It’s a Bird! It’s a Plane! No, It’s a Spy Balloon! The International Law Implications of China’s Actions and the United States’ Response

It’s a Bird! It’s a Plane! No, It’s a Spy Balloon! The International Law Implications of China’s Actions and the United States’ Response

Hannah Grayson

All the news has been talking about in the past couple of weeks has been the Chinese spy balloon flying over the length of the continental United States.[1] Secretary of State Antony Blinken calls the balloon a “clear violation” of international law.[2] But, in what way is it a violation of international law?

First, the spy balloon likely violates international sovereignty law. In December 1944, as World War II was nearing its end, many countries got together to create the Convention on International Civil Aviation (known colloquially as “the Chicago Convention”).[3] This created international law standards of aircrafts and airspace in a world in which many affairs were increasingly being waged in the sky.[4] In Article 1 of the Chicago Convention, it was acknowledged that every participating country has the complete and exclusive sovereignty over the airspace above its territory.[5] This gives countries the ability to essentially own airspace and decide who can go over it.[6] Article 3(c) states that no state aircraft may go over another state’s airspace without special authorization.[7] Additionally, there is domestic law governing sovereignty over airspace in the United States making it clear that the United States government has “exclusive sovereignty” over its airspace.[8]

There is, however, an exception to needing authorization to fly state aircraft over another country’s airspace. If a state aircraft is in distress or there is a reason of force majeure, they can fly over another country’s airspace without special authorization and not violate the Chicago Convention.[9] There is, however, no evidence the balloon was in distress or that any extraordinary event occurred. On top of that, the balloon was unmanned, so a distress argument would not be as convincing.[10]

Another interesting consideration is asking if the Chicago Convention even applies at all. International or United States law have never clarified how high airspace goes.[11] Once in space, though, the Outer Space Treaty applies and this treaty also does not specify at what point airspace becomes outer space.[12] The Outer Space Treaty basically gives all countries free rein of space and declares it to be for all of mankind.[13] China’s balloon was estimated to have reached as high as 60,000 feet in the air.[14] However, it is highly unlikely that China will raise this argument as most people would probably not think that 60,000 feet is outer space.

China has also called into question the legality of the United States government shooting down the balloon.[15] Under Article 51 in Chapter VII of the Charter of the United Nations, countries have the right to “collective self-defense if an armed attack occurs.”[16] There is no definition of what collective self-defense is given by the UN. Additionally, it is up to interpretation whether spying from an air balloon is an “armed attack.”

How will China be punished for its actions? The United States has already sanctioned Chinese aerospace companies that it says supported the balloon program.[17] As for the Chicago Convention, if a country is found to be in violation of the convention, they lose voting power temporarily in the International Civil Aviation Organization Council.[18] However, if it is confirmed that China was spying via the balloon, there is no violation or penalty. There is no treaty regulating espionage in either wartime or peacetime.[19]

The long-term effects of this interaction can only be seen with time, but it is clear that there are escalating tensions between the United States and China and that there will be consequences.


[1] David Hambling, Why Chinese Spy Balloon’s Flight Path Was Not An Accident – And What It May Have Been Doing, Forbes (Feb. 7, 2023),–and-what-it-may-have-been-doing/?sh=5c7c7d84f865.

[2] Blinken: Chinese balloon ‘clear violation’ of international law, Spectrum News (Feb. 3, 2023),–u-s–tensions-rise-over-suspected-chinese-spy-balloon [hereinafter Blinken].

[3] Convention on International Aviation, Dec. 7, 1944, 15 U.N.T.S. 295 [hereinafter Chicago Convention].

[4] Id.

[5] Id. at art. 1.

[6] Worldwide Air Transport Conference, Airspace Sovereignty, ¶ 1.1, U.N. Doc. ATConf/6-WP/80 (Mar. 3, 2013).

[7] Chicago Convention at art. 3.

[8] 49 U.S.C. § 40103(a)(1).

[9] Michel Bourbonniere & Louis Haecke, Military Aircraft and International Law: Chicago Opus 3, 66 J. Air L. & Com. 885, 895 (2001).

[10] Charlie Dunlap, Guest Post: “The Chinese balloon shoot-down incident and the law: some observations,” Duke U. Lawfire (Feb. 5, 2023),

[11] Id.

[12] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.

[13] Id. at art. 1.

[14] Blinken, supra note 2.

[15] Helene Cooper & Edward Wong, Downing of Chinese Spy Balloon Ends Chapter in a Diplomatic Crisis, N.Y. Times (Feb. 4, 2023),

[16] U.N. Charter art. 51.

[17] Chelsey Cox & Christina Wilkie, U.S. sanctions six Chinese tech companies for supporting spy balloon programs, CNBC (Feb. 10, 2023),

[18] Chicago Convention at Art. 88.

[19] Juan Pablo Hernández, The legality of espionage in international law, The Treaty Exam’r (Apr. 2020),,of%20other%20participants%20in%20war.