With Air Defense Zone, China is Waging Lawfare
Image Credit: Wikimedia Commons

With Air Defense Zone, China is Waging Lawfare

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The tension surrounding the East China Sea Air Defense Identification Zone (ADIZ) is being covered in the kind of exhaustive detail that is rarely given to Asia’s maritime disputes. Many reports have surfaced claiming that the move might have been a strategic blunder for China. Yet, I’ve yet to see any reports explaining in precise details what China was hoping to accomplish by creating the ADIZ.

To be sure, Beijing probably took some joy in seeing the anger the move sparked in Tokyo, particularly given that it perceives its creation of the East China Sea ADIZ as little different from Japan purchase of the Diaoyu/Senkaku Islands last year. But foreign policy is rarely based solely on vengeance. Indeed, creating the East China Sea ADIZ was much more sophisticated and part of a larger strategy China has been pursuing long before last weekend.

In essence, the East China Sea ADIZ is part of China’s “lawfare” strategy toward its maritime disputes. “Lawfare,” as used in the context of international warfare, is often attributed to retired Air Force General Charles Dunlap, who defined it in a famous 2001 essay as “the use of law as a weapon of war.” Interestingly, according to the spectacular Lawfare blog, Dunlap was preempted by two PLA officers who wrote in a 1999 book, Unrestricted Warfare, that lawfare “is a nation’s use of legalized international institutions to achieve strategic ends.”

In what M. Taylor Fravel called creating “new facts on the water,” China’s approach to the South and East China Seas has been to try to establish its sovereignty over contested areas through the use of a combination of military power and international law. Specifically, as is well known, it has sought to increase its maritime patrols over the entire South China Sea through the creation of Sansha City garrison, and has basically seized control over the Scarborough Shoal and, increasingly, the Second Thomas Shoal. It has also sought to challenge Japan’s administrative control over the Diaoyu/Senkaku Islands by increasing its maritime patrols and air flights over them.

There is a clear unambiguous purpose to all this — namely, China is seeking to bolster its claims to sovereignty over these areas in terms of international law. As I explained elsewhere this week, in international law a major way by which states acquire sovereignty over an area is by actually exercising sovereignty (i.e. administering) over it for a “reasonable” period of time and especially having other states acquiesce to its administration. As one famous court opinion put it:

“The modern international law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis.”

Another widely cited international legal opinion put it this way:

“a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.”

That same court continued:

“It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.”

A 2002 court deciding a sovereignty dispute between Indonesia and Malaysia cited the above opinion before concluding itself: “In particular in the case of very small islands which are uninhabited or not permanently inhabited… which have been of little economic importance… effectivités will indeed generally be scarce [i.e. standards for enforcing sovereignty over scarcely populated areas are not generally as strident as in heavily populated areas].”

The East China Sea ADIZ is aimed at bolstering China’s claims to sovereignty over the Senkaku/Diaoyu Islands by seeking to have China administer their airspace and have other nations recognize this administration by their airliners identifying themselves to Chinese authorities. Since China is regulating air traffic in the area — including dictating the rules airplanes must follow — it is exercising a certain degree of sovereignty.

The U.S. and its allies quickly identified this as Beijing’s aim, which is why they immediately demanded their national airliners refuse to identify themselves to China, and began flying military aircraft through the ADIZ without following China’s administrative rules. Yet other countries without direct stakes in the territorial disputes may decide its best to simply follow China’s orders, which Beijing can later use to fend off challenges to its claims of sovereignty in an international tribunal.

Two further things are worth noting. First, one reason China likely sees it as essential to bolster the legitimacy of its sovereignty claims is because it sees international law as its regional rivals’ most viable long-term strategy for preventing Beijing from seizing these contested areas. After all, the Philippines, Vietnam, and quite possibly someday Japan will not be able to militarily challenge China’s sovereignty claims. However, China’s current claims to sovereignty are based on historical maps and other artifacts that international courts will not uphold against stronger contrary evidence. By sowing doubt as to which party would win a dispute in an international tribunal, China is seeking to eliminate this method for others to fend off its sovereignty challenges.

Secondly, China’s use of lawfare is no doubt troubling in most respects, particularly for those states that have territorial disputes with it. It is worth noting, however, that there is at least one potential positive sign from all this. Namely, if Chinese leaders are seeking to bolster their sovereignty claims under current international law, they evidently don’t intend to radically upend the current international order, or at least are uncertain about their ability to do so even over the long-term.

Of course, intentions can change and there are no guarantees their successors will hold similar views. However, for the time being it appears that Chinese leaders are contemplating having to live with the current international order. That is undoubtedly a good thing.

Comments
69
ELasker
December 7, 2013 at 08:35

lawfare is a small part, not realistic but still may have some effect.

