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FROM CHINA WITH LOVE?
Articolo a cura di Gabriele Colella
Revisione a cura di Federico Grossi
1.The facts
In the age of satellite surveillance, facial recognition software and cyber-warfare, who would, or could, have thought that a serious international incident between two global powers could erupt out of something so primitive like a balloon?
More importantly, was any of what happened legal? Could there be legal repercussions for either flying the balloon, or shooting it down? Let’s find out.
First and foremost, any analysis would be lacking if we did not reconstruct the facts.
On January 28th, a balloon originating from the People’s Republic of China entered the American Air Identification Zone north of the Aleutian Islands: drifting at 60,000 feet of altitude, it ended up flying over most of the northern United States, from northern Idaho to South Carolina, and passing over some very sensitive sites, on which we will come back later.
After some time, Secretary of Defence Lloyd Austin and President Biden ordered the balloon shot down over U.S. territorial waters, and managed to recover most of the payload.
Chinese officials responded with harsh criticism of U.S. handling of the crisis, stating that “for them to insist on using armed forces is clearly an excessive reaction that seriously violated international convention”.
Is China correct in its analysis of the matter, or did the U.S. just exercise their right as a sovereign nation to police its own borders? As with most things regarding international law, it’s complicated.
2. The law(s)
To determine if a violation occurred, one must first identify the relevant law that was allegedly violated: this legal onion of a case has multiple layers and overlapping principles, and they all should be kept in mind.
The concept of sovereignty lies at the heart of the dispute: article 2 of the UN Charter bases the organization “On the principle of sovereign equality”. Yet, as any right or principle, sovereignty is not absolute, as any nation can consent to limitation and legal bounds on its capacity to act however they see fit: one such limitation is the Chicago Convention on International Civil Aviation.
The Convention is the main body of laws regulating international flight and it’s been ratified by all 193 UN Member States: it explicitly states that
“No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof”
Article 3-bis goes on specifying that “the contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered”.
The question is particularly delicate since the use of weapons against civilian aircraft can be seen as an act of war against another State, in violation of Art. 2 sub-four of the UN Charter.
Luckily, the Convention has provisions specifically addressed to unmanned free flying balloons.
Appendix 2, named “Rules of the air” and Appendix 4 to Appendix 2 establishes in paragraph 2.2 that
“An unmanned free balloon, other than a light balloon used exclusively for meteorological purposes and operated in the manner prescribed by the appropriate authority, shall not be operated across the territory of another State without appropriate authorization from the other State concerned.” ; furthermore, said authorization “shall be obtained prior to the launching of the balloon if there is reasonable expectation, when planning the operation, that the balloon may drift into airspace over the territory of another State.
3. How the facts fit into the law
The Chinese Ministry of Foreign Affairs (MFA for short) claims that the balloon in question was indeed civilian in nature: in their statement, they said they would “resolutely defend the legitimate rights of the enterprise involved”, implying that the use of weapons against it could be considered as an aggression on China itself and hence as an act of war.
The problems with this version are, however, numerous.
First, no U.S. authority was given any notice of the balloon and no authorization was ever issued.
Second, the Chinese MFA could and did argue that this flight fell into the exception established for “light balloons used exclusively for meteorological purposes”.
Once again, though, in order to qualify for the exception in paragraph 2.2., the payload needs to weigh less than four kilograms: visual accounts of pilots and other government personnel describe the payload to be as big as “three school buses” and the remains recovered by the U.S. Coast Guard seem to greatly exceed that limit.
Third, the aforementioned paragraph clearly states that said light balloon must be used exclusively for meteorological purposes, while statements by a spokesperson for the Chinese MFA described it as “mainly” used for such purposes, and once again the remains tend to suggest that such sophisticated equipment was not just used for atmospheric research. Adding fuel to the fire is the suspicion that the balloon flew over some very sensitive sites, such as Malmstrom Air Force base in Montana, which hosts 150 silos for ICBM, including the nuclear-capable Minuteman III.
Now, does that mean that the U.S. had some legal basis for shooting it down? Possibly.
U.S. statements made it very clear that the balloon did not pose a threat to commercial or military aviation, due to the height it was flying at, making it impossible for the self defense exception established in article 51 of the U.N. charter to be invoked (and in fact, the Biden Administration never mentioned self defense as a reason to shoot it down).
American framing of the question always revolved around sovereignty and their right to enforce its airspace against what could be legitimately considered a target, just as much as any other state aircraft entering while unauthorized, and as of now, there are no elements which contradict this version of the facts and of the law.
International law is, as expected, a lake of murky waters, much harder to navigate and enforce than domestic legislation, and subject, in its creation and application, to valuations of political and sometimes selfish nature.
As can be seen by this explanation of the ins and outs of the rules regulating the topic, political discretion and framing have a huge influence in governments’ decision making, especially on sensitive and delicate issues and events such as this. Any inaccuracy in collecting or reporting information can lead to dangerous levels of escalation, as seen by the other three unidentified flying objects being shot down over North-American territory. This whole affair has led NORAD, the agency policing American and Canadian skies, to be more thorough and assertive in its line of work.