More China FAQs

A Pentagon spokesman has said that the Navy plane being held in China was engaged in “routine surveillance and reconnaissance” and not a “spy plane” When does “surveillance” become “spying.”

Remember this little grammar rule: I imply; you infer. To the U.S. the plane was engaged in surveillance, to the Chinese it was spying. On the U.S.’s side is the fact that this was not a covert operation, there was no attempt to disguise the plane or its purpose, and the Chinese have been aware of such planes’ activities for a long time. On the Chinese side was the mission of the plane: to gather information by intercepting Chinese military and other communications without their permission. An accusation of espionage–which has not formally been made here–does have legal ramifications because most nations, including the United States, have laws forbidding it.

Are the U.S. military personnel now being held by China considered hostages?

The U.S. has not given them that label, which would be a major polemical escalation. To call them hostages means they are being held in exchange for something. Hostage can also be an “imply/infer” situation. While we called our diplomats detained by Iran during the Carter administration hostages, Iran referred to them as detainees because they were refusing to let them go, but not using them as bargaining chips.

Is there international law on what the Chinese should do with the people they’re holding?

Yes, the Chinese should let them go. Law from the mid-19th century emerged from a dispute among the United States, Britain, and Canada. The settlement of that case established that an individual working abroad as an agent for his country who is apprehended while doing so should be handed back to his home government and the disagreement worked out diplomatically between the nations. Of course that law has not always been followed, especially during the Cold War between the U.S. and the then-Soviet Union.

Why didn’t the pilot just head out to sea and ditch the plane so the Chinese wouldn’t have gotten a chance to capture it?

Because that would have been a good way to get everyone killed. While the crew would have had parachutes, the EP-3 does not have ejection seats, so the pilot would have had to try to stabilize the plane while everyone got out, which by no means would have guaranteed their survival, witness the fate of the Chinese pilot who was able to eject. If any Americans survived they would have been picked up by the Chinese, who would also still have had an opportunity to recover the crashed plane.

Explainer, you said Monday that our military personnel were supposed to resist Chinese capture, but they weren’t armed and the Chinese were, so what were they supposed to do?

The military code of conduct does require that military personnel resist capture. But in a case such as this that’s likely to mean minimal resistance, such as blocking the doorway of the plane rather than inviting the Chinese to board.

You also said that while there are internationally agreed upon laws governing what constitutes international airspace, the laws specifically exempt military aircraft. So what difference does it make for the U.S. government to assert the plane was outside the 12-mile limit of Chinese territorial borders and therefore in international airspace?

It doesn’t make any legal difference according to Explainer’s friend Alfred Rubin of the Fletcher School at Tufts University. Rubin, a professor of international law, says the declaration is matter of public relations, but civil aeronautics law simply does not apply in a dispute over military incursion into another nation’s airspace. What applies is whether a nation asserts its right to self-defense against an aircraft threatening its territory. Rubin says the fact that the Chinese aren’t clearly citing this doctrine means they need better lawyers

Next questions?

Explainer thanks Col. Dan Smith (retired) of the Center for Defense Information, Alfred Rubin of the Fletcher School at Tufts University, Chuan Sheng Liu of the Institute for Global Chinese Affairs at the University of Maryland, and Michael O’Hanlon of the Brookings Institution.