Malaysia’s airspace ‘violation’ row with China highlights confusing military overflight rules

US unilaterally set a precedent for air defence identification zones. But that doesn’t justify dictating rules, especially with no international pact in place
In practice, Malaysia is supporting China’s view of what foreign military aircraft can do in airspace under its supervision

Mark J. Valencia

Published: 1:30am, 8 Jun 2021

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Malaysia has vehemently protested about what it says was the suspicious flight of Chinese military transport planes in tactical formation within 60 nautical miles of its territory.

US defence officials must be laughing. Malaysia’s complaint against China is similar to China’s complaint against US practice over its near seas. In addition to the irony, there is confusion as to the international rules and practice governing such military overflights.

Some analysts reacted strongly. Collin Koh, a Singapore-based analyst, said that “it is not only blatant intimidation, but also predatory and opportunistic”. Victor Shih, associate professor at the University of California, San Diego, said it was “a preview of what would happen if the US were to withdraw from the West Pacific”.

Malaysia’s primary complaint seems to be that the aircraft did not respond to queries and instructions from its air traffic control centre and it felt compelled to scramble fighter jets to make a visual identification. It saw it as a test of its defences, whether intended or not.

The Malaysian Air Force said the incident was “a serious threat to national sovereignty and flight safety due to the air traffic density over the airways”. Malaysia’s Foreign Ministry said it would raise the issue at the Asean-China Foreign Ministers’ Meeting in Chongqing on June 7.

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China insisted its warplanes were within international law. “This is a routine training activity carried out by the Chinese air force in waters south of the Nansha Islands [China’s name for the disputed Spratly Islands] and is not targeted at any country,” foreign ministry spokesman Wang Wenbin said.

The Chinese aircraft did not enter Malaysian territorial airspace – far from it – and the planes did not violate any international laws. However, their flight path was perceived by Malaysia as intimidating and their refusal to respond to inquiries and instructions from its air traffic control was considered unfriendly and arrogant.

It might have even been dangerous to other air traffic, although they are usually equipped with their own detection and collision-avoidance devices. Unfortunately, that is normal practice around the world for military aircraft.

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Warplanes flying in international air space often do not respond to inquiries, prompting nations to scramble jets to intercept them. This “game” is often played by Russian warplanes in the US Air Defence Identification Zone (ADIZ) over the Pacific and by US warplanes in China’s ADIZ over the East China Sea.

Adding to the confusion is the two overlapping concepts at play – a flight information region (FIR) and an ADIZ. The latter is unilaterally declared airspace in which the identification, location and control of aircraft is undertaken in the interest of its security.

About 20 countries have declared such zones. They often extend far beyond a country’s territory to provide more time for it to respond to possibly hostile aircraft. But they are not defined by any international treaty and are not regulated by any international body.

The US established the precedent for an ADIZ and its rules, citing “the legal right of a nation to establish reasonable conditions of entry into its territory”. But being first does not justify dictating the rules for all nations with diverse geography and national security interests, especially in the absence of an international agreement.

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Malaysia has not publicly declared an ADIZ in the area, but it does have a flight information region – an area delegated to a particular country by the International Civil Aviation Organization in which it is responsible for the operational control of civil aircraft.

The responsible country is supposed to provide flight information for safe and efficient flow of air traffic. It is focused on civil aircraft, whereas ADIZ regulations usually apply to both military and civil aircraft.

Malaysia was apparently upset because the Chinese warplanes flew through its FIR without responding to its flight control centre. However, the planes also flew through Singapore’s flight information region and it did not publicly complain.

The US objects to China’s ADIZ in the East China Sea – declared by Beijing in November 2013 – on the grounds that it requires aircraft that will be transiting the zone but not intending to enter Chinese airspace to file flight plans with, and identify themselves to, China.

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On November 26, 2013, two US B-52 bombers out of Guam flew into China’s new ADIZ without filing flight plans, radioing ahead or registering frequencies. This sortie was soon followed by penetrations of Japanese and South Korean military aircraft that did not follow China’s ADIZ rules.

US military aircraft flying in international airspace would presumably not comply with Malaysia’s requests as well. Malaysia is actually supporting China’s view of what foreign military aircraft can and cannot do in airspace under its supervision.

Such a position is consistent with Malaysia requiring prior permission for foreign military exercises in and over its 200-nautical-mile exclusive economic zone (EEZ). Malaysia’s EEZ regime is stricter than that of China, which opposes certain foreign military activities that it thinks violate the UN Convention on the Law of the Sea.

Obviously, the rules for overflight in international airspace of military aircraft are loose, confused and confusing. They need to be sorted out and agreed on, before further international incidents roil the already troubled South China Sea.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China