Archive of posts for category
Asia-Pacific

Chinese Victims of Forced Labor Sue Japanese Companies in Chinese Courts; They Might Even Win

by Julian Ku

In a legal wrinkle to the ever-worsening Sino-Japanese relationship, the Chinese government has now publicly backed a lawsuit filed in Beijing courts against Japanese companies that used Chinese citizens as forced laborers during World War II.

The lawsuit names Mitsubishi Materials Corporation and Mitsui Mining and Smelting as defendants and asks for compensation of 1 million yuan ($163,000) for each defendant as well as apologies in the Chinese and Japanese languages to be placed with the country’s major media outlets.

Japan’s government has already opposed these lawsuits, saying that any such war reparation claims were settled by postwar agreements between China and Japan. Its spokesman:

“…I can say that since such problems were included in the Japan-China communique, there is no case,” he said. “The individual rights for seeking (compensation) were included in the communique.”

In a prior post, I noted that Korean courts have allowed similar lawsuits against Japanese companies to proceed despite pretty clear language blocking such lawsuits in the Korea – Japan Agreement on the Settlement of Property.  Unless I am missing something, however, I don’t see any similarly clear language in either the China-Japan Peace Treaty or in the 1972 Communique re-establishing diplomatic relations.  The Communique does contain this clause:

5. The Government of the People’s Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.

This language could be read to bar claims by wartime victims against Japanese companies for forced labor, but that reading is far from clear (at least to me).  If you compare this language to the Korea-Japan Agreement (“problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons)” were settled) (emphasis added) and the US-Japan Peace Treaty (“the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war…”) (emphasis added), then the Japan-China Communique language looks far less protective..

In the China-Japan Communique, only the “Government of the People’s Republic of China” has “renounced its demand for war reparations.”  The people of China, or individual Chinese people, might still have claims, and there is also  no mention of waiving claims against Japanese persons or nationals.  Normally, governments only have claims for reparations from other governments.

Moreover, while the U.S. took lots of Japanese property in “compensation” during its occupation of Japan before waiving its further claims, and Korea got the Japanese to pay a cool $300 million in 1965 dollars before settling its claims, the Chinese government got nothing (at least financially) for its agreement to waive its claims.  This seems to further support the idea that some wartime claims still exist.

So read in context, the Chinese plaintiffs have a better case than their (already victorious) Korean brethren.  It is also possible that the Communique (unlike the Peace Treaty) is a non-binding international agreement, which would also not have any direct effect in Chinese courts.  So based on the relevant treaties and agreements, I think the plaintiffs have a decent case here. Inded, it is surprising that no similar lawsuit was filed before in Chinese courts.  The reason probably has more to do with the nature of Chinese courts than the international treaties and agreements relating to this lawsuit.

 

Should Taiwan and China Join Forces in Defending Territorial Claims?

by Julian Ku

As China continues to offend or at least alarm its neighbors in East and Southeast Asia with its expansive territorial and maritime claims, it is worth noting there is one important Asian player who wholeheartedly supports each and everyone one of China’s sovereignty claims:  Taiwan. (Taiwan’s government even supports China’s sovereignty claim over Taiwan, just disputing which government is “China”.)

In fact, the government on Taiwan, as the Republic of China, is actually the government that originated the now highly-controversial Nine Dash Line when it was still in power on the mainland (actually, Taiwan’s line has Eleven Dashes, so it is even more expansive).  And Taiwan has the exact same sovereignty claim over the Diaoyu Islands/Senkakus that China has.  Taiwan actually houses a lot of the academic firepower and expertise on the international legality of these various maritime claims.

So this editorial from a pro-China Taiwan newspaper, calling for a joint China-Taiwan policy in favor of the South China and East China Sea claims, kind of makes sense.  If you overlook the fact that the two sides are still technically at war and all that.

In my view, Taiwan should jettison at least the most expansive of China’s claims, especially the Nine-Dash-Line.  It is odd, even ridiculous, for the government in Taiwan to support this claim of sketchy legality when (unlike China), there is no prospect of Taiwan ever asserting actual control over the South China Sea. And because the U.S. is now officially opposed to the Nine-Dash-Line, Taiwan needs to re-evaluate its position. If Taiwan sticks to its positions, and even starts cooperating with China on exerting their claims, then it is another sign that Taiwan is slowly drifting into China’s orbit and away from the U.S.  It may be a sign that, as leading realist scholar John Mearsheimer wrote this week, Taiwan’s eventual domination by China is only a matter of time.

