Maintaining the marine legal order in East Asia

1    Maintaining the marine legal order in East Asia

As discussed in the Introduction, the current marine legal order in the world has been established by and maintained under the United Nations Convention on the Law of the Sea (LOS Convention). This chapter further discusses the importance of maintaining the marine legal order in East Asia by looking into two recent maritime incidents and their legal implications in the law of the sea as well as in general international law.

American spy airplane over China’s EEZ

On 1 April 2001, while a US EP-3E Aries II airplane was conducting espionage activities near the Chinese coast in the South China Sea, it was intercepted by two Chinese F-8 fighter jets and then collided with one of the jets. The damaged Chinese jet crashed into the water and the pilot died. The damaged American airplane made an emergency landing in China’s Hainan Island and all the crew members were safe.

The incident immediately became a diplomatic issue between China and the United States. China accused the United States of encroaching on China’s territorial sovereignty and of violation of international law as well as of relevant Chinese laws, and demanded an apology and compensation. The United States responded that the reconnaissance airplane operated outside China’s territorial waters and that the airplane landed in distress. For that reason, the United States refused to render any apology; and instead demanded that China immediately return the American crew and the airplane.

After several rounds of diplomatic contacts, the United States finally sent a letter to China on 11 April 2001, expressing its sincere regret over the Chinese missing pilot and aircraft and used the word “sorry” for their loss. The letter also used the word “sorry” for the American airplane’s entering into China’s airspace and landing without verbal clearance.¹ On the next day, China allowed all 24 crew members to leave. However, the damaged American spy airplane did not leave China until 3 July 2001 after it had been dismantled and packed. The Chinese asked for one million US dollars for the costs relating to the aircraft, but the Americans only offered 34,567 US dollars, which was refused by the Chinese.2 The compensation for the cost is still a pending issue to be resolved between the two sides. The incident created a number of legal issues, some of which have not yet been clarified in international law and international legal literature.

Is the airspace above the EEZ international space?

As the United States alleged, the spy airplane was in international space when the aerial incident occurred. Then the legal question to be first answered is whether the airspace above the EEZ is international. It was admitted that the overflight issue in the EEZ was one of the neglected issues in the new law of the sea.³

The sovereignty over airspace was established firmly after World War I with the adoption of the 1919 Convention for the Regulation of Aerial Navigation (Paris Convention). Article 1 of the Paris Convention recognized the complete and exclusive sovereignty of the Contracting Parties over the airspace above their territories.⁴ Before that freedom of the air was advocated by some jurists and actually applied.⁵ The sovereignty over airspace is reaffirmed in the Convention on International Civil Aviation (Chicago Convention) adopted in December 1944, which is still applicable to international civil aviation today.⁶ Since then, it has become a principle of international law.

The legal basis of controlling the airspace over the territory of a state is the sovereignty over the land and/or sea below. That is to say, only if a state owns the sovereignty of a certain piece of land or sea can that state accordingly claim the sovereignty of the airspace over it. It is clear that without the sovereignty over the land, there will be no sovereignty over the superjacent airspace. Thus the vertical sovereignty over the airspace comes from the horizontal sovereignty of the state to the land and the sea. The sovereignty over airspace can be regarded as an extension of the sovereignty over the land or maritime territory. This is similar to the principle of “land dominating the sea”, i.e. with the ownership of land mass, a coastal state may claim an area of ocean space as its internal waters, territorial sea, EEZ, or continental shelf under its sovereignty or jurisdiction for certain purposes in accordance with the law of the sea.

Although the LOS Convention generally governs the various regimes regarding the use of the oceans, it mentions on several occasions regulations on maritime overflight. The sovereignty of a coastal state to its territorial sea extends to the airspace of the territorial sea so that aviation over the territorial sea is subject to the authorities of the coastal state. There is no innocent passage for foreign aircraft in the airspace over the territorial sea.⁷ Different from this is the regime of transit passage applicable to the straits used for international navigation. Accordingly, both foreign vessels and aircraft can exercise the right of transit passage through these straits despite the fact that the coastal state enjoys the sovereignty over the airspace superjacent to such straits.8 The right of transit passage is similar to innocent passage in the sense that both apply to the passage of foreign vessels and aircraft subject to a series of conditions imposed by the LOS Convention, and different from innocent passage in that both vessels and aircraft enjoy the right of transit passage.

