China-Japan
In contrast with Article 3 of the Chicago Conven- tion, which distinguishes civilian aircrafts from state aircrafts, China’s ADIZ requirements apply to all foreign aircrafts, not just those en route to China. This is a distinct departure from both the Chicago Convention and UNCLOS, which recog- nize a freedom of overflight for civilian aircrafts. China’s defensive measures, using the ADIZ as justification, tacitly revoke that freedom and threaten any commercial flights within the re- gion. On November 26, 2013, the People’s Daily – China’s state-run newspaper – attempted to re- solve this discrepancy, reporting that the freedom of flight would only be revoked for “provocative flyover and surveillance activities.” That same day, the United States challenged China’s posturing by flying two B-52 bomber aircrafts through the ADIZ without incident. Since then, South Korean and Japanese military aircrafts have similarly violated the ADIZ, prompting China to send fighter jets to patrol the area as a “defensive measure.”
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On December 3, 2013, Chinese Defense Min- istry Spokesman Geng Yansheng attempted to clarify China’s position, claiming that it serves as an early-warning system to “defend the country’s airspace, with defense acting as the key point.” Indeed, Geng emphasizes that China’s ADIZ framework both preemptively alerts Beijing of any potential threats and increases aviation safety. These comments suggest that China is exercis- ing authority to track flights within its ADIZ while still recognizing it as international airspace; how- ever, by simultaneously claiming that the ADIZ is universally beneficial and that China’s security is the “key point” of the ADIZ, Geng’s remarks send mixed messages.
Tensions with Japan
Historically, China has opposed the Japanese ex- pansion of its sovereign territory, particularly with regards to the islets scattered throughout the East China Sea. Although Article 59 of UNCLOS pro- vides that jurisdictional conflicts be “resolved on the basis of equity,” the territorial dispute remains
unresolved, despite both states invoking UNCLOS in determining the geomorphological makeup of the Senkaku Islands. Tensions between China and Japan have been especially high since 2012, when the Japanese government purchased three Senkaku islets from a private Japanese owner. Chinese officials appear to have disregarded indi- cations that the purchase was largely driven by internal Japanese politics, instead interpreting the Japanese government’s actions as attempts to disrupt the status quo.
Unsurprisingly, China does not recognize Japan’s ADIZ. China strongly objected when Japan unilat- erally expanded its ADIZ in 1972 and in 2010. Con- versely, because China’s ADIZ was established unilaterally and without consulting the states it would affect, it was met with similar pushback. Specifically, Japan and South Korea opposed be- cause China’s ADIZ overlapped with their own. Moreover, because China’s ADIZ proactively en- compasses contested maritime zones, the unre- solved territorial dispute over the Senkaku Islands may be interpreted as a provocative change to the status quo. Japan further responded by accusing China of taking “one-sided action[s]” and demand- ed that China abandon its efforts. The Chinese Defense Ministry responded by condemning Ja- pan’s double-standards in criticizing both unilateral actions and independent expansions of its own ADIZ, particularly over the Senkaku Islands.
China’s Legal Strategy
Despite its provocative nature, China’s ADIZ does not appear to violate the Chicago Convention, UNCLOS, or other applicable laws. Rather, the underlying issue appears to be the territorial dis- pute between China and its regional neighbors. Because sovereign airspace is pegged to sover- eign territory, Chinese control over the Senkaku Islands would validate the broad, intersecting scope of its ADIZ. China appears to be especially fixated on preserving its sovereignty because it likely views its regional neighbors as compensat- ing their lack of military supremacy by strategi-
ILSA Quarterly » volume 22 » issue 3 » February 2014
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