By Yinan Bao
On August 10, CNN reported that a U.S. Navy P-8A Poseidon reconnaissance bird flew over iv maritime features inward the Spratly Islands inward the South PRC Sea. This incident was genuinely the tertiary of its form to have got house inward a relatively curt bridge of iv months this year, next 2 highly publicized flyover incidents of U.S. B-52 bombers inward the Spratly Islands inward April in addition to June 2018. The Nature of the Flyover on August 10
Unlike the 2 previous flyovers yesteryear B-52 bombers, it is non clear whether this fourth dimension the P-8A flew inside 12 nautical miles — the territorial body of body of water — of whatsoever of the iv features. According to the video recording provided yesteryear the CNN, the U.S. airplane pilot replied to his Chinese counterpart that the bird was “conducting lawful armed forces activities beyond the national airspace of whatsoever coastal state.” At the get-go glance, it is thence natural to think that the flyover did have got house to a greater extent than than 12 nautical miles from whatsoever feature.
However, it is worth mentioning that the U.S. authorities equally good equally many eminent U.S. international police line scholars, such equally Professor James Kraska in addition to Raul Pedrozo, oftentimes advert the South PRC Sea Arbitral Award, inward which Subi Reef in addition to Mischief Reef were declared yesteryear the arbitral judicature to hold upwards “low-tide elevations.” According to Article thirteen of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), low-tide elevations generate no territorial body of body of water of their own. Thus, it is possible that the P-8A did wing inside 12 nautical miles of these 2 features. The other 2 features, namely Fiery Cross Reef in addition to Johnson Reef, were both declared high-tide features yesteryear the same tribunal, so they tin flaming generate a 12 nautical mile territorial sea.
Even though the Chinese authorities has nevertheless to specify the territorial body of body of water limits around whatsoever characteristic inward the Spratly Islands, it did advise inward its 2 banker's complaint verbales to the United Nations secretarial assistant full general inward 2009 in addition to 2011 that it has sovereignty inward “adjacent waters” around features inward the South PRC Sea, a metaphor for the territorial sea. Thus, it is highly unlikely that the P-8A flew inside 12 nautical miles of either Fiery Cross Reef or Johnson Reef, if the reply from the U.S. airplane pilot was honest in addition to inward expert faith. It is worth recalling that inward 2015 a U.S. B-52 bomber flew inside 2 nautical miles of Cuarteron Reef, some other Chinese high-tide characteristic that possesses a potential territorial body of body of water in addition to higher upwards it, territorial airspace. After that incident the the States admitted its fault in addition to blamed bad conditions for the B-52 flying off course.
A to a greater extent than plausible interpretation of the flyover on August 10 is that the P-8A flew inward the potential exclusive economical zone (EEZ) around the features of the Spratly Islands. Although the Chinese authorities has non officially declared whatsoever EEZ inward the Spratly islands, inward the 2 banker's complaint verbales mentioned above, it tin flaming hold upwards suggested that PRC reserves the correct to claim an EEZ based on the provisions of UNCLOS. Notably, the Chinese authorities likewise categorically rejected the South PRC Sea Arbitral Award, inward which the judicature declared that no features inward the Spratly Islands tin flaming legally generate whatsoever EEZ.
Anyway, the U.S. airplane pilot claimed what the U.S. authorities in addition to scholars ever claim: that the reconnaissance bird was exercising rights “guaranteed yesteryear international law.” The rights the airplane pilot referred to are the correct to send out armed forces grooming in addition to the correct to send out armed forces surveillance, all deemed yesteryear the the States equally included inward the “freedom of overflight,” a traditional liberty enjoyed yesteryear all states inward the high seas, equally good equally inward EEZs, an innovative in addition to sui generis regime established yesteryear the UNCLOS.
Chinese in addition to US Divergence inward the Interpreting “Freedom of Overflight” inward the EEZ
Under Article 58 of UNCLOS, the liberty of overflight enjoyed yesteryear all states is expressly stipulated. Meanwhile, the same provision likewise provides that inward exercising their rights, other states “shall have got due regard to the rights in addition to duties of the coastal state,” in addition to to a greater extent than important, they “shall comply amongst the laws in addition to regulations adopted yesteryear the coastal state” in addition to other provisions of the UNCLOS in addition to full general international police line “in so far equally they are non incompatible” amongst the regime of the EEZ. Evidently, it is this lengthy provision that causes much contestation in addition to legal debate betwixt PRC in addition to the United States.
According to the Chinese interpretation, the practice of rights inward the EEZ is yesteryear no agency unconditional, but subjected to several “terms in addition to conditions.” First, other states shall practice their rights inward expert faith, without whatsoever abuse, equally required yesteryear Article 300 of UNCLOS. Thus, liberty of overflight agency that unusual aircraft are granted the correct to wing through the EEZ without whatsoever unnecessary delay in addition to shall non send out activities unrelated to the flyover. Accordingly, those flyovers amongst a definitive armed forces mission volition hold upwards regarded equally an “abuse of rights.”
Second, liberty of overflight tin flaming never advise a correct to demo off armed forces ability in addition to threaten the peace in addition to safety of the coastal state. PRC holds the thought that the liberty of overflight tin flaming never include activities that may undermine the safety involvement of the coastal state. Therefore, it is non surprising that a spokesperson of the Chinese Ministry of Foreign Affairs criticized the flyover of 2 U.S. B-52 bombers inward the Spratly Islands inward June equally a evident threat to the safety of China. She likened the motion to if “someone armed to teeth comes to your doorstep every similar a shot in addition to then, poking around in addition to showing off muscles.” Therefore, such actions render PRC amongst convincing reasons to consolidate defensive installations inward its features inward the Spratlys.
