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Defense & Security
Chinese Spy balloon

Did China’s balloon violate international law?

by Donald Rothwell

Was the balloon that suddenly appeared over the US last week undertaking surveillance? Or was it engaging in research, as China has claimed? While the answers to these questions may not be immediately known, one thing is clear: the incursion of the Chinese balloon tested the bounds of international law. This incident has also added another layer of complexity to the already strained relations between the US and China. US Secretary of State Antony Blinken’s planned visit to Beijing has been postponed. And China has reacted to the shooting down of the balloon with diplomatic fury. Both sides have long disagreed over the presence of US warships in the South China Sea and Taiwan Strait, which China claims as its own waters and the US considers international waters. Will the air be the next realm to be contested by the two superpowers? A long military historyHot air balloons have a somewhat benign public image. But they also have a long military history that extends back to the Napoleonic era in Europe during the late 18th century and early 19th century when they were used for surveillance and bombing missions. The early laws of war even included some specific measures designed to address the military use of balloons during armed conflict. The modern military significance of balloons now appears to be understated, especially in an era of uncrewed aerial vehicles or drones, which have proven effective during the current Ukraine war. However, while balloons may no longer be valued for their war-fighting ability, they retain a unique capacity to undertake surveillance because they fly at higher altitudes than aircraft, can remain stationary over sensitive sites, are harder to detect on radar, and can be camouflaged as civilian weather craft. Who has sovereignty over the air?The international law is clear with respect to the use of these balloons over other countries’ airspace. Every country has complete sovereignty and control over its waters extending 12 nautical miles (about 22 kilometres) from its land territory. Every country likewise has “complete and exclusive sovereignty over the airspace above its territory” under international conventions. This means each country controls all access to its airspace, which includes both commercial and government aircraft. But the upper limit of sovereign airspace is unsettled in international law. In practice, it generally extends to the maximum height at which commercial and military aircraft operate, which is around 45,000 feet (about 13.7km). The supersonic Concorde jet, however, operated at 60,000 feet (over 18km). The Chinese balloon was also reported to be operating at a distance of 60,000 feet. International law does not extend to the distance at which satellites operate, which is traditionally seen as falling within the realm of space law. There are international legal frameworks in place that allow for permission to be sought to enter a country’s airspace, such as the 1944 Chicago Convention on International Civil Aviation. The International Civil  Aviation Organization has set an additional layer of rules on airspace access, including for hot air balloons, but it does not regulate military activities. The US also has its own “air defence identification zone”, a legacy of the Cold War. It requires all aircraft entering US airspace to identify themselves. Canada has its own complementary zone. During the height of Cold War tensions, the US would routinely scramble fighter jets in response to unauthorised Soviet incursions into US airspace, especially in the Arctic. Many other countries and regions have similar air defence identification zones, including China, Japan and Taiwan. Taiwan, for instance, routinely scrambles fighter jets in response to unauthorised incursions of its airspace by Chinese aircraft.Testing the waters – and airSo, given these clear international rules, the US was on very firm legal footing in its response to the Chinese balloon. Overflight could only have been undertaken with US permission, which was clearly not sought. China initially attempted to suggest the balloon malfunctioned and drifted into US airspace, claiming force majeure. If the balloon was autonomous, it would have been entirely dependent on wind patterns. However, a report in Scientific American said the balloon appeared to have a high level of manoeuvrability, especially when it appeared to linger over sensitive US defence facilities in Montana. Washington displayed a lot of patience in dealing with the incursion. President Joe Biden authorised military jets to shoot down the balloon, but it took some days before that could be done safely without endangering lives on the ground. The balloon incident has clearly tested the Biden administration and the US response to China’s growing military assertiveness. Similar events occur on a regular basis in the South China Sea, where the US Navy conducts freedom of navigation operations through Chinese claimed waters. The US presence is vigorously challenged by the Chinese Navy. China has also responded aggressively to the presence of US reconnaissance planes over the South China Sea, raising the risks of an accident that could spark a wider conflict. What is remarkable about the balloon incident is China has asserted its physical presence well within America’s sovereign borders. How both sides respond in the aftermath will determine whether China-US tensions worsen further and if we can expect potential future provocations between the two sides in the air, as well as at sea.

