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Informed debate about how to manage our relations with both China and America is desperately needed, writes Professor Barry Hindess.

TWO POINTS STAND OUT from the events surrounding Senator Dastyari's resignation from Labor's front bench.

First, while the senator kept repeating “I made a mistake”, neither he nor his critics got round to telling us precisely what his mistake was.

He had asked two Chinese-owned businesses to pay bills that he did not wish to pay at the time and at least one of these companies had links with the Chinese Government. It was generally agreed that he had broken no rules and that he had properly declared these payments, as the current rules covering senators accepting gifts require.

Second, Dastyari was reported to have made comments on the South China Sea dispute that were at odds with the policies of both the Coalition Government and the Opposition. Perhaps this was his mistake. Commentators suggested that Dastyari had compromised himself by accepting Chinese money, while Prime Minister Turnbull said that it looked like a case of cash for comment.

Yet there was no discussion of the policy issues raised by these comments. The PM's "cash for comment" comment may have been intended to head off debate by suggesting that, because it was paid for, what Dastyari said about the South China Sea was not even worth discussing.

What happens if we take Senator Dastyari's comments seriously?

He was quoted in a Chinese-language report as saying at a press conference for Chinese-language media while standing alongside one of his Chinese donors,

“The South China Sea is China’s own affair [and] Australia should remain neutral and respect China on this matter.”

This did not look good for Senator Dastyari, yet, since we do not have a full transcript, it is difficult to know whether this quote accurately reflects his observations. It would not have been hard for any qualifications he may have made – about, say, China needing to negotiate with its neighbours and the conventional maritime doctrine of the freedom of the seas – to get displaced in the process of translation from his original English into Mandarin and back into English again.

Yet, even with such qualifications, the injunction to 'remain neutral and respect China in this matter' would have landed him in trouble. Australia's bipartisan view is that international maritime law applies in this matter — particularly the ruling of the Permanent Court of Arbitration at the Hague that China has no historical rights within the nine-dash line area of the South China Sea. When it is a matter of following the law or not following it, what is there to be neutral about?

The most charitable interpretation of Dastyari's remarks would be to see them as calling for an Australian effort to understand China's views. If this was his intention, a presser for Chinese-language media might not have been the best place to make his point but it should not be dismissed out of hand. It is surely time for a serious Australian attempt to understand the geo-political concerns of its huge neighbour to the north.

Former Labor senator and foreign minister Bob Carr has been reported as making similar points to Dastyari, in comments following an address by Paul Keating to the Australia–China Relations Institute at the University of Technology Sydney, warning that Australia should not view “China through a Washington lens”.

He also suggested that

“ ... a lot of Australians would think in the East China Sea we should be neutral ... we should move with like-minded opinion, not make a flamboyant gesture of running patrols that won’t resolve anything.”

Yet, showing no charitable inclination towards Dastyari, Malcolm Turnbull and Scott Morrison both demanded that Bill Shorten take action against the senator — interpreting his apparent failure to do so as a sign of weakness. Shorten says that he counselled Dastyari without revealing any details of their conversation. Perhaps he advised him, not unreasonably, to confine his public statements to his own portfolio area. Neither Shorten nor Opposition spokesperson on foreign affairs Penny Wong publicly disowned Dastyari's statement, although he was clearly rebuked by a senior Labor frontbencher Tony Burke.

If we wished to understand China's views on this matter, we could begin by acknowledging several points.

First, Australia's record with regard to international law is far from impressive. It has engaged in illegal American-led military actions and, in its conflict with Timor-Leste over their joint maritime boundary in the Timor Sea, it has refused to submit to dispute-resolution and openly sabotaged Timor-Leste's attempt to bring the issue before the Conciliation Commission at the Hague, by preventing a crucial Australian witness from leaving the country. Moreover, Australian governments have routinely ignored crucial provisions of the UN 1951 Convention Relating to the Status of Refugees concerning non-refoulement and the requirement that refugees should not be penalised for seeking asylum.

Second, while China was a founder member of the United Nations and a permanent member of the UN Security Council, the Communist Government of the People's Republic of China's (PRC) was not recognised by the UN before 1971, largely because of American opposition. This changed only after President Nixon and Henry Kissinger's visit to Beijing in 1971. As a result, the Chinese Government was unable to take part in formal UN discussions – on maritime law or anything else – before that time.

Third, there is little in the history of China's relations with the West that would lead it to respect the law of the sea. In fact, it must be tempting for China to regard the most recent iteration of the law of the sea, UNCLOS, which came into force in 1994, as only the most recent in a very long line of unequal treaties imposed on China by Western imperialism. The PRC Government was able to participate in the negotiations leading up to UNCLOS. But this happened at a difficult time for the PRC Government, between 1973 and 1982, while it was just beginning to feel its way around the UN system.

China would also be aware of the extent to which international maritime law has adapted to U.S. interests following America's heavy-handed behaviour before finally agreeing to Part X1 of UNCLOS and its unilateral assertion in 1945 of its control over areas of the high seas contiguous to the U.S. coast. Unlike China, America pulled off this last trick without suffering the indignity of a foreign power sending in naval patrols to show that the Gulf of Mexico and large areas of the Atlantic and Pacific were not exclusively American lakes.

Bearing these points in mind, there is no reason to expect China to be much impressed by the Permanent Court of Arbitration's ruling that China had no historical rights over the South China Sea.

Now that the U.S. has set itself up as the chief enforcer of international maritime law, China has reason to view America as a threat and maritime law as an important tool in its armory. Some may argue that China should take a different view but Australia's problem is to live with China as it is, not as we might like it to be. To be neutral in this context is remain sceptical about the application of maritime law in the South China Sea and to be cautious about supporting American efforts to enforce it.

If, as many of us believe, it was a serious mistake for Australia to join an illegal UK/U.S.-led invasion in the Middle East, drifting into accidental war with China in the wake of provocative U.S. naval patrols would be no better.

There may still be time for the informed debate about how to manage our relations with China, our largest trading partner, and America, our most powerful ally, that Australia desperately needs.

Barry Hindess is emeritus professor at Australian National University’s School of Politics and International Relations.

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