibble in timid diplomatic language. Now is the time to sail a warship in partnership with our allies and in defence of fundamental freedoms.

  • EX-RAN says:

    Totally disagree. Forward defence is what we need. Push forward with a visible message we stand alongside the USA. Anything else gives them salami tactics.

  • Gavin says:

    Interesting to note that some 60% of Australian exports pass through the South China Sea (SCS) notably through the disputed territories.
    Australian is spending an awful lot of money on assets to “protect” these shipping lanes, but to protect them from whom?
    Presumably China. Is China that stupid that it would attack its own vessels? Is China likely to attack its own ships with cargo bound for its own ports and industry?
    Increasingly Australian mines and minerals industries and of late port infrastructure has been purchased by the Chinese military wing of the communist party.
    Since Australia no longer has even a single ship that is registered, built nor manned that passes through the waters of the SCS why on earth would we seek to “defend” the shipping that passes through these waters?
    Secondly why would we seek to increase tensions with our largest trading partner over such an unlikely action on their part?

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