Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

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0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State.

Unlike the US ADIZ or the Canadian ADIZ, China’s ADIZ requires submission of advance warning information by all commercial aircraft flying through the ADIZ, regardless of the aircraft’s final destination. The unusual nature of China’s ADIZ has stoked tensions in the East Asia dispute in recent days, with Japanese airline operators All Nippon Airways and Japan Airways initially told by the Japanese government to disregard the Chinese requirements for aircraft in transit to destinations other than ChinaJapan, South Korea, and the United States flew unarmed military aircraft over China’s ADIZ, to which China responded by putting its air force on high alert, scrambling Chinese fighter jets to the ADIZ, and announcing that it would take unspecified “emergency defense measures” should foreign aircraft refuse to comply with ADIZ advance warning information requirements.  Subsequently, the US State Department announced that while it “generally expects” that US commercial airlines would comply with China’s ADIZ, this position “does not indicate US government acceptance of China’s requirements for operating in the newly declared ADIZ.”

China’s unprecedented bid to assert some form of sovereign control over international airspace has raised concerns about its actual dispute resolution preferences in relation to both the East China Sea and South China Sea disputes.  China’s declaration of the ADIZ was also issued around the same time that its first (and to date only) aircraft carrier, the Liaoning, headed for the South China Sea for “training exercises”, accompanied by two missile destroyers (Shenyang and Shijiazhuang) and two missile frigates (Yantai and Weifang), thereafter anchoring at the Sanya naval base off Hainan province and within easy distance to the disputed Paracel islands.  The Philippines has announced that China’s deployment of the Liaoning “does not contribute to collective efforts to strengthen regional stability and instead serves to threaten the status quo”, although Philippine President Benigno Aquino has also downplayed the national security ramifications of the deployment, saying that since the aircraft carrier operations appeared “not yet operational, why should anybody consider it a threat?”.  The rapidity of the deployment also contrasted with the delay in China’s response to the maritime international relief efforts for the massive devastation and deaths caused by Typhoon Haiyan in the Philippines.  On the heels of international criticism after China’s initially smaller $100,000 pledged contribution to the international relief efforts led by the United States and Japan, China later deployed its military medical relief “peace ark” to the stricken regions in the Philippines.

China’s foregoing conduct in the past month certainly introduces questions about the actual nature of its bid to be Asia’s dominant maritime power.  It may be recalled that Chinese President Xi Jinping’s first published speech on foreign policy in January 2013 emphasized that China would “stick to the road of peaceful development but never give up our legitimate rights and never sacrifice our core national interests.” Notably in August 2013, Chinese Foreign Minister Wang Yi stressed the importance of continuing to implement the ASEAN-China Declaration on the Conduct of the Parties in the South China Sea. The Declaration specifically mandates that:

3.  The Parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

4.  The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

5.  The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including among others refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays and other features and to handle their differences in a constructive manner.

Pending the peaceful settlement of territorial and jurisdictional disputes, the Parties concerned undertake to intensify efforts to seek ways, in the spirit of cooperation and understanding, to build trust and confidence between and among them, including:

b.  ensuring just and humane treatment of all persons who are either in danger or in distress…(Italics added.)

The idiosyncratic confluence of Chinese maritime conduct across various fronts of the South China Sea and the East China Sea throughout November 2013 appears to suggest some dissonance between Judge Hanqin Xue’s laudable recommendations for continued peaceful multi-track strategic cooperation and international negotiations to resolve these disputes, and the actual operational maritime policies recently executed by China’s authoritative decision-makers.  Whether the latter would eventually subscribe to the former view, remains to be seen especially in 2014 – where we expect further developments in status of proceedings in the Philippines’ UNCLOS arbitration against China, the shaky East Asia negotiations between China, South Korea and Japan, the growing maritime strength of China’s navy, and the durability of the United States’ commitments in its “pivot to Asia” in the remaining years of the Obama Administration.

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Jordan says

December 1, 2013

Well stated Diane. Given the overall context and what you have aptly noted, it seems unavoidable that the claimed ADIZ involves an interconnected threat of force in violation of Articles 2(4) and 33 of the United Nations Charter. Perhaps it is time for a G.A. Uniting for Peace resolution before an incident involving loss of life takes place. Territorial disputes must not be an accepted basis for threats of armed force interconnected with enforcement of a unilateral proclamation of an ADIZ.

Diane Desierto says

December 2, 2013

The "threat of force" here, if any, would certainly have to be an implied one culling the same from the totality of State conduct (including assertions). I'm minded to recall Ian Brownlie's classic definition of the threat of force as one that involves "an express or implied promise by a government of a resort to force conditional or non-acceptance of certain demands of that government." China has as of this writing limited itself to stating that it will take unspecified 'emergency measures' should States violate the ADIZ requirements, but it has not directly referred to a threat of military action. For that reason, to date I'm not ready yet to conclude that China is already at the point of issuing threats of force on the United States, Japan or South Korea (all of whom have disregarded the ADIZ and flown unarmed military aircraft into what is regarded as international airspace), but China may well be on the cusp of doing so.

Jordan says

December 2, 2013

Thanks Diane. It is generally understood that enforcement of a lawful ADIZ can involve the use of force, even the use of military aircraft to force diversions of flight, a forced landing, and the targeting of aircraft that keep flying toward the coast of a state using an ADIZ, which is sometimes uphemistically called "subject to mistaken identification" of subject to "emergency measures." This is a very dangerous effort by the PRC and one, in context, violative of Article 33 of the Charter and the third express prohibition of a threat of force contained in Article 2(4). Hopefully the PRC will refrain from the actual use of force.