Home » Aviation » Opinion: Don’t Miss the Boat on Australian and U.S. Policy in the South China Sea

Opinion: Don’t Miss the Boat on Australian and U.S. Policy in the South China Sea

U.S. sailors man the rails aboard USS Kitty Hawk (CV-63) sails the Sydney Opera House while pulling into Sydney, Australia in 2005. US Navy Photo

U.S. sailors man the rails aboard USS Kitty Hawk (CV-63) sails the Sydney Opera House while pulling into Sydney, Australia in 2005. US Navy Photo

Australia’s 2016 Defense White Paper expresses concern over “friction” in the South China Sea (SCS) arising from U.S.-Chinese naval interactions, and it worries that territorial disputes have created “uncertainty and tension.” Those statements, which show Canberra (like the rest of the states in the Indo-Pacific region) is slowly coming around to the gathering threat posed by China to freedom of the seas.

Predictably, the Mandarins in Beijing harshly criticized Australia, as did reliably pro-Chinese scholars such as Sam Bateman in an article in East Asia Forum. Those antagonists view Australia’s new White Paper as a move by Canberra to support U.S. naval operations in the region and a deepening of the Australia-U.S. Alliance.

Bateman, for example, accused the United States of ignoring the “carefully balanced regime of exclusive economic zones (EEZ) established by the United Nations Convention on the Law of the Sea (UNCLOS) when conducting naval operations in the SCS. Adm. Harry Harris, commander, U.S. Pacific Command, for example, recently pledged that the U.S. Navy “must continue to operate in the South China Sea to demonstrate that water space and the air above it is ‘international’ in character.”

While the EEZ is sui generis—neither territorial seas nor high seas —the balance of rights and interests in the zone inure to the international community and not the coastal state. While it is true that coastal states enjoy limited rights in the EEZ, the term “international waters” is an accurate shorthand reference used by navies to describe all waters seaward of the territorial sea. While the coastal state has rather limited and circumscribed rights in the EEZ, the ships and aircraft of all nations enjoy all the high seas freedoms and other internationally uses of the seas, except those that interfere with narrowly prescribed coastal state rights, such as fishing. The EEZ was cut out of the high seas in order to grant coastal states a handful of limited rights, and it is correct as a matter of law to describe the zone as “international waters” for military purposes.

A map of China's shifting definition of the so-called Nine-Dash Line. US State Dept. Image

A map of China’s shifting definition of the so-called Nine-Dash Line. US State Dept. Image

Bateman and Beijing also say that foreign warships nations must operate with “due regard” in the EEZ for the “significant rights and duties” of coastal states. Of course user states must have “due regard” for coastal state rights in the EEZ, but those rights are strictly limited to resource exploitation, and narrower jurisdiction over protection of the marine environment, authority over offshore structures related to resource exploitation, and marine scientific research. Moreover, in exercising these limited resource-related rights, coastal states also must observe “due regard” for high seas freedoms in the EEZ, such as naval operations.

Articles 58(2), 86 and 87 of UNCLOS and the negotiating history of the convention, as well as longstanding customary international law, make clear that all nations enjoy high seas freedoms of navigation and overflight, and other internationally lawful uses of the seas associated with those freedoms, in and over the EEZ. These other internationally lawful uses include the full range of foreign military activities, such as deterrence patrols, intelligence, surveillance, and reconnaissance, and air and naval exercises and operations. Ironically, China apparently still objects to U.S. military activities in its EEZ, even as the People’s Liberation Army (Navy) does the same thing in the U.S. EEZ of Hawaii and Guam.

China has accused the United States of “militarizing” the SCS through freedom of navigation (FON) operations and naval exercises with partner states, while characterizing its massive military buildup in the region as limited and necessary for “self-defense.” But the U.S. rebalance, Australian submarine program, and unprecedented regional naval buildup underway from New Delhi to Tokyo is a direct consequence of China’s turn toward coercive tactics at sea and reliance on a newly-minted blue-water battle fleet to change the status quo. It is unclear why China sees a handful of periodic FON operations as provocative since the United States and other nations have operated in the region for centuries.

