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Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace

  • Peter A. Dutton (a1)

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1 U.S. federal regulations define an Air Defense Identification Zone as “[a]irspace over land or water in which the ready identification, location, and control of all aircraft... is required in the interest of national security.” 14 C.F.R. §99.3 (2009).

2 Xue, Guifang & Xiong, Xuyuan, A Legal Analysis of the Establishment of Air Defense Identification Zones , J. Ocean Univ. China, June 2007, at 3639 (soc. sci. ed.) (trans. China Maritime Studies Institute); Ni, Guoan & Qi, Wentao, Establish National Air Defense Identification Zones as Quickly as Possible, Mil. Sci. (Beijing), Apr. 2007 , at 55 (trans. China Maritime Studies Institute); PRC Military Confirms for 1st Time Deployment of Missiles for Olympic Security, Zhongguo Xinwen She (Guangzhou), July 8, 2008 (trans. Open Source Center); Wu, Zhong, Beijing Flicks the Safety Switch, Asia Times Online, July 9, 2008 , at http://www.atimes.com/atimes/China/JG09Ad01.html; China Brief (Jamestown Foundation), Jan. 4, 2008, at 2, at http://www.jamestown.org/.

3 Many countries, such as Norway and the United Kingdom, still maintain their ADIZs because of concern over a possible return of tensions. Alternatively, some countries, such as India and Pakistan, have retained their ADIZs because of new regional tensions. See, e.g., Agreement on Advance Notice on Military Exercises, Manoeuvres and Troop Movements, India–Pale, para. 11, Apr. 6, 1991, 1843 UNTS 71.

4 David, F. Winkler, Searching The Skies: The Legacy of The United States Cold War Defense Radar Program (June 1997), available at http://www.fas.org/nuke/guide/usa/airdef/searching_the_skies.htm. For a description of the boundaries of the American coastal ADIZs, see Federal Aviation Administration [FAA], International Flight Information Manual, available at http://www.faa.gov/ats/aat/ifim/ifim0104.htm [hereinafter FAA Flight Manual].

5 Convention on International Civil Aviation, Arts. 1, 2, Dec. 7,1944,61 Stat. 1180, 15 UNTS295 [hereinafter Chicago Convention]; Geneva Convention on the Territorial Sea and Contiguous Zone, Arts. 1, 2, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205; Oliver, J. Lissitzyn, The Treatment of Aerial Intruders in Recent Practice and International Law, 47 AJIL 559, 559 (1953).

6 The former dichotomy between sovereign territorial seas and high seas open to all states has been described as “an exceedingly blunt instrument” that insufficiently accounted for the interests of either coastal states or maritime users. Bernard, H. Oxman, An Analysis of the Exclusive Economic Zone as Formulated in the Informal Composite Negotiating Text , in Law of The Sea: State Practice In Zones of Special Jurisdiction 57, 61 (Thomas, A. Clingan Jr. ed., 1982).

7 Nicholas, Grief, Public International Law In The Airspace of The High Seas 53 (1994) ( quoting, J. C. Cooper, Explorations In Aerospace Law 197 (1968) (in turn quoting drafters of the Paris Convention)). For the Paris, Convention, see Convention on International Civil Aviation, Oct. 13, 1919, 11 Ints 174, reprinted in 17 AJIL Supp. 195 (1923) (no longer in force) [hereinafter Paris Convention].

8 Chicago Convention, supra note 5, Arts. 1, 2.

9 See id., Arts. 12, 38.

10 Id., Arts. 12, 37, 54(1), 90.

11 Id., Art. 3.

12 Michael, Milde, International Air Law And Icao 61 (2008).

13 Id.

14 Paris Convention, supra note 7, Art. 32; Chicago Convention, supra note 5, Art. 3(c). The Chicago Convention’s prohibition applies more broadly to all state aircraft.

15 Chicago Convention, supra note 5, Art. 3(d). This article further requires that contracting states issue regulations to ensure that state aircraft operate with due regard for the safety of civilian aircraft, which is fulfilled for U.S. military aircraft by Department of Defense Instruction 4540.01, Use of International Airspace by U.S. Military Aircraft and for Missile/Projectile Firings, para. 4.2 (Mar. 28, 2007) [hereinafter DoDI 4540.01].