The major effects are:

First, it demonstrates China’s seriousness. Nations of the world will never recognize Japanese claim. This ensures that China will have almost indefinite time to gain on Japan. China’s dominance over Japan is just a matter of time.

Second, it affects commercial airlines’ bottom line. Civil aviators are never going risk anything for politics. This is their professionalism. What the head of state wants is not the same as the financial interests of an airline. Very minimal force will erode market share of those who refuse to file plight path.

Third, this act is diplomatically beyond reproach as Japan also has a large defensive zone. Those who defy China can have some first laugh, but China will have the last.

Ryokai
December 9, 2013 at 09:18

The insurance for these airlines will go up if they don’t comply with the China PRC’s demand to ‘submit flight plans’. Still foreign power military aircraft activity is unaffected. If the PRC is chasing defacto rights over territory based on administration it should recognise Japan’s rights to the Senkakus based on Japan’s administration of the islands. The fact that the PRC doesn’t recognise Japan’s rights means that the PRC is operating in la-la land.

Doineedaname
December 2, 2013 at 18:10

Well, I guess when you’re the biggest in the area you can do and say whatever you see fit your agenda. However being the biggest does not mean you will win any conflicts. History has proved that over and over again. China has tried to invade and occupied Vietnam for a thousand years, but always failed to tame her spirit. They even forced the Vietnamese to dress the same cloths, eat the same food, study the same language and culture in the hope that one day Vietnamese would become “Chinese”. They also teach their younger generations that Vietnam is a breakaway province and should one day unite to the motherland. As you said they create AMBIGUITY to the younger generations planning the seeds into their heads. There is no such thing “peaceful rise of China”. The free world should kill the “paper tiger”now before it’s too late……….

Guest2508
December 3, 2013 at 11:24

The worst thing that China did to Vietnam was to stop her from establishing her own little Indochina Empire back in 1978. lol

Doineedaname
December 6, 2013 at 15:05

First of all, the war happened in 1979. Second of all, China failed to achieve her primary objective of the war: forcing Vietnam to withdraw its regular army out of Kampuchea ….

guest2508
December 2, 2013 at 10:40

It seems to me that the root cause of this ADIZ controversy is that there is no international organisation to set rules for and regulate ADIZs. All countries (about 20 of them) with ADIZs should sit down together and work out a common set of rules. These rules should clarify what sort of procedures to be used for commercial vs military flights, flights transiting the zone but not entering the host country, how zone boundaries can be demarcated etc.

Country leaders should act like adults instead of like kids in a playground pushing each other around to determine who is the boss. Flying B52s is really like a kid throwing a big tantrum because he and his clique felt they were losing the latest playground squabble.

For the sake of mankind, shouldn’t we all be demanding that our leaders act like adults, instead of joining them in the brawl like many are doing here in this forum?

nirvana
December 2, 2013 at 18:37

@guest2508,
I entirely agree with you. There was no limit to nonsense during the Cold War, and the ADIZ is the outcome of this absurdity. Nowadays, military planes fire missiles, they don’t drop bombs. So how an air-defense zone should extend?

Ryokai
December 9, 2013 at 09:25

The PRC’s claim on Japan’s Senkakus and then drawing an ADIZ over same islands is the act of a petulant child, an act of complete bloody-mindedness. As is China PRC didn’t have more problems to attend to in their own country. Unbelievable.

MYK
December 2, 2013 at 03:50

I see this back-firing on China because what’s to stop other countries from practicing such “Lawfare” with China?

After all, I’ve never heard of any of the other 20 nations that placed an ADIZ even include the private property (Senkaku islands) of another country before. The idea of an ADIZ is placed in international spaces……..not over someone else’s land!

So why not India place an ADIZ into entire Tibet? Or perhaps South Korea extend their ADIZ into Chinese city of Qingdao as well? Maybe only then would the Chinese understand what they are doing is nothing but a provacation.

So what’s to prevent other countries from practicing Chinese Lawfare on China? So should South Korea, also extend their ADIZ into Chinese territory too?

tteng
December 2, 2013 at 14:28

Well…the military side of if could be grandstanding on both sides (i.e. overflight of mil. flights); however, commercial flights are materially affected, and its affect real.

For example: the new ADIZ, I believe, covers approach to lucrative commercial routes to Shanghai, HK, and maybe other Chinese airports. Those flights who refuse to follow the new restrictions might not be allowed to land, thus business lost (therefore the US state dept has asked American airlines to follow the new rule, thus keeping the ‘fight’ out of $$ interest- which unavoidably can be interpreted as ‘recognizing’ some aspect of ADIZ). China could apply the same to its sea routes, to those ships carrying expensive German cars, luxury products, and Aussie minerals.

MYK
December 2, 2013 at 16:39

First off, I was only being sarcastic.