China, on the other hand, appears bent on owning the South China Sea. States are rightly worried. Beijing’s breathtaking leaps in the quantity and quality of its naval and air capabilities, including new generation platforms and advanced weapons systems, appears designed to intimidate its neighbors and decouple the United States from its allies and regional partners. China has also enhanced its maritime law enforcement capabilities, and outfitted a distributed fleet of maritime militia to coerce its neighbors in peacetime and serve as an inexpensive force multiplier in the event of an armed conflict. China additionally has built airstrips on disputed features in the SCS capable of accommodating every military aircraft in the PLA inventory, constructed military installations on these features to control the surrounding seascape, and deployed surface-to-air missiles to the Paracel Islands in order to expand its anti-access/area denial envelope.

A naval soldier of the Chinese People's Liberation Army (PLA) views through a pair of binoculars onboard China's first aircraft carrier Liaoning as it visits a military harbour on the South China Sea. Xinhua Photo

A naval soldier of the Chinese People’s Liberation Army (PLA) views through a pair of binoculars onboard China’s first aircraft carrier Liaoning as it visits a military harbour on the South China Sea. Xinhua Photo

China’s militarization of the region is destabilizing; it endangers Australia and other nations, and it violates Beijing’s commitments in the 2002 ASEAN Declaration of the Conduct of the Parties on the South China Sea. Commercial shipping transits the area freely today, but China has positioned itself to close off this critical sea line of communication (SLOC) at a whim. Since more than $5 trillion in commerce (nearly $1 trillion in U.S. trade), including more than half of the world’s oil-tanker traffic and more than fifty percent of the world’s merchant fleet by tonnage, flows through the SCS annually, China’s potential to disrupt world markets is worrisome.

It has been suggested that a “bit of give and take” is required by both China and the United States in order to demilitarize the SCS. The United States, however, has already shown restraint in dealing with China’s aggressive behavior. China’s specious “territorial” claims over low-tide features, for example, are ripe for navigational challenge, but the United States has not done so. U.S. warships are legally entitled to conduct naval maneuvers and exercises, not just transit, within 12 nautical miles of these features occupied by China since low-tide elevations normally do not generate territorial sovereignty or a territorial sea. Likewise, U.S. surveillance aircraft may lawfully overfly Chinese claimed features, but they have refrained from doing so. U.S. naval aircraft have not used force in self-defense in response to China’s repeated aggressive and unsafe maneuvers by Chinese fighter jet aircraft, as they did against Libyan jets during the 1980s. The United States also could take an official position on the competing sovereignty claims in the SCS and offer greater support to the Philippines—a treaty ally—but so far, Washington has declined to do so.

Beijing’s actions, on the other hand, demonstrate a China on the march. In 1978 China invaded and occupied the Paracel Islands; in 1988 it clashed with Vietnamese forces near Johnson South Reef; in 1995 it surreptitiously seized Mischief Reef from the Philippines; in 2012 it took control of Scarborough Shoal by forcing out Filipino fishing vessels; in 2013 and 2014 it conducted military exercises on James Shoal; since 2014 it has unlawfully interfered with the resupply of Filipino marines aboard the BRP Sierra Madre at Second Thomas Shoal; in 2015 it took de facto control of Jackson Atoll. These “salami tactics” have been bolstered by large-scale land reclamation projects in the Spratly Islands to change the status quo. Australia and all peace-loving states should be concerned.

