Time for US to stop militarization of South China Sea
The three-day Shangri-la Dialogue that starts on Friday is set to focus on the South China Sea, and no doubt theUnited States and some of its allies will grasp the opportunity to play up what it claims China’s military expansion in the South China Sea.
However, it’s theUS that is militarizing the waters and should reflect on the potential risks.
The militarization of the South China Sea as a result of theUS’ military build-up and its frequent so-called freedom of navigation operations increases the chances of a dangerous collision. The growing risk of a possible collision raises questions about whether the existing international laws can regulate the conduct of relevant parties. If not, should China andUS sign an Incident at Sea (INCSEA) Agreement to curtail dangerous encounters.
The 1982UnitedNations Convention on the Lawof the Sea classifies the sea into various jurisdictional zones with rights and duties. These serve as a benchmark for deciding on the lawfulness of the conduct of relevant parties. Consequently, the location of an incident at sea plays a key role in judging the lawfulness of any maritime activity.
TheUS has released a statement that accuses China of conducting “unsafe” interception of a US reconnaissance plane in “international airspace” over the South China Sea. But “international airspace” is a term which cannot be found anywhere in UNCLOS. Based on theUS stance as reflected in its public statement andNavy Commander’s OperationalHandbook, the term “international space” refers to the airspace over the maritime areas beyond territorial waters, which may include airspace over both the exclusive economic zones and the high seas. This is typical of the US, as it sets its own understanding of the international lawof the sea above and beyond the shared international understanding.
Notwithstanding the fact that theUS is not a party to the Convention and habitually chooses some articles of it that are to its advantage as reflecting customary international law, thisUS-designed term does lead to serious conflict of understanding of law regarding the legal status of each maritime area and its associated airspace, in particular that of the EEZ and its airspace. While the international community aligned under the Convention takes an EEZ as a particular maritime zone governed by a specific legal regime with balanced rights and obligations between the user and coastal State, theUS as a non-party insists that the freedom of navigation and overflights exercised within and beyond EEZs “must be qualitatively and quantitatively the same as the traditional high seas freedoms recognized by international law”.
This leads to the possibility of operational confrontation at sea.
Another element that may have a bearing on the regulation of the US’ reconnaissance activities is the rules of international law regarding un-alerted air encounters between military aircraft. Many of the relevant international rules originate from the 1944 Chicago Convention on International Civil Aviation, to which both China andUS are both parties. The 1944 Chicago Convention includes Annex 2, entitled Rules of the Air, which recommends standards and best practice with regard to the interception of civilian aircrafts, but it does not apply to the interception of non-civilian aircraft.
One may also cite the China-US Memorandum ofUnderstanding on Air andMaritime Encounters. Notwithstanding the non-binding force of theMOU, this also raises the question of who would be the judge to decide on the lawfulness of the parties involved in any incident. Either side should not be the judge of itself.
It is crystal-clear that it is theUS military aircrafts that fly thousands of miles to the threshold of Chinese EEZs, to the airspace near Russia borders, and to other foreign EEZs, to conduct close-in reconnaissance, which serves as the root cause of the problem. Consequently, the best way to solve the problem is for theUS to stop such close-in reconnaissance activities.
The author is a research fellow at the Collaborative Innovation Center of South China Sea Studies, affiliated to Nanjing University.