By Dan Pinkston (@dpinkston)
China’s recent declaration of an Air Defense Identification Zone (ADIZ) in the East China Sea has stimulated much debate and concern and interpretations have varied widely. The Chinese government has asserted that the ADIZ is in accordance with international practice and will contribute to regional peace and air security. But the announcement drew protests from Japan, the United States, South Korea, Australia and others. Within days, military aircraft from the United States, Japan and South Korea defied China’s assertion that all aircraft entering the ADIZ would have to submit flight plans, maintain radio contact and follow directions from the Chinese Defense Ministry or face “emergency defensive measures.”
There are no specific international treaty provisions regulating the establishment and administration of ADIZs. About 20 countries have established ADIZs since the U.S. started the trend in the early days of the Cold War but their legitimacy and role in air safety and security are unclear.
According to the Convention on International Civil Aviation (or Chicago Convention), states have sovereignty over the airspace above their territory, including territorial waters. However, the United Nations Convention on the Law of the Sea (UNCLOS) defines territorial seas as extending only 12 nautical miles from the coast line. UNCLOS also recognizes a 200-nautical-mile exclusive economic zone (EEZ), but coastal states do not have full sovereignty within EEZs. Coastal states have sovereign control of marine resources within EEZs but all states retain the right to navigate or transit EEZs while respecting the rights of coastal states. According to UNCLOS, coastal states can, for instance, prohibit the dumping of waste and they can regulate foreign vessels seeking the extraction of resources in an EEZ. All states have the right to lay submarine cables and pipelines in the EEZs of other states, but coastal states have jurisdiction of marine scientific research conducted in an EEZ.
Foreign vessels and aircraft entering EEZs have an obligation to respect the rights and privileges of the coastal states, but this does not mean coastal states can prohibit aircraft from entering an EEZ – whether through the establishment of an ADIZ or otherwise. An ADIZ can contribute to security and orderly air-traffic control, but this depends upon the standard operating procedures (SOPs) of the coastal state. An ADIZ extends the geographic space for early warning and can give additional time to distinguish the nature and intent of approaching aircraft. The Chicago Convention distinguishes civilian aircraft from state aircraft (military or other state aircraft conducting policing or surveillance), and state parties have a specific obligation, consistent with customary law, to “refrain from resorting to the use of weapons against civil aircraft in flight and … in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.” The convention does not apply to state aircraft other than the stipulation that no state aircraft should enter the territorial airspace or land in the territory of another state party without permission.
Unfortunately, North East Asia is plagued with several territorial disputes, mostly maritime in nature, and the region’s EEZ claims have not been settled. In September 2012, China submitted to the UN a territorial sea claim surrounding the Diaoyu/Senkaku islands and, in December 2012, another claim in the East China Sea based upon the continental shelf. China’s domestic law on EEZs recognizes that, “All states, subject to international laws and the laws and regulations of the People’s Republic of China, enjoy the freedoms of navigation and over-flight in its exclusive economic zone…” UNCLOS stipulates that states “have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with [the convention and other international law].” The new ADIZ, which overlaps with others in the region, now overlays these competing territorial claims.
China and its neighbours have the capacity to differentiate between civilian airliners and military aircraft, so the likelihood of the Chinese military intercepting and taking coercive action against a foreign civilian airliner in the ADIZ is extremely remote. Furthermore, it would not be in China’s interest to harass or object to civilian airliners transiting the ADIZ since the Chinese government and Chinese airlines could face reprisals from other national governments. Compliance by civilian airline companies has been controversial. Japanese airlines at first complied with Beijing’s request to submit flight plans prior to entering the ADIZ but then refused after pressure from the Japanese government. U.S. airline companies at first declined but then decided to submit flight plans under advice from the U.S. federal government. South Korean airliners also have indicated they plan to comply, but the ROK government has declared it is not necessary. Some analysts are worried that acquiescence to Beijing’s request for flight plans strengthens China’s claims over disputed territories, but these concerns are probably exaggerated; private airline companies have no decision-making authority over sovereignty claims by national governments. Private airline operations alone are unlikely to influence competing sovereignty claims, though in the mid to long term their compliance could contribute to a narrative that is, if not supportive of China’s claims, then not adverse to them.