As Prime Minister Turnbull stated during his January visit to Washington, D.C., “the U.S.-anchored rules-based order has delivered the greatest run of peace and prosperity this planet has ever known. . . . The pace and scale of economic growth in our region is utterly without precedent in human history. It would not have happened, and its continuance cannot be assured, without the security and stability underwritten by a strong and enduring United States presence in our region.” The United States therefore remains committed to the Indo-Pacific region, to the defense of its friends and allies, to commercial and military freedom of the seas, and to the rule of law in the oceans

As a Pacific nation, a Pacific leader, and a Pacific maritime power, the United States has a national interest in maintaining peace and stability in East Asia. China’s disturbing pattern of coercion undermines the rule of law and liberal order of the oceans. To counterbalance that threat, the United States must maintain its decades-long military presence in the region, strengthen the Indo-Pacific rebalance to enhance a network of like-minded allies and partners in the region, and encourage all states—including China—to coexist peacefully in accordance with international law.

  • Don Bacon

    This essay is something entirely predictable from the U.S. Naval War College.
    No way do China’s activities of the South China Sea destabilize Australia. China is Australia’s largest trading partner, and the SCS is three thousand miles from Australia on the other side of the Indonesia archipelago. The only reason that Canberra is involved (in its White Paper) is because Washington demands it, but that involvement will be as small as possible so as not to offend China (and because Australia lacks capability). Meanwhile, the US escalation of naval activities in the SCS is being matched by China’s increased activities on its islands, a competition that the US can’t win.

  • James Kraska

    “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.”

    Australians need to decide what kind of Asia they want to live in…one based on the rule of law in which the laws apply equally to the strong and the weak, or one based on the rule by law in which the strong impose their will on the weak. The new White Paper is a step in the right direction.

    • Don Bacon

      Australia is not in Asia, and the “rule of law” crap is only US propaganda for “do it our way” which China no longer accepts.

  • Hugh

    Since WW2 the USN has had to accept the tasks of worldwide policeman in order to preserve world peace and trade against rogue states and the like.

    China has gone way beyond modernisation for defence, and is increasingly posturing towards bullying neighbouring nations, ignoring international laws, and preparing for a show-down with the USA. We could ask why, since China already has a lion’s share of worldwide trade. It seems like they are after control, initially of States surrounding the South and East China Seas, thence beyond. In 1941 a relatively small player such as Japan took over this region – consider what a much larger China threatens. This is being driven by excessive nationalistic fervour. Also they don’t think as those in the West do, they have different drivers and rules. They would be quite prepared to suffer huge losses in order to gain final victory in their eyes.

    • Don Bacon

      There is world peace which has been preserved by the Navy? No. And compared to Navy activities China has been a pussycat.

      • John B. Morgen

        China is just getting started with their new navy.

    • Banlas

      Since after WW2, United Snake has killed many millions of innocent people around the world. Tens of millions of Vietnamese, Laotians, Cambodians, Koreans, Filipinos, Indonesians, Latin Americans, Chinese, Iraqis, Libyans, Afghans, Ukrainians, Africans, Slavs and many others were either killed or made to suffer under miserable lives under the hands of the f evil Americans. If there is God, this evil nation should be burned in h e l l. So please talked nonsense as if the world is blind and dumb.

      • John B. Morgen

        Americans do [NOT} have the sole copyright of killing large numbers of people.

    • John B. Morgen

      China is the [New Imperial Japan].


    Dear Editor:
    I sent the piece below to you twice but you never acknowledged it or replied.
    So I posted it here.But it has been deleted. So I am posting it again. Just in case its deletion wasn’t an accident, doesn’t the USNI abide by the U.S. Uniformed Services Oath of Office, “I [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter. So help me God.” And isn’t freedom of speech one of the principles enshrined in the Constitution?


    (USNI News 28 March 2016)

    Kraska and Pedrozo begin their polemic by implying bias in Sam Bateman’s piece in the East Asia Forum. This is like ‘the pot calling the kettle black’. Kraska and Pedrozo are respectively a professor at the US Navy War College, and a serving US naval judge advocate (lawyer). Could it be that their training and professional positions influence their thinking and that they are simply doing their duty in defending US policy–no matter how difficult and duplicitous that may be?

