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Australia’s flawed position on the South China Sea

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In Brief

Australia’s 2016 Defence White Paper says a lot about the South China Sea, both directly and indirectly. It expresses concern about land reclamation and construction activities by claimants in the sea and about the possible use of artificial structures for military purpose.


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It also makes much of the importance of a rules-based global order to Australia’s security, with a clear message that some countries are not following these rules.

While the White Paper does not name China, that’s how most commentators — and China itself — have interpreted these statements. As Benjamin Schreer has claimed, the White Paper ‘reflects the reality in maritime East Asia that China has moved to re-write the rules to fit its strategic preferences and historical narratives’. But what rules are we talking about?

Despite the White Paper’s references to a rule-based global order, the reality is not quite that simple. For one, other countries besides China also don’t follow the rules. Australia’s major security partner, the United States, is not party to many important international conventions, including the 1982 UN Convention on the Law of the Sea (UNCLOS). Admiral Harry Harris, Commander of US forces in the Pacific, has said for example that, ‘We must continue to operate in the South China Sea to demonstrate that water space and the air above it is international’. But such statements ignore the carefully balanced regime of exclusive economic zones (EEZ) established by UNCLOS.

The South China Sea is not international water space. It is comprised of the EEZs of littoral countries, which have significant rights and duties in that water space. Other nations operating in that space must do so with due regard to those rights and duties.

Australia itself can also be accused of not conforming to the rules-based global order. One Australian commentary, which claims that China is trashing the rules-based order by refusing to recognise international arbitration over disputed islands in the South China Sea, conveniently overlooks the fact that Australia is taking a similar position to China in its maritime boundary dispute with Timor-Leste.

The White Paper seems to make a subtle swipe at China when it observes that Australia opposes the use of artificial structures in the South China Sea for military purposes. But this further begs the question of who is militarising the South China Sea. The short answer is: everyone. China and the United States accuse each other of ‘militarising’ the South China Sea, but in reality both are guilty.

Who you consider to be militarising the South China Sea largely depends on what you mean by ‘militarisation’. China’s construction of defensive military facilities is not the same as the militarisation implicit in increased military activity by the United States. China acknowledges that its reclaimed features have a military purpose, but describes the measures it has taken as ‘limited and necessary self-defence facilities’ consistent with ‘the right to self-protection’ afforded under international law.

In contrast, the United States has also raised the military ante with its provocative freedom of navigation (FON) operations, increased naval exercises and its military support for the Southeast Asian claimants in the South China Sea. Such initiatives are seen by China as an attempt to contain it.

China’s assertive actions in the South China Sea are cast as a growing threat to American interests, particularly by the Pentagon and the US Navy. But, conversely, instability in the South China Sea helps the Navy justify its budget, particularly as it’s the minor partner of the American Army and Air Force in both Syria and the Ukraine. For example, The South China Sea has become a major theatre of operations for the US Navy.

Demilitarising the South China Sea should be a genuine objective of all stakeholders. To this end, China should clarify its claims in the South China Sea and refrain from activities that will be seen as assertive or aggressive. The US should step back from its current naval initiatives in the region, including its provocative FON operations. A bit of ‘give and take’ is required on both sides.

Australia would do well to take a balanced approach. But in making a big play of the South China Sea, the White Paper falls in line with what Greg Austin has called ‘The Pentagon’s Big Lie about the South China Sea’. For Austin, the lie is the claim that China’s actions in the South China Sea threaten commercial shipping.

The White Paper replays this sentiment. To justify Australia’s concerns, it notes that ‘nearly two-thirds of Australia’s exports pass through the South China Sea, including our major coal, iron ore and liquefied natural gas exports’. This figure is incorrect. The accurate figure is a little over 20 per cent and most of this is trade with China. The White Paper actually disproves its own estimate with the map in Figure 2 showing that most of Australia’s sea freight does not pass through the South China Sea. Nor does the map does show the busy trade route between eastern Australia, Japan and South Korea that passes to the east of the Philippines, rather than the South China Sea.

There is much to like in the White Paper, particularly its focus on increased international defence engagement including with China. But policymakers need to be cautious of the White Papers’ exaggerations about how much China threatens Australian trade and security interests in the South China Sea.

Sam Bateman is an adviser to the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University.

6 responses to “Australia’s flawed position on the South China Sea”

  1. Another excellent comment by Dr Bateman.

    What is obvious is that Western Governments suffer from an affliction, called selective-amnesia.

