A 'Rules-Based' Approach to Airspace Defense- A U.S. Perspective on the International Law of the Sea and Airspace, Air Defense Measures, And the Freedom of Navigation

8/19/2019 A 'Rules-Based' Approach to Airspace Defense- A U.S. Perspective on the International Law of the Sea and Airspac…

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REVUE BELGE DE DROIT INTERNATIONAL2014/1 – Éditions BRUYLANT, Bruxelles

A “RULES-BASED APPROACH”

TO AIRSPACE DEFENSE :

A U.S. PERSPECTIVE ON THE

INTERNATIONAL LAW OF THE SEA

AND AIRSPACE, AIR DEFENSE MEASURES,

AND THE FREEDOM OF NAVIGATION

BY

Jonathan G. ODOM *

ABSTRACT

In light of recent international developments, such as the People’s Republic ofChina’s declaration of an air defense identification zone (ADIZ) in the East ChinaSea and the intercepts of military aircraft in international airspace adjacent to thenations of Europe, this article seeks to advance legal discussion and provide an

updated perspective on the applicable international law of the sea and airspace,air defense measures, and the freedom of navigation. First, it examines the inher-ent differences between national airspace and international airspace. Second,it discusses the air defense measure known as ADIZ. Third, it discusses the airdefense measure known as aircraft intercepts. Fourth, it discusses the freedom ofnavigation, and discusses ways in which the air defense measures of ADIZs andaircraft intercepts can be employed in a manner consistent with the freedom ofnavigation. By highlighting applicable U.S. laws, regulations, policy directives,and press releases, this article seeks to provide an example of effectively balanc-ing security and freedom in a manner that is fully consistent with internationallaw. In the end, this article concludes that air defense measures established andimplemented by a nation may be lawful under international law, but only if the

nation follows a “rules-based approach,” in which it conforms those measures tothe applicable body of international law and respects the freedom of navigationenjoyed by other nations.

* Commander Jonathan G. Odom is an active-duty judge advocate (i.e., licensed attorney) inthe U.S. Navy. Currently, he serves as the Oceans Policy Advisor in the Office of the Secretaryof Defense. Previously, Commander Odom served for three and a half years as the Deputy LegalAdvisor to Commander, U.S. Pacific Command, headquartered in Hawaii, with a legal portfoliofocused on oceans law and policy and the legal aspects of maritime security. Commander Odom is a

licensed member of the North Carolina Bar. He earned his Bachelor of Arts from Duke University,his Juris Doctor from Wake Forest University, and his Master of Laws from Georgetown Univer-sity. The views presented are those of the author and do not necessarily represent the official policy or

position of the U.S. Government, the Department of Defense, or any of its components. CommanderOdom may be contacted at [email protected].


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66 JONATHAN G. ODOM

I. — INTRODUCTION

There is often an inherent tension between the concepts of freedom andsecurity. Since both of these interests are legitimate, the issue often becomeshow to preserve both of them properly. Among the many aphorisms andadages of the American Founding Father Benjamin Franklin, the one thatappears to be quoted most frequently by modern-day U.S. lawyers is “Thosewho would give up essential Liberty, to purchase a little temporary Safety,deserve neither Liberty nor Safety.” (1) Of course, the tension between theinterests of freedom and security exists not only in the internal affairs of asingle State, but also in the relations between two or more States.

One of the primary purposes of the rule of law is to provide a stable andbalanced framework for how individuals and entities relate to one anotherin an orderly fashion, without sacrificing either freedom or security. Withinthe internal affairs of a State, the rule of law provides a framework for how astate and its citizens relate to one another and how its citizens will relate toone another. (2) Likewise, in international relations, the rule of law providesa framework for how states relate to one another. (3) A successful example in

(1) Benjamin Franklin, Reply to the Governor [of Pennsylvania] (Nov. 11, 1755), reprinted in

6 Papers of Benjamin Franklin, P. 238, available at http://franklinpapers.org/franklin/framedVol-umes.jsp ?vol=6&page=238a (last consulted 2 March 2015).

(2) See Brian Z. TAMANAHA, On the Rule of Law : History, Politics, Theory, Cambridge, CambridgeUniversity Press, 2004 ; see, e.g., New York Times v. United States, 403 U.S. 713, 719 (J. Black,concurring) (opining : “The word “security” is a broad, vague generality whose contours should notbe invoked to abrogate the fundamental law embodied in the First Amendment. The guarding ofmilitary and diplomatic secrets at the expense of informed representative government provides noreal security for our Republic. The Framers of the First Amendment, fully aware of both the needto defend a new nation and the abuses of the English and Colonial governments, sought to give thisnew society strength and security by providing that freedom of speech, press, religion, and assemblyshould not be abridged.”).

(3) See Brian Z. TAMANAHA, supra note 2 ; see, e.g., President Franklin D. Roosevelt, State of theUnion Address to Congress (The “Four Freedoms” Speech) (January 6, 1941)(declaring : “In thefuture days, which we seek to make secure, we look forward to a world founded upon four essentialhuman freedoms. The first is freedom of speech and expression everywhere in the world. The secondis freedom of every person to worship God in his own way everywhere in the world. The third isfreedom from want which, translated into world terms, means economic understandings which willsecure to every nation a healthy peacetime life for its inhabitants-everywhere in the world. Thefourth is freedom from fear which, translated into world terms, means a world-wide reduction ofarmaments to such a point and in such a thorough fashion that no nation will be in a position tocommit an act of physical aggression against any neighbor anywhere in the world. That is no visionof a distant millennium. It is a definite basis for a kind of world attainable in our own time andgeneration. That kind of world is the very antithesis of the so-called new order of tyranny whichthe dictators seek to create with the crash of a bomb. To that new order we oppose the greaterconception the moral order. A good society is able to face schemes of world domination and foreign

revolutions alike without fear. Since the beginning of our American history, we have been engagedin change in a perpetual peaceful revolution a revolution which goes on steadily, quietly adjustingitself to changing conditions without the concentration camp or the quick-lime in the ditch. Theworld order which we seek is the cooperation of free countries, working together in a friendly, civi-lized society.”).

http://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238ahttp://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238ahttp://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238ahttp://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238a


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A “RULED-BASED APPROACH” TO AIRSPACE DEFENSE 67

which the rule of law has achieved this balance between freedom and securityis the international law of the sea and airspace. Specifically, that body of

international law accommodates the rights, freedoms, and uses of the sea andairspace by coastal States and the co-existing rights, freedoms, and uses ofthe sea and airspace by other States. Thus, when a situation or an issue arisesin international relations involving two or more States and their activitiesoccurring at sea or in the airspace, we must turn to the applicable body ofinternational law for the legal solution. Arguably, this is the very essence ofa “rules-based approach.” (4)

The international law of the sea is one of the oldest bodies of internationallaw, with its development spanning over four centuries. (5) In contrast, the

elements of that body of international law involving the rights, freedoms,and uses of airspace is relatively younger. (6) Many of the legal concepts andprinciples for the seas and airspace are consistent, as they are both reflectedin the U.N. Convention on the Law of the Sea. Yet the fundamental diffe-rence in the nature of human flight (i.e., speed) means that potential threatsoriginating from the air can emerge much faster than those from the sea, andStates thereby face intelligence and operational challenges of quickly iden-tifying indicators and warnings of those threats to respond in a timely andeffective manner. Given that two infamous armed attacks on U.S. territoryinvolved surprise attacks originating from the air, (7) the United States is

especially sensitive to ensuring that a nation can protect itself from airborne

(4) See, e.g., Jonathan G. ODOM, “How a “Rules-Based Approach” Could Improve the SouthChina Sea Situation”, in Murray HIEBERT, Phuong NGUYEN and Gregory POLING (eds.), Perspectiveson the South China Sea : Diplomatic, Security, and Legal Dimensions of the Dispute, September 2014,available at http://csis.org/files/publication/140930_Hiebert_PerspectivesSouthChinaSea_Web.pdf (last consulted 2 March 2015).

(5) Some of the foundational concepts reflected in the modern international law of the sea, asreflected in the United Nations Convention on the Law of the Sea (UNCLOS), can be traced backto Mare Liberum, the seminal work by the “father of international law” Hugo Grotius, which wasfirst published in 1609.

(6) See, e.g., Convention on International Civil Aviation (Chicago Convention), 7 December1944, 61 Stat. 1180, 15 United Nations Treaty Series 185. Of note, the Chicago Convention has onlylimited application to state aircraft, including military aircraft (article 3 (d)).

