Opening Remarks to the Defence Sub-Commitee of the Joint Standing Committee on Foreign Affairs, Defence and Trade at Parliament House, Canberra by Carlyle A. Thayer on 14 February 2017.

Mr Thayer’s Opening Remarks are reproduced below.

1. Introduction

Last weekend I attended an international conference on the South China Sea: Impact on Major Power Relations and Regional Stability co-hosted by Centre for Asian and Globalisation (Singapore) and Australia China Relations Institute (headed by Bob Carr) at UTS Sydney.

Since 2010, I have attended fifty-two international conferences on the South China Sea in sixteen countries.

Chinese delegates, some acting in their private capacity, were uniform in the view that tensions in the South China Sea had abated for now and it was a good time for diplomacy and promotion of cooperation between China and the littoral states.

They also agreed that China did not disapprove of all U.S. military activities in China’s Exclusive Economic Zone (EEZ) but that China did require prior permission to conduct approved military activities.

Finally, the Chinese delegates could not clarify the status of China’s nine-dotted (dash) line.

2. Arbitral Tribunal Award (July 12, 2016)

  • Nine dash line has no legal basis
  • No islands capable of claiming a 200 nm territorial sea in Spratlys
  • China’s possessions are either rocks (12 nm territorial sea) or low-tide elevations (not subject to appropriation)
  • Scarborough Shoal is a traditional fishing ground

3. Duterte Administration (30 June)

  • Critical of U.S. alliance and military activities.
  • In October 2016, Duterte visited China and secured some $24 billion in bilateral deals; but formal bilateral negotiations have not yet taken place.
  • Arbitral Tribunal Award in legal limbo
  • Filipino fishermen allowed to return to the waters adjacent to the Shoal but not in the lagoon.
  • The Philippines is ASEAN Chair for this year
  • A period of calm conducive to diplomacy – agreement on framework for the Code of Conduct by mid-2017
  • But no progress in cooperative activities listed by Declaration on Conduct of Parties in the South China Sea

4. Further Chinese militarization

  • Reinforced small and large hangars on three airfields.
  • Close in Weapons Systems and anti-aircraft guns
  • Minister of Defense Delfin Lorenzana issued statement on January 17, 2017:
  • “Notwithstanding the warming of relations between our countries, the Philippine government would be remiss in its duty to protect its national interest if it does not protest, question and seek clarification from China on the presence of weapons in the Spratlys.
  • “The actions of China in militarizing those disputed features are very troubling. They do not square with the Chinese government’s rhetoric that its purpose is peaceful and friendly.”
  • On same day Foreign Secretary Perfecto Yasay told the local media that Duterte has filed at least three (or four) “note verbales” against China’s activities in the disputed area.
  • Yasay also said, renewing ties with China did not mean compromising the Philippines’ sovereignty rights over its 200-nautical mile EEZ:
  • “We’re verifying the whole thing and I will assure you that we are taking steps in making sure that the interest of the Philippines in protecting our sovereignty rights are upheld and so on,” Yasay said
  • Incidents with United States – maritime reconnaissance, electric countermeasures against drones and seizure of one underwater drone later returned.

5. Australia and South China Sea Disputes

Foreign Minister Julie Bishop on February 8, at press conference with Chinese Foreign Minister Wang Yi (ABC News):

“Australia doesn’t take sides on competing territorial claims, we have a strong interest in unimpeded trade and regional peace, freedom of navigation and freedom of overflight, and respect for international law,” she said.

But she revealed she had discussed the region with the newly confirmed US Secretary of State Rex Tillerson on Tuesday morning.

“We discussed the importance of maintaining adherence to the international rules based order, under which many nations, including China and other countries in our region, have been able to grow and prosper,” she said.

  • Australia should strengthen its public statements on the South China Sea – a “strong interest” or a “national interest”, call for all claimants to clarify their claims and push back at Chinese rhetoric that is bullying or intimidating. This could be undertaken by Australian diplomats and military comments in private if it is not already being done.
  • What does “freedom of navigation and freedom of overflight” mean?

Distinction between FON in UNCLOS and U.S. FONOPs. FON right to sail or fly over international waters.

FONOP a U.S. program to consistently challenge maritime claims the U.S. views as excessive.

What does support for the “international rules based order” mean?

  • China has not clarified its 9-dotted line but it is illegal under international law. Claims must be based on land.
  • China has promulgated straight and excessive baselines around Paracels. Main shipping lanes pass through EEZ.
  • China has not promulgated straight baselines around any feature in the Spratlys.
  • China continually asserts “military alert zone” – wherever People’s Liberation Army operates = ships, aircraft or on islands.
  • No rock has a legal territorial sea and China should be pressed to adopt baselines.
  • Two of China’s major airfields, each 3 km long, are built on a low-tide elevation. This is not entitled to any maritime zone.
  • U.S. FONOPs by military ships that sail within 12nm or exercise innocent passage are giving China the legal benefit of the doubt without requiring China to clarify its claims.

6. Future

  • Trump Administration’s officials, Secretary of State Rex Tillerson and Secretary of State James Mattis, have toned down and clarified remarks on the South China Sea made during their hearings.
  • U.S. Pacific Command, however, is reported planning more Freedom of Navigation Operational Patrols
  • Philippine Defence Minister Delfin Lorenzana stated on February 7in interview with AFP,  he expects China to build on Scarborough Shoal:

“If unopposed, China would likely attempt to build an installation like the several bases Beijing has constructed in the Spratly Island chain to the south of Scarborough. If we allow them, they will build. That’s very, very disturbing. Very much (more) disturbing than Fiery Cross because this is so close to us.”

  • In the words of a Lowy Institute report co-authored by Rory Medcalf and published six years ago, “The sea lanes of Indo-Pacific Asia are becoming more crowded, contested and vulnerable to armed strife.”[2] In future years the South China Sea will see the introduction of more warships, more military aircraft, and more submarines and the possibility of armed strife cannot be ruled out.

Notes:

[1] These notes have been prepared by Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra. E-mail: c.thayer@adfa.edu.au.

[2] Rory Medcalf and Raoul Heinrichs with Justin Jones, Crisis and Confidence: Major Powers and Maritime Security in Indo-Pacific Asia (Sydney: The Lowy Institute for International Affairs and the MacArthur Foundation, June 2011), p. 3.