A signed article titled “A Look at the Plane Collision Incident from the Perspective of International Law” published on April 15 stresses that the U.S. side breached international law in the collision between a U.S. military reconnaissance plane and a Chinese fighter jet.
 
The article by Li Qin presents an in-depth analysis of the airplane collision from the perspective of international law.

On the morning of April 1, a U.S. EP-3 military reconnaissance plane conducted military reconnaissance in the airspace near China’s island province of Hainan, and the Chinese side immediately sent up two military jets to track and monitor the plane. During the flight, the U.S. plane violated flight rules and veered suddenly towards one of the Chinese jets, bumping into it and causing it to crash. The pilot of the Chinese jet was missing with little possibility of his survival. Right after the collision, the U.S. plane intruded into the Chinese airspace and landed at the Lingshui Military Airport without permission from the Chinese side, thus seriously infringing upon the territorial sovereignty of China, the article says.

The article says that after the incident, the United States not only failed to apologize for the serious consequences of the illegal acts of its plane, but also made up various excuses to shake off its responsibility, even making arrogant demands on and unreasonable accusations against the Chinese side.

Whatever lame excuses the U.S. side might use, the illegal nature of the acts by the U.S. plane cannot be denied. Consequently, the demands and accusations by the U.S. side are absolutely untenable from the perspective of law, the article stresses.

First of all, the United States turned a blind eye to relevant stipulations in international law, and the U.S. military plane abused the freedom of overflight, which is the major cause of the collision incident, the article says.

The U.S. side argued that the April 1 incident took place in international airspace, where U.S. planes have the right to fly. The article says that the incident occurred merely 104 kilometers off China’s Hainan Island above its exclusive economic zone.

In accordance with the current of international law, although foreign aircraft enjoy the freedom to fly over the exclusive economic zone of another country, such freedom is by no means unrestricted or they must observe the relevant rules of  international law while enjoying the freedom of overflight, says the article.

Article 58 of the U.N. Convention on the Law of the Sea promulgated in 1982 says, foreign aircraft enjoy the freedom of overflight under the relevant provisions of the Convention.

Section Three of that article made it clear that foreign planes, while enjoying the freedom of overflight over an exclusive economic zone of other countries, “ shall have due regard to the rights and duties of the coastal State and shall 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.”
 
According to Article 56 of the Convention, the coastal country concerned not only has the right to exploit, utilize, maintain and administer natural resources in its exclusive economic zone, but also enjoys other rights concerning exclusive economic zones laid down by the Convention, it says.

In accordance with Article 301 of the Convention, any country, while enjoying its rights or carrying out its duties stipulated by the Convention, “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 United Nations,” the article says.

This article demonstrates that the “other rights” concerning exclusive economic zone of coastal states include that the sovereignty and territorial integrity of these countries should not be infringed upon, and they have the right to safeguard its national security and maintain peaceful order as stipulated in international law.

The article says that a plane of a state, while it exercises freedom of overflight in the air over the exclusive economic zone of the other state, should respect the sovereignty and territorial integrity of the coastal state. It can’t infringe upon national security and peaceful order of the coastal state, and any act ignoring the above rights of the coastal country will constitute an abuse of the freedom of overflight, says the article.

It needs to expound that the above provisions, stipulated in the United Nations Convention on the Law of the Sea, are the generally acknowledged principles of international law. Even the non-signatory countries should also abide by these principles, because it is confirmed by international judicial practice.

The article points out that during the collision incident, the U.S. trouble-making plane is not a common aircraft, but a military surveillance plane equipped with advanced electronic surveillance facilities.

Moreover, the U.S. plane did not exercise a common flight over China’s exclusive economic zone, but a reconnaissance mission. The U.S. act is not a single and accidental one, but a continuation and part of the frequent U.S. reconnaissance activities in recent years in the airspace over China’s coastal waters, the article notes.

The article says that China is firmly opposed to such provocative and threatening acts of the U.S., and lodged protests many times, and made solemn representations in this regard.

The article says that after the collision, the U.S., on several occasions, criticized China for tracking and monitoring the U.S. military surveillance planes, and after the U.S. crew members were released, the U.S. attributed the incident to Chinese plane’s tracking operation, trying to shirk its responsibilities. It is obvious that the criticism is unacceptable in the political, military and legal sense.

According to international practice and law, when a foreign military plane is engaged in activities which could threaten a state’s national security in the airspace over coastal waters of a coastal country, it has the right to take relevant defense measures, including sending planes to track and monitor the foreign plane.

The article says that the purposes of the activities of the coastal country are: firstly, to exercise the right of sovereignty authorized by international law, prevent foreign planes from entering the airspace of its own country and safeguard its territorial airspace and waters; secondly, to alert foreign planes not to conduct any activities threatening the territorial integrity and national security of the coastal country.

In fact, the article points out, it is the common practice for all countries of the world to track and monitor a foreign military aircraft when it flies near a country’s territorial airspace, and the U.S. practice in this regard is particularly obvious.

The article says that the U.S. has designated Air Defense Identification Zone in the airspace near its coastal waters, and the sphere of the zone is much wider than that of the exclusive economic zone of 200 nautical miles. The U.S. demands that any foreign planes in the Air Defense Identification Zone fly according to the U.S. stipulated course, and obey the procedures the U.S. has prescribed, and if any foreign plane violates these rules, the U.S. will send its planes to intercept it.

