By Michael J. Listner.
The passage of an intelligence-gathering balloon from the Peoples Republic of China through U.S. sovereign airspace earlier this month created a Sputnik-conundrum in terms of international law and national sovereignty. The balloon, which was first detected entering U.S. sovereign airspace around the Aleutian Island chain was permitted to transit this airspace unimpeded into Alaska and then reenter the continental U.S. where it was allowed to transit the continental U.S. unchecked until it was finally brought down within the 12-mile zone of the southeast coast of the U.S. Much is not publicly known what types or amount of intelligence was gathered by the balloon; however, aside from this the permissive entry and transit of the balloon raises questions about the effect of incident on international law and U.S. national sovereignty.
Hybrid Warfare and International Law
The term hybrid warfare was coined by Xu Sanfei, the editor of Military Forum and a senior editor in the Theory Department of Liberation Army News. Hybrid warfare “…refers to an act of war that is conducted at the strategic level; that comprehensively employs political, economic, military, diplomatic, public opinion, legal, and other such means; whose boundaries are blurrier, whose forces are more diverse, whose form is more mixed, whose regulation and control is more flexible, and whose objectives are more concealed.” The CCP’s Central Military Commission adopted the concept of hybrid warfare when it announced in 2003 three new types of warfare capabilities: legal warfare (lawfare), psychological warfare, and media warfare, which individually and collectively attain a political objective. This new strategy, which is called the Three Warfares, was subsequently adopted by the Peoples Liberation Army. This article will focus on the legal aspect of hybrid warfare.
Sovereign Airspace and Near Space
The Federal Aviation Administration regulates territorial airspace up to 60,000 feet (approximately 18.288km), which makes this airspace unquestionably sovereign airspace. Beyond this altitude some question whether the so-called “near-space” can be claimed as sovereign airspace. The non-legal spatial demarcation for where outer space begins is 60 miles (approximately 100km). The U.S. does not recognize the need for an international legal demarcation for where outer space begins and gives supports for a rule of international law that a nation’s sovereign airspace extends not only beyond the 60,000-foot altitude but up to where an aircraft or spacecraft would enter a full orbit of the Earth and unquestionably be in the sovereignless domain of outer space. This rule that a nations sovereign airspace extends past 60,000 feet into near-space and into outer space is borne out with high-flying reconnaissance aircraft that have operated in near-space altitudes. The U-2 operates at altitudes of 70,000 feet, and the CIA’s OXCART program and the Strategic Air Command’s SR-71 both operated at altitudes of 80,000+ feet, which is well within the alleged legal gray zone purported to exist. Moreover, all these aircraft encountered defensive actions while at these altitudes from nations as they overflew or flew in proximity to what these nations claimed as sovereign territory, including a U-2 shot downed over the Soviet Union on May 1, 1960 while flying over the Soviet Union and at least six U-2s operated by the Black Cat Squadron of the Taiwanese Air Force while flying at so-called near-space altitudes over the PRC.
Chinese Balloons and Hybrid Warfare
The transit of the PRC balloon over U.S. territory creates a larger question as to the purpose of the action. The primary purpose of the balloon was undoubtedly to collect intelligence; however, ancillary to that mission is whether the PRC was testing for a political response from the U.S. to see if it could use the legal aspect of hybrid warfare and the Three Warfares, which is called lawfare, to potentially test of a new rule of international law for near-space and assess the resolve of the U.S. to not only defend its territory but also support and assert its sovereign rights under international law. Two aspects of the intrusion are pertinent to this analysis.
First, the unimpeded transit of the balloon brings into question whether the PRC was seeking to establish an international rule of law for passing over sovereign territory at “near-space” altitudes. The balloon’s trek over U.S. territory began its violation of sovereign U.S. air space when it passed over the Aleutian Islands yet, no action was taken to intercept its course purportedly because it was not deemed a military threat. Regardless, no assertion in messaging by the U.S. was made the balloon was violating its sovereign airspace. This potentially gives the PRC the impression that if not creating a toe-hold for a rule of customary international law for overflights at near-space altitudes it at least shows a reluctance by the U.S. to push-back on implicit attempt to create a rule of international law. A repeat of the overflight that would give further credence to this claim would be difficult considering the political fallout following this incident. Yet, even if the PRC were to attempt to repeat the incursion and the U.S. intercepted, would the U.S. assert its sovereign rights as trigger for the intercept? This leads into the second legal aspect.
The second legal aspect of the incursion is whether it was a test by the PRC to see how the U.S. would respond to a violation of its sovereign airspace and whether it would assert international law or waiver politically. The intrusion into and passage through U.S. airspace was a direct challenge to this rule of international law and arguably could have been a lawfare action to dilute the precept itself. By failing to properly message the true nature of the incursion, the U.S. not only waivered on its defense of national airspace but signaled to the PRC it might waiver on asserting international law in other domains, which brings into questions the U.S. response to future geopolitical events.
The Strategic and Geopolitical Effect
The lack of coherent messaging to enunciate the violation of U.S. airspace and assert the violation of international law and instead down-playing the seriousness of the incident creates strategic problems for the U.S. This lack of messaging continued with the intercept of the objects subsequent to the intrusion where the Administration cites safety as the rationale for the interventions instead of the violation of sovereign U.S. airspace. This brings into question the U.S. commitment to not only defending the sovereign airspace of the U.S. but the rule of international law at home and abroad. This in turn has a psychological effect on the public perception of political leaders in the U.S. to uphold national security. More critically, it also creates shadows of doubt about the willingness of the U.S. to uphold international law and respond decisively to challenges to international law abroad, including both treaty commitments and political assurances. Moreover, the lack of decisive action and clear messaging by the U.S. dilutes the credibility of the U.S. not only enforcing and asserting international law in other domains but also it standing to conjure new standards of behavior in other domains, including outer space.
The reluctance of the U.S. to immediately deal with and unambiguously charge the incursion of the PRC surveillance balloon as a violation of its sovereign territorial rights under international law and the hesitancy to demonstrate resolve in intercepting the balloon eroded the credibility of the U.S. in the eyes of its domestic citizens and allies in the geopolitical sphere. More critically, the standing of the U.S in geopolitical adversaries in the context of great power competition has shifted as the PRC analyzes the U.S. response to the incursion and makes its next calculation in great power competition to shift the rule of international law to its world-view.
Author: Michael J. Listner is a licensed attorney in the State of New Hampshire and the founder and principal of Space Law and Policy Solutions. He is a subject matter expert in outer space law, outer space policy and hybrid warfare/lawfare strategy and the author and editor of the space law and policy briefing-letter, The Précis.
Photo: A U.S. Air Force U-2 pilot looked down at the suspected Chinese surveillance balloon as it hovered over the Central Continental United States February 3, 2023. Recovery efforts began shortly after the balloon was downed. (Photo courtesy of the Department of Defense)