Time for US and China to Establish Maritime Rules of the Road
The already tense atmosphere in the East China Sea ratcheted up a notch this past week when China declared a new air defense identification zone. The United States’ flight of a pair of B-52 bombers through that zone on Monday further highlighted the potential for conflict in the contested area. The legal issues involved in the use of the sea, and the air space above it, are intellectually intriguing for an academic who studies international law. The political realities of this increasingly tough neighborhood, however, are frightening.
From a legal perspective, the situation in the East China Sea is complicated first by conflicting territorial claims with deep historic roots. Both China and Japan claim ownership to the Senkaku/Diaoyu islands, with the choice of name depending on your position regarding ownership. Even if ownership was clear, there is the further question of what rights a country has in the space surrounding its territory. Under the United Nations Convention on the Law of the Sea (UNCLOS), to which China and Japan are both parties, waters off a state’s coastline are divided into several zones – territorial sea, contiguous zone and exclusive economic zone (EEZ) – over which the coastal state is authorized to exercise diminishing control. The legal norms governing these zones are fundamental to determining states’ rights to operate aircraft above them. Not surprisingly, countries have differing interpretations of the legal norms, depending in part on their abilities to project military capabilities into other states’ EEZs.
From a political perspective, current tensions serve as a glaring reminder of how little progress has been made since the 2001 incident involving a U.S. Navy EP-3 surveillance plane and a Chinese F-8 jet in the waters south of China. Following the collision in China’s EEZ, the American crew successfully crash-landed on Chinese territory, where they remained for eleven days (China returned the disassembled EP-3 several months later). Tensions subsided after the U.S. provided a carefully crafted quasi-apology that avoided acknowledging any wrongdoing. The U.S. government’s vehement denial that it violated international law by flying the EP-3 over China’s EEZ has its roots in a long-standing fear of “creeping jurisdiction”: the threat that states gradually will expand their territorial claims and, if not objected to, these expanded claims may gain credence under international law. The 2001 collision has thankfully passed into history but the circumstances that gave rise to the incident have not.
Today, the U.S. and China remain without a clear military-to-military channel of communication to address unforeseen confrontations efficiently. What is more, China’s military capabilities have increased dramatically in the dozen years since the 2001 collision. Put simply, there is considerably more action below, on and above the seas. China still does not have a blue-water navy that can project force far beyond its shores, but it is rapidly building a modern, expansive fleet that is concerning to nearby states and to the U.S., which has close ties with several of China’s neighbors and a strong pro-freedom-of-the-seas stance.
Nor are current concerns that something could go bump in the night limited to the area between China and Japan. The South China Sea is beset by a jumble of claims by no fewer than six countries with substantial interests in fishing and natural resources that add to military tensions. Whereas the disputed formations in the East China Sea appear significant enough to qualify as “islands” under the law of the sea – with the resulting rights to the surrounding sea and air that flow from that determination – the South China Sea is pockmarked with less significant formations that many argue are mere “rocks.” The threshold determination of the nature of these formations has yet to be determined, let alone who owns them. Some of the disputed turf in Northeast Asia may also be merely “rocks,” especially Okinotorishima and the Dokdo/Takeshima.
International law can help bring long-term clarity to the various claims and should be made a priority. The Philippines, for example, has launched an arbitration process under the provisions of UNCLOS in hopes of resolving competing claims with China in the South China Seas. China has thus far refused to participate. The U.S. for its part has failed to even ratify UNCLOS, despite repeated bipartisan calls from both the executive and legislative branches. Although the U.S. adheres to much of UNCLOS as a matter of customary international law, becoming a formal party would at a minimum signal respect for the role of law in addressing claims.
At the same time, legal channels no doubt will be slow – it took decades for UNCLOS even to be drafted and enter into force. More immediately, concrete measures are needed both to forestall conflicts and to create channels to promptly address confrontations before they balloon into crises. Given persisting legal ambiguities about military activities at sea, as well as the increasing frequency of encounters due to assertive U.S. maneuvers and growing Chinese military might, the two countries should take the lead in establishing specific, practical “rules of the road” for use when their military forces encounter each other to lessen the chance of future incidents.
The Obama administration’s “pivot” to Asia has strained U.S.-China relations in the Pacific, with the leadership in Beijing skeptical of America’s assertions that the pivot is not aimed at containing China. Absent an unexpected turn in events, the U.S. will be dealing with Xi Jinping and his senior cohorts for the coming decade. Washington cannot afford to wait until 2022 to see if the next leaders are easier counterparts. Nor should it take another collision to spur these two major powers into action.
The 2001 collision has remained a lone occurrence. Let’s hope it stays that way.
Margaret K. Lewis is an Associate Professor at Seton Hall Law School and author of An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident, 77 N.Y.U. L. Rev. 1404 (2002).