International law experts give U.S. edge in dispute

Plane's sensitive contents now focus

April 04, 2001|By Jay Hancock | Jay Hancock,SUN NATIONAL STAFF

WASHINGTON - The United States holds the legal high ground in its dispute with China over Sunday's midair collision and subsequent detention of an American spy plane and its crew, several specialists in international law said yesterday.

But as past incidents have shown, possession really can be nine-tenths of the law where impounded military hardware is concerned. And being legally correct for Washington isn't the same thing as getting a favorable foreign-policy outcome.

Since Sunday, when a Chinese F-8 fighter and a Navy EP-3E intelligence plane collided, Washington and Beijing have peppered each other with conflicting legal assertions in what foreign policy analysts said are attempts to claim moral authority in the eyes of world opinion.

Washington contends that the downed plane, now sitting at an airport on Hainan Island with broken propellers and crushed nose cone, is legally immune to tampering or inspection by Chinese authorities.

Beijing is signaling, essentially, "finders keepers." And history isn't encouraging.

In 1968, North Korea seized the spy ship USS Pueblo, releasing the crew after 11 months but keeping the ship and turning it into a museum. And in 1976, the pilot of a Soviet MiG-25 jet fighter defected to Japan. Moscow demanded the plane's return, and U.S. and Japanese officials acceded - after taking nine weeks to disassemble and inspect it.

U.S. officials also contend that the plane was well over international waters in the South China Sea, adding privately that it would have been almost impossible for the lumbering, prop-driven craft to move too quickly for nimble, supersonic jets to get out of the way.

Beijing claims the Navy plane caused the midair collision by veering into the Chinese fighter and then landing at Hainan without alerting Chinese air controllers. In any event, China adds, the U.S. plane entered its airspace unjustifiably.

Not so, said John Norton Moore, who represented Washington in law-of-the-sea negotiations in the 1970s and is now director of the Center for National Security Law at the University of Virginia.

"This was a perfectly normal operation by the United States," Moore said. "This is clearly a setting in which the United States acted lawfully and China unlawfully. I would argue that there is clear international legal responsibility on the Chinese for the damage to the U.S. plane and for the violation of international law."

U.S. airborne monitoring of China's coastline is a long established practice that doesn't violate Chinese sovereignty under well-accepted international law, Moore said, and China was apparently at fault in the incident.

The 1982 United Nations convention on the Law of the Sea, signed by China, established a 12-mile sovereign ribbon along each country's ocean coastline. China apparently doesn't dispute Washington's statement that the planes collided about 70 miles south of China's Hainan Island.

Beijing's complaints against Washington may be based on its extended territorial claims in the South China Sea, which aren't recognized by the international community. China claims the Paracel Islands off Vietnam, for example, which are slightly south of where the planes collided.

Some legal specialists suggested that the Navy should have been more sensitive to China's extended claims in the region.

"This was a spy mission. The plane was flying in disputed airspace," said Francis Boyle, a professor of international law at the University of Illinois. "China has always made a claim to the Paracel Islands. That's very well known."

International law recognizes the need for crippled ships or aircraft to seek the nearest refuge, regardless of sovereign boundaries or prior permission. Although the Navy plane's surveillance mission distinguished it from, say, a disabled civilian jetliner, Beijing has little standing to protest its emergency arrival on Hainan Island, said Scott Silliman, director of the Center on Law, Ethics and National Security at Duke University.

"That aircraft clearly was entitled to land," Silliman said, whether or not it notified Chinese authorities in advance. U.S. officials have said they don't know whether there was radio contact with the ground before the plane landed.

Washington also has legal standing to demand that Chinese authorities stay away from the top-secret plane, experts said.

Chinese foreign ministry spokesman Zhu Bangzao ridiculed alleged American assertions that the plane was U.S. sovereign territory, saying, "If this plane is sovereign American territory, how did it land in China?"

In fact, no U.S. official has used that phrase, although numerous news organizations have employed it in attempts to explain the U.S. position, and former Secretary of State Madeleine K. Albright used the same words.

Washington has instead claimed "sovereign immunity" for the aircraft, a well-established standard that would, for example, protect a visiting diplomat's plane from unauthorized inspection by local government officials.

But as the cases of the USS Pueblo and the Soviet defector to Japan demonstrated, sovereign immunity is often of little help when classified military hardware falls into the wrong hands.

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