    It’s a given that former colonial powers like little Portugal, Spain, Holland, France, Britain, Italy and the US could discover and colonize more than half the world, even after they only managed to sail the oceans, after Columbus sailed to the New World in 1492, using a magnetic compass, invented by China but according to Western Historians, China did have the capability to discover small islands in her own backyard, in the South China Sea..

    But in case the nuance escapes anyone, by 1401 China already had 600 years of Maritime experience in the high seas and oceans as she invented, not only the magnetic compass but the ships’ rudder and was the ONLY Maritime Superpower from 1401 to 1438. No navy of any Western country had that capability then.

    Even the United States, Canada, South/Central America and Australia still belonged to the Natives and Aborigines.

    To claim that historically little Portugal and Spain could ‘discover’ and colonize South and Central America, never mind if they were Natives there when Conquistadors arrived with guns and gunpowder (the latter invented in China) and that Capt Cook could discover and claim the whole continent of Australia for the British Crown in 1770, and at the same breath claim that China was not capable of discovering small islands in her own backyard in the South China Sea, after over 600 of maritime experience, flies in the face of logic.

    In case, Historians in the US, Japan and Australia suffer from selective-Amnesia that the Paracel and Spratly islands were already returned to the ROC, just let them Google the ‘Treaty of Peace’ signed by the ROC with Japan, on 28 April 1952. By extension, under the One-China policy, these islands were already returned to China.

    On 4 Sept 1958 China declared a 12 nm territorial sea on her territories, which included the Paracel (Xisha) and Spratly (Nansha) islands. The US, the Philippines, Vietnam, Malaysia, Brunei and Australia did not object. Why Now?

    North Vietnam’s Prime Minster, Pham Van Dong, even wrote a letter to China’s Premier Zhou En Lai on 14 Sept to acknowledge the 12 nm territorial waters. Why the change now?

    Vietnam grabbed 24 islands in the Spratlys, Malaysia 6, Brunei 1 even though their colonial masters, France and Britain did not hand them back any island in the South China Sea, upon giving them their independence.

    Neither did Uncle Sam hand any island in the South China Sea to the Philippines when it gave the latter its independence in 1946.

    In 1978, President Marcos annexed 8 islands and features in the Spratlys, using a Presidential Decree and was that perfectly legal (and rule-based) in the eyes of the Western Governments, including Australia? Yes. Why? Because, in the eyes of Western Governments, it’s always China’s fault.

    Dr Bateman is therefore right to warn that Australian “policymakers need to be cautious of the White Papers’ exaggerations about how much China threatens Australian trade and security interests in the South China Sea”

    Hey, in case anyone has any doubt, 26% of Australia’s world trade go to China, via the South China Sea. Is there any FON problem? None. Why the need to go to war in the South China Sea now?

  2. Mr Bateman’s comments are on the whole balanced and do make some points against possible one-sided views of the SCSea. Nice points on the selective statistics and maps of the Australian White Paper.
    But I am also curious about the fact that Batemen never mentions the infamous “nine dash line” which has no legal basis whatsoever, and in fact has become the fundamental reference for all of China’s aggressive movements last year.

    Another point Bateman makes is that essentially the rule of law in the SCSea is based on the EEZ maritime territories of littoral states. I am sure that the littoral states of ASEAN would be only too happy if China would recognize their EEZs. To do so, of course it would have to abandon the nine-dash line.
    Overall I see Bateman’s piece as a reasonable voice for balance within the increasingly tense SCSea, and this note as a similar call for balance, but more from an ASEAN perspective.

    • @Jim Placzek,

      If you do your research diligently on the 9-dash line question, you will discover that Dr Sam Bateman already rightly said a few years ago that it “is a loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbour.”

      But what is conveniently ignored in the debate on the disputes in the South China Sea (SCS) is that the Spratly and Paracel islands were already returned to the ROC, by extension China, based on the One-China policy, (which the Asean nations adhere to) via Article 2 of the Treaty of Peace, that was signed with Japan on 28 April 1952, under the terms of the Potsdam Declaration, signed by the US, UK and Soviet Russia in 1945.

      On 4 Sept 1958, China made a declaration that her territorial sea would be 12 nm, and that included the Spratly and Paracel islands. The US, Philippines, Nth Vietnam, Malaysia, Brunei and Australia did not object. Why now?

      Mr Pham Van Dong, Prime Minister of Nth Vietnam, even wrote a letter to the Premier of China, Mr Zhou En Lai to acknowledge that on 14 Sept 1958.

