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American Morning

U.S/China Standoff: International Guidelines

Aired April 05, 2001 - 10:22   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN CORRESPONDENT: Let's take a look now at some legal aspects of the U.S.-China plane incident. Are there any international guidelines for this situation? Well, to help us figure this out, we call on William Alford. He is professor of law at Harvard, where he's also director of East Asian legal studies. He joins us from Boston.

Good morning, professor. Glad to have you with us today.

WILLIAM ALFORD, HARVARD LAW SCHOOL: Good morning. Thank you.

HARRIS: Well, you know, the first question that occurs to me is that the international laws that seem to be at play here seem to be, there seem to be so many different conflicting views about which laws actually apply. What's your view, because we've heard, you know, we've heard the Chinese side saying that there's no international convention that applies here. We've heard the U.S. side saying that there are plenty that do.

ALFORD: Well, thank you.

First of all, I think it's important to realize that although the international law issues are significant, they're not going to be determinative here at the end of the day. So we don't want to be mesmerized by them. That's because the two sides have different views and there's really no objective adjudicator in this kind of process. It also, I think, focuses us a little too much on what's happened as opposed to a future oriented resolution of the problems.

HARRIS: One of the things that, one concept that we hear bantered about so often here in the U.S. is possession being nine tenths of the law. Does that apply in this case now that the Chinese actually have this plane on the ground in their country?

ALFORD: Well, that does take us back to one of the international legal issues. The Chinese say that we entered their airspace and territory when the U.S. plane landed without seeking Chinese permission and therefore waived any sovereign immunity that would have protected the integrity of the airplane itself.

The U.S. position, of course, is that the airplane was in distress and that in distress had to make an emergency landing and that therefore we didn't waive the rights. Again, it's something of a stand-off from a technical viewpoint. I don't think the technical legal issues are what will resolve this part of the struggle.

HARRIS: You know, but, say, for instance, you were a judge in whatever court anyone would bring this case to, and say the U.S. does bring this case to you and say well, the incident that happened that caused the whole thing started in international airspace over international waters and we crossed the border when we had this emergency. I mean what would you as a judge say in this case?

ALFORD: Well, again, two things. First of all, on the legal issue precisely, which is the other critical one, there's disagreement as to whether it was international air space. The U.S. position, which I think is probably the correct one, is that we were over international -- in international air space over international waters. The Chinese position is that the water is part of China's exclusive economic zone under the Law of the Sea Convention, which China has ratified. The U.S. has not. And that therefore China can take action with respect to what it believes to be threats to its national security over its exclusive economic zone.

The more important point, again, though, is that there isn't a court here to resolve it, be it in China or the U.S. Yes, there is an international court of justice, but there's no way that that body could resolve this particular dispute in a timely fashion.

So law is important here, but I think we're thrust back to diplomacy and working out a creative solution more than arguing the legal technicalities.

HARRIS: So you have an international law but you don't have a court to actually enforce an international law? There just isn't an international Judge Judy or anything like that out there that would enforce any kind of agreement or a settlement in this case?

ALFORD: Would that we did, right. No, unfortunately, we don't. I think also although the customary international law as well as this Law of the Sea Convention, I think both probably are inclined in the U.S. position, I think we are hurt a little bit by the fact that we didn't as a country sign onto the Law of the Sea Convention. But again, the more important point is not the technical legal issue, which we're not going to reach a formal resolution of, but to creatively think of solutions, be they joint commissions or other kinds of diplomacy.

HARRIS: So the U.S. is not a signatory to this Law of the Sea? Why not?

ALFORD: Well, we had begun to negotiate that agreement under the tenure of President Carter. The late Elliot Richardson, a very prominent diplomat, had been the U.S. representative. But during the Reagan administration we chose not to go along with that convention as part, I think, of a more cautious position on entering international legal agreements, much as we saw last week. The U.S. expressed some reservations about the Kyoto Protocol on global warming.

So one can understand such caution, but it comes, I think, sometimes with a little bit of a price. Again, that doesn't undermine the U.S. position totally. We, I think, are probably correct that under customary international law this was an area where we had a right of over flight.

HARRIS: All we need is an international Judge Wapner and this case would be OK.

ALFORD: That would be (unintelligible).

HARRIS: Wouldn't that be a nice world?

ALFORD: Exactly.

HARRIS: Thanks very much, Professor William Alford from Harvard Law School. Appreciate the time and the insight this morning. Take care.

ALFORD: Thank you. Thank you.

DARYN KAGAN, CNN ANCHOR: We want to show you pictures we've been getting in here from CNN related to the story of the U.S.-China stand- off, pictures from Santiago, Chile. These are pictures of Chinese President Jiang Zemin arriving in Santiago.

This is the beginning of a two week long trip, a previously scheduled trip that he is taking through South America, also scheduled to go to Cuba -- Some concern on the American side that the Chinese president would still choose to continue with this trip given the stand-off and the tensions that are rising between the two countries in the wake of the collision between the two planes and the holding now of the 24 crew members on that Chinese island.

But the Chinese are insisting that just because President Jiang is on the road and is continuing with this international trip that negotiations and talks still will continue with both countries.

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