16 Chicago Convention, supra note 5, Art. 3 bis.

17 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397 [hereinafter UNCLOS].

18 For an excellent presentation of the debate over the legal status of the EEZ, much of it in the words of the negotiators themselves, see Consensus and Confrontation: the United States and the Law of the Sea Convention, chs. 2, 3 (Jon, M. Van Dyke ed., 1985).

19 On the UNCLOS framework protecting naval freedoms in the EEZ, see Bernard, H. Oxman, The Territorial Temptation: A Siren Song at Sea, 100 AJIL 830, 83546 (2006). For a discussion of the balancing decisions that various coastal states have made between their economic and preservation interests and freedom of navigation, especially for foreign military activities, see Robert, Nadelson, The Exclusive Economic Zone: State Claims and the Law of the Sea Convention, 16 Marine Pol’y 463, 483 (1992); see also George, V. Galdorisi & Alan, G. Kaufman, Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict, 32 Cal. W. Int’l L.J. 253, 279 (2002) (referring to the authority of a coastal state to regulate the EEZ to protect its environmental and economic interests, and concluding that “[t]he ability of maritime powers to engage in naval activities is therefore not unqualified. The effect upon coastal State claims and interests—that is, upon natural resources and the environment— must be considered before deciding upon the nature and scope of a naval operation in a foreign EEZ.”).

20 Bernard, H. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 Va. J. Int’l L. 809, 811, 837 (1984).

21 Barbara, Kwiatkowska, The 200 Mile Exclusive Economic Zone In The New Law of The Sea 203 (1989).

22 The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 UST 2403, 1046 UNTS 120 [hereinafter London Convention], was replaced in March 2006 with the entry into force of the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 7, 1996, available at http://www.ecolex.org/server2.php/libcat/docs/multilateral/en/TRE001268.doc [hereinafter London Protocol]. The United States is a party to the 1972 Convention, but as of this writing had not yet ratified the Protocol.

23 London Protocol, supra note 22, Arts. 1(4), 10(4).

24 Id., Art. 10(1.3).

25 Grief, supra note 7, at 9; Kwiatkowska, supra note 21, at 203 (stating that “[a]s regards military activities, in view of the legislative history of Article 58, uses such as . . . aerial reconnaissance or collection of military intelligence . . . are clearly internationally lawful uses of the sea ‘associated with the operation of. . . aircraft’“); see also Nicholas, M. Poulantzas, The Right of hot Pursuit in International Law 343 (2d ed. 2002); Kay, Hailbronner, Freedom of the Air and the Convention on the Law of the Sea, 77 AJIL 490, 505 (1983).

26 Brisibe, Tare C., State Sovereignty and Aeronautical Public Correspondence by Satellite, 69 J. Air L. & Com. 649, 66768 (2004) (citation omitted) (quoting Michael, Milde, United Nations Convention on the Law of the Sea—Possible Implications for International Air Law, 8 Annals Air & Space L. 167, 191 (1983)).

27 Royal Australian Air Force, Air Power Development Centre, Operations Law For Raaf Commanders 16 (2d ed. 2004), available at http://airpower.airforce.gov.au/Publications/List/36/RAAFDoctrine.aspx.

28 Id. at 18. The handbook also includes the right to test and fire weapons, but this right would appear to be tempered by the Article 58 requirement to give due regard to the coastal state’s interests in the EEZ, inasmuch as live weapons testing could interfere with fishing activities, fragile species (e.g., marine mammals, coral, etc.), shipping lanes, or offshore installations.

29 DoDI 4540.01, supra note 15 (stating that “aircraft of all nations enjoy high seas freedoms of overflight in the airspace above Exclusive Economic Zones of coastal states beyond the territorial seas”); see also U.S. Dep’t of the Navy, The Commander’s Handbook on the Law of Naval Operations, para. 2.6.2 (Nwp 1–14M, Mcwp 5–12.1, Comdtpub 5800.7A, 2007).

30 Exclusive Economic Zone of the United States of America, Proclamation No. 5030, 3 C.F.R. pt. 22 (1983), reprinted in 77 AJIL 621 (1983).

