Three identical and inaccurate reports on the South China Sea.

Several leading Australian journalists have made identical but inaccurate statements on the recent letter sent by the Australian government to the UN on China’s South China Sea claims. Were they briefed by a political staffer pushing a false interpretation?

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The letter is fully consistent with views long held in DFAT and long supported by the Australian government at high political levels. In contrast, the Morrison government is straining to prove its loyalty to the Trump administration on the eve of the talks between the foreign and defence minister between the two countries.

The ABC’s Andrew Greene reported on 25 July that “Australia’s permanent mission rejected the Chinese Communist Party’s claim to disputed islands in the crucial trading waters, calling them ‘inconsistent’ with international law”. He said that the letter declares “Beijing’s territorial claims in the South China Sea to be illegal.”

The Guardian’s Elias Visontay reported on the same day that “The declaration said Australia does not accept China’s claim of sovereignty over the Paracel Islands and Spratly Islands”.

The Financial Review’s Timothy More led with the statement that “Australia has formally challenged China’s moves to claim territory in the South China Sea at the United Nations”.

The journalists may lack the advanced knowledge of international law to correctly interpret the DFAT letter, but it is surprising that they all lead with the same inaccurate and highly simplistic interpretation of it. The legal issues are complex and numerous. The letter does not comment on China’s sovereignty claims to natural islands in the disputed waters, though it does express concern about its claims to low tide elevations.

One key distinction to be noted is the difference between claims to territorial sovereignty over land (and its adjacent belt of territorial sea) and claims to maritime resource jurisdiction beyond the territorial sea. The DFAT letter refers almost exclusively to claims over maritime resource jurisdiction beyond the territorial sea of land features.

The South China Sea is 3.5 million sq km, stretching from Taiwan to the Malacca Strait. The sea contains many islands that are recognised as Chinese territory, including Hainan Island and Hong Kong Island. The sea area in dispute is probably a little over one million sq km in area. Many commentators use the misleading shorthand phrase “South China Sea claims” to refer to the disputes in the central and southern parts of the sea. Australia does not reject many claims by China to sovereignty over many islands or to maritime jurisdiction over an area probably equal to one million sq km in the northern parts of the South China Sea.

The DAFT letter rightly challenges many aspects of China’s claims to maritime jurisdiction in the South China Sea and cites appropriate legal authorities. It also challenges China’s claims to have territorial sovereignty over submerged reefs: “strong concern in relation to China’s claims of ‘continuously and effectively’ exercising sovereignty over low-tide elevations given that they do not form part of the land territory of a State”. It is a clear breach of international law for any state to claim territorial sovereignty over low tide elevations and submerged features.

The first point to note is that the letter does not reject China’s claims to the Paracel and Spratly Islands that are actual islands. This is also the US position. For the 77 years since 1943 that the United States and China have been discussing the island claims, the United States has never described as illegal China’s claims to those of the Paracel and Spratly islands that are actual islands. Its most recent statement on 12 July on the South China Sea that takes a tougher political line on China for its bullying tactics and excessive maritime claims takes no position of the territorial claims to territory of natural islands in the Paracel and Spratly islands. One reason is that Taiwan makes the same claim, and it was the Republic of China government in 1943 which first raised these claims with the United States.

The recent US statement address territorial sovereignty only in respect of submerged features: “An underwater feature like James Shoal cannot be claimed by any state and is incapable of generating maritime zones”.

In respect of the Spratly Islands, the US position specifically acknowledges the existence of a possibly legitimate Chinese claim to some islands by saying “United States rejects any PRC claim to waters beyond a 12-nautical mile territorial sea derived from islands it claims in the Spratly Islands (without prejudice to other states’ sovereignty claims over such islands). ” If the United States would potentially recognize a 12 nm Chinese controlled territorial sea around any disputed island, that is clear indication, without prejudice the claims of other states, that the United States may be prepared to accept that China’s claims to some islands may be superior to those of Vietnam or the Philippines.

The DAFT letter comments only on “China’s assertion in its note of 17 April 2020 that its sovereignty claims over the Paracel Islands and the Spratly Islands are ‘widely recognized by the international community’ (noting the protests by Vietnam … and the Philippines …. in this respect).” The letter goes on to say, importantly, that “The Australian Government reserves its position with respect to other aspects of the claims made by China in the three notes identified above”. The other claims include claims to sovereignty over the natural islands of the Paracel and Spratly groups and the legal evidence China uses to support those claims.

In international legal practice, it is not common for Western states to express to view on territorial disputes between other states, especially over tiny uninhabited islets in mid-ocean. There have been occasions when states reject claims of sovereignty arising from forced military takeover of populated territories, such as the Russian annexation of Crimea or the Indonesian annexation of East Timor. Leading Western states also regularly protest excessive claims to maritime jurisdiction by any state regardless of their connection with a territorial dispute.

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Greg Austin is an international security specialist working as a Professor in the University of New South Wales Canberra.

He has researched the legal issues in the SCS since 1981 (including in government) and published a 400 page book on it in 1998: China’s Ocean Frontier: International Law, Military Forces and National Development.  His most recent article was 2018:  Strategic Military Geographies in the South China Sea.

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