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The Chinese/U.S. Incident at Hainan - A Confrontation of Super Powers and Civilizations

(Five Unanswered Questions)

INDEX

Prologue

Five Questions

l. First Question: Does a State have a right under international law to conduct information collecting in the Exclusive Economic Zone?

1) Introduction

2) UNCLOS

3) UN Charter

4) Presidential Proclamation No. 5030, March 10, 1983

5) Chicago Convention

6) Conclusion: re Collecting Information in the EEZ

II. Second Question: Is information collecting/spying perhaps beneficial to both sides?

III. Third Question: What are the short-term consequences of the incident?

IV. Fourth Question: Should the U.S. policy towards Taiwan be reviewed?

V. Fifth Question: Should U.S. foreign policy towards China be reconsidered & vice versa?

Vl. A Third Super Power

VIl. Conclusion - Two Civilizations Face to Face

Prologue

The April 1, 2001 collision between the Chinese F-3 fighter and the United States Navy IT-3E 'Aries' surveillance plane and the U.S. emergency landing on Hainan Island has come and gone. Yet it represented a very public clashing of the world's two great super powers as they strove to define their positions in the world order and postured to save face, in their oriental and occidental ways. Above all, the incident raised five distinct questions for the future of world peace.

Five Questions

Firstly, did the United States Navy EP-3E aircraft have a right under international law to conduct information collecting in China's 200-mile Exclusive Economic zone ("EEZ")'? Secondly, even if illegal, is information collection a contribution towards world peace? Thirdly, what are the short-term consequences of the China/U.S. spy plane incident'? Fourthly, is it wise for the U.S. to continue to side with Taiwan in the confrontation between Taiwan and China, which confrontation is at the bottom of much of the controversy'? Lastly, should not the U.S strategic position towards China be revised, in particular the risky game of "who blinks first", when it is well-known that since the Gulf War, the U.S. is reluctant to take on a land war outside its own borders and it is clear that one cannot precision bomb mainland China? It is also now clear that China did not "blink" and only after four weeks did it decide to return the spy plane, despite threats, veiled and otherwise.

l. First Question: Does a State have a right under international law to conduct information collecting in the Exclusive Economic Zone?

I ) Introduction

The first of the five questions raised here is merely one of pure law, not real politik, which is dealt with in the other four questions.

Many authorities have opined on the legal uses of the EEZ, since the adoption of the United Nations Law of the Sea Convention 1982(1). Reference has also been made to the Chicago Convention(2), and to the Presidential Proclamation of Ronald Reagan of 1983(3) concerning the EEZ. Finally the Charter of the United Nations(4) is very pertinent.

The opinions fall into three overlapping groups. First those who believe that military activities in the historic high seas, such as intelligence collection, have been preserved by article 58 UNCLOS in the EEZ.(5) Thus Bernard Oxman writes:

"[s]o long as there is no unlawful use or threat of force and the warship acts with 'due regard' for the rights of the coastal State and other States to use the sea, the subjective question of whether the warship is a welcome visitor is outside the scope of legal inquiry...warships in principle enjoy freedom to carry out their military missions under the regime of the high seas subject to three basic obligations: (1) the duty to refrain from the unlawful threat or use of force; (2) the duty to have 'due regard' to the rights of others to use the seas; (3) the duty to observe applicable obligations under other treaties or rules in international law...with the addition of an obligation to have 'due regard to the rights and duties of the coastal State' in the Exclusive Economic Zone."(6)

The second group of authorities doubts that information collection in the EEZ to the detriment of the security of the integrity and security of the coastal state is a right in law.(7)

A third group believes that UNCLOS is too ambiguous to give a definite opinion one way or another and that "ambiguities in the EEZ articles of [UNCLOS] provide ample raw material for dispute.(8) Franceso Francioni for his part has declared that,

"[a]part from spelling out freedom of navigation in the EEZ and in the upper adjacent air space, [UNCLOS] does not clarify which foreign naval military activities are lawful in the EEZ." (9)

All opinions must be speculative, (including the one I am about to give) because the question has not been raised with an actual case in hand before an international court.(10)

Hence, I will put to one side the plethora of speculative, contradictory views and follow Justice Cardozo's dictum: "When in doubt, read the statute." My opinion therefore is based on a reading of UNCLOS, the Presidential Proclamation of 1983 and the UN Charter, 1945. Let us see what they tell us.

2) UNCLOS

The territorial sea extends for 12 miles off the coast of every nation and it is clear that there is no right of passage (or overflight) there by virtue of articles 17 and 18 of UNCLOS, to which China is a party and the U.S. is not. (The U.S. accepts the convention, nevertheless, as "customary international law.")(11) The United States EP-3E information collection/spy plane, however, was flying in the EEZ of China, which extends 200 miles from the coastline, and there freedom of navigation and overflight is permitted for warships and warplanes. The classic legal opinion has assumed that passage for even warlike operations is permitted in the EEZ.

