China’s ‘balloonist’ ambitions raise questions of international law

The US concern is understandable, but the statue is open to interpretation

Dr. Manan Dwivedi | February 16, 2023


#International Relations   #Diplomacy   #Defence   #China   #United States  
The image of a Chinese surveillance balloon, taken by Billings, Montana resident Chase Doak on February 1 (via WikiMedia Commons)
The image of a Chinese surveillance balloon, taken by Billings, Montana resident Chase Doak on February 1 (via WikiMedia Commons)

The Chinese should be wary about the city air quality in their metropoles as one of the surveillance balloons unleashed from the People’s Republic of China was shot down by an American missile over Alaska. The Chinese ought to be more specifically particular about the iota of air as the air quality due to pollution already vitiates the metropole air. Then it took an F22 later on to shoot down another unidentified flying object over US territory. This perilous incident is coterminous with the recent laser gun targeting of the Philippine coast-guard in the acridly contested South China Sea. Thus, in manner, the Chinese strategic maneuvers and legerdemain persist and continue unabated in the context of a testy US-China diplomatic tete-a-tete.

The Chinese have alleged that the American high command acted rather inaccurately and made a mountain out of a mole hill about a balloon which was went for meteorological research and had strayed away from its designated pathway. Still, Washington astutely maintains that the balloon had been part of a Han machination as it carried some equipment too, though the exact nature of the equipment has not been revealed by the aggrieved nation and its established and questions need be asked that despite the technological finesse in military surveillance that USA has, how was it that an aerial incursion could not be detected in advance. The Chinese also reneged against the nom de plume and the primary cannon of international law when they neglected and decried the Arbitraral Tribunal of the International Court of Justice in the context of the regional South China Sea Claims. And it’s they who decry the American interventionism and the overarching and gnawing belligerence of USA.

The balloon which was swerving over the US was indulging in surveillance or was it undertaking simple meteorological research happens to be the focus of the au currant tussle between Beijing and Washington. Since the Napoleonic times, hot air balloons have been utilised for the oeuvre of military bombing and surveillance. Espionage floats are another operative aspect of these incursive and intervening hot air balloons. There happens to be a slight dilemmatic conditionality in the ambit of the interpretation of the international law. One well-known and authentic web portal informs us that every country likewise has “complete and exclusive sovereignty over the airspace above its territory” under international conventions. This means each country controls all access to its airspace, which includes both commercial and government aircraft. But the upper limit of sovereign airspace is unsettled in international law. In practice, it generally extends to the maximum height at which commercial and military aircraft operate, which is around 45,000 feet (about 13.7 km). The supersonic Concorde jet, however, operated at 60,000 feet (over 18 km). The Chinese balloon was also reported to be operating at a distance of 60,000 feet.

Still, there happens to more than a slight ambiguity as to what the international law’s canons have to contend about the vortex of the China balloon controversy which might bring further chill in an already beleaguered US-Sino cold war. The zone above the flight heights of the military and commercial aircrafts is still in a domain where the interpretive jury is still out to discern and delineate. One can appreciably gauge and observe that the Chinese unhindered flights over America’s sovereign terrain and in the airspace raises pertinent queries about the capacity of the American air defence establishment’s counter-surveillance capability and astute sniffing potential for  ubiquitous ‘unidentified flying objects’.

The Chinese balloon incident can also spark anew an international law debate. The US Secretary of State, Anthony Blinken, has been forced to cancel his state visit to China in the unnerving shadow of the swerving Balloon incident. He went on to contend in a conference quite combatively that, “It’s very important to emphasize that the presence of this surveillance balloon over the United States, in our skies, is a clear violation of our sovereignty, a clear violation of international law, and clearly unacceptable, and we’ve made that clear to China. Any country that has its airspace violated in this way, I think, would respond similarly, and I can only imagine what the reaction would be in China if they were on the other end.”

The Han side contends otherwise. The Chinese representatives have been contending that it was an international aerial incident which was accidental and is an apt instance of ‘force majeure’. ‘Force majeure’ is a theme and an international law canon which contends that any incident may be entirely situational and scenario-based where in the incident at the cynosure of all eyes happens to be largely uncontrollable, unforeseeable and makes non-performance a prerequisite. It can also be comprehended adroitly that the extraordinary veneer of the international incident between the two parties may make the performance of a contract improbable circumstantially. These arguments are seemingly part of an astute Chinese standpoint where in Beijing is blaming the American side as being making too much noise about nothing much, in order and substance. Thus, in a manner, the Chinese are negating practically the conditionality of sovereignty as advanced by the receiving end of the American establishment and jurists.

The Oxford Public International Law contends that, “Roman law insists that possibility is the limit of all obligations as none of the parties can perform the mission impossible.”  Thus, the Han establishment is striving incredulously to save its face in the light of an apparently blatant and flagrant violation of international law as the theme of common entities of common heritage too has its discernible limits. The Chinese might say that balloons are not known for their war operational capacities but the American concern is poignant enough because they can be camouflaged instruments which cannot be caught by the targeted nation’s radars and satellite set ups. All in all, the balloon controversy brings to the relief the fact that Chinese military and intrusive machinations are on a rise, adding to the Global assertiveness of the so-called peaceful rise of the People’s Republic of China. It’s the strategic subterfuge which tides over the Chinese surge in the larger international firmament which indicative implications for the global balance of power and the grand strategies and coalition building of the twin antagonist nations.

Dr. Manan Dwivedi is Faculty, IR and IO, Indian Institute of Public Administration (IIPA).

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