Thayer Consultancy Background Brief

ABN # 65 648 097 123

South China Sea: Australian
Navy Exercises Traditional
Freedom of Navigation
April 23, 2018

We request your insights into recent reports that China challenged the rights of
Australian warships to transit the South China Sea. We have three specific questions:
Q1: Is this a case of Australia exercising its freedom of navigation, whilst expressing
support for the United States’ freedom of navigation in in the South China Sea?
ANSWER: There are two distinct meanings of freedom of navigation, the traditional
and the special U.S. program. Traditional freedom of navigation relates to the right of
all maritime powers to sail on the high seas (roughly international waters). The U.S.
freedom of navigation program is a multidimensional one aimed at challenging what
the U.S. views as excessive maritime claims.
Royal Australian Navy (RAN) ships were exercising traditional freedom of navigation
to sail on the high seas from the Philippines and Malaysia to Vietnam for a scheduled
visit.
Australia supports all other countries, including the United States, in their exercise of
traditional freedom of navigation rights. So far Australia has refrained from
participating in U.S. freedom of navigation operational patrols (FONOPs)
Q2. Is this a case of Australia implicitly expressing support for Vietnam's sovereignty
claim in the South China Sea?
ANSWER: Absolutely not. There is a clear distinction in law between sovereignty claims
to land features and freedom of navigation on the high seas and maritime zones such
as a foreign country's Exclusive Economic Zone (EEZ). In addition, freedom of
navigation also includes a more restricted right to innocent passage through a foreign
country's 12 nautical mile territorial sea. RAN ships sailed on the high seas as well as
through Vietnam's EEZ and then entered Vietnam's territorial sea for an approved
visit.
Vietnam, unlike China, asks that countries notify their intention to sail through its EEZ
in advance for safety reasons. China require prior permission.
Q3: How do you explain the Chinese response?
ANSWER: It is little understood by the media or the general public that China
challenges foreign warships and aircraft on the grounds that they are passing through
a security alert zone and in so doing are posing a threat to the security of Chinese
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warships. China's security alert zone is vague and covers any area surrounding a
Chinese warship.
In other words, China is not basing it challenge on international law. It has not
promulgated baselines around any of the land features (rocks) and artificial islands
that it occupies in the Spratlys. This is necessary to demarcate a territorial sea of 12
nautical miles. China has not designated any territorial sea maritime zones in the
Spratlys.
Also, the Arbitral Tribunal ruled that there are no islands in the legal sense in the
Spratlys archipelago and therefore no land feature is entitled to a 200 nm EEZ. The
only land features that are entitled to a 12 nm. territorial sea are rocks. Low-tide
elevations (rocks under water at high tide) are not entitled to a territorial sea (this
includes Subi and Mischief Reefs which China occupies).
Where China has promulgated an EEZ, such as off Hainan Island, China has insisted
that foreign military ships and aircraft must seek prior permission. The United States
disagrees and thus challenges China's assertion.
China's challenges to traditional freedom of navigation are motivated to support
China's ambit claim to historical rights over the South China Sea. to the extent that
any country alters its behaviour to avoid antagonizing China, it is viewed in
international law to acquiescence to China's claim. The Arbitral Tribunal has ruled that
China’s claim to historic right is also invalid.

Suggested citation: Carlyle A. Thayer, “South China Sea: Australian Navy Exercises
Traditional Freedom of Navigation,” Thayer Consultancy Background Brief, April 23,
2018. All background briefs are posted on Scribd.com (search for Thayer). To remove
yourself from the mailing list type, UNSUBSCRIBE in the Subject heading and hit 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.