Australian Embassy
The Philippines

Challenges to a Rules-Based International System

Speech by  HE Amanda Gorely, Ambassador of Australia to the Philippines

Stratbase Albert Del Rosario Institute Forum

‘Challenges to a Rules-Based International System’

17 August 2018, Bonifacio Global City


Thank you Richard for that very diplomatic introduction. One thing you didn’t mention which isn’t in my cv is that I was actually born in the UK. My parents migrated to Australia when I was a child so I am one of the majority of Australians who are born overseas or have parents who are born overseas. So I do have a special affinity to the UK as well, as very proud as I am to be representing Australia.

So distinguished guests, ladies and gentlemen, my ambassadorial colleagues, let me begin by thanking Minister Field for his keynote speech. Australia welcomes Britain’s renewed engagement with Southeast Asia and acknowledges the contribution that the UK can and  will make. As a long-term partner of ASEAN and of the UK, Australia is confident that a more active, more present and more engaged Britain will support the efforts of Australia, the Philippines and our neighbours to build a secure, open, inclusive, prosperous and resilient region in which the rights of all states are respected.

I would also like to thank Ambassador Del Rosario and ADRI for hosting this event. 

Like Minister Field, I too will focus on the rules based international system – or maybe I should say RBO like Richard has mentioned or the global rules based order –  which has played such an important part in achieving security and prosperity, particularly in our region. I whole-heartedly endorse his point that the rules based international system requires our support if it is to continue to protect us and to make us more prosperous.

Today, I want to cover three main points.

  • First, I will explore the threats facing a key part of the global rules based system, the United Nations Convention on the Law of the Sea, or UNCLOS.
  • Second, I will discuss the importance of rules being developed to address new challenges and will give examples of some of the ways that the rules governing our oceans are adapting to changed circumstances.
  • Third, I will examine some of the benefits and risks associated with the negotiation of a Code of Conduct for the South China Sea.

Minister Field spoke about the risk for the international system – about threats coming from countries and leaders challenging, ignoring and undermining international law and the norms that govern how States interact with each other. There is another risk – one that is equally significant – the risk that countries do not defend the rules when they are challenged. We must place a high priority on protecting and strengthening the rules that govern state conduct.

I will focus in some detail on one of the most critical issues for our region – managing the situation in the South China Sea. This issue has the potential to undermine the security and the prosperity of our region. How the disputes are managed will have implications for a rules based international system in the Indo-Pacific and beyond. 

Let me start by emphasising that UNCLOS is immensely important to Australia. It is a simple fact that Australia is an island surrounded by one of the largest maritime domains on earth. We are dependent on the oceans for trade and security. We are responsible for one of the largest maritime search and rescue areas. We sustainably manage an extensive spread of marine protected areas and marine parks and have responsibility for world heritage environments like the Great Barrier Reef. For these reasons, Australia was one of the most active participants in the negotiation of UNCLOS. So too was the Philippines, an archipelagic state, and the UK, also an island and a maritime power.

UNCLOS remains vitally important to Australia. We believe that disputes should be resolved peacefully and in accordance with international law, which is why we support the dispute settlement mechanism in UNCLOS. One part of this mechanism – compulsory conciliation – helped Australia and Timor-Leste resolve a long-running disagreement about maritime boundaries. It can help others too.

Australia supports the dispute settlement mechanism as a matter of principle, even when the decision goes against us. 

This is more than empty words from Australia. When Timor-Leste notified Australia that it was commencing compulsory conciliation on our maritime boundary, the Australian Government argued that the commission did not have jurisdiction in the case. The conciliation commission considered but did not accept our argument or, to put it more bluntly, we lost on jurisdiction. But once we had lost our jurisdictional case, we committed strongly to the process and engaged actively with Timor-Leste and the conciliation commission. Through sustained political will on both sides and intense efforts, Australia and Timor-Leste were able to achieve an outcome. There were many challenges during the process, but we think it was a useful tool that helped us to reach agreement. It is also an example of the rules-based international order in practice, and of the benefits of this order for states who follow the rules. It enables both sides to refer a matter to an independent umpire and to manage the situation politically but also to accept the outcome on the basis that it has been decided independently. Our Foreign Minister Julie Bishop recently visited Timor-Leste as a demonstration of the fact that our bilateral relationship remains very strong even after the conciliation process.

Freedom of navigation and overflight is essential for Australia’s continued prosperity, and for the prosperity of regional countries. Every year, Australia exports almost 1 billion dollars worth of wheat to the Philippines. - which goes into making your pan de sal and pancit noodles. Freedom of navigation makes this possible. Every year, around a quarter of a million Australians visit the Philippines. Freedom of navigation and overflight make this possible.

