There’s been an avalanche of news on the East China Sea over the past week. As I discussed in my previous post, China recently announced a new Air Defense Identification Zone (“ADIZ”), thereby requiring foreign aircraft flying over the Sea to provide navigation plans and means of identification to Chinese authorities, and to follow any instructions from the same. China’s armed forces “will adopt defensive emergency measures” against any aircraft that fails to cooperate. The reactions have been uniformly negative. Australia, Japan, South Korea, Taiwan, and the United States have all expressed opposition, while Japan, South Korea, and the United States each sent military aircraft into the ADIZ without notifying China or otherwise complying with the announced rules. Sensing that they had overreached, Chinese authorities subsequently exempted U.S. aircraft as long as they do not “go too far.” Japan, however, is still subject to the ADIZ. My last post explained that the legality of all of this hinges on whether China has title to the Senkaku / Diaoyu Islands that are located within the ADIZ, and on how aggressively China chooses to enforce the measure.
My purpose here is to make a simple point: regardless of whether the ADIZ is lawful, it carries close to zero legal significance in the sovereignty dispute over the Senkaku / Diaoyu. The reason is that once a dispute crystallizes, a development marked by the so-called “critical date,” the law denies the relevance of all subsequent acts that either party undertakes for the purpose of improving its legal position. The goal of this doctrine is twofold: First, it aims to reduce the risk of military or other conflicts that might arise from simultaneous acts of sovereignty by the competing parties. By deeming most subsequent acts irrelevant, the law reduces the benefit that a party might obtain by disturbing the status quo. Second, the doctrine aims to protect the quality of the evidence on which sovereignty may depend by eliminating the incentive for parties to create new facts in support of their claims once a dispute has arisen. Underlying this particular goal is the assumption that official acts that occur prior to the crystallization of the dispute are more genuine indicia of sovereignty or its absence because such acts are undertaken without an eye toward the response of other parties or international tribunals.
The critical date for the Senkaku / Diaoyu dispute is no later than approximately 1970, shortly after the UN Economic Commission for Asia and the Far East reported a high probability of massive deposits of oil and natural gas underneath the waters surrounding the Islands. This is the point at which the parties understood the economic stakes of sovereignty, and began publicly to assert competing claims. The result is that an overwhelming majority of official acts that have occurred in the decades since are inconsequential. It is generally of no moment, for example, that the Japanese government purchased some of the Islands in 2012, or that Chinese vessels have visited the surrounding waters with frequency in recent years. Likewise, it doesn’t matter that China has now established an ADIZ that regulates the airspace above the Islands. At most, such acts demonstrate only that neither party has acquiesced in the sovereignty claim of the other; they cannot support title as evidence of effective control. Sovereignty over the Islands, wherever it belongs, was decided by events that occurred decades ago, if not earlier.
Rather than bolster China’s legal claim, the purpose and effect of the ADIZ is to help slowly pry the Islands from Japan by leveraging a regional balance of power that is increasingly favorable to China. As one official Chinese media outlet stated on Friday, the “ultimate goal is to beat [Japan’s] willpower and ambition to instigate strategic confrontation . . . .” The ADIZ matters as a public-relations move, because of what it says about China’s growing confidence vis-à-vis Japan, and as evidence that China plans to resolve the dispute through extralegal means.
Cross-posted on Ryan Scoville’s blog.
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