      When oil was discovered in the South China Sea in the later 1960s by ECAFE, Vietnam grabbed 29 features in China’s Spratly islands in the SCS, Malaysia 6 and Brunei one.

      (Today, Vietnam is the third largest crude oil producer in the SCS, behind Brunei and Malaysia. China has not yet even produced a single drop of crude oil in the SCS.)

      Not to miss out, President Ferdinand Marcos illegally annexed nine features in China’s Spratly Islands, on 11 June 1978, by issuing Presidential Decree No 1596 and renaming them, paradoxically, the Kalayaan (Peace) islands.

      In my humble opinion, a peaceful bilateral negotiation between the parties thereto is the best way going forward, under the provisions of the UN Convention on the Law of the Sea, which all parties, except the USA, have signed and ratified.

      To show why bilateral negotiations worked, the China-Vietnam Land Border Delimitation Treaty was signed on 30 December 1999, based largely on the 1887 and 1895 Sino-Franco Conventions.

      And on 30 June 2004, China and Vietnam ratified the Maritime Boundary Agreement for the Tonkin Gulf (Beibu Gulf), after a Fisheries Cooperation Agreement for the said Gulf, was signed on 25 December 2000.

      Initially, it was a 11-dash line but two dashes were removed when China and Vietnam agreed on the Maritime Boundary in the Gulf of Tonkin.

      In the future, it is foreseeable that when Vietnam, Malaysia, the Philippines and Brunei come to their senses and sign a Maritime Delimitation Agreement each with China, there will be no need for the 9-dash line, which is only a loose boundary line.

      • First off, neither the Japan Peace Treaty nor the Treaty of Peace granted China or Taiwan ownership of the Paracels or the Spratlys. They simply required Japan to renounce her ownership over the islands. The Japan Peace Treaty left the sovereignty of the islands undecided.

        In 1958 North Vietnam did agree to China’s 12 nm border. There was no mention of the Spratlys it’s interesting to note. Furthermore, Vietnam was divided at the time and the Spratlys were under the provincial jurisdiction of South Vietnam who of course did not agree.

        With regard to China’s 9 Dash Line. The U.S. Gov’t Geographic Dept determined a 12 nm territorial boundary drawn from the Spratlys was not plausible at least 40 years ago. (I think in 1972) Given the fact the Spratly Islands are very distant and dispersed and mostly just rocks or reefs, it doesn’t make sense at all.

        China fails to clarify the line because it has no legal, historical nor geographic foundation. The 9 Dash Line fails to take into account some of the features enclosed within were already disputed and occupied before China unilaterally declared it. Probably the French (Vietnamese) have the strongest modern claim to these islands during the 1930s.

        China’s 1958 territorial declaration stated foreign military vessels required advance permission before voyaging into the South China Sea. However China certainly did not treat the South China Sea as internal waters and ‘allowed’ Freedom of Passage.

        This ‘sudden’ US interest came as China increased reclamation scope and size. The U.S. wants to be on the books as having contested China’s boundaries so the Chinese can’t later claim she acquiesced.

        • @Frogmouth

          My response to you is as follows: Part I.

          1 There was no such a treaty called *The Japan Peace Treaty*. There was The San Francisco Peace Treaty with Japan (SFPT) of 1951, which came into force on 28 April 1952.

          2 The Treaty of Peace, was signed by Japan and the Republic of China (ROC) in Taipei also on 28 April 1952. But since Taipei is 16 hours ahead of San Francisco, the Treaty of Peace took precedence over the SFPT.

          3 It was stated in the SFPT, Article 2, that:

          (b) Japan renounces all right, title and claim to Formosa and the Pescadores

          (f) Japan renounces all right, title and claim to the Spratly Islands and to
          the Paracel Islands.

          So you are technically right to say that “The Japan Peace Treaty (sic) (SFPT) “left the sovereignty of the islands undecided.”

          4 But the Treaty of Peace signed by Japan with the ROC on 28 April 1952 fixed that. Article 2 stated clearly:

          “It is recognised that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.”

          Everyone now knows that Taiwan and the Pescadores have been returned to the ROC.

          If Japan had no intention to return the Spratly and Paracel islands to the ROC, why bothered to add that they renounced as well “the Spratley Islands and the Paracel Islands.” Why not leave that out of the Treaty of Peace with the ROC, altogether?

          5 But some commentators still claim that only Taiwan and the Pescadores were returned to the ROC and the Spratly and Paracel are Terra Nullius. This is fatally flawed.

