THERESA HITCHENS
WASHINGTON — The saga of the Chinese spy balloon, and its subsequent Feb. 4 shoot down off the coast of South Carolina by an American F-22 fighter, has resulted in a lot of hot air floating on the public airwaves, including a maelstrom of misleading statements and speculation.
For example, some in the US have questioned why China would use a balloon to spy, when the People’s Liberation Army operates an array of sophisticated intelligence gathering satellites — a question fed by China’s assertion the balloon was designed simply to gather weather data over the ocean and drifted off course by accident.
The shoot down itself has prompted legal questions. Beijing has publicly protested the action, with the vice minister of foreign affairs on Feb. 6 charging that the US had used “indiscriminate use of force against the civilian airship seriously violated the spirit of international law and international practice.” He further vowed that China would “resolutely safeguard the legitimate rights and interests of Chinese companies, resolutely safeguard China’s interests and dignity and reserve the right to make further necessary responses.”
There also has been a raft of on-line speculation that the shoot down gives Beijing incentive to retaliate by using a missile shoot down a US spy satellite passing over Chinese territory, playing on long-standing concerns among US policy- and law-makers regarding the Chinese military’s build up of anti-satellite capabilities. After all, aren’t satellites just higher flying surveillance craft?
In addition, Sen. Rick Scott, R-Fla., who sits on both the Armed Services Committee and the Commerce Science and Transportation subcommittee on space, on Feb. 4 called for the Biden administration to send a warning to China by declaring the intent to shoot down any future balloons coming within 100 miles of the US coast.
All of these ideas belie a misunderstanding of the facts on the ground, or in this case, in the air and in space.
Surveillance Balloons: A Storied History And Still Relevant
Balloons have been used for spying almost since their invention — something that France claims credit for with the first free flight carrying a person on Nov. 21, 1783. The French military first used piloted balloons for surveillance in the Franco-Austrian war in 1859, and spy balloons were commonly used in both World War I and II. And while satellites now are the go-to platform for gathering intelligence, surveillance and reconnaissance (ISR), balloons still have a niche role, and in fact can do some things better than satellites.
“As far as the intelligence value of balloons over satellites, there is indeed some value. Balloons and high altitude aircraft can image things from a much closer distance and can dwell over an area for a longer time than low Earth orbiting satellites (which are typically gone in a couple of minutes),” explained Brian Weeden. To cover a single area consistently, a nation would need at least a small constellation of satellites all taking turns as they fly by.
Ruth Stilwell, executive director of Aerospace Policy Solutions LLC and an expert on integrated space and aviation policy, told Breaking Defense that because balloons are frequently used for civil sensing missions, such as weather, spy balloons can sort of hide in plain sight.
“There’s actually quite a lot of sensing balloons … and so they’re often perceived as non-threatening. The first assumption wouldn’t be that they are weapons,” she said.
“But the main thing is, compared to a satellite they’re cheap to deploy,” Stilwell, who worked as a US air traffic controller for 25 years, stressed. “They’re expendable.”
And it seems the high-flying balloons can slip through what US Northern Command chief Gen. Glen VanHerck called a “domain awareness gap” in US defenses. Today former Director of National Intelligence James Clapper told CNN that the military is good at tracking objects under around 50,000 feet and in space, but apparently not as good in the “gray area” between the two.
Stilwell further noted that in recent years there have been “some breakthroughs in technology” stemming from Google’s Project Loon, inaugurated back in 2011 to provide internet access to unconnected areas of the globe via a fleet of high-altitude balloons.
While Google’s parent Alphabet shut down the effort in 2021, the project did result in a number of technical achievements, including the development of computer algorithms to precisely gauge wind currents and thus, in essence, steer the balloon — rather than the balloon being simply swept along by whatever draft caught it. It also enabled balloons to extend loiter time over any one spot on Earth.
“One of the things that the Loon Project overcame … is the navigation issue,” Stilwell said. “And they were able to put balloons where they wanted,” thus enabling them “to loiter over a more precise area.”
The Line Between Airspace And Outer Space
Still, Weeden noted, spy balloons have by and large been replaced by spy satellites. This is partly due to the fact that the costs have dropped dramatically both for payloads and launch, but also because satellites legally can go where balloons and aircraft cannot because they have a different status under international law.