A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

According to VOA News, the Ukrainian Parliament would like the ICC to investigate recently-deposed President Yanukovych:

Ukraine’s parliament voted on Tuesday to send fugitive President Viktor Yanukovych to be tried for ‘serious crimes’ by the International Criminal Court once he has been captured.

A resolution, overwhelmingly supported by the assembly, linked Yanukovych, who was ousted on Saturday and is now on the run, to police violence against protesters which it said had led to the deaths of more than 100 citizens from Ukraine and other states.

The resolution said former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, who are also being sought by the authorities, should also be sent for trial at the ICC, which is based in The Hague.

The court says it needs a request from Ukraine’s government giving it jurisdiction to investigate Yanukovych and others over deaths during the protests.

I’m pretty sure the Court did not actually say that. Why? Because Ukraine has signed but not ratified the Rome Statute. And it can’t without Parliament’s intervention, because Ukraine’s Constitutional Court has held that the Rome Statute is not in conformity with the Ukrainian Constitution. So here’s a suggestion: before Parliament tries to send its former President to the Hague — and it would, of course, have to refer the situation in the Ukraine, not just him — it should amend the Constitution and ratify the Rome Statute.

All that said, there would be worse things than a Ukraine self-referral. After all, the Ukraine is not in Africa, and it’s unlikely that Yanukovych won’t eventually be apprehended. Prosecuting a former non-African head of state would do wonders for the ICC’s reputation.

UPDATE: In the comments, Shehzad Charania mentions the possibility of the Ukraine accepting the ICC’s jurisdiction on an ad hoc basis and then waiting for the OTP to initiate a proprio motu investigation. As I read the Constitutional Court’s decision, linked to above, that route is also foreclosed by the Ukrainian Constitution. Here is the relevant paragraph from the ICRC’s summary of the decision:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

If the problem with ratifying the Rome Statute is that Ukraine cannot delegate the administration of justice to an international court, that would seem to prohibit accepting the ICC’s jurisdiction on an ad hoc basis, as well.

Japan and Korea Take Their (History) Wars to U.S. State and Local Legislatures

by Julian Ku

A lawsuit filed yesterday in California federal court seeks the removal of a statue in a Glendale, California public park honoring women victimized by the Japanese military during World War II.  The placement of the statue was approved by the local city council with the strong support of Korean and Korean-Americans who want to recognize the suffering of the “comfort women”. The lawsuit appears to claim as one of its arguments that the local city council is interfering in national foreign affairs in violation of the US Constitution.

This lawsuit is only the latest front in a spreading battle between Korean and Korean-American groups and the Japanese government in various state and local legislatures.  In Virginia, the state legislature (again with strong Korean-American voters support) passed legislation requiring textbooks in public schools to note that the Sea of Japan is also called the “East Sea.”  New Jersey is considering similar legislation, and already has its own “comfort women” memorial.

As a legal matter, I can say with high confidence there is no serious argument that the placement of a statue in a public park, or the rewording of textbooks, violates the federal government’s foreign affairs authority under the Constitution.  No legal rights of foreign nationals are involved, nor is this a matter traditionally handled by the national government, nor does the US-Japan Treaty of Peace preempt this action.  So this aspect of the anti-memorial folks’ lawsuit seems pretty hopeless and borderline frivolous.

I am less sure about the policy benefits of this type of activity.  For US legislators this is just a cheap and easy way to get support from a growing voter population.  China’s government has tried a similar strategy to garner Korean friendship on a much grander scale when it put up a huge memorial to a early-twentieth-century Korean anti-Japanese revolutionary.  But those actions are purely out of self-interest.

On the other hand, all of this seems like a relatively gentle way to prod the Japanese on these issues.   In any event, expect to see more action at the state and local level in the U.S. One hopes (although this seems a vain hope) that this activity might even spark some useful Korean-Japanese debate on matters that they can’t seem to talk about much back in Asia.

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

China’s Crackdown on the Uighurs and the Case of Ilham Tohti

by Chris Borgen

The New York Times reports that  Ilham Tohti, a Uighur economics professor, has been arrested by Chinese authorities for separatism and inciting ethnic hatred.  A number of his students are also seemingly being detained. Tohti is just one person and, perhaps unfortunately for him, his case is emblematic of larger regional tensions in China and Central Asia.

