The only freedoms of navigation under threat in the South China Sea are ones associated with rights claimed by the United States to conduct certainmilitary activitiesin the maritime zones of other countries.

On 23 July, Australia lodged anote verbaleto the UN Secretary-General setting out its position on Chinas claims in the South China Sea. This was part ofa series of notes verbalefrom countries bordering the South China Sea that was triggered by a December 2019 Malaysiansubmissionto the UN Commission on the Limits of the Continental Shelf (CLCS) claiming a partial outer continental shelf in the South China Sea.

The Malaysian note echoes a 2009joint claimby Vietnam and Malaysia to an outer continental shelf that was also met at the time with a round of protests from other bordering countries.

Recent notes verbale from China, the Philippines and Vietnam to the CLCS all protested Malaysias claims whileone from Indonesiarejected Chinas claims to historic rights over the living and non-living resources of the South China Sea. China in turn responded with its own notes verbale to the CLCS defending its position. Despite Australia and the United States having no direct interest in continental shelf claims in the South China Sea, Chinas submissions to the CLCS provided grounds for first the United States and later Australia to join the debate. Still, both made submissions to the UN Secretary-General rather than to the CLCS.

As the United States is not a party to the 1982 UN Convention on the Law of the Sea (UNCLOS), it wasrestricted in its abilityto make submissions to the CLCS, a body established under UNCLOS. In aninitial submissionon 2 June, Washington spelt out its rejection of Chinas claim to historic rights in the South China Sea and its attempt to enclose island groups inside straight baselines.

Washington updated its position ina speechand associatedpress releaseon 13 July from US Secretary of State Mike Pompeo that emphasised Washingtons support for its Southeast Asian allies and partners in protecting their sovereign rights to offshore resources under international law. This in turnsparkedexcited, and often hyperbolic, coverage in the press and social media. But there is little indication that Washingtons Southeast Asian allies and partners welcome such interventions by the United States. Most see greater risk in any development that mightintensify USChina rivalry.

Australias note contains similar language to past US statements but does not explicitly support the rights of Southeast Asian countries. Perhaps this is because these rights are not necessarily well-based on UNCLOS and Canberra appreciates theambivalent attitudes in the regiontowards outside intervention.

Ironically, there is nothing new in the Australian or US statements despite suggestions that they reflect new aggressive stances against China. Washington simply restated its well-known position on Chinas claims as set out, for example, in the 2014 US Department of StatepublicationLimits in the Seas No. 143 China: Maritime Claims in the South China Sea.

It is not clear why Australia and the United States made statements at this particular point in time other than to add another dimension to theintensifying rivalrywith China. There was also nothing new in Chinas statements to the CLCS. China has made similar arguments in the past in almostidentical languagewithout any direct Australian or US rebuttal.

Both Washington and Canberra appear to have sought maximum publicity for their submissions. They have provided the basis for confronting andfalse media headlines, such as Australia says Chinas claims to disputed islands are invalid and are not consistent with UN convention on law of the sea. Australias note said nothing like this.

Australias note is nothing more than a concise summary of its position on Chinas claims in the South China Sea. Most of these Chinese claims are inconsistent with international law, notably those associated with the nine-dash line and claimed historic rights. But Chinas claims to islands in the sea are not invalid or inconsistent with international law.

Australias note only acknowledged that Chinas claims over the Paracel and Spratly islands were not widely recognised by the international community. Thats true but there is ample legal opinion to suggest that these claims are at least as good as those by any other country. For example, in a 1999paper, the late Professor Christopher Joyner found no strong legal support for any of the claims. He noted that Chinas case was well documented and the Vietnamese case had major weaknesses, as did the Philippine and Malaysian claims.

Nothing in the note verbale suggests that Australia sees Chinas claims to islands as any weaker than those by other claimants. The 2016 Permanent Court of Arbitration tribunal on the South China Sea alsolacked jurisdictionto adjudicate claims concerning sovereignty between China and other states.

Australias recent intervention led to calls for it to join the United States in undertaking freedom of navigation patrols in the South China Sea. There are many reasons why Australia should not. The only freedoms of navigation under threat in the South China Sea are ones associated with rights claimed by the United States to conduct certainmilitary activitiesin the maritime zones of other countries.

Australias note verbale said nothing about its interests in the South China Sea. As the only non-bordering country other than the United States to make a statement on the South China Sea to the United Nations at this time, it can only be seen as rudimentary support for the United States in its rivalry with China. Australias regional neighbours areuncomfortable with this rivalryand may not have welcomed Australias note as a helpful intervention.

This article was first published in the East Asia Forum on the 12th of August.