By Mark J. Valencia

On 10 August, CNN and other leading media hyped a verbal exchange between a US intelligence-collection plane and China’s forces occupying rocks in the South China Sea. https://www.cnn.com/2018/08/10/politics/south-china-sea-flyover-intl/index.html The reports implied that China was in the ‘wrong’ and that the U.S. was in the ‘right’. But as usual in such matters, it is not that simple.

A US Navy Poseiden 8-A carrying journalists on what can politely be called a ‘public relations’ mission purposely flew over or ‘near’ four of China’s sensitive occupied features there–Subi Reef, Fiery Cross Reef, Johnson Reef and Mischief Reef. The mission seemed designed to provoke a response from China for the journalists to witness. Six times, a radio voice identifying itself as “the Chinese military” announced that “China has sovereignty over the Nansha Islands including the reef and its adjacent waters” and requested the plane to “leave immediately and keep off to avoid any misunderstanding.” Each time, a US Navy crew member responded, “I am a sovereign immune US naval aircraft conducting lawful military activities beyond the national airspace of any coastal state,” the crew replied, adding, “In exercising these rights guaranteed by international law, I am operating with due regard for the rights and duties of all states.” The U.S. policy is that “We will sail, fly and operate wherever international law allows,” and “The United States will not be ‘warned off’ from lawful operations in international waters and airspace. http://www.fireballnotes.com/fod-fireballs-observations-of-the-day-august-12th-through-15th-2018/

But China insists that it “has a right to take necessary steps to respond to foreign aircraft and ships that deliberately get close to or make incursions into the air and waters near China’s relevant islands, and provocative actions that threaten the security of Chinese personnel stationed there. https://www.reuters.com/article/us-china-southchinasea-philippines/china-rebuffs-philippines-presidents-south-china-sea-rebuke-idUSKBN1L10M4

This incident and other similar ones raise several significant questions. First, what does international law allow –and not allow? The US position is that China’s 9-dash historic claim to much of the South China Sea has been denied by an international arbitration panel and that any claim to territorial waters not based on land is illegitimate. This is so. But applying that fact to these incidents is a red herring. It does not mean that China has no basis for any claims or actions to protect its rights and security regarding these intelligence-gathering flights over or ‘near’ its claimed and occupied features—except for mischief reef. It was originally a low tide elevation and therefore cannot be claimed by China—at least accrding to the UN Convention on the Law of the Sea (UNCLOS).

But for the other features, China may be in effect employing an Air Defense Identification Zone (ADIZ) surrounding its military outposts on the features –not unlike those the US has around some of its island bases on outposts in the Western Pacific like Guam https://en.wikipedia.org/wiki/Air_Defense_Identification_Zone Indeed, these incidents may be a simple result of a misunderstanding or different interpretations of the proper procedures for implementing an ADIZ.

The establishment and implementation of ADIZs have always been unilateral and controversial. 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 over flight”. The former will always take precedence – for any coastal country.

The U.S. established the precedent of an ADIZ – for itself and 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.

An ADIZ is a transition zone in which aircraft are identified and if necessary ‘controlled’ by air traffic and defense authorities. The U.S. Navy’s Commander’s Handbook on the Law of Naval Operations states that the ADIZ applies only to commercial aircraft intending to enter U.S. sovereign airspace, with a basis in international law of “the right of a nation to establish reasonable conditions of entry into its territory”.The manual specifically instructs U.S. military aircraft to ignore the ADIZ of other states when operating in their coastal areas. It says U.S. military aircraft not intending to enter foreign national airspace should not identify themselves or otherwise comply with ADIZ procedures established by other nations. This in part may explain the differences in practice and policy –and the incidents–between China and the U.S.

Although technically the US regulations do not pertain to military aircraft, the U.S. military closely monitors and requests information of all objects entering the ADIZ. https://en.wikipedia.org/wiki/Air_Defense_Identification_Zone_(North_America)If they do not respond to ground control’s satisfaction they are intercepted by fighter jets. This has been particularly so regarding Russian Bear bombers flying in the US ADIZ off Alaska and California extending in some areas to 300 nautical miles (nm) off its coast–regardless of whether they are flying on a course to enter U.S. territorial airspace. https://www.rferl.org/a/u-s-military-jets-intercept-russian-bombers-off-alaskan-coast/29222731.html; https://foxtrotalpha.jalopnik.com/inside-the-russian-bomber-that-s-been-flying-america-s-1795375146The U.S. tries to split legal hairs by differentiating rules for commercial and military aircraft. But the practical response to foreign military aircraft is the same–especiallyif they do not identify themselves.

