Does Japan’s Pledge to Shoot Down Chinese Drones Violate International Law?
The government of Japan has issued a new policy authorizing its military to shoot down foreign (read: Chinese) drones that enter the airspace over the disputed Senkaku/Diaoyu Islands in the East China Sea. China’s Ministry of Defense has issued a statement suggesting that such an action would be an “act of war” and declaring that China’s manned and unmanned flights do not in any way violate international law.
Interestingly, I think both sides could act in good faith and comply with international law, and still get involved in a nasty dangerous military conflict. Of course, the nub of the problem is that both Japan and China claim sovereignty over the same airspace, e.g. the Senkakus/Diaoyu. So both countries could claim to be acting in “self defense” over their sovereign territory in either shooting down or reacting to the downing of a Chinese drone.
One interesting question is whether downing a Chinese drone that was unarmed, and that was not clearly military, would be a violation of the Chicago Convention on International Civil Aviation. Many of the Chinese drones are associated with the PRC’s various coast guard equivalents, and are not associated with their military. Article 8 of that Convention has a pretty clear ban on the flight of “pilotless aircraft” over the territory of another member state. So Japan has Art. 8 on its side. But China would never concede the basic sovereignty question, thereby making Article 8 pretty unhelpful. Still, would the Japanese shoot down a clearly unarmed “manned” plane that encroached on the Senkakus? So why shoot down the unarmed drones? Plainly, Japan will have to offer some evidence of the drones’ threat to bolster any attack it makes.
On the other hand, is China overreacting to call those Japanese threats an “act of war”? I suppose that is technically true if one accepts that China’s drones are flying over Chinese airspace. Still, it is hard to imagine that downing a drone (where no one is hurt or killed) could have the same significance as downing a manned plane.
I think Japan is trying to test China, and draw lines on matters that wouldn’t necessarily escalate into armed conflict. It just might work, but it is sure risky.