Abstract
Though a common legal framework governing the establishment or enforcement of ADIZs does not exist, scholars should work together to help policymakers develop an international-law-based comprehensive understanding about the theory and practice of ADIZs. Unfortunately, some scholars, without sufficient evidence and thorough analysis, have misinterpreted certain legal facts of China’s East China Sea (ECS) ADIZ, which is usually described by them as being unlike other ADIZs—a lack of knowledge of China’s ADIZ policies and other countries’ ADIZ practices (especially the evolution of US ADIZ rules since 1950) has fueled misperceptions in the international community. Notable misperceptions include: first, China’s ECS ADIZ includes the disputed Diaoyu Dao Islands; second, China’s ADIZ rules do not distinguish between civil and state aircraft; third, the Chinese rules apply to all aircraft flying in the ADIZ, and make no exception for aircraft not intending to enter Chinese national airspace. The above misperceptions, which were possibly caused by technical flaws in analyzing, to some extent, have led to strategic misunderstanding and worsened the distrust between governments in the region. After carefully studying the US ADIZ rules and other countries’ ADIZ practices, the author found it necessary to clarify that China’s ADIZ rules are not unlike those of other countries: first, China’s ESC ADIZ does not cover the territorial airspace of the Diaoyu Dao Islands, which is included in Japan’s ADIZ; second, there is no evidence proving the Chinese rules apply to state aircraft (including military aircraft); third, there are a number of precedents for governments establishing ADIZ rules that are applicable to aircraft merely passing through an ADIZ; so China’s ADIZ rules are not unique, and the US ADIZ rules are actually unlike those of other countries in this regard.
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Notes
- 1.
The baselines of the territorial waters of the Diaoyu Dao Islands have been publicized by the Chinese Government on September 10, 2012. See “Diaoyu Islands Baseline Announcement Significant: Diplomat,” China Daily, September 13, 2012, http://www.chinadaily.com.cn/china/2012Diaoyu/2012-09/13/content_15756926.htm.
- 2.
“Aircraft used in military, customs and police services shall be deemed to be state aircraft.” See Convention on International Civil Aviation, done at Chicago on the 7th day of December 1944, Article 3(b).
- 3.
See 15 Fed. Reg. (1950), December 27, 1950, Title 14—Civil Aviation, Part 620—Security Control of Air Traffic, pp. 9319–9321.
§620.2 Definitions. As used in this part the words listed below shall mean:
(f) Foreign aircraft. An aircraft other than a United States aircraft defined in paragraph (l) of this section.
(l) United States aircraft. (1) An aircraft registered with the Administrator of Civil Aeronautics as a “civil aircraft of the United States” (2) an aircraft of the national-defense forces of the United States, or (3) an aircraft of the Federal Government, or of a State, Territory or Possession of the United States, or the District of Columbia, or of any political subdivision thereof which has been registered with the Administrator of Civil Aeronautics.
- 4.
Sec. 1202 of Federal Aviation Act of 1958: “In the exercise of his authority under section 307 (a) of this Act, the Administrator, in consultation with the Department of Defense, shall establish such zones of areas in the airspaces of the United States as he may find necessary in the interests of national defense, and by rule, regulation, or order restrict or prohibit the flight of civil aircraft, which he cannot identify, locate, and control with available facilities, with such zones or areas.” See Federal Aviation Act of 1958, Public Law 85-726, Aug. 23, 1958, Sec. 1202.
- 5.
§620.1 Purpose—“This part establishes rules which have been found necessary in the interest of national security to identify, locate and control all civil aircraft operated within areas designated as Air Defense Identification Zones (ADIZs) or Defense Areas.” See 26 Fed. Reg. (1961), October 14, 1961, Title 14—Civil Aviation, Part 620—Security Control of Air Traffic, pp. 9709–9711.
- 6.
The US ADIZs (including the Defense area in the Contiguous United States) not only cover international airspace, but also the territorial airspace of the United States.
- 7.
See 49 U.S. Code, §40102. Definitions.
(41) “Public aircraft” means any of the following: (A) Except with respect to an aircraft described in subparagraph (E), an aircraft used only for the United States Government, except as provided in section 40125(b). (B) An aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration, except as provided in section 40125(b). (C) An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in section 40125(b). (D) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in section 40125(b). (E) An aircraft owned or operated by the armed forces or chartered to provide transportation or other commercial air service to the armed forces under the conditions specified by section 40125(c). In the preceding sentence, the term “other commercial air service” means an aircraft operation that (i) is within the United States territorial airspace; (ii) the Administrator of the Federal Aviation Administration determines is available for compensation or hire to the public, and (iii) must comply with all applicable civil aircraft rules under title 14, Code of Federal Regulations. (F) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian Tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in section 40125(b).
- 8.
According to the Aeronautical Information Manual (12 October 2017, see 5-6-2.b. & 5-6-3.e.), “Aircraft operations to or from, within, or transiting U.S. territorial airspace must also comply with all other applicable regulations published in 14 CFR”; and “From U.S. territorial airspace means any flight that exits U.S. territorial airspace after departure from a location in the U.S., its territories or possessions, and lands at a destination outside the U.S., its territories or possessions.”
- 9.
Before the 1988 amendment, the “Position reports” requirements only applied to aircraft “entering the US,” but this restriction has been deleted (maybe because of carelessness) by the Federal Register on May 20, 1988. See 53 Fed. Reg. (1988), May 20, 1988, 14 CFR Part 99, pp. 18217–18218.
- 10.
See 14 CFR (2018), §99.3:
Defense area means any airspace of the contiguous United States that is not an ADIZ in which the control of aircraft is required for reasons of national security.
- 11.
See Canadian Aviation Regulations (CARs), §602.145 (1):
This section applies in respect of aircraft before entering into and while operating within the ADIZ, the dimensions of which are specified in the Designated Airspace Handbook.
- 12.
§620.10 Application—“No person shall operate a civil aircraft within the defense areas or into, within, or out of the United States through the ADIZs prescribed in Subpart C of this part in violation of the rules provided in this part.” See 26 Fed. Reg. (1961), October 14, 1961, Title 14, Part 620, pp. 9709–9711.
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Qun, C. (2021). Misperceptions of China’s East China Sea ADIZ: Technical Flaws and Legal Facts. In: Buszynski, L., Hai, D.T. (eds) Maritime Issues and Regional Order in the Indo-Pacific. Palgrave Studies in Maritime Politics and Security. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-68038-1_9
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