"Warships of all nations can freely perform their assigned missions in the EEZ provided they observe the following rules: (1) Refrain from the unlawful threat or use of force; (2) exercise due regard for the rights of other nations in the sea, (3) exercise due regard for the rights of the coastal state in the EEZ; and (4) observe the rules of international law and obligations under other treaties."(12)

The question, however, has never been decided in any actual case and most authorities have passed over the subject lightly, although other opinion has ruled out "non peaceful purposes", which would include collecting information to the prejudice of the defence or the security of the coastal state.(13)Several nations have claimed "to control ... airspace above the high seas or the EEZ, most of them invariably connected with the protection of a coastal state's security or public order, that are not explicitly dealt with in the Convention."(14) It has also been said that:

"when the particular [national security] claim asserted is in genuine common interest, as in relation to intense threats to security. the exclusive competence accorded by the general community need not be confined to the areas traditionally known as 'airspace,' but might appropriately be extended...to the father reaches of space, without particular regard to location."(15)

Before UNCLOS (1982) there was the three mile-limit (the historic, presumed range of a cannon) and then a 12-mile limit, but no real rules of conduct(16), while the world's two great super powers of the time were spying on one another without limit. (Witness the U-2 incident, in 1960. when the American, Gary Powers flew over Soviet territory and the Russian "fishing" fleets, which sailed up and down the American coasts.) UNCLOS has since changed the law, while the "collection of information" has been upgraded electronically, but its purpose is unchanged. It is therefore important to discover whether UNCLOS permits information collecting in the EEZ and on the high seas.(17)

A reading of UNCLOS at article 300 on "Good Faith and Abuse of Rights" specifies that "States Parties ... shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right." (18) Perhaps most importantly, however, is that UNCLOS discloses that anything "not for peaceful purposes"(19) , including non-innocent passage, (or overflight) is not permitted anywhere in the world, including in the EEZ or on the high seas.(20) This appears from article 87, which stipulates, "Freedom of the high seas is exercised under conditions laid down by this Convention..."'(21) and article 88, which reads: "The high seas shall be reserved for peaceful purposes."(22) All the more so is the EEZ of a coastal State, reserved for peaceful purposes by article 58(1), which invokes article 87, which for its part refers to "other internationally lawful uses of the sea related to these freedoms."(23) Moreover article 58(2) also applicable to the EEZ, refers back to article 88 and its reference to "peaceful purposes" on the high seas.(24)

Article 301, entitled: "Peaceful uses of the seas", is also very clear and contains the basic principle of UNCLUS. It reads:

"In exercising their rights and performing their duties under this Convention, States 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."(25)

3) United Nations Charter, 1945

Article 301, therefore, makes it clear that (UNCLOS excludes any act not for peaceful purposes(26), by its reference to the United Nations Charter (1945) and in particular to article 2(4) on which article 301 of UNCLOS is drawn, almost verbatim.(27) Article 2(4) of the UN Charter reads:

"All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."(28)

Article 2(4) sets a very low threshold for the threat or use of force by its reference to the "Purposes of the United Nations," which are found in article 1 of the Charter. Articles 1(1) and 1(2) of the Charter read:

"The Purposes of the United Nations are:

(1) To maintain international peace and security. and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

(2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;"(29)

Today, national infrastructures are dependant on high-speed, interlinked information systems; whole national networks may be brought down, effectively stopping a country. Clearly, a threat by eavesdropping to one's communications system can be seen as a threat to peace, security, territorial integrity and/or political independence. Moreover, the exercise of the freedom of international communications does not authorize, without the consent of the coastal State, any non-peaceful use of the waters or the superjacent air space, particularly other activities that entail resorting to threat or the use of force against the territorial integrity, the political independence, peace or security of the coastal State or any other form of action incompatible with the principles of International law incorporated into the United Nations Charter."(30) As China's Foreign Minister spokesman, Zhu Bangzao, has argued, the U.S. recognisance mission in China's EEZ posed a serious threat to China's national security and territorial integrity.(31) Would not the U.S. have claimed a very similar stance if the roles were reversed?

4) Presidential Proclamation No. 5030, March 10, 1983

Very compelling to the debate is the Presidential Proclamation No 5030 of March 10, 1983 of Ronald Reagan, which declares:

"Without prejudice to the sovereign rights and jurisdiction of the United States, the Exclusive Economic Zone remains an area beyond the territory and territorial sea of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines and other internationally lawful uses of the sea."(32)

President Reagan's Proclamation thus echoes the wording of art. 38(l) of UNCLOS.

5) Chicago Convention

The Chicago Convention,(33) which has been signed and ratified by both the U.S. and China(34) has been referred to by some authorities but it is not really applicable to this discussion, because State aircraft are excluded by art. 3(a) of the Convention(35) and art. 3(b), which defines "State aircraft" as those used in military, police and customs services.(36)

6) Conclusion: re Information Collection in the EEZ

One concludes from the above that while freedom of passage, including overflight by one nation's military or naval aircraft, above the waters of another country's EEZ, is guaranteed by UNCLOS, such overflight must be "internationally lawful" or "peaceful" in order to be permissible under that Convention. In other words. military overflight above another country's EEZ in itself, may be "internationally lawful'', but military overflight for proposes of espionage or information collection against that very country is not "internationally lawful", because by its nature, such activity poses a threat to the security and integrity of the coastal State concerned.(37)

Such overflight thus contravenes the essence of the U.N. Charter, not being a "peaceful" use of the seas, as required by arts. 58, 88, 300 and 301 of UNCLOS.(38)

In addition, in my view, were the matter to come to an international tribunal, the American information collecting in China's EEZ would be criticized as would Chinese information collecting in the EEZ of the United States, were it to take place.

II. Second Question: Is information collecting/spying, perhaps beneficial to both sides?

Aside from the legality of information collecting, one must ask whether collecting of information from planes or otherwise by one state concerning another state is not salutary and can assist world peace, even when that information concerns the defences, radar and other strategic information of the other state.

It is my view that collecting information from planes is one of the least inimical forms of spying. And it can be strongly argued that it enables each party to properly evaluate the other's real strengths and weaknesses and to thus avoid such possibilities as an escalating build-up of armaments by both states, or a premeditated strike, or an unjustified defensive strike based on erroneous information.

It is interesting that when Soviet pilot Viktor Belenko defected in 1976 and flew from Vladisvostok to Japan in his MiG-25, which was the USSR's newest and most advanced interceptor, he probably aided world peace, because the United States learned of the plane's limitations - its short range, its primitive electronics and dangerously overpowered engines. They also learned that Soviet pilots were not able to fly as often as American pilots and therefore were not as formidable opponents in the air as they were thought to be. This information perhaps persuaded the United States not to start another round of upgrading of its interceptors.

