News-Info-Alerts

To: ALL

From: Andi Wolos & Bob Necci

(POW-MIA InterNetwork)

Re: Status Unclear

Date: April 04, 2001

The current situation in China brings back memories of Francis Gary Powers and the May 1960 U-2 loss. Please read -

http://www.aiipowmia.com/koreacw/powers.html

and for Cold War shoot down incidents -

http://www.aiipowmia.com/koreacw/cw1.html

"Legal status of U.S. spy plane unclear
By ELI J. LAKE

WASHINGTON, April 3 (UPI) -- Despite U.S. government claims that the Chinese are breaking international law by entering the spy plane that made an emergency landing on their territory over the weekend and detaining its crew, the actual situation is more confused, according to international legal scholars Tuesday.

The Navy EP-3 surveillance aircraft collided Sunday with a Chinese fighter jet sent to intercept it. The U.S. plane made an emergency landing at a Chinese military base on Hainan Island in the South China Sea, provoking a tense diplomatic standoff between Beijing and Washington. The Chinese F8 fighter jet and its pilot are still missing.

U.S. officials have restated their view repeatedly that military aircraft have sovereign immunity under international law and practice, and have made that view clear to the Chinese.

That means that by entering the aircraft and detaining its 24-person crew, the Chinese would be violating the sovereign territory of the United States, adding to the tension that has defined the relationship between Washington and Beijing since last month, when President Bush refused to give visiting Chinese Vice Premier Qian Qichen assurances that the United States would not sell high-tech warships to Taiwan.

"This is like infringing the security of an embassy or consulate," said former State Department legal adviser Monroe Leigh in an interview with United Press International.

Under customary international law, the body of international codes not enumerated in treaties, vessels in distress still enjoy sovereign immunity when they are forced to land or dock in another country's territory.

In the United States, this was established in an early 19th century Supreme Court opinion, known as the Scooner Exchange Incident. Under that ruling, a French warship was forced to dock in Philadelphia because of particularly stormy seas. Justice John Marshall ruled that the consent to land was implied when the port took in the ship, thus protecting its sovereign immunity.

Leigh, a member of the Secretary of State's Advisory Committee on Public International Law, said that unless the plane was infringing on Chinese territory or national waters, then Beijing gave implied consent to the plane that it was an official vessel of the United States when it was forced to land in Hainan on Sunday.

"But If the airplane had violated the territory of China," he said, "it would be a different story."

And therein lies the rub. China and the United States vehemently disagree on whether the spy plane violated Chinese airspace -- a dispute which has escalated into a war of words between the two governments.

"Our plane was flying over international water and international airspace," U.S. Secretary of State Colin Powell told reporters Tuesday. "Their planes were flying over international water and international airspace ... an accident took place and the pilot in order to save 24 lives, including his own -- under circumstances it has been determined must have been hair-raising -- safely got that plane on the ground."

Under these facts, the United States has an open-and-shut case. The Chinese "would have to respect the sovereign immunity of the aircraft," said Michael Matheson, professor of international relations at the Johns Hopkins University School of Advanced International Studies.

However, for their part, the Chinese claim that the plane was in violation of international law, even before the collision.

"The surveillance flight ... overran the scope of 'free over-flight' (allowed by) international law," Chinese Foreign Ministry spokesman Zhu Bangzao told China's state-run Xinhua news agency Tuesday.

According to Zhu, the Chinese position is based on their claim that the South China Sea, where the collision took place, is its "exclusive economic zone," where they say international law dictates that over-flights "should respect the rights of the country concerned."

If in fact the plane entered China's airspace without permission, then China would have a right to inspect, according to Matheson. "If a military aircraft deliberately intrudes into your territory without being under distress, then presumably you could take action to force it to land and then inspect it."

Moreover, the Chinese say that, because the U.S. plane caused the collision, it had no right, even though it was damaged, to land at the Chinese base without permission.

"In violation of international law and practice, the U.S. plane bumped into our plane, invaded the Chinese territorial airspace and landed at our airport," Chinese President Jiang Zemin said Tuesday.

Powell flatly refuted these claims Tuesday. "The suggestion is well gosh he didn't get out his Jepson flight manual and find the right frequencies and call ahead he had an emergency," he said. "This youngster was trying to save 24 lives and his plane and he did that."