Foreign Policy Research Institute A Nation Must Think Before it Acts The US-China Arrangement for Air-to-Air Encounters Weakens International Law

The US-China Arrangement for Air-to-Air Encounters Weakens International Law

As part of the September 2015 fanfare visit by Xi Xinping to the United States, the United States and China signed an arrangement on rules of behavior for safety of air-to-air encounters of military aircraft. The deal is supposed to avert aviation incidents in international airspace between military aircraft of the United States and China. In a deadly 2001 incident, for example, a Chinese F-8 fighter jet interceptor collided with a U.S. EP-3 aircraft that was operating more than 75 miles from Hainan Island, causing the loss of the Chinese aircraft and pilot, and an emergency landing in China by the U.S. surveillance aircraft. Similarly, in August 2014, a Chinese fighter jet roared over, under, and in front of a U.S. P-8 maritime patrol aircraft – coming as close as 50 feet to the American aircraft – about 135 miles east of Hainan Island. The Chinese jet climbed vertically with its underbelly showing in front of the U.S. aircraft to display its under wing combat load out.

After China’s establishment of an Air Defense Identification Zone (ADIZ) in the East China Sea in 2013, Beijing appears poised to adopt a similar zone over the South China Sea. Over the past 18 months, China has constructed three airstrips on artificial islands in the Spratlys that are capable of handling the country’s most advanced military aircraft. China has also deployed surface-to-air missiles to Woody Island in the Paracels and has installed high-frequency radar systems on four of the reefs that it occupies in the Spratlys, which significantly enhances the ability of the People’s Liberation Army (PLA) to monitor surface and air traffic in and over the South China Sea.

The new “Rules of Behavior for Safety of Air-to-Air Encounters” (Air Rules) is not a legally binding instrument, so it does not create any new substantive obligations. The agreement also does not create any new norms, as customary international law already requires military aircraft to fly in accordance with the rules applicable to civilian aircraft “to the extent practicable,” and to exercise due regard during air-to-air encounters. China wanted (and obtained) the deal…

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