31 Elliot, L. Richardson, Power, Mobility and the Law of ‘the Sea, Foreign Aff., Spring 1980, at 902, 916 . For clarifying information regarding the U.S. position, see the full text of Ambassador Richardson’s speech at Bernard, H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 AJIL 57, 59 n.8 (1978). Oxman, a U.S. representative at the New York session of the conference, writes that Article 58 was intended to preserve full high seas freedoms in the EEZ, not merely passage rights, although “[t]here was no disagreement that certain new coastal state rights specified in the Convention (e.g., pollution enforcement rights) would affect these freedoms or that these freedoms must be exercised in the economic zone with due regard to the rights and duties of the coastal state under the Convention.” Id. at 69 n.44.

32 In 1990 thirteen states claimed a 200–nautical–mile territorial sea: Argentina, Benin, Brazil, the Republic of the Congo, Ecuador, El Salvador, Liberia, Nicaragua, Panama, Peru, Sierra Leone, Somalia, and Uruguay. U.S. Dep’t of Defense, Maritime Claims Reference Manual2–3 (July 1990). By 2008, only seven states continued to retain laws claiming a 200–nautical–mile territorial sea: Benin, the Republic of the Congo, Ecuador, Liberia, Nicaragua, Peru, and Somalia. Id. (June 2008), available at http://www.dtic.mil/whs/directives/corres/html/20051m.htm [hereinafter MCRM]. However, since five of these states are party to UNCLOS (Benin (1997), Congo (2008), Liberia (2008), Nicaragua (2000), and Somalia (1989)), which through Article 3 explicitly limits the territorial sea to 12 nautical miles, the number of states currently claiming a 200–nautical–mile territorial sea may in fact be only two (Ecuador and Peru). A representative of the Benin Foreign Ministry, for instance, provided an informal statement to the U.S. Department of State in 1998 that Benin now recognizes a 12–nautical–mile territorial sea, although Benin’s Decree 76 —92 of April 1976 claiming a 200–nautical–mile territorial sea remains listed on the UN Web site as that state’s official claim. MCRM, supra; United Nations, Maritime Space: Maritime Zones and Maritime Delimitation, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/. Additionally, although Peru claimed “exclusive jurisdiction and sovereignty” over a 200–nautical–mile maritime zone, in practice the precise nature of its claim is unclear. Declaration on the Maritime Zone, Aug. 18, 1952, 1006 UNTS 323, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/. Peru’s claim may be affected by its litigation with Chile pending before the International Court of Justice, in which Peru asked the Court to “adjudge and declare that Peru possesses exclusive sovereign rights” in the area of dispute. Maritime Dispute (Peru v. Chile), Application Instituting Proceedings, para. 13 (filed Jan. 16, 2008), available at http://www.icj–cij.org/.

33 Law No. 8.617, of Jan. 4, 1993, Art. 9, Diário Oficial, Jan. 5, 1993, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ (“In the exclusive economic zone, military exercises and manoeuvres, in particular those involving the use of weapons or explosives, may only be carried out by other States with the consent of the Brazilian Government.”).

34 Brazil, Statement upon Ratification, para. II (Dec. 22, 1988), available at UN, Declarations and Statements, http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm [hereinafter Declarations and Statements] (also including Brazil’s statement at signature).

35 Note by the Secretariat, UN Doc. A/CONF.62/WS/37 (1983), in 17 Third United Nations Conference on the Law of the Sea, Official Records 240, 244, UN Sales No. E.84.V.3 (1984).

36 They are Bangladesh, Burma, China, India, Iran, Malaysia, North Korea, Pakistan, and Uruguay. MCRM, supra note 32.

37 These states are Cape Verde, Kenya, the Maldives, Mauritius, and Portugal. Id.

38 Id.

39 As of July 20, 2009, 159 countries had ratified or acceded to the Convention. UN, Consolidated Table of Ratifications/ Accessions, etc. (July 20, 2009), at http://www.un.org/Depts/los/index.htm.

40 East–West Center & Institute for Ocean Policy, The Regime of the Eez: Issues and Responses, A Report of the Tokyo Meeting 1 (2003), available at http://www.eastwestcenter.org/fileadmin/stored/pdfs/EEZTokyoMeeting.pdf.

41 EEZ Group 21, Guidelines for Navigation and Overflight in the Exclusive Economic Zone: A Commentary 38 (Ocean Policy Research Foundation, 2006), available at http://www.sof.or.jp/en/report/index.php.