Certainly China and the U.S. should be able to reach some ad hoc arrangement on the collection of information from planes, if they have not already done so since Hainan. They should also attempt too arrive at a modus vivendi on other information collection matters.

III. Third Question: What are the short-term consequences of the incident?

Who was at fault for the unfortunate collision near Hainan may never be agreed upon, but China was justified in investigating the crash, which occurred over its EEZ, and which involved a Chinese military aircraft and a foreign aircraft that subsequently landed on Chinese territory, together with its "crew". And who were the crew? All seem to have had undercover training, including, at an American simulated "Prisoner of War" camp, where they were taught how to act "in case of capture". The flight too was out of an American air base on Okinawa in Japan, against which the Japanese public has demonstrated in the past. No doubt the public revelations will exacerbate U.S./Japanese relations, particularly because the now confirmed use of the base for other than peaceful purposes, may violate the Japanese Constitution(39) or at least Japanese-American agreements on the use of Japanese territory because the purported purpose of U.S. military forces stationed in Japan is to promote security and stability and to deter conflict.(40)

If the American right to collect strategic information in the Chinese EEZ is questionable, it is unquestionable that the United States would have strongly objected, had China flown a single spy mission in the EEZ off the American coast, let alone what now appears to be 200 missions per year by the Navy and many more by the Air Force! (41) Of course China does not as yet have the wherewithal to conduct information collection off the U.S. coast. In the distant future, it could very well be argued that that right exists and it will be China who is embarrassed by the incident.

IV. Fourth Question: Should the U.S. policy towards Taiwan be reviewed?

And perhaps it is time, for the U.S. to review its policy towards Taiwan? Would the U.S., for example, accept the arming of Cuba by the Chinese in the same way as the U.S. has armed Taiwan? Let us remember the Cuban Missile Crisis of 1962. Taiwan, too, was a Province of China when Chiang Kai-shek was the President of China and escaped there in 1949. He took over the island, imposed his form of capitalistic dictatorship and reduced Taiwanese to the status of Taiwan's second language. His son continued the tradition and it is only recently that Taiwan has accepted Western ideas of human rights and democracy. The Chinese/Hong Kong experience is also illuminating. China waited until after the expiry of the 99-year lease of Hong Kong, before taking over the colony from the United Kingdom and, so far, it has been business as usual. If the U.S. slows down its arming of Taiwan, this latter is unlikely to declare independence and China is likely to wait out what it considers an inevitable reunion.

American policy has not always been so favourable to Taiwan. In fact on February 28th, 1972, during President Richard Nixon's meeting with the Premier of the People's Republic of China, Chou En-lai, Nixon declared that "[t]he United States acknowledges that ... there is but one China and that Taiwan is a part of China."(42) On January 1st, 1979, the U.S., under President Jimmy Carter, recognized that "the Government of the People's Republic of China as the sole Government of China."(43) And in 1982, the U.S. Government, headed by President Ronald Reagan, reiterated the one-China policy and stated, "that it does not seek to carry out a long-term policy of arms sales to Taiwan ... either in qualitative or in quantitative terms ... and that it intends gradually to reduce its sale of arms to Taiwan, leading, over a period of time, to a final resolution."(44)

V. Fifth Question: Should U.S. foreign policy towards China be reconsidered & vice versa?

One may question the present-day U.S. policy of confrontation with the Chinese behemoth.(45) China is not a declining world power, as was Russia in the cold war. It is a growing 1.2 billion giant, facing 280 million Americans. Even if containment of China were possible, containment rarely gets rid of the ruling regime (see Cuba and Iraq), it only causes hardship to the people. Nor should it be forgotten that China has already been involved in two recent wars against the United States - the first in Korea in 1950, when General MacArthur, after reaching or even crossing the Chinese border, retreated south. Eventually a boundary was drawn at the 38th parallel, creating what is now North and South Korea. The second war was in Vietnam, when North Vietnam, supported by Russian and Chinese arms, overran South Vietnamese and American armies in 1975.

Human rights is the major complaint against China, particularly in Tibet, but it must be understood that China is making progress, as demonstrated by its municipal elections this year. And is it realistic to impose on China, the modern day standards of the United States, which has been a democratic nation for 225 years, while China has suffered a series of calamities in the last century, including civil war, the Japanese invasion, more civil war and the disastrous cultural revolution? Nor should we forget that both countries are evolving. If China has civil rights abuses, it has little racism, while the U.S. only gave up official segregation with the passing of the Civil Rights Act in 1964 and the Voting Rights Act in 1965.

Of course, China has many serious problems, economic and human, and we should not underestimate the power of the military or the reputed rigidity of the older cadres. On the other hand, one must not ignore the strength of the military and the armaments lobby in the United States. China, for its part, should realize that the U.S. has a history of generosity unparalleled in world (witness the Marshall and Truman Plans and its present-day foreign aid and world peacekeeping role, which is essential to world peace.) Nor should it be forgotten, for example, that the U.S. welcomes thousands of Chinese students into its universities every year, and is generous in sharing its science and industrial advances.

So far, each nation has emerged from the confrontation with dignity. What was secretly agreed upon by the two nations may never be known, but the 24 spies/servicemen went home and the plane is apparently going home too, but in boxes, (just as the United States sent back the Soviet MiG-25, which a defecting Soviet pilot had flown to Japan in 1976 (46)). I expect the U.S. will probably not play games with the Chinese bid for the 2008 Olympics, or Chinese membership in the \World Trade Organization or with Chinese/American trade. The US spying in the Chinese EEZ has been resumed for a few face-saving flights and then will probably be discontinued, as Henry Kissinger suggested on television. America is apparently doing the same job more efficiently from Air Force planes and satellites. China, which no doubt spies on Taiwan and elsewhere, must accept for its part, that even a giant is obliged to get along with its neighbours. Both sides have much to gain from an amicable lone-term arrangement.

