- The Washington Times - Wednesday, April 4, 2001

China has no legal right, under international agreements accepted by both China and the United States, to detain the crew or to enter the U.S. spy plane that was forced to land on Hainan Island, international legal scholars said yesterday.
Under one treaty signed by both nations, each is required to assist a damaged aircraft and thus, the spy plane could not be considered to have entered China illegally, analysts said.
"It seems the plane had the right to land under 'force majeure' " in order to deal with an incident beyond its control, such as damage from colliding with the Chinese chase plane," said Georgetown University law professor Anthony Clark Arend.
"Under the 1944 Chicago Convention on International Civil Aviation, China and the United States are parties which 'undertake to provide such measures of assistance to aircraft in distress in its territory as it may find practicable,' " said Mr. Arend, citing the convention.
"One could argue that the Chicago convention only applies to civil and not military aircraft. But given the concept of force majeure it is not unreasonable to apply it to military planes because of distress.
"I think there is a right to land if it is in distress" said Mr. Arend, citing both the Chicago convention and the more recent Law of the Sea Treaty.
In another legal twist to the 3-day-old spy-plane standoff, China further claims it has the right to search the plane and detain the crew because it was conducting spying operations inside Chinese airspace.
This indicates China is reasserting its claim to much of the South China Sea a claim that has already led to Chinese naval clashes with Vietnam and the Philippines, which are among six countries claiming portions of the sea.
Chinese President Jiang Zemin said the EP-3E spy plane violated international law and intruded into Chinese airspace with its emergency landing.
"The responsibility fully lies with the American side" for the collision with a Chinese jet, he said.
Washington and Beijing look certain to continue arguing over who was responsible for the aerial collision.
But Yale University law professor Ruth Wedgwood said the plane had a right to land safely and to remain immune from search.
"There is a traditional right of safe harbor in distress. So when the plane lands because of engine problems or hurricanes it's as if the plane isn't there. This goes back to the 19th century and earlier maritime law.
"And if they called in a distress, that's a super-duper case of no right to go into the plane, especially if they were responsible for the plane having to make a forced landing."
China asserts the large, propeller-driven Navy surveillance plane was damaged when it intentionally rammed one of two Chinese F-8 jets sent to intercept it.
U.S. officials say no such move was intended and the swifter, smaller Chinese fighter jet was required to give way before the slower heavier U.S. plane.
Interception flights are commonly carried out as countries send off planes to monitor foreign surveillance flights carried out in legal airspace at least 12 miles off shore.
In recent weeks, however, U.S. officials had complained that the Chinese pilots were crowding the U.S. planes.
Chinese officials and government-controlled news media have raised several objections to the plane's landing without permission as justification for taking control of the crew and aircraft.
They have claimed the plane entered Chinese airspace illegally without permission, that it conducted spying within Chinese airspace and that it was responsible for colliding with the Chinese jet, which was subsequently lost at sea.
Said George Washington University law professor Raj Bhala: "I understand the plane is part of the United States and they can't board it. If they have, they have already violated the sovereignty of the United States.
"But the Chinese don't see it this way. They are saying the aircraft came into our airspace and this is a military aircraft and it was conducting unauthorized operations in our airspace. So we have a right, almost self-defense, to question the crew and to board the plane and examine what's going on in the plane.
"They are not seeing this as happening in international water or seeing it as a sovereignty issue."
Key to the legality may be China's claim disputed by the United States and China's neighbors to millions of square miles of the South China Sea.
China insists that the whole area running more than 1,000 miles distant from China's coastline is traditional Chinese territory. It also stakes its claim to the sea on the basis of claims that it owns the Spratly Islands, clusters of reefs and atolls astride the main shipping lanes bringing oil tankers from the Persian Gulf to Japan and Northeast Asia.
However parts of the Spratlys are also claimed by Vietnam, the Philippines, Taiwan, Malaysia and Brunei.
Since 1988 China has clashed with Vietnam and the Philippines over possession of the reefs.
U.S. officials say the plane was operating 60 miles off the coast of China's Hainan Island far beyond the 12-mile territorial limit from which foreign ships and planes are subject to Chinese law under the Law of the Sea Treaty, which China has ratified.
The United States has not yet ratified the treaty but largely observes its rules.
Beijing has also claimed that the plane was conducting illegal activities by surveillance within the 200-mile economic zone off its shores granted by the Law of the Sea Treaty.
However experts said that collecting data and spying is not forbidden in the 200-mile zone.
The treaty explicitly allows for armed warships to travel through the zone, provided its activities are not "prejudicial to the peace, good order or security" of the country that has stewardship over the zone, according to the National Council for Science and the Environment.
Japan criticized China for having its warships and research vessels encroach on Japan's zone in August. China stopped short of promising that it would not happen again.
Staff writer Carter Dougherty contributed to this article.

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