After much internal debate and soul searching, the US has conducted its first 'Freedom of Navigation' operation in the South China Sea for several years. It will not be the last and we are fast approaching the point at which Australia needs to decide whether it will assert, with more than ministerial statements, its 'legitimate interest in the maintenance of peace and stability, respect for international law, unimpeded trade and freedom of navigation and overflight in the South China Sea'.

We can only do this in the current situation by dispatching a naval force to operate — for however brief a period — in the vicinity of one or more of the Chinese artificial islands in the South China Sea.

The term 'Freedom of Navigation' spans a wide range of ship activities and it would be more accurate to describe the rights that would be asserted by our naval forces in this context as 'Freedom of Naval Operations'. There are legitimate fears that the sweeping, indeed perhaps absolute, 'blue land' claims by China to the South China Sea could, in the worst case, have long-term implications for the free passage of merchant shipping through this area. But this dispute is now much more a matter relating to the rights of warships to operate freely on the high seas.

In view of the sweeping nature of some of China's claims over the South China Sea, it may be enough just to enter the general area to send the necessary message. Much of the debate over the South China Sea has been confused by previous clashes between the US and China. But these have occurred in waters customarily recognised as China's legitimate Exclusive Economic Zone (EEZ) generated by its mainland and principal offshore islands (although China has yet to formally declare its EEZ). China takes the view that military operations, especially surveillance operations, should not be conducted in other countries' EEZs without authorisation. The US views an EEZ as conferring economic rights, not creating operational restrictions; Australia shares this view.

However, no presently Chinese-held facility or feature in the Spratlys has the capacity to generate an EEZ, something notably confirmed by a recent Global Times editorial. Isolated natural features that are clear of the water at high tide and cannot sustain economic life create only a territorial sea of twelve miles. Isolated features which are not clear at high tide create no sovereignty, and nor do artificial installations, however large. The latter simply have a 500m safety zone, for safety, not sovereignty.

The one island in the Spratlys which is large enough for an argument to be made as to its possessing an EEZ (Itu Aba or Taiping) is occupied by Taiwan.

This raises the question as to the mode in which the transit will be conducted.

If the warships are to go within 12 miles of any facility, their passage will need to be made in relation to the artificial islands which were built on natural features that did not show above high tide, rather than those which did. It is important that the operation is not compromised by suggestions that there is a breach of any legitimate claim to a 12 mile territorial sea around a dry feature. Given that China has 'buried the evidence', the judgement will have to be based on records, surveys and photographs which predate the artificial islands; and it will have to be arguable in the court of world opinion.

The point is that a demonstration of 'Freedom of Naval Operations' will need to be just that; conducted by warships undertaking the normal range of activities which they would on the high seas, including manoeuvring, the use of active and passive sensors and even the operation of shipborne helicopters. One important point to stress: they would not be undertaking 'innocent passage', which implicitly restricts a ship, even a warship, purely to the activities required to conduct safe navigation by the most expeditious route if required to enter another nation's territorial waters.

The transit should be undertaken by Australian units alone. The operation should be conducted without warning and it should not be a matter for an immediate press release. We need to be restrained in the publicising of our activities. Ideally, it is something we should be able to acknowledge after the event; in fact, it would be best if the acknowledgement came after several such events.

This is, despite the absolute alignment of our interests, not a question simply of supporting the alliance with the US, but of demonstrating our commitment to the rules-based global order. The nature of the Chinese claims — rather than the fact that China may have claims to particular islands and rocks within the South China Sea — is incompatible with the 1982 UN Convention on the Law of the Sea. We cannot let them stand.

In the event, it is unlikely we will be able to confine ourselves to a single demonstration. The operation will need to be repeated, at least annually, until China finds some way out of its conceptual and legal mess.

Photo: Australian Defence Image Library