The Volokh Conspiracy
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Was the Chinese Surveillance Balloon in U.S. "Near Space"?
The nation's control over the air above our heads is less settled than some may think.
Prompted by the Biden Administration's decision to down a Chinese government spy balloon and several additional objects over the weekend, today's Wall Street Journal features an interesting article highlighting that there is no international consensus, let alone a binding international agreement, governing the use of "near space" -- the area between 60,000 and 330,000 feet above the ground. While nations are generally understood to have control over their air space up to 60,000 feet, and various treaties provide that there are no sovereign claims above 330,000 feet (where satellites orbit), "near space" is neither governed by treaty, nor is it clearly subject to control by the nation below. (So much for ad coelum.)
From the WSJ:
The U.S. says the suspected Chinese spy balloon shot down Feb. 4 violated sovereign U.S. airspace. But when it crossed the U.S. at altitudes as high as 65,000 feet, the balloon floated into the murky zone aloft where no international consensus exists about which, if any, nation wields control. . . .
Countries with advanced space programs, including the U.S. and China, have blocked efforts to extend nations' sovereignty to the edge of space, according to meeting minutes of the United Nations body examining the issue. They have opted for the freedom to operate their own craft without restriction. . . .
In the U.S., the Federal Aviation Administration monitors and controls airspace up to 60,000 feet for commercial and military traffic, a level recognized under international agreement and employed by other countries. The three objects downed over the weekend over the U.S. and Canada all fell within that airspace, which also extends to each nation's internationally recognized maritime boundary 12 miles offshore. . . .
International treaties hold that nations have no sovereignty in the reaches of outer space where satellites orbit, typically understood to begin about 330,000 feet. While a handful of countries have laid claim to the heights between 60,000 feet and that boundary, an expanse often cited as "near space," those claims aren't recognized by international law.
The lack of international agreements does not mean that some nations are not beginning to make claims. Further from the article:
In 2017, New Zealand became the first country to include oversight of such high altitudes in its space law, requiring users to secure licenses to operate above its territory. New Zealand didn't define high altitude. A few other countries have followed suit, including the United Arab Emirates, which set a limit of roughly 262,000 feet for its oversight of high altitudes. But in those cases, other countries haven't accepted the UAE's claim.
