REVUE BELGE DE DROIT INTERNATIONAL

2014/1 ditions BRUYLANT, Bruxelles

A RULES-BASED APPROACH
TOAIRSPACE DEFENSE:
A U.S. PERSPECTIVE ON THE
INTERNATIONAL LAW OF THE SEA
ANDAIRSPACE, AIR DEFENSE MEASURES,
ANDTHEFREEDOM OF NAVIGATION
by

Jonathan G. ODOM*
Abstract
In light of recent international developments, such as the Peoples Republic of
Chinas declaration of an air defense identification zone (ADIZ) in the East China
Sea and the intercepts of military aircraft in international airspace adjacent to the
nations 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 inherent differences between national airspace and international airspace. Second,
it discusses the air defense measure known as ADIZ. Third, it discusses the air
defense measure known as aircraft intercepts. Fourth, it discusses the freedom of
navigation, and discusses ways in which the air defense measures of ADIZs and
aircraft intercepts can be employed in a manner consistent with the freedom of
navigation. By highlighting applicable U.S. laws, regulations, policy directives,
and press releases, this article seeks to provide an example of effectively balancing security and freedom in a manner that is fully consistent with international
law. In the end, this article concludes that air defense measures established and
implemented 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 to
the applicable body of international law and respects the freedom of navigation
enjoyed by other nations.

* Commander Jonathan G.Odom is an active-duty judge advocate (i.e., licensed attorney) in

the U.S. Navy. Currently, he serves as the Oceans Policy Advisor in the Office of the Secretary
of Defense. Previously, Commander Odom served for three and a half years as the Deputy Legal
Advisor to Commander, U.S. Pacific Command, headquartered in Hawaii, with a legal portfolio
focused 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 University. 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. Commander
Odom may be contacted at jonathan.odom@usa.com.

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jonathan g. odom

I. Introduction
There is often an inherent tension between the concepts of freedom and
security. Since both of these interests are legitimate, the issue often becomes
how to preserve both of them properly. Among the many aphorisms and
adages of the American Founding Father Benjamin Franklin, the one that
appears to be quoted most frequently by modern-day U.S. lawyers is Those
who would give up essential Liberty, to purchase a little temporary Safety,
deserve neither Liberty nor Safety.(1) Of course, the tension between the
interests of freedom and security exists not only in the internal affairs of a
single 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 and
balanced framework for how individuals and entities relate to one another
in an orderly fashion, without sacrificing either freedom or security. Within
the internal affairs of a State, the rule of law provides a framework for how a
state and its citizens relate to one another and how its citizens will relate to
one another.(2) Likewise, in international relations, the rule of law provides
a 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
6Papers of Benjamin Franklin, p.238, available at http://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238a (last consulted 2March 2015).
(2) See Brian Z.Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge, Cambridge
University 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 not
be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of
military and diplomatic secrets at the expense of informed representative government provides no
real security for our Republic. The Framers of the First Amendment, fully aware of both the need
to defend a new nation and the abuses of the English and Colonial governments, sought to give this
new society strength and security by providing that freedom of speech, press, religion, and assembly
should not be abridged.).
(3) See Brian Z.Tamanaha, supra note2; see, e.g., President Franklin D.Roosevelt, State of the
Union Address to Congress (The Four Freedoms Speech) (January6, 1941)(declaring: In the
future days, which we seek to make secure, we look forward to a world founded upon four essential
human freedoms. The first is freedom of speech and expression everywhere in the world. The second
is freedom of every person to worship God in his own way everywhere in the world. The third is
freedom from want which, translated into world terms, means economic understandings which will
secure to every nation a healthy peacetime life for its inhabitants-everywhere in the world. The
fourth is freedom from fear which, translated into world terms, means a world-wide reduction of
armaments to such a point and in such a thorough fashion that no nation will be in a position to
commit an act of physical aggression against any neighbor anywhere in the world. That is no vision
of a distant millennium. It is a definite basis for a kind of world attainable in our own time and
generation. That kind of world is the very antithesis of the so-called new order of tyranny which
the dictators seek to create with the crash of a bomb. To that new order we oppose the greater
conception 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 engaged
in change in a perpetual peaceful revolution a revolution which goes on steadily, quietly adjusting
itself to changing conditions without the concentration camp or the quick-lime in the ditch. The
world order which we seek is the cooperation of free countries, working together in a friendly, civilized society.).

ruled-based approach to airspace defense

67

which the rule of law has achieved this balance between freedom and security
is the international law of the sea and airspace. Specifically, that body of
international law accommodates the rights, freedoms, and uses of the sea and
airspace by coastal States and the co-existing rights, freedoms, and uses of
the sea and airspace by other States. Thus, when a situation or an issue arises
in international relations involving two or more States and their activities
occurring at sea or in the airspace, we must turn to the applicable body of
international law for the legal solution. Arguably, this is the very essence of
a rules-based approach.(4)
The international law of the sea is one of the oldest bodies of international
law, 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 and
principles for the seas and airspace are consistent, as they are both reflected
in the U.N. Convention on the Law of the Sea. Yet the fundamental difference in the nature of human flight (i.e., speed) means that potential threats
originating from the air can emerge much faster than those from the sea, and
States thereby face intelligence and operational challenges of quickly identifying indicators and warnings of those threats to respond in a timely and
effective manner. Given that two infamous armed attacks on U.S. territory
involved 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 South
China Sea Situation, in Murray Hiebert, Phuong Nguyen and Gregory Poling (eds.), Perspectives
on 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 2March 2015).
(5) Some of the foundational concepts reflected in the modern international law of the sea, as
reflected in the United Nations Convention on the Law of the Sea (UNCLOS), can be traced back
to Mare Liberum, the seminal work by the father of international law Hugo Grotius, which was
first published in 1609.
(6) See, e.g., Convention on International Civil Aviation (Chicago Convention), 7December
1944, 61 Stat. 1180, 15 United Nations Treaty Series 185. Of note, the Chicago Convention has only
limited application to state aircraft, including military aircraft (article3 (d)).
(7)On December7, 1941, the Imperial Japanese Navy attacked the U.S. military installations and forces located on the U.S. island of Oahu, including those in Pearl Harbor, primarily by
aerial bombardment. In total, the attack killed 1,998 U.S. Navy personnel, 109 U.S. Marine Corps
personnel, 233 U.S. Army personnel, and 48 civilians. U.S. National Park Service, December7, 1941
losses, available at http://www.nps.gov/nr/twhp/wwwlps/lessons/18arizona/18charts1.htm (last
consulted 2March 2015).
On September11, 2001, 19 Al Qaeda terrorists hijacked four U.S. commercial airliners and intentionally attacked both towers of the World Trade Center in New York City and the U.S. Department of Defenses Pentagon headquarters building in Washington, DC. The fourth hijacked plane
was 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 the
four planes. Final Report of the National Commission on Terrorist Attacks Upon the United States,
Executive Summary (July22, 2004), available at http://www.9-11commission.gov/report/911Report_Exec.htm (last consulted 2March 2015).

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threats in the future. Yet, to borrow a phrase from U.S. Supreme Court Justice Hugo Black, no State can summarily dispense with the long-standing
freedoms with vague generality of the word security.(8) Rather, any
air defense measure employed by a nation to protect itself from potential
airborne threats must be rooted in and adhere to the established principles
and rules of international law. This article will focus on how a rules-based
approach with the applicable international law helps to strike that balance.
In November 2013, the Peoples Republic of China announced an Air
Defense Identification Zone (ADIZ) covering a significant portion of the East
China Sea. To be sure, China was not the first nation to establish an ADIZ,
as the United States and other nations in the world have established and
maintained ADIZs for several decades.(9) Yet merely because one nation
announces an ADIZ and promulgates implementing regulations does not ipso
facto make the announced ADIZ lawful under international law. Following
Chinas announcement, much has been said and written about that ADIZ,
including by representatives of the U.S. Government,(10) representatives
of foreign governments,(11) experts of various disciplines,(12) and the news
(8) 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 not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for
our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new
nation and the abuses of the English and Colonial governments, sought to give this new society
strength and security by providing that freedom of speech, press, religion, and assembly should not
be abridged.).

(9)For example, within the Northeast Asia sub-region, Japan, the Republic of Korea,
and Taiwan each established and maintained ADIZs prior to the PRC announcing its ADIZ in
November 2013.
(10) For reactions by representatives of the U.S. Government, see discussion Part V infra.
(11) For reactions by representatives of the Government of Japan, see Kyodo News Agency
(Japan), Japan, China Trade Barbs over Controversial Air Defense Zone, 25November 2013, available at http://www.globalpost.com/dispatch/news/kyodo-news-international/131125/japan-china-trade-barbs-over-controversial-air-defense (last consulted 2March 2015); see also Ministry of
Foreign Affairs, Government of Japan, Press Release, Statement by the Minister for Foreign Affairs
on the announcement on the East China Sea Air Defense Identification Zone by the Ministry of
National Defense of the Peoples Republic of China, 24November 2013, available at http://www.
mofa.go.jp/press/release/press4e_000098.html (last consulted 2March 2015); for reactions by representatives of the Government of the Republic of Korea, see Choe Sang-Hun, Chinas Airspace
Claim Inflames Ties to South Korea, Too, New York Times, 27November 2013, available at http://
www.nytimes.com/2013/11/28/world/asia/chinas-airspace-claim-inflames-ties-to-south-korea-too.
html?_r=0 (last consulted 2March 2015).
(12) See, e.g., Ian E.Rinehart and Bart Elias, Chinas Air Defense Identification Zone
(ADIZ), Congressional Research Service, Report R43894, available at https://fas.org/sgp/crs/row/
R43894.pdf (last consulted 2March 2015); Kimberly Hsu, Air Defense Identification Zone Intended
to Provide China Greater Flexibility to Enforce East China Sea Claims, U.S.-China Economic
and Security Review Commission Staff Report, available at http://www.uscc.gov/sites/default/
files/Research/China%20ADIZ%20Staff%20Report.pdf (last consulted 2March 2015); David
A.Welch, Whats an ADIZ?, Foreign Affairs, 9December 2013), available at http://www.
foreignaffairs.com/articles/140367/david-a-welch/whats-an-adiz (last consulted 2March 2015); Jun
Osawa, Chinas ADIZ over the East China Sea: A Great Wall in the Sky?, Brookings Institu-