(7) On December 7, 1941, the Imperial Japanese Navy attacked the U.S. military installa-tions and forces located on the U.S. island of Oahu, including those in Pearl Harbor, primarily byaerial bombardment. In total, the attack killed 1,998 U.S. Navy personnel, 109 U.S. Marine Corpspersonnel, 233 U.S. Army personnel, and 48 civilians. U.S. National Park Service, December 7, 1941losses, available at http://www.nps.gov/nr/twhp/wwwlps/lessons/18arizona/18charts1.htm (lastconsulted 2 March 2015).

On September 11, 2001, 19 Al Qaeda terrorists hijacked four U.S. commercial airliners and inten-tionally attacked both towers of the World Trade Center in New York City and the U.S. Depart-ment of Defense’s Pentagon headquarters building in Washington, DC. The fourth hijacked planewas intended to attack another U.S. target, potentially the White House or the Capitol Building in

Washington, DC, but instead crashed into an open field in Somerset County, Pennsylvania. In total,more than 2,600 people died at the World Trade Center ; 125 died at the Pentagon ; 256 died on thefour planes. Final Report of the National Commission on Terrorist Attacks Upon the United States ,Executive Summary (July 22, 2004), available at http://www.9-11commission.gov/report/911Re-port_Exec.htm (last consulted 2 March 2015).

http://csis.org/files/publication/140930_Hiebert_PerspectivesSouthChinaSea_Web.pdfhttp://www.nps.gov/nr/twhp/wwwlps/lessons/18arizona/18charts1.htmhttp://www.9-11commission.gov/report/911Report_Exec.htmhttp://www.9-11commission.gov/report/911Report_Exec.htmhttp://www.9-11commission.gov/report/911Report_Exec.htmhttp://www.9-11commission.gov/report/911Report_Exec.htmhttp://www.nps.gov/nr/twhp/wwwlps/lessons/18arizona/18charts1.htmhttp://csis.org/files/publication/140930_Hiebert_PerspectivesSouthChinaSea_Web.pdf


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72 JONATHAN G. ODOM

Conversely, as a matter of international law, a State lacks sovereigntyover any airspace beyond its national airspace, to include international

airspace (26) and the national airspace of other States. If an aircraft of oneState desires to enter the national airspace of another State, then that air-craft generally (27) must obtain the consent of that State or, in the case ofunscheduled civil aircraft, be subject to the right of the State overflown torequire landing. (28) Civil aircraft enter foreign airspace in accordance withregimes established under the Chicago Convention and, in the case of com-mercial operators, bilateral air transport agreements. State aircraft generallymust have express permission to enter the national airspace of another State,usually in the form of a diplomatic clearance. (29)

(26) The phrase “international airspace” is intended to describe any airspace that is not subjectto the sovereignty of any State. In other words, this means all airspace beyond the national airspaceof any State. It would include : the airspace over any coastal State’s contiguous zones or exclusiveeconomic zones, (2) the airspace over the high seas, and (3) the airspace over territories not subjectto national sovereignty (e.g., Antarctica). See U.S. Department of Defense Instruction 4540.01,supra note 22, Glossary (“international airspace. Any airspace that is not subject to the sovereigntyof a State. This includes all airspace seaward of coastal States’ national airspace, including airspaceover contiguous zones, exclusive economic zones, and the high seas.”) ; see also U.S. DEPARTMENT OF THE Navy, Commander’s Handbook on the Law of Naval Operations, supra note 19, para. 2.7.2.3.

(27) International law recognizes limited exceptions to this consent obligation, such as an aircraft

in distress. See U.S. Response to Signed Article in China’s Official Party Newspaper (April 2001),reprinted in Digest of United States Practice in International Law, 2001, p. 708, available at http://www.state.gov/documents/organization/139600.pdf (last consulted 2 March 2015) (“Although werecognize that military aircraft normally require permission to enter the territorial airspace ofanother nation, international law recognizes a right of entry for foreign aircraft, state or civil, incircumstances such as these when such entry is due to distress and there is no reasonable safe alter-native. Notwithstanding the ordinary rules requiring consent, a peacetime right to enter in distressfor military aircraft is consistent with established international practice.”) ; U.S. DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations, supra note 19, para. 2.7.1(“Pursuant to the Convention on International Civil Aviation of 1944 (the Chicago Convention),civil aircraft in distress are entitled to special consideration and should be allowed entry and emer-gency landing rights. Customary international law recognizes that foreign State aircraft in distress,including military aircraft, are similarly entitled to enter national airspace and to make emergencylandings without prior coastal nation permission.”).

(28) Chicago Convention, arts. 3 (“No state aircraft of a contracting State shall fly over the terri-tory of another State or land thereon without authorization by special agreement or otherwise, andin accordance with the terms thereof.”), 5 (regarding unscheduled civil flights), 6 (regarding sched-uled civil flights), and 13 (“The laws and regulations of a contracting State as to the admission toor departure from its territory of passengers, crew or cargo of aircraft, such as regulations relatingto entry, clearance, immigration, passports, customs, and quarantine shall be complied with by oron behalf of such passengers, crew or cargo upon entrance into or departure from, or while withinthe territory of that State.”). Note : “An aircraft of a State” usually refers to a civil aircraft enteredon that State’s registry or a state aircraft in that State’s service. It is common, however, for bothcommercial and noncommercial civil operators to operate aircraft registered on a foreign registry.

(29) Chicago Convention, art. 3. The United States has established procedures for the diplo-

matic clearance of foreign State aircraft, including foreign military aircraft, to enter U.S. nationalairspace. See Office of International Security Operations, U.S. Department of State, “DiplomaticAircraft Clearance Procedures Diplomatic Aircraft Clearance Procedures For Foreign State AircraftTo Operate In The United States National Airspace,” available at http://www.state.gov/t/pm/iso/c56895.htm (last consulted 2 March 2015).

http://www.state.gov/t/pm/iso/c56895.htmhttp://www.state.gov/t/pm/iso/c56895.htmhttp://www.state.gov/t/pm/iso/c56895.htmhttp://www.state.gov/t/pm/iso/c56895.htm


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States have the responsibility to provide, so far as practicable, air naviga-tion facilities, including air traffic management services, for aircraft opera-

ting within their national airspace. (30) In addition, the ICAO has allocated,through regional air navigation agreements, responsibility for civil air trafficmanagement in international airspace adjacent to coastal States in specifiedFlight Information Regions (FIRs). To carry out the State responsibilitiesfor providing air navigation facilities and air traffic management services inboth national airspace and in assigned FIRs, States generally establish rulesand procedures relating to civil aviation operations.

States also have the responsibility to ensure that aircraft operating withinairspace they manage (e.g., assigned FIRs) are informed of conditions affec-

ting that airspace. To mitigate the risk of potential hazards to the safety ofaircraft, States should notify or otherwise inform pilots of those potentialhazards or conditions. A Notice to Airmen (NOTAM) is a notice to alert pilotsof potential hazards along a flight route or at a location that could affectthe safety of flight. (31) NOTAMs are typically issued to notify operatorsof hazards that require immediate attention. (32) If the hazard persists, itwill be incorporated into the next edition of the appropriate AeronauticalInformation Publication (AIP), which contains aeronautical informationof a lasting character essential to air navigation. (33) The State that admi-nisters the airspace affected has primary responsibility for issuance of both

NOTAMs and the AIP. (34) Pilots are required to review relevant NOTAMsand parts of the AIP before every flight.

III. — AIR DEFENSE MEASURE : AIR DEFENSE

IDENTIFICATION ZONES

For the purpose of air defense, a State may establish conditions for entryby foreign aircraft into its national airspace and airports, (35) similar to

(30) Chicago Convention, art. 28(b). (31) Chicago Convention Annex 15, para. 1.1, Aeronautical Information Services, Definitions

(“NOTAM. A notice distributed by means of telecommunication containing information concerningthe establishment, condition or change in any aeronautical facility, service, procedure or hazard, thetimely knowledge of which is essential to personnel concerned with flight operations.”).

(32) Chicago Convention Annex 15, para. 5.1.1. (“A NOTAM shall be originated and issuedpromptly whenever the information to be distributed is of a temporary nature and of short durationor when operationally significant permanent changes, or temporary changes of long duration aremade at short notice, except for extensive text and/or graphics.”).

(33) Chicago Convention Annex 15, para. 1.1, Aeronautical Information Services, Definitions ;ICAO Doc. 4444, Air Traffic Management, definitions.

