There is a contest for rule over the South China Sea between international maritime law and an increasingly hegemonic China.
Over the past four years, it appeared Chinese hegemony would trump the maritime legal order agreed to in the UN Convention on the Law of the Sea (UNCLOS). Southeast Asian states, instead of trying to stop this power transition that dissolves their autonomy and maritime rights, would pragmatically adjust to this impending reality. Canberra’s actions against this possible future appeared to accentuate Australia’s alienation from, not integration with, Asia.
But recently Southeast Asian states bordering the South China Sea are making use of UNCLOS to criticise China’s aggressive actions in their exclusive economic zones, and they are supporting each other. These Southeast Asian developments provide Australia the opportunity to provide more support to these states and the rules-based order.
Jump back four years. On July 12, 2016, an arbitral tribunal held under UNCLOS unanimously upheld the Philippine case that China’s actions in the Philippine exclusive economic zone in the South China Sea infringed upon Philippine maritime rights. The ruling went further and determined that none of the land features in the Spratly Islands section of the South China Sea that is at the core of the maritime rights disputes between China and Southeast Asia or Scarborough Shoal are islands entitled to exclusive economic zones. If China, which ratified UNCLOS in 1996, accepted the ruling then Beijing’s exercise of its rising power would not contest but uphold international maritime law. The maritime rights’ disputes between China and the Southeast Asian states bordering the South China Sea would be greatly reduced.
Instead, the Xi Jinping administration rejected the legal ruling as illegal. The Philippines, under President Rodrigo Duterte, put it aside in the interest of calmer relations with China. ASEAN, the consensus-based regional forum that brings together all 10 Southeast Asian states, has never issued a statement on the July 2016 ruling or made explicit reference to it.
However, over the past few months Southeast Asian claimant states have repeatedly criticised Chinese aggressive actions and unlawful claims in South China Sea, and referred directly to the 2016 ruling. On the fourth anniversary of the ruling, Philippine Foreign Secretary Teodoro Locsin issued a statement reaffirming that the 2016 ruling was non-negotiable, and “represents a victory, not just for The Philippines, but for the entire community of consistently law-abiding nations”.
On July 2, Vietnam criticised China’s military exercises in the disputed waters around the Paracel Islands and noted that they were detrimental to China’s relations with ASEAN.
Delfin Lorenzana, the Philippine Secretary of National Defence, supported Vietnam, noting that China’s “highly provocative actions” worried all South China Sea claimants. A month earlier, Indonesia, in a submission to the UN, cited the 2016 ruling as reaffirming Indonesia’s long-standing position that “that any historic rights that the People’s Republic of China may have had to the living and non-living resources were superseded by the limits of the maritime zones provided for by UNCLOS 1982”.
On the fourth anniversary of the July 2016 ruling, US Secretary of State Mike Pompeo issued a statement of the US’s position on maritime claims in the South China Sea. It aligns US policy with the 2016 ruling more clearly and in a more detailed manner. The statement promises that “America stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law”.
Canberra should follow suit and issue a similar statement more closely aligning Australia’s position on maritime rights claims in the South China Sea with the 2016 ruling that Australia agrees is legal and binding. In future cases of clear infringements of this ruling, Australia can publicly support the affected states’ criticisms of these unlawful actions and their references to the 2016 ruling.
The 2018 Foreign Policy White Paper and 2020 Defence Strategic Update highlight the importance to Australia of maritime Southeast Asia and the rules-based order, and shared concerns about China’s use of its growing power.
These two extensions of current Australian policy on maritime claims in the South China Sea would actively support Australia’s engagement with maritime Southeast Asia, the global rules-based order, and collective responses to Chinese aggression.
Malcolm Cook is a non-resident fellow at the Lowy Institute in Sydney.