ruled-based approach to airspace defense

69

media.(13) Criticisms and concerns about the Chinas announced ADIZ,

including those expressed by U.S. officials, have identified a number of legal,
political, operational, and technical problems with Chinas ADIZ.
At the same time, the military aircraft of the Russian Federation have
been conducting flights in airspace close to the national airspace of other
States. They have included flights by Russian military aircraft in the vicinity
of U.S. national airspace around California and Alaska.(14) In November
2014, Russias Defense Minister also announced plans for Russian military
aircraft to conduct aerial reconnaissance with long-range aircraft in other
locations near U.S. national airspace, including the Gulf of Mexico.(15) These
flights have also included Russian military aircraft operating in airspace
close to the national airspace of several States in Europe.(16) In a number

tion, 17December 2013, available at http://www.brookings.edu/research/opinions/2013/12/17-china-air-defense-identification-zone-osawa (last consulted 2March 2015); Zachary Keck, With Air
Defense Zone, China is Waging Lawfare, The Diplomat, 30November 2013, available at http://
thediplomat.com/2013/11/with-air-defense-zone-china-is-waging-lawfare/ (last consulted 2March
2015); Ian Forsyth, The East China Sea ADIZ: Old Policy, New Packaging, 14 China Brief,
3September 2014, vol.17, available at http://www.jamestown.org/programs/chinabrief/single/?tx_
ttnews%5Btt_news%5D=42781&cHash=76784c0feb45b99e11c9f16972ad5435#.VP2V-DYcT8w
(last consulted 2March 2015); for a summary of Chinese academics analyzing the ADIZ, see
Michael D.Swaine, Chinese Views and Commentary on the East China Sea Air Defense Identification Zone (ECS ADIZ), China Leadership Monitor, 14March 2014, n.43, available at http://www.
hoover.org/research/chinese-views-and-commentary-east-china-sea-air-defense-identification-zone
(last consulted 2March 2015).
(13) See, e.g., Chico Harlan, China creates new air defense zone in East China Sea amid dispute
with Japan, Washington Post, 23November 2013, available at http://www.washingtonpost.com/
world/china-creates-new-air-defense-zone-in-east-china-sea-amid-dispute-with-japan/2013/11/23/
c415f1a8-5416-11e3-9ee6-2580086d8254_story.html (last consulted 2March 2015); Madison Park,
Why Chinas new air zone incensed Japan, U.S., CNN.com, 27November 2013, available at
http://www.cnn.com/2013/11/25/world/asia/china-japan-island-explainer/ (last consulted 2March
2015); China establishes air-defence zone over East China Sea, British Broadcasting Corporation,
23November 2013, available at http://www.bbc.com/news/world-asia-25062525 (last consulted
2March 2015).
(14)See, e.g., Brad Lendon, Russian Bombers Fly Near California, Cable News Network,
13June 2014, available at http://www.cnn.com/2014/06/13/us/u-s-russia-military-flights/ (last
consulted 2March 2015) (Reports that, in June 2014, four long-range Russian Tu-95 Bear-H
bombers, accompanied by an aerial refueling tanker, flew into the U.S. Air Defense Identification
Zone, an area extending 200miles from the North American coast, off Alaska and two of the aircraft
flew within 50miles of the California coast); Michael Winter, Russian Bombers Increase Flights
Near U.S. Airspace, USA Today, 7August 2014, available at http://www.usatoday.com/story/
news/world/2014/08/07/russia-bombers-arctic/13746681/ (last consulted 2March 2015) (reporting
that, in August 2014, at least 16 Russian military flights by Tupolev Tu-95 Bear bombers and
Tu-142 reconnaissance and anti-submarine aircraft flew in and around the U.S. air defense identification zones during a 10-day period).
(15) Gregory L.White, Russia to Expand Military Presence Further From Its Borders, Wall
Street Journal, 12November 2014, available at http://www.wsj.com/articles/russia-to-expand-military-presence-further-from-its-borders-1415809912 (last consulted 2March 2015) (Reports that
Russias Defense Minister announced plans for flights in the western part of the Atlantic and the
eastern Pacific Ocean and in the Caribbean Basin and the Gulf of Mexico).
(16) See Thomas Frear, Lukasz Kulesa and Ian Kearns, Dangerous Brinkmanship: Close Military Encounters Between Russia and the West in 2014, European Leadership Network, November

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of these situations, military aircraft of the United States, Canada, and some
European States have conducted air intercepts of these Russian military
aircraft.(17) (For purposes of this article, use of the phrase air intercept
is intended to include the procedures by which a military or other state aircraft approaches and identifies an unknown aircraft, attempts to establish
radio communications with that aircraft, and, when lawful and appropriate,
diverts the aircraft.) Of course, international law prohibits neither these
reconnaissance flights nor these intercept flights.
Prior to these recent international developments involving airspace security, legal scholars have occasionally examined the subject of air defense
measures and some of the associated issues arising under international
law.(18) This article seeks to advance that 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 inherent differences between national airspace and international airspace. Second, it discusses the air defense measure known as ADIZ. Third,
it discusses the air defense measure known as aircraft intercepts. Fourth,
it discusses the freedom of navigation, and discusses ways in which the air
defense measures of ADIZs and aircraft intercepts can be employed in a
manner consistent with the freedom of navigation. By highlighting applicable U.S. laws, regulations, policy directives, and press releases, this article
seeks to provide an example of effectively balancing security and freedom
in a manner that is fully consistent with international law. In the end, this
article will conclude that air defense measures established and implemented
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 to the
applicable body of international law and respects the freedom of navigation
enjoyed by other nations.

2014, available at http://www.europeanleadershipnetwork.org/medialibrary/2014/11/09/6375e3da/

Dangerous%20Brinkmanship.pdf (last consulted 2March 2015) (Provides the details of approximately 40 incidents over an eight-month period).
(17) See, e.g., Chris Johnston, RAF intercepts Russian bomber approaching UK airspace, The
Guardian (U.K.) (Nov.1, 2014), available at http://www.theguardian.com/uk-news/2014/nov/01/
raf-russian-bomber-uk-airspace (Reports that, in November 2014, U.K. Royal Air Force aircraft on
several occasions intercepted Russian military aircraft as they neared U.K. airspace).
(18) See, e.g., Peter Dutton, Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace, American Journal of International Law, 2009, vol.103, p.691; Kay Hailbronner,
Freedom Of The Air And The Convention On The Law Of The Sea, American Journal of International Law, 1983, vol.77, p.490.

ruled-based approach to airspace defense

71

II. The Legal Status of Airspace

At the outset, it is important to understand the different legal status of
airspace. All airspace can be categorized as either national airspace or international airspace.(19)
International law recognizes that every State has sovereignty over its
national airspace.(20) The national airspace of a State, also known as the territorial airspace,(21) includes the airspace over its land territory, its internal
waters, and its territorial sea.(22) In the case of an archipelagic State,(23)
national airspace also includes the airspace over its archipelagic waters.(24)
The sovereignty exercised by a coastal State over its waters and airspace is
subject to other rules of international law.(25)

(19) U.S. Department of the Navy, Commanders Handbook on the Law of Naval Operations,
U.S. Naval Warfare Publication (NWP) 1-14M (July 2007), para.1.9, available at http://www.
usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/ (last consulted 2March 2015)
(Under international law, airspace is classified as either national airspace (that over the land,
internal waters, archipelagic waters, and territorial seas of a nation) and international airspace
(that over contiguous zones, exclusive economic zones, the high seas, or territory not subject to the
sovereignty of any nation).).
(20) United Nations Convention on the Law of the Sea, 10December 1982, 1833 United Nations
Treaty Series 3. (UNCLOS), art.2(2). The United States is not a party to UNCLOS, but considers
the Convention to reflect accurately the customary rules of international law concerning maritime navigation and overflight rights and freedom. See Statement of United States Oceans Policy
(Mar.10, 1983); Chicago Convention, art.1 (The contracting States recognize that every State has
complete and exclusive sovereignty over the airspace above its territory.). As a matter of domestic
law, the United States has declared sovereignty over its national airspace. 49 U.S.C. 40103(a)(1)
(The United States Government has exclusive sovereignty of airspace of the United States.).
(21) U.S. Department of Defense, Joint Publication 1-02, DoD Dictionary of Military and
Associated Terms (Nov., 8, 2010, as amended through Nov.15, 2013), available at http://www.dtic.
mil/doctrine/new_pubs/jp1_02.pdf (last consulted 2March 2015) ([T]erritorial airspace Airspace
above land territory and internal, archipelagic, and territorial waters.).
(22)UNCLOS, art.2(1) and (2); Chicago Convention, art.2. A coastal State may establish
the breadth of its territorial seas up to a limit not exceeding 12nautical miles, measured from
baselines determined in accordance with UNCLOS (art.3); see also U.S. Department of Defense
Instruction 4540.01, Use of International Airspace by U.S. Military Aircraft and for Missile and
Projectile Firings, 2June 2015, Glossary, available at http://www.dtic.mil/whs/directives/corres/
pdf/454001p.pdf (last consulted 4June 2015) (national airspace. Any airspace that is subject to the
sovereignty of a State. This includes airspace above the territorial seas, internal waters, archipelagic
waters (for archipelagic States) and land territory of a State. Consistent with international law, the
U.S. Government recognizes territorial sea claims up to a maximum distance of 12nautical miles
from a coastal States baseline drawn in accordance with international law.).
(23) UNCLOS, art.46(a) (`[A]rchipelagic State means a State wholly by one or more archipelagos and may include other islands.).
(24) UNCLOS, art.2(1).
(25) UNCLOS, art.2(3). These other rules of international law include, but are not necessarily
limited to, those reflecting the right of all ships and aircraft to conduct transit passage through
straits which are used for international navigation. UNCLOS, arts.38-39. It also includes the rules
of international law reflecting the right of all ships and aircraft to conduct archipelagic sea lanes
passage through the sea lanes of an archipelagic State. UNCLOS, art.53.

