At the recently concluded Japan-ASEAN summit meeting in Tokyo, Dec 14, in a surprise move, Japan and the South East Asian nations reaffirmed
their commitment to ensure “freedom of over flight” in the region, given the growing apprehensions and uneasiness in East Asia over China’s new Air Defense Identification Zone (ADIZ). It may be recalled that Beijing announced the establishment of its East China Sea ADIZ on Nov 23 – a declaration that made front page news across the globe. As per this, on entering the Chinese ADIZ all foreign aircraft are required to report their flight information to China. This news sent out shock waves across the South China Sea, East Sea and East China Sea region and raised eyebrows in many other countries. Chinese officials subsequently clarified that the ADIZ is not their territorial airspace, nor is it the enlargement of a country’s territorial airspace. The Chinese believe that they have complied with common international practices while setting up their ADIZ. According to Beijing, every country has the right to set up their ADIZ without seeking consent from other countries if their action is not violating international laws, breaching other countries’ territorial sovereignty or affecting their freedom of flight. Since 1950, ADIZs have been announced in more than 20 countries. The first was established by the United States in 1950. The South Korean ADIZ was established by the US in 1951 during the Korean War. Japan’s ADIZ was also created by the US during its post-World War II occupation of Japan. Management of the ADIZ was transferred to Japan in 1969 and thereafter Japan expanded their zone westward twice: once in 1972, and later in 2010. Although the ADIZ is not a new concept to the world, China’s ADIZ declaration stirred a chaos as its zone overlaps with other countries’ and upon entering the Chinese ADIZ flight information is required to be reported to the Chinese authority. This appears to be a deviation from common international practices. South Korea on Dec 8, 2013 announced a southward expansion of its ADIZ which also included the nation’s two southernmost islands of Marado and Hongdo, as well as the Suyan Rock of China, a submerged reef within the overlapping EEZ of China and South Korea. Further turmoil may be anticipated in these regions given that the Paracel Islands are claimed by China and Vietnam and are presently occupied by China. There is dispute over the Spratly Islands, which are claimed entirely by China, Taiwan and Vietnam, and in part by the Philippines, Malaysia, and Brunei and are occupied in part by each of these countries, except Brunei. The Scarborough Shoal is claimed by China, Taiwan and the Philippines; and there is dispute over the Senkaku Islands in the East China Sea which are claimed by China, Taiwan and Japan, and administered by Japan. One may conjecture that the declaration of ADIZs are a counter measure to countries establishing their claim over these disputed islands. The overlapping islands claims coupled with overlapping ADIZ claims in the South China Sea, East Sea and East China Sea region seems to have created political unrest in this region(s). The root cause for this disarray can effortlessly be traced back to the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). UNCLOS concluded in 1982 thereby replacing the four 1958 Geneva Conventions as a result of consensus politics.
UNCLOS reflects a combination of the zonal and functional approaches to law-making in this field. As a consequence, it has brought about a radical change in the interface between states and the availability of resources from the oceans. UNCLOS has opened up a new global regime for the ocean by creating multiple maritime zones having different natures and functions. Along with the highs of the advantages of a unified new regime, come the lows of potential disputes relating to the entitlement and quantum of resources among states. Adding further to the commotion, under UNCLOS, countries with islands are entitled to claim maritime zones around those islands, as applicable to land territory. In non-tidal waters there is only one dividing line between land and water. In contrast, in tidal waters, the expanse of water relative to land depends on the tidal level at a given time. Therefore, the maritime demarcation line may vary with the shoreline. The so-called ‘equidistance’ or ‘median line’ is the most convenient way to delimit boundaries in a water body in the absence of any special natural features. Equidistance was initially the sole legal principle for the delimitation of maritime boundaries. Under this principle, one simply needs to measure the distance over the span of water to be divided and draws a line through the middle. However, with the multiplicity of maritime zones, the simplicity of the equidistance principle has proved to be inadequate and in many instances, grossly unfair. Inequity is apparent where resources are unequally divided by the application of the equidistance principle. As a result of this regime, the South China Sea, East Sea and East China Sea region has been experiencing rough weather over some of the islands. UNCLOS is conservative about countries exercising their sovereign rights over their Exclusive Economic Zone (EEZ), other than those prescribed. Alongside these conforms UNCLOS radically defines the high seas as a part of the sea that is not included in the EEZ or in the territorial sea. The definition also affirms that it does not entail