VI. A Third Super Power

Moreover, neither the U.S. nor China should forget that a third power lurks on the horizon. It is that roiling, disjointed, discordant, disorganized, sometimes-slumbering giant - the Moslem world. China and the U.S. may end up as allies in the not too distant future, as they already share many common apprehensions. Now is the time for the two powers to reach a new entente, both for their own benefit and for the peace and welfare of those of us in the rest of the world.

VII. Conclusion - Two Civilizations Face to Face

In essence the Hainan incident was not a major international political earthquake, but a grating against one another of the world's two great civilizations - East and West. Both are at different levels of political and economic evolution, with different histories, cultures, economies, philosophies and political systems.(47) The United States and China act and react differently, they must judge one another as objectively and considerately as possible, just as we in the rest of the world must not rush to a final judgment in favour of one side or the other. (48)

AUTHORITIES

LEGISLATION & GOVERNMENT DOCUMENTS

Cohen, William, Secretary of Defense, "The United States Security Strategy For The East Asia-Pacific Region 1998" (21 July 1997) online: DefenseLINK : U.S. Department of Defense Homepage: http://www.defenselink.mil/pubs/easr98/ (last accessed: 25 November 1998).

Constitution of Japan, 3 November 1946 online: http://list.room.ne.jp/~lawtext/1946C-English.html (last accessed 28 May 2001).

Convention on International Civil Aviation, Dec. 7, 1944. 61 Stat. 1190. TIAS No. 1591, 1956, Bundesgesetzblatt [BGBl 1 ] 11411, 15 UNTS 295.

Dwiggins, W. A. (William Addison), 1880-1956. Charter of the United Nations / Washington, D.C. : U.S. Govt. Print. Off., 1945.Charter of the United Nations, 1945, at art. 2(4).

Joint Communique of the United States of America and the People's Republic of China, February 28, 1972. On-line: Ministry of Foreign Affairs of the People's Republic of China Homepage at http://www.fmprc.gov.cn/eng/7155.html (last accessed: 3 June 2001).

Joint Communique on the Establishment of Diplomatic Relations between the People's Republic of China and the United States of America, ,January 1, 1979. On-line: Ministry of Foreign Affairs of the People's Republic of China Homepage at http: www.fmprc.gov.cn/eng/7152.html (last accessed: 3 June 2001).

Joint Communique of the United States of America and the People's Republic of China. August 17. 1982. On-line: Ministry of Foreign Affairs of the Peoples Republic of China Homepage at http://www.fmprc.gov.cn/eng/7153.html (last accessed: 3 June 2001).

Milde, Michael (Editor-in-Chief), Annals of Air and Space Law (Montreal: Institute of Air and Space Law McGill University, 1993) 5-82.

Proclamation No.5030, 48 Fed.Reg. 10,605 (1983), 3 C.F.R. 5030 (1983), reprinted in 22 I.L.M. 465 (1983); Statement by President on United States Ocean Policy, accompanying his Proclamation establishing an Exclusive Economic Zone. 19 WEEKLY COMP.PRES.DOC. 383 (Mar. 10. 1983), reprinted in 22 I.L.M. 464 (1983).

Schoenbaum, Thomas J., Admiralty and :Maritime Law. 3 ed., vol. 3 (West Group., St. Paul, Minn.. 2001) Appendix 2.5, being the United Nations Convention on the Law of the Sea, Montego Bay, Dec. 10, 1982, 166-296, especially at Part II(particularly arts. 17 to 19), Part V (particularly arts. 55-59), Part VII (High Seas) (arts. 86-115), Part XV (particularly art. 298), Part XVI (particularly arts. 300-301).

United Nations Convention on the Law of the Sea, Apr. 30. 1982, U.N. Doc. A/CONF.62 122 i 1982 ).

United Nations Institute for Disarmament Research," Peaceful and Non-Peaceful Uses of Spaces: Problems of Definition for the Prevention of an Arms Race," (New York: Taylor & Francis, 1991 ) at pp. 44-45.

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 340.

BOOKS & ARTICLES

Alexander, Lewis M., "Uncertainties in the Aftermath of UNCLOS III: The Case for Navigational Freedoms" (1986) 17 Ocean and Development and International Law at pp. 33334,.

Attard, David J., The Exclusive Economic Zone in International Law (Oxford: Clarendon Press, 1987) at pp. 67-69, 78-86.

Burnett, Weston D., Lieutenant Commander, "Article & Commentary Mediterranean Mare Clausum In The Year 2000?: An International Law Analysis Of Peacetime Military Navigation In The Mediterranean", (1985) 34 Naval L. Rev. 75.

"China. U.S. Disagree on Law of the Sea" online: Muzi News: Late Line News Homepage: http://latelinenews.com/news.shtml?l=English@a=express&p=1063764 (last accessed: 23 May 2001).

Churchill, R.R., & Lowe, A.V., The Law of the Sea (.Manchester: Manchester University Press, 1999) at pp. 170-176, 421-431.

Francioni, Francesco, "Peacetime Use of Force, Military Activities. and the New Law of the Sea" (1985) 18 Cornell Int'I L.J. 203 at p. 214, citing Conforti, "L'institution de la Zone Economique Exclusive en tant que Facteur de pair dans le Méditerranée- in Méditerranée: Zone de Paix (1983); and Benchikh, "La Mer Méditerranée, Mer Semi-fermée" (1980) Revue Générale de Droit International Public, at pp. 284-290.

