The interconnectivity of civil aviation has been long praised with the success of the International Civil Aviation Organization (ICAO) in harmonizing navigation standards and procedures, along with the utilization of Flight Information Regions (FIRs). However, continuing geopolitical tensions with different implementations of Air Defense Identification Zones (ADIZs) have belittled the technical achievement. Among different State practices, some ADIZs have expanded beyond territorial airspace and even overlapped with other FIRs, requiring overflying air- craft to submit flight plans and abide by procedures separate or in addition to air traffic control obligations.
The purpose of this Article is to review the ongoing political tensions that are common in issues with ADIZs beyond territorial airspace and to explore different legal schemes put forth by States. While there is no prevailing rule of law that defines the scope and procedure of ADIZs, this Article further revisits the due regard principle under international law and State practices beyond territorial airspace. Due to its reciprocal characteristic, this principle does not solely advocate for the coastal State to arbitrarily put limitations on the freedom of flight beyond its territorial airspace. Rather, the established FIRs have already given considerable certainty and accountability to the overflown State, where the principle also directs both the overflying and overflown States to actively engage in communication and practices involving liaisons. This principle envisions regional confidence-building measures on aerial communication and the technical leadership of ICAO to support these States in reducing the relational gap and facilitating civil–military cooperation.
Sanghoon Lee, Back to Air in Disarray?: Disparity in Practices and Interpretations on ADIZs Disrupting the Safety of Civil Aviation,
J. Air L. & Com.