As the new US administration considers how to respond to China’s strategic challenge in the South China Sea, it must also grapple with the legal, political and operational complexities to the freedom of navigation issue. A strategic focus on China should not obscure significant differences among Southeast Asian countries on military navigation and overflight, limiting their potential support. These factors are also important for Australia to consider.
China’s harassment and close interception of US ships and aircraft undertaking surveillance operations within its 200-nautical mile exclusive economic zone (EEZ) has been a longstanding friction point in US-China relations, one that pre-dates Beijing’s island construction campaign in the South China Sea. Beijing does not recognise such surveillance as lawful, although the UN Convention on the Law of Sea (UNCLOS) permits it.
More recently, Beijing has vociferously protested freedom of navigation operations (FONOPs) conducted by the US Navy in the South China Sea aimed at challenging excessive maritime claims in the Spratly and Paracel micro-archipelagos. These surface operations, four in all since October 2015, were not aimed at contesting sovereignty per se, and were ineffective in reversing China’s artificial island-building. The Obama administration’s fitful, somewhat haphazard approach to asserting freedom of navigation attracted criticism from the start, and growing consternation since.
China is reported to be considering amendments to domestic legislation that would further deter foreign warships from entering 'Chinese waters' uninvited. The geographical scope of China’s claims in the South China Sea remains ambiguous, notwithstanding a sweeping legal defeat at the Hague arbitral tribunal court last July. Concerns remain that China could declare an Air Defence Identification Zone (ADIZ) in the South China Sea.
While a continuing focus on China is understandable, excessive claims and passage restrictions by Southeast Asian coastal states have received insufficient attention as a result. This, despite the fact that US FONOPs in the South China Sea were expressly meant to challenge Southeast Asian claimants as well as China.
In Southeast Asia only Singapore and Brunei, both small states with limited maritime jurisdictional claims, take a position on freedom of navigation that closely resembles Western maritime states. Singapore is conspicuously outspoken, identifying freedom of navigation as an 'existential issue', though it has stopped short of engaging in operational demonstrations along US lines. Elsewhere, the record is mixed including those states embroiled in territorial disputes with China.
First, Vietnam’s practice of drawing strait baselines (where a state’s 12 nautical mile territorial sea is measured from) is among the most egregious in Southeast Asia, pushing its territorial sea out well beyond the coastline in places. Vietnam has previously insisted on prior notification for innocent passage within its territorial sea. However, Hanoi is trending in the right direction, progressively aligning its domestic maritime statutes with international law. Vietnam has not protested US FONOPs and upholds the right of innocent passage within the territorial sea.
Second, Indonesia, together with the Philippines, was a major beneficiary of UNCLOS. Both won recognition as archipelagic states that allowed them to draw straight baselines between their outermost islands and enclose these waters as territorial seas. The quid pro quo in UNCLOS was that archipelagic states should grant unrestricted access to ships and aircraft through designated sea lanes, a process that both Jakarta and Manila have only partially completed.
Indonesia’s initial reaction to the recent US FONOPs was frosty, influenced by a deep angst about foreign military activities within the archipelago. President Joko Widodo’s recently reported willingness to discuss joint South China Sea patrols with Prime Minister Turnbull belies a deeper ambivalence. Jakarta’s attitude towards overflight of its airspace is if anything pricklier, as demonstrated by repeated intercepts, including of non-military aircraft, and a festering dispute with Singapore over control of the Flight Information Region that regulates civilian passenger flights east of Changi airport.
Indonesia is believed to have drawn up high-level plans for its own ADIZ last year. ADIZs carry no international legal force, being originally designed as a Cold War early-warning measure to discriminate between benign and hostile aircraft approaching national airspace. The Philippines is the only country in Southeast Asia to have a formal ADIZ, but for years has lacked aircraft to enforce it. Capacity constraints would similarly limit the practical effect of an Indonesia-wide ADIZ, even if Jakarta were to announce one. But the political consequences would still be serious, since an ADIZ declaration would perturb Indonesia’s neighbours, including Australia, and probably upset the US given its increasing interest in operating combat aircraft from Northern Australia. Worst of all, China would be gifted a golden opportunity to react in kind by declaring its own ADIZ in the South China Sea, with more obvious strategic overtones.
Third, Singapore is among those worried about potential restrictions on military navigation and overflight reportedly under consideration by Malaysia. Since ratifying UNCLOS, Kuala Lumpur has claimed a dubious authority to restrict military activities within its EEZ, while maintaining straight baselines that it is not entitled to. Malaysia, to be fair, has responsibly and consistently upheld international navigation and safety in the Malacca Strait. But there are concerns that Kuala Lumpur plans to illegitimately restrict the transit of submarines within its EEZ and to limit military access to surrounding airspace. This should be concerning not only for Singapore, but Malaysia’s other partners within the Five Power Defence Arrangements (FPDA). These include Australia, which stages maritime surveillance flights out of the Peninsula and participates in regular FPDA exercises that extend into the South China Sea.
The US and its partners therefore face an uphill challenge if they aim to garner support for a regional order that enshrines navigational access and overflight for foreign militaries across Southeast Asia. The vast majority of the region’s maritime domain is already subject to some form of jurisdictional claim, including overlapping and excessive claims.
Concern not to incur China’s wrath reinforces caution on the South China Sea in particular. Yet creeping jurisdiction is a broader coastal-state phenomenon, driven by security and economic nationalist imperatives. It is the case that maritime Southeast Asian states increasingly fear Chinese encroachment from the South China Sea, but appetite to cooperate on freedom of navigation is still inhibited by local distrust of immediate neighbours, as well lingering unease about intervention by Western maritime powers.