Friday, December 6, 2013
China's ADIZ - a brazen "Air Grab" ("Land Grab" is so passe!)
THE LANGUAGE, INTENTION, AND IMPACT OF CHINA’S ADIZ: THEFT IN BROAD DAYLIGHT
December 2, 2013
On November 23rd, the People’s Republic of China’s (PRC) Ministry of National Defense released the full text of a new East China Sea Air Defense Identification Zone (ECS ADIZ). The language itself is more subtle than the actual act. The ECSADIZ is not a reflection of China’s plan or desire to identify aircraft but rather the active imposition of sovereign regulation on all aircraft entering that area: a veiled invasion of the Senkakus using subtle lawfare to justify further presence and military operation.
Fuzzy Language – Behind the Curtain:
Even though ADIZs are recognized as legal, what China has named an ADIZ is actually subtle legal language establishing a version of sovereign airspace. Some may think the ECS ADIZ is about China identifying aircraft, but it is actually a regulatory onus placed upon those entering the ADIZ that departs from accepted practice. A comparison of the exact language in the ECS ADIZ Aircraft Identification Rules (AIR) to customary practice and international law shows how China’s ECS ADIZ imposes that regulation in a way that more practically matches sovereign airspace.
Below is the quoted AIR with commentary.
“Aircraft flying in the ECSADIZ must abide by these rules.”
Because the AIR does not specify specific aircraft types or operations, the AIR declares regulatory authority over all aircraft within ECS ADIZ. Signatories and non-signatories alike of the United Nations Convention on the Law of the Sea (UNCLOS) recognize overflight (the freedom to transit) through exclusive economic zones (EEZ’s) without submission to regulation by coastal states. Therefore, this is a back-tracking attempt to establish norms of “sovereign airspace.” The specific rules will further illustrate how this self-appointed authority attempts to establish extensive new norms by breaching accepted practice.
“Aircraft flying in the ECSADIZ must provide the following means of identification:
(1) “Flight plan identification. Aircraft flying in the ECSADIZ should report the flight plans to the Ministry of Foreign Affairs of the PRC or the Civil Aviation Administration of China”
The US maintains an ADIZ, but by Section 188.8.131.52 of US Navy’s Commander’s Handbook on the Law of Naval Operations, “(US/Canada) ADIZ regulations… apply to aircraft bound for U.S. territorial airspace and require the filing of flight plans and periodic position reports. The United States does not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace nor does the United States apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace.” This is an international norm of airborne “innocent passage” the PRC does not recognize through its words, further showing that it considers the ECS ADIZ an area of sovereign, rather than international, airspace.
(2) “Radio identification. Aircraft flying in the ECSADIZ must maintain the two-way radio communications, and respond in a timely and accurate manner to the identification inquiries from the administrative organ of the ECSADIZ or the unit authorized by the organ.”
While the UCLOS treaty does advise aircraft to,“at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority (ATC) or the appropriate international distress radio frequency,” no such agreement exists. China’s subtle declaration of that authority by covering all transits is unilateral and objectionable. Similarly, Iran attempts queries on vessels transiting within the Strait of Hormuz (SOH) traffic separation scheme. Iran hopes ships will accept this oversight, making it “customary.” It is rather amusing to listen to Bridge-to-Bridge conversations of Iranian shore stations trying to get radio operators to use “Persian Gulf,” instead of “Gulf of Arabia.”
(3) “Transponder identification. Aircraft flying in the ECSADIZ, if equipped with the secondary radar transponder, should keep the transponder working throughout the entire course.”
This will be clearly aimed at military aircraft, which will by their nature will not constantly broadcast their location and by custom are not required to abide by the concept of “due regard,” which will be discussed later. That said, I’ll at least give them that it’s not particularly offensive to ask people to identify themselves… but they’re not asking.