(34) Chicago Convention Annex 15, para. 1.1, Aeronautical Information Services, Definitions ;ICAO Doc. 4444, Air Traffic Management, definitions. (35) Chicago Convention, art. 13 (“The laws and regulations of a contracting State as to the

admission to or departure from its territory of passengers, crew or cargo of aircraft, such as regu-lations relating to entry, clearance, immigration, passports, customs, and quarantine shall be


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how a coastal State may establish conditions of entry for foreign vessels toenter its seaports. (36) An entry control mechanism available to States is a

zone referred to as an ADIZ. (37) An ADIZ provides a practical method for aState to identify aircraft as potential threats to the State’s national securityand reduce the number of “aircraft of interest” the State needs to monitoractively. (38)

There is no international treaty or convention that expressly addressesADIZs, and the ICAO does not establish standards for such actions in theannexes to the Chicago Convention or in other procedural publications. (39)Consequently, one must look to the general rules of international law (e.g.,rights, freedoms, and uses of airspace) and to practice of States. ADIZs are

typically areas that geographically extend into the international airspaceadjacent to a State’s national airspace. (40) The United States began establi-shing ADIZs in the 1950s. (41) Under U.S. national regulations, the UnitedStates defines an ADIZ as “an area of airspace over land or water in which theready identification, location, and control of all aircraft (except for Depart-ment of Defense and law enforcement aircraft) is required in the interest ofnational security.” (42)

complied with....”). Chicago Convention, art. 11 (“Subject to the provisions of this Convention,

the laws and regulations of a contracting State relating to the admission to or departure from itsterritory of aircraft engaged in international air navigation, or to the operation and navigation ofaircraft while within its territory, shall be applied to the aircraft of all contracting States withoutdistinction as to nationality, and shall be complied with by such aircraft upon entering or departingfrom or while within the territory of that State.”).

(36) U.S. DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations,supra note 19, para. 2.5.1 (“Because entering internal waters is legally equivalent to entering theland territory of another nation, that nation’s permission is required.”).

(37) U.S. DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations,supra note 19, para. 2.7.2.3 (“The legal basis for ADIZ regulations is the right of a nation to estab-lish reasonable conditions of entry into its territory.”).

(38) See U.S. Department of Defense Instruction 4540.01, supra note 22, para. 3.c.(1)(a)(“AnADIZ provides a practical method for a State to identify aircraft as potential threats to the State’snational security.”).

(39) However, ICAO does mention ADIZs in at least one publication. See Chicago Convention,Annex 15 (“Aeronautical Information Services”), Appendix 1, ENR 5.2 (“Military exercise andtraining areas and air defence identification zone (ADIZ)”).

(40) U.S. DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations,supra note 19, para. 2.7.2.3 (“International law does not prohibit nations from establishing airdefense identification zones (ADIZs) in the international airspace adjacent to their territorialairspace.”). However, nothing prohibits a State from establishing an ADIZ in a geographic areathat is either partially or wholly above the State’s sovereign territory. For example, in 2007, theUnited States established an ADIZ for the Metropolitan Washington, D.C., area. See U.S. FederalAviation Administration (FAA), Notice to Airmen (NOTAM) 7/0206 (August 30, 2007), availableat http://www.faa.gov/news/updates/adiz_frz/media/DC_ADIZ-FRZ_Advisory.pdf (last consulted

6 March 2015). (41) DUTTON, supra note 18, p. 698. (42) 14 U.S. Code of Federal Regulations (CFR) Part 99, Section 99.3 (2013), available at http://

www.gpo.gov/fdsys/browse/collectionCfr.action ?selectedYearFrom=2013&go=Go (last consulted6 March 2015).

http://www.faa.gov/news/updates/adiz_frz/media/DC_ADIZ-FRZ_Advisory.pdfhttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.faa.gov/news/updates/adiz_frz/media/DC_ADIZ-FRZ_Advisory.pdf


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Nothing in international law prohibits a coastal State from establishingan ADIZ in its territorial airspace or in the international airspace adjacent

to its territorial airspace, consistent with its right to regulate and controlentry into and departure from its territory by foreign aircraft. (43) Thus,the United States has described the purpose of ADIZs as follows : “To faci-litate early aircraft identification of all aircraft in the vicinity of U.S. andinternational airspace boundaries, Air Defense Identification Zones (ADIZ)have been established.” (44)

The establishment of an ADIZ by a State neither imputes any additionalrights to that State that it does not otherwise enjoy under international law,nor does it expand any of those rights for that State. (45) In other words,

other States continue to enjoy, quantitatively and qualitatively, the samerights, freedoms, and uses of airspace reflected in international law (46) thatthey did absent a State’s establishment of an ADIZ. (47) Therefore, anyADIZ established by one State, and its implementing regulations and ope-rational practices, must respect all of those rights, freedoms, and uses ofairspace by other States. (48)

The United States has established several ADIZs by Federal regula-tions. (49) These designated ADIZs include airspace around the contiguousUnited States, (50) Alaska, (51) Guam, (52) and Hawaii. (53) As discussedbelow, not all flights in the U.S. ADIZ are subject to the U.S. ADIZ regu-

(43) Chicago Convention, art. 13 ; U.S. DEPARTMENT OF THE NAVY, Commander’s Handbook on theLaw of Naval Operations, supra note 19, para. 2.7.2.3.

(44) U.S. Federal Aviation Administration (FAA), Aeronautical Information Manual (AIM),chapter 5, section 6, para. 5-6-1(b), available at http://www.faa.gov/air_traffic/publications/atpubs/aim/aim0506.html#aim0506.html.1 (last consulted 6 March 2015).

(45) See U.S. Department of Defense Instruction 4540.01, supra note 22, para. 3.c.(1)(c)(“DoDunderstands that a State’s establishment of an ADIZ neither imputes any additional rights to thatState that it does not otherwise enjoy under international law, nor does it expand any of those rightsfor that State.”).

(46) These rights, freedoms, and uses of the airspace are reflected in UNCLOS, the ChicagoConvention, and customary international law.

(47) See U.S. Department of Defense Instruction 4540.01, supra note 22, para. 3.c.(1)(c)(“Thus,DoD understands that other States continue to enjoy, quantitatively and qualitatively, the samerights, freedoms, and lawful uses of the airspace reflected in international law that they did absenta State’s establishment of an ADIZ.”).

(48) See U.S. Department of Defense Instruction 4540.01, supra note 22, para. 3.c.(1)(a)(“DoDrespects that a State may establish an ADIZ that geographically extends into the internationalairspace adjacent to the State’s national airspace, but such ADIZs may not impede the rights, free-doms, and lawful uses of airspace under international law of foreign aircraft, including foreign mili-tary aircraft.”).

(49) Title 14, Part 99 of the U.S. Code of Federal Regulations contains the regulations for theU.S. ADIZs. 14 C.F.R. Part 99, available at http://www.gpo.gov/fdsys/browse/collectionCfr.

action ?selectedYearFrom=2013&go=Go (last consulted 6 March 2015). (50) 14 C.F.R. 99.43 (51) 14 C.F.R. 99.45. (52) 14 C.F.R. 99.47. (53) 14 C.F.R. 99.49.

http://www.faa.gov/air_traffic/publications/atpubs/aim/aim0506.html#aim0506.html.1http://www.faa.gov/air_traffic/publications/atpubs/aim/aim0506.html#aim0506.html.1http://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2013&go=Gohttp://www.faa.gov/air_traffic/publications/atpubs/aim/aim0506.html#aim0506.html.1http://www.faa.gov/air_traffic/publications/atpubs/aim/aim0506.html#aim0506.html.1


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lations. For those flights that are subject to the ADIZ regulations, the per-sons operating those aircraft are required to take certain actions. These

required actions include : to have a functioning two-way radio and maintaincontinuous listening watch on the appropriate frequency ; (54) to file a flightplan ; (55) and to make position reports, as well as certain requirements rela-ting to aircraft transponders. (56)

These U.S. ADIZs fully respect the rights, freedoms, and uses of internatio-nal airspace by other States. As a matter of international law, all States enjoyhigh seas freedom of navigation and overflight, and other internationallylawful uses of the sea related to those freedoms beyond the territorial seas ofany coastal State. (57) The United States has long held the position that all

States may conduct military activities (e.g., launching and landing aircraft,operating military devices, intelligence collection, exercises, operations, andconducting military surveys) not only on the high seas, but also within theexclusive economic zones of other States. (58) As a matter of U.S. law, theU.S. ADIZ regulations state that those regulations, and the required actionscontained therein, apply to aircraft operating in the U.S. ADIZ, but only if the aircraft’s flight meets two conditions : (1) the aircraft’s flight originatedfrom U.S. national airspace, operates within U.S. national airspace, or isdestined for U.S. national airspace, and (2) its flight will pass through theU.S. ADIZ. (59) In summary, as a matter of regulatory interpretation and

(54) 14 C.F.R. 99.9(a). (55) 14 C.F.R. 99.9(b). (56) 14 C.F.R. 99.15. (57) UNCLOS, Art. 58. (58) See William J. CLINTON, “Message From the President of the United States : Letter of Trans-

mittal”, S. Treaty Doc. No. 103-39 (1994), reprinted in Bureau Of Public Affairs, U.S. Dep’t OfState, Dispatch Supplement, 1995, vol. 6, Supp. 1, available at http://www.jag.navy.mil/organi-zation/documents/Senate_Transmittal.pdf (last consulted 6 March 2015). Within a coastal State’sEEZ, such military activities must maintain “due regard” for the resource-related rights of thecoastal State. Id.

