Wave of rhetoric on South China Sea sets dangerous tone
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Wave of rhetoric on South China Sea sets dangerous tone

As China island-hops its way across the South China Sea, should Australia be concerned about Beijing's land reclamation activities? And should we be encouraging the US to take a tougher line, including "freedom of navigation" patrols close to the artificial islands China has constructed?It depends on how much you believe the hype.

There are several misconceptions, some of them dangerous, in current Australian discourse concerning the South China Sea and China's increasingly assertive place in it.

The first of these is that the building of islands amounts to "annexation". Under international law islands are natural features, not artificial. Therefore, sovereignty does not arise from building features at sea and inhabiting them. China can build as many islands as it likes, but they will not strengthen its claims over the South China Sea.

The second misconception is that ASEAN countries are doing "nothing" in relation to China's actions. In fact, ASEAN states are acting largely in accordance with what Australian and US governments have been prescribing for several years now: seeking to resolve their disputes with China peacefully and in accordance with international law.

This is why in 2014 the Philippines submitted a suit to the Permanent Court of Arbitration in The Hague arguing that China's nine-dash claim for the South China Sea was invalid. This is why Vietnam and Malaysia have made submissions to the UN Commission on the Limits of the Continental Shelf (CLCS) to demarcate their Exclusive Economic Zones in the South China Sea legally.

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It is also why ASEAN continues to publicly condemn China's actions, most recently at the April 2015 Summit where it stated that China's land reclamation would "erode trust and confidence" in the region.

If Australian commentators and policy elites believe this to be "nothing", then it would appear to reveal a hollowness in our repeated calls for peaceful resolution according to international law.

The Australian public deserves a far more informed and nuanced discussion on the extremely complex issues at play in the South China Sea, rather than the simplistic depictions of a belligerent hegemon on rampage, requiring the intervention of the global sheriff and its loyal deputy.

This would emphasise that China could have no conceivable interest in obstructing maritime trade, as its overwhelming reliance on ship-borne oil from the Middle East attests. It would also note that progress can and does occur, such as China and Vietnam's 2000 agreement on their maritime border in the Gulf of Tonkin.

Joint 'freedom of navigation' patrols

Media reports suggest that the US may seek partners, including Australia, for joint "freedom of navigation" patrols within 12 nautical miles (22 kilometres) of China's artificial islands. This would demonstrate that the US and others do not recognise any sovereignty arising from the artificial islands.

The rationale here is that China does not understand any language except that of force and that it will continue to test the boundaries of acceptable behaviour until its costs are raised.

But while a very tangible expression of Australia's concerns and its legitimate interests in freedom of navigation, joint patrols are not a proportionate response to land reclamation, and more importantly, would not constitute the basis or part of a sound, sustainable long-term strategy.Instead, patrols would carry risks of escalation, and an unfortunate message. The risks are that an unintended collision or incident between Chinese and a foreign military vessel could escalate to use of force. This could intensify further to a broader US-China conflict. Although this is unlikely, it is possible, and the consequences unimaginable.

Patrols would carry risks of escalation, and an unfortunate message. The risks are that an unintended collision or incident between Chinese and a foreign military vessel could escalate to use of force.

The unfortunate message is that the regional forums and architecture, including the East Asia Summit and the ASEAN Regional Forum, that have been built over many years with great effort and with the expectation that they can solve regional disputes, can be bypassed with impunity.

Multilateral structures like the East Asia Summit are central to a vision of a rules-based regional order in east Asia.

There are other approaches that better support this goal. These would simultaneously reinforce to China the unacceptability of its activities, force it to negotiate, and strengthen a rules-and-international-law-based regional order. Most importantly, they are based on diplomacy.

Diplomatic strategies in our region come back to ASEAN, but Australia's diplomats are reported to lament ASEAN – both as insufficiently unified and not making sufficient progress on a Code of Conduct for the South China Sea. But to what extent has Australia proactively advocated innovative diplomatic strategies in the South China Sea?

A number of prominent academics have proposed ideas. Vietnam expert Carl Thayer suggests the negotiation of a treaty of amity and co-operation in south-east Asia's maritime domain. Once this treaty had been signed by ASEAN members, outside parties such as China could be invited to sign, or risk isolation.

This approach would use collective bargaining power and social costs, rather than military force, to shape China's behaviour. Economic measures including sanctions, while difficult to devise for an economy with the size and centrality of China's, also need to be explored.

Orientalist concepts of a passive and ineffectual ASEAN are outdated. Australia needs to work with ASEAN, not around or over the top of it.

Greg Raymond is a research associate at the Coral Bell School of Asia Pacific Affairs, the Australian National University.This is an edited version of a longer essay published on Friday at New Mandala – Australia's premier website on south-east Asia.

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