(4) “Logo identification. Aircraft flying in the ECSADIZ must clearly mark their nationalities and the logo of their registration identification in accordance with related international treaties.”
This is innocuous, but more important here is the reference to “international treaties” as a call to authority.
“Aircraft flying in the ECSADIZ should follow the instructions of the administrative organ of the ECSADIZ or the unit authorized by the organ. China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or otherwise refuse to follow the instructions.”
China states it will militarily respond to any aircraft refusing to “cooperate” in identification or refuse to follow the instructions. The concept of “due regard” as stated by the International Civil Aviation Organization’s Chicago Convention exempts state aircraft from regular compliance of civil air navigation regulations in International Airspace as long as transit was with “due regard for the safety of civil aviation.” China’s imposition of its regulations on all aircraft with the potential for response for non-compliance breaches that concept of “due regard,” which shows the ECS ADIZ is nothing than a back-door attempt at establishing sovereign airspace.
“The Ministry of National Defense of the PRC is the administrative organ of the ECS ADIZ.”
This ups the ante, since typical “show patrols” near the Senkakus are conducted by the paramilitary Chinese Coast Guard. In peacetime, as seen in the Taiwan Strait, the ability of China to passively illustrate air supremacy has improved; the PLAAF has seen great improvement in relation to its neighbors.
China points to other nations having an ADIZ, but the two major ECS ADIZ detractors it has in mind set up their ADIZs only in coordination with other countries: the US with Canada and Japan with the US. Even when done in protest, as Japan did when extending its ADIZ over RoC territory, it was not done without first consulting the RoC as to their planned actions. China’s announcement was unilateral.
Talking Points- Grand Designs:
China’s talking points deploy a top-coat of intentionally obtuse language in defense of the ADIZ to mask its more aggressive intentions. However, closer inspection of these official statements do show this cause behind the curtain.
If there is any confusion as to the intent of the ADIZ, PLAAF spokesman Shen Jinke stated that Chinese armed forces are capable of “effective control over the zone, and will take measures to deal with air threats to protect the security of the country’s airspace.” Foreign Ministry spokesman Qin Gang stated of the ADIZ, “Its aims are to protect China’s state sovereignty and territorial and airspace safety.” We discussed earlier how, if applied to all aircraft as the AIR does, this equates to the establishment of sovereign airspace. Monitoring, as may happen during innocent passage, and “effective control” are very different things.
Perhaps Shen and Qin’s statements illustrate an honest desire for “defense in depth” for China’s sovereign airspace that has merely been done in an awkward and illegal way. However, Qin Gang continues on to say that China “will firmly defend the territorial sovereignty over the Diaoyu islands.” Those two statements in context are clear enough. As in the language of the actual regulations, it is clear that this is an attempt to assume more sovereign controls, with the intent to eventually extend that claim of the sky to the sea.
In an attempt to allay fears, Qin Gang stated that the ECS ADIZ AIR “aims at no specific nation or target and will not affect the freedom of over-flight in relevant airspace.” Stating that escalatory actions apply equally to everyone isn’t particularly… calming.
More importantly, “effective control” in order to, in the words of Defense Ministry Spokesman Yang Yujun, “deal with air threats and unidentified flying objects from the sea, including identification, monitoring, control and disposition,” as well as the AIR enforced by the PLAAF, do not constitute “freedom of over-flight.” The only way the logic of the ECS ADIZ is internally consistent with law and precedent is China does not consider the ADIZ to be international airspace in which freedom of over-flight is required.
Yang Yujun does state that, “China has always respected other countries’ rights of free flight in accordance with international laws, and the establishment of the East China Sea Air Defense Identification Zone will not change the legal nature of relevant airspace…” However, the phrase “relevant airspace” is not reassuring if, as discussed before, China still expects to execute effective regulatory control. We’ve come back to the subtle undertone that the PRC had effectively declared the ECS ADIZ as shadow sovereign airspace.