In terms of overflight above the EEZ and the continental shelf, the LOS Convention retains the freedom of high seas there, but such freedom should be subject to the relevant provisions governing the EEZ and continental shelf.⁹ It is interesting to note that while there is no mention of the legal status of the airspace superjacent to the EEZ, the LOS Convention provides that “rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters”.¹⁰ Furthermore, the exercise of the rights of the coastal state over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other states as provided in the LOS Convention. Thus, if we compare the relevant provisions regarding the subjacent waters and airspace over the continental shelf and the high seas with those over the EEZ, we can find a difference which may have implications for the difference of the legal status of the superjacent airspace of the EEZ. On the other hand, since the waters above the continental shelf and the EEZ are overlapping within the 200nm limit, the provisions regarding the legal status of the superjacent waters and airspace over the continental shelf are also applicable to the airspace above the EEZ. Such applicability may be used as one of the justifications to argue for the international nature of the airspace above the EEZ. In so doing, it should be remembered that such applicability is not direct to the EEZ itself, so that there still remains a difference between the EEZ and the continental shelf. That is why the LOS Convention puts them into different parts of regulation.

It has been argued that since the EEZ is a maritime zone extending from the territorial sea baselines outward adjacent to the territorial sea, the superjacent airspace is not part of the EEZ.¹¹ It is true that unlike the sovereignty over the territorial sea, there is no mention in the LOS Convention of sovereign rights and/or jurisdiction of a coastal state to the airspace above the EEZ. To the contrary, the freedom of high seas regarding overflight is preserved for the EEZ. However, it is clear that the fact some of the freedoms of high seas remain in the EEZ does not mean that the EEZ is the high seas. These are “residual rights” as a compromise to establish the EEZ, just as the innocent passage is a compromise for the establishment of the territorial sea.

In comparison with the territorial sea, the state’s control of the airspace over the territorial sea is tighter than the control of the territorial sea itself. The sovereignty of the adjacent state over the airspace is of no concession as that over its territorial sea where innocent passage is conceded to foreign vessels. The right to fly through the airspace of another state may be realized through a multilateral treaty, such as the Chicago Convention, or through a bilateral agreement between the user state and the airspace state. Under such circumstances, reciprocity principle usually applies. There is no right of innocent passage for foreign aircraft through the airspace of a state. Connecting this to the EEZ regime, a question is naturally raised of whether the freedom of overflight is one hundred percent identical to the freedom of overflight in the high seas, which constitute a global commons, while the EEZ is part of the sea areas within national jurisdiction. As Orrego Vicuña expounds:

Although the freedoms applied to the exclusive economic zone are qualitatively the freedoms of the high seas, they do not represent an extension of the regime of the high seas per se, but originate from the specific regime of the exclusive economic zone and, as such, are subject to its restrictions and modalities, whether directly or by adaptation of some norms of the high seas to the context of the zone.12

It is rightly concluded that after the conclusion of the LOS Convention and the establishment of the EEZ regime, “freedom enjoyed by other states in the EEZ are in no way equal in their scope to high seas freedoms”.¹³ It is self-evident from the relevant provisions of the LOS Convention, but the United States, being the strongest maritime power, deliberately turned a blind eye to it, and argued otherwise. It is argued that the United States is not yet a party to the LOS Convention so that it is not bound by it. However, the United States regards the LOS Convention (except Part. XI on deep seabed mining) as a codified body of customary law.¹⁴ While the United States has established its own EEZ and carried out law enforcement against foreign States, it should at least respect the EEZ regimes established by other countries under the LOS Convention.

There is a discrepancy regarding the concept of the EEZ between the legal term and the operational term. The United States navy divides the ocean into two categories: national waters and international waters, for operational and mobility purposes.¹⁵ The airspace above the sea is accordingly divided as national and international. Thus the operational term “international space” referring to the airspace above the EEZ cannot find its equivalent in international law, and it should not be taken for granted as a legal term.

