After a long wait, the US Navy resumed FON (Freedom of Navigation) operations in the South China Sea (last carried out in 2012) on 27 October, with USS Lassen sailing within 12 nautical miles of Subi and Mischief Reefs, and conducting actions incompatible with innocent passage, in order to make it clear Washington does not recognize any territorial waters arising from the artificial islands built by Beijing through reclamation on low-tide elevations. On the other hand, in line with long-standing American policy, the US also emphasized that it was not taking sides concerning the underlying territorial disputes, and that freedom of navigation operations were aimed at any excessive maritime claims, underlining this by also sailing through waters around features claimed by Vietnam and the Philippines. Commentary has focused on the need for further FON cruises, and on China’s response, including the possibility of Beijing declaring an ADIZ (Air Defense Identification Zone).
Freedom of Navigation is indeed one of the pillars of both the post-war open economic system drawn up during the Second World War, and of the traditional American reliance on the ability to move troops by sea (in line with the British Empire, and its tandem Royal Navy – Indian Army). Therefore, contesting Chinese maritime claims is indeed an important policy goal, and furthermore one that should be shared by other maritime democracies. However, we must ask ourselves whether this is all. Furthermore, the time may have come to consider whether agnosticism on territorial claims is a sustainable policy, and whether the US can afford to see allies like the Philippines lose further territory to the PRC.
Even if FON operations become a regular feature and China’s extensive reclamationwork turns out to pose no obstacle to peace-time navigation by merchantmen and warships, we would be fooling ourselves if we thought that there is no price to pay for failing to confront Beijing. First of all, an extensive network of man-made islands could make it much more difficult to operate in the region in the event of hostilities. Second, by condoning the violent taking of contested territories, the principles enshrined in the UN charter and in UNSC Resolution 502 would risk becoming irrelevant.
Concerning the latter, being neutral concerning territorial disputes can be interpreted in two ways. Up to now in the South China Sea it has meant Washington not supporting any competing claims. However, this is no longer enough. The Philippines’ marines have been making a heroic stand at BRP Sierra Madre, guarding Second Thomas Shoal (Ayungin Shoal / Ren’Ai Jiao) while surrounded by hostile ships bent on preventing their resupply. However, given the much larger forces available to China, this strategy may not be sustainable. Furthermore, despite an existing mutual defense treaty and growing capacity building assistance (also provided by Japan), Washington has de facto been signaling Beijing that the occupation of the Second Thomas Shoal would not be considered an attack on Filipino territory. This increases the risk of a miscalculation, should China come to believe that the US will stand on the sidelines in such an scenario. Mutual defense treaties are not of much use if restricted in their geographical scope.
An alternative policy would be to embed USMC personnel in their Filipino counterparts, while explicitly announcing that despite still not taking sides on the ultimate issue of sovereignty, the US considered the Second Thomas Shoal (and other disputed territories currently under actual control by Manila) to fall within the purview of the US-Philippines Mutual Defense Treaty. American policy would then be to actively seek to prevent changes on the ground, including expelling Filipino military personnel from the Second Thomas Shoal, while still pressing for a mediated (or arbitrated) solution, in line with US support for the international arbitration bid currently under consideration by the Permanent Court of Arbitration. Preserving the status quo requires extensive work on the BRP Sierra Madre, or its replacement by another ship or structure. In other words, America would be moving from passive neutrality to active neutrality. From merely declaring that differences must be settled peacefully in accordance to international law, to helping freeze the status quo so that revisionist powers are not tempted to gain in the field of battle what they should only be claiming in the diplomatic table or the courtroom.
A precedent for this are Japan’s Senkaku Islands, also claimed by China and Taiwan. After some doubts and conflicting reports on whether the US-Japan Security Treaty extended to them, Washington explicitly announced that they did, while remaining non-committal about ultimate sovereignty. Japan, having greater maritime and naval capabilities than the Philippines, employs a different strategy to protects the islands, shielded by the country’s coastguard without any permanent ground deployment. Should Tokyo decide, or be forced, to permanently deploy some ground troops, it would also be positive to see USMC personnel embedded in them. We could also mention the occupation of Iceland during the Second World War, before Pearl Harbor.