42 Id. at 65.

43 Id. at 55.

44 Federal Republic of Germany, Declaration upon Accession (Oct. 14, 1994), available at Declarations and Statements, supra note 34.

45 Italy, Declaration upon Signature (Dec. 7, 1984), confirmed upon ratification (Jan. 13, 1995), available at id.

46 United Kingdom, Declaration upon Accession (July 25, 1997); Netherlands, Declaration upon Ratification (June 28, 1996), both available at id.

47 The United States routinely protests coastal state assertions of authority that are inconsistent with UNCLOS through the Freedom of Navigation Program, which involves diplomatic representations, operational assertions, and bilateral and multilateral consultations with other governments to promote consistency of state practice regarding international law of the sea. Ashley Roach, J. & Robert, W. Smith, Excessive Maritime Claims 36 (66 U.S. Naval War C. Int’l L. Stud., 1994); see also Patrick, J. Neher, Raul, A. Pedrozo, & Ashley Roach, J., In Defense of High Seas Freedoms, RSIS Commentaries 31/2009 (Nayang Technological Univ., Singapore), Mar. 24, 2009 , available at http://www.rsis.edu.sg/publications/Perspective/RSIS0312009.pdf.

48 Anand, R. P., Origin and Development of the Law of the Sea 171 (1983); Winkler, supra note 4, at 22. As early as 1940, the United States established zones in the airspace over the Atlantic out of concern for the possible spread of European conflict. On September 5, 1939, President Roosevelt issued a Neutrality Proclamation that ordered the U.S. Navy to begin neutrality patrols in the Atlantic to report and track any belligerent air, surface, or subsurface contacts approaching the Atlantic coast of the United States or the West Indies. The patrols operated between north latitude 42°30’ and 19°, east to longitude 65°. William, E. Scarborough, To Keep Us out of World War II? Dep’t of the Navy, Naval Aviation News, Mar.–Apr. 1990, at 18; see also Richard, B. Bilder, The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea, 69 Mich. L. Rev. 1, 27n. 105 (1970).

49 The FAA Flight Manual, supra note 4, includes large–scale chart depictions of each ADIZ. For the geographic coordinates of each ADIZ, see 14 C.F.R. §§99.4149 (2009). Canada and Iceland established similar air defense identification zones. Poulantzas, supra note 25, at 342–44.

50 14 C.F.R. §99.9(a) (emphasis added).

51 14 C.F.R. §99.9(b). The FAA Aeronautical Information Manual further states that either an Instrument Flight Rules or a Defense Visual Flight Rules flight plan must be filed “for all [aircraft] operations that enter an ADIZ.” FAA, Aeronautical Information Manual, para. 5–6–1.c.1 (a) (Aug. 27, 2009), available at http://ww.faa.gov/airports_airtraffic/air_traffic/publications/.

52 14 C.F.R. §99.11 (a)

53 14 C.F.R. §99.15(b).

54 FAA Flight Manual, supra note 4, National Security, para. b.

55 Security Control of Air Traffic, 66 Fed. Reg. 49,819 (Sept. 28, 2001).

56 In addition to the clarification in 14 C.F.R. §99.9(a) that the paragraph applies only to civil aircraft, some additional hints exist within FAA guidance that the U.S. government does accept that state aircraft are exempt from the regulations. For instance, the International Flight Information Manual, after specifying the requirements for air traffic control of aircraft within an ADIZ, states that aircraft flying outside such control are “subject to interception for positive identification when entering an ADIZ.” FAA Flight Manual, supra note 4, National Security, para, f. Moreover, detailed interception procedures are published, implying a recognition that certain aircraft will not comply with FAA regulations. FAA, Aeronautical Information Manual, supra note 51, para. 5–6–2.

57 See, e.g., Xue & Xiong, supra note 2, at 36 (concluding that U.S. ADIZ regulations apply to all aircraft, including foreign military aircraft).

58 Pentagon Says Russian Bombers Are Expected off Alaskan Coast, N.Y. Times, Dec. 1, 2000, at A5; Erik, Holmes, More Russian Bombers Flying off Alaska Coast, A.F. Times, Apr. 8, 2008 , available at http://www.airforcetimes.com/news/2008/04/airforce_pacaf_040608/; Christian, Neef, Why Is Moscow Risking a New Cold War? Spiegel Online, June 25, 2008 , available at http://www.spiegel.de/international/world/0,1518,druck–562073,00.html.

