On Saturday, January 28, 2023, a two-hundred-foot-tall balloon
[1] covertly entered US airspace over Alaska.
[2] Five days later, on February 2, news of the balloon made national headlines as it was spotted over the continental United States.
[3] Immediately, questions began to arise: What were China's intentions with the balloon? Why would China use a balloon as a surveillance device, rather than a satellite? Should the US military shoot the balloon out of the sky? Although many questions remain unanswered, one thing is clear:
China violated international law by sending the unauthorized spy balloon into US airspace.
Near the end of the Second World War, fifty-four nations signed the Convention on International Civil Aviation, more commonly known as the Chicago Convention.
[5] The Chicago Convention "established the core principles permitting international transport by air, and led to the creation of the . . . International Civil Aviation Organization (ICAO)."
[6] The goal of the ICAO is to "organize and support the intensive international cooperation which the fledging global air transport network would require."
[7]
Since its inception nearly eighty years ago, the ICAO has grown to encompass 193 countries.
[8] The ICAO adopts aviation standards and relies on the cooperation of its Member States to ensure uniformity.
[9] The United States and China are among the Member States, and as such, both are expected to follow the guidelines established by the ICAO.
[10]
The Chicago Convention instructs that "every State has complete and exclusive sovereignty over the airspace above its territory."
[11] Further, "no state aircraft . . . shall fly over the territory of another State . . . without authorization by special agreement or otherwise."
[12] State aircraft is considered "aircraft used in military, customs, and police services."
[13] The ICAO also sets out guidelines for "unmanned free balloons."
[14] Such balloons, other than those "used exclusively for meteorological purposes" are prohibited from entering foreign airspace unless directly authorized by the foreign state.
[15] Each country is free to set its own policies for authorization of foreign aircraft, including balloons.
Under US law, "aircraft of the armed forces of a foreign country" may only enter US airspace if authorized by the Secretary of State.
[16] Foreign governments must comply with a number of procedures to receive such authorization.
[17] At least three days before the foreign aircraft enters US airspace, the foreign government must receive a Diplomatic Clearance Number (DCN) by the Department of State.
[18] The procedure for receiving a DCN includes filing an online application, which must be approved by Diplomatic Clearance Officer.
[19] The Chinese balloon did not have the clearance necessary to fly in US airspace.
[20]
