Over the last few months more than a few commentators at home and abroad have become highly sensitive to changes in the New Zealand government’s China settings. Statements about everything from Hong Kong, cyber-security, the origins of covid-19, and the treatment of the Uighurs have been subjected to forensic scrutiny. Yet last week, perhaps lost amidst a late deluge of Olympic medals, a significant development in New Zealand’s position on China’s claims in the South China Sea went largely unnoticed.
By submitting a statement or ‘note verbale’ to the United Nations Commission on the Limits of the Continental Shelf, New Zealand has joined a growing number of countries including Australia, France, Germany, Indonesia, Japan, Malaysia, the Philippines, the UK, the US, and Vietnam, setting out their legal position on the South China Sea disputes. In doing so, the Ardern government has gone much further than it has previously been willing to go in rejecting Beijing’s expansive territorial claims.
Last week’s statement doesn’t abandon that approach, but it arguably signals the biggest change since 2016 when an international tribunal ruled on the issue. New Zealand’s note to the United Nations lays out in detail what the government sees as the applicable international law. It underscores the importance of the UN Convention on the Law of the Sea (UNCLOS) as the “definitive legal framework within which all activities in the oceans and seas must be carried out.” It reiterates clear support for the basic freedoms of navigation, overflight, and innocent passage.
But it goes further. Beijing argues that “historic rights” are the foundation of its claim over most of the South China Sea. New Zealand’s statement bluntly says “historic rights” claims have no basis in international law. It also rejects the assertion that artificial islands can generate a territorial sea, exclusive economic zone, or continental shelf. China has criticized the 2016 verdict of a tribunal that ruled against it and in favour of the Philippines as “illegal and null and void”. New Zealand’s note makes it clear that Wellington regards the 2016 tribunal decision to be “final and binding on both parties.” It pointedly reminds Beijing that “non-participation by one party does not constitute a bar on proceedings.”
Why such a detailed and expansive discussion now? First, there is a growing sense that China is consolidating its position. In the five years since the Arbitral Tribunal made its historic ruling Beijing has turned its artificial islands into military bases. It has used them to expand the reach of its airforce, coast guard and maritime militia to harass fishing and survey vessels from other countries. In March for example, more than 200 Chinese fishing vessels tied up at Whitsun Reef, a feature clearly inside the Philippines’ Exclusive Economic Zone.
Second, maritime governance is under pressure, and not just in Asia’s waters. The Ardern government’s new Maritime Security Strategy concludes “New Zealand’s maritime security operating model is becoming increasingly stressed…in the face of a range of maritime security challenges characterised by climate stress, technological change and a more complex geopolitical environment.” The use of ‘grey zone’ tactics - coercion designed to change the status quo but short of provoking war - is becoming more widespread. There is growing concern that the tactics used in the South China Sea might be seen closer to home. It was notable that this week’s meeting of Pacific Islands Forum leaders endorsed a new Declaration based on UNCLOS designed to protect existing maritime areas as sea-levels rise.
Finally, it’s surely no accident that New Zealand’s statement was released the same week that foreign ministers from across the region came together for annual discussions at the East Asia Summit. Maritime security was one of three priority issues Foreign Minister Mahuta said she’d be raising with her counterparts. New Zealand’s closest ASEAN partners will be pleased to see Wellington speaking up. The new language will be warmly welcomed in Canberra, Tokyo and Washington. And, coincidentally this week, the United Nations Security Council held its first open debate on maritime security – under India’s presidency. So there’s a shrewd bit of Indo-Pacific positioning there as well.
What’s next? So far there has been no public response from Beijing, not even on the nearly impossible to find UN Commission on the Limits of the Continental Shelf website. But even if this issue passes quietly, expect the South China Sea to keep raising challenges. In January China introduced a new Coast Guard Law. Parts of it appear to be troubling, especially when it comes to authorizing the use of force in maritime disputes like those in the South or East China Seas. Several regional countries have already expressed concerns. Japanese defence minister Kishi raised the issue in a video-conference call with Peeni Henare in April. You can bet that others will be doing the same.
And with one of New Zealand’s frigates back from a long and expensive refit in Canada the dilemmas won’t just be legal ones. Much has been made of New Zealand’s engagement with the visiting British carrier strike group currently in the region. Even Minister Henare has made a rare public point on that issue. New Zealand naval vessels haven’t operated in the South China Sea since 2017. What sort of a reception can they expect when they return to one of the focal points for maritime competition in Asia? At the very least, New Zealand’s sailors should be brushing up on what they know about the grey zone.