The mid-air collision on April 1, in which a US spy plane bumped into and destroyed a Chinese fighter jet near south China's island province of Hainan was a gross violation by the United States of China's sovereignty over its territorial sky and territories, and a serious breach of international law. The United States has made various excuses in an attempt to shirk its responsibility. But law has the final say.
Sky Over Chinese Exclusive Economic Zone Not International Airspace
The US government has claimed that its plane was flying in so-called "international airspace," and therefore could do anything it liked there. Such a claim is groundless. The so-called "international airspace" usually refers to the sky above the High Seas. The air collision took place above China's exclusive economic zone near Hainan Island, which is not at all "international airspace."
The United Nations Convention on the Law of the Sea clearly stipulates in its Article 86 that the High Seas refer to all parts of the sea "that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state.” Since the convention became effective in 1982, the exclusive economic zone has no longer been a part of the High Seas; the sky above it is therefore not "international airspace".
Although the convention stipulates in Section 1 of Article 58 that all states enjoy the "freedom of overflight" in the exclusive economic zone, Section 3 requires all states, in exercising their rights, to "have due regard for the rights and duties of the coastal state and comply with the laws and regulations adopted by the coastal state in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."
"Having due regard to the rights and duties of the coastal state" here is as provided in Article 301: that in exercising their rights and performing their duties under this Convention, state parties "shall refrain from any threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations."
This means that foreign airplanes shall neither infringe upon the sovereignty and national security of the coastal state, nor engage in any unlawful activity including spying on military secrets of the coastal state, which is incompatible with the "freedom of overflight," nor harm the territorial integrity, peaceful order and political independence of the coastal state.
In addition, Article 58 of the convention stipulates that the coastal state may formulate laws and rules concerning the exclusive economic zone which are ``not incompatible with this Part.” Also, in accordance with Article 56, the coastal state enjoys relevant rights, jurisdiction and duties in the exclusive economic zone as well as other rights and duties provided for in this Convention.
In a word, the laws and rules of the coastal state concerning the exclusive economic zone and the all rights, jurisdiction and duties of the coastal state in the exclusive economic zone should also apply to the sky above. All these provisions of the UN Convention on the Law of the Sea have already been established as a code of international conduct and apply to all countries whether they ratify the treaty or not.
China's domestic legislation and related law on international civil aviation also make the point clear. Article 11 of the Law of the People's Republic of China on the Exclusive Economic Zone and Continental Shelf formulated in 1998 stipulates that any state, subject to international law and the laws and regulations of the People's Republic of China, enjoy the freedoms of navigation and overflight in the exclusive economic zone of the Peoples Republic of China.
It is thus evident that if a foreign plane does not observe Chinese laws and regulations while flying over China's exclusive economic zone, it violates the principle of ``freedom of overflight," and China has the right to take necessary actions against it including “depriving it of the freedom of overflight.” This is quite different from the “freedom of overflight” over the High Seas. The case will be more serious if the violator is a military aircraft.
According to Sections 2 and 3, Article 3 of the Convention on International Civil Aviation concluded in Chicago in 1944, all military aircraft are state aircraft which, without special authorization, shall not fly over or land on the territory of another party.
Traditional practice shows that the coastal state has the right to follow the tracks of a foreign military plane, and even intercept it long before it enters its territory. It is a pedantic and naive view that the flight of a foreign military plane even along the border of territorial sea is "legal" as long as it does not intrude beyond the outer boundary of the territorial sea.
The US plane which rammed the Chinese fighter and caused it to crash was a military reconnaissance plane equipped with sophisticated electronic reconnaissance equipment and special personnel for gathering military intelligence. It was able to detect military secrets in the hinterland of China. According to the Rules of Air Warfare, such covert or disguised action of stealing from above the territory of another state its military secrets constitutes espionage.
The United States has wantonly trampled on the sovereign rights of other countries over their territorial space under the pretense of ``freedom of overflight.” However, it puts its own sovereignty over territorial skies under top protection.
To protect its national defense, since 1950 the United States has promulgated regulations establishing Air Defense Identification Zones (ADIZs) which extend at some points several hundred miles beyond its territorial sea. Foreign aircraft entering ADIZs are required to file flight plans and to make periodic position reports. If such an aircraft violates the relevant rules, it will be ordered to leave immediately.