The Uighurs are a Turkic-speaking ethnic group, about 80% of whom live in the southwestern part of the Xianjian Uighur Autonomous Region in Western China.  Xianjiang is a geopolitical crossroads  and is also important for China’s energy policy, with significant oil and natural gas reserves.   Moreover, a Council on Foreign Relations backgrounder on Xianjian and the Uighurs explains that

Xinjiang shares borders with Mongolia, Russia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Pakistan, India, and the Tibet Autonomous Region, some of which have minority communities of Uighurs. Because of the Uighurs’ cultural ties to its neighbors, China has been concerned that Central Asian states may back a separatist movement in Xinjiang.

The CFR also gives a précis of the last century:

Since the collapse of the Qing Dynasty in 1912, Xinjiang has enjoyed varying degrees of autonomy. Turkic rebels in Xinjiang declared independence in October 1933 and created the Islamic Republic of East Turkistan (also known as the Republic of Uighuristan or the First East Turkistan Republic). The following year, the Republic of China reabsorbed the region. In 1944, factions within Xinjiang again declared independence, this time under the auspices of the Soviet Union, and created the Second East Turkistan Republic.

In 1949, the Chinese Communist Party took over the territory and declared it a Chinese province. In October 1955, Xinjiang became classified as an “autonomous region” of the People’s Republic of China. The Chinese government in its white paper on Xinjiang says Xinjiang had been an “inseparable part of the unitary multi-ethnic Chinese nation” since the Western Han Dynasty, which ruled from 206 BCE to 24 AD.

And then we come to the story of Ilham Tohti, the economics professor.  The New York Times reports:

A vocal advocate for China’s embattled Uighur minority, Mr. Tohti, 44, was the rare public figure willing to speak to the foreign news media about the Chinese government’s policies in the vast region that borders several Central Asian countries. He was also the target of frequent harassment by the Chinese authorities, especially after he helped establish Uighurbiz.net, a website for news and commentary on Uighur issues.

There has been unrest in China’s west over the past year

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Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

Why the U.S. State Department Deserves an “F” on their Handling of the Indian Consul Flap

by Julian Ku

It looks like the U.S. and India have worked out a sort-of deal to end the battle over visa-fraud charges brought against India’s deputy consul-general in New York Devyani Khobragade.  Yesterday, a U.S. grand jury indicted Khobragade on the visa-fraud charges, and shortly thereafter, Khobragade was allowed to leave the U.S. for India.  India is now retaliating by demanding the U.S. withdraw a U.S. diplomat from India.

From a purely legal perspective, this is a smart move by the U.S. since even if it had continued with the prosecution, Khobragade would be able to raise a variety of defenses based on her possible status as a diplomat accredited at India’s UN Mission at the time of her arrest, or at least her status at the Mission now.  I think those defenses are decent (though hardly slam-dunk) and, if rejected, would further inflame India as well as create unwelcome precedents for US consuls and diplomats abroad.

Of course, from a diplomatic perspective, it seems clear to me that this prosecution should never have been brought, or at least there should never have been an “arrest” (much less the strip-search).  Why couldn’t the U.S. have indicted her without arresting her, or even just demanded her withdrawal without indicting her?  That is effectively what has happened anyway, except that we also get a crisis in US-India relations like we haven’t had in decades.

I’m putting the blame here almost completely on the U.S. State Department. They (supposedly) had notice that this arrest was going to happen, and they did not take steps to head off a pretty serious diplomatic incident.  Dealing with foreign diplomats is at the heart of what they do.  And they couldn’t have predicted what happened here?  C’mon Secretary Kerry, hold someone responsible!

I’ve just finished my grades from last semester (yes I know, I’m late!).  But I have no problem giving the U.S. State Department an “F” here.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Does the U.S. Congress Have to Approve the New WTO Agreement? Apparently Not.

by Julian Ku

Simon Lester of the IELP Blog raises an interesting and possibly important point about the new WTO Agreement just reached in Bali.  In order for the U.S. to enter into the agreement, will the U.S. Congress have to approve it?

On first glance, the answer would seem to be: “yes” since the U.S. Congress invariably is required to approve all U.S. trade agreements (as opposed to just the Senate, if it were a treaty).  In any event, I would have thought the U.S. Congress would have to approve the new Bali agreement as new legislation.  But then Simon points out this comment by U.S. trade officials from Inside U.S. Trade:

At the press conference, Punke said the Obama administration does not believe the deal requires congressional approval. “Our analysis of the trade facilitation agreement is it can be effectuated through administrative means and would not require legislation to put it into force,” he said. The obligations of the trade facilitation agreement are enforceable under the WTO Dispute Settlement Understanding.

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

Or perhaps not.  Maybe the President really is free to bind the U.S. under international law via executive agreement on trade matters without any approval of Congress as long as no domestic law change is needed. This means that trade agreements really are just sole executive agreements that Congress is not really approving, but just implementing into U.S. domestic law.  And if no implementation is required, no Congress. This makes sense, but I just don’t think this the common understanding of how or why these congressional-executive agreements work.