Being neutral in a territorial dispute does not just mean supporting its peaceful resolution in accordance with international law. That is only the case when all sides involved renounce the use of force. When one refuses to take this step, and regularly resorts to it, notwithstanding the fact it is mostly of the non-lethal kind, the only alternative to appeasement is active neutrality, meaning a deployment designed to provide a tripwire, lessening the risks of miscalculation and signaling that aggression will not be condoned. Only this can provide the necessary incentives for a future peaceful resolution of the conflict, where Washington would indeed be neutral concerning its outcome, yet having avoided neutrality regarding how it came about.
Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be foundhere.
Two years ago on this day, the Ministry of National Defense of the People’s Republic of China issued a statement on establishing the East China Sea Air Defense Identification Zone. According to “the Statement by the Government of the People’s Republic of China on Establishing the East China Sea Air Defense Identification Zone,” three PRC domestic laws and administrative rules were addressed as the basis of the East China Sea ADIZ within the following text:
The government of the People’s Republic of China announces the establishment of the East China Sea Air Defense Identification Zone in accordance with the Law of the People’s Republic of China on National Defense (March 14, 1997), the Law of the People’s Republic of China on Civil Aviation (October 30, 1995) and the Basic Rules on Flight of the People’s Republic of China (July 27, 2001). The zone includes the airspace within the area enclosed by China’s outer limit of the territorial sea and the following six points: 33º11’N (North Latitude) and 121º47’E (East Longitude), 33º11’N and 125º00’E, 31º00’N and 128º20’E, 25º38’N and 125º00’E, 24º45’N and 123º00’E, 26º44’N and 120º58’E.
It is highly unlikely that the East China Sea ADIZ may effectively terminate all the foreign air reconnaissance maneuvers.
Further, based on this government statement, China’s Ministry of National Defense issued an announcement of the aircraft identification rules for the East China Sea Air Defense Identification Zone of the People’s Republic of China as the following text:
The Ministry of National Defense of the People’s Republic of China, in accordance with the Statement by the Government of the People’s Republic of China on Establishing the East China Sea Air Defense Identification Zone, now announces the Aircraft Identification Rules for the East China Sea Air Defense Identification Zone as follows:
First, aircraft flying in the East China Sea Air Defense Identification Zone must abide by these rules.
Second, aircraft flying in the East China Sea Air Defense Identification Zone must provide the following means of identification:
Flight plan identification. Aircraft flying in the East China Sea Air Defense Identification Zone should report the flight plans to the Ministry of Foreign Affairs of the People’s Republic of China or the Civil Aviation Administration of China.
Radio identification. Aircraft flying in the East China Sea Air Defense Identification Zone 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 East China Sea Air Defense Identification Zone or the unit authorized by the organ.
Transponder identification. Aircraft flying in the East China Sea Air Defense Identification Zone, if equipped with the secondary radar transponder, should keep the transponder working throughout the entire course.
Logo identification. Aircraft flying in the East China Sea Air Defense Identification Zone must clearly mark their nationalities and the logo of their registration identification in accordance with related international treaties.
Third, aircraft flying in the East China Sea Air Defense Identification Zone should follow the instructions of the administrative organ of the East China Sea Air Defense Identification Zone 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 refuse to follow the instructions.
Fourth, the Ministry of National Defense of the People’s Republic of China is the administrative organ of the East China Sea Air Defense Identification Zone.
Fifth, the Ministry of National Defense of the People’s Republic of China is responsible for the explanation of these rules.
Sixth, these rules will come into force at 10 a.m. November 23, 2013.
For the most part, military observers and political commentators have analyzed the matter from the political dimension. What is lacking is an examination of the validity of these three PRC domestic laws and rules as well as their association with the PRC government statement and the subsequent aircraft identification rules.
After reviewing the three laws and rules, i.e. the Law of the People’s Republic of China on National Defense, the Law of the People’s Republic of China on Civil Aviation and the Basic Rules on Flight of the People’s Republic of China, noted by the PRC East China Sea ADIZ statement (hereafter, the statement) and the associated aircraft identification rules, we may conclude the following flaws:
First, the effective dates of these three laws and rules noted by the statement are indeed questionable.
For the Law of the People’s Republic of China on National Defense, it was initially put into force on March 14, 1997, as noted by the statement. Likewise, the Law of the People’s Republic of China on Civil Aviation was originally put into effect on October 30, 1995, also noted by the statement. Nevertheless, according to the “Decision of the Standing Committee of the National People’s Congress on Amending Some Laws” issued by the Standing Committee of the National People’s Congress on August 27, 2009 and subsequently put into effect by the “Order No.18 of the President of the People’s Republic of China”, the Article 48 of the Law of the People’s Republic of China on National Defense was revised. Similarly, contents or wordings of the Article 191, 192, 193, 194, 195, 196, 197, 198, 199 and 200 of the Law of the People’s Republic of China on Civil Aviation were also revised by the same amending process and government document. Hence, the effective dates of these two laws noted by the statement were definitely incorrect after the law amendment process.
