Beijing on Monday stepped up its condemnation of Washington’s decision to shoot down a Chinese balloon that traversed US airspace, accusing the US of dealing a “serious blow” to relations.
Vice-minister of foreign affairs Xie Feng lodged a formal protest with the US embassy in Beijing in which he came close to accusing Washington of violating international law.
The “indiscriminate use of military force” against a “civilian unmanned airship” had “seriously violated the spirit of international law and international conventions”, Xie said.
“What the US has done has dealt a serious blow and damaged the efforts and advances in stabilising China-US relations since the Bali meeting,” he added, referring to US president Joe Biden’s summit with Chinese leader Xi Jinping in November.
The escalating rhetoric indicates that the balloon spat is derailing efforts to stabilise relations between the superpowers. US secretary of state Antony Blinken, who had been due to travel to China at the weekend, called off his visit at short notice after the Chinese balloon’s incursion into US airspace became public.
Some analysts said Beijing’s choice of rhetoric indicated that the Chinese government could consider accusing Washington of illegal military force against an aircraft in distress under the Chicago Convention which regulates international civil aviation — a charge that could escalate the dispute and raise concerns about potential retaliation.
All Chinese statements have used the term “civilian unmanned airship” to describe the balloon. That language “is the basis for a narrative that accuses the US of using force against a civilian airship in distress”, Aurel Sari, an associate professor of public international law at the University of Exeter, wrote on Twitter.
Sari argued that although the requirement for states to refrain from the use of weapons against civil aircraft in flight under the Chicago Convention does not apply to the Chinese balloon case, “the language adopted by China may well lead to confusion on this point”.
Blinken on Friday said it was clear that China had violated US sovereign airspace and international law.
The US military, which uses high-altitude balloons as well but has no record of flying them into another country’s airspace, concluded in an internal legal memo last year that such balloons operated by militaries “are state aircraft under international law subject to the same requirements as other state aircraft”. This includes the requirement of a foreign state’s permission before operating such balloons over its territory.
The memo, signed by legal experts of the US Indo-Pacific Command and the Australian military as advice for joint operations, also said the same requirements applied to civilian unmanned free balloons “unless they are light balloons used exclusively for meteorological purposes and operated in the manner prescribed by the appropriate authority”.
One person familiar with the Biden administration’s thinking on the episode said that when Blinken on Wednesday summoned a Chinese diplomat to protest, the official had no explanation. China later gave the US an explanation about a civilian airship veering off course, the person said.
Craig Singleton, a China expert at the Foundation for Defense of Democracies, said China had “clearly violated” international law because it was a signatory to the Chicago Convention treaty which created the International Civil Aviation Organization under the UN.
“Its reconnaissance balloon entered US air space without the expressed permission of the US government,” said Singleton. “Technically, balloons are considered aircraft and thus subject to the same requirements as planes.”
He added that the Chicago Convention “unambiguously denies” foreign military aircraft the right to enter another state’s airspace without permission from that government.
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