International relations, National security, South China Sea | Australia, East Asia, Southeast Asia, The World

26 August 2022

Australia has a role to play in challenging China’s illegal ‘nine-dash line’ in the South China Sea, but it must consider how it does so carefully, Aristyo Rizka Darmawan writes.

A recent incident where the Australian warship HMAS Parramatta was closely tracked by a Chinese warship in the South and the East China Sea has sparked questions about Australia’s role in the contested area.

During the intercept, Chinese military assets, including a guided-missile destroyer and a nuclear-powered attack submarine, reportedly warned the Australian warship that it was in ‘China’s territorial waters’ and told it that it ‘must leave’.

Australian Defence Minister Richard Marles claimed the ‘regional presence deployment’ that the HMAS Parramatta conducted was routine, citing ‘freedom of navigation’ and ‘the global rules-based order’, and highlighting Australia’s role in a ‘free and open Indo-Pacific’.

But does Australia really need to be doing this? Regional presence deployments have their pros, but they have their cons too.

For one, the defence minister’s argument is fair enough. Australia and its partners do have the freedom to challenge China’s illegal and excessive claims in the South China Sea. At the 2016 South China Sea arbitration, the tribunal made it clear that China’s claimed ‘nine-dash line’ does not have any legal basis under international law.

Illegal practices like the nine-dash line must be challenged to protect international law and regional presence deployments do this. In other words, there must be countries that are willing explicitly challenge illegal claims. This practice is known as being a ‘persistent objector’.

More on this: The truth behind China’s fishing ban in the South China Sea

Some might suggest leaving this to the United States, but while the US Navy has been doing similar exercises for many years, these can lack legitimacy, because the United States is not a party to the United Nations Convention on the Law of the Sea (UNCLOS).

Australia, on the other hand, is a party to UNCLOS. This gives the Australian Defence Force a stronger hand internationally when the country claims its regional presence deployments are intended to defend the UNCLOS.

Still, Australia must approach its role as a persistent objector carefully.

Any military exercise in the South China Sea should be precisely calculated to challenge China without provoking responses that could escalate to live fire, or even open war in the South China Sea.

As it stands, some experts believe the current possibilities of miscalculation are too high. Law of the sea expert Professor Donald Rothwell noted that Australian assets are often sailing through these waters without allied back-up – if things were to turn sour, Australia could be caught out.

Moreover, Australia must consider how ASEAN countries respond to regional presence deployments. Some countries, such as the Philippines and Vietnam, tend to welcome more extra-regional power engagement in the region.

More on this: The US-ASEAN summit and the South China Sea Code of Conduct

On the other hand, other countries, such as Indonesia, tend to be more cautious about outside military presence. They are concerned it might destabilise the region and increase tensions for little payoff.

This might be a reasonable concern. After all, China has responded negatively to increasing Australia’s military engagement. For instance, an Australian P-8A Poseidon surveillance plane was recently targeted by a laser from a Chinese warship while in flight over Australia’s northern approaches.

Also, while Australia is well-suited to being a persistent objector as a party to UNCLOS, existing tension on other issues between China and Australia can affect that role. Chinese decision-makers might raise questions about the intentions of objection in the South China Sea if other tensions, like over trade policy, heat up.

In all, while its role as a persistent objector in the South China Sea is reasonable and important, Australia must be very careful not to provoke an open escalation in the disputed area.

It should challenge China’s illegal claim, but acknowledge that regional presence deployments are not the only way. Given sensitivities to other tensions and concerns among ASEAN countries, it should combine its military operations with other actions to make its intentions clear.

For instance, in 2020 many countries sent diplomatic notes to the United Nations Secretary General requesting China uphold the 2016 tribunal ruling in response to Malaysia’s extended continental shelf proposal. This is also a form of challenge and action like this can broaden Australia’s objection to the nine-dash line claims.

While the Australian objection in the South China Sea is important, it carries risk, and the worst-case scenario could provoke China into an open escalation. With so much on the line, Australia has to be very careful and pursue a balanced approach.

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