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#SpyBalloon: The Hashtag That Made Us Consider National Security Law

By: Sindi Connell & Sophia Navedo-Quinones

The year kicked off with what can only be described as the most unexpected trending topic on social media: #SpyBalloon. Last week, the world tracked the movement of a seemingly harmless balloon via news and social media platforms. But as the object traversed the continental U.S. and the threads of Twitter, Reddit, and Facebook, the balloon quickly morphed into something much more serious. As U.S. officials continue to provide further insight, the legal implications on our national security posture come into focus. This article will offer the community a brief overview of the laws in question and legal considerations moving forward.

A Quick Recap

The balloon entered U.S. airspace over the Aleutian Islands on January 28th. By January 31st it had floated across western Canada and reentered the U.S. over the northern tip of Idaho. Although closely monitored by U.S. officials, news of the balloon hit social media outlets by February 1st, setting off a flurry of reports and commentary. The following day, the Biden Administration issued its first official statement on the matter, igniting a frenzy of jokes, conspiracy theories, and a significant diplomatic clash with China. Within 24 hours of the official statement, China confirmed its point of origin.

China claims that the high-altitude balloon was intended for meteorological research and unexpectedly drifted off course, citing a force majeure exception to customary international law. U.S. officials have concluded otherwise, even disclosing that this is not the first time a Chinese surveillance balloon has been identified in U.S. airspace, let alone the Western Hemisphere. Both countries now face diplomatic and political fallout from last week’s events. Within days of the balloon’s entrance Secretary Blinken canceled his trip to China. China responded by asserting that the downing of the high-altitude balloon with a F-22 fighter jet-fired missile was an overreaction and violation of international convention. They also stated they reserved the right to respond. Meanwhile, the U.S. maintains that the balloon’s mere entry into U.S. airspace is an intrusion on U.S. sovereignty and violation of international law.

What international laws apply here?

Throughout the ordeal, the Biden Administration echoed the stance that there was a clear violation of international law. While the idea is logical, the reality is complicated. Global governance is a compilation of norms and international agreements which rely on States’ consent to be bound. Conventions and treaties are the main bodies of agreed upon standards, but when such arrangements do not exist, states rely on other sources, such as customary international law.

Treaties have yet to categorically define the atmospheric limbo in which the balloon operated (60,000 feet). To discern the applicable law, it is helpful to consider what category of platform the balloon may fall into. Is it more like a drone or a satellite? Does the altitude qualify as space or air? The rules governing each are quite different.

Article 1 of the Convention on International Civil Aviation (signed by the U.S. and China) states that every nation has “complete and exclusive sovereignty over the airspace above its territory”, but it does not specifically define to what altitude this sovereignty extends to. Of note, Article 3(a) specifies that its purpose is to address civilian aircraft, but Article 3(c) also proclaims that, “[n]o state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement . . .” Besides the explicit statement within the convention, state aircraft (which include military, customs, and police) have their own set of rules and regulations. Additionally, the Federal Aviation Administration (FAA) issues specific guidance for qualifying foreign state-owned aircraft.

Today the highest airliner flies at about 45,000 feet (just over 7 nautical miles) and the highest-flying military jet, the SR-71, can fly at about 90,000 feet (approximately 15 nautical miles). China’s high-altitude balloon floated approximately 10 nautical miles above land. If the balloon is considered an aircraft, its travel altitude falls well within the conventional definition of airspace. The Convention on Civil Aviation was originally adopted in 1944, decades before the dawn of satellites and sophisticated planes, which traverse the globe every day. As technological advances in air-breathing platforms push the limits of atmospheric travel, the international community may need to define the bounds of a sovereign’s airspace.

Defining space is equally complex. A common definition is the KaÌrmaÌn Line, which is an imaginary line 62 miles above the mean sea level. The U.S. and NASA say space starts 50 miles above the Earth (about 43 nautical miles). The record for lowest orbiting satellite is just over 104 miles (approximately 90 nautical miles). The balloon floated many miles below “space territory”, making it an unlikely candidate to claim satellite status for freedom of movement. And although the balloon traveled well above commercial jet travel, it was still clearly within reach of military aircraft.

Without question, a State retains the power to decide what they do and do not interpret as violations of its sovereignty. The question is whether the atmosphere the balloon traversed falls within the bounds of U.S. airspace. The U.S. has made clear that it views the balloon’s intrusion and travel above U.S. land as a violation of sovereignty. That stance alone has major implications for relations with China even without clearly defined air boundaries.

