Legal status of the airspace over an indeterminate territory: the case of the Spratly Islands

Abstract

China has kept open the option to declare an Air Defense Identification Zone in the South China Sea (SCS) which may cover the disputed area of the Spratly Islands. Other maritime powers like the United States and the United Kingdom have insisted on exercising their customary international law right of navigation as well as overflight in the relevant areas of the SCS. While existing literature has dealt with these high seas rights in relation to the Spratly Islands and the SCS, no attempt has been made to look at the international law status of the airspace superjacent the Spratly Islands. This paper takes the view that an indeterminate territory, not being res nullius nor res communis, generates its own territorial airspace. Although this superjacent territorial airspace is likewise considered as indeterminate being an inseparable part of the subjacent indeterminate territory, it ceases to be part of the international airspace. Consequently, claimant-states can subject it to the operation of domestic law jurisdiction. As applied to the Spratly Islands in the SCS, the paper argues that the Spratly Islands has the status of an indeterminate territory. Notwithstanding its indeterminacy, it has its own territorial airspace. While this territorial airspace is also indeterminate as it is inextricable from the status of subjacent indeterminate land and sea territory, it no longer forms part of the international airspace. Claimant-states like China, Vietnam, and the Philippines can subject the airspace of the Spratly Islands or a portion or portions thereof to the jurisdiction of their municipal laws.