One way out of this problem is (as Simon also points out) to understand the Bali Agreement as an amendment to the WTO Agreement. That agreement  (in Art. X) specifically outlines a mechanism for amendment which requires “consensus” (e.g. unanimity) or (depending on which provision is being affected) a two-thirds vote of the Ministerial Conference. In this way, Congress may be understood to have already approved future amendments to the WTO Agreement when it “approved” the original WTO Agreement back in 1994.  This “delegation” theory is probably a better explanation of why no congressional approval qua approval is needed for the Bali Agreement. Not totally satisfying, but probably enough here.

Why the U.S. is Not Invoking International Law to Oppose China’s ADIZ

by Julian Ku

China’s East China Sea Air Defense Identification Zone (ADIZ) has spawned tons of media commentary, so much so that I have had little to add and can barely keep up with all the coverage. Still, there is one small legal point that bears some further discussion.  While I think the U.S. is correct as a matter of policy to push back against China’s ADIZ, the legal framework underlying the U.S. position is awkward and borderline incoherent.  In fact, the confusing U.S. legal position may explain why the U.S. is not sympatico with Japan on China’s ADIZ.  Let me explain.

It is worth noting that U.S. has not condemned China’s ADIZ as a violation of international law. Instead, the U.S. has called it “unacceptable” and a change in the “status quo”.  Meanwhile, the Chinese have wielded international law as a rhetorical weapon on their side, by citing the U.N. Charter from the outset.  This may seem odd, but in fact, the Chinese are sort of right about this.

As Peter Dutton notes in his AJIL article, establishing an ADIZ is not in itself a violation of international law,  Indeed, it is usually justified by a need to create an early warning system to protect national airspace.  China’s ADIZ seems pretty large (map can be found here), and the U.S has rightly complained that aircraft just transiting the ADIZ should not be subject to China’s requirements if those airlines are not planning to enter (or even come near to) Chinese national airspace.

But China’s ADIZ is carefully drawn to include two sets of islands/rocks that it claims as sovereign territory: the Senkakus/Diaoyu (also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea).  To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc.  As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft to report flight info/etc. when entering the ADIZ.  (Some commenters to my first post have suggested China can’t invoke self-defense over a disputed territory, or uninhabited islands that don’t otherwise threaten its national airspace.  I am not sure the customary practice is clear on this, since Japan’s ADIZ, which also covers the Senkakus/Diaoyu, couldn’t be justified either under this view. Also, for the purposes of this post, I am assuming China has a plausible claim to the islands).

Seen from this perspective (at least vis-a-vis the U.S.), China’s ADIZ is not inconsistent with any existing international agreement or customary legal rule.  This is largely because of the strange and confusing U.S. position on the sovereignty over the Senkakus/Diaoyu Islands.  The U.S. does not take any official position on which country (China, Taiwan, or Japan) has sovereignty over these islands.  But it recognizes that Japan has administration over them (indeed, it was the U.S. that turned them over to Japan back in 1972) and the U.S. has repeatedly declared that such islands fall within the scope of the U.S.-Japan Defense Treaty.But since the U.S. does not recognize Japanese sovereignty over the Senkaku/Diaoyu Islands, why should it complain when China draws an ADIZ intended to protect airspace over those islands?

This wrinkle in the U.S. position also explains Japan’s harsher reaction to the Chinese ADIZ. To Japan, China is literally demanding Japanese airlines report to its military before crossing airspace into or near Japan’s own national airspace.  It would be like China demanding information from US airlines flying between San Francisco and Hawaii (Congress would explode with indignation).  But from the U.S. perspective, China is just demanding information about airlines flying near disputed airspace that may or may not be part of China anyway.  This is a threat to freedom of international air navigation, but it is not anything like the same kind of affront to sovereignty that it is to the Japanese.

The U.S. position would be more legally coherent if it would simply recognize Japan’s sovereignty over the Senkakus/Diaoyu.  After all, if the U.S. Navy is willing to fight and die for these islands, the U.S. should at least decide whose owns these islands. (If China creates an ADIZ in the South China Sea, the U.S. will also have the same dilemma. See Michael Kelly’s recent essay on the strategic implications of such an ADIZ).  China is subtly probing the U.S. position here, and it has opened up a slight wedge between the U.S. and Japan.  But this wedge is a result of contradictions in the U.S. legal position, not China’s clever diplomacy.