Geoscience Reference
In-Depth Information
This incident happened at 22,500 feet in the air, but what prompted it was the
ocean below. The rules governing where aircraft may fly over water have not yet
been fully codified. They derive largely from the still evolving body of maritime
agreements known as the law of the sea. These are the rules regarding what waters
belong to whom and what ships may cross them. They also supply the same rules
governing airspace. Just as a ship may not enter the territorial waters of another
state without explicit clearance, so aircraft are barred from entering the airspace
over the territorial water of another state. We can make sense of what happened on
Mission PR32 only if we know something about the law of the sea.
Territorial water is recognised as the thin stretch of water that runs along the
shore of a coastal state. Traditionally taken to be the distance that a cannonball
could be fired from ship to shore, this safety zone was formally set in 1982 at 12
nautical miles. Coastal states can claim full jurisdiction out to that limit. Since the
Second World War, however, some states began to push the outer limit of their
jurisdiction much further, in order to restrict foreign access to coastal fishing and
seabed mineral resources. Eventually a second outer limit was established at 200
nautical miles (230miles or370kilometres) from the shore. Coastal states may as-
sertexclusiveeconomiccontroloverthatzone,butthatdoesnotgivethemtheright
to eject foreign ships, even warships, within the 200-nautical-mile limit - so long
as they stay outside the 12 nautical miles. This provision confirms a longstanding
right known as 'innocent passage', which allows ships of any flag to transit the
coastal waters of another state so long as they do so directly and expeditiously.
What applies to ships on the water applies equally to aircraft above it. Pilots are
expectedtoaskforverbalclearancewhenenteringterritorialairspace,yettherules
ofoverflightarenotsetinstone.Atthetimetheplanesmadecontact,theArieswas
roughly 110 kilometres (60 nautical miles) south-east of Hainan Island, and there-
fore well beyond the 12-nautical-mile limit. The American interpretation was that
the plane was engaged in innocent passage over China's continental shelf in the
South China Sea. China had a right to monitor that passage, but not to impede it or
engage in manoeuvres jeopardising the safety of the plane or the lives of its crew.
Interception of this sort was harassment. The Chinese view, by contrast, was that
the reconnaissance plane was flying over its territorial waters. Entry into Chinese
airspace amounted to an infringement of China's sovereignty, and China was fully
within its rights to eject the plane.
Curiously, or perhaps wisely, China has never legally argued its right over the
entire South China Sea. The claim is unilateral and phrased as a historical right of
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