Preventing ‘Star Wars’ in the South China Sea
In wartime, the use of laser weapons that are “specifically designed” to cause permanent blindness is prohibited under a 1995 protocol to the Inhumane Weapons Convention. However, the prohibition does not apply to permanent blindness incidentally caused by the use of laser weapons in a shooting war.
The Philippines and China unreservedly signed the 1995 protocol (extended in 2001 to non-international armed conflicts). The US also signed it, with the reservation that its use of laser weapons in combat is presumed prudent based on its real-time “assessment of information reasonably available.” The US reservation follows the legal opinion of its judge advocate general that “the use of anti-personnel laser weapons is lawful.” Its 2015 Law of War Manual maintains the lawfulness of the use of laser weapons.
In 2017, the Rome Statute of the International Criminal Court was amended to penalize as a war crime the use of laser weapons whose main combat function is to cause permanent blindness. Neither China nor the Philippines accepted the amendment. Subsequently, the Philippines withdrew from the Rome Statute. The US is not a state party.
In peacetime, laser weapons are not subject to prohibition or regulation under any existing multilateral treaty. In 1989, the US and the former Soviet Union committed to regulating laser weapons under their Agreement on the Prevention of Dangerous Military Activities. China has no similar bilateral commitment.
Consequently, major military powers have been developing laser weapons during peacetime, such as the ZM-87 “Portable Laser Disturber” by China, AN/SEQ-3 Laser Weapon System by the US, and Block 2 by South Korea.
Advances in the application of artificial intelligence to targeting systems have made the aforementioned treaty most urgent. Regardless of their design, laser weapons can endanger civilian aircraft and ships, and even the lives of ordinary fishermen, especially in the South China Sea (SCS).
The Philippine Coast Guard (PCG) recently reported that on Feb. 6, a China Coast Guard (CCG) vessel flashed a “military-grade” laser against BRP Malapascua while on a resupply mission for Filipino troops stationed on Ayungin Shoal in the SCS.
Since then denied by China, the laser attack contravenes the “jus cogens” prohibition on the threat of or the use of force to settle disputes under Article 2 of the United Nations (UN) Charter. A jus cogens prohibition gives rise to an erga omnes obligation of all states. Any breach concerns the international community as a whole.
As held in 1986 by the International Court of Justice in Nicaragua v. US, an armed attack involves the use of force of such magnitude and intensity that its consequences are loss of lives and significant damage to infrastructure or equipment. An unprovoked armed attack justifies the proportionate use of force in self-defense by the targeted state.
The PCG said the Chinese attack, right on our very own exclusive economic zone, had only temporarily blinded its officers. The incident may very well trigger a formal inquiry by the Philippines on the official position of the US regarding the applicability of the 1951 Mutual Defense Treaty between them to the new flash point. Yet, the Philippines needs to manage expectations, bearing in mind the current US policy on laser weapons.
A feasible option is to prohibit their use, whether or not designed to cause permanent blindness, in the SCS Code of Conduct.
The Philippines may also seek to revive the 2017 memorandum of understanding between the PCG and the CCG, which established communication channels on the graduated use of force in maritime law enforcement in the SCS.
Finally, the country needs to rally the UN and regional allies to exercise their erga omnes obligation to prevent Star Wars from erupting in the SCS.
Dr. Melissa Loja and Professor Romel Bagares are independent Filipino scholars of international law.