Hailbronner, Kay, "Freedom Of The Air And The Convention On The Law Of The Sea" (1983) 77 American Journal of International Law, July 490.

Heller, "Air Space over Extended Jurisdictional Zones", J.K. Gamble. ed., in Law of the Sea: Neglected Issues, pt. III: Air Space and the Law of the Sea at pp. 135. 144.

Juda, Lawrence, "The Exclusive Economic Zone: Compatibility of National Claims and the United Nations Convention on the Law of the Sea" (1986) 16 Ocean Development and International Law 31.

Kwiatkowska, Barbara, "The Exclusive Economic Zone in the Law of the Sea" ( Boston: Martinus Nijhoff Publishers, 1989) at pp. 109-110, 198-204, 212-215.

Laveson, Jeffrey D., "Comment: Korean Airline Flight 007: Stalemate In International Aviation Law--A Proposal For Enforcement" (1985), 22 San Diego Law Review 859.

Matte, Nicolas Mateesco, ed., Space Activities and Emerging lnternational Law (Montreal: McGill University 1984) at pp. 64-169.

McDougal, Myres; Lasswell, Harold D. & Vlasic, Ivan A., Law and Public Order in Space (New Haven: Yale University Press. 1963) at pp. 254-257

Meyer, John C., Commander, "Comment: The Impact Of The Exclusive Economic Zone On Naval Operations" (1992), 40 Naval Law Review at pp. 2 1.

Mour, AI, "The Legal Status of the Exclusive Economic Zone ( 1977) 33 Rev. Egyptienne Droit International 35, 60-61, cited in Hailbronner, Kay, "Freedom Of The Air And The Convention On The Law Of The Sea" (1983) 77 American Journal of International Law, at pp. 490.

"No Legal Precedent for US Spy Plane Case- Inside China Today (Reuters) online: http: www.freerepublic.com/forum/a3aeb28ba1683.htm. (last accessed: 14 May 2001).

Oxman, Bernard H., "The Third United Nations Conference on the Law of the Sea: The 1977 New York Session (1978) 72 American Journal of International Law at pp. 57, 72 et seq.

Oxman, Bernard H., The Two Conferences, in the Law of the Sea: U.S. Policy Dilemmas 144 (1983) as cited in Rose, Stephen A., Commander, "Operational Law: Naval Activity In The EEZ - Troubled Waters Ahead?" (1990) 39 Naval Law Review 67 online: Westlaw (TP-ALL).

Oxman, Bernard H., "The Regime of Warships Under the United Nations Convention on the Law of the Sea" (1984), 24 Virginia Journal of International Law at pp. 811-863.

Puri, Rama, "Evolution of the Concept of the Exclusive Economic Zone in UNCLOS III: India's Contribution" (1980) 22 J. Indian L. Inst. 497 et seq. as cited in Hailbronner, Kay, "Freedom Of The Air And The Convention On The Law Of The Sea" (1983) 77 American Journal of International Law, 490.

Qin, Li, "A Look at Plane Collision Incident From Perspective of International Law" online: http:/www.chinadaily.com/cover/storydb/2001/04/16/mn-law.html (last accessed: 14 May 2001).

Richardson, Elliot L., "Law of the Sea: Navigation and Other Traditional National Security Considerations" (1982) 19 San Diego Law Review at pp. 508-16.

Rose, Stephen A., Commander. "Operational Law: Naval Activity In The EEZ - Troubled Waters Ahead?" (1990) 39 Naval Law Review 67.

Sohn, Louis B., & Gustafson, Kristen, The Law of the Sea: in a nutshell (St. Paul. Minn.: West Publishing, 1984) at p. 95.

Song, Yann-Huei, "One China, But Two Sets of Maritime Legislation: Developments, Implications, and Challenges for the United States" in Scheiber. H.N., ed., Law of the Sea: The Common Heritage and Emerging Challenges (Boston: Martinus Nijhoff Publishers, 2000) pp. 426-427.

"Special Supplement Message From The President Of The United States And Commentary Accompanying The United Nations Convention On The Law Of The Sea And The Agreement Relating To The Implementation Of The Part XI Upon Their Transmittal To The United States Senate For Its Advice And Consent" (1994) 7 Georgetown International Environmental Law Review at pp. 77, * 112.

Vicuna, Francisco Orrego, The Exclusive Economic Zone (Cambridge: University Press, Cambridge, 1989) at pp. 93-120.

SECONDARY MATERIAL: GENERALLY REFERRED TO DOCUMENTS

Ling, Bins, "International Legal Issues Arising from the :Aerial Collision", Ming Pao Daily: Hong Kong Homepage, online: http: hugo.law.Washington.edu/mhonarc/msg00459.htm1 (last accessed 15 May 2001).

Oxman, Bernard H., & Bantz, Vincent P. "Prompt Release of Vessels and Crews" American Journal of International Law, October 2000 at pp. 713-721.

Oxman, Bernard H. & Stevenson, John R., "The Future of the U.N. Convention on the Law of the Sea" (1994), 88 American Journal of International Law 488.

Robertson, Horace B., "Navigation in the Exclusive Economic Zone" ( 1984) 24 Virginia Journal of International Law 890.

Roy-Chaudhury, Rahul, "Maritime Surveillance of the Indian EEZ": online: Institute for Defence Studies and Analyses Homepage http:www.idsa-india.org/an-apr8-4.html (last accessed 31 May 2001).

Smith, Robert W., Exclusive Economic Zone Claims: An Analysis and Primary Documents, (Boston: Martinus Nijhoff Publishers, 1986) at pp. 467--469.

