International Law Favors ‘Sovereign Immunity’ for Plane, Experts Say
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 those waters.”
Trimble agreed, saying that “international law is pretty simple on most of these points, even though factual situations can be somewhat complicated.”
“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 diplomatic pouch.”
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 the plane.”
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. . . ,” he said.
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.”