Published daily by the Lowy Institute

More heat than light in Australian FONOPs debate

More heat than light in Australian FONOPs debate

Australia’s febrile domestic politics produced another petty point-scoring moment after the shadow defence minister, Senator Stephen Conroy, sought political mileage from last Tuesday’s historic South China Sea arbitration

Senator Conroy criticised the government for not sanctioning Freedom of Navigation of Operations (FONOPs); in response, Foreign Minister Julie Bishop slapped Conroy down for unnecessarily raising tensions on a delicate matter. Bishop did, assert however, that Australia would continue to exercise its rights of freedom of navigation in the South China Sea ‘as it has always done.’

So what has The Hague ruling changed in terms of freedom of navigation? 

On the one hand, it does not, as ANU military law specialist Professor David Letts argues, change the ‘fundamental basis for ships operating in the South China Sea’. The United Nations Convention on the Law of the Sea (UNCLOS) has always permitted vessels to transit through high seas, Exclusive Economic Zones (EEZs) and territorial seas, noting that transit through territorial seas is conditional on not undermining ‘the peace, good order or security of the coastal State’. These rights haven’t changed. Moreover, Australian governments have never recognised China’s nine-dash line claim as limiting the right of its vessels, military or otherwise, to travel through the high seas in the South China Sea. 

On the other hand, it is now clear that the nine-dash line can never be the legal basis for China to seek to regulate movement in the South China Sea, should it have ever contemplated this, (as, for example, through the declaration of an Air Defence Identification Zone). It is also clear that very few of the Spratly features (whoever owns them) generate territorial seas or EEZs. The tribunal found that nearly all were, in their original state, too insubstantial to generate maritime zones. The waters around them, barring where the EEZs of the Philippines and Vietnam protrude, are effectively the high seas. [fold]

The Conroy-Bishop spat is essentially two people talking past one another. Bishop’s version of a FONOPs appears to refer to any Australian military navigation through the South China Sea. Conroy’s notion appears to be an operation a la the US FONOPs program, which deliberately and specifically challenges the coastal state’s interpretation of its rights where these are believed to be excessive. For him, just traversing the South China Sea is insufficient. He is proposing, for example, that our forces pass within 12 nautical miles of a Spratly artificial island while conducting an activity that discounts it from being innocent passage. Under UNCLOS, this could be a military exercise, weapons practice, intelligence collection or launching of a helicopter. This would show that Australia does not recognise that the artificial island generates a territorial sea.

Prime Minister Malcolm Turnbull and opposition leader Bill Shorten are further avoiding these legal issues by saying that where our platforms go and what they do are operational matters that they don’t comment on. This is a nice dodge, but it’s clear that where our forces go and what they do in the South China Sea has legal, strategic and international ramifications that are not just matters for the military.

Still, it is unlikely that Australia’s politicians will be pulled up on these legal niceties, either in Australia or by China. Even before the judgment, China’s Global Times made clear that while China’s elites know UNCLOS chapter and verse, they aren’t that fussed about 12 nautical mile limits; their beef is that they see US warships in the vicinity of their island-building efforts as ‘harassing’ China, regardless of the legalities. This is another case of ‘ships passing in the night’. China is more concerned about the presence of the US in its sphere of interest than about adherence to international law. Its worldview of international law is possibly different to that of the West; as I argued recently, China’s history may have led to a pragmatic rather than normative embrace.

So which of Bishop’s and Conroy’s approaches to FONOPs make the best policy for Australia? While there is substantial public support for FONOPs (the 2016 Lowy Institute Poll found 74% of Australians were in favour of Australia conducting such operations in the South China Sea), it certainly seems sensible for Australia to take a low key approach for the moment. We need to both avoid inflaming tensions and get a sense of how the ruling is going to shape the region before acting further. Bishop’s minimalist take (that Australia will keep doing what its always done in accordance with international law) is canny, and puts the burden of escalation on China. Avoiding very public FONOPs is less likely to provoke a reaction from China, because China’s interests in the South China Sea are very much about projecting to domestic audiences that China’s government is reclaiming Chinese sovereignty and returning China to greatness.

The question might be asked, however; why bother doing low key FONOPs if these do not convey a message? One reason is that Australia’s leaders are subject to legal advice that says that Australia must continue to practice freedom of navigation or else see customary law evolve in a direction in which would not allow Australia free transit through the South China Sea. But this leaves the job of promoting the merits of a rules-based global order largely undone.

This is where Conroy’s approach has merits. He wants to convey our support for the rules-based global order in a very tangible way. Promoting the importance of international law is clearly something that is very much in Australia’s interest. My colleague Danielle Cave and I have advocated that Australia’s public diplomacy could do more here. Australia shouldn’t assume that international law and UNCLOS have much sway in countries of our region. Rule of law and separation of powers have very shallow roots in many of these nations. The job here is to persuade our neighbours that a region where international law prevails is one in which peace and security is more likely to endure for all, large and small countries alike.

Bishop has made a start in this direction by drawing attention to the reputational costs that China will face if it ignores the ruling. Here time is not on China’s side. Although the ASEAN and South East Asian response has been muted at this point, it is likely that over time the ruling will be repeatedly raised and will provide an unwelcome distraction for China’s leadership. Because of the permanence of borders and maritime rights in the South China Sea, defying international law is likely to be more burdensome for China than the comparative case, the US’s defiance of the outcome of the 1986 International Court of Justice case

US support for military action against the Sandinistas in Nicaragua was ultimately forgotten and made irrelevant by the changing political times, including the end of the Cold War. The same is not likely to occur in the South China Sea.

Photo: Getty images/Stefan Postles

You may also be interested in