Saturday, November 30, 2013

More on the ADIZ

My first half-decent photo of Venus.

Lots of stuff out there. This Volokh Conspiracy post has good links to other posts and resources and notes:
China’s assertion of an ADIZ, as Julian Ku says, is not per se impermissible. But the devil is in the details. China’s ADIZ raises two large questions of legality. First, the “not-impermissible” scope of an ADIZ, that which is accepted in widespread state practice, is a projection outwards from the coastline of a coastal state. One might argue as a matter of international law as evidenced by state practice that a ADIZ has to bear a reasonable relationship to that coastline and the protection of its sovereignty, in the sense of both national security and domestic regulation (e.g., air traffic management, anti-smuggling, etc.). Those requirements can be fluid, addressing the nature of technology and threats to sovereignty, while still being “reasonably” connected to the protection of the sovereign coastline from unlawful encroachment.

Whatever can reasonably be projected as an ADIZ related to the coastal state’s coastline, the legality of an ADIZ created in such a way as to allow China to assert a new legal claim regarding contested rocks far out at sea has to be considered at issue. It’s a “bootstrapping” claim, assuming its conclusion: China declares an ADIZ around a contested territory, and then uses that as a basis to control the airspace as though it were an ADIZ declared along its uncontested home coastline. But an ADIZ cannot create sovereign territory or vindicate a claim to it. Unfortunately, enforcing that fundamental point requires that other states ignore and denounce the ADIZ – in the teeth of a threat, implied or express, that whatever regulatory terms China has dictated (see below) will be enforced.

Whereas it seems clear that state practice is limited to uncontested home territory. No bootstrapping. The virtue of an ADIZ is that it can reduce risks of confrontation, mistake, and dangerous brinksmanship as aircraft come close to unquestionably sovereign, territorial airspace by regularizing the passage of civilian aircraft, especially, as either intending (in which case ADIZ procedures apply) or not intending to enter the sovereign’s airspace (in which case ADIZ procedures do not apply) is turned into a mechanism for contesting sovereignty, and becomes a pretext for confrontation.
It's so like China to follow the letter while subverting the spirit of the procedure. The whole post is excellent.

The ADIZ also shows how the US policy on the Senkakus has now impaired its own response. It can't take a strong position and point out that the Senkakus are sovereign Japanese territory because for years the US hasn't taken a position on the "dispute" (the US might even consider retaliating by recognizing Japan's sovereignty formally). D'oh! Once again, failure to do the right thing ramifies....

The BBC reports that the US has required its carriers to comply with the ADIZ. But when you read it closely...
But on Friday, the state department said the US government "generally expects that US carriers operating internationally will operate consistent with Notams [Notices to Airmen] issued by foreign countries".

It added: "Our expectation of operations by US carriers consistent with NOTAMs does not indicate U.S. government acceptance of China's requirements for operating in the newly declared ADIZ."
The US position is that its carriers should behave as they do in all other ADIZs and ignore Beijing's special reporting requirements. Nope, they are complying with Beijing's demands. The Volokh piece above gives other examples of how normal the US military response is. The BBC piece contains a little tidbit:
South Korea claims a submerged rock, known as Ieodo, also within the zone.
If China is "boostrapping" the ADIZ as a form of territorial claim.... no wonder the Koreans are suspicious.
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WP said...

Some media like BBD have are reported that the US State Department has ordered or urged its air carriers to comply with China. Well, the way I read it the State Department has left it up to the carriers and has only voiced an opinion about what it anticipate or believes they will do.

The State Dept spokesperson said on Nov 27:

"The U.S. government generally expects that U.S. carriers operating internationally will operate consistent with NOTAMs (Notices to Airmen) issued by foreign countries. Our expectation of operations by U.S. carriers consistent with NOTAMs does not indicate U.S. government acceptance of China's requirements for operating in the newly declared ADIZ."

Here the US has employed the words "expect" and "expectation," which have ambiguous meaning and are subject to interpretation; thus, they offer the US some diplomatic and logistical wiggle room if needed later on.

"I expect that you will burn the turkey again this Thanksgiving" has a different meaning from "I am urging you to burn the turkey."

yankdownunder said...

Why does US use words like "we urge ..." and "we are concerned ..."?

The only sane answer should be
"We(civil and military!) will fly where we have always flown and over our territory.


We will not allow anyone to interfere
with this. Any attempts will be met with force to protect our citizens and land."

So far America has failed to support Japan and I think Japan must tell US they need to show more support in words and deeds.

WP said...

Yeah, I am hoping to see proof that the US intends to consistently and steadfastly back Japan. I think flying the B52 bombers was a strong show of US support; but I can understand Japan's confusion over the media reports that the US has "urged carriers to comply with China's rule." Actually the only official US statement was the ambiguous one from the State Department. Indeed, Japan needs to find out the extent of the US commitment.