"Special Supplement Message From The President Of The United States And Commentary Accompanying The United Nations Convention On The Law Of The Sea And The Agreement Relating To The Implementation Of The Part XI Upon Their Transmittal To The United States Senate For Its Advice And Consent" (1994) 7 Georgetown International Environmental law Review at p. 77.

Tsarev, V.F., "The Juridical Nature of the Exclusive Economic Zone and the Legal Regime of Navigation of Foreign Vessels Therein" The UN Convention on the Law of the Sea: Impact and Implementation (Honolulu: The Law of the Sea Institute. 1957) at pp. 591-612.

Professor William Tetley QC
McGill University Law Faculty

PLEASE SEND ME YOUR COMMENTS: Contact information

Website: http://www.mcgill.ca/maritimelaw/ (where my c.v. can be seen)

NOTES

United Nations Convention on the Law of the Sea, Apr. 30, 1982, U.N. Doc. A CON F.62'122 (1982) [hereinafter UNCLOS]: see also Schoenbaum, Thomas J., Admiralty and Maritime Law, 3 ed., vol. 3 (West Group., St. Paul, Minn., 2001) Appendix 2.5, being the United Nations Convention on the Law of the Sea. Montego Bay, Dec. 10, 1982, at pp. 166-296; especially at Part II(particularly arts. 17 to 19), Part V (particularly arts. 5559) Part VII (High Seas) (arts. 86-115), Part XV (particularly art. 298), Part XVI (particularly arts. 300-301).

Convention on International Civil Aviation, Dec. 7, 1944, 6l Stat. 1180, TIAS No. 1591, 1956, Bundesgesetzblatt [BGBL 1] 411, 15 UNTS 295 [hereinafter Chicago Convention]; see also Milde, Michael (Editor-in-Chief), Annals of Air and Space Law (Montreal: Institute of Air and Space Law McGill University 1993) at pp. 5-82.

Proclamation No. 5030, 48 Fed. Reg. 10, 605 (1983), 3 C.F.R. 5030 (1983), reprinted in 22 I.L.M. 465 (1983); see also Statement by President on United States Ocean Policy, accompanying his Proclamation establishing an Exclusive Economic Zone, 19 WEEKLY COMP.PRES.DOC. 383 (Mar. 10. 1983), reprinted in 22 I.L.M. 464 (1983).

Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7.: see also Dwiggins, W. A. (William Addison), 1880-1956. Charter of the United Nations/Washington, D.C.: U.S. Govt. Print. Off., 1945, Charter of the United Nations. 1945, at art. 2(4).

"Special Supplement Message From The President Of The United States And Commentary Accompanying The United Nations Convention On The Law Of The Sea And The Agreement Relating To The Implementation Of The Part XI Upon Their Transmittal To The United States Senate For Its Advice And Consent" ( 1994) 7 Georgetown International Environmental law Review at p. 77, * 112. "but may only do so consistently with the obligation to have due regard to coastal State resource and other rights, as well as the rights of other States as set forth in the Convention...Some coastal States have claimed the right to establish military security zones, beyond the territorial sea, in which they purport to regulate the activities of warships and military aircraft of other nations by such restrictions as prior notification or authorization for various operational activities, or complete exclusion ... the United States does not recognize the peacetime validity of any claimed security or military zone.": see also Burnett, Weston D., Lieutenant Commander, "Article & Commentary Mediterranean Mare Clausum In The Year 2000?: An International Law Analysis Of Peacetime Military Navigation In The Mediterranean", 34 Naval L. Rev. 75 (1985). "Careful scrutiny of the [UNCLOS] discloses several articles that lead to the inescapable conclusion that the use of the term "peaceful purposes" in the Convention does not mean, and was not intended to mean 'nonmilitary' purposes"; Oxman, Bernard H.. "The Regime of Warships Under the United Nations Convention on the Law of the Sea" (1984), 24 Virginia Journal of International Law at pp. 811-863).

Oxman, ibid. at p. 837.

Meyer, John C., Commander, "Comment: The Impact Of The Exclusive Economic Zone On Naval Operations" (1992), 40 Naval Law Review 241 online: Westlaw (TP-ALL) (last accessed 23 May 2001). "At the signing of the 1982 Convention, Brazil, Cape Verde, and Uruguay declared that they did not consider military exercises, manoeuvres, or weapons testing as being permitted within the EEZ without the consent of the coastal state. Claims of jurisdiction over security in the EEZ have also been made by Bangladesh. Burma. Cambodia. Haiti, Pakistan. Sri Lanka, Vietnam, and the People's Republic of Yemen ... The U.S. historical approach to navigation and overflight has little meaning to this community of nations... From their perspective. repeated incursion into their waters by U.S. naval forces, demonstrating freedom of navigation rights could be seen as superpower 'bullying'".: see also See also: Alexander, Lewis M., "Uncertainties in the Aftermath of UNCLOS III: The Case for Navigational Freedoms" (1986) 17 Ocean and Development and International Law 333-342 online: Westlaw (TP-ALL) (last accessed 21 May 2001).; Mour, Al, "The Legal Status of the Exclusive Economic Zone (1977) 33 Rev. Egyptienne Droit International 35, 60-61 cited in Hailbronner, Kay, "Freedom Of The Air And The Convention On The Law Of The Sea" (1983) 77 American Journal of International Law 490 online: Westlaw (TP-ALL) (last accessed 23 May 2001 ).

Rose, Stephen A., Commander, "Operational Law: Naval Activity In The EEZ - Troubled Waters Ahead?" (1990) 39 Naval Law Review 67 online: (TP-ALL) (last accessed 21 May 2001.

Francioni, Francesco, "Peacetime Use of Force. Military Activities, and the New Law of the Sea" (1980 18 Cornell Int'l L.1. 203 at p. 214, citing Conforti. "L'institution de la Zone Economique Exclusive en tant que Facteur de paix dans le Méditerranée" in Méditerranée : Zone de Paix (1983): and Benchikh. "La Mer Méditerranée. Mer Semi-fermée" ( 1980) Revue Générale de Droit International Public at pp. 284-290.