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jonathan g. odom

Conversely, as a matter of international law, a State lacks sovereignty

over any airspace beyond its national airspace, to include international
airspace(26) and the national airspace of other States. If an aircraft of one
State desires to enter the national airspace of another State, then that aircraft generally(27) must obtain the consent of that State or, in the case of
unscheduled civil aircraft, be subject to the right of the State overflown to
require landing.(28) Civil aircraft enter foreign airspace in accordance with
regimes established under the Chicago Convention and, in the case of commercial operators, bilateral air transport agreements. State aircraft generally
must 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 subject
to the sovereignty of any State. In other words, this means all airspace beyond the national airspace
of any State. It would include: the airspace over any coastal States contiguous zones or exclusive
economic zones, (2)the airspace over the high seas, and (3)the airspace over territories not subject
to national sovereignty (e.g., Antarctica). See U.S. Department of Defense Instruction 4540.01,
supra note22, Glossary (international airspace. Any airspace that is not subject to the sovereignty
of a State. This includes all airspace seaward of coastal States national airspace, including airspace
over contiguous zones, exclusive economic zones, and the high seas.); see also U.S. Department
of the Navy, Commanders Handbook on the Law of Naval Operations, supra note19, 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 Chinas 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 2March 2015) (Although we
recognize that military aircraft normally require permission to enter the territorial airspace of
another nation, international law recognizes a right of entry for foreign aircraft, state or civil, in
circumstances such as these when such entry is due to distress and there is no reasonable safe alternative. Notwithstanding the ordinary rules requiring consent, a peacetime right to enter in distress
for military aircraft is consistent with established international practice.); U.S. Department
of the Navy, Commanders Handbook on the Law of Naval Operations, supra note19, 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 emergency 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 emergency
landings without prior coastal nation permission.).
(28) Chicago Convention, arts.3 (No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and
in accordance with the terms thereof.), 5 (regarding unscheduled civil flights), 6 (regarding scheduled civil flights), and 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 regulations relating
to entry, clearance, immigration, passports, customs, and quarantine shall be complied with by or
on behalf of such passengers, crew or cargo upon entrance into or departure from, or while within
the territory of that State.). Note: An aircraft of a State usually refers to a civil aircraft entered
on that States registry or a state aircraft in that States service. It is common, however, for both
commercial 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 diplomatic clearance of foreign State aircraft, including foreign military aircraft, to enter U.S. national
airspace. See Office of International Security Operations, U.S. Department of State, Diplomatic
Aircraft Clearance Procedures Diplomatic Aircraft Clearance Procedures For Foreign State Aircraft
To Operate In The United States National Airspace, available at http://www.state.gov/t/pm/iso/
c56895.htm (last consulted 2March 2015).

ruled-based approach to airspace defense

73

States have the responsibility to provide, so far as practicable, air navigation facilities, including air traffic management services, for aircraft operating within their national airspace.(30) In addition, the ICAO has allocated,
through regional air navigation agreements, responsibility for civil air traffic
management in international airspace adjacent to coastal States in specified
Flight Information Regions (FIRs). To carry out the State responsibilities
for providing air navigation facilities and air traffic management services in
both national airspace and in assigned FIRs, States generally establish rules
and procedures relating to civil aviation operations.
States also have the responsibility to ensure that aircraft operating within
airspace they manage (e.g., assigned FIRs) are informed of conditions affecting that airspace. To mitigate the risk of potential hazards to the safety of
aircraft, States should notify or otherwise inform pilots of those potential
hazards or conditions. A Notice to Airmen (NOTAM) is a notice to alert pilots
of potential hazards along a flight route or at a location that could affect
the safety of flight.(31) NOTAMs are typically issued to notify operators
of hazards that require immediate attention.(32) If the hazard persists, it
will be incorporated into the next edition of the appropriate Aeronautical
Information Publication (AIP), which contains aeronautical information
of a lasting character essential to air navigation.(33) The State that administers the airspace affected has primary responsibility for issuance of both
NOTAMs and the AIP.(34) Pilots are required to review relevant NOTAMs
and 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 entry
by foreign aircraft into its national airspace and airports,(35) similar to

(30) Chicago Convention, art.28(b).

(31) Chicago Convention Annex15, para.1.1, Aeronautical Information Services, Definitions
(NOTAM. A notice distributed by means of telecommunication containing information concerning
the establishment, condition or change in any aeronautical facility, service, procedure or hazard, the
timely knowledge of which is essential to personnel concerned with flight operations.).
(32)Chicago Convention Annex15, para.5.1.1. (A NOTAM shall be originated and issued
promptly whenever the information to be distributed is of a temporary nature and of short duration
or when operationally significant permanent changes, or temporary changes of long duration are
made at short notice, except for extensive text and/or graphics.).
(33) Chicago Convention Annex15, para.1.1, Aeronautical Information Services, Definitions;
ICAO Doc.4444, Air Traffic Management, definitions.
(34) Chicago Convention Annex15, 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 regulations relating to entry, clearance, immigration, passports, customs, and quarantine shall be

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jonathan g. odom

how a coastal State may establish conditions of entry for foreign vessels to
enter 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 a
State to identify aircraft as potential threats to the States national security
and reduce the number of aircraft of interest the State needs to monitor
actively.(38)
There is no international treaty or convention that expressly addresses
ADIZs, and the ICAO does not establish standards for such actions in the
annexes 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 airspace
adjacent to a States national airspace.(40) The United States began establishing ADIZs in the 1950s.(41) Under U.S. national regulations, the United
States defines an ADIZ as an area of airspace over land or water in which the
ready identification, location, and control of all aircraft (except for Department of Defense and law enforcement aircraft) is required in the interest of
national 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 its
territory of aircraft engaged in international air navigation, or to the operation and navigation of
aircraft while within its territory, shall be applied to the aircraft of all contracting States without
distinction as to nationality, and shall be complied with by such aircraft upon entering or departing
from or while within the territory of that State.).
(36) U.S. Department of the Navy, Commanders Handbook on the Law of Naval Operations,
supra note19, para.2.5.1 (Because entering internal waters is legally equivalent to entering the
land territory of another nation, that nations permission is required.).
(37) U.S. Department of the Navy, Commanders Handbook on the Law of Naval Operations,
supra note19, para.2.7.2.3 (The legal basis for ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory.).
(38) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(a)(An
ADIZ provides a practical method for a State to identify aircraft as potential threats to the States
national security.).
(39) However, ICAO does mention ADIZs in at least one publication. See Chicago Convention,
Annex15 (Aeronautical Information Services), Appendix1, ENR 5.2 (Military exercise and
training areas and air defence identification zone (ADIZ)).
(40) U.S. Department of the Navy, Commanders Handbook on the Law of Naval Operations,
supra note19, para.2.7.2.3 (International law does not prohibit nations from establishing air
defense identification zones (ADIZs) in the international airspace adjacent to their territorial
airspace.). However, nothing prohibits a State from establishing an ADIZ in a geographic area
that is either partially or wholly above the States sovereign territory. For example, in 2007, the
United States established an ADIZ for the Metropolitan Washington, D.C., area. See U.S. Federal
Aviation Administration (FAA), Notice to Airmen (NOTAM) 7/0206 (August30, 2007), available
at http://www.faa.gov/news/updates/adiz_frz/media/DC_ADIZ-FRZ_Advisory.pdf (last consulted
6March 2015).
(41) Dutton, supra note18, 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 consulted
6March 2015).

ruled-based approach to airspace defense

75

Nothing in international law prohibits a coastal State from establishing

an ADIZ in its territorial airspace or in the international airspace adjacent
to its territorial airspace, consistent with its right to regulate and control
entry into and departure from its territory by foreign aircraft.(43) Thus,
the United States has described the purpose of ADIZs as follows: To facilitate early aircraft identification of all aircraft in the vicinity of U.S. and
international airspace boundaries, Air Defense Identification Zones (ADIZ)
have been established.(44)
The establishment of an ADIZ by a State neither imputes any additional
rights 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 same
rights, freedoms, and uses of airspace reflected in international law(46) that
they did absent a States establishment of an ADIZ.(47) Therefore, any
ADIZ established by one State, and its implementing regulations and operational practices, must respect all of those rights, freedoms, and uses of
airspace by other States.(48)
The United States has established several ADIZs by Federal regulations.(49) These designated ADIZs include airspace around the contiguous
United States,(50) Alaska,(51) Guam,(52) and Hawaii.(53) As discussed
below, 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, Commanders Handbook on the
Law of Naval Operations, supra note19, para.2.7.2.3.
(44)U.S. Federal Aviation Administration (FAA), Aeronautical Information Manual (AIM),
chapter5, section6, para.5-6-1(b), available at http://www.faa.gov/air_traffic/publications/
atpubs/aim/aim0506.html#aim0506.html.1 (last consulted 6March 2015).
(45) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(c)(DoD
understands that a States establishment of an ADIZ neither imputes any additional rights to that
State that it does not otherwise enjoy under international law, nor does it expand any of those rights
for that State.).
(46)These rights, freedoms, and uses of the airspace are reflected in UNCLOS, the Chicago
Convention, and customary international law.
(47) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(c)(Thus,
DoD understands that other States continue to enjoy, quantitatively and qualitatively, the same
rights, freedoms, and lawful uses of the airspace reflected in international law that they did absent
a States establishment of an ADIZ.).
(48) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(a)(DoD
respects that a State may establish an ADIZ that geographically extends into the international
airspace adjacent to the States national airspace, but such ADIZs may not impede the rights, freedoms, and lawful uses of airspace under international law of foreign aircraft, including foreign military aircraft.).
(49) Title14, Part99 of the U.S. Code of Federal Regulations contains the regulations for the
U.S. ADIZs. 14 C.F.R. Part 99, available at http://www.gpo.gov/fdsys/browse/collectionCfr.
action?selectedYearFrom=2013&go=Go (last consulted 6March 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.

