Does Japan’s Pledge to Shoot Down Chinese Drones Violate International Law?

by Julian Ku

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.

http://opiniojuris.org/2013/10/28/japans-pledge-shoot-chinese-drones-violate-international-law/

5 Responses

  1. I’m surprised that you conclude that Japan is trying to test China. Whatever the strength of the respective claims, the status quo is that Japan controls the Senkakus/Diaoyu. It’s China that’s testing Japan by increasing its naval and air probing of this area. China has not hitherto flown manned or unmanned, armed or unarmed, aircraft over the S/D. If it starts to do so, it seems odd to call that Japan testing China.

  2. Julian: “clearly unarmed” may not be the proper conclusion in each case.  Given Donald’s point above, a drone that keeps flying towards Japanese civilians and military personnel could create a circumstance where a selective measure of self-defense would be appropriate regardless of the dispute regarding ownership.  In other words, it could create a circumstance where Article 51 pertains.  Moreover, a Chinese use of drones, especially where it is not “clear” that they are “unarmed,” could constitute a violation of Article 33 of the Charter.  Additionally, a drone could be used like a bomb even though it is “unarmed,” because it can be directed to fly at a target and explode near or on the target (with its own fuel acting as the equivalent of bomb material).
    China should avoid provacation that can trigger Articles 33 and 51 of the U.N. Charter.  Perhaps Japan should request the Security Council to act under Articles 39 and 41, even though China may have to act alone in using a veto.

  3. Julian – your reliance on the Chicago Convention is misplaced. The drones in question are state aircraft. Therefore, the Convention does not apply. See Article 3: Article 3 Civil and state aircraft a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft. b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

  4. Prof. Pedrozo has addressed the Chicago Convention / State aircraft issue, but I would like to pursue another point about State aircraft. Prof. Ku writes: “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.” To some extent, I wish to disagree.
    I suggest that it has long been recognised that an attack on a warship amounts to an ‘armed attack’ and as such is sufficient to enliven a right to act in national self-defence. I further suggest that this is because it is an attack on a warship per se, not on the nationals of the State that make up the ships company (although that too might amount to an armed attack). For example, it would be an armed attack to attack the warship of a State even if the entire ship’s company was not onboard. I will further suggest that an attack on State aircraft is analogous to an attack on a warship. So, finally, I submit the view than an attack on an unmanned aerial vehicle (remotely piloted aircraft) that is also a State aircraft can amount to an armed attack for the purposes of national self-defence.

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