Meanwhile, China Draws a Provocative, Dangerous, But Perfectly Legal Air Defense Identification Zone in the East China Sea
I don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva. But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.
China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)
Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s. China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.” The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ. (Wonder which lucky US pilot draws that mission!)
Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law. Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.” Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace. This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS. (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).
If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands. It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace. The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:
The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.
Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska. If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.