The following is an excerpt of research paper by Christopher K. Lamont, “Conflict in the Skies: The Law of Air Defence Identification Zones,” in Air & Space Law 39, no. 3 (2014): 187–202.
Air Defence Identification Zones (ADIZs), designated areas of non-territorial airspace where States impose reporting obligations on civil and military aircraft, constitute a highly contentious security practice, and in the absence of an international legal framework to regulate unilateral ADIZ declarations by States, find themselves increasingly contested with States advancing competing claims on the limits of their scope and reporting obligations. China’s 23 November 2013 declaration of an East China Sea ADIZ highlights two important questions that arise from this contested security practice. The first question stems from conflicting positions on the extent to which States can impose reporting obligations on aircraft operating outside of territorial airspace, while the second question revolves around what, if any, impact the exercise of administrative control in airspace can have upon territorial claims advanced by States. In order to explore both of the above questions this article will provide an introduction to the practice and law of ADIZs before examining two distinct ADIZ regimes, those maintained by the United States and China.This article will observe that while international law does not prohibit States from declaring ADIZs in non-territorial airspace, it does prohibit States from restricting air navigation outside of territorial airspace and thus certain reporting requirements demanded on the part of States may extend beyond what is permissible under international law.
Excerpt: China’s East China Sea Air Defence Identification Zone
When China declared its ADIZ over the East China Sea, China’s official Xinhua news agency described the ADIZ as follows:
[ADIZ] is a zone that can extend in some cases up to 300 miles beyond the territorial sea. It’s established by some countries off their coasts for security reasons.When entering the zone, all aircraft are required to identify themselves, report flight plans, and inform ground control of their exact position.
Xinhua’s description of China’s ADIZ has three key features. First, the territorial limitation of 300 miles beyond a State’s territorial sea; second, establishment on grounds of national security, and third the requirement all aircraft that enter the ADIZ identify themselves, report flight plans and inform ground control of their positions. Here it is in respect to the third feature, the requirement that all aircraft comply with an obligation to identify themselves, not just aircraft intending to enter China’s sovereign airspace, where China’s ADIZ differ from that of the US.
Although China had not previously declared an ADIZ, it had established de facto restrictions on aircraft operating near territorial waters. In 1958 China first declared seaward claims to control over airspace, and over the course of the following decades considered formally declaring an ADIZ that would extend far beyond China’s territorial waters. Most recently, China publicly floated the idea of establishing an ADIZ for the East China Sea and the Taiwan Straights in 2008, immediately prior to the Beijing Olympics on the grounds that it was necessary to protect the Olympics from an aerial attack. However, it was only on 23 November 2013 that China declared its first ADIZ in the East China Sea.
It is important to emphasize that the underlying motive behind Beijing’s 23 November ADIZ proclamation departs from the original intent of Cold War ADIZs, early warning against a strategic air attack on sovereign territory. Indeed, it has been pointed out that for China, ‘reducing the risk of surprise attack cannot have been part of the equation’. Despite the publicly stated rationale that the East China Sea ADIZ was necessitated by the threat of an air attack against China’s sovereign territory, the geographic zone over which the ADIZ has been declared, namely the East China Sea, and not for example the Taiwan Straits, adds further support to the observation that the East China Sea ADIZ’s primary function is to support China’s claims over disputed territory. In fact, Foreign Ministry spokesperson, Qin Gang, explicitly linked the ADIZ’s declaration to China’s territorial claim over the Senkaku/Daioyu Islands in a press conference on 25 November 2013 when stating:
I want to highlight that the Diaoyu Island and its affiliated islands are China’s inherent territory. China is firm in defending its territorial sovereignty over the Diaoyu islands.The current tensions over the Diaoyu islands are completely caused by Japan’s erroneous actions.
Therefore, the wider reporting obligations imposed by China through its ADIZ underline the fact that China’s ADIZ was not declared out of military necessity, to defend sovereign territory against a strategic air attack, but rather it was established so as to demonstrate China’s administrative control over disputed territories, which China considers territorial airspace.
While this article does not make claims as to sovereignty in relation to the Senkaku/Daioyu or Ieodo/Suyan disputes, other than to acknowledge these territories are contested, the promulgation of ADIZs so as to demonstrate administrative control over contested territories through the imposition of comprehensive reporting obligations on all air traffic significantly transform the nature of ADIZs, and claims as to their legality. Of course, the risk that States would make use of ADIZs to advance claims of sovereignty is not new. As early as 1977, Cuadra articulated these fears. Cuadra observed:
The seaward expansion of one aspect of sovereignty, although it may itself have no legal validity, potentially may serve as a precedent for seaward extensions of other aspects of sovereignty. Thus, the question naturally arises whether, when linked with resource recovery zones for fisheries and the seabed, these zones in the airspace may harden into claims of full territorial sovereignty rather than the limited control they now represent.
Cuadra’s insight into the risks posed by ADIZs through claims to creeping sovereignty appears to be affirmed in the context of contemporary developments in the airspace above the East China Sea, where China, Japan and South Korea now maintain conflicting ADIZs.
Indeed, the East China Sea ADIZ can also be seen as consistent with longstanding attempts, on the part of China, to claim territorial rights beyond territorial waters. China’s attempt to restrict both maritime, and now air traffic, within its EEZ through recourse to law has previously been described by Keck as a form of ‘lawfare’. Lawfare, a term borrowed by Keck from US Air Force General Charles Dunlap, was defined as ‘the use of law as a weapon of war’. Interestingly, the term ‘lawfare’ was also used by China’s Peoples’ Liberation Army in reference to ‘a nation’s use of legalized institutions to achieve strategic ends’. China’s appeals to international law, through its observation that the ADIZ does not violate the UN Charter, and domestic law, through its referencing of the Law of the People’s Republic of China on National Defence, Law of the People’s Republic of China on Civil Aviation and the Basic Rules on Flight of the People’s Republic of China, highlight how China seeks to present its ADIZ as a legal act. Cuadra’s concern that States will use ADIZs as a means through which they can extend claims of full sovereignty over a given territory stems from the observation that the exercise of administration over a given territory can serve as a basis for the recognition of full sovereignty over that territory if carried out over a period of time and if other States accept the administering State’s administrative regimes. Here China’s meticulous reporting of State compliance with its ADIZ can be seen as evidence that States have acquiesced to China’s administration of airspace above disputed territories.
On the other hand, prior to the East China Sea ADIZ, there seems to be almost no precedent for a State using an ADIZ to stake out territorial claims to territory. The US’ ADIZs, which in some cases extend 400 miles beyond US territorial waters, does not aim to regulate air traffic within the ADIZ, but rather functions solely as an extra-territorial defensive cordon.Yet, this is where the US and China’s ADIZ regimes differ. Unlike the US, China demands all aircraft identify themselves and provide flight plans in the event of penetration of its East China Sea ADIZ. China also claims, through its ADIZ, to provide an administrative service to ensure the safety of civilian aircraft transiting highly congested airspace over international waters. In sum, China’s ADIZ has been justified in terms of all both rationales for ADIZs noted earlier, security and administrative.
Read the full paper at https://www.kluwerlawonline.com/abstract.php?id=AILA2014014
Dr Christopher K. Lamont, Assistant Professor, University of Groningen.
Read other analyses and commentaries on the same topic at https://seasresearch.wordpress.com/category/events-and-analyses/fon-foa-adiz/