The original map attached to the PRC East China Sea ADIZ government statement.
Moreover, the Basic Rules on Flight of the People’s Republic of China was not initially put into force as noted by the statement. It was first jointly issued by the PRC State Council and the PRC Central Military Commission on July 24, 2000, by the “Decree No. 288 of the State Council of the People’s Republic of China and the Central Military Commission of the People’s Republic of China” after a large scale revision from its progenitor with the identical title established by the same two institutions on April 21, 1977.
Based on two separate documents but with the same titles known as the “Decision of the State Council and the Central Military Commission on Amending the General Flight Rules of the People’s Republic of China”, it was subsequently twice amended on July 27, 2001 and October 18, 2007. Also, the revised rules were put into force by the “Decree No. 312 of the State Council of the People’s Republic of China and the Central Military Commission of the People’s Republic of China” and “Decree No. 509 of the State Council of the People’s Republic of China and the Central Military Commission of the People’s Republic of China” on August 1, 2001 and November 22, 2007, accordingly. We therefore may notice that the effective date of the Basic Rules on Flight of the People’s Republic of China noted by the statement was neither the initial effective date of the rule nor the latest effective date of the rule.
Based on the survey results already mentioned , we may conclude that the validity and legality of the judiciary documents cited by the statement is undeniably questionable. The quality of this government statement is poor.
Second, the jurisdiction associated with the contents noted by these three laws and rules as compared with the airspace defined by the PRC East China Sea ADIZ can also be problematic. The jurisdiction defined by the Law of the People’s Republic of China on National Defense is basically illusive. It does note with the territorial airspace in its text. Yet, the substantial content of this law has never specifically mentioned its jurisdiction may extend to any air defense identification zone. Likewise, the Article 2 of the Law of the People’s Republic of China on Civil Aviation does declare the PRC’s exclusive sovereign rights over its territorial airspace. Many other articles of this law also repeatedly address its jurisdiction over the PRC territorial airspace. By the principle of ratione loci, we may clearly identify the jurisdiction defined by this law never was intended to extend to the airspace over the East China Sea.
The PRC East China Sea ADIZ is not a hollow statement. The Substantial interception maneuvers toward the JMSDF MPA by the PLAAF fighters.
On the other hand, according to the Chapter 13 and the Article 173 of the People’s Republic of China on Civil Aviation, its jurisdiction does cover those foreign aircrafts or other flying objects within its territorial airspace. Also, by the terms noted in its Article 182, its jurisdiction may extend to certain search and rescue areas out of its territory. Nonetheless, such search and rescue areas are governed by the international treaties and totally irrelevant with any air defense identification zone.
Basically, the Basic Rules on Flight of the People’s Republic of China is the administrative rule originated from the People’s Republic of China on Civil Aviation. This is exactly the reason why the Article 1 of this rule specifically noted its jurisdiction only covering those aviation activities within the PRC’s territory. However, the Article 2 of the same rule also extends its jurisdiction over those units and persons with the ownership of the aircrafts as well as the personnel relevant to the aviation activities and the activities themselves. There are numerous articles of this rule repeatedly addressing its jurisdiction and objectives involved in the activities within this airspace as well as the aviation activities themselves.
The only exception regarding the jurisdiction out of its territorial airspace ever appeared in this rule is the Article 121 of Chapter XII titled with Supplementary Provisions: “In regard to the aircraft of the People’s Republic of China operating over the contiguous zones, exclusive economic zones or high seas beyond the territorial waters of the People’s Republic of China, where the provisions of an international treaty concluded or acceded to by the People’s Republic of China are different from the provisions of these Rules, the provisions of that international treaty shall apply, except the provisions for which reservation has been declared by the People’s Republic of China.” According to the content noted above, its jurisdiction may only cover the aircraft with the PRC nationality registration. It does not authorize any jurisdiction over foreign aircraft out of its territorial airspace.
After reviewing the content of these three laws and rules, we may very confidently believe that there is no basis of jurisdiction over the East China Sea ADIZ ever granted by them. This is another solid evidence of staff work negligence.
