Tuesday, November 26, 2013




U.S. Navy  Air Formation Over Guam, Photo U.S. Navy


The White House officially protested the publication of an air defense zone over the disputed Senkaku islands by China yesterday. The islands are recognized territory of Japan incorporated as such into the final peace treaty between Japan and the United States concluding WW II. That occurred in the early 1950s and the government of China did not attend the treaty negotiations because it was busy fighting the Communists who also did not attend because they weren't the government of China yet. There was ample historic reason for including these uninhabited islands as territory of Japan since Japan had historic claims of discovery and verifiable effective administration since 1895. In short the islands were Japan's well before World War II and they were simply being recognized as Japan's prewar southern most territory.
Whether China likes it or not the United States is treaty bound to defend these islands on behalf of Japan.
The United States has stated that it has no interest in who has actual sovereignty but given Japan's internationally recognized status as sovereign the United States must assume its treaty obligations unless and until China were to win a declaration of sovereignty in the appropriate UN tribunal. 

 The establishment of an air defense zone over the islands is an aggressive act aimed directly at Japan and the United States despite Chinese claims that the zone is "not aimed at any particular nation. On the other hand it is not a completely illegal act. The Japanese have had a preexisting zone over the islands for decades. As we explained in our on line book THE ENDURING PRINCIPALS OF MARITIME INTERNATIONAL LAW such air defense zones are a legitimate "servitude" that adjacent coastal states may exercise. The speed and range of modern military attack air craft create the necessity for coastal states to push their air defenses out over international waters in order to have any chance of intercepting incoming enemy aircraft coming from seaward. However the right to operate such zones does not allow the state establishing such zones to interfere or exclude  the innocent passage of  any aircraft especially scheduled air liners. In the case of ocean areas closely adjacent to the national waters, even the disputed national waters of two adjacent states the establishment of such zones should be negotiated between the two adjacent coastal states. This is the customary international law. However China claims the islands as their own and negotiating with Japan would tend to weaken their already pitifully weak legal case. So China acted unilaterally.

 We disagree in part with the White House reaction. At present it appears that U.S. air lines will decide on their own what they will do and with passenger safety coming first will probably "Squak" ( radio communicate) with both Japanese and Chinese air defense systems. The White House should have instructed the FAA to issue a directive along those lines requiring the airlines to dual communicate as the safest policy for passengers, and to note protest to the Chinese. This would tend to nullify any claim by China that their air defense zone contributes in any way to international recognition of effective administration over the disputed islands. By stating that U.S. military aircraft will simply ignore the zone we invite an unintended shooting incident. We also would be ignoring an unsettled principal of international law. The obligation to negotiate arrangements for air defense zones in similar geographic situations is simply customary and the alternative when two adjacent coastal states can't agree is not firmly set in international legal precedent. However, the right to establish such "servitudes" over international waters is. Why would we want to give the Dragon a legal argument weak as it is to shoot at our air craft. We back our proposal of the other day. The U.S. and Japan should fly recon in force squadrons over the area, notice the Chinese air defense system of our intention to do so, provide coordinates of our intended movements, communicate with the Chinese air defense system but not comply with any orders to deviate from the duly noticed flight plan. As long as our flight plan does not violate internationally recognized Chinese air space or legitimate and recognized Chinese air defense zones and our final turn out of the area is a turn away from Chinese territory or air space the Chinese have no clear international legal right to interfere. If they scramble interceptors to approach our formation, they have every right to do so. If they lock on with any target acquisition radar we have every justification in engaging and shooting their planes down. 

 This is a bit of an over simplification. (1) The international law recognizes the establishment of air defense zones as a legitimate right of nations.  (2) The law is murky when it comes to such zones over disputed islands or undefined border areas. (3) Competitive air defense systems in the same geographic area are a bit unprecedented.  Our suggestion of airliner participation under protest, and formal recon in force with notice is an attempt at finding a reaction that is excruciatingly correct under international law.  By being excruciatingly correct under international law we force China into the first "shot" which modern air to air tactics might well define as target acquisition radar lock on. Whatever happens after that we have both sides with acceptable reasons in terms of justifying things to their populace for not immediately declaring the event an "act of war". Both sides may resort to international tribunals, but China's already weak case will look even worse. That might force a negotiated settlement that denies China any enhanced claim over the islands by virtue of their unilateral declaration of an air defense zone. If an actual exchange of fire occurs between Chinese and American/Japanese air units the reckless brinkmanship of the Chinese will be exposed to the world. As we have described previously the Chinese are now literally surrounded by neighboring states that fear the Dragon. But the reaction of these neighboring states has not been to cower in the face of the dragon but to unite in defense. China must pull back from its thug like military activities and resume a charm offensive of soft power or abandon all hope of ever being the regional leader of Asia. Indeed Chinese national well being is at stake, and regime change just a military defeat or embarrassment away. The Dragon is not invincible, especially not in its present friendless state.

Editor's Note: This post was being written yesterday and events over took it. The U.S. Air Force as we reported in our News Alert of yesterday flew two B52 bombers over the islands without contacting Chinese air defense. We stand by our suggestion  above and decided to publish it in the event the White House announced policy proves problematic. There are alternatives, ours is but one. Lets hope for the best.


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