By Mary Fides A. Quintos*
Explaining Chinese actions in the Woody Island in the Paracels, on February 17, 2016, Chinese Foreign Minister Wang Yi announced that the deployment of surface-to-air missile launchers as well as a radar system is a limited but necessary national defense facility for the exercise of its rights to self-defense under international law.
The notion of self-defense arguably is highly subjective. Legal scholars contend that there is no precise guideline on the inherent right to self-defense in case of an armed attack under Article 51 of the UN Charter. Anticipatory self-defense as recognized in customary international law is the use of force even before an actual attack. It has a set of preconditions which include necessity and proportionality to the imminent threat, which can also be de- pendent on value judgment.1 A state arming itself could be in preparation for self-defense either in anticipation of or following an armed attack.
In the current situation in the South China Sea, there are states that are defending their right to freedom of navigation on one hand, and China defending its claimed territories on the other hand. When there is a mutual perception of threat, a common interpretation of the rights under international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS) is imperative.
China has, in many instances, called out the US as stirring up trouble to harm China’s sovereignty and security interests under the cloak of freedom of navigation and overflight. China maintains that freedom of navigation is preserved in the South China Sea, and that the issue on challenges to navigational freedom in the area has been overhyped, thereby creating tension that affects peace and stability in the region. The placement of the HQ-9 missiles in the Paracels can be interpreted as China’s response to US presence in the South China Sea, especially following its latest freedom of navigation operation (FONOPs) within 12 nm of Triton Reef.
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When the USS Lassen sailed within 12 nm of Chinese-controlled Subi Reef in the Spratlys in October 2015, China monitored, followed, and warned the US vessel to leave the area. Reiterating its “indisputable sovereignty” over the Spratly Islands and their adjacent waters, China added that it “will take all necessary measures as needed to respond to any deliberate provocation by any country.”2
In January 2016, the US deployed the USS Curtis Wilbur within 12 nm of Triton Reef in the Paracel Islands. Accord- ing to the Chinese Foreign Ministry, “Chinese troops stationed on the islands, naval ships and airplanes made an immediate response, conducted identification and verification against the US navy vessel and warned it to leave the area.”3 It added that the US’ action in the territorial waters of Triton Reef was a violation of international law because it was conducted without China’s authorization.
Viet Nam, which is also claiming sovereignty over the Paracels, had a strikingly different response compared to China. Its Ministry of Foreign Affairs Spokesperson Le Hai Binh pronounced that “Viet Nam respects the right of innocent passage through the territorial sea conducted in accordance with relevant rules of international law, in particular the United Nations Convention on the Law of the Sea (Article 17)”.4
Aside from the US, the Royal Australian Air Force (RAAF) also conducted patrols in the South China Sea under Operation Gateway in the latter part of 2015. Although it was unclear if the RAAF entered within 12 nm of Chinese- controlled features in the South China Sea5, Australian Air Marshal Leo Davis observed that “China’s challenges against these patrols – radio broadcasts warning aircraft to leave the area – have not changed, although the frequency has increased”.6
In December 2015, a Philippine civilian aircraft flying in the vicinity of several reefs in the South China was also asked repeatedly by the Chinese Navy to leave the area.7
It is to be noted that nothing in Article 17 of UNCLOS requires prior consent before conducting innocent passage in the territorial sea. Even passage of warships is recognized in the territorial waters under Article 29 of the Convention. Freedom of navigation and overflight are also upheld in Article 58 of UNCLOS, without the need for prior notification with the coastal sate.
Based on the actions and statements by the US, Australia, Vietnam, and the Philippines, it can be concluded that China’s understanding of specific UNCLOS provisions is not shared by countries in the region. Consent to navigate is required only in internal waters (waters landward side of the baseline such as rivers and bays), hence, the opposition by states against prior notification in the exercise of innocent passage and freedom of navigation in other maritime zones is crucial; non-opposition could mean concurrence to China’s claim of “indisputable sovereignty” in the South China Sea. It can only be expected that the US and Australia, and perhaps some Southeast Asian states also, will continue exercising freedom of navigation operations beyond the 500 meter safety zone granted by the LOSC around artificial islands and within the 12 nm territorial sea of naturally formed features.