(59) Of note, the “Applicability” section in the opening of Part 99 states that these regulationsprescribe rules for “all aircraft” operating “into, within, or out of the United States through an AirDefense Identification Zone (ADIZ) designated in subpart B [of the regulation].” 14 C.F.R. Part99, Section 99.1(a). Therefore, to be subject to the requirements of the U.S. ADIZ, an aircraft mustsatisfy both conditions : (1) its point of origin, destination, or flight path is within U.S. nationalairspace (i.e., “into, within, or out of the United States”), and (2) its flight path includes the U.S.ADIZ (i.e., “through an Air Defense Identification Zone (ADIZ) designated in subpart B”). On atleast one previous occasion, the United States has confirmed that the U.S. ADIZ regulations do notapply to a foreign aircraft that merely pass through or otherwise operate in international airspacelocated within a U.S. ADIZ without intending to enter U.S. national airspace. See “U.S. Responseto Signed Article in China’s Official Party Newspaper”, April 2001, reprinted in Digest of UnitedStates Practice in International Law, 2001, p. 707, supra note 27 (“The Air Defense IdentificationZones (‘ADIZ’) established under U.S. regulations – which require the filing of flight plans and peri-

odic position reports – apply only to aircraft bound for U.S. territorial airspace.”) ; AeronauticalInformation Manual (AIM), chapter 5, section 6, para. 5-6-1(b), supra note 43 ; United States Aero-nautical Information Publication (AIP), 7 March 2013, ENR 1.12, para. 1.2 (“All aircraft enteringdomestic U.S. airspace from points outside, must provide for identification prior to entry.”) ; U.S.DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations, supra note 19,

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relevant international law, the U.S. practice has been to apply its ADIZregulations only to aircraft if those aircraft are bound for, operating within,

or departing U.S. national airspace. (60)Concurrently, the U.S. ADIZs are located almost wholly within the FIRs,

for which the United States has air traffic control responsibility. Therefore,a high percentage of civil aircraft operating within the U.S. ADIZ are coin-cidentally required to follow ICAO procedures (e.g., filing a flight plan to theFAA) in order to transit the airspace covered by U.S.-controlled FIRs. Forany aircraft transiting a U.S. ADIZ without the intent to enter U.S. nationalairspace, the United States does not require, but only “recommends” thatthose aircraft file a flight plan. (61) As discussed further below, the United

States may intercept any aircraft operating within international airspaceadjacent to U.S. national airspace, in order to identify the aircraft and assessits intent. This includes intercepting any aircraft operating within the U.S.ADIZs or U.S. FIRs, irrespective of whether the U.S. ADIZ regulations orICAO procedures apply to that aircraft.

Similarly, the United States does not recognize the right of a State toapply its ADIZ laws and regulations to foreign civil aircraft, if those aircraftdo not intend to enter the national airspace of the coastal State. (62) TheUnited States also does not recognize the right of a State to require foreignState aircraft to follow procedures akin to those established in ADIZ laws,

regulations, or notices, except when established as a condition of entry. (63)Specifically, the U.S. Department of Defense policy guidance provides it“does not recognize efforts by other States to impose such ADIZ proceduresupon foreign aircraft that are only transiting international airspace withinthe State’s ADIZ without any intention to enter the State’s national airs-pace.” (64) As a procedural matter, U.S. military aircraft commanders are

para. 2.7.2.3 (“ADIZ regulations promulgated by the United States apply to aircraft bound for U.S.territorial airspace and require the filing of flight plans and periodic position report....[N]or does theUnited States apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace.”).

(60) Digest of United States Practice in International Law, 2001, p. 707, supra note 27 (“The[United States]... does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S.airspace.”) ; DUTTON, supra note 18, pp. 698-700. Under U.S. law, any person who knowingly orwillfully violates the U.S. ADIZ regulations may be subject to fines, imprisonment, or both. See 49U.S.C. § 46307. However, this author is unaware whether any individual has ever been prosecutedin the U.S. judicial system for such violations.

(61) United States Aeronautical Information Publication (AIP), supra note 55, para. 4.2.1.(“Except for operations in or penetrating a Coastal or Domestic ADIZ or DEWIZ (see ENR 1.12,paragraph 1.2), a flight plan is not required for VFR flight ; however, it is strongly recommendedthat one be filed.”).

(62) Digest of United States Practice in International Law, 2001, p. 707, supra note 27 ; U.S.DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations, supra note 19,

para. 2.7.2.3. (63) See U.S. Department of Defense Instruction 4540.01, supra note 22, para. 3.c.(1)(c)(“DoDrespects that other States may establish conditions for foreign aircraft to enter into their nationalairspace and airports, including adherence to reasonable ADIZ procedures.”).

(64) See U.S. Department of Defense Instruction 4540.01, supra note 22, para. 3.c.(1)(b).


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directed that they “are not required to and will not comply with foreignADIZ procedures” when they are conducting air operations in those portions

of a foreign ADIZ located in international airspace. (65) Thus, U.S. militaryaircraft that do not plan to enter the national airspace of another nation arenot required to identify themselves or comply with other ADIZ procedures,absent a specific agreement to the contrary. (66)

IV. — AIR DEFENSE MEASURE : AIRCRAFT INTERCEPTS

Another air defense measure that has developed through State practice isthe aircraft intercept. In general terms, an aircraft intercept occurs when a

State aircraft (e.g., military or law enforcement aircraft) approaches anotheraircraft to determine its identity and assess its intent. A State may conductan air intercept in national or international airspace, consistent with its “dueregard” obligations, as discussed below. Of note, a State may intercept otheraircraft, including civil aircraft and state aircraft, under international law –irrespective of whether that State has established an ADIZ, whether thataircraft of interest is subject to the State’s ADIZ regulations, and whetherthe aircraft of interest is actually operating in an established ADIZ.

Contained within the U.S. Aeronautical Information Publication (AIP) is

a notice that the United States “could order an intercept in the interest ofnational security or defense.” (67) The AIP further advises that the purposesof such intercepts by U.S. air defense assets of other aircraft can include :to identify the aircraft, track the aircraft, inspect the aircraft, divert theaircraft, or establish communications with the aircraft. (68) In North Ame-rica, the United States and Canada are surrounded by an ADIZ, which isjointly monitored by the civilian air traffic control (ATC) authorities of bothnations and the bi-national North American Aerospace Defense Command(NORAD). Of note, NORAD monitors all aircraft operating within the Joint

(65) U.S. Department of Defense Instruction 4540.01, “Use of International Airspace by U.S.Military Aircraft and for Missile/Projectile Firings”, supra note 22, Enclosure 3, para. 3.d.

(66) U.S. DEPARTMENT OF THE NAVY, Commander’s Handbook on the Law of Naval Operations,supra note 19, para. 2.7.2.3 (“The United States does not recognize the right of a coastal nation toapply its ADIZ procedures to foreign aircraft not intending to enter national airspace. Accordingly,U.S. military aircraft not intending to enter national airspace should not identify themselves orotherwise comply with ADIZ procedures established by other nations, unless the United States hasspecifically agreed to do so.”).

(67) United States Aeronautical Information Publication (AIP), supra note 55, para. 2.1.1. (“Inconjunction with the FAA, Air Defense Sectors monitor air traffic and could order an intercept inthe interest of national security or defense.”).