    Kraska and Pedrozo admit that “coastal states enjoy limited rights in the EEZ_ _” The issues are what those rights are and whether what the U.S. military is doing in China’s EEZ violates those rights. The U.S. military is primarily concerned with “freedom of navigation” for its warships and aircraft engaged in intelligence, surveillance and reconnaissance (ISR) off China’s coast. But it is purposefully conflating this concern with freedom of commercial navigation to garner support for its position and opposition to China’s attempts to constrain these probes.

    China certainly does object by word and deed to what it perceives as US abuse of the right of freedom of navigation and a threat to use force – a possible violation of the United Nations Charter – let alone UNCLOS. Indeed, what China does in the U.S. EEZ and what the U.S. does in China’s EEZ likely differ significantly in degree and kind. The activities of ISR aircraft like the EP-3 and the Poseidon 8A just this past August, as well as other incidents involving the US navy ships Bowditch, Impeccable and Cowpens, may have collectively included active “tickling” of China’s coastal defences to provoke and observe a response, interference with shore to ship and submarine communications, violation or abuse of the consent regime for marine scientific research, or tracking China’s new nuclear submarines for potential targeting. These are not passive intelligence collection activities commonly undertaken and usually tolerated by many states including China, but intrusive, provocative and controversial practices that may violate both China’s marine scientific consent regime and its environmental protection regime.

    As these authors also acknowledge, the EEZ regime is introduced sui generis in the Convention. Other states using the coastal state’s EEZ have a duty to pay “due regard” to the rights of the coastal state including its marine scientific research consent and environmental protection regimes. Because the Convention was a ‘package deal’, non-ratifiers like the U.S. can not credibly or legitimately pick and choose which UNCLOS provisions they wish to abide by, deem them customary law, and unilaterally interpret them to their benefit.

    Another fallacy is the authors’ assumption that China and the U.S. have the same interpretation of the meaning of freedom of navigation and other terms in UNCLOS relevant to it that are not defined in the Convention. These terms include “other internationally lawful uses of the sea”, “abuse of rights”, ”due regard”, “peaceful use/purpose”, and “marine scientific research”. China and other ratifiers differ with the U.S. on their meaning and these differences are quite relevant to the limits of “freedom of navigation”, particularly for warships.

    The authors also ignore the dynamism of international law. It is not static, and the meaning of its terms changes over time in response to advances in technology and the practice of nations. China is certainly not the only country that places restrictions on some foreign military activities in its EEZ and territorial sea. Indeed in Asia alone, India, Malaysia, and US ally Thailand do not allow foreign military activities in their EEZs, and Indonesia, Taiwan and Vietnam require permission for foreign warships to enter their territorial seas. In the authors’ view, these restrictions may not be consonant with their interpretation of UNCLOS. But they are a political reality and will not be resolved by some legal argument or process.

    The authors’ accusation that China is creating instability in the region is unfair and unbalanced. From China’s perspective the U.S. could easily “close off” those sealanes if it chose to do so. Also China thinks it is the U.S. that is ‘militarizing’ the South China Sea. To China, the U.S. is hardly showing ”restraint” with its provocative ISR probes, its military “rebalance” to the region and its stepped up FONOPS there. There is plenty of blame to go around in explaining the increased tension in the South China Sea.

    The debate will continue. However, without ratification of the Convention and therefore access to its arbitration mechanisms, pro-U.S. opinions like those of Kraska and Pedrozo are lonely cries in the wilderness of international law. To achieve its objectives, the U.S. is relegated to threats, shows of force (gunboat diplomacy) and perhaps eventually even use of force. This ‘might makes right’ approach is not a shining example of international behavior for others to follow–including China.

    Mark J. Valencia

    Adjunct Senior Scholar

    National Institute for South China Sea Studies

    Haikou, China