{"id":3626,"date":"2023-08-24T18:38:54","date_gmt":"2023-08-24T18:38:54","guid":{"rendered":"https:\/\/cornellilj.org\/?p=3626"},"modified":"2026-03-25T18:56:30","modified_gmt":"2026-03-25T18:56:30","slug":"how-does-international-law-apply-to-the-chinese-balloon-vol-56-1","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/cilj\/2023\/08\/24\/how-does-international-law-apply-to-the-chinese-balloon-vol-56-1\/","title":{"rendered":"How Does International Law Apply to the Chinese Balloon?, Vol. 56.1"},"content":{"rendered":"\n

Introduction<\/strong><\/p>\n\n\n\n

Sooty piles of gray stone rose into an overcast gray sky. One could barely distinguish the two grays. Neon vests shone sharply against the gray, worn on workers scurrying about the hard-rock mines of Montana\u2019s hill country. Miner Michael Alverson\u2019s gaze drifted to the sky and noticed the moon. Soon another moon grew apparent \u201coff to the right.\u201d Confused, Alverson gathered coworkers and observed the false moon through binoculars. \u201cIt just kind of\u2026 seemed like it had a comet trail or tail, and then it just, like, totally stopped and just started hovering,\u201d recalled Alverson. Quickly the truth dawned upon him, \u201cit appeared to be some sort of balloon.<\/a>\u201d<\/p>\n\n\n\n

This second moon looming over Montana\u2019s mining hills embroiled the United States in a multi-week crisis with the People\u2019s Republic of China. Verbose American accusations, indignant Chinese denials, bellicose newspaper headlines, rabid talking heads, scrambled fighter jets, and, ultimately, the U.S. Air Force shooting the balloon down into the waters of the South Carolina coast. \u201cIt was two fighter jets dancing with this thing going around and around it,\u201d eyewitness Jeffrey Billie told the New York Times<\/em>, \u201cthen\u2026 the round big white ball that we saw all of the sudden looked like a shriveled Kleenex\u201d falling into the Atlantic.<\/p>\n\n\n\n

The Sides\u2019 Arguments<\/strong><\/p>\n\n\n\n

Both the United States and China invoked international law in their condemnation of the other. The United States callously destroyed a peaceful weather balloon, and illegally refused to return the wreckage, claimed China. \u201cImmature and irresponsible-indeed hysterical<\/a>\u201d behavior on the Americans\u2019 behalf. Conversely, the United States accused a belligerent China of ignoring American sovereignty over its airspace, a sovereignty codified in international law. Thus, President Biden\u2019s decision to destroy the balloon was both prudent and illegal, ridding American airspace of a hostile intelligence gathering device.<\/a><\/p>\n\n\n\n

Who is correct? Debates amongst international-law scholars have littered American newspapers, but the discussions have formed a consensus which I will explore further in this forum post.<\/p>\n\n\n\n

Scholars Weigh In: Chicago Agreement<\/strong><\/p>\n\n\n\n

Most scholars affirm the United States\u2019 position, arguing it rests on solid footing within international law. The world\u2019s governments met in 1944 at Chicago\u2019s Stevens Hotel<\/em>\u2019s grand ballroom, negotiating an international legal framework for airspace under glistening, brass chandeliers.<\/a> The discussions birthed the Convention on International Civil Aviation<\/em><\/a> (ICAO Convention), of which both the United States and the People\u2019s Republic of China are signatories.<\/p>\n\n\n\n

The ICAO Convention established that every nation enjoys \u201ccomplete and exclusive sovereignty over the airspace above its territory,<\/a>\u201d which typically is understood as the maximum altitude of aircraft (roughly 45,000 to 60,000 feet above sea level, thus not including satellites).<\/a> Thus, should an aircraft enter the airspace, particularly unmanned aircraft, the sovereign may ground the aircraft.<\/a><\/p>\n\n\n\n

Therefore, the downing\u2019s legality hinges on whether the balloon is an \u201caircraft\u201d under the ICAO Convention. There is a long history of considering balloons to be \u201caircrafts\u201d in the context of the ICAO. The United Nations itself deems balloons to be \u201cnon-power-driven, unmanned, lighter-than-air aircraft in free flight,\u201d thus using the magic word \u201caircraft.\u201d<\/a> Major powers such as the United Kingdom, Japan, and the Soviet Union have invoked this power to down balloons throughout the 20th<\/sup> Century. Therefore, adopting the Chinese argument would abandon decades of practice in regulating sovereigns\u2019 airspace. <\/p>\n\n\n\n

