By Donald Rothwell*
A common Australian critique of the People’s Liberation Army (PLA) is that their conduct is unsafe and unprofessional. That includes air and sea interactions between the PLA and the RAN/RAAF in the South China Sea, the Yellow Sea, and the Sea of Japan. (The Lowy Institute. The Interpreter.)
Ultimately, this was also at the core of Australia’s diplomatic and public rebuff of the PLA-Navy live-fire exercises last month in the Tasman Sea.
Importantly, the PLA-N live-fire exercises between 21-22 February took place in an area of high seas beyond the Australian and New Zealand 200 nautical mile (370km) exclusive economic zone (EEZ). These are true international waters where neither Australia nor New Zealand have any sovereignty.
Australia’s Defence Minister Richard Marles constantly referenced Australian practice of giving anywhere between 24-48 hours’ notice when conducting live-fire exercises. Australia’s formal diplomatic protest to China delivered in person by Foreign Minister Penny Wong to China’s Foreign Minister Wang at a 21 February meeting in Johannesburg focused on China’s failure to provide timely notification of its plans in the Tasman Sea.
Warships do not operate in a legal void.
Not once during the public discourse that took place following these events did the relevant ministers or government officials appearing before Senate Estimates deny the right of the PLA-N to conduct live-fire exercises. With Australia’s constant referencing of international law and the “rules-based international order” regarding these events, it is appropriate to assess what exactly international law has to say on the matter.
The 1982 United Nations Convention on the Law of the Sea makes clear that one of the freedoms of the high seas is the freedom of navigation. While the Convention is generally silent as to what activities warships can legitimately undertake on the high seas, there is extensive state practice accepting that conducting a live-fire exercise is a legal aspect of the freedom of the high seas.
None of the three directly involved States in the Tasman Sea incident – Australia, China, and New Zealand – contested this. Rights to conduct live-fire exercises on the high seas are reciprocal: if China can conduct such exercises in the Tasman Sea high seas then Australia and New Zealand can do likewise in other high seas areas close to China.
Some countries take an expansive interpretation of the freedom of navigation and assert an entitlement to conduct live-fire and other military exercises within a foreign EEZ. This is becoming an increasing area of contestation, which China and Indiaparticularly challenge. That the PLA-N did not attempt a live-fire exercise within the Australian and New Zealand EEZs is therefore consistent with China’s more conservative approach towards foreign military activities within the EEZ.
A gap exists in international law regarding high seas live-fire exercises. This is at the hub of Australia’s critique that China’s exercises were essentially unsafe, unprofessional and not consistent with normal practice. Warships enjoy complete and absolute immunity from foreign law and the laws they are subject to are those of their flag state, which for the PLA-N is China. Therefore, relevant Australian laws that otherwise apply providing for “Notices to Mariners” (NOTMAN) and “Notices to Airmen” (NOTAM) regarding peacetime military manoeuvres and exercises, including live-fire exercises, do not apply.
This is where relevant state practice and how navies conduct themselves at sea in a professional and safe manner become critical.
Warships do not operate in a legal void. In addition to the political and diplomatic fallout, significant international law consequences would follow if a civilian aircraft or vessel was struck during a live-fire exercise. It is therefore in the interests of all parties that timely notice be given of a live-fire exercise, even if there is strictly no law of the sea legal requirement to do so.
Different militaries will have their own practices and standards. As far as China was concerned, the PLA-N acted consistently with their own standards. Broadcasts were made on relevant emergency radio frequencies alerting aircraft and ships in the vicinity of the live-fire exercises of an air and sea exclusion zone. It was these alerts that were first heard by a Virgin Australia jet enroute across the Tasman. The pilots then passed on relevant information to Airservices Australia, which issued a hazard alert to all flights in the area, and details were relayed to all relevant Australian government agencies.
It is telling that neither the PLA-N nor the Chinese government officially notified Australia of the live-fire exercises. China would, rightly, claim that they were under no legal obligation to do so, and they provided all relevant alerts to aviation and shipping in the normal manner. Reports that Papua New Guinea received advance notification of PLA-N activities while passing through their waters need to be treated with caution as there are no areas of high seas adjacent to Papua New Guinea that the PLA-N traversed.
The question for Australia and New Zealand arising from this incident is whether this law of the sea loophole needs to be closed? China has clearly shown its intent and capability to conduct live-fire exercises in the nearby high seas and similar future conduct must be anticipated. One appropriate diplomatic response would be to work through relevant international bodies, such as the International Maritime Organisation and the International Civil Aviation Organisation, so that agreement could be reached on the minimum notice requirements for live-fire exercises.
This could also extend to making clear that designated maritime safety authorities whose EEZs adjoin the high seas where live-fire exercises are taking place are notified, rather than them first hearing about the activity from the pilots of civilian aircraft.
*Donald R Rothwell is Professor of International Law at the ANU College of Law, ANU, and one of Australia’s leading experts in International Law with specific focus on the law of the sea; law of the polar regions, use of force and implementation of international law within Australia.