59 For a thorough treatment of international law related to interception of foreign aircraft over the high seas, see Andrew, S. Williams, The Interception of Civil Aircraft over the High Seas in the Global War on Terror, 59 A.F. L. Rev. 73 (2007).

60 Rowan, Scarborough, Russian Flights Smack of Cold War, Wash. Times, June 26, 2008 , available at http://www.washingtontimes.com/news/2008/jun/26/russian–flights–smack–of–cold–war/ (quoting Gen. Victor, E. Renuart Jr .).

61 DoDI 4540.01, supra note 15, para. 6.4, instructing U.S. military pilots on the proper procedures for operations in another country’s ADIZ, states: “U.S. military aircraft penetrating a foreign ADIZ on a flight plan or intending to penetrate the sovereign airspace of the ADIZ country [must follow specified procedures]. Military aircraft transiting through a foreign ADIZ without intending to penetrate foreign sovereign airspace are not required to follow these procedures.” See also U.S. Air Force, Judge Advocate General’s Dep’t, Air Force Operations and the Law: A Guide for Air and Space Forces 13 (2002); Poulantzas, supra note 25, at 345.

62 France declared an exclusion zone in the airspace over the high seas off the coast of Algeria in the 1950s and 1960s, which also provoked a strong international reaction when French interceptors forced a Moroccan aircraft to land and attempted to interfere with a Soviet aircraft carrying President Leonid Brezhnev. Poulantzas, supra note 25, at 344–46.

63 Yehuda, Z. Blum, The Gulf of Sidra Incident, 80 AJIL 668 (1986).

64 Grief, supra note 8, at 18; Warren, Weaver Jr., International Dispute Is Centered on Status of Mediterranean Gulf, N.Y. Times, Aug. 20, 1981, at A8.

65 Navigation Rights and the Gulf of Sidra, Dep’t st. Bull., Feb. 1987, at 69, 69 .

66 Roach & Smith, supra note 47, at 27–28.

67 Libya’s Gulf Claim: 13–Year Dispute with U.S., N.Y. Times, Mar. 25, 1986, at A ll .

68 See generally UNCLOS, supra note 17, Arts. 55–59; Blum, supra note 63, at 668.

69 B ernard, Weinraub, U.S., Citing Libyan Fire, Reports Attacking a Missile Site and Setting 2 Ships Ablaze, N.Y. Times, Mar. 25, 1986, at A1.

70 Michael, R. Gordon, Combat with Libya: The How and the Why; U.S. Says One Vessel It Hit Had Come Within 10 Miles, N.Y. Times, Mar. 26, 1986, at A8.

71 Oliver, J. Lissitzyn, Some Legal Implications of the U–2 and RB–47 Incidents, 56 AJIL 135, 139 (1962). It should be noted that the Soviets attempted to claim that the aircraft was within Soviet territorial airspace at the time it was attacked, but the assertion apparently lacked much credibility, since a U.S.–proposed resolution in the UN Security Council calling for a fact–finding investigation had to be vetoed by the USSR to keep it from passing.

72 Id, at 136–39; see also UN, [Charter] Article 2(4), at http://untreaty.un.org/cod/repertory/art2/english/rep_supp3_voll–art2_4_e.pdf (documents on U–2 and RB–47 incidents); The U–2 Spy Plane Incident, at http://www.eisenhower.utexas.edu/Research/Digital_Documents/U2Incident/u2documents.html (presidential documents).

73 Lissitzyn, supra note 71, at 140. The author notes that, in addition to the United States and the Soviet Union, these states included Argentina, Ceylon, Ecuador, France, Italy, Poland, the Republic of China, Tunisia, and the United Kingdom, citing the minutes of the Security Council, UN Docs. S/PV.858–61, & 63 (May 24–27, 1960), and S/PV.880–88 (July 22–26, 1960).

74 Lissitzyn, supra note 71, at 140. Although the United Kingdom expressly supported the right to conduct such reconnaissance flights, other states simply upheld the right to fly unhindered over the high seas.