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jonathan g. odom

lations. For those flights that are subject to the ADIZ regulations, the persons operating those aircraft are required to take certain actions. These
required actions include: to have a functioning two-way radio and maintain
continuous listening watch on the appropriate frequency;(54) to file a flight
plan;(55) and to make position reports, as well as certain requirements relating to aircraft transponders.(56)
These U.S. ADIZs fully respect the rights, freedoms, and uses of international airspace by other States. As a matter of international law, all States enjoy
high seas freedom of navigation and overflight, and other internationally
lawful uses of the sea related to those freedoms beyond the territorial seas of
any 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, and
conducting military surveys) not only on the high seas, but also within the
exclusive economic zones of other States.(58) As a matter of U.S. law, the
U.S. ADIZ regulations state that those regulations, and the required actions
contained therein, apply to aircraft operating in the U.S. ADIZ, but only if
the aircrafts flight meets two conditions: (1)the aircrafts flight originated
from U.S. national airspace, operates within U.S. national airspace, or is
destined for U.S. national airspace, and (2)its flight will pass through the
U.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 Transmittal, S.Treaty Doc. No.103-39 (1994), reprinted in Bureau Of Public Affairs, U.S. Dept Of
State, Dispatch Supplement, 1995, vol.6, Supp.1, available at http://www.jag.navy.mil/organization/documents/Senate_Transmittal.pdf (last consulted 6March 2015). Within a coastal States
EEZ, such military activities must maintain due regard for the resource-related rights of the
coastal State. Id.
(59) Of note, the Applicability section in the opening of Part 99states that these regulations
prescribe rules for all aircraft operating into, within, or out of the United States through an Air
Defense Identification Zone (ADIZ) designated in subpart B [of the regulation]. 14 C.F.R. Part
99, Section 99.1(a). Therefore, to be subject to the requirements of the U.S. ADIZ, an aircraft must
satisfy both conditions: (1)its point of origin, destination, or flight path is within U.S. national
airspace (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 at
least one previous occasion, the United States has confirmed that the U.S. ADIZ regulations do not
apply to a foreign aircraft that merely pass through or otherwise operate in international airspace
located within a U.S. ADIZ without intending to enter U.S. national airspace. See U.S. Response
to Signed Article in Chinas Official Party Newspaper, April 2001, reprinted in Digest of United
States Practice in International Law, 2001, p.707, supra note27 (The Air Defense Identification
Zones (ADIZ) established under U.S. regulations which require the filing of flight plans and periodic position reports apply only to aircraft bound for U.S. territorial airspace.); Aeronautical
Information Manual (AIM), chapter5, section6, para.5-6-1(b), supra note43; United States Aeronautical Information Publication (AIP), 7March 2013, ENR 1.12, para.1.2 (All aircraft entering
domestic U.S. airspace from points outside, must provide for identification prior to entry.); U.S.
Department of the Navy, Commanders Handbook on the Law of Naval Operations, supra note19,

ruled-based approach to airspace defense

77

relevant international law, the U.S. practice has been to apply its ADIZ
regulations 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 coincidentally required to follow ICAO procedures (e.g., filing a flight plan to the
FAA) in order to transit the airspace covered by U.S.-controlled FIRs. For
any aircraft transiting a U.S. ADIZ without the intent to enter U.S. national
airspace, the United States does not require, but only recommends that
those aircraft file a flight plan.(61) As discussed further below, the United
States may intercept any aircraft operating within international airspace
adjacent to U.S. national airspace, in order to identify the aircraft and assess
its intent. This includes intercepting any aircraft operating within the U.S.
ADIZs or U.S. FIRs, irrespective of whether the U.S. ADIZ regulations or
ICAO procedures apply to that aircraft.
Similarly, the United States does not recognize the right of a State to
apply its ADIZ laws and regulations to foreign civil aircraft, if those aircraft
do not intend to enter the national airspace of the coastal State.(62) The
United States also does not recognize the right of a State to require foreign
State 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 procedures
upon foreign aircraft that are only transiting international airspace within
the States ADIZ without any intention to enter the States national airspace.(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 the
United 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 note27 (The
[United States]... does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S.
airspace.); Dutton, supra note18, pp.698700. Under U.S. law, any person who knowingly or
willfully violates the U.S. ADIZ regulations may be subject to fines, imprisonment, or both. See 49
U.S.C. 46307. However, this author is unaware whether any individual has ever been prosecuted
in the U.S. judicial system for such violations.
(61) United States Aeronautical Information Publication (AIP), supra note55, para.4.2.1.
(Except for operations in or penetrating a Coastal or Domestic ADIZ or DEWIZ (see ENR 1.12,
paragraph1.2), a flight plan is not required for VFR flight; however, it is strongly recommended
that one be filed.).
(62) Digest of United States Practice in International Law, 2001, p.707, supra note27; U.S.
Department of the Navy, Commanders Handbook on the Law of Naval Operations, supra note19,
para.2.7.2.3.
(63) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(c)(DoD
respects that other States may establish conditions for foreign aircraft to enter into their national
airspace and airports, including adherence to reasonable ADIZ procedures.).
(64) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(b).

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jonathan g. odom

directed that they are not required to and will not comply with foreign
ADIZ procedures when they are conducting air operations in those portions
of a foreign ADIZ located in international airspace.(65) Thus, U.S. military
aircraft that do not plan to enter the national airspace of another nation are
not 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 is
the aircraft intercept. In general terms, an aircraft intercept occurs when a
State aircraft (e.g., military or law enforcement aircraft) approaches another
aircraft to determine its identity and assess its intent. A State may conduct
an air intercept in national or international airspace, consistent with its due
regard obligations, as discussed below. Of note, a State may intercept other
aircraft, including civil aircraft and state aircraft, under international law
irrespective of whether that State has established an ADIZ, whether that
aircraft of interest is subject to the States ADIZ regulations, and whether
the 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 of
national security or defense.(67) The AIP further advises that the purposes
of such intercepts by U.S. air defense assets of other aircraft can include:
to identify the aircraft, track the aircraft, inspect the aircraft, divert the
aircraft, or establish communications with the aircraft.(68) In North America, the United States and Canada are surrounded by an ADIZ, which is
jointly monitored by the civilian air traffic control (ATC) authorities of both
nations 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 note22, Enclosure 3, para.3.d.
(66) U.S. Department of the Navy, Commanders Handbook on the Law of Naval Operations,
supra note19, para.2.7.2.3 (The United States does not recognize the right of a coastal nation to
apply 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 or
otherwise comply with ADIZ procedures established by other nations, unless the United States has
specifically agreed to do so.).
(67) United States Aeronautical Information Publication (AIP), supra note55, para.2.1.1. (In
conjunction with the FAA, Air Defense Sectors monitor air traffic and could order an intercept in
the interest of national security or defense.).
(68) Aeronautical Information Manual (AIM), supra note43, chapter5, section6, para.5-6-2;
United States Aeronautical Information Publication (AIP), supra note55, para.2.1.1. (The reasons
for aircraft intercept include, but are not limited to: 2.1.1.1. Identify an aircraft, 2.1.1.2. Track an
aircraft, 2.1.1.3. Inspect an aircraft, 2.1.1.4. Divert an aircraft, 2.1.1.5. Establish communications
with an aircraft.).

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79

U.S./Canada ADIZ, even if the aircraft operating within the ADIZ are not
subject to requirements of the U.S. ADIZ regulations (e.g., filing flight
plans). If necessary under the circumstances, NORAD may take additional
actions to identify an aircraft and determine its intentions. These actions
could include hailing the aircraft via radio or intercepting the aircraft with
NORAD air patrols.
Under the Chicago Convention, States have an obligation to have due
regard for the safety of navigation of civil aircraft in regulating and conducting air intercept operations.(69) For the intercept of civil aircraft, ICAO
has adopted principles to facilitate international uniformity and promote
aviation safety.(70)
The U.S interception procedures are consistent with the ICAO principles,
and observe the obligation to maintain due regard for safety includes ensuring that an intercept is conducted in a safe manner.(71) U.S. interception
procedures state: In all situations, the interceptor pilot will consider safety
of flight for all concerned throughout the intercept procedure. The interceptor
pilot(s) will use caution to avoid startling the intercepted crew or passengers
and understand that maneuvers considered normal for interceptor aircraft may
be considered hazardous to other aircraft.(72) These procedures outline three
phases of an intercept: an approach phase,(73) an identification phase,(74) and

(69) Chicago Convention, art.3(d).

(70) Chicago Convention Annex2, Rules of the Air, Appendix2 Interception of Civil Aircraft.
The United States does not accept Annex2, Appendix2 as legally binding; however, U.S. interception procedures are consistent with the rules set forth therein. The long-established U.S. position
provides that [t]he Chicago Convention expressly excludes state aircraft from its scope and thus
from the scope of ICAO responsibility [in accordance with Art.3(d)]. The United States intends that
its State aircraft will follow ICAO procedures set forth in Annex2 to the greatest extent practicable;
however, the United States considers that State aircraft of any nation are subject to control and
regulation exclusively by that nation (unless operating within airspace over which another nation
has sovereignty). Department of State Airgram CA-8085, 13February 1964, quoting U.S. InterAgency Group on International Aviation (IGIA) Doc.88/1/1C, MS, Department of State, file POL
31 U.S., reprinted in Whiteman Digest, vol.9, pp.430431.
(71) With regard to civil aircraft, ICAO recommends that [i]nterception of civil aircraft should
be avoided and should be undertaken only as a last resort. Chicago Convention, Appendix2 Interception of Civil Aircraft.
(72) Aeronautical Information Manual (AIM), supra note43, chapter5, section6, para.5-6-2.
(73) Aeronautical Information Manual (AIM), supra note43, chapter5, section6, 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 single
aircraft to perform the intercept operation. Safe separation between interceptors and intercepted
aircraft is the responsibility of the intercepting aircraft and will be maintained at all times.);
United States Aeronautical Information Publication (AIP), supra note55, para.2.2.1.
(74) Aeronautical Information Manual (AIM), supra note43, chapter5, section6, para.5-6-2.b.2
(2.Identification Phase. Interceptor aircraft will initiate a controlled closure toward the aircraft
of interest, holding at a distance no closer than deemed necessary to establish positive identification
and to gather the necessary information. The interceptor may also fly past the intercepted aircraft
while gathering data at a distance considered safe based on aircraft performance characteristics.);
United States Aeronautical Information Publication (AIP)(March7, 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 intercepting State aircraft. In intercepting aircraft in international airspace
States must maintain due regard for the right of the other States aircraft
(including foreign military aircraft) to overfly such airspace, as determined
by the status of waters over which the airspace is located.(77) The United
States has implemented this due regard obligation as a matter of Department of Defense policy for all DoD aircraft.(78)
V. Freedom of Navigation
The United States has upheld the freedom of the seas, including in oceans
and seas distant from U.S. shores, since the nations founding and consistently
thereafter. 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 depredations against U.S. commercial shipping in the Atlantic Ocean, the Medi-

