Access to Airspace Growing Part of South China Sea Sovereignty Dispute

Vietnam has filed a complaint with ICAO about recent Chinese flights to the Fiery Cross Reef in the hotly contested South China Sea, to which Brunei, China, Vietnam, Malaysia, Taiwan and the Philippines all register territorial claims. Vietnam is responsible for supervision of international flights in the area, and complains that China has recently conducted dozens of flights through the region without properly notifying Vietnamese aviation authorities.

China contends that because these are state flights, they are not subject to the same air traffic requirements as civil aviation. The characterization of the test flights to the Fiery Cross air strip as state flights appears reasonable despite the use of State-owned commercial airliners. The flights did not transport ticketed passengers, and given that the islands in question are primarily uninhabited, commercial services to the area are unlikely. Vietnam's complaints are not limited, however, to the question of state or civil operations, as Vietnam asserts the island area comprises part of Vietnam's sovereign airspace, through which even state flights are prohibited absent prior approval by Article 3 of the Convention on International Civil Aviation (the Chicago Convention). ICAO will have no interest in getting drawn into the larger question of which State has sovereignty over the islands and surrounding areas. Should ICAO take a position, it is likely to be sufficiently narrow to be read as neutrally as possible on the sovereignty question.