“The vast majority of intelligence collection these days is done by satellites because they have the freedom of overflight,” he said.
Balloons, however, do not. Like other aircraft, they are subject to international aviation law which sets out that a nation’s airspace is sovereign territory that cannot be traversed without express permission.
“Balloons, like aircraft, are clear violations of national sovereignty when they cross over into another country’s airspace. In situations where the responsible country is not responsive to that violation, a shoot down is a completely legal operation,” Weeden said.
“The difference is there is a treaty that says there is no sovereignty for objects in space, and there is a treaty that says there is absolute sovereignty for aircraft over the territory of a country,” Stilwell said.
The 1967 Outer Space Treaty (OST), the ‘Magna Carta’ for how countries interact on orbit, deems space to be the “province of all mankind.” And while it is generally agreed that satellites and spacecraft are national property, the OST’s Article II is very specific about the question of sovereignty:
“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
There are 112 countries party to the OST, China and the US among them, and another 23 countries that have signed but not ratified it.
Aviation law is a bit more complicated. The central legal regime, however, is the Chicago Convention of 1944 that forms the treaty foundation of the International Civil Aviation Organization (ICAO). That convention has two primary provisions that apply to the case of the Chinese balloon’s flight path over the US, explained Stilwell.
The main provision is Article 1, which states: “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.”
To complicate matters somewhat, there isn’t a legal definition, or even an agreed technical one, of exactly where airspace ends and outer space begins.
Because of the differing laws of physics that line is generally defined as about 100 kilometers (some 62 miles, or 328,000 feet). But Stilwelll stressed that the debate “has nothing to do with where that balloon was” — which was some 60,000 to 90,000 feet and well inside what is legally described in the US as “controlled airspace” within the ICAO framework. (Reuters reported a Chinese research organization recently claimed a successful test of a balloon that could rise to 18.6 miles, or 98,208 feet, high.)
Further, Article 8 of the Chicago Convention states that: “No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.”
Stilwell noted that Article 8 dates from the original 1944 text of the convention, which was prior to the development of drones and pilotless rotorcraft. Instead, she pointed out, the only things flying at the time without pilots, other than small, experimental radio-controlled aircraft, were blimps and hot air balloons.
So, the bottom line is that the US has a pretty solid legal case for shooting down the Chinese balloon. (Note that the Chinese said the shoot down violated only the “spirit” of international law.)
China, by contrast, has no legal right to shoot down a spy satellite during peacetime.
“There is zero rationale — militarily, politically, or legally — for China to destroy a US satellite in response to this, and doing so would be a gross escalation of the situation, one that could be seen as an armed attack depending on the specific satellite,” Weeden said.
National Airspace Extends To Territorial Waters, But No Further
Sen. Scott, who’s well known as a China hawk, posted the following exhortation on his Facebook page just prior to the balloon’s shoot down: “It’s time for Joe Biden to send Communist China a message. Let the U.S. military do its job and issue a standing order: No balloon comes within 100 miles of American shores. Fire when ready.”
The trouble with Scott’s recommendation is that while Washington legally can, and does, claim the airspace over US territorial waters, US territorial waters extend only out to 12 nautical miles from land. That geographical boundary was set by the 1982 Law of the Sea Convention, and while not a signatory, the US declared the same boundary in 1988.
In fact, one of the biggest beefs between Washington and Beijing revolves around China’s expansionist claims about its own rights over territorial waters.
Beijing has laid claim to practically all of the 1.3 million square mile South China Sea — putting it at odds with Washington and most of its neighbors. It further has built runways and placed rocket batteries on several islands also claimed by neighboring countries like the Philippines, Vietnam, Malaysia, Indonesia, Brunei and Taiwan.
All of which the US has routinely denounced as unlawful. In fact, in March 2021 Scott himself was one of several senators to introduce a resolution condemning Beijing’s claims and applaud US Navy and Coast Guard actions in the South China Sea “to ensure freedom of navigation operations, and send a clear message that the United States will not tolerate Communist China’s extension of power in waters beyond its legitimate territorial sea boundaries.”
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