As the US and China spar over maritime clashes in the South China Sea, New Zealand has set out its view of some of the issues at play – with a viewpoint unlikely to find favour with Beijing

New Zealand has weighed in on long-running and heated territorial disputes in the South China Sea, with a carefully-worded diplomatic note that nonetheless sets the country in opposition to Beijing.

The intervention has come as the United States and China trade barbs over the latter’s claims in the region and whether it is adhering to the United Nations Convention on the Law of the Sea.

It also comes on the heels of a five-year anniversary of an historic 2016 tribunal ruling in favour of the Philippines, and against China, over the latter’s attempts to claim large swathes of the South China Sea as its historical territory.

In 2019, Malaysia made a submission to a UN commission seeking to establish the limits of its continental shelf in part of the South China Sea, drawing the ire of China which has argued it has historical claims to the disputed territory.

A number of countries have commented on China’s arguments, and Aotearoa has now joined in with a diplomatic note earlier this month.

New Zealand’s submission pointedly noted the country “does not take a position on competing claims of territorial sovereignty in the South China Sea” and did not wish to comment on the substance of Malaysia’s submission.

Nonetheless, the points of emphasis in the submission set the Government in opposition to China, and alongside a number of other nations both with and without territorial claims.

There was no legal basis for states to claim ‘historic rights’ for maritime areas in the South China Sea, or for continental states to claim the special protections of island nations with ‘archipelagic status’ (both actions attempted by China).

The submission said the “universal and unified character” of the convention “sets out the definitive legal framework within which all activities in the oceans and seas must be carried out”.

While New Zealand had negotiated and signed a number of multilateral maritime agreements after the UN convention entered into force, they were consistent with its overarching rules and did not undermine them. 

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Those rules “explicitly preserve[d] the freedom of the high seas, including freedom of navigation and overflight, as well as the right of innocent passage within the territorial sea”.

The submission said there was no legal basis for states to claim ‘historic rights’ for maritime areas in the South China Sea, or for continental states to claim the special protections of island nations with ‘archipelagic status’ (both actions attempted by China).

It also noted that artificial island building could not be used by countries to create an exclusive economic zone or continental shelf; satellite images have shown China developing military installations on artificial islands in the area.

The submission concluded by noting that “non-participation by one party to a dispute does not constitute a bar to proceedings”, a pointed albeit indirect reflection on China’s refusal to engage with the tribunal process in 2016.

While the diplomatic note does not name China at any point, it may nonetheless attract the ire of Beijing.

'Irresponsible remarks'

Earlier in the year, a Chinese foreign ministry official accused Prime Minister Jacinda Ardern and her Australian counterpart Scott Morrison of making “irresponsible remarks” after the pair released a joint statement expressing serious concern over developments in the South China Sea, “including the continued militarisation of disputed features and an intensification of destabilising activities at sea”.

The last National government also faced some blowback over the issue, with then-Defence Minister Gerry Brownlee raising hackles at a 2016 security forum in Beijing when he called on all countries to reduce tensions in the South China Sea.

But the area remains high on New Zealand’s list of concerns: speaking to the NZ Institute of International Affairs last month, Ardern said the Government had “serious concerns over the situation in the South China Sea, including artificial island building, continued militarisation, and activities which pose risks to freedom of navigation and overflight”.

In a briefing to incoming Foreign Affairs Minister Nanaia Mahuta last year, the Ministry of Foreign Affairs and Trade said the territorial disputes had been long-standing, but noted a recent “intensification of tension resulting from continued militarisation of the region, a range of incidents at sea, and greater assertion of legal positions by some claimants and other partners”.

“New Zealand has an enduring interest in peace and stability in the South China Sea, in its preservation as a trading route for New Zealand goods and in the upholding of international maritime law.”

“The US has been stirring up trouble out of nothing, arbitrarily sending advanced military vessels and aircraft into the South China Sea as provocations and publicly trying to drive a wedge into regional countries, especially countries concerned."

The US and China clashed over the issue at a recent UN Security Council meeting to discuss maritime security, with US Secretary of State Antony Blinken expressing concerns about “dangerous encounters between vessels at sea and provocative actions to advance unlawful maritime claims”.

“The United States has made clear its concerns regarding actions that intimidate and bully other states from lawfully accessing their maritime resources. And we and other countries, including South China Sea claimants, have protested such behaviour and unlawful maritime claims in the South China Sea,” Blinken said.

China’s deputy UN ambassador, Dai Bing, argued the US itself had become “the biggest threat to peace and stability in the South China Sea” and noted it had not joined the UN convention.

“The US has been stirring up trouble out of nothing, arbitrarily sending advanced military vessels and aircraft into the South China Sea as provocations and publicly trying to drive a wedge into regional countries, especially countries concerned,” Dai said.