          If they care to study history more deeply they will understand that in the Surrender Documents, signed by Japan on 2 September 1945, it stated that Japan “undertakes for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith.”

          Article 8 of the 1945 Potsdam Declaration stated unequivocally: “The terms of the Cairo Declaration shall be carried out.”

          And the 1943 Cairo Declaration was explicit: “Japan will also be expelled from ALL other territories which she has taken by violence and greed”.

          Japan took over Formosa and the Pescadores by force as war booty and legitimized it under the sham Treaty of Shimonosecki in 1895 and they became colonies of Japan. They were returned to the ROC on 28 April 1952.

          Japan invaded China in July 1937. The French took advantage of the fog of war and invaded the Spratly and the Paracel islands on 3 July 1938.

          But on 1 March 1939 Japan invaded and *colonized* the Spratly and Pacacel islands and summarily evicted the French.

          When Vichy France (aligned with Nazi Germany) protested, Japan reasoned that it was wartime and Japan could annex China’s territories.

          After Japan’s unconditional surrender, under the terms of the Potsdam Declaration, Japan returned Formosa and the Pescadores *as well as* the Paracel and Spratly islands to the Republic of China in the Treaty of Peace on 28 April 1952.

          Since the US, Japan, Australia and all 10 Asean nations abide by the one-China policy, that Taiwan is a part of China, then by extension, the Spratly and Paracel islands have been returned to their rightly owner, China, on 28 April 1952.

  3. My response Part II is as follows:

    1 You said “In 1958 North Vietnam did agree to China’s 12 nm border. There was no mention of the Spratlys it’s interesting to note.”

    I wrote this comment here:

    “On 4 Sept 1958, China issued a Declaration that henceforth her territorial seas would be 12 nm, and that specified that that *included the territorial seas in the Spratly and Paracel islands.* (emphasis mine).

    (The Declaration was printed on the front page of the Nhan Dan in Hanoi.) (Brackets mine.)

    The US, Japan, Australia, North Vietnam, France, Malaysia, the Philippines, Brunei did not raise any objection.”

    In fact, on 14 Sept, Mr Pham Van Dong, the Prime Minister of North Vietnam, wrote a letter to Premier Zhou En Lai and stated unequivocally “We have the honour to bring to your knowledge that the Government of the DRVN recognizes and supports the declaration dated 4th September, 1958 of the Government of the PRC fixing the width of the Chinese territorial waters…”.

    Later, he tried to vitiate his actions in the 16 March 1979 issue of the now defunct, Dow Jones-owned, Far Eastern Economic Review, by stating that he did what he did because it was ‘wartime’.

    But it was already on record that Mr Pham had stated on *15 June 1956*, to wit: “From (a) historical point of view, these islands (Spratlys and Paracels) are Chinese territories”, as disclosed in the same issue of the Far Eastern Economic Review. Unquote.

    2 With regards to the 9 dash line: according to Dr Sam Bateman, a former Australian Naval Commodore with research interests in regimes for good order at sea, now a consultant, based in Singapore, “the U-shaped (9 dash line) line is a “loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbor.”

    The 9-dash line is therefore only an informal ‘boundary’ that separates China’s island territories in the South China Sea from the coasts of littoral states like Vietnam, Malaysia, Brunei and the Philippines.

    As a signatory of Unclos, China can only claim a 12 nm territorial water and a 200 nm EEZ. China cannot claim “most of the South China Sea”.

    Since Itu Aba, now occupied by Taiwan and by extension, China, is an island with fresh water, supports over 200 people, has a port and other facilities and infrastructure, it has a 200 nm EEZ, under Unclos, and that extends to the coast of the Philippines.

    Under Article 15 of Unclos, the new EEZ is equidistant from the baselines of Itu Aba and the Philippines. That would be near the 9-dash line.

    3 You wrote “However China certainly did not treat the South China Sea as internal waters and ‘allowed’ Freedom of Passage.”

    Not true. For 70 years since WW2 China has been the biggest beneficiary of peace in Asia and the Freedom of Passage or navigation (FON) in the South China Sea.
    Over 20per cent of Australia’s export to China go through the SCS, unimpeded.

    There is absolutely no restriction of FON in the SCS, especially now that China has launched the Maritime Silk Road, linking China to the 10 Asean nations, India, Pakistan, Iran, Saudi Arabia, East Africa, Egypt, Greece and the EU.

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