Scholars Weigh In: Montreal Agreement<\/strong><\/p>\n\n\n\n

The Chinese raise additional concerns that downing the aircraft was particularly cruel due to its alleged civilian nature and invoked international protections that apply to civilian aircraft. Why destroy a research balloon gathering meteorological data to better our understanding of weather balloons? Whether the balloon was a research or reconnaissance balloon, its unmanned nature puts it outside the protections carved out for civilian aircraft. <\/p>\n\n\n\n

The United Nations amended the ICAO in Montreal in 1984, seeking to protect civilian aircrafts from violent shootdowns. Civilian aircrafts peacefully passing across international borders are vital for global prosperity. Violent, deadly downings risk chilling important exchanges, argued diplomats in Montreal. Thus, they agreed to discourage downings when such operations would imperil \u201cthe safety and the lives of persons.\u201d No one was aboard the Chinese balloon, nor were people aboard past balloons legally downed by major powers. Therefore, the Montreal protections do not apply to the Chinese balloon. <\/a><\/p>\n\n\n\n

Project Loon: A Potential Framework <\/strong><\/p>\n\n\n\n

While the Chinese balloon may have served nefarious intelligence purposes, there still is a need for an efficient framework for managing balloons that cross international borders. Google\u2019s Project Loon forced the UN\u2019s ICAO to craft such a framework in 2018 at Punta Cana, Dominican Republic<\/a>.  Google planned to launch balloons into the stratosphere, beaming internet signals to remote, impoverished, or disaster-stricken locations across the globe. Thus, the project by its very nature necessitated high-altitude balloons crossing quite a few international borders<\/a>.<\/p>\n\n\n\n

The Punta Cana negotiations birthed several guidelines for how to legally operate balloons that pass through international airspaces. For starters, there is a general duty for a sovereign to ensure their balloons are \u201ceffectively<\/a>\u201d operated, invalidating runaway balloon or rogue operator defenses. Authorities also ought to notify any impacted air-traffic-control services to \u201cminimize hazards to persons, property or other aircraft<\/a>.\u201d If a sovereign denies the balloon entry but entry into the sovereign\u2019s airspace proves inevitable, the operator must end the balloon\u2019s operations immediately.<\/a><\/p>\n\n\n\n

Such a model would allow sovereigns to protect their airspaces from unwanted activity while encouraging productive uses of balloons drifting across international borders. Future confused episodes could result in saved equipment and the continuance of productive activities, presuming the questioned activities truly were not intelligence-gathering upon a foreign power.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

Costly, precious equipment fell shattered into the waters off South Carolina\u2019s coast. Whether the balloon\u2019s function was reconnaissance or meteorology, the United States’ response is in compliance with the governing international legal standard. The IAOC authorizes sovereigns like the United States to shoot down unmanned aircraft such as balloons, should they enter within American airspace without the sovereign\u2019s consent. The United Nations further fine-tuned this balloon standard through its governance regarding Google\u2019s Project Loon, which seems to be a workable framework to balance the interests of peaceful aviators and sovereigns. Therefore, on strictly legal grounds, President Biden\u2019s decision to down the Chinese balloon is justified.<\/p>\n","protected":false},"excerpt":{"rendered":"

Introduction Sooty piles of gray stone rose into an overcast gray sky. One could barely distinguish the two grays. Neon vests shone sharply against the gray, worn on workers scurrying about the hard-rock mines of Montana\u2019s hill country. Miner Michael Alverson\u2019s gaze drifted to the sky and noticed the moon. Soon another moon grew apparent…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13,39,17,21,460],"tags":[51,94],"class_list":["post-3626","post","type-post","status-publish","format-standard","hentry","category-articles-2","category-cilj","category-forum-archive","category-online","category-volume-56-issue-1-forum-archive","tag-airspace","tag-china"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/3626","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/comments?post=3626"}],"version-history":[{"count":1,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/3626\/revisions"}],"predecessor-version":[{"id":4501,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/3626\/revisions\/4501"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/media?parent=3626"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/categories?post=3626"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/tags?post=3626"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}