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," commented Phillip Trimble, a University of California, Los Angeles professor of international law. "Of course," he added, "the Chinese would say they didn't give consent to our plane landing at their base."
Indeed, 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 assertion and cites the plane's failure to send a distress signal as justification for entering the plane once it landed and for detaining the crew.
Chinese President Jiang Zemin charged Tuesday that the United States violated international law when the American plane entered Chinese airspace without signaling for help and then landed at Lingshui 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.
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 of 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."
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 this 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, Chinese spokesman Zhu said that "international law or China's laws" are not applicable to this incident.
"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," Zhu declared.
Carter said that 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."
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