Bush tones down the rhetoric on spy plane standoff with one par China

The H word has awful resonances here, both for the public and presidents

The H word has awful resonances here, both for the public and presidents. And once TV channels and hawkish Republicans had suggested that the 24 crew members of the US EP-3 were not just being detained but were in some sense "hostages", held to extract an apology, the nature of the standoff with China changed. Resonances of Iran.

Concerned that the media were talking up, as President Bush put it, "an accident into an incident", the White House significantly changed its tack to lower the level of rhetoric, and crucially, to allow the Chinese an out. No question of an apology, they said, but they hinted that a joint investigation of the accident might produce a collective expression of regret and mechanisms for preventing further such incidents.

And the focus turned to the eminently feasible issue of getting access to and then eventual return of the crew. Although frustrated by the slowness of Chinese decision-making, few here seriously believe the wilder talk of a Chinese trial of the crew.

George Bush's every move in this, the first prolonged foreign policy challenge of his presidency, is being scrutinised intently not only at home but abroad. European diplomats, concerned that Mr Bush's recent repudiation of the Kyoto climate change protocol meant the emergence of an aggressive go-it-alone approach by the US and a growing insensitivity to the views of allies, will watch with particular interest. And they are likely, at this stage, to be reassured.

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A crucial test for them of Mr Bush's handling of the incident will be whether he allows the issue to bleed into others or can contain it. The longer the standoff over the release of the crew goes on, clearly the harder his task will be.

Although some argue that the escalating harassment of US spy planes was a deliberate attempt to test the nerve of the new US President, the tragic outcome was certainly not intended and the incident is one which both sides would like to go away.

Those who gain in both countries are the hawks. In Washington that means those in the Republican Party who want to question most-favoured trade status and want to sell radar to the Taiwanese, a move that would mark a serious reverse in the longterm attempts by the West to bring China into the global mainstream.

China has made it abundantly clear that it would regard such a move as fundamentally tilting the strategic balance and a deeply hostile act. US administrations, with support from their allies, have refrained from supplying the radar while providing the Taiwanese with assurances that their security is regarded as inextricably bound up with that of the US. A protective umbrella, but no radar.

Within the Republican Party there are clear divisions on the issue, divisions that seem to go right through the Bush family and are believed to divide Defence Secretary Don Rumsfeld from the more doveish Secretary of State, Colin Powell. During the campaign Mr Bush seemed to depart from his father's desire to embrace China in the global trading system by refering to Beijing as a "strategic competitor", signalling a tougher line akin to that, the hawks hoped, of Ronald Reagan's "evil empire" treatment of Russia.

And so while China proceeds on course to join the World Trade Organisation this year and is investing heavily to win the Olympics in 2008, others point to its aggressive harassment of spy planes, the imprisonment of a US citizen for spying, the continued repression in Tibet, and argue that the leopard has not changed its spots.

By emphasising only the issue of the crew, Mr Bush has held his hand astutely on where he stands on such debates - the Chinese do not yet know which way he will jump and therefore have still a lot to lose.

Other, tougher options are not palatable. The withdrawal of the US ambassador would leave Mr Bush without a channel of communication, and immediate trade sanctions are more likely to hurt the US computer companies who import crucial conponents from China. Suggestions that the US would block WTO accession would provoke howls of rage from allies.

We are also hearing a lot less about the plane. The pragmatic reality, now reflected in comments from the White House, is that the US's legal case for regarding the plane as an extension of its territory, and thus inviolable, is seriously weakened by its own practices in the past.

Critical to the legal dispute is whether the interception happened in international airspace. Both sides admit the approximate location of the incident, 80 miles south of the island of Hainan, but while that is clearly in international waters by US standards, China claims its waters extend to 180 miles because of rocks and islands further from the coast to which it lays claim.

Mr John Temple Swing, president of the private Foreign Policy Association, said that under a Law of the Sea treaty negotiated in the early 1980s, China's rights to the larger, 188-mile, zone were purely economic and would not prevent other countries from sending ships or planes there.

China and most other countries have signed the treaty. The US has never ratified the treaty, but adheres to many of its principles. Its diplomats fear that one consequence of an apology would be to legitimise that Chinese territorial claim.

The law of salvage is also relevant. Several lawyers told the New York Times it had long been axiomatic that while anybody could salvage wrecked and unclaimed commercial vessels, damaged warships have always belonged to the nation that built them.

But Prof Jonathan I Charney, of Vanderbilt University, said he knew of no similar provision for military planes. Prof Ruth Wedgwood, an international law professor at Yale, said, however, she believed that warplanes should logically enjoy the same protection and be able to seek safety at any airport during a peacetime emergency.

"A warplane or a ship is clearly US property but its status is in no way comparable to a US embassy," a lawyer who has served at the CIA and the State Department, Mr Jeffrey Smith, admitted to the Wall Street Journal.

But "since there was an accident over international waters, it was an aircraft in distress, and ought to be left alone," Mr James Woolsey, a former director of the Central Intelligence Agency, claims. "When we exploited aircraft for intelligence it's been when defectors brought them in, which is under a very different condition."

BUT it was not always so. The most daring effort occurred in the mid-1970s, when the CIA tried, unsuccessfully, to raise a sunken Soviet submarine from the bottom of the Pacific. Mr William Colby, the then CIA director, once acknowledged that given the traditional sovereignty accorded to sunken warships, CIA officials knew that what they were doing constituted theft.

Reassured yesterday that the crew had done their job in destroying the plane's most valuable technology and software, US officials were making it clear they have few real expectations of getting their expensive toy back.

Patrick Smyth is Washington Correspondent of The Irish Times