But the Plot Thickens

On February 9th, the State Department declassified and published its findings on China’s high-altitude balloon surveillance program. The release only confirmed what many have been speculating since the balloon’s initial appearance. Surveillance operations by China and other nations are expected, but the methods of collection continue to change with technological advances far too fast for agreements or legislatures to keep up.

To be clear, surveillance balloons are not exactly a new technology. Balloons have been deployed by several countries for well over a century, typically during times of war. Expendable and relatively cheap, spy balloons can traverse large distances and function well in poor weather conditions, making them more useful than satellites at times. Today’s spy balloons resemble drone technology, although they operate at substantially different altitudes. While there has been a steady increase in drone-focused policy by the FAA and individual states, balloons and other uncommon platforms are governed by little regulation in the U.S. and even less through international convention.

That said, there is clear policy on U.S. intolerance for espionage. Sections 792-799 of Title 18 define acts considered to be espionage. Of particular relevance is 18 U.S.C. § 796, which outlines the use of aircraft for photography, and 18 U.S.C. § 793, which serves as a catch all as it covers the gathering of intelligence in various forms. As the intelligence community continues to exploit the captured balloon, the public can expect additional evidence to justify the U.S.’s actions in shooting it down.

One may wonder why China would be so bold as to employ a highly visible collection platform. The answer may be as simple as an intent to measure U.S. reactions and procedures, military or political. Other plausible reasons are that they sought to test collection capabilities aboard the balloon or collect additional intelligence. As mentioned in the State Department’s release, this is not the first time China has deployed balloon platforms in the U.S. let alone the world. Similar deployments occurred in other locations such as Taiwan and the Philippines. The latest iteration of spy balloon may have different technology, materials, or a variety of other factors.

Did the U.S. really overreact?

Intelligence experts do not think so. Yes, the U.S. used a $450,000.00 missile and two F-22 fighter jets to bring down a balloon that probably cost China substantially less. However, many experts assess that if the roles were reversed, China would have likely reacted with at least equal force, perhaps more promptly. To support this assessment, experts cite previous encounters between U.S. and Chinese forces. But even without a history of skirmishes, the principle of sovereignty and defense may provide sufficient justification for the reaction.

Article 2(4) of the U.N. Charter states that “all members shall refrain . . . from the threat or use of force against the territorial integrity . . . of any state.” Article 51 provides that “nothing in the . . . Charter shall impair the inherent right of . . . self defen[s]e if an armed attack occurs.” But neither party’s actions here seem to rise to these levels. The plain text of the Article is read as an action more akin to a border incursion to take and hold ground. The balloon violated U.S. sovereignty over its airspace but did not pose any immediate threat or use of force against U.S. territorial integrity. Ultimately, there was no border incursion in any traditional sense to show that China violated Article 2(4), so the right to self-defense under Article 51 would not have been triggered.

What ultimately throws the assessment into this gray-area is the platform itself: a single, unarmed, intelligence collecting, high-altitude balloon. It is not the traditional drone or military aircraft normally associated with lethality and danger. The novelty of the platform can make it more difficult to categorize its threat level.

What may weaken the justification for disabling the balloon is the timing of when the U.S. finally engaged. By the time that the balloon was shot down, it had traversed past the eastern coast and into the Atlantic Ocean. Although still within the U.S. maritime borders per the U.N Convention on the Sea of Law (12 nautical miles), the balloon may no longer have been a threat to national security – supposing that all intelligence collection was already complete and transmitted back to its origin. This could lead to questions about the utility of shooting it down.

Closing Thoughts

China is certainly taking note of the world’s reaction to this event. As it stands, recourse will remain in diplomatic channels and verbal and nonverbal posturing. Evolving news stories have revealed that this balloon was part of an ongoing network of similar intelligence collection platforms. The U.S. will have to decide how it will handle future balloon-incursion attempts and where it might draw the line. Whether the answer is to continue shooting them down or simply thwart collection with passive countermeasures, the response should be made clear and consistent through dialogue with China. As the world continues to dissect the events surrounding #SpyBalloon, there may be calls to develop clear guidelines to govern both accidental incursions and deliberate collection efforts through non-traditional platforms.

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