On the 15th of December 2016, a navy ship that belongs to China seized a research submarine belonging to the US’ Navy in high seas. In a statement made by the American Department of Defence, it has been expressed that an unmanned submarine used to measure sea temperature and marine salt levels has been intercepted by a Chinese navy ship 50 miles off Subic Bay near the Philippines. In the same statement it was remarked that a notification is clearly written on top of the submarine expressing that it belonged to the United States, and that it should not be taken out of the sea ? yet the Chinese navy ship seized it nevertheless. Immediately afterwards the incident, the United States has sent a diplomatic note to China and started diplomatic initiatives for its return.
In a report published on the 14th of December by the Asia Maritime Transparency Initiative (AMTI), part of the Centre for Strategic and International Studies (CSIS), it is alleged that according to recent satellite imagery the Chinese navy has placed additional anti-aircraft weapons and missile defence systems on the outposts it has previously built in seven Spratly islands on the South China Sea. With these allegations, the relations between United States and China, which strives to increase its influence on the South China Sea, has once again become strained. Additionally, the phone call President-elect Donald Trump has made with the Taiwanese President has also been protested by China with a diplomatic note. Both the allegations of the American think tank and also Donald Trump’s phone call with the Taiwanese President further stressed the Chinese-US relations, and have resulted with the Chinese seizure of an American unmanned submarine.
With the establishment of a general framework for this incident, the question of whether the action of the Chinese Navy is in violation of international law comes into prominence. The first issue here is at which part of water the seizure has been carried out. The action of seizure has been carried out at 50 miles off the coast of Philippines. According to the 2nd article of the United Nations Convention on the Law of the Sea (UNCLOS) every nation has the right to retain its territorial waters and states cannot go more than 12 sea miles above the base limits, which they determine by using this right. In other words, states can only have 12 miles of territorial waters. Generally speaking all that is left outside of these limits are considered to be international waters. When the principle of innocent passage in international passage is valid, there is “freedom of navigation” on these waters. Also, the “flag law” is in use on international waters. According to this law, a ship that is on international waters has the jurisdiction of the state whose flag it sails under. Apart from the state that this flag belongs to, on international waters no other state can interfere with neither state nor trade ships. Even though flag law is in effect on the high seas, there are some cases when a state other than the one represented by the flag can have a power of intervention when there is presence of certain crimes. According to the UNCLOS there are 4 basic exceptions to the flag law: piracy, illegal trafficking of narcotics, slave trade and illegal broadcast from the sea. If there is certain doubt that one of these crimes is committed on a trade ship, any state may use its right to visit these ships. If the suspicion is proven correct, the state using this right has the right to take the ship to its own coast and proceed with necessary proceedings. If the suspicion is false, the damage experienced by the stopped ship has to be compensated.
Then, is the Chinese interception of the American submarine is in violation of international law? The event took place on the high seas. As stated above, there is the flag law and a freedom of navigation on the high seas. It is not possible for the American unmanned submarine to be stopped and seized as a result of committing one of the 4 crimes explained above. It is disclosed by the American authorities that the main purpose of this submarine is to collect “scientific data” such as water temperature and marine salinity levels. As there is no official explanation for the Chinese seizure of the submarine, in light of the data on hand the action of seizure carried on by the Chinese navy it is in violation of the international law.
After it is identified that this action is in violation of international law, it must be determined that whether there is enough reason to validate this action for the international law. There are certain situations accepted within international law that can validate certain illegal actions carried by states. Some of these are self-defence, reprisal and a state of necessity. In the most fundamental sense, when a state uses force against another, the use of proportional force by the state under attack out of necessity to defend itself is the definition of self-defence. It cannot be said that China used its right to self-defence with the seizure of an American unmanned research submarine. It is not possible for the American submarine to have used force on the ship belonging to the Chinese navy.
The reprisal precaution can be explained according to the international law as when a state carries out an illegal action against a state, the state acted upon may respond with another illegal action in order to stop the initial illegal action made against its sovereignty. The main principle in reprisal is that the second action that is made as a response to the initial one constitutes an action that is illegal by international law. Besides, in reprisal the state that is taking measures in return has to warn the other state and ask for the immediate termination of the illegal act carried out against itself. The state can only turn to counter measures if the conflict cannot be stopped. It is being thought that the Chinese seizure of the research submarine is a response to the disclosure of Chinese armament efforts on the South China Sea with the report published by the American think tank, and also Donald Trump’s phone call to the Taiwanese President. However, it is obvious that none of these actions constitute a contardiction to international law. In this regard, the illegal response made by the Chinese cannot be thought as a case of reprisal. As previously stated, the important matter in reprisal is a requirement for the initial act to be illegal. Then, can this situation be considered as a case of a measure of pressure, a “retorsion,” that will not result with war? We can identify retorsion as an internationally legal response made by a state against another who made actions that damaged the interests of the former. What is important in retorsion is that the action made in response is a lawful one. Fundamentally, both of these situations are justifiable and are only collide with the interests of China. China could have taken legal measures against these situations. However, China’s the unlawful seizure of a submarine cannot be considered as a case of retorsion.
As a result, the Chinese seizure of the American unmanned submarine in every respect is illegal, which produces international liability for China. The Chinese government has to release the submarine and compensate for the American losses as soon as possible in order to prevent further escalation of tensions and to solve this discrepancy in a peaceful manner. Besides, in this case America has the right to reprise or retort as counter measure.
1) http://www.independent.co.uk/news/world/asia/china-seize-us-navy-underwater-vehicle-south-china-sea-one-china-taiwan-a7480016.html, Date of access, 17.12.2016.
2) http://edition.cnn.com/2016/12/16/politics/chinese-warship-underwater-drone-stolen/, Date of access, 17.12.2016.
3) http://www.nytimes.com/2016/12/16/us/politics/us-underwater-drone-china.html?_r=0, Date of access, 17.12.2016.
4)http://www.haberturk.com/yerel-haberler/haber/10363796-cinin-guney-cin-denizini-silahlandirdigi-iddiasi, Date of access, 17.12.2016.
5) Since 1979, the United States of America had no official relations with Taiwan, a state that has separated from China and declared its independency. On this regard, Donald Trump’s phone call broke this tradition of no relations that the US has followed for 40 years. http://www.nytimes.com/2016/12/16/us/politics/us-underwater-drone-china.html?_r=0, Date of access, 17.12.2016.
6) According to the 19th article of the UNCLOS it is expressed that navigation is free unless it harms the coastal states peace, order and security. In the second clause of the article the situations that can deem a passage harmful are clearly explained.
7) According to the 87th article of the UNCLOS every state has a right to freely navigate on the open seas, no matter if they are a landlocked state.
Tacettin Çalık, Analyst, Strategic Outlook
* This article is published at the site of the International Strategic OutlookInstitute. For accessing the article: Strategic Outlook: http://www.strategicoutlook.org/asia—pasific/news-chinese-seizure-of-the-us-unmanned-submarine-and-international-law.html