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The 2016 Defence White Paper describes a rules-based global order as a “fundamental strategic interest”. 

This project, supported by the Department of Defence’s Strategic Policy Grants Program, aims to lead a national debate on the rules-based order and its implications for Australian security and defence. It will connect the legal, political, and historical debates about the nature of the global order with the practical realities of Australia’s strategic environment. It will address how the order can evolve to meet new technological challenges and modes of warfare, including grey zone operations.

Cover image: Official U.S. Navy / Flickr

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Australia lays down the law in the South China Sea dispute

Australia has entered the renewed diplomatic fray about China’s maritime claims in the South China Sea, clarifying, if not entirely resolving, Canberra’s previously vague legal position on the strategically important and contested waters.

The timing is significant, following the declaration last week by the United States, which branded China’s resource and jurisdictional claims across most of the South China Sea as “completely unlawful”. Washington also accused Beijing of bullying smaller Southeast Asian maritime nations and threw its support behind the 2016 South China Sea Arbitral Tribunal ruling that favoured the Philippines’ position. China was quick to accuse the US of exacerbating an already tense situation.

Australia’s language has been more circumspect, sticking closely to legal rather than behavioural issues. But it won’t be lost on China that Australia has chosen to make its own statement just ahead of next week’s AUSMIN meeting. In a note verbale dated 23 July, Australia’s mission to the United Nations clarified Canberra’s legal position, explicitly rejecting maritime claims by the People’s Republic of China (PRC) that Australia views as inconsistent with the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Australia has long advocated that maritime disputes should be resolved in accordance with international law. Following the 2016 ruling, Canberra had called for Beijing to respect the ruling and simultaneously amplified its rhetoric on the “rules-based global order”. Despite this, Australia had been somewhat vague in its legal stance on the South China Sea, avoiding a clear articulation of its position on the PRC’s specific South China Sea claims.

This note verbale goes some way in providing clarity. A key element is Australia has made explicit that it rejects the PRC’s claim to “historic rights” in the South China Sea in accordance with the 2016 Arbitral Tribunal ruling.

Australia’s alignment with the US puts it in the potentially awkward position of being more stridently opposed to the PRC’s claims than the maritime Southeast Asian states that have a direct stake in the disputes.

Yet Australia has also rejected PRC claims that were not tested in this arbitration. Since the ruling, PRC experts have relied upon other spurious legal justifications for its South China Sea claims beyond the use of its well-known “historic rights” within the nine-dash line argument. This includes the “Four Shas” (four sands) strategy, which attempts to make a legal case by constructing straight archipelagic baselines around the land features in the Pratas, Paracel, Spratly and Macclesfield Bank groups, claiming this amounts to part of China’s economic exclusion zone and continental shelf. Yet, China's position does not accord with the land/sea ratios set out in UNCLOS, hence Australia’s rejection of the Four Sha outlying archipelago claim, including “any claims to internal waters, territorial sea, exclusive economic zone and continental shelf based on such straight baselines”.

Australia also clarified that it does not view artificial islands as “islands” for the purposes of claiming maritime jurisdiction, a distinction made very clear in UNCLOS. Both the US and Australia have remained neutral on the issue of who owns the land features, preferring instead to focus on the maritime claims. Yet, Australia has pushed back against the PRC’s often bombastic and unequivocal claims that its sovereignty of land features is “widely recognised by the international community”.

Notably, like the US statement, Australia does not comment on the Arbitral Tribunal’s reasoning on how natural land features should be classified as islands, rocks, low-lying, or submerged elevations. This might be explained because both Australia and the US make economic exclusion zone claims on the back of land features that may not meet the Arbitral Tribunal’s threshold for classification as an island. Australia, for example, claims a 200 nautical mile economic exclusion zone around the isolated Heard and McDonald Islands in the southern Indian Ocean – over 4,000 kilometres south-west of Perth – described in one report as “rocky and desolate”. 

Yet Australia’s advocacy in the South China Sea reflects another small win for international law and represents an evolution of its normative approach to the South China Sea. This approach has sought to defend maritime rules without further destabilising the region, putting naval vessels or personnel at risk or damaging trade relations with Beijing.

