중국 ADIZ의 국제법적 해석과 동북아 안보에서의 함의

Discussions about ADIZ started first from UNCLOS, and its demand was originated from the need to ensure the national security against threats of the technology development. Therefore, although there are differences in legal interpretation and acceptance of ADIZ and UNCLOS among the international community, their motivations and attempts to establish the norm share the same root. China established Air Defense Identification Zone (ADIZ) in the 1950s, for the same purpose as those of some other countries that had established it in order to ensure the security interests of their airspaces. Internationally, approximately 30 countries have established and operated the ADIZ but there are no unified regulations as to how to establish it except individual countries’ security needs and capabilities. It seems that ADIZ established by individual countries are generally approved by other countries and international organizations without particular objections from other countries or international organizations. Some countries do not have their own ADIZs, but may have similar alert systems. With regards to the establishment of ADIZ, there still are contradicting views: some claim that establishing ADIZ itself is a violation of the international law due to the absence of clear provisions in the international law and the others claim that it makes it possible to acknowledge the validity of international law according to individual country’s national security needs. Establishment of Chinese ADIZ (the CADIZ) in 2013 seems to be founded on Article 51 of the UN Charter and the rights of coastal countries in EEZ as provided in the UNCLOS. Article 51 of the UN Charter provides that all countries are entitled to the enjoyment of "their own right of self-defense," and China has expressed that their ADIZ was established as a precautionary measure against the "potential infringement of its own rights by foreign aircraft." China also claims, based on Article 56 and Article 301 of the UNCLOS, that a country's aircraft should not threaten the national security, peace and order of coastal countries even when it enjoys its freedom of flight over the EEZ of another country and, if the aircraft does not take the right of such coastal countries into consideration, it is the abuse of the freedom of flight in the airspace. Another legal basis for the CADIZ can be found in Article 56 Paragraph 2 "residual rights" in the UNCLOS. In accordance with the relevant provisions of the Convention, establishing ADIZ is not a violation of the Convention unless it interferes with the freedom of flight in the airspace of non-coastal countries, but it rather should be considered as a legitimate exercise of the residual rights in the EEZ. Furthermore, based on Article 58 Paragraph 3 of the Convention, which provides that "in exercising its rights according to this Convention and fulfilling its responsibilities in the EEZ, countries shall have due regard to the rights and duties of the coastal countries and, unless it is contradictory to this Paragraph, they shall comply with the laws and regulations adopted by the coastal countries in accordance with the provisions of this Convention and other international regulations," China insists that enjoying the freedom of flight over the EEZ of the coastal countries is not the "absolute right" of all countries but a "relative right" that takes the "rights of the coastal country" into consideration and that its establishment of the ADIZ can be interpreted as an act of controlling the sky within the scope provided by the Convention. China's setting of the overlapping zone cannot be regarded as a violation of the international law in that China followed the same unilateral declaration as that of the neighboring countries and there is no prohibitory provision in the international law. However, there is room for some conflicts to be reignited regarding the violation of international law, depending on the degree of defensive measures that China may take in the process of operating the ADIZ in the future. The spatial boundary of the CADIZ is limited to the East China Sea but some part is set to overlap with KADIZ and JADIZ. On the other hand, though there is a variety of interpretations about whether the CADIZ includes the airspace over fishing zones which are involved in territorial disputes, the airspace over fishing zones are excluded from the discussions about the AIDZ in that the CADIZ has been established clearly for the airspace outside the territorial waters. This can also be interpreted as that there is no legal benefit for China in establishing separate ADIZs when China claims sovereignty. In response to China's ADIZ settings, Korea announced a newly regulated KADIZ in match with FIR, through "Korea Air Defense Identification Zone Regulation Plan" on December 8, 2013. It is positive that the ADIZ is made to be matched with FIR in the East China Sea, in the sense that it is to comply with the internationally recognized traffic order and it can ensure the objectivity of the external legitimacy and space settings. However, it is deemed necessary to develop the policy response of the future KADIZ reflecting the complex state of affairs in the Northeast Asia and the geopolitical situation of the Korean Peninsula. In other words, in expanding the KADIZ and coordinating it with ADIZs of neighboring countries, political decisions need to be made first with respect to whether its purpose is to comply with or maintain the original intent and legal nature of each country’s ADIZ or to disarm or minimize the ADIZ. Korea is located in a region where there are marine-hegemonic conflicts between China and the United States, between China and Japan, or among China, Japan and the USA collide with each other. For this reason, it is impossible to have actual benefits of regulating the KADIZ in ensuring the fundamental safety from the national security risks, other than avoiding the collision between pre-established airspace limits and securing active responsiveness to the potential conflicts. The ADIZ of the airspace each county may cause an inevitable overlapping and it is very much likely that the outside of territorial waters of three countries of Korea, China and Japan, that is the entire EEZ sky, becomes an “airspace” of collision with virtually no buffer zone. Therefore, in the long term, it is necessary to establish policies to check the potential armed conflicts in the international community, which may be brought by the EEZ sky made into “territorial sky” in the Northeast Asia, to minimize the overlapped airspaces associated with military expansion, and to avoid the excessive control over the airspace of the coastal countries.