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A Legal Look at China's Sorry Demand
April 5, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Remember when the former president asked the House of Representatives to apologize for his impeachment? Apparently you can learn a lot from a seasoned American politician. When in the wrong, arrogantly demand an apology for yourself.

Chinese President Jiang Zemin is calling on the U.S. to apologize because one of his F-8 fighter jets clipped one of our prop planes in midair. As Jiang attempts to steal a page from a less-than-reputable political play book, it is important that our nation remain rooted in reality and, most importantly, in the truth.

First, we need to ask, does Jiang have any legal claim for his demand? Echoing previous statements of Assistant Foreign Minister Zhou Wenzhong, Jiang asserts that our plane, with its distress landing, violated international law and trespassed into Chinese airspace. He further claims that China is entitled to search the plane and detain the crew because the U.S. was conducting operations within Chinese jurisdiction.

As legal justification for seizing our airplane and detaining 24 U.S. citizens, China has invoked two international treaties: The United Nations Convention on the Law of the Sea (UNCLOS) and the Convention on International Civil Aviation of 1944.

UNCLOS is a treaty that was never ratified by the United States. It is a far-reaching code of international rules that applies to the oceans. It establishes a WTO-like international bureaucracy called the International Seabed Authority (ISA).

If the United States ever does decide to ratify UNCLOS, our nation is going to see its power and influence over the resources of the ocean limited to one vote in the ISA. What this will mean is that we will arbitrarily diminish our sovereignty over 70 percent of the earth. American enterprises that possess the financial and technological wherewithal to engage in oceanic mining will suddenly find the fruits of their labors controlled by faceless, unelected, international bureaucrats.

Our country has specifically chosen not to ratify UNCLOS, but this detail seems to have escaped China's radar. It is appealing to the treaty as an international standard anyway.

Nevertheless, the Chinese legal arguments are weak. Our plane had a legitimate right to land safely. When an aircraft is experiencing technical or weather problems and is in distress, it has the right to perform an emergency set-down in a "safe harbor." This is true under the 1944 Convention and the more recent UNCLOS. A downed plane is also officially immune from any search when exigent circumstances are involved in its landing.

Integral to this international legal tug of war is China's contention that its historical territory extends over 1,000 miles into the South China Sea. U.S. officials place our plane 60 miles off the coast of China's Hainan Island. Such a distance would be well outside the 12-mile territorial limit from which planes are subject to UNCLOS.

Beijing has also alleged that our plane violated UNCLOS by conducting surveillance within a 200-mile economic zone along its coast. However, the terms of the treaty do not prohibit a surveillance aircraft from operating in international airspace. This is quite different from a situation where an unsanctioned plane is flying over the sovereign airspace of another country.

To think that just last year the United States actually elevated China to a position of perpetual partner in commerce. The American people were instructed repeatedly that if only we would engage China in business and help it to enjoy prosperity, then improvement of its human rights record and its willingness to adopt principles of freedom would follow. It appears as though the more economic success China achieves, the worse its behavior becomes.

We were given a clue during the weeks leading up to the PNTR vote. Prior to the vote in Congress, China practiced further enforcement of the one-child population policy, additional persecution of Christians, increased government control over private business and heightened abuse of striking workers. It completed its first year as a permanent trading partner with the deliberate destruction of 40 churches.

Maybe this latest transgression will rouse some of our lawmakers from their trade stupor. One narcoleptic public servant, Denver Mayor Wellington Webb, is actually, at the time of this writing, in China with a Colorado trade delegation in hopes of promoting commerce. Webb is so blinded by potential dollars, he has characterized continuance of his trade mission as "appropriate," despite China's stall of the release of detainees.

It is diplomatic and appropriate for the U.S. to express regret over the Chinese pilot missing since the collision. But China has predictably repeated their unfounded demand for a full apology. In addition, the Chinese have made less-than-subtle threats against the captive crew, and the Chinese Foreign Ministry spokesman promised that the Chinese government would "deal appropriately with the crew and plane according to law." This invokes the possible specter of a long legal process, a humiliating affront to these young Americans and their nation.

Although America must always be willing to apologize and make appropriate amends when we are wrong, this incident with China is not a case in point. The American people must remain cognizant of the array of spurious legal claims being hurled against us and the undeserving nature of this sorry demand.

With a unified voice from our elected leaders and a display of solidarity on the part of the American people, China will receive a clear message - release our citizens immediately or suffer the consequences of a rejection from the international community and a response befitting a rogue nation.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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