75 Nabi, Abdullaev, Emerging Russia Rattles Global Community, Defense News, Aug. 20, 2007, at 1.

76 Id. at 10.

77 Mark, Tran, Q&A: Russian Reconnaissance , Guardian Unlimited, Sept. 6, 2007 ; RAF Fighters Scramble to Intercept Russian Aircraft, Independent (London), Sept. 7, 2007 , at 6. Reportedly, this was the second occurrence in as many weeks in a summer of frequent UK interceptions of Russian reconnaissance aircraft in the airspace near Great Britain.

78 David, Blair, RAF Jets InterceptEightRussian Bombers, Daily Telegraph (London), Sept. 7, 2007 , at 17; Britain Ready to Intercept Russia’s Aircraft on Border, Kommersant, July 18,2007, at http://www.kommersant.com/p–11032/r_500/Tu–95_intercept_/; Vladimir, Solovyov & Mikhail, Zygar, Britain Sounds Air Raid Warning, Kommersant, July 19, 2007 , at http://www.kommersant.com/p783711/r_1/Britain,_Russia,_Berezovsky,_bombers,_Lugovoi/.

79 Canadian Forces Keep Eye on Russian Exercise, Deny Airspace Incident, CANWEST News Serv., Oct. 24, 2007, at http://www.canada.com/edmontonjournal/story.html?id=917cc620–6a9a–48b0–824c–baa9al3d8f42; see also Cold War Shivers: Two Russian Strategic Bombers Fly Along Alaska, Canada Coasts, ITAR–TASS, Sept. 20, 2007. In this case, the Russian planes may in fact have strayed into Canadian national airspace.

80 ITAR–TASS, supra note 79.

81 Michael, Evans, Russian ‘Spy’ Planes Put RAF on Cold War Alert, Times (London), May 10, 2007, at 22 ; Russian Bombers Force U.S. Jets to Scramble, Military.com, Aug. 10, 2007, at http://www.military.com/NewsContent/0,13319,145423,00.html.

82 Shirley, A. Kan Et Al., China–U.S. Aircraft Collision Incident of April 2001: Assessments and Policy Implications 1 (CRS Report, Oct. 10, 2001) [hereinafter Kan et al.], available at http://www.fas.org/sgp/crs/row/RL30946.pdf; see also Sean, D. Murphy, Contemporary Practice of the United States, 95 AJIL 63033 (2001). For an insightful perspective on the diplomatic aspects of this event, see the account by the special assistant to Ambassador Joseph, W. Prueher at the time, John, Keefe, Anatomy of the EP–3 Incident, April 2001 (Center for Naval Analysis, Jan. 2002).

83 Kan et al., supra note 82, at 7. The U.S. military often uses the term “international airspace” to describe zones in which high seas freedoms of overflight apply.

84 Id. at 2. On April 13, 2001, Secretary of Defense Donald Rumsfeld stated that the EP–3 was on a “well–known flight path that we have used for decades.” Defense Department Special Briefing Re: U.S. Navy EP–3 Aircraft and Chinese F–8 Fighter Collision (Apr. 13, 2001), available at http://www.fas.org/news/china/2001/china–0104l3zdb.htm. Indeed, as recently as September 19, 2007, Chinese television reported that a Chinese Jian–8 fighter aircraft had intercepted a U.S. EP–3 reconnaissance plane flying approximately five hundred feet above the South China Sea, and that increased Chinese intercepts of EP–3 flights over the East China Sea had occurred in advance of a major military exercise in China’s Fujian Province across the strait from Taiwan. A Chinese military commentator on the program noted that such “encounters” between U.S. and PLA aircraft are “very common.” Observation Post of Military Situation: Phoenix TV Views PLA Military Moves in Taiwan Strait; US, PLA Aircraft ‘Encounter’ (Phoenix television broadcast, Hong Kong, Sept. 19, 2007) (trans. Open Source Center).

85 Kan et al., supra note 82, at 2. The aggressive intercepts were the subject of a diplomatic protest by the Clinton administration on December 28, 2000. Id. at 10.

86 Chinese FM Spokesman Gives Full Account of Air Collision, Xinhua General news serv., Apr. 4, 2001 , available in Lexis, News Library, Wire Service Stories File.

87 US Side Must Take Full Responsibility for Incident: Chinese Foreign Minister, Xinhua General News Serv., Apr. 11, 2001, available in Lexis, News Library, Individual Publications File .

