The Air Defence Identification Zone - A Necessary Precaution

An Air Defence Identification Zone (ADIZ) is an area in airspace over land or water which may not be over the sovereign territory of a State in which ready identification, location and control of all aircraft is required in the interest of national security. ADIZ must not be confused with Flight Information Regions (FIRs) which are areas established for the facilitation of airspace and air traffic management. FIRs generally involve a subjacent State which has undertaken responsibility for providing air traffic control services.

by Dr. Ruwantissa Abeyratne

(August 27, Quebec, Sri Lanka Guardian) An Air Defence Identification Zone (ADIZ) is an area in airspace over land or water which may not be over the sovereign territory of a State in which ready identification, location and control of all aircraft is required in the interest of national security. ADIZ must not be confused with Flight Information Regions (FIRs) which are areas established for the facilitation of airspace and air traffic management. FIRs generally involve a subjacent State which has undertaken responsibility for providing air traffic control services. The main purpose of establishing an ADIZ is to properly identify all approaching aircraft for security purposes so that they could, prior to entry into national airspace, satisfy certain local entry requirements. Although there is no overwhelming evidence, either from a scholastic or legislative perspective that lends legal legitimacy to the establishment of ADIZs, such a concept has never been challenged as being inconsistent with existing law.

On 23 November 2007 by notification of the Government Gazette, Sri Lanka declared through the Air Navigation (Defence) Regulations No 1 of 2007 that the ADIZ of Sri Lanka would have lateral limits extending to the territory and the territorial waters of Sri Lanka. (12 NM from the coast line) and ground to upper limit of the Sri Lankan Airspace except in Ruhunu Open Skies Area from 3000ft above the mean sea level to upper limit of the Sri Lankan airspace within the Ruhunu Open Skies Area.

It has been argued that ADIZs came into prominence as a security tool in air navigation as a corollary to the events of 11 September 2001 where aircraft were used as weapons of mass destruction. Norway and the United Kingdom, India, Pakistan and Canada (CADIZ) are some countries which maintain ADIZs as well as the United States. If an analogy from maritime law and practice were to be applied to ADIZ, one could cite the United Nations Convention on the Law of the Sea (UNCLOS) which was signed by the Parties on December 10, 1982 and entered into force on November 16, 1994 after receiving 60 ratifications or accessions. UNCLOS divides the seas into zones over which States have varying degrees of rights and controls. The territorial sea, which is exclusively controlled by the State, is the first zone which extends 12 nautical miles from the coast or coastal baselines. The territorial sea is open to all vessels to enjoy the right of innocent passage. Beyond the territorial zone comes the contiguous zone of another 12 nautical miles followed by the exclusive economic zone of 200 nautical miles from the coastal baseline. In Article 76 titled "Definition of the Continental Shelf" UNCLOS provides that a States Party may extend its continental margin beyond the 200 nautical mile Exclusive Economic Zone (EEZ) if certain criteria are fulfilled.

It is an incontrovertible principle of international maritime law that international navigation, however founded and whatever the right of innocent passage may be, often conflicts with a State’s desire to protect itself from activities that infringe its sovereignty, resource rights or more importantly, internal security. In such instances jurisdiction inevitably vests with the coastal State. Turning to ADIZs, it must be emphasized that a State can by no means arrogate to itself territorial sovereignty over an ADIZ ipso facto. Neither can a State interfere with a State’s exercise of legitimate rights of navigation over the high seas.

JUSTIFICATION FOR ADIZ

Generally under legal theory, each State is sovereign and equal and the term sovereignty may be used as a synonym for independence. However, in modern parlance, with the rapid growth in telecommunications and global competition and rivalries, no State can be entirely sovereign to the exclusion of others. In the ADIZ context, one must look at this issue from an aviation perspective. The Convention on International Civil Aviation (Chicago Convention) in Article 1 provides that the contracting States to the Convention recognize that every State has complete and exclusive sovereignty over the airspace above its territory. This provision is clear that the exercise of sovereignty by a State extends only to the airspace over its territory which is deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection and mandate of such State.

Broadly speaking, ADIZ requirements are those that sovereign States require aircraft to comply with if they are to be permitted to enter sovereign airspace. Therefore ADIZs requirements act as conditions precedent that are calculated to ensure the protection of that State.

THE PRECAUTIONARY PRINCIPLE

The justification for ADIZ lies theoretically in the precautionary principle which asserts that the absence of empirical or scientific evidence should not preclude States from taking action to prevent a harm before it occurs. The precautionary principle (a moral and political concept) states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. The precautionary principle is most often applied in the context of the impact of human actions on the environment and human health where the consequences of actions may be unpredictable The evolution of the principle in international law, particularly in the field of environmental protection, began in the early 1980s although there is evidence that it was domestically popular in Europe in the 1930s in the German socio-legal tradition, centering on the concept of good household management. In German the concept is Vorsorgeprinzip, which translates into English as precaution principle. One commentator has added the thought provoking comment that in today’s political sphere, the precautionary principle enjoys a wide, unprecedented recognition. The precautionary principle has become of such tremendous importance because in many cases, the scientific establishment of cause and effect is a difficult task sometimes approaching a fruitless investigation of infinite series of events.

For the precautionary principle to apply, States must take measures according to their capabilities and they must be cost effective. Also, threats that are responded to must be both serious and irreversible. The precautionary principle is usually applied through a structured approach to the analysis of risk, which comprises three elements: risk assessment; risk management; and risk communication. The principle is particularly relevant to the management of risk. It is based on the presupposition that potentially dangerous effects from a particular process or phenomenon have been identified and that scientific evaluation does not guarantee that the risk could be averted.

The requirements of ADIZ serve well the defence of a sovereign State against attacks and accord with neo post modernist views that aviation should first serve the safety and security of a society and that any damage posed by the misuse of aviation should be effectively precluded.

As was stated at the outset of this article, there has been no recorded instance of protest against the establishment of ADIZs. This might well be because the message of aviation resonates peace and security of society at whatever cost. This is as it should be.