Offense or self- defense?
Aside from the issues surrounding the concept of self-defense in international law, scholars of international relations also recognize that in a system of anar- chy, many of the means a state uses to increase its security decrease the security of other states. John Herz, a realist theorist also stated that in a security dilemma, a state would interpret its own measures as defensive, while the actions of other states would be potentially threatening.8 What could be self- defense for one state is an offensive action for another.
China’s behavior of asserting de facto control over the waters and airspace in the South China Sea by warning other states to leave the area or suffer unspecified consequences, are particularly threatening to the basic notion of freedom of navigation. It can be argued that states within and without the region are more inclined to intensify the exercise of freedom of navigation and overflight in the South China Sea specifically because of the response that they are getting from the Chinese side. China’s restricting “unauthorized” access in the South China Sea because of its so-called “indisputable sovereignty” can be recognized as customary international law if left unchallenged. Consequently, countries in the region, especially those that have claims in the South China Sea, would welcome the presence of the US and other major players that have the capability of challenging China.
China, on the other hand, construes the presence of external actors in the region and their activities in the South China Sea as eliciting tension from which it has to defend itself. Viet Nam was the first country in the region to feel threatened by the missile deployment due to its proximity to the Paracels. These missile batteries have a range of 200 km (125 m) and are considered the most significant weapons China has placed in the area using the argument of self-defense.9
The mere presence of missiles could add fuel to an already volatile situation, especially since China already feels provoked with what it perceives as unauthorized navigation and overflight in the South China Sea.
The tension specifically between the US and China with regard to the exercise of freedom of navigation in the South China Sea highlights the importance of having a common understanding on the interpretation and application of international law. Any challenge to a rules-based global order can easily be perceived by the community of nations as offensive. Hence, security in the region can be enhanced if there is an effort to harmonize views with what is more widely accepted and practiced by the majority of states in order to mitigate perceptions leading to a security dilemma. There is great value especially for major players in the region to be mindful in treading the thin line between offense and self-defense.
About the author:
*Mary Fides A. Quintos is a Senior Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Foreign Service Institute. Ms. Quintos can be reached at [email protected]
This article was published by FSI.
1 Leo Van de Hole, “Anticipatory Self – Defence Under International Law”, American University International Law Review. Vol. 19 No. 1 (2003) 2 Lu Kang, Foreign Ministry Spokesperson, Regular Press Conference, 27 October 2015. Available from http://www.fmprc.gov.cn/
3 Lu Kang, Foreign Ministry Spokesperson, Regular Press Conference, 1 February 2016. Available from http://www.fmprc.gov.cn/
4 Le Hai Binh, Foreign Ministry Spokesperson, Remarks on US Navy’s FONOP. Available from http://www.mofa.gov.vn/
5 “Australian Military Plane Flies Over Disputed South China Sea”, Defense News, 16 December 2015. Available from http:// www.defensenews.com/story/defense/2015/12/16/australian-military-plane-flies-disputed-south-china-sea/77458100/
6 “RAAF now being routinely challenged by Beijing in South China Sea”, Sydney Morning Herald, 3 February 2016. Available from http:// www.smh.com.au/federal-politics/political-news/raaf-now-being-routinely-challenged-by-beijing-in-south-china-sea-20160203-gmkvkb.html 7 Rupert Wingfield Hayes, “Flying close to Beijing’s new South China Sea islands”, BBC News, http://www.bbc.com/news/magazine-35031313 8 John Herz, “Idealist Internationalism and the Security Dilemma”, World Politics vol. 2. No.2 (1950)
9 Michael Green, Bonnie Glaser, and Zack Cooper, “Seeing the Forest Through the SAMS on Woody Island”, 18 February 2016. Available from http://amti.csis.org/seeing-the-forest-through-the-sams-on-woody-island/