How the PRC will respond to this intervention will be fascinating to watch. The statement runs the risk that the PRC will punish Australia through economic coercion tactics, but this already appears to be a feature of Sino-Australian economic relations in 2020

It was reported last week that an Australian Defence Force joint task group consisting of five warships had “unplanned interactions with foreign warships throughout the deployment [which] were conducted in a safe and professional manner”. This was rather sensationally reported in the media as a confrontation between Chinese navy and Australian warships in the South China Sea. Perhaps the more significant but less captivating story here was that the Australian fleet were joining American and Japanese counterparts in the Philippines Sea for joint training exercises in another sign of maritime cooperation among so-called “like-minded” states.

Australia’s warships were not in contested areas. Canberra has so far resisted calls from the US to participate in Freedom of Navigation Operations, or FONOPS, although it recognises the right to conduct them exists and has left open the possibility of conducting them in future. In Australian debates, however, FONOPs are very narrowly interpreted as transiting within 12 nautical miles of China’s artificial islands, in contrast to the variety of activities the US undertakes across the globe as part of its freedom of navigation program.  

Part of the challenge for Australia has always been matching its rules-based rhetoric with its operational policy. Speaking loudly without a stick has seen Australia described as a “paper cat”. Australia’s alignment with the US puts it in the potentially awkward position of being more stridently opposed to the PRC’s claims than the maritime Southeast Asian states that have a direct stake in the disputes. A key question now is what Australia will be willing to do in its operations to defend the legal position it has articulated in this statement.

Stoking the fire of Asia-Pacific missile proliferation

In the name of keeping the nation safe, Australia is joining the Asia-Pacific’s accelerating missile race. However, not only will it not keep the nation safe, it will stoke an uncontrolled fire that is engulfing the region’s strategic landscape. The wise response would be to throw everything at firefighting – at garnering international support for a formal arms-control dialogue, a missile moratorium and the creation of a new arms-control architecture to replace the now-defunct INF treaty, the lapsing of which has allowed this fire to spread.

To the contrary, the Morrison government is choosing to feed the flames. It’s the worst of all options – arguably even worse than doing nothing.

The government’s plans to acquire long-range missiles and other advanced weapons systems for use in high-intensity military conflicts were publicly revealed in the release of the 2020 Defence Strategic Update (DSU) on 1 July. The plan, which has received loud support from former Australian defence officials, is likely to involve the purchase of 200 long-range missiles from the United States and the longer-term development of Australia’s own advanced strike systems, potentially including hypersonic weapons. (Although it is not widely known, Australia is capable of developing the latter, following more than a decade of close hypersonics collaboration with the US.)

Three main justifications are given for spending billions of taxpayer dollars on implementing this new plan, at a time when the nation’s resources are stretched thin by the global pandemic.

Although the idea of using the Defence Strategic Update to create arms-control leverage is probably the most positive spin that can be put on an otherwise disturbing document, it is still problematic.

The first is that the pandemic itself has increased strategic uncertainty and made it necessary for Australia to become more self-reliant. While there may well be some truth in this, it smacks of a post-hoc rationalisation, given that discussion surrounding the DSU preceded the pandemic.

The second is that the weakening of the international rules-based order (which, until recently, Australia has energetically championed), makes it necessary for Australia to rely more heavily on military might. Again, this argument can’t be dismissed, because multilateralism is clearly under strain, but it is part of a distorted view, one that is becoming entrenched in defence policy circles in Canberra, that cooperative security is a peacenik fantasy and multilateral institutions are too broken to fix.

The third justification for throwing Australia into the region’s accelerating arms race is the most convincing: it’s being driven by fear over China’s rapidly expanding military capabilities – specifically its asymmetric development of INF-range missiles, and its successful hypersonic weapons, space and cyber warfare programmes. These capabilities, some of which have been acquired with Russia’s help, are understandably worrying to Australia’s defence decisionmakers, who feel increasingly exposed at a time when China’s strategic (over-) confidence is growing, and faith in US global leadership and alliance resolve is declining.

