Thayer Consultancy Background Brief

ABN # 65 648 097 123

South China Sea: Australia and
Freedom of Navigation
March 3, 2018

We pay special attention to China's rise and assertiveness over recent years, especially
since Xi Jin-ping's ascending to power. We request your assessment as an input into
our research.
Recently it has been reported that the United States and the United Kingdom are
planning to conduct freedom-of-navigation exercises in contested areas of the South
China Sea despite the fact that China has expressed strong objections to these patrols.
Also, it has been reported that President Donald Trump is pressing Australia’s Prime
Minister Malcolm Turnbull to join the U.S. in freedom of navigation patrols. The media
has reported that Australia is concerned about the negative impact such collaboration
will have on its relations with China.
We request your assessment of the purpose of freedom of navigation patrols in
general and your assessment of specific issues in the questions below.
RESPONSE: There are two distinct meanings of the term freedom of navigation. The
original and tradition meaning is that all maritime countries have the right to sail
commercial and military ships on the high seas. The high sea are waters that do not
form part of a country’s internal waters or territorial sea.
China and the United States differ on the conduct of military activities inside a
country’s Exclusive Economic Zone. China requires prior permission, the U.S. asserts
that no prior permission is necessary. The U.S. uses the term international waters
rather than high seas.
The second meaning of the term freedom of navigation is a U.S. multifaceted program
(political, diplomatic military etc.) to challenge what the United States views as
excessive claims to maritime jurisdiction that are not supported by international law
including the United Nations Convention on the Law of the Sea (UNCLOS). The U.S.
program is called Freedom of Navigation Operational Patrols and abbreviated
FONOPS.
Australian military aircraft and warships have been sailing and flying over the South
China Sea long before UNCLOS came into force. Australia asserts traditional freedom
of navigation. When Royal Australian Air Force (RAAF) planes fly over the Spratly
Islands they are challenge by Chinese military authorities. The RAAF pilots state that
they are flying in international airspace in accord with international law. These verbal
communications are conducted in a professional manner.
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Q1. How will Australia respond to the Trump Administration’s request? Will it agree
to conduct freedom of navigation patrols or will it opt out and continue to call for a
peaceful resolution of South China Sea conflicts?
ANSWER: Australia came under increased pressure from the United States to join in a
U.S..FONOP during the Prime Minister’s recent visit to Washington. Australia’s Foreign
Minister said recently, “What we won't do is unilaterally provoke an increase in
tensions in the South China Sea" by sailing too close to the islands [in the Spratlys].”
Australia currently sails and flys over the South China Sea in accord with international
law.
The Opposition, the Australian Labor Party, appears to support traditional freedom of
navigation and urges that Australian warships sail within 12 nautical miles of Chinese
artificial islands.
Both the United States and Australia support the peaceful resolution of maritime
disputes in the South China Sea. They have done so in separate declaratory statements
as well as in multilateral statements issued by the Trilateral Security Dialogue with
Japan and the Quadrilateral Security Forum (U.S. Japan, India and Australia).
Q2. The Turnbull government's stance is unclear and Parliament seems to be divided
regarding this issue. If Australia decides to join the U.S and the U.K in freedom of
navigation exercises, it will face strong opposition from China. So what are the
implications if Australia does decide to join the U.S. on China, Vietnam and other
stakeholders in the South China Sea?
ANSWER: The United Kingdom appears to be taking independent action with respect
to its announced freedom of navigation patrol. In other words, the UK is lending
support to the United States. At the moment it is unclear that there will be a joint U.S.-
UK FONOP.
This week the Australian media reported that bilateral relations with China have been
put on hold or frozen. This is because of how China interpreted the meaning of the
Defence White Paper. Visits by government officials at mid- and high-level have been
postponed. The Australian Department of Foreign Affairs and Trade (DFAT) disputes
this characterization. But it is clear that Beijing is signaling to Canberra that it is
displeased with Australia’s so-called anti-China stance. Australia can expect to come
under more Chinese pressure this year.
If the UK and Australia and other countries such as Japan and France, join the U.S.
FONOPs, China would react quite strongly. China would send naval ships and aircraft
to monitor the FOPNOPS and order the ships to leave the area. China also is likelyto
conduct high-profile naval exercises involving live firing and military aircraft. China
would take steps to further militarize its artificial islands arguing that it was acting in
self-defence.
China’s response, however, would be measured to reapond to the scope and
frequency of FONOPs.
Since China has dismissed the Award by the Arbitral Tribunal that heard the claims
brought by the Philippines against China, the conduct of FONOPS demonstrate that
the international community disputes China’s actions in claiming sovereignty over the
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land features and adjacent waters. If no maritime state challenged China, it could be
argued that they acquiesced. This would strengthen China’s claims under international
law.
Vietnam benefits from FONOPs because other countries are protecting freedom of
navigation and it is in Vietnam’s interest that they do so.
Q3. Will Australia join the United States or not? How does Australia’s action affect
regional security?
ANSWER: Australia likely to give verbal support to U.S. FONOPS but not directly
participate in a joint freedom of navigation patrol. Prior to President Trump coming
into office, the alliance relationship between Australia and the United States was so
close that the U.S. would not make a formal request to Australia unless it was sure
Australia would respond posivitely.
From Beijing’s perspective, Australia’s actions would be viewed as destabilizing to
regional security. It is likely that other littoral states would privately welcome the
presence of foreign navies, including the Royal Australian Navy (RAN) because it would
represent a counter-balance to China’s naval presence. In other words, if there were
no assertions of traditional freedom of navigation China would assume control over
the South China Sea and use that position to exert influence on littoral states to hew
China’s line.

Suggested citation: Carlyle A. Thayer, “South China Sea: Australia and Freedom of
Navigation,“ Thayer Consultancy Background Brief, March 3, 2018. All background
briefs are posted on Scribd.com (search for Thayer). To remove yourself from the
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.