China's Aircraft in Malaysia's Maritime Zone: Double Standard in the South China Sea Fadzil Mokhtar

The recent revelation about 16 aircraft of China’s People’s Liberation Army Air Force (PLAAF) flying within Malaysia’s Exclusive Economic Zone (EEZ), close to Sarawak, has generated a lot of concern. The planes flew into the Kota Kinabalu Flight Information Region (FIR) to the vicinity of the South Luconia Shoals without responding to requests for them to contact Malaysian Air Traffic Controllers managing the airspace. The fleet of Ilyushin IL-76 and Xian Y-20 transporters was around 60 nautical miles off the Sarawak coast when intercepted by RMAF fighter jets. 

Malaysia’s immediate response was to summon China’s ambassador for an explanation on the “breach of the Malaysian airspace and sovereignty”. The Sarawak Government, and members of the public condemned the incident as a violation of the country’s sovereignty too. There was also a call for Malaysia to register a protest in the strongest terms to reflect the gravity of the intrusion.

However, it has to be noted that the Chinese aircraft did not infringe upon Malaysia’s sovereignty. The reason is that international law limits Malaysia’s sovereignty to its national airspace, which covers the airspace above its land territory, internal waters and the 12 nautical miles territorial sea. As Malaysia’s right to prohibit, or regulate, overflight of foreign aircraft is only confined to this area, it is not legally tenable to claim that the PLAAF airlifters had intruded into its national airspace, for those planes were quite a way off from the country’s territorial waters. 

Moreover, while it is beyond doubt that the aircraft were flying in Malaysia’s maritime zone, international conventions classify the airspace extending seaward from the outer limit of a state’s territorial sea as international airspace. This includes the airspace over Malaysia’s contiguous and exclusive economic zones. So is the area designated within the Kota Kinabalu FIR except for the segment lying above, and landward of, Malaysia’s territorial sea. It is also noteworthy that the assignment of international airspace to a FIR does not come with the conferment of sovereignty upon a coastal state since it is solely to facilitate the state’s aviation authority in managing international air traffic.    

Correspondingly, it is well established under international conventions on aviation and law of the sea that states enjoy the freedom of overflight in international airspace. Unlike civil aircraft, which are regulated by the International Civil Aviation Organization (ICAO), state aircraft, comprising of aircraft used in military,  customs and police services, are excluded from the applicability of ICAO regulations when  flying in international airspace.  Foreign military aircraft are therefore entitled to fly in this airspace without the consent, or being subjected to the aeronautical rules, of the adjacent coastal states even if the area lies within the FIR of those states.  

Nonetheless, several ICAO Assembly Resolutions have called on member countries to ensure compliance of their state aircraft, to the extent possible, with ICAO flight regulations to avoid undermining the safety, regularity and efficiency of civil air traffic. To this end, ICAO Circular 330 provides that military airlift transport and freight aircraft are expected to be fully compliant with international civil aviation rules and procedures as they are normally equipped to the same standard as commercial airliners. When such planes are involved, coordination is recommended between the military user and the aviation authority  responsible for the relevant airspace.  This includes measures like the submission of flight plans, and the reservation of certain airspace for the use of large formation flights. 

At the same time, ICAO affords states with the liberty to not subject their state aircraft to its rules when it is not practicable. In this situation, to name a few, flight plans need not be furnished to the air traffic authority controlling the relevant FIR. There is no obligation for military aircraft to establish communication with the air controllers either. The only obligation is imposed by Article 3 (d) of the Chicago Convention on International Civil Aviation according to which states are to ensure that the operations of their state aircraft will have due regard for the safety of navigation of civil aircraft.  But states are entirely free to determine for themselves as to how this obligation is to be discharged as criteria are not prescribed by ICAO.

As a result, only a few states have publicly publicized their regulations concerning military flights in international airspace, including in foreign administered FIR. The US, for instance, limits its “due regard flights” to military contingencies, classified missions, aircraft carrier operations and some training activities. Still, apart from confining such flights to uncontrolled airspace, stringent conditions are imposed on military aircraft commanders so as not to compromise the safety of civil aviation by requiring them to maintain adequate separation of their planes from civil aircraft.

In light of the above, the right of the Chinese aircraft to fly as they did in Malaysia’s maritime zone and FIR without communicating with the Malaysian Air Traffic Controllers cannot be doubted. China was legally entitled to dispense with ICAO procedures, and it is also fair to assume that the military transporters had not violated their obligation of “due regard” imposed by the Chicago Convention, in the absence of information to the contrary. 

Yet, is not far-fetched to surmise that those transport planes were operated under the “due regard flight provision,” instead complying with ICAO procedures, because they were involved in a sensitive and classified mission.   Many have inferred that the flight was to gather information on Malaysia’s air defence capabilities and readiness. Even if China could to dispel this suspicion, for its airlifters to fly in tactical formation near the disputed Luconia Shoals was  anything but an intimidation given the frequent stand off  between Malaysian naval and China’s Coast Guard vessels over Malaysia’s hydrocarbon exploration activities in the area. 

It is therefore not inappropriate for Malaysia to view the incident with consternation, and consider it provocative as the suspicious activity was perpetrated close to its shores. More importantly, the presumptuous manoeuvre was contrary to China’s stance that the freedom of overflight accorded by the United Nations Convention on the Law of the Sea (UNCLOS) must be exercised for peaceful purposes, and with due regard to the rights of coastal states. In fact, China is one of the few countries that has interpreted UNCLOS’s navigation and overflight freedom as excluding surveillance and reconnaissance activities by a state in another state’s EEZ. China has contended that such activities cannot be deemed “peaceful,” for they are prejudicial to the security interests of a targeted state. 

In this regard, it is worth recalling the 2001 mid-air collision between a Chinese fighter jet and a US EP3 reconnaissance aircraft about 70 nautical miles off the coast of Hainan that resulted in the American plane making an emergency landing. Even though the EP3 was in international airspace, fully entitled to freedom of overflight, China found it objectionable, maintaining that the reconnaissance over its EEZ and near its coastal areas was an abuse of right of overflight as it posed a serious threat to its security.  

The EP3 episode is not dissimilar from the case at hand notwithstanding the fact that the former involved a non-claimant to the South China Sea. This is because Malaysia’s claim to the maritime zone in question is legally founded whereas China’s nine-dash line, into which lies the said zone, is inconsistent with UNCLOS.  China’s position vis-à-vis Malaysia hence cannot be different form that of the US in the Hainan encounter.

What is dissimilar, though, is China’s interpretation of the legal provisions pertaining to the right of overflight. It would be illegal for intelligence gathering missions to be conducted by other powers near a coastal state. But, it would be legitimate for China, under the guise of overflight freedom, to partake in similar activities regardless of the attendant detriment to the interests of a targeted state. This contradictory standard will indeed exacerbate the anxiety over China’s growing assertiveness in the South China Sea. It is therefore timely for China to heed calls for negotiation of the South China Sea Code of Conduct to be expedited.  

Fadzil Mokhtar, a retired Malaysian Army officer, is currently a Fellow at the Centre for Defence and International Security Studies, National Defence University of Malaysia.