Tag Archive | "use of force"

China’s Trap in the Waters Around Guam

Photo Credit: UNCLOS, CIA

The beginning of August 2017 saw the United States and the Democratic Republic of North Korea (DPRK) trading rhetoric that appeared to threaten nuclear war. It is possible, however, that the entire situation was an international legal trap laid for the United States. What at first instance appears to be two irrational state actors threatening nuclear war may instead have been a plan to undermine U.S. interests in the western pacific and to bolster China’s claims of sovereignty over its expansive view of the waters in the South China Sea.

The rhetoric between the two states, and, in particular, the specifics of the threats hurled between the two states provide important clues.

On one hand, the United States gave few specifics, but threatened to end the DPRK regime, to destroy its people, and to unleash “fire and fury” on the peninsula.

On the other hand, the DPRK’s statements were specific. They might, at first blush, appear to give the United States whatever justification it might need to justify a preemptive attack against Pyongyang. After all, it did say that it was considering enveloping Guam in fire with ballistic missiles. However, in later providing its specific plans to launch four missiles set to land 30 to 40 kilometers (roughly 19 to 25 miles) off the coast of Guam, the DPRK may have laid a trap for the United States. By providing specifics, the DPRK simultaneously increased the heat of its rhetoric and pulled away any legal justification the United States might have to attack the DPRK, even under the specious Bush-era arguments for preemptive attack.

This is so because the DPRK’s statement arguably did not threaten the territory of another State. The DPRK specifically stated that it would target the missiles to land in the contiguous zone, i.e., international waters, near Guam. In doing so, the DPRK’s statement was clear that its missiles were not intended for the U.S. mainland, Guam, or even U.S. territorial waters (which extend only 12 miles offshore).

UNCLOS defines the contiguous zone as a zone of waters between 12 and 24 miles off shore. The contiguous zone is beyond the territorial waters, which extend 12 miles past the shore, and is part of the Exclusive Economic Zone (EEZ), which extends 200 miles offshore. As a part of the EEZ, the contiguous zone is considered “international waters” wherein states have limited sovereign rights in contrast to “territorial waters,” where a state retains most of its territorial rights and jurisdiction. In the contiguous zone, between 12 and 24 miles offshore, a state has the right to “prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea;” and to punish infractions of these rules. These rights also include the rights of the EEZ, which almost entirely revolve around the rights of mineral extraction and fishing. For the purposes of use of force and self-defense, however, the contiguous zone and the EEZ do not constitute the territory of a state.

The U.N. Charter prohibits the use of force except in the case of self-defense or U.N. Security Council approval (preemption, responsibility to protect, and other justifications for force are almost always backed up with additional arguments for why the proposed use of force is not a violation of Article 2). The text of article 2 specifically prohibits “threat[s] or use of force against the territorial integrity” of another state.

The rights of states are severely limited in their contiguous zones and EEZ. However, China has attempted to assert expansive rights over the South China Sea including some territorial rights in its contiguous zone and EEZ, as well as an expansive definition of its EEZ based on various outcrops of coral to which it lays claim, such as the Spratleys.

The United States, China’s neighbors, and the international community at large have consistently held that China does not have territorial rights in the areas more than 12 miles off its coasts and that some of the islands, many of which China has built up into actual man-made islands, are not “islands” for the purposes of defining China’s waters under UNCLOS. Indeed, during the war of words between the United States and DPRK, the USS McCain sailed through the South China Sea in a freedom of navigation operation in protest of China’s argument of territorial control over the water around the Spratleys.

China’s announcement of its neutrality in this matter should thus be viewed suspiciously. China’s agreement with the DPRK is that it is not obligated to participate in wars that the DPRK starts. If the missiles fall into international water, and the United States were to react by attacking the DPRK, China would be able to frame the event in a way that cast both the DPRK’s actions as an act of aggression, removing their obligation to join in self-defense, and the U.S. attack as an illegal overreaction to an act that never touched U.S. territory.

Chinese neutrality should thus be read as one giving the DPRK notice of the consequences of hitting U.S. territory or territorial waters, and not that China will not help Pyongyang retaliate against the United States if the missiles were to fall harmlessly into Guam’s contiguous zone. With its statement of neutrality, China gives the Trump administration and U.S. public hollow reassurances, and a direct warning to Pyongyang not to miss its mark.

