With the latest iteration of the long-running South China Sea dispute being a sharp rise in "lawfare" between the major players, Australia has now, in diplomatic and legal language, formally commented on China's maritime claims. While Australia has not reversed its longstanding policy against taking sides in the region's territorial disputes, it has observed that it does not accept China's claims to the Paracel and Spratly Islands are "widely recognised by the international community".
A formal communication was submitted by Australia on July 23 to the United Nations Secretary-General, and published through by the UN's Division of Ocean Affairs and the Law of the Sea, which has become embroiled in the dispute following a submission by Malaysia in December to another UN body, the Commission on the Limits of the Continental Shelf. Malaysia's action sparked a swift response from China, which in turn resulted in diplomatic communications from Vietnam, Indonesia, the Philippines and the United States. In sum, there have now been 11 public diplomatic exchanges in seven months, with the crux of the matter being China's maritime claims.
Some of the territorial and maritime disputes date back nearly 100 years, but they have gained greater prominence in the last two decades. This has principally been due to claims made by China, Malaysia, the Philippines, and Vietnam over the continental shelf seabed in the region beyond 200 nautical miles. These claims, made under the framework of the 1982 UN Convention on the Law of the Sea, effectively need to be validated by the UN Commission. However, that process is halted if there are land and maritime disputes. As a result, diplomatic communications to neutralise the UN processes have been on the rise.
Australia has no territorial or maritime claim to the South China Sea, but it is more than an interested observer. With the growth of maritime trade and commerce into the region, and with China being Australia's largest trading partner, Australia has critical strategic and trade interests in the sea and its adjacent waters. This is particularly reflected in the importance of the international law right of the freedom of navigation provided for in the 1982 Convention, which a total of 168 countries, including Australia, have adopted.
Australia's statement to the UN makes clear that it rejects China's maritime claims because they do not adhere to the 1982 Convention with respect to the rules regarding baselines, maritime zones and the classification of maritime features. Maritime claims can be asserted from coastal limits or from artificially drawn straight baselines along the coastal edge. Special rules apply in the case of archipelagos such as Indonesia and the Philippines.
The South China Sea is littered with a multitude of different maritime features ranging from atolls, banks, reefs, shoals and cays to very small islands. None of these features generate vast maritime zones under the 1982 Convention, yet China has begun to assert baseline claims from these features, a number of which have been significantly enlarged as a result of recent artificial island-building activities.
Australia's statement makes clear that "artificially transformed features" cannot acquire the same status of a naturally formed island for the purposes of the law of the sea. Australia also rejects China's claim to "historic rights" in the South China Sea, and points to the unanimous decision of a 2016 Arbitral Tribunal which rejected the legitimacy of any such claim.
The Abbott, Turnbull and now Morrison governments have all had to deal with the recent tensions in the region. Australia's consistent position during that time has been that it does not take sides in the territorial disputes, and it has urged the relevant countries to peacefully settle their disputes consistently with international law.
That position has not changed, however Australia has now formally made clear that it does not accept the legitimacy of the Chinese position for the purposes of international law.
While on its own this cannot halt the development of new legal precedent, it may encourage others to also clearly state their support for Australia's position, which would go some way to countering undesirable state practice.
China has already responded through diplomatic channels, and may well lodge a counter-statement with the UN. Australia's more robust legal and diplomatic response to the South China Sea disputes does create some risks for a bilateral relationship that has increasingly grown fraught throughout 2020. However, if Australia wants to promote a rules-based global order then it needs to be prepared to advance and defend that order on multiple fronts.
- Donald R. Rothwell is Professor of International Law at the ANU College of Law and co-author of The International Law of the Sea.