(75) Aeronautical Information Manual (AIM), supra note43, chapter5, section6, para.5-6-2.b.3
(3. Post Intercept Phase. An interceptor may attempt to establish communications via standard
ICAO signals. In time-critical situations where the interceptor is seeking an immediate response
from 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 across
the intercepted aircrafts flight path (minimum 500feet separation and commencing from slightly
below the intercepted aircraft altitude) in the general direction the intercepted aircraft is expected
to turn. The interceptor will rock its wings (daytime) or flash external lights/select afterburners
(night) while crossing the intercepted aircrafts flight path. The interceptor will roll out in the direction the intercepted aircraft is expected to turn before returning to verify the aircraft of interest is
complying. The intercepted aircraft is expected to execute an immediate turn to the direction of
the intercepting aircraft. If the aircraft of interest does not comply, the interceptor may conduct
a second climbing turn across the intercepted aircrafts flight path (minimum 500feet separation
and commencing from slightly below the intercepted aircraft altitude) while expending flares as a
warning signal to the intercepted aircraft to comply immediately and to turn in the direction indicated and to leave the area. The interceptor is responsible to maintain safe separation during these
and all intercept maneuvers. Flight safety is paramount.); United States Aeronautical Information
Publication (AIP), supra note55, para.2.2.3.
(76) Aeronautical Information Manual (AIM), supra note43, chapter5, section6, 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 or
suspend this right of transit passage. UNCLOS, art.44. For airspace above a coastal States exclusive 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 States exclusive economic zone, over the high seas, then the coastal State shall have due regard to the other
States high seas freedoms. UNCLOS, art.87.
(78) U.S. Department of Defense Instruction 4540.01, supra note59, para.4 (It is DoD policy
thatU.S. military aircraft operate with due regard for the safety of civil air and surface traffic.).

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81

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 executed operations to protect the freedom of navigation guaranteed to these
U.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 the
U.S. Congress, during which he championed, as one of the universal principles
for which the United States and others were fighting, [a]bsolute freedom
of navigation upon the seas, outside territorial waters, alike in peace and in
war, except as the seas may be closed in whole or in part by international
action for the enforcement of international covenants.(80)
Three months before the United States entered World War II, President
Franklin D.Roosevelt delivered his Freedoms of the Seas radio address
to the American people, in which he declared, [g]eneration after generation,
America has battled for the general policy of the freedom of the seas. And
that policy is a very simple one, but a basic, a fundamental one. It means
that no nation has the right to make the broad oceans of the world at great
distances from the actual theatre of land war, unsafe for the commerce of
others.(81) Ultimately, Roosevelt concluded, [u]pon our naval and air
patrol now operating in large number over a vast expanse of the Atlantic
Ocean 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. Government has executed a multi-agency Freedom of Navigation (FON) Program to
uphold the law of the sea against excessive maritime claims by coastal States
throughout the world. The U.S. FON Program was started during the Carter
Administration, but formalized under President Reagan. As part of U.S.
Oceans Policy Statement issued in March 1983, President Reagan declared
the following: [T]he United States will exercise and assert its navigation
and 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 other
states designed to restrict the rights and freedoms of the international com-

(79) Act of May28, 1798, ch. 48, 1 Stat. 561 (An Act More Effectually to Protect the Commerce
and Coasts of the United States); Act of July9, 1798, ch. 68, 1 Stat. 578 (An Act Further to Protect
the Commerce of the United States); Act of February6, 1802, ch. 4, 2 Stat. 129 (An Act for the
Protection of the Commerce and Seamen of the United States Against the Tripolitan Cruisers); Act
of March3, 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, 8January 1918, available at
http://www.fordham.edu/halshall/mod/1918wilson.html (last consulted 6March 2015).
(81) President Franklin D.Roosevelt, Freedom of the Seas Radio Address to American People,
11September 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 instructed
to respect maritime claims by other States that are consistent with the
international law, but to not acquiesce in unilateral acts by other States
that are designed to restrict the rights, freedoms, and uses of the sea and
airspace reflected in international law.(83) Hence, current U.S. Department
of Defense policy guidance directs that U.S. military aircraft will respect
the maritime claims of other States, including claims to airspace, that are
consistent with international law. U.S. military aircraft will not acquiesce in
excessive maritime claims by other States, including their claims to airspace,
that, if left unchallenged, could limit the rights, freedoms, and lawful uses
of airspace recognized in international law.(84)
About this longstanding U.S. FON Policy, there are several key features
that are worth highlighting:
First, the U.S. FON Policy is whole-of-government effort. That is, it includes
diplomatic actions of consultations and protests with coastal States, as
well as operational activities by DoD ships and aircraft to demonstrate
the 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 upon
excessive claims asserted by coastal States around the world.(86)
(82) President Ronald Reagan, United States Oceans Policy, 10March 1983.
(83) Presidential Decision Directive 32, Freedom of Navigation, 23January 1995 (It is U.S.
policy to respect those maritime claims 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 basis in a manner consistent with the LOS Convention. The United
States will not acquiesce in unilateral acts of other states designed to restrict the rights and freedoms
of the international community in navigation and overflight and other traditional uses of the high
seas. (U); National Security Decision Directive 265, Freedom of Navigation Program, 16March
1987 (Second, the United States will exercise and assert its navigation and overflight rights and
freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected
in the Convention. The United States will not, however, acquiesce in unilateral acts of other states
designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses. (U)); National Security Directive, Freedom of Navigation
Program, 12October 1990 (This policy provides that the United States will respect those maritime
claims 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 basis
in a manner consistent with the LOS Convention. The United States will not acquiesce in unilateral
acts of other states designed to restrict the rights and freedoms of the international community in
navigation and overflight and other traditional uses of the high seas. (U)).
(84) See U.S. Department of Defense Instruction 4540.01 supra note22, para.3.b.
(85) J. Ashley Roach and Robert W.Smith, Excessive Maritime Claims, 2012, 3rd ed., pp.79
(describing the triple track of the U.S. Freedom of Navigation Program to include diplomatic
consultations, diplomatic protests, and operational assertions).
(86) U.S. Department of Defense Instruction S-2005.01, 20October 2014, para.3.f. ((U) U.S. military forces will actively implement the FON Program against excessive maritime claims by coastal
States in every region of the world, because the DoDs 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 on

challenging the excessive nature of specific maritime claims, rather than
on the U.S. relationship with any particular coastal State. In fact, the
United 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 its
FON programthe United States diplomatically protested a maritime
claim by a treaty-ally, the Republic of Philippines, as excessive under
the law of the sea.(88) Similarly, a review of the recent DoD Annual FON
reports shows that among the excessive maritime claims challenged by
DoD forces include ones asserted by Argentina, Brazil, Burma, Cambodia, 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 passage. Throughout U.S. history, the umbrella term chosen by U.S. leaders has fluctuated between freedom of navigation and freedom of
the 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 international
law.(90)
Fifth, the U.S. FON Policy protects not only rights, freedoms, and uses of
the sea, but also those of the airspace as well. Although some might envision U.S. Navy ships as the primary guardians of these freedoms, the
U.S. Department of State has long protested excessive claims by coastal
States that affect airspace, and DoD aircraft have routinely challenged
such restrictions as part of the FON program.(91)

(87) U.S. Department of Defense Instruction S-2005.01, 20October 2014, para.3.g. ((U) U.S.
military forces will execute the FON Program with respect to a wide range of excessive maritime
claims, irrespective of the coastal State advancing the excessive claims. DoD will challenge the
excessive nature of the specific maritime claim, rather than focusing on any specific country. This
includes challenges to excessive maritime claims asserted by allies, partners, and other nations.).
(88)U.S. Department of Defense (DoD) Representative for Ocean Policy Affairs, Maritime
Claims Reference Manual, Philippines, available at http://www.jag.navy.mil/organization/documents/mcrm/Philippines2014.pdf (last consulted 6March 2015).
(89)See U.S. Department of Defense, Annual Freedom of Navigation Reports, available at
http://policy.defense.gov/OUSDPOffices/FON.aspx (last consulted 6March 2015).
(90) U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON) Program,
20October 2014, ((U) FON. A U.S. national interest that includes all of the rights, freedoms, and
uses 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,
20October 2014, Glossary ((U) FON. A U.S. national interest that includes all of the rights, freedoms, and uses 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.).

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In short, the FON Policy applies across the U.S. Government, around
the 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, but
only if they are established and implemented in a manner that fully respects
the rights, freedoms, and lawful uses of airspace by other States.
As mentioned above, the U.S. FON Policy seeks to preserve not merely
the freedom of overflight, but also other internationally lawful uses of the
sea and airspace. The United States respects maritime claims that are
consistent with UNCLOS.(92) The United States considers any maritime
claim 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 within
the U.S. Department of Defenses definition of excessive maritime claims
is: 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 enter the ADIZ States national airspace.(94) As a matter of

(92) See U.S. President Ronald Reagan, Statement on United States Oceans Policy, 10March
1983, available at http://www.state.gov/documents/organization/143224.pdf (last consulted
6March 2015) ([T]he United States will recognize the rights of other states in the waters off their
coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and
others under international law are recognized by such coastal states.; see also U.S. Department of
Defense Instruction S-2005.01, Freedom of Navigation (FON) Program, 20October 2014, para.3.c.
(U.S. military forces will respect the maritime claims of coastal States that are consistent with
international law.).