The most pressing problem is the increased risk of accidents, or even the deliberate use of force, between military aircraft in the ADIZ. States have different views over what constitute legitimate military activities in EEZs and ADIZs. Military activities can range from transit and navigation to military surveillance, intelligence gathering and even more menacing actions such as live-fire exercises. There is no consensus in North East Asia on which activities are acceptable. Beijing has been sensitive to the presence of military vessels and aircraft in the seas and airspace near China, and the absence of rules and norms of acceptable activities and behaviour is a recipe for misunderstanding and potential disaster.
During the Cold War, the U.S. and Soviet Union had several close calls and near collisions at sea and in the air. In 1972, the U.S. and the USSR signed an agreement on the “Prevention of Incidents On and Over the High Seas” whereby both militaries decided to take steps to avoid collisions and to refrain from executing simulated attacks and other actions that would embarrass the other side. Although the agreement applied to the high seas, it could be used as a template or reference in any efforts to establish “rules of the road” for activities in EEZs and the airspace above them as well as the airspace in ADIZs. The U.S. and China have not signed a similar agreement but in 1998 the U.S. Secretary of Defense and the Chinese Defense Minister signed a Military Maritime Consultative Agreement (MMCA) to “promote common understandings regarding activities by their respective maritime and air forces when operating in accordance with international law.” The agreement calls for annual meetings and working groups; the last working-group meeting was held in Hawaii in August 2013 to discuss humanitarian assistance and disaster relief. Unfortunately, the MMCA has failed to produce a consensus on the legitimate use of the airspace above and near EEZs.
Some analysts view the Chinese ADIZ as a tipping point marking the irreversible decline of the U.S. and its waning influence in East Asia. On the other hand, many Chinese netizens have complained that the failure to take aggressive action against foreign intruders revealed that the Chinese Defense Ministry is a “paper tiger”. In reality, the implications of the Chinese ADIZ are murky and future outcomes are indeterminate. The establishment of the zone certainly increases the risk of accidents or deliberate clashes, but disastrous outcomes are not pre-ordained. China’s management of the ADIZ will determine the outcomes; the ADIZ will not determine conflict or clashes per se. However, mixed messages from Beijing along with the Diaoyu/Senkaku territorial dispute are cause for concern that heated rhetoric could escalate into military clashes.
China seeks “a new type of major power relationship” with the U.S., and Beijing insists it is firmly committed to a “peaceful rise”. Skeptics argue that China’s intentions are clear and that the ADIZ is a form of “tailored coercion” designed to intimidate other states in the region and to establish Chinese hegemony in East Asia. Either could be right, but the ADIZ is bound to reveal Beijing’s true intentions, which will have tremendous implications for future East Asian security.
While the U.S. and China have established a forum to discuss the issue, regional ADIZs and air safety are not only bilateral problems. China’s EEZ overlaps with those of Japan, the Republic of Korea (ROK) and the Republic of China (ROC) on Taiwan. All actors—governmental and nongovernmental—wish to avoid accidents and conflict in the region’s airspace, but territorial claims, domestic politics and fervent nationalism are obstacles to compromise and collaboration. Surmounting these obstacles will require leadership and political will.
This week U.S. Vice President Joe Biden visits Beijing, Seoul and Tokyo as regional tensions are rising and the region faces the prospect of a destabilizing arms race. Any solution would be viewed as suboptimal by all actors because no actor would get everything it wants. The unfortunate truth is that a mutually agreeable compromise for all parties almost certainly would include shelving sovereignty decisions over disputed islands and a frank discussion of military activities in EEZs and the airspace above them. An adequate solution also would require a consensus on the appropriate role and administration of ADIZs in the region. These issues are difficult because they are connected with sovereignty norms, but a peaceful solution requires easing up on state sovereignty—a concept so ingrained among statesmen and diplomats that they will find it very difficult to modify.