Li Shouping, Ph.D. in international law, professor of international law at the School of Law of Beijing Institute of Technology. He is the Director of the Institute of Space Law. Through a grant from the China Scholarship Council, Prof. Li is a visiting scholar at the National Center for Remote Sensing, Air and Space Law at the University of Mississippi School of Law.
On January 11, 2010, China conducted a test on ground-based midcourse missile interception technology within its territory. The Chinese government announced that the test achieved the expected objective; that it is defensive in nature; and, it is not targeted at any country. As a scholar of international law, I would like to analyze the event and share my views with those interested in the test.
My preliminary view about the test is that it is just a game about the U.S. sales of weapons to Taiwan; about the non-proliferation of missiles; and, about the prevention of an arms race in outer space between the U.S. and China.
The test is a direct response to the U.S. Department of Defense’s decision on January 6, 2010 to sell weapons, including the Patriot III anti-missile system, to Taiwan. The sale of an American anti-missile system to Taiwan means that Taiwan will be integrated into the Theater Missile Defense System (TMD) of the United States. Therefore, the Chinese government thought the sale harmed the sovereignty of China and violated the principle of sovereignty in international law.
Secondly, China conducted the test of missile interception technology in its own territory. Therefore it can be recognized as an act of national defense. In the framework of United Nations, the test of missile interception technology has never been forbidden even though the radical international document, The International Code of Conduct against Ballistic Missile Proliferation, article 3(3) provides that the Subscribing States resolve, “To exercise maximum possible restraint in the development, testing and deployment of Ballistic Missiles capable of delivering weapons of mass destruction, including, where possible, to reduce national holdings of such missiles, in the interest of global and regional peace and security.” Actually, before China conducted the test, some countries had conducted the similar tests of missile interception.
The legal framework of United Nations lacks a specific and perfect international legal system to prevent the proliferation of ballistic missiles and the test of missile interception technology. In existing international law, the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems (ABM Treaty) is the most important law source against the proliferation of nuclear weapons and their launch vehicles. There are currently 32 international treaties on disarmament and nuclear non-proliferation treaty that are interconnected with it. Unfortunately, the United States withdrew from the ABM Treaty in December of 2001. At this point, I don’t think there is any reason to blame the Chinese for the test at this time.
Thirdly, China is actually one of the countries facing a missile threat. At present, only the United States and a few other countries have the middle ground-based anti-missile interception technology. Therefore China will greatly enhance its ability to defend its homeland with this technology. At the same time, I think China also just wanted to strike a balance in the worldwide field of missile interception technology.
Finally, after the Cold War, the United States established the dominant international structure in the world. In this situation, if there is no challenging power to balance the dominance, the international community will be dominated and international law will be as if it were national law.
In the process of weaponization of outer space, if other countries do not have enough rival space weapons to compete with those of the United States, the United States won’t come to the negotiation table to establish a legal system to prevent an arms race in outer space. It is the same in the area of ballistic missiles.
If there are rival space weapons, the United States will recognize that American space weapons can’t really protect the security of its space assets. Only international cooperation to prevent the proliferation of space weapons and arms race in outer space can secure space assets for the United States.
The history of non-proliferation of nuclear weapons supports the above views. If Russia and China had no nuclear weapons in those years, the U.N. non-proliferation mechanism would not have been established.
Of course, international peace and security doesn’t need balance. History has indicated that balance usually results in an arms race, then to war or terrorism. Only international cooperation can establish a harmonious international community and harmonious international relations.