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  • Priyal Agarwal and Payal Nayak

The Dragon is Spreading its Wings: Establishing ADIZ Over the South China Sea

This article is authored by Priyal Agarwal and Payal Nayak, fifth year students pursuing B.A., LL.B. (Hons.) at Amity Law School Delhi, GGSIPU.


INTRODUCTION


On May 4th 2020, Defence Minister of Taiwan, Yen Te-fa confirmed to the world that China is gearing up to establish an Air Defence Identification Zone (ADIZ) in the debated region of the South China Sea (SCS).


SCS has been a bone of contention for several decades amongst Brunei, China, Vietnam,

Taiwan, Indonesia, Malaysia and the Philippines. Strategically it is of paramount significance to the surrounding countries, as it accounts for about $5.3 trillion in international trade and commerce. Moreover, as reported by the U.S. Energy Information Agency, it holds about 190 trillion cubic feet of natural gas and 11 billion barrels of oil reserves along the margins of the sea.


China keeping its pace with time has already set up its first ADIZ on the East China Sea in November 2013. Inadvertently or not, the area overlaps with Japanese, South Korean and Taiwanese ADIZ while adding to the rising tensions over the disputed Senkaku Island. Recently, Beijing’s Defence representative expressed that the nation is planning to set up another ADIZ over SCS, affirming that it is each sovereign state’s right and does not call for other nation’s interference.


TRACING ADIZ IN PUBLIC INTERNATIONAL LAW


​The US was the first country ever to implement ADIZ jointly with Canada in 1950 amidst the cold-war with the Soviet Union. After which several Asian countries like Japan, South Korea, India, Taiwan, Philippines, etc followed its lead and maintained exclusive air sovereignty adjacent to their territories.


The 1994 Chicago Convention on Civil Aviation broadly defines ADIZ as a specially designated airspace beyond the country’s sovereign territory with special identification and reporting procedure in the interest of national security. This exclusive sovereignty of a state extends up to the territorial sea limits of 12 nautical miles measured from the baseline of the coastal state.


​As part of the high seas freedom as enshrined in Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS) the foreign aircrafts have the right to conduct overflight and navigation operations but they are required to identify themselves before entering the zone to avoid any interception or interrogation.


Apart from the definition, international law does not provide any guidelines for its implementation or operations. Although, countries have been using it as a mechanism of self-defence deriving its source from Article 51 of the UN Charter.


China’s enforcement of ADIZ over ECS requiring aircrafts solely passing through the zone to identify themselves irrespective of its intentions to enter the national airspace shows that it views ADIZ as an extension of territorial sovereignty.


Within the SCS, Philippines Flight Information Regions (FIR) controls a large network of air traffic services, providing for flight information and alerting services internationally. FIR is responsible to ensure seamless flow of air traffic whereas the scope of ADIZ is wider and can even restrict the entry of aircrafts in the interest of national security. An FIR can even extend to high seas but must comply with the International Civil Aviation Organization guidelines. The forceful attempt by Beijing to establish an ADIZ will unequivocally converge with the neighbouring states FIR resulting in miscommunications and tragedies overseas. For instance, in 2001 an aggressive act of force was seen between US intelligence aircraft and a Chinese fighter plane over the Hainan Island of SCS resulting in the death of a Chinese pilot.


HAGUE ARBITRATION IN LIGHT OF CHINA’S RECLAMATION ACTIVITIES


​China has claimed that its reclamation activity falls within its nine-dash line policy covering over 90% of the SCS. Satellite images released by IHS Jane’s Defence Weekly evidences that it has completed constructing runaways on Woody Island in the Paracel archipelago and Fiery Cross Reef in the Spratly Islands. Currently, China is in the process of building airstrips in the Subi Reef and Mischief Reef, forming part of the Spratly Island. These runaways are reportedly long enough to host fighter aircraft and could potentially increase its surveillance over the area while denying access to the others.


​The Hague Ruling of 2016 however, debunks China’s historical claim by holding that its land reclamation activity encroaches upon the Exclusive Economic Zone (EEZ) of the Philippines. EEZ is an area beyond and adjacent to territorial sea extending to 200 nautical miles measured from the baseline. The court ruled that the Mischief Reef and Subi Reef were not naturally formed island as they were areas of land below water at high tide and according were not entitled to the territorial sea, EEZ or continental shelf. In reference to Fiery Cross Reef, the court declared it as a “rock” which cannot sustain human habitation or economic life of their own having no EEZ or continental shelf, pursuant to Article 121(3) of UNCLOS.


China has adopted a dismissive attitude towards the arbitration order but from an international standpoint, its constructions do not hold any legal grounding.


FREEDOM OF NAVIGATION AND OVERFLIGHT OPERATIONS


Under the aegis of Article 87 of UNCLOS, US has been actively conducting freedom of navigation and overflight operations over SCS. In 2019 alone, 9 such operations were reported by the US Pacific Fleet. China has blasted US patrols viewing it as an offense to its sovereignty and a threat to international peace and order. The US defending its action stated that, “it upholds freedom of navigation as a principle” and bespeak of its “commitment to uphold the rights, freedoms, and lawful uses of the sea and airspace guaranteed to all nations”.


These operations conducted by the US to challenge the unlawful and excessive claims to maritime jurisdictions of China would be hindered by the alleged establishment of ADIZ posing a serious threat to the law of the sea. China’s actions do not match its commitments undertaken in the bilateral agreement with the US government.


In late September 2015, The US Department of Defence and Ministry of National Defence of China concluded Annex III to the Memorandum of Understanding On the Rules of Behavior for the Safety of Air and Maritime Encounters (MOU). The rules categorically provide that all military aircraft encounters should ensure navigation safety through active communication to prevent any mishaps. But the enforcement of ADIZ recognizing use of force as a mechanism of self-defence, might weaken the significance of MOU, since it is not a legally binding instrument.


​In this year’s virtual ASEAN summit, pioneers from Southeast Asian nations through a strong-worded statement cautioned China over its ambitious ADIZ plan, underlining on “the importance of freedom of overflight and navigation”.


WHAT THE FUTURE HOLDS


US Secretary of State, Mike Pompeo declared China’s claims on SCS as “completely unlawful” and further stated that "The world will not allow Beijing to treat the South China Sea as its maritime empire". Presently, when the whole world is combating with the deadly Covid-19 pandemic, China has been ruthlessly expanding its horizon over the SCS. By establishing the illegal ADIZ it is indirectly challenging the authority of the UNCLOS itself. China’s zero-sum game policy over SCS is adversely affecting the south-east Asian countries embroiled in this conflict. Its action is fuelled by personal greed to obtain power and supremacy over the military surveillance. China’s official announcement on ADIZ over the disputed territory in the immediate future will ruffle some feathers among its neighbouring states and hamper regional peace.


The means to unravel the dispute is through the peaceful settlement mechanism as listed under Article 33 of the UN Charter or by means of conciliation procedure as mandated under Annexure 5 of UNCLOS. The informal nature of conciliation might open doors for an objective appraisal of issues involved. Moreover, a need for harmony to reconcile the freedom of overflight requirement under Article 87 of UNCLOS and the right to establish ADIZ over high seas is required under the Chicago Convention as well as in the Customary International Law. As a last resort, a collective call of action to halt China’s reclamation activities by the UN might calm the turbulent waters.

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