Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-14T23:08:40.147Z Has data issue: false hasContentIssue false
  • English
  • Français

Aerial Incident off the Coast of China

Published online by Cambridge University Press:  06 June 2017

Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 95 , Issue 3 , July 2001 , pp. 630 - 633
Copyright
Copyright © American Society of International Law 2001

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Rosenthal, Elisabeth & Sanger, David E., U.S. Plane in China After It Collides with Chinese Jet, N.Y. Times, Apr. 2, 2001, at A1 Google Scholar. According to published reports, the EP-3E Aries II contained sophisticated intelligence-gathering equipment and was a variant of the U.S. Navy’s P-3 patrol craft. The missions of the EP-3E Aries II include reconnaissance, surveillance, and antisurface and antisubmarine warfare.

2 See Pomfret, John, U.S., Chinese Warplanes Collide over S. China Sea, Wash. Post, Apr. 2, 2001, at A1 Google Scholar; Eckholm, Erik, China Faults U.S. in Incident; Suggests Release of Crew Hinges on Official Apology, N.Y. Times, Apr. 4, 2001, at A1 Google Scholar.

3 See Gugliotta, Guy, U.S. Expects Return of Plane, Crew, Wash. Post, Apr. 2, 2001, at A14 Google Scholar; David E. Sanger, Powell Sees No Need for Apology; Bush Again Urges Return of Crew, N.Y. Times, Apr. 4, 2001, at A1.

4 See China Ministry of Foreign Affairs Press Release on Solemn Position on the US Military Reconnaissance Plane Ramming into and Destroying a Chinese Military Plane (Apr. 3, 2001), at <http://www.fmprc.gov.cn/eng/9607.html> (“The act of the US side constitutes a violation of the UN Convention on the Law of the Sea (UNCLOS), which provides, among other things, that the sovereign rights and jurisdiction of a coastal State over its Exclusive Economic Zone, particularly its right to maintain peace, security and good order in the waters of the Zone, shall all be respected and that a country shall conform to the UNCLOS and other rules of international law when exercising its freedom of the high seas.”); China Ministry of Foreign Affairs Press Release on Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Planes (Apr. 4, 2001), at <http://www.chmaembassy.org/eng/9585.html> (“The surveillance flight conducted by the US aircraft overran the scope of ‘free over flight’ according to international law. The move also violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation’s exclusive economic zone should respect the rights of the country concerned. Thus, the US plane’s actions posed a threat to the national security of China.”); see also Drew, Christopher, Old Tactics May Pull the Rug from the U. S. Claim to Plane, N.Y. Times, Apr. 4, 2001, at A1 Google Scholar.

Under the UN Convention on the Law of the Sea (to which China, but not the United States, is a party), a coastal state has the right to establish an exclusive economic zone to the maximum breadth of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 55-59, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 58 provides with respect to overflight of this zone that “all States . . . enjoy . . . the freedoms referred to in article 87 [of the LOS Convention] of navigation and overflight...” and that “[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State . . . .” Article 87 provides that “[t]he high seas are open to all States . . . . [The f]reedom of the high seas . . . comprises . . . : (a) freedom of navigation; (b) freedom of overflight ...” Customary and conventional rules also exist regarding the immunity of sovereign vessels, the right of a flag state to exercise penal jurisdiction over persons in service of its vessels in matters of collision on the high seas, and the duty of coastal states to provide safe harbor to vessels in distress. See, e.g., id., Arts. 29-32 (rules applicable to warships in territorial waters, including immunity), Art. 95 (immunity of warships on the high seas), Art. 97 (penal jurisdiction regarding high seas collisions); Greene Haywood Hackworth, 2 Digest of International Law, §172, at 408-23 (1941); The Schooner Exchange v. M’Faddon, 11 U.S. (7Cranch) 116 (1812); International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, Arts. 5 & 16, 2 Y.B. Int’l L. Comm’n, pt. 2, at 22, 50 (1991). With respect to rules concerning airplanes, see Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, Art. 32, 11 LNTS 173, 195 [hereinafter Paris Convention], which provided that military airplanes authorized to land or “forced to land” in the territory of a contracting party shall enjoy “the privileges which are customarily accorded to foreign ships of war.” The Paris Convention was succeeded, however, by the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention), which simply provides that no military airplanes shall land on the territory of a contracting party without authorization. Id., Art. 3.

In 1976, a Soviet defector flew an advanced MiG-25 fighter jet to Japan, which the United States thoroughly inspected and reportedly returned months later in crates. See Lane, Charles, Past Actions Undercut U.S. Case, Lawyers Say, Wash. Post, Apr. 6, 2001, at A28 Google Scholar.

5 See China Ministry of Foreign Affairs Press Release on Solemn Position, supra note 4 (“according to the 1944 Convention on International Civil Aviation and the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, the US plane shall not fly over Chinese territorial airspace without prior consent of the Chinese side In doing so, the US has violated international law and encroached upon China’s sovereignty and territorial airspace.”)

6 See Colin L. Powell, U.S. Secretary of State, U.S. Dep’t of State Press Release on Interview on Fox News Sunday (Apr. 8, 2001), at <http://www.state.gov> (“We understand what territorial integrity means in the concept of international law, not what some countries claim beyond what we think is appropriate. So we always fly these kinds of missions in ways that are consistent with the common understanding of international law and we will continue to do so.”); Colin L. Powell, U.S. Secretary of State, U.S. Dep’t of State Press Release on Interview on CBS “Face the Nation” (Apr. 8, 2001), at <http://www.state.gov> (referring to flights “in international air space over international waters”).

7 See White House Press Release on Letter from Ambassador Prueher to Chinese Minister of Foreign Affairs Tang (Apr. 11, 2001), at <http://www.whitehouse.gov>. Although China had insisted that the United States deliver a dao qian, which is a formal apology conveying an admission of wrongdoing, the language of the letter did not express such an apology. When translating the letter into Chinese, however, the official China news agency used strong terms of profound regret. See Eckholm, Eric, Chinese Claim a Moral Victory, Describing a Much Bigger Battle, N.Y. Times, Apr. 12, 2001, at A1 Google Scholar.

8 See Smith, Craig S., China Releases U.S. Plane Crew 11 Days After Midair Collision, N.Y. Times, Apr. 12, 2001, at A1 Google Scholar.

9 U.S. Dep’t of Defense Press Release on Secretary Rumsfeld Briefs on EP-3 Collision (Apr. 13, 2001), at <http://www.defenselink.mil/news/Apr2001/t04132001_t0413ep3.html>; see William Claiborne & Thomas E. Ricks, Returning Crew Tells of Collision, Wash. Post, Apr. 13, 2001, at A1; Janofsky, Michael, Navy Crew’s Ordeal of Terror and Tedium, N.Y. Times, Apr. 16, 2001, at A11.Google Scholar

10 See Mufson, Steven, U.S. to Pay China $34,567 for Costs of Downed Plane, Wash. Post, Aug. 10, 2001, at A18 Google Scholar; Rosenthal, Elisabeth, China Spurns Spy Plane Offer as Inadequate, N.Y. Times, Aug. 13, 2001, at A10 Google Scholar.