88 Chinese FM Spokesman Gives Full Account of Air Collision, supra note 86.

89 Chinese FM Spokesman Gives Full Account of Plane Collision Incident, Xinhua General News Serv., Apr. 4, 2001, available in Lexis, News Library, Wire Service Stories File .

90 U.S. Seriously Violates International Law: Signed Article, Xinhua General News Serv., Apr. 16, 2001, available in Lexis, News Library, Wire Service Stories File , available at http://www.china–embassy.org/eng/zt/zjsj/t36383.htm (in slightly different form).

91 For a more detailed discussion on state practice and international law related to aerial intercepts, see Poulantzas, supra note 25, at 343–45.

92 U.S. Seriously Violates International Law: Signed Article, supra note 90.

93 Thomas, E. Ricks, Anger over Flights Grew in Past Year, Wash. Post, Apr. 7, 2001 , at A1.

94 Kan et al., supra note 82, at 14.

95 Id. at 7; Keefe, supra note 82, at 14.

96 Kan et al., supra note 82, at 35–38.

97 Id. at 35 (citing Nihon Keizai Shimbun, Apr. 6, 2001, at 2).

98 Id 36–37 .

99 Id. at 36, 37–38 (citing S. China Morning Post (Hong Kong), Apr. 20, 2001; Jamestown Monitor, Apr. 11, 2001).

100 See, e.g., Xue & Xiong, supra note 2, at 38 (opining that a Chinese ADIZ is necessary to prevent attempts by the United States “to pilfer Chinese military intelligence in the service of its shameful objectives of interfering in Chinese domestic politics and undermining Chinese territorial sovereignty”).

101 Wang, Shumei, Shi, Jiazhu, & Xu, Mingshun, Carry out the Historic Mission of the Army and Establish the Scientific Concept of Sea Rights, Beijing Zhongguo Junshi Kexue [Quarterly Journal of the People’s Liberation Army (PLA) Academy of Military Science and the China Military Science Association], Feb. 1, 2007, at 139, para. 1(1) (trans. Open Source Center). Indeed, even before China joined the Law of the Sea Convention, it saw development of the EEZ as a strategy to end the “superpowers’ ‘maritime hegemonism’ and imperialism.” Song, Yann–huei Billy, China’s Ocean Policy: EEZ and Marine Fisheries, 29 Asian Surv. 983, 984 (1989).

102 In their private capacity, PLA law of the sea experts concede that an international right to maneuver through another state’s EEZ might be permitted in a manner reflective of the innocent passage regime in territorial waters, but that even this must not be abused. E.g., Remarks by a senior PLA officer at U.S. Pacific Command, Conference on Military Operations and International Law, Singapore (Apr. 15, 2008) (based on author’s notes). Presumably, from this perspective any international military activities other than mere passage would be prohibited in and above the EEZ. Such restrictions, of course, were never intended by the UNCLOS negotiators. Oxman, supra note 20, at 810.

103 Ren, Xiaofeng & Cheng, Xizhong, A Chinese Perspective, 29 Marine Pol’y 139, 142 (2005).

104 Italy established and patrolled an ADIZ off its Adriatic Coast during the 1990s and early 2000s because of the potential spread of the conflict in the former Yugoslavia. See, e.g., Steve, Davies, F–15C Eagle Units in Combat 80 (2005). ADIZs are also currently maintained by Japan, South Korea, and Taiwan. U.S. National Ocean Service, Operational Navigation Chart, G–10 (12th ed. 1994).

105 Green, L. C., The Contemporary Law of Armed Conflict 175 (1993).

106 Richardson, supra note 31, at 906.

107 Id. at 908 (quoting Prof. Geoffrey Kemp, U.S. Naval Power and the Changing Maritime Environment 4, paper presented at the fourth Annual Seminar of the Center for Oceans Law and Policy, University of Virginia (Jan. 1980)).

108 Bernard, H. Oxman, Transit of Straits and Archipelagic Waters by Military Aircraft, 4 Singapore J. Int’l & Comp. L. 377, 37779, 386 (2000).

109 See, e.g., Churchill, R. R. & Lowe, A. V., The Law of the Sea 162 (3d ed. 1999).

110 Attard, David Joseph, The Exclusive Economic Zone 78 (1987).

111 Chicago Convention, supra note 5, pmbl.

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