Ben Schreer correctly noted yesterday that the US had ‘demonstrated its will and capability to contest China’s ADIZ in East Asia’.
As Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs at the Department of State, told the US House Committee on Foreign Affairs Subcommittee on Asia and the Pacific on Wednesday:
China’s announcement of an Air Defense Identification Zone (ADIZ) over the East China Sea in November was a provocative act and a serious step in the wrong direction. The Senkakus are under the administration of Japan and unilateral attempts to change the status quo raise tensions and do nothing under international law to strengthen territorial claims. The United States neither recognizes nor accepts China’s declared East China Sea ADIZ and has no intention of changing how we conduct operations in the region. China should not attempt to implement the ADIZ and should refrain from taking similar actions elsewhere in the region.
China’s unilateral and sudden action on the ADIZ is a violation of the Law of the Sea Convention, which ensures high seas freedoms throughout the EEZ beyond 12 nm, including airspace activities. The ICAO-authorised flight information region is recognised in the Chicago Convention on International Civil Aviation as the sole management authority for international civil aviation.
China’s uncoordinated ADIZ declaration amounts to trying to control international airspace. A lawful ADIZ is aimed at civil aircraft that enter national airspace: it’s not lawful for China to apply its rules to aircraft not intending to enter its airspace within 12 miles of China.
The US has very appropriately asserted freedom in airspace in response to China’s action, but what’s now required are regular overflights by states to demonstrate a commitment to openness in the air commons.
International law requires the regular assertion of rights, which is why the US has run its freedom of navigation program since 1983. The program is the means by which the United States exercises and asserts its navigation and overflight rights and freedoms on a worldwide basis, and in a manner that’s consistent with the balance of interests reflected in the Law of the Sea Convention.
As well as the US, what’s required is a proactive strategy by its friends and allies to maintain access to the air commons by the continuous assertion of rights, consistent with international law.
Anthony Bergin is deputy director of ASPI and a former reader in international law at the Australian National University.