(68) Aeronautical Information Manual (AIM), supra note 43, chapter 5, section 6, para. 5-6-2 ;United States Aeronautical Information Publication (AIP), supra note 55, para. 2.1.1. (“The reasonsfor aircraft intercept include, but are not limited to : 2.1.1.1. Identify an aircraft, 2.1.1.2. Track anaircraft, 2.1.1.3. Inspect an aircraft, 2.1.1.4. Divert an aircraft, 2.1.1.5. Establish communicationswith an aircraft.”).


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U.S./Canada ADIZ, even if the aircraft operating within the ADIZ are notsubject to requirements of the U.S. ADIZ regulations (e.g., filing flight

plans). If necessary under the circumstances, NORAD may take additionalactions to identify an aircraft and determine its intentions. These actionscould include hailing the aircraft via radio or intercepting the aircraft withNORAD air patrols.

Under the Chicago Convention, States have an obligation to “have dueregard for the safety of navigation of civil aircraft” in regulating and conduc-ting air intercept operations. (69) For the intercept of civil aircraft, ICAOhas adopted principles to facilitate international uniformity and promoteaviation safety. (70)

The U.S interception procedures are consistent with the ICAO principles,and observe the obligation to maintain due regard for safety includes ensu-ring that an intercept is conducted in a safe manner. (71) U.S. interceptionprocedures state : “In all situations, the interceptor pilot will consider safetyof flight for all concerned throughout the intercept procedure. The interceptorpilot(s) will use caution to avoid startling the intercepted crew or passengersand understand that maneuvers considered normal for interceptor aircraft maybe considered hazardous to other aircraft.” (72) These procedures outline threephases of an intercept : an approach phase, (73) an identification phase, (74) and

(69) Chicago Convention, art. 3(d). (70) Chicago Convention Annex 2, Rules of the Air, Appendix 2 Interception of Civil Aircraft.

The United States does not accept Annex 2, Appendix 2 as legally binding ; however, U.S. intercep-tion procedures are consistent with the rules set forth therein. The long-established U.S. positionprovides that “[t]he Chicago Convention expressly excludes state aircraft from its scope and thusfrom the scope of ICAO responsibility [in accordance with Art. 3(d)]. The United States intends thatits State aircraft will follow ICAO procedures set forth in Annex 2 to the greatest extent practicable ;however, the United States considers that State aircraft of any nation are subject to control andregulation exclusively by that nation (unless operating within airspace over which another nationhas sovereignty).” Department of State Airgram CA-8085, 13 February 1964, quoting U.S. Inter-Agency Group on International Aviation (IGIA) Doc. 88/1/1C, MS, Department of State, file POL31 U.S., reprinted in Whiteman Digest, vol. 9, pp. 430-431.

(71) With regard to civil aircraft, ICAO recommends that “[i]nterception of civil aircraft shouldbe avoided and should be undertaken only as a last resort.” Chicago Convention, Appendix 2 Inter-ception of Civil Aircraft.

(72) Aeronautical Information Manual (AIM), supra note 43, chapter 5, section 6, para. 5-6-2. (73) Aeronautical Information Manual (AIM), supra note 43, chapter 5, section 6, para. 5-6-2.b.1,

(“1. Approach Phase. As standard procedure, intercepted aircraft are approached from behind.Typically, interceptor aircraft will be employed in pairs ; however, it is not uncommon for a singleaircraft to perform the intercept operation. Safe separation between interceptors and interceptedaircraft is the responsibility of the intercepting aircraft and will be maintained at all times.”) ;United States Aeronautical Information Publication (AIP), supra note 55, para. 2.2.1.

(74) Aeronautical Information Manual (AIM), supra note 43, chapter 5, section 6, para. 5-6-2.b.2

(“2. Identification Phase. Interceptor aircraft will initiate a controlled closure toward the aircraftof interest, holding at a distance no closer than deemed necessary to establish positive identificationand to gather the necessary information. The interceptor may also fly past the intercepted aircraftwhile gathering data at a distance considered safe based on aircraft performance characteristics.”) ;United States Aeronautical Information Publication (AIP)(March 7, 2013), para. 2.2.2.


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a post-intercept phase. (75) Of note, these interception procedures clearly state :“The interceptor is responsible to maintain safe separation during these and all

intercept maneuvers. Flight safety is paramount.” (76)Additional considerations apply in international airspace and when inter-

cepting State aircraft. In intercepting aircraft in international airspaceStates must maintain “due regard” for the right of the other State’s aircraft(including foreign military aircraft) to overfly such airspace, as determinedby the status of waters over which the airspace is located. (77) The UnitedStates has implemented this “due regard” obligation as a matter of Depart-ment of Defense policy for all DoD aircraft. (78)

V. — FREEDOM OF NAVIGATION

The United States has upheld the freedom of the seas, including in oceansand seas distant from U.S. shores, since the nation’s founding and consistentlythereafter. And that national interest has included the freedom of the skies,since the invention of manned flight.

During the first half-century of U.S. history, there was a series of “depre-dations” against U.S. commercial shipping in the Atlantic Ocean, the Medi-

(75) Aeronautical Information Manual (AIM), supra note 43, chapter 5, section 6, para. 5-6-2.b.3(“3. Post Intercept Phase. An interceptor may attempt to establish communications via standardICAO signals. In time-critical situations where the interceptor is seeking an immediate responsefrom the intercepted aircraft or if the intercepted aircraft remains non-compliant to instruction,the interceptor pilot may initiate a divert maneuver. In this maneuver, the interceptor flies acrossthe intercepted aircraft’s flight path (minimum 500 feet separation and commencing from slightlybelow the intercepted aircraft altitude) in the general direction the intercepted aircraft is expectedto turn. The interceptor will rock its wings (daytime) or flash external lights/select afterburners(night) while crossing the intercepted aircraft’s flight path. The interceptor will roll out in the direc-tion the intercepted aircraft is expected to turn before returning to verify the aircraft of interest iscomplying. The intercepted aircraft is expected to execute an immediate turn to the direction ofthe intercepting aircraft. If the aircraft of interest does not comply, the interceptor may conducta second climbing turn across the intercepted aircraft’s flight path (minimum 500 feet separationand commencing from slightly below the intercepted aircraft altitude) while expending flares as awarning signal to the intercepted aircraft to comply immediately and to turn in the direction indi-cated and to leave the area. The interceptor is responsible to maintain safe separation during theseand all intercept maneuvers. Flight safety is paramount.”) ; United States Aeronautical InformationPublication (AIP), supra note 55, para. 2.2.3.

(76) Aeronautical Information Manual (AIM), supra note 43, chapter 5, section 6, para. 5-6-2. (77) For airspace above a strait used for international navigation, other States enjoy the right

of transit passage. UNCLOS, art. 38. The coastal States bordering that strait shall not hamper orsuspend this right of transit passage. UNCLOS, art. 44. For airspace above a coastal State’s exclu-sive economic zone, the coastal State shall have “due regard” to the other States’ freedoms and uses

of the airspace. UNCLOS, art. 58(1). Similarly, for airspace located beyond a coastal State’s exclu-sive economic zone, over the high seas, then the coastal State shall have “due regard” to the otherStates’ high seas freedoms. UNCLOS, art. 87.

(78) U.S. Department of Defense Instruction 4540.01, supra note 59, para. 4 (“It is DoD policythat…U.S. military aircraft operate with due regard for the safety of civil air and surface traffic.”).


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terranean Sea, and adjoining seas. (79) In response, several of the early U.S.Presidents requested, the U.S. Congress authorized, and the U.S. Navy exe-

cuted operations to protect the freedom of navigation guaranteed to theseU.S. vessels under international law.

