The US-China problem in the South China Sea: one man’s militarisation is another man’s self-defence



The South China Sea is a nexus of the China-US contest for dominance in the region. In the heat of this struggle, the United States has frequently accused China of all sorts of bad behaviour there.

Specifically, it has characterised China’s actions as “militarisation”, assertiveness and even “bullying” – sometimes rightly. These are serious allegations with serious political and legal implications. But the US is also guilty of similar behaviour.

Indeed, it is hypocritical of the US to make accusations against China, then withdraw from an arms control treaty with Russia and announce that it will place more missiles in Asia.

The US accuses China of militarising the South China Sea by deploying jet fighters and missiles on features it occupies.

In China’s view – as well as that of several Southeast Asian countries – it’s the US that has militarised the region by assertively and aggressively projecting power there.

The US, unlike China, has long had military bases in countries bordering the South China Sea, including the Philippines and Thailand.

Moreover, the US has recently significantly increased its naval and air operations in and over the South China Sea, including its freedom of navigation exercises.

The warships and planes the US sends on such operations challenge China’s territorial and judicial claims. China sees the US’ freedom of navigation patrols as “gunboat diplomacy” or even bullying.

As a senior US naval officer has put it, a freedom of navigation exercise is “an ‘in your face’, ‘rub your nose in it’ operation, that lets people know who is the boss”.

Another example of US militarisation is its frequent intelligence probes of China’s defences along its South China Sea coast. China views these probes as threats to its security.

Militarisation, it seems, is in the eye of the beholder. Both China and the US argue that their actions are merely defensive and reactive: a response to the other’s action.

The US’ intention to deploy intermediate-range missiles in Asia – assuming it can find agreeable hosts – is clearly a contingency plan against China’s land-based missiles that could endanger US ships in the South China Sea.

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The US considers China’s installation of missiles (including HQ-9, a long-range air defence system) an offensive action. But China says these weapons are defensive and deployed in response to increasing US military threats in the South China Sea.

Of course, defensive weapons can also be used offensively. Indeed, the US’ assessment of China’s actions seems focused on what China might do with its military assets – and this appears to be the basis on which the US is taking pre-emptive action.

This kind of reasoning could lead to an actual act of “pre-emptive self-defence”, which international law scholar Sean D. Murphy describes as “the use of armed coercion by a state to prevent another state (or non-state actor) from pursuing a particular course of action that is not yet directly threatening, but which, if permitted to continue, could result at some future point in an act of armed coercion”.

Now, this is a very contentious concept. Proponents of the idea cite the UN Charter, which protects “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations” (Article 51).

But to opponents, the charter should not apply in a case where an attack has clearly not occurred and is only perceived as a possibility.

Worryingly, this is the concept the US has applied rather frequently: consider its invasion of Iraq and its drone strikes in many countries. And this could be the US’ justification for using cyberwarfare against China from the South China Sea.

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Probes into foreign networks could be conducted from vessels or aircraft like the US’ EA-18G Growler electronic fighter jets, which have been deployed to Clark Air Base in the Philippines.

Do such activities contravene the UN Charter and the UN Convention on the Law of the Sea? At the very least, they could be considered aggressive militarisation.

Article 59 of the Law of the Sea provides that “in cases where this convention does not attribute rights or jurisdiction to the coastal state or to other states within the exclusive economic zone, and a conflict arises between the interests of the coastal state and any other state or states, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole”.

So the question is: which is more important? Is it the right to ‘prepare the battlefield’, or the right to ban such activities?

So the question for the “international community” is: which is more important? Is it the right to “prepare the battlefield” – as China calls it when it protests against such actions – or the right to ban such activities in areas under the coastal state’s jurisdiction? This provision was retained by Law of the Sea negotiators despite a proposal to delete it.

The rejected proposal argued that the provision was unnecessary if the Law of the Sea clearly gave only resources jurisdiction in the exclusive economic zone to the coastal state.

The point is that what constitutes militarisation with offensive intent, aggression, assertiveness or bullying is in the eye of the beholder, and cannot be unilaterally defined by any one country.

As the saying goes, people who live in glass houses shouldn’t throw stones.