abridgement of the freedoms enjoyed by all states in the EEZ, in accordance with UNCLOS. This effectively means, though the high seas technically starts from beyond the EEZ limits, whereas, the freedom of the high seas regime under UNCLOS begins from the outer boundaries of territorial waters of all states who have ratified UNCLOS. Whereas, countries who are not signatories to UNCLOS equally enjoy the high seas freedom from the outer boundaries of the territorial waters of other states under the 1958 Geneva conventions. The fusion between the traditional text of the 1958 Geneva conventions and the modern requirement of UNCLOS calls for offering highest tribute to the draftsmen of UNCLOS. The conflict does not appear to be about countries enjoying the freedom of the high seas under UNCLOS! The conflict also appears to brew out of activities which need prior consent of the coastal state under UNCLOS as against activities under the 1958 Geneva Conventions. Now that explains why certain counties have been persistent objectors to the doctrine of seeking prior consent of the state party when it comes to enjoying their freedom of the high seas in the EEZ of any other state. These countries claim their right of conducting military activities amongst other activities in the EEZ of another country as their freedom of the high seas, which according to them is also accorded under customary international law. As simple as it sounds, customary international law is not codified. They need to be perceived and scrupulously assessed irrespective of whether or not the rule exists. UNCLOS today has amassed the general support of states. The 200 nautical miles EEZ regime was declared by many coastal states much before UNCLOS came into force. Just as the world got the Geneva Convention on the Continental Shelf which was largely based on the principles of the United States President Harry S. Truman Proclamation
and which came into practice much before the 1958 Geneva Convention on the Continental Shelf; similarly, the world also got UNCLOS, codifying the customary rights of the states who declared their EEZs amongst others, much prior to UNCLOS coming into force. As it stands, the complete text of UNCLOS was not conjured in 1982 when UNCLOS was adopted. Some of the present day mayhem-creating text in UNCLOS, such as the doctrine of the of high seas, freedom of navigation on the high seas, passage through territorial waters, etc, are all incorporated into UNCLOS almost ad verbatim [Latin: “in full”] from the 1958 Geneva Conventions. The 1958 Geneva Conventions on the Law of the Sea were layered on the principles of international law, which in turn originated from customary practices. Without hesitation, one can conclude that UNCLOS has its origins in the customary practice of nations. Customary international law is spliced into UNCLOS. One can now understand that this present day mayhem in the South China Sea, East Sea and East China Sea region is the resultant of interpretation between UNCLOS and 1958 Geneva Convention(s), which are powerful conventions governing the same subject “law of the sea”. What makes this matter chaotic is the fact that these conventions uphold the principles of customary
international law. The presumption in law is that, a rule of customary international law binds all signatory states. Unfortunately, the dispute settlement mechanism under UNCLOS is not designed to settle territorial disputes and the veto powers of some countries in the UN Security Council may keep away the involvement of the ICJ and other international tribunals. Therefore, even though the states around the South China Sea, East Sea and East China Sea region may be in state of restlessness, needless to say, to maintain global peace, the way forward is to allowed these regions to resolve their
internal disputes in accordance with their respective bi-lateral and territorial laws without any external interference; the 1958 Geneva Convention(s) and UNCLOS requires to be renegotiated, merged and ratified by all the countries who are signatories to the UN charter. The Law of the Sea Convention (UNCLOS) 1982 firmly hinges on customary international practice. The principles that the seas are to be used for peaceful purposes and states would be required to have due regard to the rights and duties of the coastal state, which is an integral part of UNCLOS also qualifies as customary international law. Needless to say, the cardinal thumb rule of principles of customary international law mandates that treaty rules and obligations be respected by all states; Pacta Sunt Servanda (Latin for “agreements must be kept”). The author can be contacted at reddiarchana@hotmail.com This article appeared at the South Asia Monitor and is reprinted with permission.By Archana Reddy – Eurasia Review
