Troubled Skies Above the East China Sea

 

In its 2014 Report to Congress, the USCC underscores China’s challenge to the U.S. position in East Asia.

The U.S.-China Economic and Security Review Commission (the “Commission” or “USCC”) recently issued its 2014 Annual Report to Congress. The Commission’s mandate is ‘‘to monitor, investigate, and report to Congress on the national security implications of the bilateral trade and economic relationship between the United States and the People’s Republic of China.’’

In developing its report, the Commission traveled from South Korea to Australia, but its request for an official visit was denied by Chinese government authorities. Despite this limitation, the USCC was able to effectively investigate a wide range of issues, from China’s role in global issues like weapons proliferation and energy consumption to bilateral concerns like disputes before the World Trade Organization and access to U.S. capital markets. Of particular interest to the Asia-Pacific region is the Commission’s findings regarding Beijing’s attempt to expand China’s sphere of influence by aggressively advancing its security interests in East Asia.

According to the Commission, Beijing has concluded that the U.S.-led East Asia security architecture does not benefit China’s core interests. Instead, Beijing promotes a vision of regional security that marginalizes the United States in favor of an Asian-based order with China at its center. President Xi Jinping appears to have tightened his grip on foreign policy and is actively seeking to link China with its continental and maritime neighbors. In this vein, Xi has proposed regional trade corridors based on the precedent of the historic ancient Silk Road and Java trade routes, a campaign designed to project China’s image as a “responsible stakeholder” while increasing access to markets and natural resources.

The USCC notes, however, that Beijing’s efforts to improve China’s image in South and East Asia has been marred by the use of military might and economic power to extract political and security concessions from neighboring states. In particular, Beijing’s increasingly coercive actions towards its maritime neighbors in the East and South China Seas have created headwinds for its diplomatic efforts to cultivate positive relationships in the region. Among the key actions highlighted by the Commission was Beijing’s unilateral establishment of an Aircraft Defense Identification Zone in the East China Sea (the “ECS ADIZ”) in November 2013.

An ADIZ is an area of airspace adjacent to, but beyond, the national airspace and territory of the state, where aircraft are identified, monitored and controlled in the interests of national security. The legal basis for these extraterritorial zones is found in customary international law related to anticipatory self-defense and state practice dating back to the Cold War. Administration of an ADIZ is restricted by the principles of necessity and proportionality that limit a state’s ability to exercise self-defensive measures, including the use of force, as well as standards set forth in international aviation and maritime law. Given its roots in custom, ADIZs are characterized by variances associated with each state’s unique practice; these variances are then subject to countervailing actions by states challenging newly declared norms. This legal dynamic helps explain the political and military maneuvering in the region in response to the ECS ADIZ.

The ECS ADIZ extends more than 300 miles from Chinese territory and overlaps with nearly 50 percent of an existing Japanese ADIZ in the area. The ECS ADIZ also encompasses contested territory, including the Senkaku Islands (or Diaoyu Islands) which are administered by Japan, but claimed by China and Taiwan.

The Commission found that “[t]he new East China Sea ADIZ is the boldest of China’s recent attempts to demonstrate control, sovereignty, and administration of disputed areas in the East China Sea.”

Unsurprisingly, the ECS ADIZ has increased tensions between China and Japan. The Commission reports that on two occasions in 2014, Chinese SU-27 fighter aircraft came within less than 200 feet of Japanese military reconnaissance aircraft in the ECS ADIZ – encounters that threatened the safety and security of the aircraft and crew. Chinese air incursions around Japan increased 78 percent in the six months between October 2013 and March 2014 when compared to the previous six-month period.

The zone also aligns with a significant portion of a Chinese exclusive economic zone (EEZ) – maritime areas adjacent to the territorial sea where coastal states exercise certain sovereignty rights related to the economic development and protection of natural resources. The Commission found that Beijing likely perceives the ECS ADIZ as augmenting China’s legal position and justification for its maritime territorial claims. China has previously asserted special security privileges in the EEZ, despite the fact that this position has no basis under the functional jurisdiction of EEZ set forth in the 1982 United Nation Law of the Sea Convention (UNCLOS).

China dramatically demonstrated this position on April 1, 2001 when a Chinese F-8 military aircraft intercepted and collided with a U.S. EP-3 military reconnaissance aircraft above the Chinese EEZ in the South China Sea. Following the EP-3 incident, some Chinese commentators had advocated the establishment of an ADIZ above the EEZ in the South China Sea. The ECS ADIZ and China’s recent military flight operations may consequently be interpreted as a continuation of China’s broad assertions of the authority granted by the EEZ.

In response to these assertions, the United States has used missions like the EP-3 flight to reinforce its policy of maintaining complete high seas freedom of overflight in international airspace, including above the EEZ. Consistent with this posture, following establishment of the ECS ADIZ in 2013, the United States promptly flew two B-52 bombers through the zone without complying with China’s aircraft identification rules.

The United States is not alone in its condemnation of the ECS ADIZ. The European Union, Japan, South Korea, Australia and others have all rejected China’s establishment of the zone. The Association of Southeast Asian Nations (ASEAN) issued a statement asserting that the freedom of overflight above the high seas should be preserved in accordance with “universally recognized principles of international law” established under the UNCLOS and International Civil Aviation Organization (ICAO) standards issued pursuant to the International Convention on Civil Aviation (the “Chicago Convention”). For the purposes of customary international law, such expressions of rejection are important to prevent the assertions of one state from crystalizing, through assumptions of opinio juris, into unwanted customary norms.

In March of this year, the United States and Japan submitted a letter to ICAO challenging the ECS ADIZ as violating the Chicago Convention. The ICAO Council, as a specialized UN agency, is certainly an appropriate forum for the ECS ADIZ question and it has adjudicated similar disputes in the past – its first case involved a clash over traffic rights between states with rivaling territorial claims, India and Pakistan. The ICAO Council has also investigated disputed military interceptions of aircraft traversing international airspace, a scenario that could arise during Chinese enforcement of the ECS ADIZ. To date, however, ICAO has not acted to resolve the dispute.

Regardless of whether at ICAO or another forum, the ECS ADIZ has increased the risk of miscalculation and miscommunication among aircraft operating in the region. To lessen the threat of such dangers, the legal ambiguity regarding the implementation of ADIZ must be resolved. The recently announced U.S.-China Memorandum of Understanding (MOU) On the Rules of Behavior for the Safety of Air and Maritime Encounters is a step forward on this point. However, the document is not legally binding and it is incomplete. For example, the annex regarding air-to-air encounters is reportedly not complete and the scope of application does not include non-signatory parties.

What is also clear, as the Commission reports, is that China is challenging the status quo and thus the U.S. position as the primary power in East Asia. The ECS ADIZ is symptomatic of a greater strategic competition. As the United States continues to rebalance its foreign policy to meet this contest, Washington will need to reinforce allies and signal its commitment to maintaining and fostering the region’s security architecture. Washington’s response to the ECS ADIZ is critical to this effort. Indeed, the world is watching the troubled skies above the East China Sea.

Roncevert Almond is an international lawyer and partner at The Wicks Group. He has advised the USCC on legal issues related to the ADIZ.