Guest Post: “Domestic Law Underpins the Downing of the Chinese Balloon”
Today’s essay furthers our discussion of the downing of the Chinese High-Altitude Balloon (HAB) begun last week with the post , “The Chinese balloon shoot-down and the Law: some observations” In this new essay Lawfire® contributor LTC Blake Williams writing in a personals, not official, capacity insists that the matter is governed by U.S. domestic law.
As I said in the earlier post, once the HAB violated U.S. territorial airspace the disposition is “principally be a matter of domestic, not international law.” But Blake puts the issue in a fuller context, and his conclusion is forceful and unambiguous:
The US and its allies do not need to suffer the flaunting of international law by China. The United States should continue to enforce its domestic laws against espionage and defend the right of other states to do the same. The international community should condemn Beijing for conspiring to violate the Chicago Convention on a global scale through the launch of unregistered aircraft and for openly violating US espionage law. In the meantime, the law enforcement arms of the United States will work diligently to identify just who was involved in this espionage.
Given that U.S. fighter aircraft have had to shoot-down three aerial objects in just eight days that were violating our airspace or that of our neighbor Canada, this issue demands our continuing attention. You owe it to yourself to take a few minutes to read Blake’s essay!
Domestic Law Underpins the Downing of the Chinese Balloon*
by LTC Blake Williams, USA
Domestic Law Controls the Response.
The only international instrument applicable specifically to unmanned craft is the Chicago Convention. By signing the convention, Beijing agreed: (1) states retain complete and exclusive sovereignty over domestic airspace (Article 1); (2) state aircraft cannot enter the airspace of another state without permission (Article 3); and (3) civilian unmanned aircraft cannot enter the airspace of other states without permission (Article 8).
When an aircraft, balloon or otherwise, is unarmed and there is no state of hostility between the state of origin and the offended states, the laws relating to the use of force between states are not applicable. Moreover, peacetime espionage is not forbidden under international law.
Unmanned Balloons Have no Human Rights.
The Chicago Convention lacks a specific remedy for domestic airspace violations because the nature of domestic law enforcement is up to individual states. When enforcing their own law, states do remain bound by International Human Rights law. All humans have a right not to be arbitrarily deprived of life.
The need to protect life is at the heart of many past state disputes about the response to airspace incursions. When lives are in peril, downing an aircraft might be a violation of norms. Human rights are very important to the United States because of a generally held belief that the state exists to serve the people and people have certain inalienable rights in relation to their state.
In contrast, Beijing believes the function of their government is the service of the Communist Party. In this sort of view, people are reduced to instruments. Beijing has traditionally fallen into a ‘needs improvement’ on the understanding and protection of human rights. Beijing’s response to the balloon downing seems to reflect some belief that as an extension of the state, their balloon was due some protection from destruction.
States cannot claim this protection when they are trespassing. In their response there is a failure to understand that the protection traditionally given to aircraft in border violations derives from the responsibility to protect the pilot’s life and not from an obligation to respect an instrument of a state. Given Beijing’s worldview which reduces citizens to state instruments, this confused thinking is unsurprising.
Beijing Does Not Understand the United States.
Not only is the United States a land where individual rights matter, it also has a cultural attachment to property. Consider the legal history and customs of the United States. The United States is a vast country rapidly resettled by immigrants over the course of the last three centuries. The settlement was encouraged primarily by vesting significant land rights with citizens willing to inhabit and develop the country. The promise of ownership figured prominently in this process.
Go to any hardware store in America today and you will find “No Trespassing” and “Keep Out” signs available for sale. Americans instinctively understand, appreciate, and defend the right to exclude. When the actions of a foreign state so offend a core American sensibility, it is hardly surprising the representatives of our people condemn them 419-0.
Beijing Ignored US Law.
What is the legal nature of the airspace in the US? According to the Supreme Court, domestic airspace is a public highway regulated and controlled by the Federal government. The President is the chief magistrate of the Federal Government. He enforces the law. The United States has laws against foreign surveillance. It is forbidden to gather information for the advantage of a foreign nation. This includes the transmission of photographs. Furthermore, all property used in the commission of such an offense is forfeit.
The President Enforced Domestic Law in Domestic Space.
Before striking the balloon, the United States observed it with a U2 surveillance aircraft to confirm its nature. Armed with strong evidence the balloon was violating US espionage laws, the President of the United States enforced domestic law by downing the balloon. Beijing appears to have engaged in a criminal conspiracy to violate US law. It is audacious for Beijing to denounce President’s Biden’s frustration of their criminal plan.
It is particularly audacious because the government in Beijing agreed in the Chicago Convention not to violate the airspace of others. Beijing remains very sensitive to criticism or international opinion about matters within its borders and has referred to mere allegations of human rights violations as ‘gross interference’ in domestic affairs.
Human rights are of course are not just a domestic matter. State criticism of human rights violations is appropriate and responsible. Putting that aside, if Beijing was legally consistent, they would have already publicly apologized for sending this balloon. After all Beijing asserts similar control over its own airspace. It bans unmanned drones from certain places and equips police with drone rifles to summarily force them down. Beijing and the US have a right to enforce their own laws in a manner consistent with human rights.
Beijing Attacks and Ignores International Law.
Beijing is currently blending strained legal interpretations with outlandish excuses. This practice of proffering strained legal interpretations is familiar to nearly all of China’s neighbors whether by land or by sea. While they contend that the balloon in the United States merely went off course, they are apparently sending surveillance balloons throughout the world. Each launch of such an aircraft into another state’s airspace is a plain violation of international law in the Chicago Convention.
It is likely Beijing assesses the violations as ‘safe’ on some basis other than the law. Thucydides warned, “the strong do what they can and the weak suffer what they must.” Perhaps Beijing hoped their strength would mitigate the risks of calculated lawlessness.
The United States Defends International Order.
The US and its allies do not need to suffer the flaunting of international law by China. The United States should continue to enforce its domestic laws against espionage and defend the right of other states to do the same. The international community should condemn Beijing for conspiring to violate the Chicago Convention on a global scale through the launch of unregistered aircraft and for openly violating US espionage law. In the meantime, the law enforcement arms of the United States will work diligently to identify just who was involved in this espionage.
About the author
LTC Blake Williams is Chief of the International Law Branch of the National Security Law Division of the US Army. He is a US Army Judge Advocate with 16 years of experience. He holds a Masters of Operational Studies with Honors from the US Army Command and General Staff College and Fort Leavenworth; a LL.M from the Judge Advocate General’s Legal Center and School at Charlottesville, Virginia; and a J.D. from the University of South Carolina School of Law. He is admitted to practice before the Supreme Court of the United States and Court of Appeals for the Armed Forces.
Disclaimers
* The views and opinions expressed here are the author’s and do not necessarily reflect the official policy or position of the U.S. Army, the Judge Advocate General’s Corps, the Department of Defense, or any other agency of the U.S. government.
The views expressed by guest authors also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University. See also here.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