China may be employing mini-ADIZs around each of its occupied features extending well beyond a possible 12 nm territorial sea. It would be helpful if China were to formally state the obvious—but it is obviously employing what it calls ‘warning zones’ around these features –and the U.S. is well aware of that. It is true that China’s declared ADIZ in the East China Sea includes a controversial requirement of prior notification for foreign aircraft entering the ADIZ –even if they are only transiting it 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 ‘rules’ of ADIZs and the procedures for declaring and implementing them continue to be varied and controversial.

Second, the US ‘spy’ planes may be violating China’s rights. Electronic warfare (EW) techniques have become increasingly intensive and intrusive and the UN Charter and subsequent legal developments have not taken them into account. An important legal and political question is whether some of the EW-related activities the U.S. conducts near China’s occupied features can be considered inconsistent with the UN Charter, i.e., a threat of use of force against the personnel and assets there.

The US intelligence planes’ routes and exactly what data they collect –and from where –is classified – and likely to remain so. Are they always flying outside China’s 12 nm territorial sea (adjacent waters) claim from the features it occupies? While the ownership of the features is disputed, whoever owns them can claim territorial air space over the features and 12 nm of the waters extending from them. This means that no foreign aircraft can overfly them without permission. But this has happened before. In 2015, a U.S. B-52 bomber flew within 2 nm of Cuarteron Reef, a Chinese high-tide feature that possesses a potential territorial sea and above it, territorial airspace. The U.S. admitted it was in the ‘wrong’. https://www.bbc.com/news/world-asia-china-35140802

But let’s assume the aircraft were outside the 12 nm limit. There are still certain behaviors that China considers unacceptable to its national security and international law. Admittedly these are frontier questions in international law – but with apologies to Bob Dylan “the times (and the law) are achangin’ ” The practice of countries is influencing the evolution of relevant international law. Because the U.S. is not a party to UNCLOS, it has little say in interpreting this evolution. One example might be the meaning of “threat of use of force”.

Another important legal and political question is whether some of the EW-related activities the U.S. conducts near China’s occupied features can be considered an illegal survey for strategic information about China’s “adjacent waters”.

According to Raymond Wang https://thediplomat.com/2017/11/quantum-communications-and-chinese-ssbn-strategy/ “water quality will become a new factor in underwater communications”. Water quality –including clarity, suspended solids, salinity, temperature, organic content and other routinely measured parameters –will affect communication with China’s nuclear powered and armed ballistic missile submarines (SSBNs)–its principle deterrent of a first nuclear strike against it. According to Wang, SSBNs might patrol in murky areas but would have to regularly go to clearer areas to receive signals. This means that potential adversaries like the U.S. could monitor “clear areas” and have a “good probability of locating an SSBN”. To do so it would have to distinguish ‘clear’ from ‘murky’ areas.

It is now known that remote sensing from satellites and surveillance aircraft have for some time undertaken surveys over others’ territory, territorial waters and EEZs without the permission—or even their knowledge—as required by international law including UNCLOS. The fact that knowledge of water quality can give a strategic advantage in a nuclear war is just the latest in what is becoming a seemingly endless drip of similar disclosures. Such ‘research’ involving a country’s territorial waters without its permission is illegal. Moreover, the spy planes could be conducting surveys of the territorial sea from just outside it. In China’s view, this would probably not be “operating with due regard” for its rights. Indeed it would probably consider this an abuse of rights under UNCLOS.

China maintains it has a right to take necessary steps to respond to provocative actions that threaten its security and that of Chinese personnel and assets on the features. If the U.S. –as an outspoken champion of military transparency–would reveal exactly what it is that the U.S. is doing in China’s near seas, all could evaluate for themselves whether or not it is ‘legal’. If it cannot or will not provide access to these facts, the argument that its operations are legal should be discounted.

*Mark J. Valencia, Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China

This piece first appeared in the IPP Review. https://ippreview.com/index.php/Blog/single/id/775.html