Sovereign airspace, and beyond: downed balloon raises legal questions

Name: China says US balloons flew over Xinjiang, Tibet as diplomatic row deepens
Uploaded: 2023-02-15T23:14:07.000Z
Duration: 3 min 30 s
Description: China says US balloons flew over Xinjiang, Tibet as diplomatic row deepens

US could shoot a Chinese balloon down since it was clearly in its airspace, international law experts say

But the incident presages further disputes about high-altitude encounters – and the law is unsettled

Reading Time:5 minutes

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A fighter jet flies past the remnants of a large balloon after it was shot down above the Atlantic Ocean, just off the coast of South Carolina on February 4. Photo: Chad Fish via AP

Bochen Hanin Washington

Published: 7:14am, 16 Feb 2023Updated: 1:47am, 17 Feb 2023

The alleged Chinese surveillance balloon that floated across North America two weeks ago has stirred a broader debate over international law and the meaning of sovereignty – a legal principle Beijing often invokes, and that Washington has cited to justify its downing of the craft.

When US Secretary of State Antony Blinken postponed his trip to China, he called the balloon a “clear violation of US sovereignty and international law”. And a US House of Representatives resolution condemning Beijing cited Article 1 of the Convention on International Civil Aviation, which says that “every state has complete and exclusive sovereignty over the airspace above its territory”.

03:30

China says US balloons flew over Xinjiang, Tibet as diplomatic row deepens

Beijing, which acknowledged the balloon as its own, has neither admitted nor denied violating international law.

Instead, after contending that the balloon entered the US “due to force majeure” the foreign ministry protested the US downing of the craft as an “indiscriminate use of force against [a] civilian airship” that “seriously violated the spirit of international law and international practice”.

The Chinese defence ministry subsequently confirmed that it declined a call with the Pentagon the day of the takedown for that reason.

There is no clear dividing line between national airspace and outer space

Donald Rothwell, Australian National University

International law experts noted Beijing’s careful wording: the Chinese government has not claimed that the US violated international law – merely the spirit of it, as well as international practice.

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Sovereign airspace, and beyond: downed balloon raises legal questions

US could shoot a Chinese balloon down since it was clearly in its airspace, international law experts say But the incident presages further disputes about high-altitude encounters – and the law is unsettled

US could shoot a Chinese balloon down since it was clearly in its airspace, international law experts say

But the incident presages further disputes about high-altitude encounters – and the law is unsettled