China’s East China Sea ADIZ is Not a “Grab for Sovereignty”
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By Mark J. Valencia

China’s East China Sea ADIZ is Not a “Grab for Sovereignty”

Apr. 28, 2017  |     |  0 comments

On April 21, 2017, the Washington DC-based journal The National Interest published an article by James Holmes of the US Naval War College entitled “China’s East China Sea ADIZ Represents a Thinly Veiled Grab for Sovereignty.” The article makes several false allegations regarding China’s actions and ascribes nefarious motives to its declaration of an Air Defense Identification Zone (ADIZ) in the East China Sea. In the interest of fairness, here is another perspective on China’s declaration of an ADIZ there.

The article sets out its premise as “China is using the declaration of an ADIZ in its campaign to wrest physical control — a.k.a. sovereignty from its neighbors … The Chinese Communist Party’s word would become law. Others would obey.” This is biased hyperbole.

The establishment and implementation of ADIZs have always been unilateral and controversial. For example, China and Russia still do not recognize Japan’s ADIZ. The problem is that there are no agreed international legal norms or rules for such zones — except perhaps for the clashing general principles of “self-defense” and “freedom of overflight.” The former will always take precedence — for any coastal country.

It should be remembered that it was the US that established the precedent of an ADIZ — for itself, Japan, Taiwan and South Korea — after World War II. It did so citing “the legal right of a nation to establish reasonable conditions of entry into its territory.” It now seems to think that all other nations’ ADIZs should follow its model. But being first does not justify dictating the rules for all, especially in the absence of an international agreement on ADIZs.

The article makes several objections to China’s declaration of an ADIZ in the East China Sea, namely that “it includes both military and civilian aircraft; and its rules apply to aircraft that are only transiting the zone.” The article also expresses concern that the Chinese ADIZ includes airspace over features claimed by China but administered by Japan (the Senkakus). Let’s look at these objections objectively.

The fact that China’s ADIZ overlaps those of Japan and South Korea obviously complicates the politics and kinetic actions regarding sovereignty and maritime jurisdictional disputes in the East China Sea. This is especially so since both China and Japan now have “duelling” ADIZs over the disputed features which China (and Taiwan) also claim and call the Diaoyu islands. But this overlap of ADIZs is not unique. Others have declared ADIZs that overlap with those of their neighbors. In 2010, Japan extended its ADIZ westward to overlap part of Taiwan’s ADIZ. In 2013, South Korea extended its ADIZ southward to include submerged rocks claimed by both South Korea and China. South Korea’s ADIZ also overlaps part of Japan’s ADIZ.

Moreover, in China’s view, it is an increasingly nationalistic and aggressive Japan that has altered the status quo in the East China Sea by “nationalizing” the disputed islands and threatening to shoot down its drones in the area of ADIZ overlap. China maintains it has the same self-defense right to establish such a zone over features it claims — as did Japan — or more accurately the US “on Japan’s behalf.”

Furthermore, China is not the only country to apply an ADIZ to both civilian and military aircraft. The US claims that it only applies its rules or “requests” for prior notification to civilian — not military — aircraft, and that they only apply to aircraft destined for US territorial airspace. However, in practice, the US monitors and often intercepts with fighter jets both civilian and military aircraft that do not respond to its requests to identify themselves and their destinations. This has been particularly so regarding Russian Bear bombers flying in the US ADIZ off Alaska and California — regardless of whether they are flying on course to enter US territorial airspace. The US tries to split legal hairs by arguing that the notification “requests” only apply to civilian aircraft and that foreign military aircraft are monitored and intercepted under “another system.” But the practical effect is the same. And whatever that “other” system may be, surely China and other countries have a self-defense right to do the same.

While China may be pushing the envelope of practice or even breaking new ground regarding ADIZs, it is in large part a self-defense action stimulated by aggressive US and Japanese actions including ISR probes.

China also claims that its ADIZ rules do not “affect” normal commercial traffic and that they do not interfere with freedom of overflight. This claim requires clarification and reassurance. But so far China has not shown any hostile intent. Indeed, it has done nothing more than monitor and observe foreign military aircraft flying unannounced in its ADIZ. Meanwhile, both Japan and the US frequently intercept with warplanes foreign military aircraft in their ADIZs that do not identify themselves and their destinations, particularly nuclear-capable Russian Bear bombers.

It is true that China’s ADIZ includes a controversial requirement of prior notification for foreign aircraft entering the ADIZ, even if they are only transiting and not destined for China’s territorial airspace. But Japan has a similar requirement for Taiwanese aircraft entering its ADIZ as do Australia, Myanmar, and Taiwan for foreign aircraft entering their ADIZs.

The article also advances the premise that the air space beyond the 12 nm territorial sea is a “domain where virtually untrammeled freedom prevails.” That is simply not so. Aircraft flying over the Exclusive Economic Zone (EEZ) may not constitute a threat of use of force. That is prohibited by the United Nations Charter. For example, they must not engage in cyber-attacks. Also, according to the UN Convention on the Law of the Sea (UNCLOS), they may not undertake marine scientific research — for example, by dropping instruments into the sea — without the consent of the coastal state.

The article further alleges that China thinks that “if airspace belongs to China, so must the sea and land below.” No country including China has claimed this linkage. In fact, China’s Foreign Ministry Spokesperson Hong Lei said at the time in regards to South Korea’s expansion of its ADIZ, that an ADIZ is not “territorial air space” and “has nothing to do with maritime and air jurisdiction.”

The article also argues that if China physically challenged foreign aircraft in its ADIZ, it would have “painted itself as the aggressor.” I suppose that this label also applies to the US regarding its intercepts of Russian military aircraft in its ADIZs.

Finally, the article alleges that China insists on “innocent passage” in the “South China Sea commons … It insists that foreign ships and aircraft forswear all military activities there — the way they must within coastal states’ territorial waters”. Again this is not true. China objects only to activities that it considers threats to its national security.

This allegation is similar to the US argument that China’s interference with its military vessels and aircraft in and over China’s EEZ violates its freedom of navigation. But China argues that it is not challenging freedom of navigation itself but US abuse of this right by its military. The activities of US intelligence, surveillance, and reconnaissance (ISR) assets include active “tickling” of China’s coastal defenses to provoke and observe a response; interference with shore to ship and submarine communications; “preparation of the battlefield” using legal subterfuge to evade the scientific research consent regime; and tracking of China’s new nuclear submarines for potential targeting as they enter and exit their base. In China’s view, these are not passive intelligence collection activities commonly undertaken and usually tolerated by most states. Nor are these activities protected by freedom of navigation because they are not uses of the ocean for peaceful purposes only as required by UNCLOS. Rather they are intrusive and controversial practices that China regards as a threat of use of force which is prohibited by the UN Charter. China’s primary motive in declaring an ADIZ in the East China Sea is self-defense.

While China may be pushing the envelope of practice or even breaking new ground regarding ADIZs, it is in large part a self-defense action stimulated by aggressive US and Japanese actions including ISR probes. It has made no linkage between its ADIZ and its jurisdiction over territory or maritime areas. In sum, its declaration of an ADIZ in the East China Sea is non-threatening and such fearmongering is not justified.

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