The Corner

Obama’s Surrender Reaches the East China Sea

Here’s another example of how dangerous the Obama administration’s timid foreign policy can be. The Chinese declare a new Air Defense Identification Zone (ADIZ) over a portion of the East China Sea that includes islands which currently belong to Japan. The U.S. rightly flies a pair of B-52s right into it, and announces that our warplanes will not comply. So far so good. But there’s another problem: The Chinese declaration requires all transiting private aircraft to identify themselves, their destination, etc.

Unlike the Japanese, who immediately forbade their private air carriers from obeying the Chinese order, the U.S. has advised its commercial pilots to comply. Explaining the decision, the State Department issued the following masterpiece of misdirection

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

The statement is misleading in two ways.

First, NOTAMs issued by foreign governments virtually never exceed the territorial or personal jurisdiction of those governments, unless the government is trying to cause an international incident, because a NOTAM that exceeds the country’s sovereign jurisdiction can be considered a hostile act. The State Department wants people to think that the Chinese demand is just a NOTAM like any other, but it’s not. See for yourself: The latest compilation of international NOTAMs can be found in Part III of this monthly FAA publication: None of them apply to foreigners outside a country’s territorial airspace.

And second, for the U.S. government to “advise” private aircrews flying in international airspace that they must comply with Chinese orders outside Chinese jurisdiction certainly does constitute “U.S. government acceptance of China’s requirements.”

The State Department is denying the obvious and hoping nobody will notice, just as it did when it recognized Iran’s right to enrich uranium in Geneva last week and then tried to deny that. 

This is yet another destabilizing retreat for U.S. influence. And there will be others like it, because the people running U.S. foreign policy now clearly have no understanding of how important U.S. influence is to the maintenance of peace and security around the world, and may in fact think that U.S. influence is harmful.

The most dangerous aspect of the U.S. reaction is that we are caving in on a norm of respect for international waters and international airspace that is absolutely vital for global peace and security. When the Chinese declare that foreign military vessels are not permitted in the Yellow Sea, not even in international waters, the U.S. is forced to respond by sending naval vessels into the Yellow Sea — not to be hostile, but precisely in order to avoid hostilities. To do otherwise would be to accept an exception to the cardinal principle of freedom of the seas, the most longstanding of America’s foreign-policy priorities. Such an exception could only lead to dangerous confusion and to other states’ seeking their own exceptions, further degrading a vital norm of international relations.

A country’s actions have a real impact on the evolution of customary international law, and hence on governments’ expectations of what others will do. That is why our rights under customary international law need to be constantly safeguarded. Fail to defend those rights when challenged, and they will slip away, even as you invite further challenges.

The right first thing to do in response to China’s declaration of this provocative Air Defense Identification Zone was to fly U.S. military planes right into it, and thankfully we did.

But the Japanese realized that part of China’s purpose here is to start bending the relevant international norms by influencing private behavior. When Japanese air carriers started complying with the Chinese order, the Japanese government quickly ​forbade them from continuing to comply. That was a bold stance, and the U.S. was practically treaty-bound to stand in lockstep with it.

Instead, however, the U.S. has decided to leave our Japanese allies hanging out on a limb so that we can back off protecting the international rights of our own citizens. Speaking on Japanese national television Sunday, Yukio Okamoto, a former senior Japanese foreign ministry official, lamented the U.S. move. “I can’t think of any case like this in the past where the U.S. took a step that hurt Japan’s interests over an issue related directly to Japan’s national security in a way visible to the whole world,” he said.

This craven surrender quite nullifies the demonstration of B-52s, whether the goal was to reinforce international law or the delicate balance of power in the western Pacific.

Splitting these diplomatic babies in the supposed interests of pacifism and even-handedness is not nuanced or sophisticated. It is dangerous and destabilizing. The right thing to do now is to be clear: We will not accept unilateral changes to the freedom of the seas or international airspace under military threat, period. Otherwise, if we make this concession to the Chinese, they will demand another, and another, and soon enough private Americans on China’s periphery will find their international rights increasingly abandoned by the U.S. government to the unilaterally expanding jurisdiction of China, even where international law clearly refutes China’s claim of jurisdiction, and our allies are counting on us to at least stand up for our own citizens. ​

It is heartbreaking to witness such a great and noble power embrace such a defeatist and cowardly role in international affairs, from one end of the world to the other.

Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

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