As far as national legislation is concerned, there are in general three types of legal forms governing the aviation over the EEZ. The first one expressly mentions the high seas freedom and the domestic legislation should in no way affect such freedom.¹⁶ This is the most generous domestic legal governance of the aviation over the EEZ without any restriction. The second one allows the freedom of overflight above the EEZ so long as such freedom complies with international law and relevant domestic laws.17 The Chinese legislation belongs to the second category as it provides that

Any country shall enjoy the freedom of navigation in and of overflight over the exclusive economic zone of the People’s Republic of China, and the freedom to lay submarine cables and pipelines in the exclusive economic zone and on the continental shelf of the People’s Republic of China, and the expediency of other lawful uses of the sea related to the above freedoms, under the condition that the laws and regulations of the People’s Republic of China as well as international law are complied with.¹⁸

Unlike the first category, this one imposes some conditions on the exercise of the freedom of overflight. The third category is close to the second but different from the latter in that it particularly mentions the “airspace” over the EEZ.¹⁹ The national legislation governing the airspace over the EEZ indicates that this airspace is no longer an international space; otherwise, there is no need for individual states to enact specific regulations to govern its overflight.²⁰ The demand for compliance with domestic laws and regulations contained in the relevant laws further reinforces the argument that the airspace over the EEZ is no longer international space in the legal sense. It should be noted that some national laws even attempt to extend the sovereignty up to the airspace over the EEZ.²¹ Although this can be regarded as an excessive claim, it implies at least that the conception of the airspace over the EEZ has been fundamentally changed since the establishment of the EEZ regime.

In conclusion, after the establishment of the EEZ regime, the superjacent airspace over the EEZ cannot be simply perceived as international airspace though freedom of overflight remains there. To be more precise, the airspace above the EEZ can be defined as airspace above the maritime zone of national jurisdiction where freedom of high seas applies under the conditions resulting from applicable rules of international law including the LOS Convention provisions concerning the EEZ.

Are foreign military activities allowed in the EEZ in time of peace?

According to the LOS Convention, all the seas in the world shall be used peacefully, and any threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations, shall be prohibited.²² From this basic legal principle, military activities with threatening potentials should not be carried out in the EEZs of other countries.

The first question is what military activities are. According to one scholar, military use of oceans consists of two categories: movement rights and operational rights. The former embraces the notion of mobility and includes such legal rights as transit passage through straits used for international navigation, innocent passage in territorial seas and archipelagic waters, and high seas freedom of navigation and overflight, and the latter includes such activities as task force maneuvering, anchoring, intelligence collection and surveillance, military exercises, ordnance testing and firing, and hydrographic and military surveys.23 For the purpose of this chapter, military activities refer to those activities in the second category as defined above, i.e. other than simple navigation or overflight.

As we know, there is controversy about whether the conduct of military activities in the EEZ of another country is legitimate. Some states may invoke Article 58(1) of the LOS Convention to justify their military activities in other countries’ EEZ. The provision reads:

[i]n the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

Freedoms in the high seas provided in Article 87 are thus applicable to the EEZ as long as they are not contrary to other provisions of the LOS Convention. According to maritime powers such as the United States, the wording freedoms “associated with the operation of ships, aircraft” implies the legality of naval maneuvers in a foreign EEZ.²⁴ One view even considers military exercises, aerial reconnaissance, and all other activities of military aircraft freedom of high seas if due regard is paid to the rights and interests of third states.²⁵ As advocated, since the LOS Convention mainly provides the rights of navigation and overflight, while keeping silent on the rights of military activities, a maritime superpower must defend and enforce such rights for its security interests.²⁶

Then the question is whether military use constitutes an internationally lawful use of the ocean. The LOS Convention does not mention military use so that it becomes a gray area which leads to different interpretations. This no-mention is criticized as one of the major defects in the new LOS Convention.²⁷ On the other hand, it is argued that without an express mention in the Convention, military use is hardly regarded as one of such lawful uses. However, such argument may not be convincing. According to a fundamental legal principle, nothing is illegal if there is no law to make it so.²⁸