Third, terms or any substantial contents noted by these three laws and rules are never associated with the airspace defined by the statement or the aircraft identification rules requested by the PRC Defense Ministry announcement. The term of the ADIZ itself was never specifically defined by these three legal documents since it never ever appeared in any text of them. Further, for those means of identification demanded by the PRC Defense Ministry announcement, no corresponding regulation has ever been noted in these three laws and rules. Of course, Article 167 and 168 of the Law of the People’s Republic of China on Civil Aviation as well as Article 39 and 90 of the Basic Rules on Flight of the People’s Republic of China are noted with the term of flight plan, yet, the substantial content is totally irrelevant with the flight plan identification within the PRC East China Sea ADIZ.
As for the radio identification, the term does appear in the text of the Article 10, 88 and 90 of the Law of the People’s Republic of China on Civil Aviation for eight times and in the Article 48, 57, 60, 87, 95, 101 and 105 of the Basic Rules on Flight of the People’s Republic of China for a total of thirteen times. Again, the context of these applications is not relevant to the East China Sea ADIZ identification procedures. The term of secondary radar transponder noted by the transponder identification section of the PRC Defense Ministry announcement of identification rules is never noted in these three legal documents. Last but not least, for the logo identification, the term “logo” itself is mentioned by the Article 8, 58, 61 and 85 of the Law of the People’s Republic of China on Civil Aviation five times but the contexts are not substantially associated with the East China Sea ADIZ identification procedures.
Likewise, it was also noted by Article 24, 41 and 47 of the Basic Rules on Flight of the People’s Republic of China for six times. The content of the Article 24 and 47 is totally unrelated to the logo of any aircraft. Only the Article 41, “Aircraft operating within the territory of the People’s Republic of China shall bear distinct identification marks. Aircraft without identification marks are forbidden such flight. Aircraft without identification marks shall, when in need of such flight due to special circumstances, be subject to approval by the Air Force of the People’s Liberation Army. The identification marks of aircraft shall be subject to approval in accordance with the relevant provisions of the State,” the content is seemingly in accordance with the East China Sea ADIZ identification rule. Nonetheless, the jurisdiction of the Article 41 is only within the PRC territory, which is not the airspace defined by the East China Sea ADIZ.
It is noteworthy that there are various airspaces defined by these three laws and rules. Apart from the search and rescue areas mentioned above, the only other airspace that has the coverage out of the PRC territorial airspace is the “Flight Information Region” noted in the Article 30 and the Article 85 to Article 88 of the Basic Rules on Flight of the People’s Republic of China. The significance of the Flight Information Region is clearly defined by the International Civil Aviation Organization. It is totally different from ADIZ declared by any nation in the world. No confusion can happen between these two terms.
The PRC government statements on establishing the East China Sea Air Defense Identification Zone and the Defense Ministry announcement of the aircraft identification rules within this ADIZ are fundamentally reckless. The PRC East China Sea ADIZ has already existed for almost two years. Can we ask the following questions?
Does the PRC adopt this ADIZ to expand its sovereign claim as many political accusations ever predicted? Does this ADIZ successfully expand the PRC sphere of influence as many commentators ever actively speculated? Does this ADIZ pave the solid foundation for the PLA to exercise its airpower above the East China Sea as many military experts assessed? Do expanding PRC military air activities associate with the mechanism of this ADIZ? How much national pride is substantially acquired after establishing this ADIZ? Whether this ADIZ actually serves the functions as the PRC government originally claimed? And finally, do we fairly and comprehensively judge this issue by excluding our prejudice first?
All readers may have their own answer to these questions. We should never forget that the biased vision may only cause distortion of the fact and creating confusions that hindering us to see the reality. Whether we may fairly observe and assess the regime in Beijing does matter to our future strategic options and welfare.
Chang Ching is a Research Fellow with the Society for Strategic Studies, Republic of China. The views expressed in this article are his own.
Geopolitical developments continue apace in the South China Sea, as other states start to mount a more comprehensive challenge to China’s unilateral claims of sovereignty. The US Navy has begun what it promises will be continued and regular Freedom of Navigation Operations near China’s island-building projects. Meanwhile the ICJ at the Hague has decided to weigh in on the issue by agreeing to hear a case brought by the Philippines against China. Globalogues takes a look.
