Scientific Balloons Legal Status
Near-space is too high up for aircraft, but too low for satellites. At a conference designed to assess the state of the art in near-space, a panel of experts agreed to loosely define near-space as that region between about 65,000 ft (20 km) and 100 km, a definition with admittedly mixed units. Sixty-five thousand feet was chosen as the lower boundary in order to be above the current International Civil Aviation Organization (ICAO) controlled airspace limit of 60,000 ft.
The legal definition of where air space ends and outer space begins has not been codified into international law. States have sovereignty over their air space, but according to international law, no state sovereignty exits in outer space. Therefore there is a question as to where state sovereignty ends and the space commons begin. The question of definition becomes increasingly important as technology advances and states develop platforms which will operate in near-space, this legally ambiguous zone. The United Nations Committee on the Peaceful Use of Outer Space has asked the United States whether or not it supports specifically delimiting space. The United States, after a review of space law and air law, concludes that regarding its intelligence, surveillance, and reconnaissance ISR platforms, decided it was in the best interest of not to pursue a specific definition.
Freedom of innocent passage at sea (also called freedom of navigation) is well-established through customary international law and international conventions. However, freedom of overflight is not exercised according to customary international law, and no international convention on freedom of overflight (International Air Services Transit Agreement of 1944) is universally accepted. There have been efforts by the International Civil Aviation Organization (ICAO) to revitalize the Transit Agreement.
As early as 1901, the French legal scholar Paul Fauchille wrote an article entitled ‘’Le domain aerien et le regime juridique des aerostats’’ in which he referred to, inter alia, the freedom of the air. Some years later, John Westlake, a British lawyer, took an opposite view. He was in favour of recognising the principle of sovereignty in the air as the primary principle of public international air law and attempted to put an end to the transit rights of balloons and to the use of particular equipment such as wireless telegraph.
The international recognition of absolute State sovereignty of airspace expressed in article 1 of the Chicago Convention extends up to the point where flight by conventional aircraft and balloons is possible.
On 08 February 1956, during a news conference discussing U.S.S.R. protests of U.S. high altitude balloons violating U.S.S.R. airspace, U.S. Secretary of State John Foster Dulles said “the question of the ownership of upper air is a disputable question. . . . What the legal position is, I wouldn’t feel in a position to answer because I do not believe that the legal position has even been codified . . . .” Later in the same news conference, Secretary Dulles answered a question by saying, “Yes, I think that we feel [that the U.S. has the right to send balloons at a certain height anywhere around the globe], although . . . there is no clear international law on the subject.”
Although this appears to be a definitive statement, Secretary Dulles qualified it by arguing that the balloons were not interfering with aircraft rather than discussing sovereignty, saying there is a “recognized practice to avoid putting up into the air anything which could interfere with any normal use of the air by anybody else.” The next day Secretary Dulles said the U.S. position was that the legal status of the upper air and the spaces beyond it was still undetermined, and that recognition of any national claim there might raise questions as to the legality of other modern media, such as radio waves and even the projected space satellite.
At the 33rd COSPAR Scientific Assembly in Warsaw, Poland in 2000, the Scientific Balloon Panel formulated a resolution to the COSPAR Executive Council requesting a task group be formed to study and report to the bureau on the technical aspects of overflight of scientific balloons (including altitudes, balloon sizes and payload masses, characteristics and features of payloads, and safety requirements) and possible international actions to enable the geographically-unrestrained and the peaceful free flight of such apparatus over all countries.
The "balloon episode" went viral on the US social media. A number of US hawks on China-related matters hyped the use of balloon for spying purpose and distorted it as "a direct assault on the US national sovereignty." Pentagon Press Secretary Patrick Ryder said "We do know that the balloon has violated US airspace and international law, which is unacceptable". Some subsequent US government statements dropped the internatioal law accusation.
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