Misunderstanding an armed attack

On June 17, China Coast Guard personnel violently interfered with members of the Philippine Navy who were on a resupply mission to the BRP Sierra Madre, which serves as a military outpost in Ayungin Shoal. The Chi-nese managed to collide with a Philippine vessel, damaged equipment, confiscated weapons, and caused injury.

The aftermath saw a bit of tentativeness reign, with one high-ranking official bizarrely labeling Chinese actions as a mere “misunderstanding” and “an accident.” This was later corrected by Defense Secretary Gilbert Teodoro, who rightly called China’s doings as “deliberate,” “aggressive,” and an “illegal use of force.”

But would such actions constitute an “armed attack”?

More than mere semantics, the matter is actually quite significant as it determines the propriety of resorting to the Mutual Defense Treaty (MDT), as well as the right to self-defense under UN Charter Article 51.

Article 4 of the MDT provides: “Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.”

Article 51, on the other hand, states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Related to the idea of armed attack as “aggression,” which has been defined by UN General Assembly Resolution 3314 as “the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”

So, the question now becomes: what level of violence is necessary to be classified as an “armed attack” that will trigger the right to self-defense (as well as the Mutual Defense Treaty)? This, it must be noted, is different from the question posed by — and which we will not consider here — the difference between Article 51 (i.e., “armed attack”) and the Caroline Case (i.e., the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation”).

Accepted is the idea that economic coercion will not reach such a level. Yet, there has been a dispute as to what level of lethal force can be considered as such. In one gathering of international law experts, “armed attack” is that which “includes not only an attack against the territory of the State, including its airspace and territorial sea, but also attacks directed against emanations of the State, such as its armed forces or embassies abroad. An armed attack may also include, in certain circumstances, attacks against private citizens abroad or civil ships and airliners. An ‘armed attack’ therefore is an intentional intervention in or against another state without that state’s consent or subsequent acquiescence, which is not legally justified.”

More importantly, an armed attack “means any use of armed force, and does not need to cross some threshold of intensity. Any requirement that a use of force must attain a certain gravity and that frontier incidents, for example, are excluded is relevant only in so far as the minor nature of an attack is prima facie evidence of absence of intention to attack or honest mistake. It may also be relevant to the issues of necessity and proportionality.” (Chatham House, International Law ILP WP 05/01; Principles of International Law on the Use of Force by States in Self-Defense)

The foregoing, it is posited here, is the correct understanding of “armed attack.” Such is more realistic and reflective of the realities on the ground. It is also more in line with the principle that self-defense is an inherent right.

The International Court of Justice (ICJ) is seemingly open to this view, indicating in the Oil Platforms Case that a low threshold may be enough to effect appropriate legal self-defense measures. As the ruling puts it, the ICJ does “not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the ‘inherent right of self-defense.’” This makes more sense when one considers that cyberattacks could constitute an initiation of an armed attack.

The point is that China’s actions on June 17 in Ayungin are without doubt violative of international law. Simply put, China committed “aggression” and an “armed attack.” However, the situation doesn’t necessarily demand hostile countermeasures, definitely not armed conflict, and need not trigger the MDT’s Article 4 (at least not yet). But it definitely puts the Philippines on higher ground and therefore it should act as such.

The views expressed here are his own and not necessarily those of the institutions to which he belongs.

Jemy Gatdula is the dean of the Institute of Law of the University of Asia and the Pacific and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence. He read international law at the University of Cambridge.