" No Legal Precedent for US Spy Plane Case" online: Inside China Today (Reuters) Homepage http: www.freerepublic.com/forum/'a3acb28bal683.htm. (last accessed: 14 May 2001).

Meyer, supra, note 7.

Ibid.

Alexander, supra, note 7 :"rationale for imposing restrictions not covered by [UNCLOS] involves national security, a particularly difficult factor to gauge because governments' perceptions of security needs can border on paranoia."

McDougal, Myres; Lasswell, Harold D. & Vlasic, Ivan A., Law and Public Order in Space (New Haven: Yale University Press, 1963) at p.306.

Ibid. at p. 257.

Sohn, Louis B. & Gustafson, Kristen, The Law of the Sea: in a Nutshell (St. Paul. Minn.: West Publishing 1984) at p. 95.

Juda, Lawrence, "The Exclusive Economic Zone: Compatibility of National Claims and the United Nations Convention on the Law of the Sea" (1986) 16 Ocean Development and International Law 31. online: Westlaw (TP-ALL) (last accessed 23 May 2001). "In the high seas freedom of navigation and overflight were available to ships and planes of all states subject only to the criterion of 'reasonable use' and consideration for the 'legitimate rights of others'."

Supra, note 1 at art. 300.

United Nations Institute for Disarmament Research, "Peaceful and Non-Peaceful Uses of Spaces: Problems of Definition for the Prevention of an Arms Race," (New York: Taylor &. Fancis 1991) at pp. 44-45. "Under the 1969 Vienna Convention on the Law of Treaties, the most authoritative text concerning; the interpretation of international agreements, words in a treaty must be interpreted in accordance with their 'ordinary meaning' [Article 31( I )]. In all reputable dictionaries of the English language, the term 'peaceful' is defined much as in the Oxford Dictionary where 'peaceful' means 'disposed or inclined peace: aiming at or making for peace, friendly, amicable, pacific'. By no stretch of the imagination can this description be applied to any current or past military use of space. If 'peaceful' means 'non-aggressive', then it follows logically - and absurdly- that nuclear and chemical weapons are also 'peaceful', as long as they are not used for aggressive purposes."

Vicuna, Francisco Orrego, The Exclusive Economic Zone (Cambridge: University Press. Cambridge, 1989) at pp. 93-120.

Supra, note 1at art. 87.

Ibid. art. 88 (emphasis added)

Ibid, at art. 58(1) (emphasis added).

Ibid.; see also Richardson, Elliot L., "Law of the Sea: Navigation and Other Traditional National Security Considerations" (1982) 19 San Diego Law Review at p. 574. "The substantive attributes of the freedoms enjoyed by all States in the [EEZ] derive their content not only from article 58, paragraph 1, and from the provisions of article 87, absorbed by the cross-reference to that article, but gain additional content from the other paragraphs of article 58. Thus the zone, like the high seas, must be reserved for 'peaceful purposes' - a phrase intended to enjoin observance in those areas of the Charter of the United Nations." Oxman, Bernard H., "The Third United Nations Conference on the Law of the Sea: The 1977 New York Session (1978) 72 American Journal of International Law 57, 72 et seq. held that: "Article 58 represents a compromise, accommodating the sui generis approach to [the EEZ]."

Supra, note 1 at art. 301 (emphasis added).

Article 88 UNCLOS further complements the non-aggressive interpretation of article 301's "peaceful purposes".

Supra, note 20 at p.109. Article 301 UNCLOS is important because "it includes the abstention from any threat or use of force against the territorial integrity or political independence of any state or in other manner inconsistent with the principles of international law embodied in the Charter of the United Nations" at 109: Attard, David J., The Exclusive Economic Zone in International Law (Oxford: Clarendon Press. 1987) at pp. 67-69, 78-86. "Article 58(1) which guarantees internationally lawful uses of the seas... is intended to facilitate military navigation and overflight. However, this vague proviso is bound to lead to problems [because] CLOS... is neither comprehensive nor clear... [and] Articles 88, 301, and the UN Charter would be involved. Even if the particular military use is lawful, it still has to 'have due regard' to the coastal State's rights and duties under Article 58(3)."

Supra note 4 at art. 2(4).

Supra note 4 at art. 1.

Supra note 20 at p. 115.

"China. U.S. Disagree on Law of the Sea" online: Muzi News: Late Line News Homepage http: latelinenews.com; news.shtml`?1=english @ a=express&p-106-3764 (last accessed: 23 May 2001).

Supra, note 3 (Emphasis added)

Supra, note 2.

It sets up the International Civil Aviation Organization 1944 ("ICAO") as the regulatory body for international civil aviation. The Council of ICAO adopts Annexes to the Chicago Convention setting out "international standards and recommended practices" (Chicago Convention, Art. -54 (1)). These Annexes provide the basis for aviation safety regulation throughout the world.

Supra, note 2 at art.3 (a), "This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft."

Ibid. at art. 3(b), "Aircraft used in military, customs and police services shall be deemed to be state aircraft.": Churchill. R.R., & Lowe, AN., The Law of the Sea (Manchester: Manchester University Press 1999) at p. 173. Under other circumstances, however, "it would seem reasonable to argue that art. 12 [of Chicago Convention] is one of the 'pertinent rules of international law' which by virtue of art. 58(2) [UNCLOS] apply to the EEZ...A similar conclusion was [also] put forward in a 1987 by the ICAO secretariat".

