Australia and the US: great allies but different agendas in the South China Sea

Several posts on The Interpreter have argued recently that Australia should join the US in conducting freedom of navigation operations (FONOPs) in the South China Sea. This is not a good idea for several reasons, not least of all is how our involvement would be perceived in the region. 

Joining the US in FONOPs in the South China Sea would do nothing to help our image in the region. We should be particularly sensitive to the highly critical reaction by Indonesia to the US FONOPs. Law of the sea issues are a tricky part of our bilateral relations with Indonesia. We saw this with the Indonesian response to the intrusion by Australian warships and customs vessels into Indonesian territorial seas in January 2014.

Many of the commentaries on the FONOPs reintroduce the old claim that somehow China threatens the freedom of commercial navigation through the South China Sea. With a large proportion of the seaborne trade flowing through the sea bound for China, this is not going to happen.

Implications of a possible threat to commercial navigation also often overstate the amount of national trade passing through this area. Australia has been guilty of this. Our Minister for Foreign Affairs claimed in a recent speech to the Australian Institute of International Affairs that 'about two-thirds of Australia's trade passes through the disputed maritime zone of the South China Sea'. This is way off the mark; it's more like about 20% when we consider the extent of our trade with Europe, the Middle East, the Americas, New Zealand, the Pacific islands and Northeast Asia; cargo that does not cross the South China Sea.

It is motherhood to say that freedom of navigation through the South China Sea is important. Few would disagree with that claim but it's only the US that places a premium on the freedom to conduct military activities there. Even then, the major incidents that have occurred between American and Chinese assets have involved US intelligence collection and so-called 'military surveys' in China's EEZ (exclusive economic zone). The right to conduct these activities in the South China Sea is not a great concern of Australia's.

While I appreciate James Goldrick's point about referring to 'Freedom of Naval Operations' rather than 'Freedom of Navigation', it's not a line worth pursuing. To do so would open up the Pandora's box of issues associated with military activities under the law of the sea. These activities were 'the elephant in the room' during negotiations of UNCLOS that led to some ambiguity in the Convention, especially with the EEZ regime.

The so-called 'Castaneda Compromise' was necessary to resolve the relationship between the rights of coastal states to the economic resources of the EEZ and associated jurisdictions on the one hand, and the protection of the navigational rights and other freedoms of the international community as a whole on the other. Military activities were accepted as part of the latter freedoms, but they could not be referred to as such in the Convention.

Hence we have language in UNCLOS, such as Article 58, which talks of 'other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines' as a euphemism for military activities, and use of the term 'inter alia' in Article 87 to show that the freedoms of the high seas available in an EEZ are not limited just to basic freedoms of navigation and overflight. 

Australia has a clear strategic interest in the situation in the South China Sea not deteriorating further, but our interests lie in the broader political and economic stability of the region, not in the details of sovereignty claims and the right to conduct military activities. At this stage, the potential costs of Australia initiating its own FONOPs in the South China outweigh any possible benefits.

We need to tread carefully. If we are unhappy with what China is doing in the South China Sea, then formal diplomatic protests rather than military actions are the most appropriate response.

This article originally appeared at the Lowy Institute Interpreter.