In the twentieth century, during the final phases of World War I, U.S.President Woodrow Wilson made his famous “Fourteen Points” speech to theU.S. Congress, during which he championed, as one of the universal principlesfor which the United States and others were fighting, “[a]bsolute freedomof navigation upon the seas, outside territorial waters, alike in peace and inwar, except as the seas may be closed in whole or in part by internationalaction for the enforcement of international covenants.” (80)

Three months before the United States entered World War II, PresidentFranklin D. Roosevelt delivered his “Freedoms of the Seas” radio addressto the American people, in which he declared, “[g]eneration after generation,America has battled for the general policy of the freedom of the seas. Andthat policy is a very simple one, but a basic, a fundamental one. It meansthat no nation has the right to make the broad oceans of the world at greatdistances from the actual theatre of land war, unsafe for the commerce ofothers.” (81) Ultimately, Roosevelt concluded, “[u]pon our naval and airpatrol – now operating in large number over a vast expanse of the AtlanticOcean – falls the duty of maintaining the American policy of freedom of the

seas.”More recently, for the past three and a half decades, the U.S. Govern -

ment has executed a multi-agency Freedom of Navigation (FON) Program touphold the law of the sea against excessive maritime claims by coastal Statesthroughout the world. The U.S. FON Program was started during the CarterAdministration, but formalized under President Reagan. As part of U.S.Oceans Policy Statement issued in March 1983, President Reagan declaredthe following : “[T]he United States will exercise and assert its navigationand overflight rights and freedoms on a worldwide basis in manner consistent

with the balance of interests reflected in the [Law of the Sea Convention].The United States will not, however, acquiesce in unilateral acts of otherstates designed to restrict the rights and freedoms of the international com-

(79) Act of May 28, 1798, ch. 48, 1 Stat. 561 (An Act More Effectually to Protect the Commerceand Coasts of the United States) ; Act of July 9, 1798, ch. 68, 1 Stat. 578 (An Act Further to Protectthe Commerce of the United States) ; Act of February 6, 1802, ch. 4, 2 Stat. 129 (An Act for theProtection of the Commerce and Seamen of the United States Against the Tripolitan Cruisers) ; Actof March 3, 1815, ch. 90, 3 Stat. 230 (An Act for the Protection of the Commerce of the United States

against the Algerine Cruisers). (80) President Woodrow Wilson, Speech on the Fourteen Points, 8 January 1918, available at http://www.fordham.edu/halshall/mod/1918wilson.html (last consulted 6 March 2015).

(81) President Franklin D. Roosevelt, Freedom of the Seas Radio Address to American People,11 September 1941.

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munity in navigation and overflight and other related high seas uses.” (82)In Presidential-level directives since that U.S. Oceans Policy Statement, the

U.S. Departments of State and Defense have consistently been instructedto “respect” maritime claims by other States that are “consistent with” theinternational law, but to “not acquiesce in unilateral acts” by other Statesthat are “designed to restrict” the rights, freedoms, and uses of the sea andairspace reflected in international law. (83) Hence, current U.S. Departmentof Defense policy guidance directs that “U.S. military aircraft will respectthe maritime claims of other States, including claims to airspace, that areconsistent with international law. U.S. military aircraft will not acquiesce inexcessive maritime claims by other States, including their claims to airspace,that, if left unchallenged, could limit the rights, freedoms, and lawful usesof airspace recognized in international law.” (84)

About this longstanding U.S. FON Policy, there are several key featuresthat are worth highlighting :

— First, the U.S. FON Policy is whole-of-government effort. That is, it includesdiplomatic actions of consultations and protests with coastal States, aswell as operational activities by DoD ships and aircraft to demonstratethe U.S. objections to excessive claims. (85)

— Second, the U.S. FON Policy is global in application. That is, it is not

focused solely upon one region or sub-region of the world, but rather uponexcessive claims asserted by coastal States around the world. (86)

(82) President Ronald Reagan, United States Oceans Policy, 10 March 1983. (83) Presidential Decision Directive 32, Freedom of Navigation, 23 January 1995 (“It is U.S.

policy to respect those maritime claims that are consistent with the navigational provisions of theLOS Convention. Additionally, the United States will exercise and assert its navigation and over-flight rights on a worldwide basis in a manner consistent with the LOS Convention. The UnitedStates will not acquiesce in unilateral acts of other states designed to restrict the rights and freedomsof the international community in navigation and overflight and other traditional uses of the highseas. (U)” ; National Security Decision Directive 265, Freedom of Navigation Program, 16 March1987 (“Second, the United States will exercise and assert its navigation and overflight rights andfreedoms on a worldwide basis in a manner that is consistent with the balance of interests reflectedin the Convention. The United States will not, however, acquiesce in unilateral acts of other statesdesigned to restrict the rights and freedoms of the international community in navigation and over-flight and other related high seas uses. (U)”) ; National Security Directive, Freedom of NavigationProgram, 12 October 1990 (“This policy provides that the United States will respect those maritimeclaims that are consistent with the navigational provisions of the LOS Convention. Additionally,the United States will exercise and assert its navigation and overflight rights on a worldwide basisin a manner consistent with the LOS Convention. The United States will not acquiesce in unilateralacts of other states designed to restrict the rights and freedoms of the international community innavigation and overflight and other traditional uses of the high seas. (U)”).

(84) See U.S. Department of Defense Instruction 4540.01 supra note 22, para. 3.b. (85) J. Ashley ROACH and Robert W. SMITH, Excessive Maritime Claims, 2012, 3rd ed., pp. 7-9

(describing the “triple track” of the U.S. Freedom of Navigation Program to include diplomaticconsultations, diplomatic protests, and operational assertions). (86) U.S. Department of Defense Instruction S-2005.01, 20 October 2014, para. 3.f. (“(U) U.S. mili-

tary forces will actively implement the FON Program against excessive maritime claims by coastalStates in every region of the world, because the DoD’s interest in mobility and access is global.”).


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— Third, the U.S. FON Policy is State-neutral. That is, it is focused onchallenging the excessive nature of specific maritime claims, rather than

on the U.S. relationship with any particular coastal State. In fact, theUnited States challenges excessive claims asserted by close U.S. allies,by competitors, and by potential adversaries. (87) For example, in 1961—nearly two decades before the U.S. Government formally established itsFON program—the United States diplomatically protested a maritimeclaim by a treaty-ally, the Republic of Philippines, as excessive underthe law of the sea. (88) Similarly, a review of the recent DoD Annual FONreports shows that among the excessive maritime claims challenged byDoD forces include ones asserted by Argentina, Brazil, Burma, Cambo-dia, China, Ecuador, India, Indonesia, Iran, Japan, Liberia, Malaysia,Maldives, Oman, Philippines, Taiwan, Thailand, Togo, and Vietnam. (89)The policy is principle-based, not country-based.

— Fourth, the U.S. FON Policy protects more than mere passage. The U.S.interest in freedom of navigation is significantly broader than mere pas-sage. Throughout U.S. history, the umbrella term chosen by U.S. lea-ders has fluctuated between “freedom of navigation” and “freedom ofthe seas.” But what is clear is that the policy is intended to preserve all of these rights, freedoms, and uses of the sea reflected in internationallaw. (90)

— Fifth, the U.S. FON Policy protects not only rights, freedoms, and uses ofthe sea, but also those of the airspace as well. Although some might envi-sion U.S. Navy ships as the primary guardians of these freedoms, theU.S. Department of State has long protested excessive claims by coastalStates that affect airspace, and DoD aircraft have routinely challengedsuch restrictions as part of the FON program. (91)

(87) U.S. Department of Defense Instruction S-2005.01, 20 October 2014, para. 3.g. (“(U) U.S.military forces will execute the FON Program with respect to a wide range of excessive maritimeclaims, irrespective of the coastal State advancing the excessive claims. DoD will challenge theexcessive nature of the specific maritime claim, rather than focusing on any specific country. Thisincludes challenges to excessive maritime claims asserted by allies, partners, and other nations.”).

(88) U.S. Department of Defense (DoD) Representative for Ocean Policy Affairs, MaritimeClaims Reference Manual, Philippines, available at http://www.jag.navy.mil/organization/docu-ments/mcrm/Philippines2014.pdf (last consulted 6 March 2015).

(89) See U.S. Department of Defense, Annual Freedom of Navigation Reports, available athttp://policy.defense.gov/OUSDPOffices/FON.aspx (last consulted 6 March 2015).

(90) U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON) Program,20 October 2014, (“(U) FON. A U.S. national interest that includes all of the rights, freedoms, anduses of the sea and airspace reflected in international law. It includes more than mere freedom of

passage or freedom to transit. It is also sometimes referred to as `freedom of the seas.’”). (91) U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON) Program,20 October 2014, Glossary (“(U) FON. A U.S. national interest that includes all of the rights, free -doms, and uses of the sea and airspace reflected in international law. It includes more than merefreedom of passage or freedom to transit. It is also sometimes referred to as `freedom of the seas.’”).

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In short, the FON Policy applies across the U.S. Government, aroundthe world, to protect the full spectrum of freedom of the seas and airspace.