There were at least two possible scenarios where China would emerge as the victor from this interaction:

  • There was no attack but the United States asserted ultra vires territorial rights in international waters

In this scenario, by threatening an act which did not extend to the territory of the United States, the DPRK would incite the United States to assert territorial rights over the international waters around Guam. This U.S. assertion of rights immediately bolsters China’s claims in the South China Sea and increases the possibility that China may justify the use of force against U.S. vessels attempting freedom of navigation operations through Chinese claimed waters. In this scenario, any U.S. attempts to hem in China’s illegitimate and illegal territory grab in the South China Sea is undermined by U.S. statements in response to the DPRK.

  • The DPRK launched its missiles and they landed in international water, the U.S. retaliated with an attack on the DPRK

In this scenario, the above also comes to pass but the DPRK demonstrates conclusively that while it may be a rational actor it is also China’s patsy in its aspirations for global power. If the United States were to follow through with an attack on the DPRK, China would be the state with both the moral and legal high ground to begin to build a coalition against the United States in the international community. We can assume that this is already happening as China moves to expand economically into Africa and South America, but a catastrophic event such as an attack on the DPRK would serve to immediately crystalize resistance to U.S. actions worldwide. China, and, to a lesser extent, Russia would see immediate and long term gains from such a scenario while the United States would find itself alienated from its allies, not least of which, South Korea, which would bear the brunt of the DPRK’s response.

Each of these scenarios reduces American power, both militarily and diplomatically, around the world. They increase China’s position in the world and push away allies and potential allies against China and even the DPRK.

As of this writing, it is relatively fortunate that only the first scenario has come to pass, but in asserting expanded rights in the Contiguous Zone, the United States has still given China ammunition to use in the next flare up over the South China Sea.

The only rational way forward is for the United States to reduce the temperature of the rhetoric and to attempt diplomatic solutions while also challenging China’s broad assertions of rights in the South China Sea. Using force against the DPRK or asserting territorial rights in Guam’s contiguous zone undermine U.S. policies and interests in both arenas.

In the end, though, the United States must recognize the limits of knee jerk reactions and bluster and take full advantage of the capabilities of U.S. diplomatic assets in the State Department and in other agencies. The problems that the United States faces do not all come with military solutions, and issues of international relations and policy that appear simple on their face seldom are in reality. As the saying goes, the United States needs to be playing chess, not checkers, and never more so than when nuclear weapons are involved.

 

William Kent is a 2014 graduate of the Sturm College of Law and holds a J.D., Masters of Law in International Business Transactions, Certificate in International Law, and Masters in Middle East Studies.  He currently lives in Washington, D.C.

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ISIL fighters marching in Raqqa, Syria.

Uncertainty of U.S. Government Intervention over ISIS

One of the predominant issues in recent world news has been the current actions of the Islamic State of Iraq and the Levant (ISIS) and the tensions that the U.S. and Syria now face in response to those actions.  The issue is not new, especially since the ISIS group has prospered since U.S. troops left the Syria and Iraq region in 2011, but the conflict has been escalating this year to a breaking point.  This article will explain the origins of ISIS, detail the current state of affairs in Syria and Iraq, and explain the current political struggle the U.S. has in addressing this threat, including the legal implications of taking action against the group in Syria.

As background, the Islamic State in Iraq was created by Abu Ayybu al-Masri in 2006, and was originally a part of al-Queda.  The current leader, Abu Bakr al-Baghdadi, took over control after Abu Ayyub al-Masri was killed in 2010.  The group then absorbed another militant group in Syria in 2014 and changed their name to the Islamic State in Iraq and the Levant (ISIS) in April 2013.  In February 2014, al-Queda renounced all association with ISIS in due to months of infighting, and because ISIS was considered too violent. In March, ISIS started its military campaign by first taking over the Syrian city of Raqqa, and now currently controls territory in both Iraq and Syria.  ISIS continues to terrorize parts of northern and western Iraq as well as parts of Syria.

ISIL fighters marching in Raqqa, Syria.

This undated file image posted on a militant website on Jan. 14, 2014, shows fighters from the al Qaida-linked Islamic State of Iraq and the Levant (ISIL) marching in Raqqa, Syria. Image Source: ABC News, AP.