Persian Parallels- What Next?:
The Chinese ECS ADIZ is a grander scale , but far subtler, version of the 1993 “Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea” (Its excesses are well described in the State Department’s “Limits in the Seas” No.114). By the nature of its claims, it forces both parties to come into more dangerous and escalatory engagements. In the East China Sea, much of the day-to-day business may match that of the Gulf, but due to the arena of the conflict and the economic and military strength of China, the danger will be greater.
In both cases, a regionally powerful nation attempts to wrest illegal control over a large swath of territory. As coalition forces do in the Gulf when they act in legal defiance of Iranian threats or excessive regulation, the U.S. and South China Sea regional militaries need to – and will – conduct “freedom of flight” passages through the ECS ADIZ. As happens in the Gulf, China and its detractors will most likely engage in a similar martial dance of diplomacy like those happening every year in the Straits of Hormuz and its surrounding environs. The entry of China’s new carrier into the region is only the beginning.
Unfortunately, the air is not as safe as the sea. Even in episodes in which US and Soviet ships shouldered one another, ships were not destroyed and sailors were not killed. In the air, the task is not so easy, and, if encounters increase, more pilots will may die and more aircraft may be heavily damaged as in the 2001 Hainan Island Incident. That said, aircraft regularly compare plumage over the Taiwan Strait without disaster, but several decades have likely informed codes of conduct there.
A major difference with Iran is that China can use regulation on the vast body of private entities with trade interests. Namely, business entities that do not tacitly accept Chinese control of the ECS ADIZ will likely see retaliation through regulatory actions and courts once the PRC has sufficiently noticed their recalcitrance. Nippon Airlines has already publicly acquiesced to China’s regulatory oversight.
The PRC used its heft to harangue or cajole nations into ending diplomatic relations with the RoC and to kick them out of international bodies. In a similar way, the PRC is likely to push businesses using the ECS ADIZ to recognize their control of the ECS ADIZ. Regional partners such as the US that support proper channels of adjudication for the Senkaku issue should likewise support those companies that flout China’s illegal claim to control . Unfortunately, the regulatory fury of China is likely a more motivating stick than the diplomatic adulation of its opponents in this matter. Nonetheless, even if China’s heeling of airborne businesses acts as tertiary support for establishing new norms, it doesn’t solve the problem of completely justified insubordination by foreign militaries.
The ECS ADIZ increases the number of regional red-lines for Chinese military forces, and builds a political requirement for their opponents to aggressively resist their attempt at control. As discussed in my piece, How War With China Would Start: 99 Red Balloons, wars can often start because of rational escalatory responses and rules of engagement outside the meta-considerations of strategic considerations. Jackie Kennedy wrote to Khruschev, “The danger which troubled my husband was that war might be started not so much by the big men as by the little ones.” In China, the “big men” have started playing a dangerously fast-and-loose game by laying down dangerous new red lines clearly in breach of international law.
While the ECS ADIZ is a wide area and does not create the same opportunity for regular contact that exists in the Straits of Hormuz, the Chinese maneuver nonetheless heightens the need for all sides to come into further contact: China, in order to establish its new norm and not be seen to be defied, and other regional militaries, in order to press back and ensure that China’s end-around normal adjudication procedures does not slowly become customary law. China has given itself a superficial political cover – some might argue a political necessity – to increase its points of friction with other territorial claimants.
Where the status quo was sufficiently “soft” enough to allow all regional claimants to back down, China has now forced escalation on the table. One must hope China’s “big men” have sent out far wiser “little men” to patrol their new claims.
Matthew Hipple is a U.S. Navy surface warfare officer. A graduate of Georgetown University’s School of Foreign Service, he is Director of the NEXTWAR blog for the Center for International Maritime Security. While his opinions may not reflect those of the United States Navy, Department of Defense, or US Government, he wishes they did. Follow him on twitter:@AmericaHipple. The author thanks Jeremy Renkin for his assistance.