Tuesday 22 Oct 2019 | 02:56 | SYDNEY
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About the project

The International Security Program looks at strategic dynamics and security risks globally, with an emphasis on Australia's region of Indo-Pacific Asia. Its research spans strategic competition and the risks of conflict in Asia, security implications of the rise of China and India, maritime security, nuclear arms control, Australian defence policy and the changing character of conflict. The Program draws on a network of experts in Australia, Asia and globally, and is supported by diverse funding sources including grants from the MacArthur Foundation and the Nuclear Threat Initiative. It convenes international policy dialogues such as the 2017 Australia-ROK Emerging Leaders International Security Forum and has a record of producing leading-edge, influential reports.

Latest publications

An inevitable precedent: Where states stand on the South China Sea ruling

By Nicholas Welsh, an intern in the Lowy Institute's International Security Program.

As the dust begins to settle after the Permanent Court of Arbitration's landmark ruling on Tuesday, many countries find themselves in the unenviable position of deciding whether or not to take sides. From the outset however, it is important to understand that 'choosing sides' in this particular case is not simply about siding with China's maritime territory claims or those of the Philippines (often portrayed as the 'US side'). 

Beyond the strategic and economic impacts of classifying features as rocks instead of islands, this case will set a precedent for many international dispute resolution cases for years to come. One side argues that the ruling of the tribunal is legally binding; the other that the entire procedure is illegitimate and void. With no enforcement mechanism (apart from international pressure) debate is now raging; not between China and the Philippines, but between those in support of multilateral international law structures and those who consider them invalid.

Following the ruling, state-run newspaper China Daily published a front-page map of the globe (reproduced above) highlighting an overwhelming global support for China's position, with more than 70 nations calling for bilateral negotiation in favour of arbitration as a dispute resolution mechanism. Such a high degree of support, by extension, justifies China ignoring the ruling as 'null and void'. The same map indicates that only five nations consider the tribunal's ruling to be legally binding, suggesting a distinct lack of faith in international organisations and international law as a concept. 

While the publication is a clear and fascinating example of state media bias, it does raise an interesting question: where do the world's nations stand now that the ruling has been handed down? Does China's claim of 70 supporters hold up to scrutiny, and are only five countries truly supportive of the tribunal as a means of dispute resolution?

At the risk of ruining the suspense, the short answer to both questions is no.

The Asia Maritime Transparency Initiative (part of the Center for Strategic and International Studies) released in June what it calls the 'Arbitration Support Tracker', which analysed publicly available official statements in order to determine where each country stands. According to this data, prior to the ruling 10 countries had publicly confirmed their support while 47 others released no statements that confirmed they backed China. Of these, 21 are members of the Arab League. China claims the League released a joint statement supporting China following the Seventh Ministerial Meeting of the China-Arab Cooperation Forum, though this statement does not appear to be publicly accessible. Another four nations denied China's claim of their support (Cambodia, Fiji, Poland and Slovenia).

Also missing from China Daily's map is a strangely silent 'normative power'; the EU. Its apparent lack of support for UNCLOS comes as some surprise, particularly considering that almost five months earlier, the EU released a statement calling on all parties to resolve disputes 'in accordance with international law including UNCLOS and its arbitration procedures', a declaration with which Albania, Bosnia and Herzegovina, Liechtenstein, Moldova and Montenegro also aligned themselves. 

Now, almost a week on from the tribunal's ruling, the numbers paint a very different picture. Of those 57 who (supposedly) challenged the legitimacy of the process, three have spoken up to reject the ruling: China, Taiwan and Pakistan. The remaining 54 supportive nations have, thus far, refrained from publicly challenging the ruling. In comparison, 34 nations have publicly called for the ruling to be respected, with a further four acknowledging the ruling positively without supporting its binding nature.

Global support for China's right to ignore the tribunal is not as widespread as state-media would depict, but the lack of any enforcement mechanism in the ruling makes the next step for any nation uncertain. For all countries, whether staying mute or pledging support one way or the other, it is important to look beyond the traditional geopolitical sphere to the larger picture, and for nations to speak up in favour of the world system they want to see in the future. If states believe in a multilateral rules based order, then support for the tribunal and its ruling needs to be made clear. Multilateralism and third-party dispute resolution is not always the answer, but it needs to be available as a legitimate and credible option available to states in deadlock. How states react to this ruling will set a precedent regardless, and it is in everyone's interest that this precedent be as clear and as peaceful as possible. 

Image source China Daily via Hindustan Times

US Navy carries out third FONOP in South China Sea

The US Navy has carried out another freedom of navigation operation in the South China Sea. According to defence sources, it was conducted, on the morning of 10 May, by the USS William P. Lawrence, a guided missile destroyer within 12 nautical miles of Fiery Cross Reef in the Spratly Islands.

Guided missile destroyer USS William P. Lawrence (Photo: US Navy)

The Reef is a high-tide feature occupied by China and extensively built up since 2013. It is also claimed by the Philippines, Taiwan, and Vietnam.

In keeping with the two previous US FONOPs in the South China Sea in October 2015 and January 2016, the US chose to exercise the right of innocent passage, without prior notification, transiting inside 12 nautical miles of the feature.

It is important to stress that no country, including China, has declared baselines or territorial seas within the Spratlys. However, Fiery Cross Reef, as a naturally drying feature prior to China’s construction efforts, would be legally entitled to a 12 nautical mile territorial sea.

As with the previous South China Sea FONOPs the US has again made a point of challenging excessive maritime claims by multiple countries, in this case China, Taiwan, and Vietnam, based on these states’ requirements for prior permission or notification of transits through the territorial sea, a position that the US holds as contrary to international law. FONOPs are not designed to challenge territorial claims to land features, such as Fiery Cross Reef.

Fiery Cross is one of the largest complexes built by China in the Spratlys and can be considered a lynchpin facility, with a 3000 metre runway that is now operational and capable of handling any military aircraft in China’s inventory. Despite President Xi Jinping’s apparent pledge in Washington not to militarise the Spratlys, Fiery Cross has already been visited in recent weeks by China’s top-ranking general and last week hosted a visiting naval contingent led by a large Type 071 amphibious ship, and even a troupe of singers.

The US was reported to have cancelled a FONOP last month, as US-China tensions have shifted to Scarborough Shoal, an isolated high-tide feature to the north of the Spratlys and close to the Philippines, where there are fears that China intends to undertake another large-scale island construction for strategic reasons. The US approach on Scarborough Shoal has received praise in some quarters, for representing a more effective mix of deterrence and conflict management than it has exhibited previously.

However, the resort to a third freedom of navigation operation in the Spratlys is unlikely to stem internal criticism of the Obama Administration’s approach, including its preference for the least assertive form of surface FONOP.

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