One of the unique tensions with ISIS is that many of their fundamental principles go beyond those held by other Muslims.  ISIS believes that all of the Muslims in the world should live under one Islamic state which shall ruled by sharia rule.  The goal for ISIS is to create its own Islamic State in the region between west and northern Iraq and eastern Syria. Their ruthless tactics have not only created tensions with Western States and Syria’s President Assad, but have also created tensions with other al-Queda jihadists groups like the Jabhat al-Nusra group who is now clashing with ISIS, and starting to fight against ISIS to slow down their progress.

Despite efforts by Jabhat al-Nursa to slow progress, ISIS has continued to expand into Iraq and Syria.  They have recently taken Mosul, Iraq’s second most populated city, as well as an oil field in Syria.  Although the ISIS’ movement across the land is of significant concern to President al-Assad, the concern that impacts the U.S. is the mass casualties and humanitarian violations that ISIS commits every time it conquers another region.  Some of the crimes included killing captured Syrian soldiers, killing Kurds in Iraq, and recently the beheading of American journalist, James Foley, which occurred in Syria.  UNICEF estimated that the ISIS in now responsible for the displacement of up to 25,000 Yazidis and the death of 40 children.  As a result of the tensions in Iraq, the U.S. has lunched airstrikes into Iraq to slow ISIS’s progress, but have yet to launch airstrikes into Syria because of the potential political and legal repercussions.

One of issues with the U.S. potentially deciding to launch airstrikes in Syria is the potential legal ramifications.  One of the issues is that Syria may not be able to fight the ISIS on their own, because their counter-attack is based only a mutual dislike of the ISIS by certain groups, like Jabhat al-Nursa.   At this point, the U.S. does not have a stated policy on how they will proceed, but some now believe that the U.S. may choose to use force for Syria.  One of the questions for an U.S. action may be whether there is a justification for use of force under international law.   Part of the justification may be that the U.S. is using the threat to come to the aid of Iraq.  Another justification would be to either use a Security Council Resolution or receive consent from Assad to use force.              Depending on the political ramifications, the U.S. may decide to use either justification.

At this point there situation appears to be at a standstill.  President Obama appears to be weighing the potential of expanding the airstrikes into Syria.  Part of the issue would be if the U.S. decides to strike that action could be considered an act of aggression against Syria.  On the other hand, if Obama decides to work with President Assad it may be considered an act of support of Assad, something which could be difficult considering the allegations the Assad has been turning a blind eye to al-Queda fighters using Syria as a base camp for training.  Regardless of what President Obama decides, this is an issue that will continue to be prevalent in world news until resolved.  The key will be resolving the issue in manner that both protects the citizens at risk and ensures that tensions between the U.S. between Syria do not rise more than that in a manner that is legally justifiable.

Katelin Wheeler is a 4L at the University of Denver, Sturm College of Law, and Business Editor for the Denver Journal of International Law and Policy.

 

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Critical Analysis: U.S. Naval Ship Fires on Indian Pleasure Boat

USNS Rappahannock (The National)

A U.S. Navy supply ship fired at a small boat in the Persian Gulf on Monday, injuring three people and killing one. United Arab Emirates officials reported that the casualties were Indians on a small, white pleasure craft.

Before the incident, which some are calling a reflection of rising tensions in the region, the small boat had appeared to be heading for the Dubai port of Jebel Ali, the UAE’s main container port and a spot where U.S. vessels often stop to refuel. According to preliminary reports, the U.S. ship gave a verbal warning and warnings by radio and light signals to the boat when it was just over 1,000 yards away.  The naval ship then fired one warning shot, before finally firing the disabling shots.

The crew, mostly civilians along with a security team, on the USNS Rappahannock were reportedly acting in accordance with Navy procedures by using a series of nonlethal, preplanned responses to warn the boat. When the warnings failed to deter the smaller approaching boat, the security team on the USNS Rappanhannock fired rounds from a .50-caliber machine gun. By the time the shots were fired, the boat had approached to 100-200 yards away from the U.S. ship. UAE reports state that the boat did not receive any warnings and was moving on its rightful path.

The incident occurred near the Strait of Hormuz, where tensions have been rising as Iranian officials threaten to close the waterway in response to increased U.S. pressure. Navy vessels are weary of other approaching boats, particularly after the October 2000 suicide bombing attack of the USS Cole. The U.S. has also been increasing its military presence in the area. The pending arrival of the U.S.S. John C. Stennis aircraft carrier group will give the Navy two aircraft carriers and associated warships in the region, as well as eight counter-mine ships.

