Ben Stavis

April 23, 2001

Note: This issue is changing rapidly, and I am trying to update this file regularly as needed.

With the announcement on April 11 that a note from the United States was acceptable as an apology and the U.S. flight crew could soon return home, the airplane crisis of April 2001 finally turned from a crisis to part of the ongoing management of the complex  U.S.-Chinese relations.

The collision of the U.S. surveillance airplane and the Chinese fighter plane on April 1, 2001, loosened pent-up emotions in both the U.S. and China, and is threatening to unravel U.S.-Chinese relations.  For the United States, the delay in returning the airmen reminded us of hostages in Iran and our anxiety about China’s rising power military and economic power.  Anti-China (and pro Taiwan) forces in congress are using the incident to tilt U.S. policies.  On the Chinese side, the incident exposed recent scars of the bombing of the Chinese embassy in Belgrade as well as complex combination of anger and admiration for the U.S.  Chinese students were reported to be preparing to demonstrate in many cities.  The incident may tilt power in Beijing to more conservative, less internationalist forces. Whether the incident results in power shifts in both countries that can accelerate a dangerous downward spiral in U.S. Chinese relations remains to be seen.

The incident came at a critical political time, when the new Bush administration and the Chinese were posturing themselves to define a new relationship.  Both sides were sending signals that they would protect their interests vigorously, that they would not back down, and that the other side must be ready to compromise.  So far there is no evidence that the incident was other than an accident, but either side or both might have deliberately provoked the incident, or at least ordered actions that increased the risk of an accident, to demonstrate willingness to use force to protect national interests.  Since last fall, according to U.S. sources, Chinese airplanes have been coming very close (within 50 feet) of U.S. airplanes, so this issue has been festering, with an accident waiting to happen.

In fact, both sides used the incident for political posturing.  China demanded of the United States a quick apology and commitment to terminate such intelligence gathering flights.  More broadly, it was demanding that the United States recognize and accept its new power in the Pacific Rim.  Conversely, the United States used the incident to show it would not be pushed away from the Pacific Rim, and implicitly, that it would maintain its commitment to protect Taiwan from forced annexation.  The U.S. brought three warships into the South China sea to make clear its firmness and further angering Chinese students.

When they announced the U.S. fliers could go home, the Chinese referred to a consensus that China and the U.S. reached in May 2000 on avoiding dangerous maritime military activities.  China's Foreign Ministry spokesman also said that the way to avoid the recurrence of such incidents was to implement the existing consensus rather than introduce a new mechanism.  The Chinese comment suggests that the Clinton administration agreed to put some limitations on spy flights, but the agreement was not a "treaty" or a binding "agreement."   It is likely that the Bush administration decided that it did not share that "consensus" and resumed intelligence flights or sent them closer to the coast, contrary to the Clinton "consensus."  I have heard one rumor that the Chinese may have indicated they would not tolerate spying closer than 120 miles.  The incident took place about 70 miles from the Chinese coast.

We can examine the event itself, the immediate context, and the broader context in which it came up.

1. The Event

The Chinese have demanded an immediate apology, even before the American government could research what had happened.  Certainly an apology is appropriate if one side is responsible for an accident.  In this case, who hit whom and how?  There are two simple principles from the American and Chinese culture that help with analysis.  Americans know that "It takes two to tango."  Chinese insist one should "Use facts to seek the truth."

In the Chinese and U.S. press, we still have very few facts.  The pilot of the second Chinese airplane said the two Chinese airplanes were flying about 400 meters (one quarter of a mile) to the left of the U.S. plane on parallel courses to the East.   He claimed the U.S. plane abruptly veered towards the Chinese planes; its nose and left wing bumped one Chinese plane and its left wing propellers smashed the Chinese jet’s rudder.   We also know that the U.S. plane suffered damage to its nose cone and left propellers.

After he left China, the U.S. pilot said his airplane was flying  in a very stable way under automatic pilot, and the Chinese plane came from 45 degrees behind and below.  From this position, the Chinese plane might have been in a blind spot for the U.S. pilot.   I am quite sure the overtaking Chinese plane had the obligation to steer clear of the overtaken U.S. airplane, and the U.S. airplane was obliged to fly a straight course, if normal rules of the road apply to this type of encounter.