(93)U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON)

Program, 20October 2014, Glossary ((U) excessive maritime claim. A coastal States maritime
claim, enacted by national law, regulation, or policy, that is not consistent with international law as
reflected in the Convention.).
(94) U.S. Department of Defense Instruction S-2005.01, Freedom of Navigation (FON) Program,
20October 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 enter
the ADIZ States national airspace.).
The United States is not a party to UNCLOS, but it has long respected the provisions of the
Convention that reflect customary law. See U.S. President Ronald Reagan, Statement on United
States Oceans Policy, 10March 1983, available at http://www.state.gov/documents/organization/143224.pdf (last consulted 6March 2015) ([T]he United States is prepared to accept and act in
accordance with the balance of interests relating to traditional uses of the oceans such as navigation
and 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 6March 2015) (While the United States is not currently a party to the Convention, we will continue to support and observe principles of established customary international law
reflected in the Convention.); see also U.S. Department of Defense Instruction S-2005.01, Freedom
of Navigation (FON) Program, 20October 2014, para.3.a. ([The Department of Defense] will
continue 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.).

ruled-based approach to airspace defense

85

U.S. FON policy, the Departments and Agencies of the U.S. Government will
not acquiesce in excessive maritime claims enacted by coastal States.(95)
For this reason, the U.S. Department of Defense policy guidance provides
that it does not recognize efforts by other States to impose such ADIZ
procedures upon foreign aircraft that are only transiting international airspace within the States ADIZ without any intention to enter the States
national airspace.(96)
A recent example demonstrating the U.S. FON policy and practice with
regards to foreign ADIZs was the U.S. Governments response to Chinas
ADIZ in the East China Sea in November 2013. Following Chinas announcement,(97) senior U.S. officials made a series of public statements. These
official statements highlighted a number of problems with the announced
ADIZ, one of which is the potential effect on the freedom of the seas and airspace, including those of military aircraft. Within a day after China made its
announcement, U.S. Secretary of State John Kerry issued a press statement
that declared, in part, [f]reedom of overflight and other internationally
lawful uses of the sea and airspace are essential to prosperity, stability, and
security in the Pacific. Secretary Kerry went on to emphasize, [w]e dont
support efforts by any State to apply its ADIZ procedures to foreign aircraft
not intending to enter its national airspace.(98) On that same afternoon,
U.S. Secretary of Defense Chuck Hagel also issued a press statement. In his
statement, Secretary Hagel stated, Chinas ADIZ announcement will not
in any way change how the United States conducts military operations in
the region.(99) In the week following those two Secretary-level statements,

(95) U.S. President Ronald Reagan, Statement on United States Oceans Policy, 10March 1983,
available at http://www.state.gov/documents/organization/143224.pdf (last consulted 6March
2015) (The United States will not, however, acquiesce in unilateral acts of other states designed
to restrict the rights and freedoms of the international community in navigation and overflight
and other related high seas uses.); U.S. Department of Defense Instruction S-2005.01, Freedom of
Navigation (FON) Program, 20October 2014, para.3.d. (U.S. military forces will not acquiesce in
excessive maritime claims that, if left unchallenged, could limit the rights, freedoms, and uses of the
sea and airspace recognized in international law.).
(96) See U.S. Department of Defense Instruction 4540.01, supra note22, para.3.c.(1)(b).
(97)It should be noted that, following Chinas announcement of the East China Sea ADIZ,
Chinas Ministry of National Defense issued a statement that attempted to clarify the scope and
legality of the new ADIZ. See Geng Yansheng, Ministry of National Defense spokesman, Statement On Chinas Air Defense Identification Zone, 3December 2013, available at http://news.
xinhuanet.com/english/china/2013-12/03/c_132938762.htm (last consulted 6March 2015) (asserting
that Chinas ADIZ is in line with international laws and conventions).
(98) U.S. Secretary of State John Kerry, Statement on the East China Sea Air Defense Identification Zone, 23November 2013, available at http://www.state.gov/secretary/remarks/2013/11/218013.
htm (last consulted 6March 2015).
(99)U.S. Secretary of Defense Chuck Hagel, Statement on the East China Sea Air Defense
Identification Zone, 23November 2013, available at http://www.defense.gov/releases/release.
aspx?releaseid=16392 (last consulted 6March 2015).

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jonathan g. odom

White House Press Secretary Jay Carney provided detailed responses to a

media queries on Chinas ADIZ announcement. On December2, Mr.Carney
noted We do not accept the legitimacy of Chinas requirements for operating
in the newly declared ADIZ.(100) On December3, he further stated, [T]
he U.S. Government does not accept or recognize Chinas newly declared
ADIZ.(101) He amplified that point, by then stating: Indeed, U.S. military aircraft have been instructed to continue to operate normally in the
area 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 Chinas East
China Sea ADIZ. First, Chinas 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 Chinas East China Sea

(100) See Mr.Jay Carney, White House Press Secretary, Daily Briefing, 2December 2013, available at http://www.whitehouse.gov/the-press-office/2013/12/02/press-briefing-press-secretary-jaycarney-1222013 (last consulted 6March 2015).
(101) See Mr.Jay Carney, White House Press Secretary, Daily Briefing, 3December 2013, available at
http://www.whitehouse.gov/the-press-office/2013/12/04/press-briefing-press-secretary-1232013
(last consulted 6March 2015).
(102) Ibid.
(103)See Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing, Washington, DC, 2December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218178.
htm (last consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S. Department of State,
Daily Press Briefing, Washington, DC, 3December 2013, available at http://www.state.gov/r/pa/
prs/dpb/2013/12/218257.htm (last consulted 6March 2015); Marie Harf, Deputy Spokesperson,
U.S. Department of State, Daily Press Briefing, Washington, DC, 4December 2013, available at
http://www.state.gov/r/pa/prs/dpb/2013/12/218329.htm (last consulted 6March 2015)
; Marie
Harf, Deputy Spokesperson, U.S. Department of State, Daily Press Briefing, Washington, DC,
6December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htm (last
consulted 6March 2015); Joint Chiefs of Staff Chairman General Martin E.Dempsey, U.S. Department of Defense Press Briefing, Pentagon Briefing Room, 4December 2013, available at http://
www.defense.gov/Transcripts/Transcript.aspx
?TranscriptID=5335 (last consulted 6March
2015); Mr.Jay Carney, White House Press Secretary, Daily Briefing, 5December 2013, available
at http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013
(last consulted 6March 2015); U.S. Secretary of Defense Hagel, Department of Defense Press
Briefing, Pentagon Press Briefing Room, 12December 2013, available at http://www.defense.
gov/Transcripts/Transcript.aspx?TranscriptID=5342 (last consulted 6March 2015); U.S. Secretary of State John Kerry, Joint Press Availability With Vietnamese Deputy Prime Minister and
Foreign Minister Pham Binh Minh, Government Guest House, Hanoi, Vietnam, December16, 2013,
available at http://www.state.gov/secretary/remarks/2013/12/218747.htm (last consulted 6March
2015); U.S. Secretary of State John Kerry, Remarks With Philippine Foreign Secretary Albert del
Rosario, Department of Foreign Affairs, Manila, Philippines, 17December 2013, available at http://
www.state.gov/secretary/remarks/2013/12/218835.htm (last consulted 6March 2015); U.S. Assistant Secretary of State Daniel R.Russel, Bureau of East Asian and Pacific Affairs, Washington
Foreign Press Center, Washington, DC, 4February 2014, available at http://fpc.state.gov/220927.
htm (last consulted 6March 2015).

ruled-based approach to airspace defense

87

ADIZ.(104) And, third, Chinas 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, 2December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htm (last
consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S. Department of State, Daily
Press Briefing, Washington, DC, 3December 2013, available at http://www.state.gov/r/pa/prs/
dpb/2013/12/218257.htm (last consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S.
Department of State, Daily Press Briefing, Washington, DC, 4December 2013, available at
http://www.state.gov/r/pa/prs/dpb/2013/12/218329.htm (last consulted 6March 2015); Mr.Jay
Carney, White House Press Secretary, Daily Briefing, 5December 2013, available at http://www.
whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013(last consulted
6March 2015); Mr.Jay Carney, White House Press Secretary, Daily Briefing, 5December 2013,
available at http://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretaryjay-carney-1262013 (last consulted 6March 2015) (We, the United States, do not recognize and do
not accept the newly announced East China Sea Air Defense Identification Zone.); Secretary of
Defense Hagel, Department of Defense Press Briefing, Pentagon Press Briefing Room, 12December
2013, available at http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5342 (last
consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S. Department of State, Daily
Press Briefing, Washington, DC, 6December 2013, available at http://www.state.gov/r/pa/prs/
dpb/2013/12/218491.htm (last consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S.
Department of State, Daily Press Briefing, Washington, DC, 12December 2013, available at http://
www.state.gov/r/pa/prs/dpb/2013/12/218670.htm (last consulted 6March 2015); U.S. Secretary of
State John Kerry, Joint Press Availability With Vietnamese Deputy Prime Minister and Foreign
Minister Pham Binh Minh, Government Guest House, Hanoi, Vietnam, 16December 2013, available at http://www.state.gov/secretary/remarks/2013/12/218747.htm (last consulted 6March
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 Foreign
Affairs Committee, 5February 2014, available at http://iipdigital.usembassy.gov/st/english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0 (last consulted 6March 2015); U.S. Secretary of State John Kerry, Remarks With Japanese Foreign Minister Fumio Kishida After Their
Meeting, Benjamin Franklin Room, Washington, DC, 7February 2014, available at http://www.
state.gov/secretary/remarks/2014/02/221459.htm (last consulted 6March 2015).
(105) Jen Psaki, Spokesperson, U.S. Department of State, Daily Press Briefing, Washington,
DC, 2December 2013, available at http://www.state.gov/r/pa/prs/dpb/2013/12/218178.htm (last
consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S. Department of State, Daily
Press Briefing, Washington, DC, 3December 2013, available at http://www.state.gov/r/pa/prs/
dpb/2013/12/218257.htm (last consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S.
Department of State, Daily Press Briefing, Washington, DC, 4December 2013, available at http://
www.state.gov/r/pa/prs/dpb/2013/12/218329.htm (last consulted 6March 2015); Mr.Jay Carney,
White House Press Secretary, Daily Briefing, 5December 2013, available at http://www.whitehouse.gov/the-press-office/2013/12/05/daily-briefing-press-secretary-1252013(lastconsulted
6March 2015); Mr.Jay Carney, White House Press Secretary, Daily Briefing, 5December 2013,
availableathttp://www.whitehouse.gov/the-press-office/2013/12/06/press-briefing-press-secretary-jay-carney-1262013 (last consulted 6March 2015); Marie Harf, Deputy Spokesperson, U.S.
Department of State, Daily Press Briefing, Washington, DC, 6December 2013, available at http://
www.state.gov/r/pa/prs/dpb/2013/12/218491.htm (last consulted 6March 2015); Secretary of
Defense Hagel, Department of Defense Press Briefing, Pentagon Press Briefing Room, 12December
2013, available at http://www.defense.gov/Transcripts/Transcript.aspx
?TranscriptID=5342
(last consulted 6March 2015); Commander, U.S. Pacific Command Adm. Samuel J.Locklear III,
Department of Defense Press Briefing, 23January 2014, available at http://www.defense.gov/
Transcripts/Transcript.aspx?TranscriptID=5354 (last consulted 6March 2015); U.S. Assistant
Secretary of State Daniel R.Russel, Bureau of East Asian and Pacific Affairs, Washington Foreign
Press Center, Washington, DC, 4February 2014, available at http://fpc.state.gov/220927.htm (last
consulted 6March 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

