23
February 2023
John Van Doorn
The
overflight of the continental United States by a Chinese balloon (with apparent
surveillance capabilities) during the period of 3-10 February 2023 has brought
an obscure international law topic to top-of-mind for specialists and ordinary
citizens alike. It has also been
revealed that Chinese balloons have overflown at least 40 other states as
well. Is this even allowed? How could the Chinese be so brazen? Does everybody do this, and we just don’t
know about it? Is there any danger to
floating balloons over other states? If
so, at what altitude, or does that matter?
As
noted in our book, Fundamental Perspectives on International Law Seventh
Edition (Cambridge U.P., 2023), the limits of a state’s airspace sovereignty
have not been established in international law, despite a UN body being
specifically tasked with doing so in 2002.
In that way, not much has changed since the 1960 shoot-down of a high-altitude
U.S. surveillance plane by the then-U.S.S.R. (now Russia) as seen in the Powers
v. the U.S.S.R case.
For
a time after the Powers case, the major countries in the world took the opposite
tack, that it was better to be (somewhat) more transparent to other
Great Powers, lest their intentions and capabilities be misunderstood by a
potential foe. This resulted in the Open
Skies Treaty (not to be confused with the Open Skies Agreement) which remains
in force, although two of its most powerful signatories, Russia and the U.S., had
rejected it by 2019. This treaty allows
for almost unlimited mutual overflights by designated military aircraft.
To
avoid a repeat of the Chinese balloon incident, on 16 February 2023, President
Biden called for “sharper rules” and “common global norms” to make clear what
is—and what is not—allowed in this vague “near-space” air zone. It was not clear from the President’s remarks
whether these rules would just apply to the U.S. or would serve as the basis
for a new treaty proposal. We concur
that the need for universally agreed upon and applicable rules which define the
limits and uses of “near space” are long overdue, although we are skeptical
that such rules could be adopted by “a sufficient number of states” in the
present climate to become effective and legally binding. On the contrary, it appears that evolving
Chinese doctrine (and perhaps Russian as well) envisions “near space” to be
both a strategic and possible war-fighting domain, and would therefore resist
new international rules, regimes, or treaties.
This is in sharp contrast to earlier Chinese and Russian calls to
de-militarize (and perhaps de-commercialize) outer space (see the text).
Beyond
these concerns for security in the international law of extraterrestrial
sovereignty is the practical need to regulate—and lessen—the number of objects
allowed which can pose navigational hazards to aircraft and spacecraft in these
air and space zones. An example of this
is the thousands of internet satellites that have already been launched by the
SpaceX corporation, with many more launches planned.
For
a practical and non-jargony treatment of this timely and significant topic, we
invite you to explore further in our book, and on the companion website, both
available at www.cambridge.org/FPIL7
! We would be happy to publish here on
our blog selected responses from general readers, teachers and students on this
and other topics treated in the book.
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