The tail of the Chinese airplane hit the left wing and propellers, breaking apart and coming across and  in front of his nose.  Maybe the American plane's wing dropped a bit in the normal process of flying and came into the tail of the Chinese plane.  Maybe the Chinese plane just misjudged his trajectory or lost some control going so slowly. The reported veer to the left by the U.S. plane might have been the result of suddenly loosing its left propellers, not the cause of the crash.  It seems inconceivable that the pilot of the slow, apparently unarmed, very special intelligence airplane with 24 people aboard would make reckless attempts to hit another plane in the air.  Indeed, the data point to extremely skilled piloting in bringing the damaged U.S. plane to a safe landing.

Whatever the precise events in the air leading to the crash, the underlying reason is painfully obvious to everyone with common sense.  The planes were far too close to each other for safe flying, and they kept getting closer and taking higher risks.  It became more like conflict than an accident.  The issues should have been resolved earlier at some table, and not in the air, with lives at stake.   While the actions of the U.S. pilot in the air at the time of the incident seem beyond reproach, given what we know now, the judgment calls, at whatever level they were made, to fly this mission in such an unsettled and risky context and to continue it after being buzzed twice are surely open to discussion.  Likewise, it is quite clear that the Chinese military assigned its pilots to undertake an extremely risky and possibly sacrificial assignment.  The event could easily have left 25 dead instead of 1, and a much more tragic and difficult political situation.  In the end, it will be more important and fruitful to review the choices both sides made to send planes into a very dangerous situation than to try to pinpoint exactly how the airplanes bumped.

2. The Legal Context

This incident occurred over China's Exclusive Economic Zone, where foreign ships and aircraft have rights of “innocent passage.”  There have been conflicting claims about what this means under international law under such circumstances.

The Law of the Sea defines clearly the concept of "innocent passage" in waters closer to a country's shore (up to 12 miles off shore): innocent passage is "not prejudicial to peace, good order or security of the coastal state."  Among many other activities, intelligence gathering is explicitly banned.   The U.S. spy flight clearly would have violated international law if it had been conducted within 12 miles of the shore.

Further offshore, the situation changes.  In the "Exclusive Economic Zone (EEZ), which generally goes roughly from 24 miles to 200 miles offshore, coastal states have economic rights (oil, fish).  However, Article 58 essentially says that the in the EEZ, the rules for boats (and aircraft) are essentially those of the high seas, which grant great freedoms of navigation.  Article 95 says that warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. Article 301 says that the high seas should be used for peace and states should refrain from threats against the territorial integrity or political independence of a coastal state and should comply with principles of  international law.  Certainly every government claims its military activities are designed to "maintain the peace."  My reading of the Law of the Sea is that it may give coastal states some rights against clear and serious military threats, but I am not convinced that collection of electronic signals rises to that level of a threat to territorial integrity or political independence.  As I read this somewhat vague provision in the law, I think it does not give a country the right to impede collection of electronic intelligence over its Exclusive Economic Zone.  This would seem to apply to China and the United States as well.

The Law of the Sea recognizes there may be disputes about rights over the Exclusive Economic Zone and vaguely suggests, "the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole."  This clearly suggests discussions at tables, not games of chicken in the air.

As for the U.S. demand that the airplane be granted "sovereign immunity" after it landed in Hainan,  according to one scholar,  "... there exists no right for foreign vessels or aircraft to enter a coastal State's internal waters. A warship, therefore, is required to obtain diplomatic clearance to enter a port, though such warship always retains rights of sovereign immunity while in internal waters."  Without such diplomatic clearance, the U.S. aircraft had no immunity.

Whatever "consensus" was reached between China and the U.S. in May 2000 on avoiding dangerous maritime military activities, it was not legally binding.  It did, however, communicate to both sides a sense of how the respective parties would conduct their activities.

3.  How could this happen?

Why did the Bush administration ignore a consensus that had been reached earlier (assuming the report of the consensus is accurate)?  Was there any real military reason to carry out this flight at this time and place?  I don't know the military side of the story, but  I do know that some political interests benefited from this mini crisis.   It seems peculiar that this event took place just days after China's Vice Premier Qian Qishen tried to convince the U.S. to limit arms sales to Taiwan.  It is not inconceivable to me that some Taiwan supporters in the Bush administration thought that such a provocation would create a climate of opinion supporting arms sales.  Indeed, the fallout of this incident is that the Bush administration is contemplating spy missions closer to China with armed escorts, an action that seems designed attack the Chinese "face" directly and either force a Chinese retreat or provoke a bigger crisis.  The political objectives seem far more imporant than any specific intelligence information.  I wonder whether or not documentation on this conjecture will ever emerge.