Any illegitimate restrictions on freedom of navigation is unacceptable to Australia. This includes the freedom of Australian Defence Force assets to navigate and patrol Australia’s maritime approaches and beyond. The ability of our defence forces to operate within clearly defined international law rules without hindrance enables us to support our partners. For example in 2013, the Australian Navy, Army and Airforce deployed to assist the Philippines following Typhoon Haiyan. We regularly deploy to plan for and respond to disasters in the region. Since 2017, the Australian Navy has conducted patrols with the Philippine Navy to deter terrorism and piracy in the Sulu and Celebes Seas in support of the Philippines’ contribution to trilateral cooperation with Malaysia and Indonesia. This has contributed to a sharp reduction in kidnap for ransom, piracy and transnational crime. We conduct similar activities with other countries in the region. But without the clear rights and obligations under UNCLOS, including freedom of navigation and overflight, such actions would be much harder, if not impossible.

However, while we are steadfast in our support of UNCLOS, we recognise that the rules based order is not static and must be developed. The rules-based system needs to be able to adapt to technological changes and advances and greater knowledge, while also responding to emerging threats.

Since the conclusion of UNCLOS in 1982, the world has become more aware of the threat to the oceans posed by environmental degradation. Scientists have also developed new technologies to take advantage of the genetic resources found on the high seas. This is why states are negotiating an agreement on biodiversity beyond national jurisdiction – to protect the marine environment and to ensure all states are able to benefit from high seas resources.

There are other examples of how the laws and norms governing our oceans can change. ASEAN members and dialogue partners like Australia are working to address the IUU fishing - which is the illegal unreported and unregulated fishing - which threatens the environment and sustainable fishing on which many coastal communities depend. The adoption of the Code for Unplanned Encounters at Sea or CUES helps to manage incidents and prevent dangerous escalation. The work of the Centre for Humanitarian Dialogue to move forward discussions on common operating procedures to govern interactions between maritime law enforcement agencies and fishers operating in the South China Sea reduces the risk of clashes between rival claimants.

These are positive examples of how a rules based system can address emerging challenges. That too is part of the global rules based order: states cooperate and negotiate to resolve differences, rather than resorting to the use or threat of force. In this region, ASEAN plays a central role in such efforts. This is why Australia became ASEAN’s first Dialogue Partner in 1974 and why we continue to work so closely through the regional architecture centred on ASEAN.

At the ASEAN-Australia Special Summit in Sydney earlier this year, Australia announced a package of maritime cooperation initiatives, including a curriculum on maritime cooperation to be delivered through the Jakarta Centre for Law Enforcement Cooperation, training for coast guards, law enforcement, fisheries and customs agencies, and scholarships for defence personnel. We continue to pursue an active forward program on maritime cooperation through the ASEAN Regional Forum, and will seek to address regional security issues, including the situation in the South China Sea, in ASEAN-centred institutions, particularly the East Asia Summit.

Maritime cooperation is important for our region, including in managing tensions in the South China Sea, where we see challenges to the global rules-based order. The use of negotiations – including efforts to negotiate a Code of Conduct – is a constructive step and we urge all claimants to clarify their claims in accordance with international law and to refrain from pursuing their claims through unilateral action that destabilises the region, and increases militarisation.

As a member of the Indo-Pacific region and ASEAN’s oldest dialogue partner, developments in the South China Sea matter to Australia. As a supporter of a rules-based order, Australia believes the negotiation of a Code of Conduct for the South China Sea has the potential to help manage the disputes and decrease tensions. We urge parties to ensure the Code of Conduct is consistent with existing international rules, including those in UNCLOS. The Code of Conduct should not prejudice the interests of third parties or the rights of all states under international law, including UNCLOS. The Code of Conduct should reinforce existing regional architecture and ASEAN’s centrality, and it should strengthen parties’ commitments to cease actions that would complicate or escalate disputes, particularly militarisation.

Developing the rules through negotiation and consultation is not always easy. However, this approach is necessary to ensure the integrity of a rules-based international system based on the consent of sovereign states. Rules imposed using force and coercion lack legitimacy. 

In conclusion

  • the situation in the South China Sea represents a serious challenge to a rules based order in our region and beyond;
  • a rules based system includes mechanisms that enable the rules to develop, and the laws governing our oceans are no exception;
  • negotiating a strong and effective Code of Conduct for the South China Sea, without prejudicing the interests and rights of non-signatories, could make a positive contribution.

Minister Field concluded that it is the duty of all of us to defend a rules based international system, that the UK will do so and he hoped others would too. I think there can be no doubt that Australia is with you on that.

Since World War II, Australia has worked with other states to build a rules based system and to defend it. We will continue to do so in the Indo-Pacific region and globally.

Thank you, maraming salamat po