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The U.S. Governments opposition to Chinas East China Sea ADIZ has to
do with a number of factors, including ones unrelated to international law
such as the risk to regional stability and security. Yet, several fundamental
problems with that ADIZ involve its excessive nature under international
law. Ten days after China announced the new ADIZ, Chinas Ministry of
National 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, based
on international laws, of other countries aircraft.(106) Notwithstanding
that assertion, however, many of the requirements of Chinas ADIZ purportedly apply to aircraft flying the East China Sea Air Defense Identification Zone.(107) They do not distinguish between, on the one hand, aircraft
intending to enter the PRCs national airspace and, on the other hand, aircraft merely flying through the international airspace located within the
ADIZ without an intent to enter the PRCs national airspace. However,
a coastal State may not restrict the rights, freedoms, and uses of airspace
by aircraft operating in international airspace. Thus, as a matter of international law, these purported restrictions are excessive, thereby making it
an excessive maritime claim subject to challenge under the long-standing
U.S. FON Policy. It should therefore be no surprise that soon after China
announced the ADIZ, the U.S. military conducted previously scheduled

House Foreign Affairs Committee, 5February 2014, available at http://iipdigital.usembassy.gov/st/

english/texttrans/2014/02/20140206292403.html#axzz2uX5ouQV0 (last consulted 6March 2015);
U.S. Secretary of State John Kerry, Remarks With Japanese Foreign Minister Fumio Kishida After
Their Meeting, Benjamin Franklin Room, Washington, DC, 7February 2014, available at http://
www.state.gov/secretary/remarks/2014/02/221459.htm (last consulted 6March 2015).
(106)Geng Yansheng, Ministry of National Defense spokesman, Statement On Chinas Air
Defense Identification Zone, 3December 2013, available at http://news.xinhuanet.com/english/
china/2013-12/03/c_132938762.htm (last consulted 6March 2015).
(107) Announcement of the Aircraft Identification Rules for the East China Sea Air Defense
Identification Zone of the P.R.C., Xinhua News Agency (P.R.C.), 23November 2013, available
at http://news.xinhuanet.com/english/china/2013-11/23/c_132911634.htm (last consulted 6March
2015). 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 inquiries
from the administrative organ of the East China Sea Air Defense Identification Zone or the unit
authorized 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 instructions of the administrative organ of the East China Sea Air Defense Identification Zone or the unit
authorized by the organ. Chinas armed forces will adopt defensive emergency measures to respond
to aircraft that do not cooperate in the identification or refuse to follow the instructions.

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89

flights of aircraft through the ADIZ without acquiescing to any of the Chinas
announced requirements.(108)
VII. Freedom of Navigation
and Aircraft Intercepts
Are aircraft intercepts consistent with the freedom of navigation? They
can be, but only if they are conducted in the proper manner.
Since UNCLOS was concluded in 1982, the United States and a few coastal
States have expressed divergent perspectives on the scope of the freedom of
navigation. Yet for some of those coastal States, such as China, this might
reflect a fundamental difference in their perspectives on the underlying
concept of freedom itself.(109) Unfortunately, in the context of freedom
of navigation, some of these coastal States, such as China, have likewise
attempted to characterize undesirable exercises of U.S. freedom of navigation beyond its territorial seas as illegal.(110) Much like Chinas domestic
efforts to restrict undesirable exercises of freedom in the name of security,
China asserts that foreign military activities in and over its EEZ, including
portions of its EEZ located in the South China Sea, violate Chinas security
interests.(111)

(108) Thom Shanker, U.S. Sends Two B-52 Bombers Into Air Zone Claimed by China,
New York Times, 26November 2013, available at http://www.nytimes.com/2013/11/27/world/
asia/us-flies-b-52s-into-chinas-expanded-air-defense-zone.html?pagewanted=all&_r=0 (last
consulted 6March 2015) (reporting on U.S. military flights through Chinas East China Sea ADIZ
on November26, 2013 three days after China announced the ADIZ and quoting a senior U.S.
defense official who stated the mission was a demonstration of long-established international
rights to freedom of navigation and transit through international airspace.).
(109) See, e.g., Chinas Security State, The Economist, 10March 2011, available at http://www.
economist.com/node/18335099 (last consulted 6March 2015) (describing the significant increases
of the Chinese Governments annual budget for internal security due to concerns about domestic
protests against Government policies); contrast with Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J. dissenting) (opining that the proper way to protect freedom of speech is not to
restrict or prohibit the exercise of that freedom of speech, but rather to permit others to exercise
their freedom of speech, and enable the free trade in ideas and competition of the market);
Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan, J., concurring) (opining that the
freedom of speech is best served when all are allowed to speak and there is a marketplace of ideas).
(110) See, e.g., China Spokesman Gives Full Account On US-China Air Collision, Xinhua News
Agency (P.R.C.), 3April 2001, quoting Chinese Foreign Ministry spokesman Zhu Bangzao after
the collision of a U.S. Navy EP-3 aircraft and a Chinese fighter jet in international airspace (The
surveillance flight conducted by the US aircraft overran the scope of free over-flight according to
international law, he said. The move also violated the United Nations Convention on the Law of
the Sea, which stipulates that any flight in airspace above another nations exclusive economic zone
should respect the rights of the country concerned, he said.).
(111) Ibid., quoting Chinese Foreign Ministry spokesman Zhu Bangzao after the collision of a U.S.
Navy EP-3 aircraft and a Chinese fighter jet in international airspace (Thus, the US planes actions
posed a serious threat to the national security of China, he said.); Senior Captain Ren Xiaofeng
and Cheng Xizhong, A Chinese Perspective, Marine Policy, 2005, vol.29, p.139 (describing how

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Undoubtedly, a coastal State may identify security interests in the areas

approaching its territory. For example, in a region proximate to U.S. territory (i.e., the Arctic), the United States has stated that it has a broad and
fundamental national security interests.(112) At the same time, however,
that U.S. Arctic Region Policy opens with an overarching caveat that this
policy shall be implemented in a manner consistentwith customary international law as recognized by the United States, including with respect to the
law of the sea. Regarding security interests of coastal States, the negotiating
history of UNCLOS is clear: a handful of negotiating States attempted to
insert a reference to the coastal States security interests in the due regard
clause of the EEZ provision of the Convention, but that effort was roundly defeated during the negotiations.(113) Thus, coastal States such as the
United States and China might have a security interest in the airspace near
their respective national airspace, but they must find ways to legally protect
those security interests, without violating the freedoms of other States.
One proper way to preserve those interests without violating the freedom
of others is for coastal states to exercise their own freedoms. Of note, the
freedoms of navigation and overflight and other internationally lawful uses
of the sea reflected in UNCLOS are afforded all States, including to coastal States.(114) Just as a foreign military aircraft may conduct operations
or activities over the EEZ of a coastal State, a coastal State may conduct
military intercepts of foreign military aircraft operating in that same airspace.(115) In other words, aircraft intercepts and freedom of navigation can
be totally consistent. In fact, the U.S. military reserves and occasionally
exercises the right to intercept foreign military aircraft, such as those from
Russia, that are conducting operations in the airspace near U.S. national
airspace.(116)
military and reconnaissance activities in the EEZ and its superjacent airspace encroach or infringe
on the national security interests of the coastal State.).
(112) President George W.Bush, Arctic Region Policy, National Security Presidential Directive
(NSPD) 66, 9January 2009, available at http://www.fas.org/irp/offdocs/nspd/nspd-66.htm (last
consulted 6March 2015).
(113) Satya Nandan, Shabtai Rosenne and Neal R.Grandy, United Nations Convention on
the Law of the Sea 1982. A Commentary, vol.II, The Hague, Martinus Nijhoff Publishers, 1993,
pp.558560.
(114) UNCLOS, arts.58(1) and 87(1).
(115) Aeronautical Information Manual (AIM), supra note43, Chapter5, Section6 (National
Security and Interception Procedures) (11February 2011).
(116)See, e.g., Jim Miklaszewski and Courtney Kube, Russian nuclear bombers intercepted near Guam, NBC News, 15February 2013, available at http://worldnews.nbcnews.
com/_news/2013/02/15/16978049-russian-nuclear-bombers-intercepted-near-guam (last consulted
6March 2015) (reporting that U.S. Air Force F-15 fighter jets intercepted two Russian bombers that
circled the U.S. island of Guam in the Western Pacific); F-22 fighters intercept Russian military
planes 55miles off Alaska Fox News, 20September 2014, available at http://www.foxnews.com/
us/2014/09/20/f-22-fighters-intercept-russian-military-planes-55-miles-off-alaska/(lastconsulted
6March 2015) (reporting that two U.S. F-22 fighter jets intercepted six Russian military airplanes
that were flying about 55 nautical miles from the Alaskan coast).

