| by Dr. Ruwantissa Abeyratne
* December 5, 2013, Montreal, Sri Lanka Guardian)Over the past week the international press has been buzzing with what was seemingly an act of provocation by China in declaring an air defence identification zone (ADIZ) over the East China Sea. This act prompted unarmed military aircraft of the United States and Japan to fly over the disputed area in defiance, and South Korea to finalize the extension of its own ADIZ.
I have already written an extensive article titled "The Air Defence Identification Zone - A Necessary Precaution" which was published in this journal on 27 August 2011. It can be accessed at http://www.srilankaguardian.org/2011/08/air-defence-identification-zone.html and will provide the background to the current debate.
It must be remembered that an ADIZ is not a no fly zone. Nor is it an extension of sovereignty. It is a tool deemed useful in military terms that helps identify in time any belligerent military aircraft that might threaten the security of a State and to prepare appropriate responses. This is not the first time that China has been involved in the concept of ADIZ. In 2008 prior to the Beijing Summer Olympic Games, China considered establishing an ADIZ over the East China Sea and Taiwan to obviate or counter threats to the games from the air. There is a permanent ADIZ over the Arctic created by the United States and Canada. European States, particularly the United Kingdom and Norway, rely heavily on preparation with regard to the possible threat caused by overflying Russian military aircraft.
As I mentioned in my earlier article, an 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.
The Convention on International Civil Aviation (popularly called the Chicago Convention) states that each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas are required to be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, are to be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization.
The Convention also provides that each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States. States may also under such regulations as they may prescribe, may require any aircraft entering the areas contemplated in subparagraphs to effect a landing as soon as practicable thereafter at some designated airport within their territories.
The Chicago Convention separately states that contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory and that for the purposes of the Convention the territory of a State are deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. Therefore, when it comes to China's ADIZ over the East China Sea, although the zone would cover an indeterminate area, China's sovereignty would only be over " territorial waters" which, strictly interpreted, would be a breadth of 12 miles from the coast of China. However, on a broad interpretation, it could be claimed under the United Nations Convention on the Law of the Sea (UNCLOS) that the contiguous zone, which is an additional 12 miles, as well as the Exclusive Economic Zone (EEZ) which is 200 miles further, may also be encompassed within its span of sovereignty. A further 200 miles is permitted as the Continental Shelf if a State could show just cause for such a claim.
There are entrenched rules that each State enforces along with an ADIZ. For example, the United States which has the most comprehensive ADIZ system, prescribes that any person who operates a civil aircraft into an ADIZ must have certain equipment such as a functioning two way radio. The regulation goes further by stating that any person operating an aircraft (be it civil or military) must file what is called Defence Visual Flight Rules (DVFR) which clearly indicate the date, time and point at which the ADIZ will be penetrated. The absence of such equipment and filing of DVFR would require the pilot to land as soon as possible.
The question at issue is whether any State would have the right to not only request information within an ADIZ but also to exercise its sovereignty over an area covering its EEZ. Here, some take the position that this is a subject of interpretation bringing to mind the famous statement of Albert Einstein that: " there is nothing called right or wrong, but what works and what doesn't work". Chinese scholar Li Qin states: " According to international practice and law, when a foreign military plane is engaged in activities that could threaten a State's national security in the airspace over coastal waters of a coastal country, it has the right to take relevant defence measures, including sending planes to track and monitor the plane". This strong view notwithstanding, the Chinese have adopted in practicality a more conciliatory stance of intercepting American reconnaissance planes over its EEZ merely to inspect them in a non-threatening manner, thereby tacitly acknowledging that the tenets of public international law do not admit of such harsh measures as some scholars would have us believe.
The ADIZ remains essentially a precautionary measure. No more, no less. In November 2007, Sri Lanka, by special gazette notification established its own ADIZ. It had a perfect right to do so. No one protested. As I concluded in my earlier article: " 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....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".
* December 5, 2013, Montreal, Sri Lanka Guardian)Over the past week the international press has been buzzing with what was seemingly an act of provocation by China in declaring an air defence identification zone (ADIZ) over the East China Sea. This act prompted unarmed military aircraft of the United States and Japan to fly over the disputed area in defiance, and South Korea to finalize the extension of its own ADIZ.
It must be remembered that an ADIZ is not a no fly zone. Nor is it an extension of sovereignty. It is a tool deemed useful in military terms that helps identify in time any belligerent military aircraft that might threaten the security of a State and to prepare appropriate responses. This is not the first time that China has been involved in the concept of ADIZ. In 2008 prior to the Beijing Summer Olympic Games, China considered establishing an ADIZ over the East China Sea and Taiwan to obviate or counter threats to the games from the air. There is a permanent ADIZ over the Arctic created by the United States and Canada. European States, particularly the United Kingdom and Norway, rely heavily on preparation with regard to the possible threat caused by overflying Russian military aircraft.
As I mentioned in my earlier article, an 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.
The Convention on International Civil Aviation (popularly called the Chicago Convention) states that each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas are required to be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, are to be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization.
The Convention also provides that each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States. States may also under such regulations as they may prescribe, may require any aircraft entering the areas contemplated in subparagraphs to effect a landing as soon as practicable thereafter at some designated airport within their territories.
The Chicago Convention separately states that contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory and that for the purposes of the Convention the territory of a State are deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. Therefore, when it comes to China's ADIZ over the East China Sea, although the zone would cover an indeterminate area, China's sovereignty would only be over " territorial waters" which, strictly interpreted, would be a breadth of 12 miles from the coast of China. However, on a broad interpretation, it could be claimed under the United Nations Convention on the Law of the Sea (UNCLOS) that the contiguous zone, which is an additional 12 miles, as well as the Exclusive Economic Zone (EEZ) which is 200 miles further, may also be encompassed within its span of sovereignty. A further 200 miles is permitted as the Continental Shelf if a State could show just cause for such a claim.
There are entrenched rules that each State enforces along with an ADIZ. For example, the United States which has the most comprehensive ADIZ system, prescribes that any person who operates a civil aircraft into an ADIZ must have certain equipment such as a functioning two way radio. The regulation goes further by stating that any person operating an aircraft (be it civil or military) must file what is called Defence Visual Flight Rules (DVFR) which clearly indicate the date, time and point at which the ADIZ will be penetrated. The absence of such equipment and filing of DVFR would require the pilot to land as soon as possible.
The question at issue is whether any State would have the right to not only request information within an ADIZ but also to exercise its sovereignty over an area covering its EEZ. Here, some take the position that this is a subject of interpretation bringing to mind the famous statement of Albert Einstein that: " there is nothing called right or wrong, but what works and what doesn't work". Chinese scholar Li Qin states: " According to international practice and law, when a foreign military plane is engaged in activities that could threaten a State's national security in the airspace over coastal waters of a coastal country, it has the right to take relevant defence measures, including sending planes to track and monitor the plane". This strong view notwithstanding, the Chinese have adopted in practicality a more conciliatory stance of intercepting American reconnaissance planes over its EEZ merely to inspect them in a non-threatening manner, thereby tacitly acknowledging that the tenets of public international law do not admit of such harsh measures as some scholars would have us believe.
The ADIZ remains essentially a precautionary measure. No more, no less. In November 2007, Sri Lanka, by special gazette notification established its own ADIZ. It had a perfect right to do so. No one protested. As I concluded in my earlier article: " 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....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".
Over the past week the international press has been buzzi...){kind=link}