Thread by @aurelsari

The Chinese MFA has released a statement about the balloon. Some nifty lawyering going on. The statement declares (a) that the Chinese "unmanned airship" entered into US airspace unintentionally and unexpectedly, due to force majeure; (b) that China respects the sovereignty /1

and territorial integrity of all countries; and (c) that China has "no intention to violate and has never violated the territory or airspace of any sovereign country." In another statement mentioned by the Chinese Embassy to France, the MFA (d) expressed its /2

"strong dissatisfaction and protest against the US's use of force to attack civilian unmanned airships"; claimed that (e) the use of force by the US was an overreaction and "seriously violating international practice"; and declared that (f) China will resolutely safeguard /3

its legitimate rights and reserve the right to take necessary steps in that direction. Okay, so what to make of this? (1) The balloon is in Chinese governmental service. The fact that it entered the US without prior permission is prima facie a violation of /4

US sovereignty and territorial integrity. The claimed civilian rather than military nature of the balloon is immaterial in this respect. (2) Force majeure may preclude the wrongfulness of the balloon's unauthorized entry. This requires an irresistible force or an unforeseen /5

event, beyond the control of China, that made it materially impossible for China to respect US sovereignty. China claims force majeure due to the weather and the limited manoeuvrability of the balloon. The latter is clearly foreseeable. But assuming that China lost control /6

because of the weather, it was under an obligation to terminate the balloon's payload under Annex 2 to the Chicago Convention on International Civil Aviation before the balloon's entry into US airspace. Its failure to do so most likely precludes China from successfully /7

invoking force majeure. (3) By relying on force majeure, China has admitted that it has lost control over the balloon. In the absence of other means to intercept it and terminate its flight, it is not unreasonable for the US to have destroyed it in the way it did, both as an /8

assertion of its right to demand the balloon to land and to safeguard life and limb on the ground. (4) China has repeatedly described the balloon as an "airship". This is not a term used in the Chicago Convention: legally, the vessel is a "balloon". However, airship sounds /9

close to "aircraft". That is a legal term, but not applicable in the present case. Why does this matter? Because it is the basis for a narrative that accuses the US of using force against a civilian airship in distress. Some may recall Article 3bis of the Chicago Convention /10

which imposes a duty on States to refrain from resorting to the use of weapons against civil aircraft in flight. That duty is not engaged here, but the language adopted by China may well lead to confusion on this point. Coincidence or not? Note that @SkyNews is repeating /11

China's claim as the shooting down of a "civilian aircraft"... (5) China may press this point as part of the measures it may take to "resolutely safeguard" its rights. It may also invoke sovereign immunity and demand compensation, pointing to force majeure. At one point /12

the bombing of the Chinese Embassy in Belgrade may well come up. /end

ADD1. On the "airship", see how @globaltimesnews now carries comments by Chinese experts that accuse the US of failing to distinguish between civilian and military *aircraft*.

globaltimes.cn/page/202302/12…

ADD2. The second statement mentioned earlier has now been published, it seems. No new details, but China is sticking to the "airship" story.

#LexZeppelin

eng.mod.gov.cn/news/2023-02/0…