By Jessica West
Published in The Ploughshares Monitor Volume 44 Issue 1 Spring 2023
The recent saga of a Chinese balloon drifting over Canada and across the United States captured the public imagination, leading to speculation, suspicion, and shots fired. It also provided ordinary people with a rare glimpse into growing and generally hidden-from-view security dilemmas.
In the saga of the meme-worthy balloon, we see a familiar plot about poor governance and deteriorating security relationships among states. We see some states pushing against the boundaries of law and testing the tolerance of other states. This is a dangerous game, which can easily devolve into crisis. And it plays out almost every day in outer space.
Unidentified flying objects
The intentions behind the 200-foot blimp, first spotted over North America on January 28, were not immediately known; nor were its capabilities and purpose. Was it an errant civilian “weather” balloon, as China later stated? Or was it conducting intrusive military espionage that flagrantly violated the national sovereignty of at least two states? Was it performing dual functions? Was it armed?
Speculation ran wild as the flying object hovered over sensitive military sites in Montana before making its way to the east coast. As it travelled across the continental United States, China remained largely silent. Then the United States, describing the object as a surveillance balloon and citing China’s “irresponsible act,” had it shot down and the incident escalated into a major diplomatic spat. China described the U.S. response as “overreaction.” Tensions between the two countries heightened.
Days later, fighter jets shot down three other objects over both Canada and the United States, out of “an abundance of caution.” At that time, it was not clear if any of these objects were related to the Chinese balloon. Once again, this lack of transparency has produced a slew of speculation and suspicion.
A similar lack of transparency is also heightening tensions in outer space, although, thus far, incidents have not received much attention from media or the public. Nor, so far, have we seen objects shot down by adversarial actors.
Although most satellites operate in stable and predictable orbits, a growing number of states have launched objects that approach and follow foreign satellites without notice or explanation. Some are part of publicly described surveillance programs such as the U.S. Geosynchronous Space Situational Awareness Program (GSSAP), while others are unacknowledged. Operators of stalked spacecraft can only speculate on the intentions and capabilities of the intruder. This lack of transparency raises tensions and increases the chance of serious crisis escalation.
Multiply one Chinese balloon by thousands of satellites travelling at roughly seven kilometres per second and the significance of the danger becomes apparent. The risk is amplified because satellites provide critical military and civilian services that range from command and control over nuclear weapons systems and the early warning of missile launches to the timing and navigation capabilities that underpin civilian air traffic, banking systems, and electricity grids.
A satellite that follows too closely and accidentally or deliberately collides with another would damage more than that one satellite. The collision would result in debris contamination that could harm or even destroy many other spacecraft. The potential for widespread disruption of essential services on Earth that depend on space-derived data and services is real and growing as more and more satellites are launched into crowded space lanes. In such a situation, it is not hard to imagine an escalation to military confrontation.
How are space operators to respond to possible threats while minimizing safety risks and conflict escalation? What rules should be used to interpret abnormal or seemingly threatening behaviours and inform an appropriate reaction? The procedures were not obvious in the case of the Chinese balloon and its successors over North America. Best practice is even more uncertain in outer space.
The law seemed clear in the case of the Chinese balloon, even if little was known about its capabilities and the intent behind its flight. Its presence in sovereign American (and Canadian) air space was in clear violation of international law; on this basis, the United States validated its decision to shoot down the balloon over U.S. coastal waters. The same rationale governed subsequent intercepts of other objects over the United States and Canada.
But even in what was billed as a clear case of sovereignty violated, a dispute arose. China, sticking to the weather balloon narrative, pointed to norms pertaining to civilian overflight. It should be noted, however, that overflight rights must first be requested and granted – and were not. It is also the case that China frequently denies such rights to others.
If international law is open to interpretation when applied terrestrially, the rules that apply to human activity beyond Earth are even murkier. While states retain national jurisdiction over – and responsibility for – the objects that they launch into space, there is no equivalent of sovereignty over orbital space. Instead, space activities and objects are governed by the principles outlined in the Outer Space Treaty (OST) and by other sources of international law.
These principles are broad and often poorly defined. The strongest legal principle is the right of all states to access and use outer space for peaceful purposes. Other key OST concepts include due regard and harmful interference, both of which relate to relationships with other space objects and operators. Provisions in the United Nations Charter pertaining to the use of force and self-defence apply to outer space, but the parameters of such provisions have not been clearly established. There is little guidance in how to respond to objects that approach too closely, or even in determining what counts as “too close.”
A clear international agreement on how these laws are to be applied in practice, and to what activities, is urgently needed.
Reducing space threats
The same week that China’s balloon was spotted drifting over North America, the United Nations Open-Ended Working Group on Reducing Space Threats held its third round of discussions. The intent: to develop the sort of clarity discussed here. The discussion touched on many of the same challenges revealed by the balloon: applying general laws to specific activities, dealing with inadequate transparency and communication processes that fail to clarify and verify intentions and mitigate misperceptions, and grappling with the growing perception of often ambiguous threats.
The Working Group has been generating proposals to mitigate both the ambiguity of space activities and their intent, in an effort to avoid incidents like the January Chinese balloon event if at all possible, or at least to resolve such incidents peacefully. Under consideration: prior notification of close approaches or other unusual manoeuvres in space, better access by all space actors to space situational awareness data, the identification of points of contact and the establishment of direct communication links between operators, and the identification of specific activities that are best avoided to prevent misunderstandings and threat escalation.
The OEWG discussions can seem far removed from daily life. However, viewed after our experience of a mysterious balloon, they take on a greater sense of both practicality and urgency—for much of the world, anyway. It must be acknowledged that both Russia and China view this process as hot air. They prioritize a new legal agreement to ban “weapons” and “the use of force.” Although a worthwhile effort, there are limits to this approach in an era of hybrid activities and dual-purpose technologies, particularly in the absence of greater transparency.
Of the utmost importance in our efforts to preserve the outer space domain for peaceful purposes is the need to fend off a shooting war that turns outer space into a battlefield, whether intentionally or not. We must develop and implement tools that bring clarity to both space activities and the rules that govern them. Otherwise, we risk close encounters of a dangerous kind.
Cover photo: U.S. sailors recover portions of the Chinese balloon off the coast of Myrtle Beach, South Carolina, on February 5, 2023. Public Domain Photo