Wednesday, April 4, 2001
International Law Favors 'Sovereign Immunity' for Plane, Experts Say
Accident: According to analysts, China appears to have no legal basis to hold the crew or seize equipment.
WASHINGTON--Chinese officials appear to have no legal basis for detaining crew
members or seizing electronic equipment on the U.S. spy plane that landed
in southern China after a midair collision, several American experts in
international law said Tuesday.
Accidents in international air or sea traffic, even those involving
military vessels, generally require nations to assist the victims and
keep hands off the stricken planes or ships, the experts said.
"If a government plane or ship goes down within the territory of
another country, it is entitled to sovereign immunity," said Phillip
Trimble, a UCLA professor of international law.
"Of course, the Chinese would say they didn't give consent to our
plane landing at their base," he said.
The official Chinese view of the midair collision Sunday between a
U.S. Navy EP-3 reconnaissance plane and a Chinese F-8 fighter jet--and
the key questions of sovereign immunity and national authority--is quite
different from the Bush administration's perspective.
U.S. military authorities, for example, said the American crew radioed
a mayday before landing. China disputes this fact and cites the plane's
failure to send a distress signal as justification for entering the
aircraft once it landed and for detaining the crew.
Chinese President Jiang Zemin charged Tuesday that the United States
violated international law when the spy plane entered Chinese airspace
without signaling for help and then landed at Lingshui military airport
on Hainan island.
And a spokesman for China's Foreign Ministry directly disputed the
U.S. position that the Navy plane is sovereign U.S. territory immune from
entry by the Chinese.
"If this plane is sovereign American territory, how did it land in
China?" spokesman Zhu Bangzao said. He asserted that China "has the right
to investigate the whole incident as well as the plane that caused it."
Most American legal experts, however, agreed that a key question is
the location of the U.S. plane when it was disabled by the collision:
over international waters or the territory of China. U.S. officials are
saying that the spy plane was about 65 miles southeast of China's coast.
"If that's true, that is going to be significant," said Laurence R.
Helfer, a professor at Loyola Law School in Los Angeles. "Beyond 12 miles
is considered international waters under terms of the Law of the Sea
treaty accepted by most countries, and there is no prohibition on spying
[from there]. If you're over Chinese territory, they [the Chinese] do
have sovereign rights."
However, China previously has confounded neighboring nations,
including Vietnam and the Philippines, by claiming sovereignty over the
entire South China Sea--a position termed "outrageous" by Barry E.
Carter, a professor of international law at Georgetown University and
former staff member on the National Security Council.
"No other nation accepts such a claim," Carter said, adding that the
U.S. routinely permits Russian trawlers with sophisticated electronic
gear to patrol waters beyond 12 miles off the Norfolk, Va., naval base
and near Pearl Harbor.
"The Russians do this, and we accept it," he said. "There's nothing
illegal about spying in international waters or in the airspace over
Trimble agreed, saying that "international law is pretty simple on
most of these points, even though factual situations can be somewhat
"The general rule," he said, "is there is freedom of the high seas and
the airspace over it. If the plane was over the high seas, China had no
right to interfere with it or force it to land, and once it landed, they
would be under an obligation to remedy that and release the crew."
In 1972, the U.S. and Russia entered into an agreement to try to avoid
accidents involving military planes and ships, authorities said.
"If mishaps occurred, they agreed to notify each other and talk about
it," Carter said. But the U.S. has no such agreement with other
countries, he added.
He said the Law of the Sea treaty "provides that a warship, wherever
it is, is immune from being boarded absent a declaration of war. You
don't board them if they stray into your waters. You say, 'Get out of
here, we don't want you,' and you file a diplomatic protest. The same
would be true of warplanes."
Other experts agreed that the prohibition against boarding military
vessels in such circumstances would make it illegal for China to
confiscate the high-tech gear on the spy plane.
Ruth Wedgwood, an international law professor at Yale University, said
the Law of the Sea treaty signed by China in 1996 provides, among other
things, that "armed vessels cannot be searched."
Under terms of the treaty, she said, "there is no more sovereign
entity than your own warship. It is analogous to your own embassy or
On whether China has the right to inspect the plane, spokesman Zhu
said: "As the victimized country, the country in which the accident
occurred, and the country in which the plane that caused the accident
landed, China has the right to investigate the entire affair, including
Carter said the plane's 24 crew members "are military officers.
They're not spies; they're not illegal immigrants or drug suspects. They
should be released and directly sent home."
John Quigley, a professor at Ohio State University specializing in
international law, said the Bush administration was correct in demanding
that U.S. consular officials have contact with the U.S. crew members.
However, Quigley, who has written law review articles on the rights of
foreigners in U.S. custody, declared that American officials often ignore
granting the same privileges in criminal cases.
"That procedure is routinely ignored by U.S. law enforcement. . . ,"
Quigley said that "there are about 70 such individuals currently on
death row. Germany is currently litigating a case involving two Germans
who were executed [in Texas in recent years] but not told at the time of
their arrest that they could contact the German consul."
Copyright 2001 Los Angeles Times