Hailbronner, Kay, "Freedom Of The Air And The Convention On the Law Of The Sea" (1983) 77 American Journal of International Law 490 online: Westlaw (TP-ALL) (last accessed 23 May 2001 ). "the EEZ might be considered as an evolving concept in which the rights and jurisdiction of the coastal state and other states are only party fixed by the Convention." Hailbronner "would suggest that the scope of the rights and jurisdiction of the coastal state in the airspace above the EEZ must be determined according to the purpose for which question is asked."

Kwiatkowska, Barbara, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Boston: Martinus Nijhoff Publishers, 1989) at pp. 109-110, 198-204, 212-215. "As regards military activities, in view of the legislative history of Article 58, uses such as ... collection of military intelligence regarding foreign activities at sea, are clearly internationally lawful uses of the sea... in the EEZ... But, as with all other uses, military activities are subject to the principle of equivalence and reasonableness of competing uses ... and must conform with a principle embodied in Article 88 reserving the high seas for 'peaceful purposes'. The latter principle requires that, as it follows from Article 301 ... while engaged in the exercise of military uses states must refrain from any activities inconsistent with the objectives and principles of the UN Charter, especially from any threat or use of force" at p. 203.; see also Qin, Li, "A Look at Plane Collision Incident From Perspective of International Law" online: http: www.chinadaily.com.cn/cover/storydb/2001/04/16/mn-law.416.htmI (last accessed: 14 May 2001). "The United States turned a blind eye to relevant stipulations in international laws, and the US military plane abused the freedom of overflight...although foreign aircraft enjoy the freedom to fly over the [EEZ] ...such a freedom is by no means unrestricted and foreign aircraft have to observe the relevant rules of the international law while enjoying the freedom of overflight...[In reference to article 301 and 58] [t]hese activities constitute threats to Chinese national security and peaceful order, and he provocation to Chinese national sovereignty. The US act violates the fundamental principles of international law, that stands for all states to respect sovereignty and territorial integrity of each other... According to international practice and law, when a foreign military plane is engaged in activitieswhich 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" at paras. 8, 10, 11 and 21.

Particular note is given to the Introduction of the Japanese Constitution that states the Japanese people "shall secure for [them]selves and [their] posterity the fruits of peaceful cooperation with all nations... [they] desire peace for all time and are deeply conscious of the high ideals controlling human relationship and [they] have determined to preserve [their] security and existence, trusting in the justice and faith of the peace-loving peoples of the world. [They] desire to occupy an honoured place in an international society striving, for the preservation of peace." In addition article 9( l ), states Japan is to aspire, "sincerely to an international peace based on justice and order..." The Constitution of Japan, 3 November 1946 can be found at http://list.room.ne.jp/~lawtext/1946C-English.html (last accessed 3I May 2001).

Cohen, William, Secretary of Defense, "The United States Security Strategy For The East Asia-Pacific Region 1998" (12 July 1997) online: DefenseLINK : U.S. Department of Defense Homepage: http: www/defenselink.mil/'pubs:easr98 (last accessed: 25 November 1998).

Qin, supra note 38 at para. 29. "Francis Boyle a US professor of international law, pointed out that the US would not tolerate it if China took similar actions like the US military plane has done in the airspace over Chinese waters within the US Air Defense Identification Zone."

Joint Communique of the United States of America and People's Republic of China, February 28, 1972. Online: Ministry of Foreign Affairs of the People's Republic of China Homepage at http:www.fmpre.gov.cn/eng/7155.html (last accessed: 3 June 2001).

Joint Communique on the Establishment of Diplomatic Relations between the people's Republic of China and the United States of America, January 1,1979. On-line: Ministry of Foreign Affairs of the People's Republic of China Homepage at http:www.fmpre.gov.cn/eng/7152.html (last accessed: 6 June 2001).

Joint Communique of the United States of America and People's Republic of China, August 17, 1982. Homepage at http:www.fmpre.gov.cn/eng/7153.html (last accessed: 6 June 2001).

Song, Yann-Huei "One China, But Two Sets of Maritime Legislation: Developments, Implications, and Challenges for the United States" in Scheiber, H.N, ed., Law of the Sea: The Common Heritage and Emerging Challenges (Boston: Martinus Nijhof Publishers, 2000) at pp. 426-427. "As far as the challenges for the United States are concerned, the major ones are: (1) the possibility of armed conflicted erupted in the Asia-Pacific region due to territorial or maritime jurisdictional disputes, which not only have the potential to disrupt peace and stability in the region, but also affect important American national interests concerned: (2) the existence of 'excessive maritime claims' in the South China Sea area which will continue to affect the longstanding concerns of the United States over maintaining a public order of the oceans, in particular, the right of a state to exercise freedom of navigation in the high sea: and (3) a "window of opportunity" for the United States to regain its maritime leadership by acceding to [UNCLOS]."

One day in the future, a Chinese plane, ship or submarine may stray into foreign territory or the territorial sea and the Hainan precedent of shipping back in pieces may be used against China.

Rose, supra note 8 at para. 22 "The struggle to define the EEZ is a political tug-of-war [that involves] states with dissimilar history, unequal resources, and different maritime: interest…The line between firmness and public pushiness - between assertion of rights and the appearance of superpower bullying- lies primarily in the eye of the beholder."

" Oxman, Bernard H., The Two Conferences, in the Law of the Sea: U.S. Policy Dilemmas (1983) at p. 144 as cited in Rose. Stephen A., Commander, supra note 8, "Operational Law: Naval Activity In The EEZ - Troubled Waters Ahead"? (1990) 39 Naval Law Review 67 online: Westlaw (TP-ALL ) (last accessed 21 May 2001). "If the law of the sea teaches us any lesson it is that in daily encounters with coastal nations around the globe the United States must be prepared to deal effectively and unromantically with the few who wish us ill and the many who have priorities that... may conflict with our own."