Peter Marino holds an MSc in Global Politics from The London School of Economics and is a graduate of Norwich University. He lived in Shanghai from 2003 to 2008 and served as head of China development for London-based Aurigon, Ltd. He founded and sold Quaternion, a political risk startup, and is currently establishing a new Think Tank for International Affairs aimed at promoting engagement with the “Millennial Generation.” He also produces Globalogues, a video blog with commentary on global politics and economics. The views expressed in this article are his own.
Welcome to Part Two of the October 2015 Member Round-Up, covering the second two weeks of the month. Over the past two weeks the U.S. freedom of navigation operations (FONOPS) in the South China Sea have dominated the attention of the maritime security community. Although the incident was a significant development in the region, CIMSEC members have focused on several other international maritime issues in addition to the FONOPS. These issues include Russian operations in the Middle East, Canada’s blue-water naval capabilities, strategic alliances in the Indo-Pacific and features of the U.S. Navy’s procurement strategy requirements.
Beginning the Round-Up at The National Interest, Scott Cheney-Peters discusses the necessity of U.S. FONOPS directed at China’s artificial islands in the South China Sea. Mr. Cheney-Peters explains that the U.S. position was twofold; it was critical to uphold commonsense interpretation of the U.N. Convention on the Law of the Sea while also reassuring commitment to regional allies concerned with China’s growing military capabilities. Mr. Cheney-Peters also explains the FONOPS repercussions and implications in an article at Sputnik.
Bryan Clark is interviewed at the Center for Strategic and Budgetary Assessments concerning the U.S. Navy’s freedom of navigation maneuversand the potential consequences of such operations. He explains the possibility that these U.S. operations may initiate FONOPS response equivalents off the U.S. West Coast from PLA-N vessels. However, Mr. Clark also notes that inaction would abandon sovereignty disputes over the artificial islands ceding the region to the Chinese, a circumstance at odds with regional U.S. interests.
China’s new airstrip built over Fiery Cross Reef in the South China Sea (CSIS image)
Mira Rapp-Hooper, at Lawfare, explains theU.S. FONOPS in the South China Sea through an international law context. The objective of her article is to outline the key legal and factual features of freedom of navigation while accurately describing the relationship between the military operation itself and maritime law. Also following a legal perspective, Alex Calvo for The Asia-Pacific Journal provides a comprehensive analysis on the ongoing legal dispute in the South China Sea. Mr. Calvo explains that the arbitration case currently being held in the Netherlands will contribute to the future dynamic of the entire South China Sea region and the ability for international law to resolve territorial conflicts peacefully and without recourse to military options.
Concluding the Round-Up’s discussion on the South China Sea FONOPS, James Goldrick at The Interpreter discusses the political and strategic need for Australia to assert freedom of operationthroughout China’s artificial island network and its corresponding contested waters. Mr. Goldrick maintains that Australia should dispatch a naval force to operate in the vicinity of the Chinese artificial islands to demonstrate commitment to upholding international law and support for regional allied interests.
Darshana Baruah, at Offiziere, discusses the developing relationship in the Indo-Pacific between India and Australia. The article explains that the recent completion of the first bilateral naval exercises between the two countries indicates an aim to strengthen interoperability between their respective navies for the purpose of increased maritime security. Further to this, Ms. Baruah identifies the U.S. rebalance to the Asia-Pacific and the rise of China as having contributed to geopolitical tensions in the Indo-Pacific region, which has resulted in strategic opportunities for Indo-Pacific actors to collaborate in bilateral or multilateral arrangements.
To conclude Part Two of the October Member Round-Up, Ken Hansen for The Conference of Defense Associations Institute discusses the loss of Canada’s two primary logistical ships and the implications the loss will have on the Navy’s operations. Mr. Hansen explains that the decommissioning of the HMCS Preserver and the major fire onboard the HMCS Protecteur has entirely eliminated the Navy’s ability to conduct global force projection operations due to a lack of at-sea replenishment. Mr. Hansen explains that the Canadian Navy has acquired Spanish and Chilean logistical ships for temporary use for blue-water training operations and to maintain task group readiness throughout the logistical ship replacement process.
Members at CIMSEC were also active elsewhere during the second part of October:
At CIMSEC we encourage members to continue writing, either here on the NextWar blog or through other means. You can assist us by emailing your works to dmp@cimsec.org.
Sam Cohen is currently studying Honours Specialization Political Science at Western University in Canada. His interests are in the fields of strategic studies and defence policy and management.
