Additionally, the Bohai meets the US interpretations for a bay, specified as an indentation with a water area that sits equal to or outside a semicircle drawn across its mouth. According to the US Navy: “Innocent passage does not include a right for aircraft overflight of the territorial sea.” If a narrow interpretation of the territorial sea is applied with regard to the entrance to the Bohai Bay, meaning the entrance does not exceed 24NM, the entrance into the Laotieshan channel does not allow freedom of overflight. In current US Department of the Navy legal advice for military operations, advice and practice regarding overflight respects State sovereignty over the territorial sea. For a passage into the Bohai Bay, the U-2 would have entered China’s airspace regardless of its flightpath, based on US legal views, which are not generally in alignment with the Law of the Sea Convention if US domestic practices are considered. Due to the narrow entrance, any transit passes through China’s territorial sea and/or airspace as soon as it is entered, which the US should recognise, due to its acceptance of a 12NM limit. This is despite it being listed as one of a few “Important Historic Bays and Other Closed Water Bodies” in the 1983 San Diego Law Review.
However, the US does not recognise Bohai Bay as internal waters and has protested claims with freedom of navigation operations, last held in 2016. Under International Law, airspace over internal waters is part of a country’s sovereign airspace, where right of overflight does not exist. At minimum, for a vessel or aircraft to enter the Bohai Bay it is necessary to enter Chinese territorial waters and airspace. With Laotieshan channel measuring 22.5NM at its widest point, it is part of the Yellow Sea that is primarily encircled by the Liaoning and Shandong Peninsula’s, with a string of small islands that allow it to have a natural closing line based on 12NM territorial waters. The PRC was only a decade old when Concerning the Question of our Country’s Territorial Sea (Peking, 1959) was published in Beijing, noting that the Bohai may be closed: 1) as a normal bay, 2) by straight baselines, and 3) through a claim to historic waters. Geographically, the Bohai Bay is totally enclosed by Chinese mainland territory. For a variety of historical reasons, it is reasonable for Chinese to keep the Bohai closed, as an area that leads only to China’s heart that cannot be transited to directly enter another country’s territory. Events related to these provinces include the Allies secret treaties with Japan during World War One that gave her Shandong, and Liaoning was affected as part of the Three Provinces region Japan occupied from 1905. Any foreign Government Official involved in Chinese relations is aware of this past today, and the military and political Chinese sensitivity over the area that has endured throughout the Century of Humiliation. These have included four that took place during the Anglo-Sino and Arrow Wars the First and Second Opium Wars. The Bohai Bay has historically been part of China’s ‘Inner Seas’, and a sensitive security area, due to the number of invasions that have utilised it to threaten Beijing. Generally, any foreign military activity in the Bohai Bay has been considered provocative, due Chinese history. US reconnaissance aircraft activity alone has a history of provocative behaviour in the Chinese perception. One of the most recent US reconnaissance aircraft incidents, in April 2001, resulted in a collision that killed the Chinese pilot of an F-8-II ‘Finback’ and forced the US EP-3E ‘Aries’ to make an emergency landing on Hainan Island. China’s Defence Ministry Spokesperson Wu Qian stated on Tuesday: “It was an act of naked provocation, and China is resolutely opposed to it.” Historically, US related U-2 reconnaissance activities over Chinese territory have resulted in five of the aircraft being shot down, one of which is now housed in a Beijing Museum. The zone had been previously declared, in concert with international norms, and China-US Rules of Behaviour for Safety of Air and Maritime Encounters. During a recent Chinese live-fire drill believed to be conducted in the Bohai Bay area, a US U-2 reconnaissance aircraft flew into a previously declared no-fly zone.
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