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A preliminary reading of a Ballooning Controversy



Introduction


The use of hot air balloons for espionage purposes is a concern in the recent balloon controversy between the USA and China. Although hot air balloons have a positive public image, they have a long history in military operations, used for surveillance and bombing. (See here). Despite their declining use in warfare, balloons still have a unique advantage in surveillance due to their higher altitude, ability to remain stationary over sensitive sites, difficulty in detection on radar, and ability to be disguised as a civilian weather craft. In February 2023, world news was dotted by coverage of a Chinese balloon that had entered the airspace of the United States. The Chinese government claims that the American response to their research balloon was exaggerated, claiming it was for meteorological purposes and had strayed off course. However, the US remains suspicious, alleging that the balloon was part of a Chinese plot, carrying unknown equipment. The incident also follows the recent laser targeting of the Philippine coast guard in the South China Sea, causing concern about China's strategic moves. This incident sparked a major controversy between the two nations, with each accusing the other of violating international law. In this article, the author will explore the explanations from both countries and the following international legal dimensions involved.


Explanation from Both Countries on the Balloon


The United States and China have different scientific explanations for the balloon controversy in 2023. The Chinese government claims that the balloon was a scientific research mission aimed at studying the Earth's atmosphere and collecting data on climate change. The balloon was equipped with sophisticated sensors and cameras to gather data for scientific purposes. On the other hand, the United States claims that the balloon was a threat to national security and its presence in US airspace was a violation of international law. The US alleges that the balloon was carrying equipment that could potentially be used for military purposes, and its high altitude and ability to remain stationary over sensitive sites makes it a threat to national security.


The differing scientific explanations from the two nations highlight the growing mistrust between the US and China and the geopolitical risks involved. The US fears that the data collected by the Chinese balloon could be used for military purposes, while China views the US response as an attempt to curb its scientific advancement and militarization of space. The international community remains divided on the scientific explanation for the balloon controversy, and the true purpose of the balloon remains unclear.



Under International Law


On Immunity


In light of the balloon controversy, China has sought protection under international state immunity law. International state immunity law provides immunity to states and their representatives from the jurisdiction of other states. Under the United Nations Convention on Jurisdictional Immunities of States and Their Property, a state has immunity from the jurisdiction of another state, which means that it cannot be sued in a foreign court. In the case of the hot air balloon controversy in the United States, China could potentially seek protection under the Convention and claim immunity from the jurisdiction of US courts. In addition to the International State Immunity Act, the United States also has its own Foreign Sovereign Immunity Act (FSIA) . The FSIA provides the legal framework for when foreign states can be sued in US courts. The Act sets out a number of exceptions to state immunity, including when a foreign state engages in commercial activities within the United States, when a foreign state commits a tort in the United States, and when a foreign state engages in certain types of conduct that violate international law.


In the context of the US-China balloon controversy, the FSIA may be relevant if the United States decides to sue China in US courts. If the United States can prove that the hot air balloon was engaged in commercial activities in the United States, it could potentially argue that China is not entitled to immunity under the FSIA. Additionally, if the balloon was found to have posed a threat to the safety of US citizens, the United States could argue that China is not entitled to immunity under the FSIA's exception for torts committed in the United States. It is worth noting that the FSIA provides only one possible basis for jurisdiction over foreign states in US courts, and there are other legal doctrines and international treaties that may be relevant in determining whether a foreign state is immune from suit in US courts. Ultimately, the resolution of the US-China balloon controversy will depend on the specific circumstances of the case and the legal arguments put forth by both sides. Returning to the UN Convention, one of the key provisions of the Convention is Article 17, which outlines the circumstances in which a foreign state can be sued in the courts of another state. Article 17 provides that a foreign state can be sued in the courts of another state for its commercial activities in that state, subject to certain limitations. For example, the commercial activity must have a sufficient connection with the state where the court is located, and the action must be based on a commercial transaction or contract.


On State Responsibility


Article 2 of the Draft Articles on State Responsibility sets out the general obligation of states to refrain from any acts that may harm another state, including acts carried out by their agents. This means that if the United States can prove that the Chinese balloon caused harm to its citizens or violated its sovereignty, China may be held responsible for the actions of its agents and may be liable for any damages caused. This principle is in line with the general principle of state responsibility under international law, which holds that states are responsible for their wrongful acts.


Moreover, Article 4 of the Draft Articles on State Responsibility provides that a state is responsible for the internationally wrongful acts of its agents, even if the agents acted outside of their official capacity. This means that China may be responsible for the actions of the operators of the hot air balloon, even if they were not acting on behalf of the Chinese government. Thus, if the United States can prove that the Chinese balloon caused harm or violated its sovereignty, China may be held responsible for any damages caused, even if the operators of the balloon were not acting on behalf of the Chinese government.


Article 13 of the Draft Articles on State Responsibility requires states to cooperate with each other to protect their rights and interests. This means that both the United States and China have an obligation to resolve the balloon controversy in a peaceful and diplomatic manner, and to avoid the use of force or other harmful actions. This obligation reflects the general principle of peaceful relations between states under international law. Finally, Article 16 of the Draft Articles on State Responsibility provides that a state must provide full reparation for any harm caused by its internationally wrongful acts. This means that if the United States can prove that the Chinese balloon caused harm or violated its sovereignty, China may be required to compensate the United States for any damages caused. This principle reflects the general principle of compensation for damages caused by internationally wrongful acts under international law.


Conclusions


The balloon controversy between the United States and China underscores the complex and challenging nature of international law in resolving disputes between states. While international law provides a framework for resolving such disputes, it is ultimately up to the states themselves to decide whether or not to comply with its provisions. The role of international law, in this case, is limited, as states have the ability to interpret the law in ways that support their own interests. Ultimately, the resolution of the balloon controversy will depend on the willingness of both the United States and China to engage in diplomatic dialogue and find a mutually acceptable solution to the dispute.


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