Written by Kuan-Wei Chen.

The unilateral activation of the northbound M503 air route by the People’s Republic of China in January 2018 is creating turbulence over the skies of the Taiwan Strait, and it is a matter the international community must take serious note of. M503 approaches dangerously close to the median line of the Strait dividing the two sides of one of the world’s most volatile and long-standing political and military stand-offs.

The deliberate activation of M503, coupled recent military (near-)incursions into the seas surrounding and airspace above Taiwan, is commonly seen as China’s attempt to undermine and discredit Taiwan’s President Tsai Ing-Wen, who has been derided as being recalcitrant, “emotional” and “extreme” for refusing to agree to Beijing’s terms in handling cross-Strait relations. However, China’s unreasonable actions flout established international processes and endanger international aviation safety and the lives of millions of passengers flying through a heavily utilised region of airspace in the world.

“Disputes arising from the Cross-Strait Air Transport Agreement of 2008 is supposed to be settled between the two Parties through “prompt negotiation” (Article 11). Regrettably, the issue of M503 is a clear example that this agreement, and the relevant provision is more impressive on paper than in practice”

Without consulting with Taiwan, the activation of M503, and three associated East-West feeder routes along the coast of China, contravenes a prior agreement between two sides of the Taiwan Strait that the route would only cater to southbound air traffic and would only be activated pending further negotiations. The Chinese government has defended the operation of M503 as “routine work” of its civil aviation authority to ease air traffic congestion and dismissed the dispute as an attempt by the “Taiwan authority [to] interfere with cross- Strait relations”.

Matters relating to international civil aviation, requires uniform coordination and prior consultation with all parties that may be affected by changes in the air navigation and air routes. Due to the recognised importance of air transportation in an interconnected world, the International Civil Aviation Organisation (ICAO) was established even prior to the establishment of the United Nations (UN) precisely to ensure uniformity in the regulation of aviation safety and as a forum for States to coordinate their efforts to ensure the highest level of safe and sustainable travel of people across international boundaries and over international airspaces.

Indeed, the principal objective of the Montreal-headquartered intergovernmental organisation is to “ensure the safe and orderly growth of of international civil aviation throughout the world” (Convention on International Civil Aviation 1944, Article 44; emphasis added). Unfortunately, as Taiwan is not a member of ICAO, its aviation authorities is unable to furnish the world body with vital information that have major implications for the safe navigation and operation of hundreds of flights that fly into or out of the Taipei Flight Information Region, the airspace controlled by Taiwan’s aviation authorities, on a daily basis. And as the M503 issue demonstrates, the denial of ICAO membership deprives Taiwan the ability to voice its concerns and object to unilateral changes to air navigation routes that threaten the safe navigation and passage of aircraft surrounding its airspace, and jeopardises Taiwan’s national security.

It is most unfortunate that China is using an organisation set up for the purpose of international cooperation and coordination to further its own agenda and interests to the detriment of the safety of the international traveling public.

This is not the first time China has taken unilateral action in that has implications on international aviation safety; in 2014, Beijing established the East China Sea Air Defence Identification Zone (ADIZ), which encompassed disputed territory and overlapped with the pre-existing ADIZ of Japan. Contrary to international law, China demanded that all aircraft, civilian or otherwise, regardless of whether it intends to enter Chinese airspace, to identify itself to the Chinese authorities or face being refused into the airspace (or worse). By implication, China’s unilateral declaration of ADIZ asserted aerial sovereignty over international airspace, which is not subject to the control of any State but subject only to relevant standards and recommended practices relating to international airspace as established by ICAO and relevant principles under the United Nations Law of the Seas Convention. Many States, like the United States and Japan, refuse to recognise China’s claim and have denounced such unilateral action as jeopardising international aviation.

In the present scenario, M503 is provocative and has been rubber stamped by ICAO, which is supposed to be the neutral technical forum that takes into account all voices and issues that may affect the uniformity and co-ordination of aviation safety. Due to the impact and interrelationship of air navigation between adjacent States, ICAO’s Air Traffic Services Planning Manual requires that changes to air routes must be made in close co-ordination and consultation with potentially affected States. Informing the Taiwan aviation authorities of the activation of M503 only on the very morning the plan went into effect is a failure on China’s part to be a responsible actor in the overall obligation to contribute to the safety of international civil aviation. Indeed, officials in the US, Japan and the European Union have voiced their concerns over China’s unilateral actions and underlined the importance of ensuring the safety of commercial aviation in the affected area.

In many bilateral air transport agreements, there are provisions which give ICAO, or the President of the ICAO Council, a role in the dispute resolution process. Indeed, what other neutral institution is there that has the ultimate mandate and technical expertise to preserve the safety of aviation across the globe? Unfortunately, due to the complexity of Taiwan-China relations, and lack of Taiwan’s membership in the UN organisation, such a provision does not exist in the bilaterals between Taiwan and the People’s Republic of China.

Disputes arising from the Cross-Strait Air Transport Agreement of 2008 is supposed to be settled between the two Parties through “prompt negotiation” (Article 11). Regrettably, the issue of M503 is a clear example that this agreement, and the relevant provision is more impressive on paper than in practice. Taiwan, consistent with its right to seek international consultation and lodge protest, has repeated asked China as well as ICAO to review the activation of M503. Indeed, in condemning China’s actions as “irresponsible”, President Tsai underlined the “activation of these contentious routes has not only severely influenced regional security and flight safety, but constitutes a political and military threat to Taiwan, and as such destabilises the region”. Attempts at consultation and protest have been silenced at the intergovernmental body responsible for ensuring global aviation safety and security, or fallen on deaf ears.

Aviation safety knows no boundaries, and it should not in any way be undermined by the unilateral actions of any State. Politics should have no role in maintaining the highest levels of health and safety for millions of passengers on hundreds of thousands of commercial aircraft flying into or around the region surrounding Taiwan and through the Taiwan Strait.

Kuan-Wei Chen is the Executive Director of the McGill University Centre for Research in Air and Space Law, located at Montreal, Canada. The opinions expressed in the article are the author’s own. Image credit: CC by Al Jazeera English/Wikimedia Commons