Officials reported that UAE authorities are investigating the event, and that the Emirates’government would follow up after an initial review. United States’ officials have expressed their condolences and stated that they will be conducting an investigation as well.

Aiden Kramer is a 3L at the University of Denver and the Executive Editor of The View From Above.

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Critical Analysis: Tensions Continue After Syrians Down Turkish Warplane

Following the warplane incident on June 22, when Syrian forces shot down a Turkish warplane, Turkish and Syrian relations have become further stressed by additional military response. Yesterday, Turkey responded by scrambling six fighter jets near the Syrian-Turkish border. Turkish officials claim this is a response, not only to the June 22 incident, but three additional incidents which occurred last Saturday, including Syria sending helicopters near the border.  This is not the first action issued by Turkey in regards to this incident. On Friday, Turkey began deploying rocket launchers and anti-aircraft missiles along the border. According to the AP news agency, Syrian helicopters have flown within 6.5km (4 miles) of the Turkish border.

At this time, there appears to be continued confusion amongst nations as to whether the Turkish warplane, involved in the June 22 incident, crossed over into Syrian airspace. While U.S. news source CNN, has reported that “Both Syria and Turkey acknowledged the plane strayed into Syrian airspace, but Turkey said the incursion was accidental and quickly corrected,” Turkish Prime Minister Recept Tayyip Erdogan insists that the warplane was international airspace, not over Syria, stating that the Wall Street Journal (which cited an unnamed military source within Turkey) had “unfortunately published a story which was not true.

Regardless, Syrian and Turkish relations appear to be continuously worsening with the threat of increased military action on both sides. Turkish Prime Minister Recept Tayyip Erdogan stated that Turkey was changing its military rules of engagement, any hostile border movement will be “treated as a military target” and “will be dealt with accordingly.

Brad Bossenbroek is a rising third year law student at the University of Denver and a Publishing Editor for The View From Above.

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Critical Analysis: Syria Downs Turkish Warplane

On June 22nd, Syrian armed forces shot down a Turkish F-4 Phantom Warplane, which burst into flames and crashed into Syrian territorial waters.  Syrian authorities assert that the aircraft entered its airspace at low altitude and high speed, and that its defense forces acted legally in taking it down. “There was no hostile act against Turkey whatsoever. It was just an act of defense for our sovereignty,” said Syrian foreign ministry spokesman Jihad Makdissi.

Turkish F-4 Phantom (The Aviationist)

Turkish authorities, however, are singing a different tune over the downing of its fighter jet, whose two pilots remain missing.  Turkey asserts that the plane was shot down over international waters after only very briefly straying into Syrian airspace.  While it plans to wait for further details to emerge before deciding on an official response, Turkish President Abdullah Gül has announced that “necessary steps will be taken,” and that “the consequences could be quite serious.”

In the immediate aftermath of the attack, the Turkish government requested an emergency meeting with its NATO allies, pursuant to Article 4 of NATO’s founding Washington Treaty, which allows any NATO ally to request a consultation.  NATO Secretary General, Anders Fogh Rasmussen, speaking for the alliance after the meeting, condemned the Syrian attack as “unacceptable.”

U.S. Secretary of State Hillary Clinton was harsher in her criticism, calling Syria’s action an “open and grave violation of international law.”

Others, however, are more skeptical of Turkey’s portrayal of the situation.  Some NATO members, including the United States, have privately expressed concerns that the Turkish jet was engaged in more than training exercises, as Turkey claims, and could possibly have been on a spy mission.  Turkey has admitted that the plane was equipped with surveillance equipment, but vehemently denies that it was spying.  And even the doubters note that regardless of the nature of the Turkish mission, Syria’s response was not proper. “When this happens between neighboring countries, you give a warning and then send up interceptors. You don’t just shoot down the plane,” said one source.

The Syrian attack comes at a time of great general instability in Syria and dissatisfaction with Syrian leader Bashar al-Assad.  Turkey in particular has been a harsh critic of Syria’s treatment of its own citizens, and Turkish Prime Minister Recep Tayyip Erdoğan’s personal relationship with Assad is reportedly very cold.  With Turkey already an apparent safe haven for rebels intent on overthrowing Assad, the Syrian attack on the Turkish jet will only diminish an already contentious relationship.

Thomas Scott is a rising third year law student at the University of Denver Sturm College of Law and a Senior Staff Editor of The View From Above

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University of Denver Sturm College of Law

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