Restatement of the Law· The Foreign Relations Law of the United States written by more than 60 scholars of the American Law Institute in 1987, states, “The United States has established air defense areas, air dense identification zones, and for Alaska a distant early warning identification zone (DEWIZ). Some of these zones extend several hundred miles into the sea. Pilots entering these zones are obliged to report promptly and supply specified data to the United States authorities; a foreign aircraft not complying with this requirement is not permitted to enter the air space of the United States. "
It is obvious that the United States has already extended its air defense area far above the High Seas (the concept of exclusive economic zone was non-existent at that time). But it demands the “freedom of overflight” in similar areas of a foreign country. Such a double standard mirrors its hegemonic face.
US Contention of Averting Emergency Because of "Irresistible Force" Not Tenable
One thing must be pointed out: It was 20 minutes between the air collision and the American plane landing. The American plane had enough time to notify the Chinese authorities and ask to land at a Chinese airport. It, however, entered Chinese territorial airspace and landed at a Chinese military airport without authorization, seriously encroaching upon Chinese territorial sovereignty.
Article 1 of the Paris Convention on the Regulation of Aerial Navigation, signed in 1919, stipulates that "the contracting states recognize that every state has complete and exclusive sovereignty over the airspace above its territory." Based on this principle, the convention stipulates that military planes of a signatory to the convention cannot make unauthorized flights over or land on the territory of another signatory.
The Convention on International Civil Aviation not only sets the same rule, but also clearly differentiates civil airborne vehicles from military ones. According to Article 3, "No state aircraft of a contracting state shall fly over the territory of another state or land thereon without authorization by special agreement, or otherwise, and in accordance with the terms thereof." It has been a set rule that foreign military planes cannot enter the territorial airspace of another country. Violation of this rule is deemed encroachment upon the territorial sovereignty of a country, which has the right to curb this encroachment by any means in accordance with international law, it continues.
In this incident, the US plane collided with the Chinese military jet and caused the death of the Chinese pilot. After that, it entered Chinese territorial airspace and landed at a Chinese military airport. Obviously, it has seriously and continuously violated international law.
To shirk its responsibility, the US side claimed that it landed on Chinese territory under circumstances of emergency because of "irresistible force." This is a total subterfuge. The so-called "irresistible force" refers to the emergency landing of aircraft due to a natural disaster such as a typhoon and fire breaking out on board an aircraft, and this only applies to civil aircraft. International law has only reference to civil airborne vehicles, and no reference to military airborne vehicles, because the latter pose a direct danger to the territorial sovereignty and security of other countries. Without permission, no military plane is allowed to enter or land in another country. It is simply nonsense that the US side insists its right of emergency landing.
Illegal Activities Cannot Be Given Legal Sovereign Immunity
After the air collision, the US side proposed that, as its EP-3 was a state aircraft, it should enjoy sovereign immunity. However, in line with the International Aviation Law, if a foreign military plane lands in the territory of a country, without authorization from the host country, especially after it has violated the law of the country concerned, it cannot claim sovereign immunity. The United States follows the same principle.
In 1976, a former Soviet Union Mig fighter landed in Japan. The US military forces stationed in Japan refused to recognize the plane as Soviet state property. On the contrary, the United States disassembled the plane and made a thorough investigation of it together with Japan before returning it to the Soviet Union.
According to the Rules of Air Warfare, it is regarded as espionage to get or attempt to get information in the air within the jurisdiction of belligerent countries or their military areas in a covert or disguised way." China and the United States are not belligerent countries, but the fact that the US side used air surveillance to gather military intelligence is an instance of espionage. Therefore, the plane should not enjoy diplomatic immunity. On the contrary, the violation should be severely punished.
As is well known, a US U-2 surveillance plane was downed in 1960 in the Soviet Union. The US pilot was captured, and served two years in jail before being released.
Starting from the general interests of both countries, and out of humanitarian considerations, the Chinese government did not treat the 24 crew members as spies. Proper arrangements were made for them, and they met several times with representatives of the US embassy and consulates in China. However, after the Chinese side permitted the US crew to leave, the US side tried to push all the responsibility onto the Chinese side.
It must be pointed out that illegal activities can never enjoy legal rights. Since the US spy plane seriously violated Chinese territorial sovereignty, it has lost the right of immunity. The United States now has only itself to blame.
(Liu Wenzong is a professor in international law from the China Foreign Affairs College)
(www.china.org.cn 04/25/2001)
