15 Jul 2016
Might doesn’t make right in the South China Sea
It’s not often that a complex legal judgement has such an obvious and devastatingly clear outcome.
But that is what the Permanent Court of Arbitration achieved at The Hague in the Netherlands this week, when it ruled on a dispute between the Philippines and China over who owns a number of rocks and reefs in the South China Sea.
China’s claim that it has sovereign ownership of 80 per cent of the South China Sea – an area almost as big as the Mediterranean Ocean – was blown out of the water.
Chinese maps since 1947 have drawn a ‘nine dash line’ around most of the South China Sea, extending Beijing’s ‘ownership’ as far south as Indonesia.
This historical claim was trashed by the international Court, which was bluntly critical of China for encroaching on the Philippine’s Exclusive Economic Zone.
Beijing was criticised for destroying reefs and the region’s marine environment as it built artificial islands, now housing missiles, radars and runways for combat aircraft.
At base, this is a dispute between two different ways of thinking about the world.
For the Philippines and most Southeast Asian countries as well as Australia, Japan and the United States, this is a matter of upholding the international rule of law based on agreements like the Law of the Sea Convention. Disputes are supposed to be settled peacefully through Courts.
For several years now China has rejected this approach. In an old-fashioned exercise of ‘might makes right’ China has simply taken physical control of key territory. Up till now Beijing seems prepared to wear the international criticism for its actions.
Chinese leaders were probably surprised by the strength of the Court’s condemnation, but the signs are that Beijing will continue to denounce the Court while strengthening its hold on the South China Sea.
At worst this turns what was once ‘high seas’, international waters where any country could sail ships or fly aircraft, into a militarised Chinese lake.
This matters deeply to Australia because two thirds of our merchandise exports pass through the South China Sea, including major coal, iron ore and liquefied natural gas exports.
It matters even more deeply to Japan, which is totally dependent on energy imports – oil from the Middle East and gas from Australia – going through the same region.
While it is in China’s interests today to keep the trade flowing, it’s impossible to predict how the future strategic situation will develop and none of China’s neighbours will comfortably accept that Beijing has the ultimate power to decide who can move through the South China Sea.
What might happen from now on? Malcolm Turnbull is surely right to call for calm but it can’t be denied that there is a flat contradiction between Chinese strategic priorities and the rest of the Asia-Pacific.
At some point Australia will need to back its strong public rhetoric supporting the principle of freedom of navigation and overflight by actually sending Defence ships and aircraft through the South China Sea.
This would make it clear that we accept the ruling of the international Court of Arbitration rather than Chinese claims to sovereignty.
So far only the United States has undertaken such missions, sailing within 12 nautical miles of Chinese facilities – the sovereign limit that the Court say’s is not legal around rocks and artificial islands.
The French have hinted at doing the same thing on a number of recent deployments to the Asia-Pacific.
Japan has not staged a freedom of Navigation operation in the South China Sea but that may change after the court ruling and after Prime Minister Abe’s Coalition won strongly in last weekend’s election for the upper house of Japan’s parliament.
Key Southeast Asian countries are likely to feel more confident after the Court ruling that they have the better international legal position even if their military capabilities are outstripped by China.
No Asia-Pacific country can out-muscle the United States, which in the middle of June sent two aircraft carriers, the USS John C. Stennis and USS Ronald Reagan their full complement of attack aircraft and supporting ships to operate in the South China Sea.
Each carrier strike group combines more combat airpower than the entire Australian Defence Force.
While President Obama had earlier been reluctant to buy into the South China Sea disputes, Washington has clearly decided that it needs to protect its own strategic interest in freedom of navigation. It will expect support from key allies.
This will surely be a topic of conversation when US Vice President Joe Biden visits Australia this weekend.
In addition to taking in the Carlton and West Coast game at the MCG on Sunday, Biden will meet Malcolm Turnbull and visit Australian troops.
He will be pressing to see the strength of Australian commitment to take practical steps in supporting freedom of navigation.
Biden should refer to Malcolm Turnbull’s 2016 Defence White Paper released a few months before the federal election.
It said that Australia had a key strategic interest ‘in a secure nearer region, encompassing maritime South East Asia and the South Pacific.’
This is why the government is investing $89 billion on new submarines and frigates.’
Long before these vessels are built the challenge is to stand up for the international rule of law and oppose bullies who think that ‘might equals right’.
Peter Jennings is the executive director of the Australian Strategic Policy Institute
Originally published: Herald Sun. 15 July 2016