The Morrison government hopes by amassing long-range missiles and complex munitions of its own, Australia will be able to develop a strong, self-reliant deterrent capability, which will discourage military and non-military coercion by China, and provide a credible warfighting capability if deterrence fails.

HMAS Arunta fires an Evolved Sea Sparrow Missile off the coast of Western Australia to test its missile systems, 10 March 2020 (Department of Defence)

Although responding to the China challenge in such a way might be reassuring to some, it is expensive and risky and could too easily backfire. As the DSU itself warns, although hypersonic weapons will make it possible to strike targets rapidly, accurately and lethally from afar, they also reduce decision times, make military miscalculation more likely and increase the consequences of strategic error. These characteristics, combined with the ambiguities inherent in dual-use missile deployments in the region’s nuclear possessor states (China, North Korea, Russia and the US), erode rather than reinforce the predictability on which stable deterrence is based, dramatically increasing strategic risks.

It is possible Canberra’s defence elite are hoping it won’t be necessary to implement some of the riskier elements of the DSU. Indeed, a fourth (unspoken) reason for announcing the plan could be to signal to Beijing that it is time to stop the current missile arms race and engage in serious arms-control dialogue. This would echo the debate that has been underway in the US for the past year, on whether deployment of US long-range missiles to the Asia-Pacific could help bring China to the negotiating table to begin hammering out a missile arms control regime. Some US analysts and officials believe this tactic could succeed where efforts to engage China in trilateral negotiations over the extension of the 2010 New Strategic Arms Reduction Treaty (New START) have failed.

Although the idea of using the DSU to create arms-control leverage is probably the most positive spin that can be put on an otherwise disturbing document, it is still problematic. As a tactic, it could unintentionally reinforce the security dilemma and feed arms racing pressures, especially if no clear pathway to the negotiating table is elaborated.

Australia would do better to focus its attention on trying to help extinguish the fire that has already been lit, rather than adding to it. It could do so both by offering to host an Asia-Pacific arms-control dialogue and also by marshalling its diplomatic forces to encourage others to participate. Several proposals for discussions already exist, including some practical suggestions on how to engage China.

Dr Tanya Ogilvie-White is the author of “Post-INF Arms Control in the Asia-Pacific: Political Viability and Implementation Challenges”, Missile Dialogue Initiative Discussion Paper, IISS, 30 June 2020.

Morrison’s messages to the “sophisticated state-based cyber actor”

Prime Minister Scott Morrison’s announcement today that Australia was being targeted by a “sophisticated state-based cyber actor” was curiously measured. On the one hand, the “targeting” necessitated a Prime Ministerial statement, guaranteeing widespread media coverage. On the other hand, the PM’s assured the public that “this has been a constant for Australia to deal with”.

That’s probably because Morrison needs to deliver two messages.

First, the Prime Minister wants to communicate to the Australian private sector, to reassure local companies that might be seeing signs of the “targeting” that the government agencies are on top of it, and to encourage those that haven’t to tighten security. Morrison laid the groundwork for the more detailed technical advisory from the Australian Cyber Security Centre.

Countries such as Australia want to deter adversaries without provoking them.

Second, the Prime Minister is unavoidably sending a message to the “state-based actor” behind the intrusions (which is almost certainly China). In essence, Morrison is saying: We know what you’re up to, but we aren’t going to name you (yet)

That reluctance is part of the emerging rules of this new game of cyber competition. Countries around the world are struggling to develop a framework to manage growing state-on-state rivalry in and through cyberspace.

Countries such as Australia want to deter adversaries without provoking them. Public attribution – and the threat of doing so – is seen as one of way of warning and deterring an opponent. But early attribution can also be provocative and leave less room for subsequent escalation. Australian agencies may hope that the PM’s statement will deter the attackers from moving on to extract large volumes of information or engaging in any sabotage. 

As the PM put it, “That fact that these threats present is not a surprise in this world in which we now live”. One part of managing that threat – and creating more rules – has to be a more nuanced popular vocabulary. Though the PM’s words were chosen carefully, the alarming and imprecise phrase “cyber attack” was used heavily in the media build up and subsequent coverage of his remarks.


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