But I doubt the US Delta & United airlines were told to obey the Chinese ADIZ on account of money. The idea of safety from an air accident standpoint seems much more plausable reason for Washington’s decision, as the China PLAAF did in fact state they would shoot down any aircraft in the zone that didn’t comply as I recall.

What’s funny about your comment regarding China on applying that sort to the sea, is that China also just claimed that every single shipwreck in the South China seas belongs to them today.

In the end, China has only proven themselves to be the 2013 Chinese version of 1913 Germany!

nirvana
December 2, 2013 at 18:21

@tteng, MYK,
A commercial airline always files planned routes and is always happy to be identified by whoever want to do so. Also, if they are instructed to modify their plan for their own safety, they would comply (say to avoid a military drill on their route). The ADIZ has no impact whatsoever to commercial airline businesss and I don’t see why they would not comply: they will never accept to be consider as a THREAT, or to be used by their government as a political tool.

Drawing an ADIZ line is not enforcing sovereignty. This is what China misunderstood. It is a Cold War bluff, a nerve testing game: “if you cross this line, anything can happen to your plane, but I won’t tell you now what I am going to do”.

If China thinks (legitimately) that a 44-year old Cold War military concept is obsolete, it is not by drawing itself an overlapping ADIZ that this will serve China’s grand objective. It just shows that China is happy to act irresponsibly (as any other irresponsible states during the Cold War).

KL
December 2, 2013 at 14:39

@MYK. China as a country is so big in land area, as a nation it has 1.3 billion people, as a race it has 5000 years of history, in GDP it is the world’s second biggest, etc…..are you unable to identify at least one good thing ?

Dislike for China and Chinese is one thing which is bad, but extreme hatred is not good for you. You are hurting yourself real bad, as I can see from your tone and manner of speaking.

Take care.

MYK
December 2, 2013 at 16:55

Speaking of China’s known 2000 years of recorded history, the Chinese Emperors have constantly been overthrown by the peasants over corruption & lack of a justice system. Something your Chicom government knows only too well on China’s histories of revolts!

Why do you brag that China is a big country when China has been defeated twice by small island countries like Britain & Japan in its history too?

FYI, China’s 1.3 billion people is unsustainable as a population as the fresh underground water in China will run completely dry by 2020. At which time, it’s expected that 300 million to 500 million Chinese refugees will head towards mother Russia fleeing a dead China.

What’s so great about the air/soil/water/food/corruption/infrastructure problems in China anyway?

KL
December 2, 2013 at 22:54

@MYK. You have not answered my question which is….

are you unable to identify at least one good thing ?

WRV
December 4, 2013 at 00:47

How do you know the islands belong to Japan? Give your proof.

Vietnam
December 2, 2013 at 01:22

Chinese government make their own rules how to conduct business with international worlds even with military.They are breaking all the international rules and even their own.

Socrates
December 2, 2013 at 11:46

My Dear,
China at least has accomplished part of its purpose in this tactic. You see, only US,Japan and Korea reject its claim while most other nations commercial airlines have obeyed its order to report their flights routes to China authority.That means those countries have accepted China authority over that airspace area. Therefore, it would be a serious trouble for ASean countries if China does the same in South China Seas.I think Asean countries should consult with one another so that they can react properly in case China establishes ADIZ in South China Seas ( East Seas) to avoid a ‘fait accompli”.

KL
December 2, 2013 at 14:32

@Socrates. For the first time, I agree totally with you.

Great men think alike. If we take the middle of ground approach, you and me will be able to strive for objectivity in The Diplomat.

MYK
December 2, 2013 at 17:41

I disagree with your opinion that China achieved part of their purpose with the ADIZ. If anything, it would seem Beijing is now boxed into a corner over this decision to implement their ADIZ ever since Japan, South Korea, and the US military made China’s PLAAF lose face already.

In China, it’s clear that the Chinese citizens have now been mocking Beijing ever since the B-52s blew right through the Chicom ADIZ days after its announcement.

The question becomes what will Beijing do next to save what little “Face” they have left after the US, Japan, and South Korean military aircraft continue to ignore Beijing’s orders of compliance!

To me, China miscalculated the entire steps they took to their ADIZ, and now the Chinese are suffering from bruised egos & lost efforts in cross strait ties with Taiwan in the process!

So if your wanted to also say China planned to damage cross strait ties with Taiwan by implementing their ADIZ, then you should pat the Chinese on the back for a job well done with this ADIZ tactic as well.

nirvana
December 2, 2013 at 18:31

@Socrate,
You used 3 words “tactic”, “purpose” and “claim”. I agree with “tactic” (albeit, I think that it was a bad tactic). For “purpose”, I don’t think that China’s aim is to impose any hurdle to commercial airlines. As for “claim”, I wonder what you understood as China’s claim with an ADIZ? A territory or the right to be equally irresponsible?

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