VI. — FREEDOM OF NAVIGATION AND ADIZS

Are ADIZs and the freedom of navigation consistent ? They can be, butonly if they are established and implemented in a manner that fully respectsthe rights, freedoms, and lawful uses of airspace by other States.

As mentioned above, the U.S. FON Policy seeks to preserve not merelythe freedom of overflight, but also other internationally lawful uses of thesea and airspace. The United States “respects” maritime claims that areconsistent with UNCLOS. (92) The United States considers any maritimeclaim enacted by a coastal State to be an “excessive maritime claim” if it is“not consistent with international law as reflected in the [Law of the Sea]Convention.” (93) Of note, one of the categories expressly identified withinthe U.S. Department of Defense’s definition of excessive maritime claimsis : “An ADIZ that requires foreign aircraft to file a flight plan, notify, orotherwise communicate with the ADIZ State even if the foreign aircraft doesnot intend to enter the ADIZ State’s national airspace.” (94) As a matter of

(92) See U.S. President Ronald Reagan, Statement on United States Oceans Policy, 10 March1983, available at http://www.state.gov/documents/organization/143224.pdf (last consulted6 March 2015) (“[T]he United States will recognize the rights of other states in the waters off theircoasts, as reflected in the Convention, so long as the rights and freedoms of the United States andothers under international law are recognized by such coastal states.” ; see also U.S. Department ofDefense Instruction S-2005.01, Freedom of Navigation (FON) Program, 20 October 2014, para. 3.c.(“U.S. military forces will respect the maritime claims of coastal States that are consistent withinternational law.”).

(93) U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON)Program, 20 October 2014, Glossary (“(U) excessive maritime claim. A coastal State’s maritimeclaim, enacted by national law, regulation, or policy, that is not consistent with international law asreflected in the Convention.”).

(94) U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON) Program,20 October 2014, Glossary (“(U) An ADIZ that requires foreign aircraft to file a flight plan, notify,or otherwise communicate with the ADIZ State even if the foreign aircraft does not intend to enterthe ADIZ State’s national airspace.”).

The United States is not a party to UNCLOS, but it has long respected the provisions of theConvention that reflect customary law. See U.S. President Ronald Reagan, Statement on UnitedStates Oceans Policy, 10 March 1983, available at http://www.state.gov/documents/organiza-tion/143224.pdf (last consulted 6 March 2015) (“[T]he United States is prepared to accept and act inaccordance with the balance of interests relating to traditional uses of the oceans – such as navigationand overflight.”) ; see also U.S. President Barack Obama, National Strategy for the Arctic Region,May 2013, available at http://www.whitehouse.gov/sites/default/files/docs/nat_arctic_strategy.pdf(last consulted 6 March 2015) (“While the United States is not currently a party to the Conven-

tion, we will continue to support and observe principles of established customary international lawreflected in the Convention.”) ; see also U.S. Department of Defense Instruction S-2005.01, Freedomof Navigation (FON) Program, 20 October 2014, para. 3.a. (“[The Department of Defense] willcontinue to support and observe principles of established customary international law reflected in[UNCLOS], although the United States is not currently a party to the Convention.”).


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White House Press Secretary Jay Carney provided detailed responses to amedia queries on China’s ADIZ announcement. On December 2, Mr. Carney

noted “We do not accept the legitimacy of China’s requirements for operatingin the newly declared ADIZ.” (100) On December 3, he further stated, “[T]he U.S. Government does not accept or recognize China’s newly declaredADIZ.” (101) He amplified that point, by then stating : “Indeed, U.S. mili-tary aircraft have been instructed to continue to operate normally in thearea in line with U.S. government policy.” (102)

Following these statements and responses by senior U.S. officials, U.S.representatives have consistently made several points about China’s EastChina Sea ADIZ. First, China’s East China Sea ADIZ is not consistent with

international law and impinges upon freedom of overflight. (103) Second,the United States does not accept or recognize China’s East China Sea

(100) See Mr. Jay Carney, White House Press Secretary, Daily Briefing, 2 December 2013, avail-able at http://www.whitehouse.gov/the-press-office/2013/12/02/press-briefing-press-secretary-jay-carney-1222013 (last consulted 6 March 2015).

(101) See Mr. Jay Carney, White House Press Secretary, Daily Briefing, 3 December 2013, avail-

able athttp://www.whitehouse.gov/the-press-office/2013/12/04/press-briefing-press-secretary-1232013

(last consulted 6 March 2015). (102) Ibid. (103) See Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing, Wash-

ington, DC, 2 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htm (last consulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S. Department of State,Daily Press Briefing, Washington, DC, 3 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218257.htm (last consulted 6 March 2015) ; Marie Harf, Deputy Spokesperson,U.S. Department of State, Daily Press Briefing, Washington, DC, 4 December 2013, available athttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htm (last consulted 6 March 2015) ; MarieHarf, Deputy Spokesperson, U.S. Department of State, Daily Press Briefing, Washington, DC,6 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htm (lastconsulted 6 March 2015) ; Joint Chiefs of Staff Chairman General Martin E. Dempsey, U.S. Depart-ment of Defense Press Briefing, Pentagon Briefing Room, 4 December 2013, available at http://www.defense.gov/Transcripts/Transcript.aspx ?TranscriptID=5335 (last consulted 6 March2015) ; Mr. Jay Carney, White House Press Secretary, Daily Briefing, 5 December 2013, availableat http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013 (last consulted 6 March 2015) ; U.S. Secretary of Defense Hagel, Department of Defense PressBriefing, Pentagon Press Briefing Room, 12 December 2013, available at http://www.defense.gov/Transcripts/Transcript.aspx ?TranscriptID=5342 (last consulted 6 March 2015) ; U.S. Secre-tary of State John Kerry, Joint Press Availability With Vietnamese Deputy Prime Minister andForeign Minister Pham Binh Minh, Government Guest House, Hanoi, Vietnam, December 16, 2013,available at http://www.state.gov/secretary/remarks/2013/12/218747.htm (last consulted 6 March2015) ; U.S. Secretary of State John Kerry, Remarks With Philippine Foreign Secretary Albert del

Rosario, Department of Foreign Affairs, Manila, Philippines, 17 December 2013, available at http://www.state.gov/secretary/remarks/2013/12/218835.htm (last consulted 6 March 2015) ; U.S. Assis-tant Secretary of State Daniel R. Russel, Bureau of East Asian and Pacific Affairs, WashingtonForeign Press Center, Washington, DC, 4 February 2014, available at http://fpc.state.gov/220927.htm (last consulted 6 March 2015).

http://www.whitehouse.gov/the-press-office/2013/12/02/press-briefing-press-secretary-jay-carney-1222013http://www.whitehouse.gov/the-press-office/2013/12/02/press-briefing-press-secretary-jay-carney-1222013http://www.whitehouse.gov/the-press-office/2013/12/04/press-briefing-press-secretary-1232013http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5335http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5335http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.state.gov/secretary/remarks/2013/12/218747.htmhttp://www.state.gov/secretary/remarks/2013/12/218835.htmhttp://www.state.gov/secretary/remarks/2013/12/218835.htmhttp://fpc.state.gov/220927.htmhttp://fpc.state.gov/220927.htmhttp://fpc.state.gov/220927.htmhttp://fpc.state.gov/220927.htmhttp://www.state.gov/secretary/remarks/2013/12/218835.htmhttp://www.state.gov/secretary/remarks/2013/12/218835.htmhttp://www.state.gov/secretary/remarks/2013/12/218747.htmhttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5335http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5335http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.whitehouse.gov/the-press-office/2013/12/04/press-briefing-press-secretary-1232013http://www.whitehouse.gov/the-press-office/2013/12/02/press-briefing-press-secretary-jay-carney-1222013http://www.whitehouse.gov/the-press-office/2013/12/02/press-briefing-press-secretary-jay-carney-1222013


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ADIZ. (104) And, third, China’s East China Sea ADIZ will not impact U.S.military operations in the region. (105)