The article says that as Francis Boyler, a U.S. professor of international law, pointed out that the U.S. would not tolerate it if China took similar actions like that of the U.S. military plane off Chinese coast within the U.S. Air Defense Identification Zone.

The article goes on to say that the U.S. plane, after ramming into and destroying the Chinese plane, entered the Chinese territorial airspace and landed at a Chinese military airport without authorization, seriously encroaching upon the Chinese territorial sovereignty.

According to the set principles governing international law, a state has complete and exclusive sovereignty over the sky above its territory. Without permission, it is absolutely forbidden for foreign military planes to enter the territorial airspace of other states. This principle was first stated in the Paris Convention on the Regulation of Aerial Navigation of 1919. The Article 1 of the convention 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 landing at the territory of another signatory.

Article 3 of the Convention on International Civil Aviation, concluded in Chicago in 1944, not only sets the same rule, but also states clearly in this article to strictly tell civil airborne vehicles from military airborne vehicles. 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 into the territorial airspace of another country. Practice against this rule is deemed as encroachment upon the territorial sovereignty of a country, which has the right to curb this encroachment with any means according to international law, the article continues.

In this incident, the U.S. plane did not apply to the Chinese side for entering the Chinese territorial airspace and landing at the Chinese territory according to relevant regulations governing emergency cases. Without permission from the Chinese side, it entered into the Chinese territorial airspace and landed at a Chinese military airport. Obviously, illegality is clearly seen in this case of encroaching upon the Chinese sovereignty, the article says.

The U.S. side contended that after the collision, the U.S. plane was in a state of emergency, and under such a circumstance, it was not illegal for the plane to enter into and land at the Chinese territory, out of needs of averting emergency. Such kind of contention is not tenable according to the law, says the article.

The international law has only references to civil airborne vehicles and has no reference to military airborne vehicles. All countries have strict procedures on this, because state sovereignty and national security are involved. International law also does not acknowledge what the U.S. called as an emergency landing right owned by military planes. Under special circumstances which call for an emergency landing, foreign military planes must follow domestic laws of the country concerned and get a definite approval before landing, it says.

It should be pointed out that the communication system of the U.S. plane was working properly, and the U.S. side had sufficient time and ability to request the approval for its plane’s urgent entering into and landing at the Chinese territory during 20 minutes from collision to its landing at the Lingshui Military Airport in China’s Hainan Island.

Without requesting, the U.S. plane made an unauthorized intrusion into the Chinese territorial airspace and an unauthorized landing at the Chinese military airport. This is a practice that completely ignores China’s sovereignty and territorial integrity. The “avoiding of an emergency” alleged by the U.S. side cannot at all be considered as a legal proof to exempt the illegal nature of encroaching upon the Chinese territory by the U.S. plane. What’s more, the state of emergency was a result of the practice of the U.S. plane itself. To such a foreign military plane that illegally entered into the Chinese
territorial airspace and landed at an airport demarcated as a military forbidden zone of China, the Chinese side has the right to self-protection granted by international law including taking necessary and forcible measures. The Chinese side, however, did not take such measures after it entered the Chinese territorial airspace, and this was out of humanitarian considerations, the article says.

After the collision, the U.S. side did not give any apology. Instead, it demanded that China return its aircraft and the crew and even warned China not board the plane and conduct investigations, says the article.

To work out legal excuses for such outrageous demands, the U.S. side went so far as to fabricate nonsense like the aircraft is part of the U.S. territory and U.S. state assets, so as to enjoy a sovereign immunity.

It is another version of the extraterritoriality theory popular in the 19th century. This theory has long been abandoned by modern international law, the article stresses.

Established principles of international law on this issue are that all foreign military forces including military personnel and facilities can possibly enjoy sovereign immunity only after getting permission from receiving country , which means they are not subject to the administration of the receiving country.

If foreign military forces crash through the gate of another country without permission, such military forces can never claim sovereign immunity in this country, continues the article.

The Restatement (Third) Foreign Relations Law of the U.S., the most authoritative international law document in the U.S., even holds that only getting a permission to enter is not enough, and a special agreement should be reached between a receiving country and a foreign country to ensure this foreign country can enjoy sovereign immunity in the receiving country, points out the article.
 
So, in this case, the article emphasizes, China -- the victim of the collision, the site of the occurrence of the U.S. illegal acts and the country the U.S. plane landed on, is entirely entitled to administer the treatment of the U.S. aircraft and of the whole incident, and conduct necessary inspections on the plane and necessary inquiries with the crew members, so as to find out facts about the incident.

In a summary, the article states, the U.S. aircraft misused the freedom of overflight in the airspace off China’s coast, flew against flight rules, crashed a Chinese jet, and entered into China’s territorial airspace and landed at China’s military airport without permission, which have constituted a case of seriously violating international law.
 
In this incident, the above-listed illegal acts of the U.S. side have brought about a severe infringement upon China’s rights, interests and dignity. In accordance with international law, the U.S. should bear state responsibilities for its illegal acts, including suspending infringement, compensations for China’s losses, promising a non-recurrence of similar incidents and an apology to China, the article points out.