The Hainan incident occurred with a collision in midair over the Chinese exclusive economic zone (EEZ) on April 1. Ten days later, China released the US crew under "humanitarian consideration" without obtaining a formal apology, on which China had insisted. The lack of an apology by the US suggested that the US would not take international responsibility, at least for reconnaissance flight over Chinese EEZ. It also indicates that the US would not stop such flights over the Chinese EEZ in the future.
In the early official protests and statements made by the Chinese Foreign Ministry, China accused the US of violating the UN Convention on Law of Sea (UNCLOS) in the reconnaissance flight over Chinese EEZ. They also accused the US of abusing "freedom of overflight," since the flight infringed on Chinese rights in the Chinese EEZ and threatened Chinese security interests. From the beginning, the US government refuted the Chinese accusation by asserting that the place of collision was international airspace and that the US can enjoy "freedom of overflight" over the Chinese EEZ.
The EEZ regime, acknowledged by the international community in 1982 by UNCLOS, in many respects, was a product of a compromise between developing countries and industrialized countries. The EEZ regime itself has established some rights for coastal states protecting its off-shore natural resources. It reserves for the coastal nation jurisdiction over economic and environmental activities taking place up to 200 nautical miles offshore. The US, which has the strongest sea power in the world, agreed to some preferential status for coastal states in natural resources (the US set up its own EEZ in 1983) but strongly opposed any restrictions on traditional "freedom of navigation" or "freedom of overflight" in EEZ. (The US signed the UNCLOS but did not ratify it because of other reasons). The US regarded these freedoms as "high sea freedoms" (1983 Reagan Proclaim). Developing countries, on the other hand, tried to extend their jurisdiction in EEZ and to restrict these "freedoms." Brazil and some of the other 77-group states (a group composed primarily of economically-developing nations) claimed that any military exercises or maneuvers in EEZ should be subject to prior consent of the coastal states.
These controversies did not even end after the conclusion of UNCLOS. Article 58, paragraph 1 explicitly stipulates that all states can enjoy freedoms as referred to in Article 87 (High sea freedoms, including freedom of overflight). But developing states also got their points in paragraph three of the same article, which says that when exercising these freedoms, states have "due regard to the rights and duties of the coastal states." However, it is not very clear in UNCLOS that "security interests" (which are irrelevant to natural resources and environment protection) should be included in the rights of coastal states in their EEZ.
Hypocritically, the US, which opposed extension of coastal states' rights and jurisdictions in EEZ, by establishing Air Defense Identification Zone (ADIZ) under its domestic law (US code 14 title 99), extended its jurisdiction on the air space beyond its territorial water. Chinese ambassadors, in an April 4 interview on CNN, argued that if a Chinese military aircraft did the same reconnaissance flight over US offshore, that the US would be opposed to such actions. So far, no one has refuted this argument. It is clear that coastal states can take self-defense countermeasures under national security considerations not withstanding UNCLOS provisions. The US should respect Chinese security considerations, as well as Chinese should respect American's near the US seashore.
China avoided connecting his argument to the self-defense notion. China believes that if there were no US military presence in Asia, Taiwan Problem, the highest priority in Chinese foreign policy agenda, would have already been settled. In May 1999, the Japanese parliament enacted a law concerning the "emergency" around Japan that would influence Japanese security, and authorize the Japanese government under proper legal procedural to assist the US military forces in handling the "emergent situation." In such an environment, the Chinese government was reluctant to rely on self-defense notion that stands merely on the "national security interests" but to refer an international convention to which the US is not a party and the legal basis for Chinese argument in that convention is not consolidate. This dilemma indicates that today's China, like the United States' resisting European powers in the 19th century, does not want America to interfere with its regional or domestic affairs (Monroe doctrine, Chinese version).
But this position for legal status of the air space over EEZ may change under two conditions: first, that China get stronger both in economic and in military terms. And secondly, China has national interests far beyond its mainland. This February and March, the Chinese foreign ministry criticized the Philippines for killing a Chinese fisherman and detaining Chinese fishing vessels in the water near Huanyan island, an area where China asserts sovereignty. Unfortunately, Huanyan, Nansha (Spratly) and other islands scattered in South China Sea, are all located within the EEZ of this one or the other Southeast Asian States (Vietnam, Philippine, Malaysia). It is thus hard to believe that China in future will accept a customary rule to outlaw "reconnaissance" flight over EEZ (when China get its own aircraft carrier). Any unilateral expansion of jurisdiction by coastal states is thus not only in violation to UNCLOS but also against Chinese maritime interests in the longer term. This is perhaps the real reason why China did not insist on a US apology for its reconnaissance flight.
As an emerging power in world politics, China may find it even more convenient to share its views with the US rather than with "developing countries." Of course, this process of changing its perspectives on the international legal order is not an easy job and the timing for change needs to be well-calculated. China lost a pilot in the tragedy and its position on EEZ regime, and also got lost somehow in midair.
Xinjung Zhang is a Chinese exchange student from Kyoto University in Japan. He is studying international relations at Tufts
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