(104) Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing, Washington,DC, 2 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htm (lastconsulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S. Department of State, DailyPress Briefing, Washington, DC, 3 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218257.htm (last consulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S.Department of State, Daily Press Briefing, Washington, DC, 4 December 2013, available athttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htm (last consulted 6 March 2015) ; Mr. JayCarney, White House Press Secretary, Daily Briefing, 5 December 2013, available at http://www. whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013 (last consulted6 March 2015) ; Mr. Jay Carney, White House Press Secretary, Daily Briefing, 5 December 2013,

available at http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013 (last consulted 6 March 2015) (“We, the United States, do not recognize and donot accept the newly announced East China Sea Air Defense Identification Zone.”) ; Secretary ofDefense Hagel, Department of Defense Press Briefing, Pentagon Press Briefing Room, 12 December2013, available at http://www.defense.gov/Transcripts/Transcript.aspx ?TranscriptID=5342 (lastconsulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S. Department of State, DailyPress Briefing, Washington, DC, 6 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htm (last consulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S.Department of State, Daily Press Briefing, Washington, DC, 12 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218670.htm (last consulted 6 March 2015) ; U.S. Secretary ofState John Kerry, Joint Press Availability With Vietnamese Deputy Prime Minister and ForeignMinister Pham Binh Minh, Government Guest House, Hanoi, Vietnam, 16 December 2013, avail-able at http://www.state.gov/secretary/remarks/2013/12/218747.htm (last consulted 6 March

2015) ; U.S. Assistant Secretary of State Daniel Russel, Bureau of East Asian and Pacific Affairs,Department of State, Hearing of the Asia and the Pacific Subcommittee of the House ForeignAffairs Committee, 5 February 2014, available at http://iipdigital.usembassy.gov/st/english/text-trans/2014/02/20140206292403.html#axzz2uX5ouQV0 (last consulted 6 March 2015) ; U.S. Secre-tary of State John Kerry, Remarks With Japanese Foreign Minister Fumio Kishida After TheirMeeting, Benjamin Franklin Room, Washington, DC, 7 February 2014, available at http://www.state.gov/secretary/remarks/2014/02/221459.htm (last consulted 6 March 2015).

(105) Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing, Washington,DC, 2 December 2013 , available at http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htm (lastconsulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S. Department of State, DailyPress Briefing, Washington, DC, 3 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218257.htm (last consulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S.Department of State, Daily Press Briefing, Washington, DC, 4 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218329.htm (last consulted 6 March 2015) ; Mr. Jay Carney,White House Press Secretary, Daily Briefing, 5 December 2013, available at http://www.white-house.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013 (last consulted6 March 2015) ; Mr. Jay Carney, White House Press Secretary, Daily Briefing, 5 December 2013,available at http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secre-tary-jay-carney-1262013 (last consulted 6 March 2015) ; Marie Harf, Deputy Spokesperson, U.S.Department of State, Daily Press Briefing, Washington, DC, 6 December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htm (last consulted 6 March 2015) ; Secretary ofDefense Hagel, Department of Defense Press Briefing, Pentagon Press Briefing Room, 12 December2013, available at http://www.defense.gov/Transcripts/Transcript.aspx ?TranscriptID=5342 (last consulted 6 March 2015) ; Commander, U.S. Pacific Command Adm. Samuel J. Locklear III,Department of Defense Press Briefing, 23 January 2014, available at http://www.defense.gov/

Transcripts/Transcript.aspx ?TranscriptID=5354 (last consulted 6 March 2015) ; U.S. AssistantSecretary of State Daniel R. Russel, Bureau of East Asian and Pacific Affairs, Washington ForeignPress Center, Washington, DC, 4 February 2014, available at http://fpc.state.gov/220927.htm (lastconsulted 6 March 2015) ; U.S. Assistant Secretary of State Daniel Russel, Bureau of East Asianand Pacific Affairs, Department of State, Hearing of the Asia and the Pacific Subcommittee of the

http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218670.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218670.htmhttp://www.state.gov/secretary/remarks/2013/12/218747.htmhttp://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5354http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5354http://fpc.state.gov/220927.htmhttp://fpc.state.gov/220927.htmhttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5354http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5354http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218178.htmhttp://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://www.state.gov/secretary/remarks/2013/12/218747.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218670.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218670.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218491.htmhttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013http://www.state.gov/r/pa/prs/dpb/2013/12/218329.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218257.htmhttp://www.state.gov/r/pa/prs/dpb/2013/12/218178.htm


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88 JONATHAN G. ODOM

The U.S. Government’s opposition to China’s East China Sea ADIZ has todo with a number of factors, including ones unrelated to international law

such as the risk to regional stability and security. Yet, several fundamentalproblems with that ADIZ involve its excessive nature under internationallaw. Ten days after China announced the new ADIZ, China’s Ministry ofNational Defense released a follow-up statement which asserted, in part,“[I]t is not a no-fly zone, and will not affect the freedom of overflight, basedon international laws, of other countries’ aircraft.” (106) Notwithstandingthat assertion, however, many of the requirements of China’s ADIZ purpo-rtedly apply to “aircraft flying the East China Sea Air Defense Identifica-tion Zone.” (107) They do not distinguish between, on the one hand, aircraftintending to enter the PRC’s national airspace and, on the other hand, air-craft merely flying through the international airspace located within theADIZ without an intent to enter the PRC’s national airspace. However,a coastal State may not restrict the rights, freedoms, and uses of airspaceby aircraft operating in international airspace. Thus, as a matter of inter-national law, these purported restrictions are excessive, thereby making itan excessive maritime claim subject to challenge under the long-standingU.S. FON Policy. It should therefore be no surprise that soon after Chinaannounced the ADIZ, the U.S. military conducted previously scheduled

House Foreign Affairs Committee, 5 February 2014, available at http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0 (last consulted 6 March 2015) ;U.S. Secretary of State John Kerry, Remarks With Japanese Foreign Minister Fumio Kishida AfterTheir Meeting, Benjamin Franklin Room, Washington, DC, 7 February 2014, available at http://www.state.gov/secretary/remarks/2014/02/221459.htm (last consulted 6 March 2015).

(106) Geng Yansheng, Ministry of National Defense spokesman, Statement On China’s AirDefense Identification Zone, 3 December 2013, available at http://news.xinhuanet.com/english/china/2013-12/03/c_132938762.htm (last consulted 6 March 2015).

(107) Announcement of the Aircraft Identification Rules for the East China Sea Air DefenseIdentification Zone of the P.R.C., Xinhua News Agency (P.R.C.), 23 November 2013, availableat http://news.xinhuanet.com/english/china/2013-11/23/c_132911634.htm (last consulted 6 March2015). Specifically, the announcement included the following requirements :

“Aircraft flying in the East China Sea Air Defense Identification Zone must abide by these rules.”“Aircraft flying in the East China Sea Air Defense Identification Zone must provide the following

means of identification….”“Aircraft flying in the East China Sea Air Defense Identification Zone should report the flight

plans….”“Aircraft flying in the East China Sea Air Defense Identification Zone must maintain two-way

radio communications, and respond in a timely and accurate manner to the identification inquiriesfrom the administrative organ of the East China Sea Air Defense Identification Zone or the unitauthorized by the organ.”

“Aircraft flying in the East China Sea Air Defense Identification Zone, if equipped with the

secondary radar transponder, should keep the transponder working throughout the entire course.”“Aircraft flying in the East China Sea Air Defense Identification Zone should follow the instruc-tions of the administrative organ of the East China Sea Air Defense Identification Zone or the unitauthorized by the organ. China’s armed forces will adopt defensive emergency measures to respondto aircraft that do not cooperate in the identification or refuse to follow the instructions.”

http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://news.xinhuanet.com/english/china/2013-12/03/c_132938762.htmhttp://news.xinhuanet.com/english/china/2013-12/03/c_132938762.htmhttp://news.xinhuanet.com/english/china/2013-11/23/c_132911634.htmhttp://news.xinhuanet.com/english/china/2013-11/23/c_132911634.htmhttp://news.xinhuanet.com/english/china/2013-12/03/c_132938762.htmhttp://news.xinhuanet.com/english/china/2013-12/03/c_132938762.htmhttp://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://www.state.gov/secretary/remarks/2014/02/221459.htmhttp://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0


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Undoubtedly, a coastal State may identify security interests in the areasapproaching its territory. For example, in a region proximate to U.S. terri-

tory (i.e., the Arctic), the United States has stated that it has a “broad andfundamental national security interests.” (112) At the same time, however,that U.S. Arctic Region Policy opens with an overarching caveat that thispolicy “shall be implemented in a manner consistent…with customary inter-national law as recognized by the United States, including with respect to thelaw of the sea.” Reg

Documents

A 'Rules-Based' Approach to Airspace Defense- A U.S. Perspective on the International Law of the Sea and Airspace, Air Defense Measures, And the Freedom of Navigation