China’s military might has been ramping up with the ongoing tensions in the South China Sea. Video / CCTV via AP
OPINION:
New Zealand has made an unprecedented diplomatic entry into the legal and political stoush that has engulfed the South China Sea.
Last week, New Zealand's Permanent Mission to the United Nations in New York sent a diplomatic note to the United Nations Secretary-General.
The note deals with a rangeof law-of-the-sea issues relating to the application and interpretation of the 1982 United Nations Convention on the Law of the Sea in the South China Sea.
New Zealand is one of 168 parties to the convention and has a strong interest in how it is being applied in the South China Sea, especially with respect to the freedom of navigation.
The New Zealand statement comes after China publicly reacted to the May 2021 Queenstown bilateral meeting between Jacinda Ardern and Scott Morrison which reaffirmed basic principles of the freedom of navigation in the South China Sea.
Australia and New Zealand also raised serious concern over the continued militarisation of disputed features and an intensification of destabilising activities at sea in the region.
It also comes on the brink of New Zealand preparing to join a British-led naval flotilla headed by the aircraft carrier HMS Queen Elizabeth as part of regional Five Power Defence Arrangement military exercises.
The New Zealand statement joins 21 other interventions that have been made since 2020 in response to a Malaysian submission to a specialised UN technical body assessing continental shelf claims.
Personnel with the New Zealand Defence Force are preparing to join the aircraft carrier HMS Queen Elizabeth in theSouth China Sea. Photo / Andrew Linnett, AP, File
In 2019, Malaysia sought to assert a continental shelf claim in the South China Sea, which China has objected to through UN processes. There is nothing exceptional about China's response based on its past practice, but the reaction it has gathered from countries such as Australia, France, Germany, Japan, the UK, and US and regional neighbours such as Indonesia, the Philippines and Vietnam has only intensified the diplomatic and legal position of all the interested countries.
It would appear there has been a carefully planned response to China's diplomatic statements after the Malaysian claim.
That a significant number of countries outside the region have made diplomatic interventions makes clear their interest in the South China Sea and their determination to ensure China's actions do not create a legal precedent.
New Zealand's statement clarifies its position on some of the most contentious legal issues in the South China Sea, while also making clear it does not take a position on the competing regional territorial claims.
First, New Zealand reaffirms the provisions of the 1982 Convention, which it first joined in 1996.
Second, the freedom of navigation and overflight in the high seas, and the navigational right of innocent passage in the territorial sea is endorsed.
Third, it makes clear that claims to historic rights in the South China Sea have no legal basis.
Fourth, it makes clear that continental countries are not able to claim the status of an archipelago under the convention.
Fifth, it restates the distinctions drawn in the law of the sea between islands and rocks and the different entitlements those feature enjoy.
Finally, New Zealand makes clear that the 2016 South China Sea arbitration decision concerning the Philippines and China is final and binding on both those countries.
Although China is not directly mentioned, there can be no doubt it is directed towards China. All of the legal positions New Zealand challenges are ones repeatedly asserted by Beijing in recent years.
China will take note of the New Zealand diplomatic intervention and a formal response through the United Nations can be expected.
This is the diplomatic pattern that has been followed since 2020, especially when countries outside the region, such as Australia and the US, have made similar statements.
New Zealand does not normally take such a forthright and public position on these international law issues.
In June, it joined a UN "Group of Friends" comprising 96 other countries seeking to support the 1982 convention.
Whether this will protect New Zealand from any trade repercussions launched by Beijing remains to be seen. China is New Zealand's largest trade partner and two-way trade exceeds NZ$33 billion. The China-New Zealand Free Trade Agreement has also been upgraded this year.
Donald R Rothwell. Photo / Supplied
The trade relationship therefore appears solid. Australia, on the other hand, is currently caught up in an ongoing Chinese diplomatic and trade freeze dating back to 2020 when it took the lead in calling for an inquiry into the outbreak of Covid-19.
China's grievances against Australia are wide ranging, including Canberra's foreign interference laws.
Wellington is to a degree one step removed from these issues. From a strict law-of-the-sea perspective there is nothing exceptional about New Zealand's statement. It predominantly reflects orthodox interpretations on the law of the sea.
It does not single out China. A number of leading western maritime countries and naval powers have made clear they reject China's unilateral efforts to change the law of the sea as it applies in the South China Sea.
New Zealand has now joined that chorus.
• Donald R Rothwell is Professor of International Law at The Australia National University's College of Law.
