The United States and Canada were tracking, Friday, February 3, at least one Chinese spy balloon flying at high altitude. At the request of President Joe Biden, the Pentagon considered shooting down the balloon, sighted floating over Montana and a sensitive position housing the Air Force’s 341st Missile Wing and its missiles Intercontinental Ballistic Minuteman III. But the decision was made not to do so due to the risks posed by the debris to those on the ground.
Under international law and US law, the entry of such a device, without the consent of the country, is a violation of US sovereignty. The American texts stipulate that “the government of the United States has exclusive sovereignty” over its airspace and that “aircraft of the armed forces (also called state aircraft) of a foreign country can only navigate in the United States ‘with the permission of the Secretary of State. »
Violation of US Air Sovereignty
According to the Pentagon, the balloon is flying at “high altitude” and “does not pose a risk to commercial air traffic”. However, it remains within the airspace of the United States, the limit of which is set at 80 kilometers above sea level (and 100 kilometers according to the International Aeronautical Federation). The fact that it is an unmanned aircraft does not alter the matter: according to Article 8 of the Chicago Convention of 1944 (revised in 1984), “no aircraft capable of flight without a pilot may fly over the territory of a Contracting State, except by special authorization of that State and in accordance with the terms thereof”.
In such a case, a State may decide to shoot down such an object if it is a device with a military purpose. “With regard to military aircraft: when they fly over the territory of a State without its knowledge, the latter may, after warnings have been given, order the opening of fire”, recalls in its Manual of Air Law , Pascal Dupont, member of the French Society of Air and Space Law.
The first consequence of this incident, the head of American diplomacy Antony Blinken, who was to go to Beijing on February 5 and 6, preferred to postpone his visit. China said it “regrets” the “involuntary” violation of American airspace, but described its machine as “civilian aircraft used for research purposes, mainly meteorological”.