Rather than confront the U.S. airplanes with their own airplanes and intensify the conflict, China might assert its claims to control the air in this region in a multinational, legal framework within the UN agency that manages the Law of the Sea rather than responding to such provocation.  There might be considerable international support both to the idea of strengthening the role of the United Nations in such conflicts, as well as itnternational support for more clear restrictions on spy flights.

4. The broader context -- Taiwan

While electronic intelligence gathering may be routine and normal, in this case I believe it is related to the Taiwan issue.  As long as China threatens military measures to solve the Taiwan question (simply by putting more missiles along the coast facing Taiwan), U.S. military will make preparations to help protect Taiwan.  The U.S. military would certainly try very hard to understand the electronic aspects of China’s air defense system along the South Eastern coast.  It would also want to learn about Chinese submarines.  At the same time, China’s military would certainly try to keep its secrets.    I guess this incident is just the tip of the iceberg of military actions and reactions in this region, many of which are far more dangerous than electronic surveillance.  As long as the Taiwan issue is not resolved, there will be military tensions in the region of this sort and other kinds.  Political relations can be upset at any time by an accident or a provocation from either side (which Bush seems to be doing)..

The position I have heard from ordinary Chinese I meet (exercising in the park, eating at very simple restaurants) is simple, logical, and consistent with China’s family oriented culture:  Taiwan is part of China, the mainlanders and Taiwanese are all part of the same family, and the relations between the mainland and Taiwan is a family matter.  Foreign countries such as the United States have no business butting into this family issue.

In my view, this is reasonably accurate but not complete.  I reply that it is nice when families reunite, but there are many times when brothers don’t get along.  Families do divide.  Chinese history and literature are filled with stories of fratricide.  When people threaten to use violence against others, even their family members, a family matter becomes a public matter, and the police and friends might get involved. Chinese recognize that this happens too frequently, and agree that when violence occurs in family disputes, others will get involved.  This may be a useful conceptual framework for diplomats to discuss the Taiwan question.

At another level, if Taiwan becomes an independent country, Chinese fear that other regions populated by ethnic minorities could also break away – Tibet, West China, Inner Mongolia, for example.  Historically, when Chinese control over these minority regions disintegrated, this was a sign of state weakness and impending collapse, leading to massive social chaos for generations.  Recalling our civil war to save national unity, Americans can understand this argument, whether or not they agree.

These fears explain China’s urgency to ensure that Taiwan does not become independent and that Taiwan stays within the Chinese realm.  The great challenge for Chinese and Taiwanese diplomats is to come up with a formula that protects Taiwan’s autonomy, security, and ability to function in a global environment while at the same time deepening its relations with the rest of China and maintaining a formula in which Taiwan is not a formal, independent country.

5. Move towards Peace

While we may agree that the China-Taiwan issue is a “family matter,” we can still explain that when violence is threatened, we have a right and duty to help our friends protect themselves. When threats of violence are withdrawn, we have less anxiety about friends safety, less reason to think about military issues, and less reason to provide military aid.

The way to improve and stabilize our relations with China involve these types of steps:

• Most obviously, everyone flying airplanes and piloting boats in the region needs to have a precise agreements about what the Law of the Sea means in different locations.  One would think the starting point would be to use an existing "consensus."  If there are problems in revising it, the Law of the Sea is an international agreement and does provide various modalities  for international mediation.
• Just because the law of the sea may tolerate spy flights over the exclusive economic zone does not mean that such flights are sensible.  Obviously, they incur great political costs.  Maybe there is a way of linking reduction and elimination of military flights in China's economic zone to the reduction of military preparations throughout the regions of China's coast oriented towards Taiwan.
• China could agree to reduce its military build-up, including rockets,  along the coast facing Taiwan.
• The United States could decide not to sell very advanced arms to Taiwan.
• There might be agreements on intelligence collecting and sharing to confirm a mutual build down.ive Economic Zone and has a tribunal to assist in resolving such disputes.

Increasing globalization will raise all sorts of difficult questions in the future, and it will be very difficult to resolve them if there are perpetual tensions between the U.S. and China.  A strong, healthy relationship between the U.S. and China is essential for global development in this new century.  We owe it to our children and grandchildren to get this relationship on the right track now.