Third, the practice of the liberty of overflight shall non violate the domestic laws in addition to regulations of the coastal state. The 2002 Surveying in addition to Mapping Law of the People’s Republic of China requires that surveying yesteryear unusual organizations inward jurisdictional body of body of water areas of PRC should have blessing from the Chinese government. Unauthorized surveying may likewise give ascent to criminal responsibleness nether Article 51 of that law. U.S. armed forces surveillance activities yesteryear the reconnaissance plane, if proved to include actual surveying in addition to mapping of diverse Chinese features, may constitute an overt breach of Chinese domestic law.
By contrast, the the States insists that these armed forces activities are good inside the liberty of overflight. That’s what the U.S. airplane pilot replied inward the CNN video recording: that he was “operating amongst due regard for the rights in addition to duties of all states.” Indeed, most U.S. international police line scholars attempt to elaborate that armed forces activities such equally surveillance in addition to grooming are non non-peaceful ipso facto, but instead autumn into the category of “other internationally lawful uses of the sea” stipulated inward Article 58 of the UNCLOS. Furthermore, U.S. international police line scholars likewise repeatedly advocate that armed forces survey is non maritime scientific interrogation in addition to shall non autumn into the jurisdiction of the coastal dry ground inward the EEZ.
Here, iii legal points telephone telephone for farther comments.
Analyzing the Nature in addition to Legality of Military Surveillance Activities inward the EEZ
First, for certain armed forces activities, such equally surveillance yesteryear aircraft at high altitude, are indeed non straight threatening. Nevertheless, the coastal dry ground may have got reasonable uncertainty almost the nature in addition to farther implications of such activities. Whether the data collected yesteryear unusual armed forces surveillance aircraft volition hold upwards used against the coastal dry ground inward the close futurity remains a mystery. For instance, if a unusual armed forces surveillance aircraft flies over a telephone commutation defensive installation inward a fortified isle inward the EEZ of a coastal dry ground iii times inward a week, it is absolutely reasonable for the coastal dry ground to cash inward one's chips wary of the nature in addition to role of such activities. It tin flaming hold upwards asserted that for certain kinds of armed forces activities, such equally surveillance, may potentially undermine the safety of the coastal state, in addition to so, such activities shall non hold upwards carried out inward the EEZ without whatsoever restrictions. Accordingly, it is doubtful that such high frequency surveillance should hold upwards considered equally a peaceful manifestation of the practice of the liberty of overflight.
Second, the term “internationally lawful uses” inward Article 58 of UNCLOS likewise requires attention. As a affair of fact, Article 58 provides that “other internationally lawful uses of the sea” should hold upwards “related to the liberty of navigation, overflight, in addition to of the laying of submarine cables in addition to pipelines.” The same provision lists some examples, such equally activities “associated amongst the functioning of ships, aircraft, in addition to submarine cables in addition to pipelines.” Accordingly, activities that are non related to the liberty of navigation, overflight, or laying of submarine cables in addition to pipelines are non considered equally “other international lawful uses of the sea” nether Article 58, fifty-fifty if these activities are ordinarily considered equally lawful.
For instance, aerial refueling of a armed forces aircraft tin flaming hold upwards regarded equally “internationally lawful” equally refueling is a form of maintenance activity essential for the normal functioning of an aircraft. By contrast, armed forces surveillance yesteryear a reconnaissance bird is inward no way related to the normal functioning of aircraft, in addition to surveillance activities behaviour a distinct mission objective other than normal flight. Hence, it is against the context of Article 58 to regard armed forces surveillance equally “internationally lawful exercise of the sea,” in addition to it should non hold upwards considered equally exercising the liberty of overflight inward the EEZ.
Finally, whether armed forces surveillance yesteryear unusual armed forces aircraft inward the EEZ of a coastal dry ground should hold upwards subjected to the jurisdiction of the coastal dry ground is worth analyzing. Here, the departure betwixt maritime scientific interrogation in addition to armed forces surveying may render a expert answer. It is expressly stipulated inward Article 56 that the coastal dry ground enjoys exclusive jurisdiction over maritime scientific research. Eminent U.S. international police line scholars such equally J. Ashley Roach in addition to James Kraska debate that armed forces surveying shall non hold upwards considered equally maritime scientific research, owing to the different nature in addition to role betwixt these activities.
If so, it volition do an ironic paradox: inward the EEZ, those benign, purely scientific interrogation activities yesteryear unusual civil aircraft are subjected to the say-so of the coastal state, piece highly sensitive in addition to fifty-fifty potentially threatening armed forces surveying yesteryear unusual armed forces aircraft tin flaming hold upwards carried out freely without whatsoever interference in addition to rule from the coastal state. This is perchance i of the most ironic interpretations inward the whole UNCLOS, if non the most absurd one.
To center up, it is reasonable to assert that the recent armed forces surveillance activities yesteryear the U.S. reconnaissance bird are yesteryear no agency lawful nether UNCLOS. Therefore, the U.S. armed forces should refrain from executing similar operations inward the Spratly Islands inward the future.
Dr. Yinan BAO specializes inward diplomatic police line in addition to the police line of the sea. He is currently working equally a interrogation associate inward the School of International Law, East PRC University of Political Science in addition to Law, based inward Shanghai, China.
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