Time for US to stop mil­i­ta­riza­tion of South China Sea

China Daily (Canada) - - LIFE -

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.

Newspapers in English

Newspapers from China

© PressReader. All rights reserved.