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At the same time, the United States is committed to a just international

order that emphasizes not only the rights of each State, but also their responsibilities of each State.(117) Such responsibilities include the obligation
of all States to exercise due regard for foreign aircraft exercising their
lawful freedoms and uses over a coastal States EEZ. The negotiating history of UNCLOS shows that the standard of due regard requires all States
to refrain from activities that interfere with the exercise of other States
freedoms.(118) In particular, this means States are to comply with other
safety obligations like those reflected in the Convention on the International

(117)See, e.g., President Barack Obama, National Security Strategy (May 2010), available at
http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf(last
consulted 6March 2015) (Our engagement will underpin a just and sustainable international orderjust, because it advances mutual interests, protects the rights of all, and holds accountable those
who refuse to meet their responsibilities; sustainable because it is based on broadly shared norms
and fosters collective action to address common challenges. This engagement will pursue an international order that recognizes the rights and responsibilities of all nations.); U.S. Secretary of
Defense Robert Gates, Remarks by Secretary Gates at the Shangri-La Dialogue, International Institute for Strategic Studies, Singapore, 4June 2010, available at http://www.defense.gov/speeches/
speech.aspx?speechid=1483 (last consulted 6March 2015) (As a starting point, it is important to
remember that the success this region has enjoyed over the past several decades its unprecedented
economic growth and political development was not a foregone conclusion. Rather, it was enabled
by clear choices about the enduring principles that we all believe are essential to peace, prosperity,
and stability. These include our commitment to: Free and open commerce; A just international order
that emphasizes rights and responsibilities of nations and fidelity to the rule of law; Open access by all
to the global commons of sea, air, space, and now, cyberspace; and The principle of resolving conflict
without the use of force. Simply put, pursuing our common interests has increased our common security.); U.S. Secretary of Defense Leon Panetta, Remarks by Secretary Panetta at the Shangri-La
Dialogue in Singapore, 2June 2012, available at http://www.defense.gov/transcripts/transcript.
aspx?transcriptid=5049 (last consulted 6March 2015) (The first is the shared principle that we
abide by international rules and order. Let me underscore that this is not a new principle, our solid
commitment to establish a set of rules that all play by is one that we believe will help support peace
and prosperity in this region. What are we talking about? These rules include the principle of open
and free commerce, a just international order that emphasizes rights and responsibilities of all nations
and a fidelity to the rule of law; open access by all to their shared domains of sea, air, space, and
cyberspace; and resolving disputes without coercion or the use of force. Backing this vision involves
resolving disputes as quickly as possible with diplomatic efforts. Backing these principles has been the
essential mission of the United States military in the Asia-Pacific for more than 60 years and it will be
even a more important mission in the future. My hope is that in line with these rules and international
order that is necessary that the United States will join over 160 other nations in ratifying the Law of
Seas Convention this year.); U.S. Secretary of Defense Chuck Hagel, Remarks at International Institute for Strategic Studies, Shangri-La Dialogue, 1June 2013, available at http://www.defense.gov/
speeches/speech.aspx?speechid=1785 (last consulted 6March 2015) (This future can only be realized
if we work together to create an environment where all can prosper and succeed, and where coercion
and conflict are put aside in favor of open dialogue. This requires a continued commitment to certain
foundational principles that have enabled this regions success for generations. These include free and
open commerce; a just international order that emphasizes rights and responsibilities of nations and
fidelity to the rule of law; open access, by all, to the domains of sea, air, space, and now, cyberspace;
and the principle of resolving conflict without the use of force.).
(118) Nandan, Rosenne and Grandy, supra note106, p.86.

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jonathan g. odom

Regulations for Preventing Collisions at Sea (COLREGs),(119) the Chicago

Convention, and other internationally-developed safety standards like the
Code for Unplanned Encounters at Sea (CUES).(120)
In short, freedom of navigation and safety of navigation go hand in hand.
Freedom of navigation is at risk when a coastal State either authorizes or fails
to hold to account the crews of its military aircraft for unsafe navigational
practices that jeopardize the lives, property, and freedom of navigation of
aircraft from other States. Consequently, the United States has consistently
called upon other States to ensure their military aircraft maintain due regard
for U.S. military aircraft regardless of whether those foreign military aircraft are conducting aircraft intercepts(121) or they are the ones being intercepted.(122)
(119) Convention on the International Regulations for Preventing Collisions at Sea (COLREGs),
20October 1972, 28 U.S.T. 3459, 1050 United Nations Treaty Series 16, as amended by Amendments
to the International Regulations for Preventing Collisions at Sea, 19November 1982, 35 U.S.T. 575,
1323 United Nations Treaty Series 353.
(120) The CUES were developed and adopted by the Western Pacific Naval Symposium. A copy
of the CUES is available at http://news.usni.org/2014/06/17/document-conduct-unplanned-encounters-sea. The U.S. Secretary of the Navy has directed that all U.S. Navy forces operating at sea will
adhere to the CUES. See U.S. Secretary of the Navy, All Navy (ALNAV) Message 039/14, Implementation And Use Of Code For Unplanned Encounters At Sea, 20May 2014, available at http://
www.public.navy.mil/bupers-npc/reference/messages/Documents/ALNAVS/ALN2014/ALN14039.
txt (last consulted 6March 2015) (Therefore, all Department of the Navy forces that operate at
sea shall comply with CUES which will ultimately strengthen cooperation and safety between the
global network of navies encountering one another in international waters.). Additionally, the
U.S. Department of Defense and Chinas Ministry of National Defense signed a Memorandum of
Understanding that committed both militaries to follow the CUES in their encounters at sea and
in the airspace. See Memorandum of Understanding Between the Department of Defense of the
United States and the Ministry of National Defense of the Peoples Republic of China Regarding the
Rules of Behavior for Safety of Air and Maritime Encounters at Sea, 10November 2014, available
at http://www.defense.gov/pubs/141112_MemorandumOfUnderstandingRegardingRules.pdf (last
consulted 6March 2015).
(121) See, e.g., Jim Sciutto and Barbara Starr, U.S. official: Dangerous Russian jet fly-by
was straight out of a movie, Cable News Network, 4June 2014, available at http://www.cnn.
com/2014/06/03/world/russia-us-jet-fly-by/ (last consulted 6March 2015) (Reports an incident in
in which a Russian fighter jet buzzed dangerously close to a U.S. Air Force reconnaissance plane
over the Sea of Okhotsk on April23, 2014, by flying within 100 feet of the nose of the U.S. aircraft.
Quotes a Pentagon spokesman Colonel Steve Warren that the Russian fly-by put the lives of the
U.S. crew in jeopardy and described it as one of the most dangerous close passes in decades.);
Amaani Lyle, DoD Registers Concern to China for Dangerous Intercept, DoD News, Defense Media
Activity, 22August 2014, available at http://www.defense.gov/news/newsarticle.aspx?id=122997
(last consulted 6March 2015) (Describes an incident on August19, 2014, in which a Chinese fighter
jet conducted a dangerous intercept of a U.S. Navy P-8 Poseidon patrol aircraft over the Pacific
Ocean about 135miles east of Hainan Island in international airspace, by flying directly under and
alongside the P-8, bringing their wingtips to within 20 feet and then conducting a roll over the P-8,
passing within 45 feet. Quotes Pentagon spokesman Rear Admiral John Kirby as stating, We have
registered our strong concerns to the Chinese about the unsafe and unprofessional intercept, which
posed a risk to the safety and the well-being of the aircrew, and was inconsistent with customary
international law.).
(122)See, e.g., Brad Lendon, Russian bombers fly near California, Cable News Network,
13June 2014, available at http://www.cnn.com/2014/06/13/us/u-s-russia-military-flights/ (last
consulted 6March 2015) (Quotes Captain Jeff Davis, a spokesman for the North American Aero-

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VIII. Conclusion
As mentioned at the outset of this article, the United States is all too
familiar with the risk that airborne threats can pose to a nation. The critical
issue is how to rapidly identify potential airborne threats to the nation and,
once identified, effectively counter those threats but achieve both of those
objectives in a lawful fashion. To be sure, just as a nations constitution is
not intended to be a suicide pact,(123) so too is international law not
intended to be such a pact. International law recognizes that each nation
has an inherent right of self-defense, but that right is triggered by an armed
attack.(124) Merely because a threat could theoretically exist does not
mean that the rule of law must be abandoned. Moreover, merely because
one nation does not like it when another nation lawfully exercises its rights,
freedoms and uses of the sea and airspace does not mean that the disapproving nation may interfere with their exercise. This article has identified air
defense measures by which a nation may maintain its security and protect
itself, but only through a rules-based approach that does not abrogate the
rights, freedoms, and uses of the sea and airspace guaranteed to all nations
under international law.

space Defense Command (NORAD), who described U.S. intercepts of Russian military aircraft
near U.S. airspace as saying [The intercepted Russian aircraft] followed all the protocols, and it
was a very professional encounter on both sides. There was nothing that they were doing that was
contrary to international law.).
(123) See, e.g., Terminiello v. Chicago, 337 U.S. 1, 37 (Jackson, J., concurring) (The choice is
not between order and liberty. It is between liberty with order and anarchy without either. There is
danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will
convert the constitutional Bill of Rights into a suicide pact.; Kennedy v. Mendoza-Martinez, 372
U.S. 144, 159-160 (The powers of Congress to require military service for the common defense are
broad and far-reaching, for while the Constitution protects against invasions of individual rights, it
is not a suicide pact.).
(124)See Charter of the United Nations, 1 United Nations Treaty Series xvi, 26June 1945,
art.51.