Defense & Security
President of United States Joe Biden

The Biden Administration’s National Security Strategy

by Douglas J. Feith

The Biden Administration’s national security strategy, as released to the public, has some praiseworthy elements, stressing, for example, the “need for American leadership.” But it does not take its own words seriously enough. Its discussion of “leadership” is confusing, and the administration is not providing for the kind of military strength that would make US leadership effective. A Preliminary Word on Precision A strategy should not use vague and ambiguous language (let alone mind-numbing repetition). Having said that no nation is better positioned than the United States to compete in shaping the world, as long as we work with others who share our vision, the strategy declares (the italics are mine), “This means that the foundational principles of self-determination, territorial integrity, and political independence must be respected, international institutions must be strengthened, countries must be free to determine their own foreign policy choices, information must be allowed to flow freely, universal human rights must be upheld, and the global economy must operate on a level playing field and provide opportunity for all.” The fuzziness—incoherence—of using the word “must” should be obvious. For example: “The United States must...increase international cooperation on shared challenges even in an age of greater inter-state competition.” But “some in Beijing” insist that a prerequisite for cooperation is a set of “concessions on unrelated issues” that the US government has said are unacceptable. So the strategy effectively declares that cooperation with China is a “must” even when China says we cannot have it. In other words, the word “must” doesn’t really mean “must.” In this case, it expresses no more than the administration’s impotent preference. This strategy is 48 pages long. It uses the word “must” 39 times. To drive home that President Biden is not his predecessor, the strategy constantly emphasizes allies and partners. It uses the word “allies” 38 times and “partner” or “partnership” an astounding 167 times. Meanwhile, it does not use “enemy” even once. Two of the three times it uses the word “adversary” it is referring to “potential” rather than actual adversaries. The third time, it says only that America’s network of allies and partners is “the envy of our adversaries.” Enemies and Hostile Ideology The strategy identifies, correctly in my view, America’s “most pressing challenges” as China and Russia. China is described as the only “competitor” with both the intent and power to “reshape the international order.” Russia is called “an immediate threat to the free and open international system,” while the Ukraine war is rightly characterized as “brutal and unprovoked.” The discussion of enemies, however, is euphemistic and misleading and does not give explicit guidance on confronting them. Alluding to China and Russia, it talks of “competing with major autocratic powers” as if everyone in the “competition” is playing a gentlemanly game with agreed rules. That creates a false picture of the problem. The strategy states that China “retains common interests” with the United States “because of various interdependencies on climate, economics and public health.” In discussing “shared challenges”—such as climate change or COVID-19—it implies that Chinese leaders see these challenges the same way the administration does, but the well-known recent history of Chinese secretiveness about COVID-19, for example, refutes that assumption. There are references to pragmatic problem-solving “based on shared interests” with countries like China and Iran. The strategy does not explain, however, what US officials should do if such cooperation is inconsistent with other US interests. Should they work with China at the expense of opposition to genocide against the Uighurs? Should they work with Iran at the expense of that country’s pro-democracy resistance movement? Iran and North Korea are called “autocratic powers,” but being autocratic is not the key to their hostility and danger. Rather, it is that they are ideologically hostile to the United States and the West. There are two passing references to “violent extremism,” though no discussion whatever about anti-Western ideologies. US officials are given no direction to take action to counter such ideologies. The strategy is entirely silent on jihadism and extremist Islam. Leadership and Followership—Ties to Allies and Partners While it properly calls attention to the value of America’s “unmatched network of alliances and partnerships,” the strategy does not deal adequately with questions of when the United States should lead rather than simply join its allies. It does not acknowledge that there may be cases when the United States is required to go it alone. President Biden is quoted as telling the United Nations, “[W]e will lead...But we will not go it alone. We will lead together with our Allies and partners.” But what if American and allied officials disagree? Sometimes the only way to lead is to show that one is willing to go it alone. Failing to distinguish between leadership and followership is a major flaw. While asserting that America aspires to the former, the strategy declares that “we will work in lockstep with our allies.” Such lockstep would ensure that the United States is constrained by the lower-common- denominator policy of our allies. If President Biden really believes what he is saying here, he is telling his team to refrain from initiatives that any or all of our allies might reject. Instead of soliciting ideas from administration officials that would serve the US interest even if they require campaigns to try (perhaps unsuccessfully) to persuade our allies to acquiesce, his strategy discourages initiative and efforts to persuade. That is the opposite of leadership. The strategy says that “our alliances and partnerships around the world are our most important strategic asset.” But that is not correct; our military power is. This is a dangerous mistake. Our alliances can be highly valuable, but to suggest that they are more important than our military capabilities is wrong and irresponsible. The document says, “Our strategy is rooted in our national interests.” This assertion is at odds with the insistence that America will not act abroad except in concert with our allies and partners. The strategy claims that “Most nations around the world define their interests in ways that are compatible with ours.” That, however, is either banal or untrue. Our European allies have important differences with us regarding China, Iran, Israel, trade and other issues. Before the Ukraine war, they had major differences with us regarding Russia. The strategy says, “As we modernize our military and work to strengthen our democracy at home, we will call on our allies to do the same.” What if they do not heed the call, however? For decades, US officials complained vainly that NATO allies underinvested in defense, confident that the United States would cover any shortfalls—what economists call a free-riding problem. Along similar lines, the strategy declares that America’s alliances “must be deepened and modernized.” But how should US officials deal with allies who act adversely to US interests, as Turkey has so often done under Erdogan—in buying Russian air-defense systems, for example—and as the Germans did, before the Ukraine war, in increasing their dependence on Russian natural gas? Interestingly, on strengthening the US military, the strategy does not say that US allies have to agree or cooperate. It says “America will not hesitate to use force when necessary to defend our national interests.” This part of the document reads as if it had different authors from the rest. Nuclear Deterrence The strategy makes an important point about nuclear deterrence as “a top priority” and highlights that America faces an unprecedented challenge in now having to deter two major nuclear powers. It makes a commitment to “modernizing the nuclear Triad, nuclear command, control, and communications, and our nuclear weapons infrastructure, as well as strengthening our extended deterrence commitments to our Allies.” But the administration has not allocated resources to fulfill its words on deterrence and Triad modernization. Promoting Democracy and Human Rights “Autocrats are working overtime to undermine democracy and export a model of governance marked by repression at home and coercion abroad,” the strategy accurately notes, adding that, around the world, America will work to strengthen democracy and promote human rights. It would be helpful if it also explained why other country’s respect for democracy tends to serve the US national interest. This is not obvious and many Americans, including members of Congress, show no understanding of how democracy promotion abroad can help the United States bolster security, freedom and prosperity at home. The strategy does not explain how its championing of democracy and human-rights promotion can be squared with its emphasis on respecting the culture and sovereignty of other countries and not interfering in their internal affairs. Nor does it explain how officials should make tradeoffs between support for the rights of foreigners and practical interests in dealing with non-democratic countries. Officials need guidance on such matters. The public also would benefit from explanations. The administration just announced that Saudi Arabia’s crown prince, who is also prime minister, has immunity from civil liability for the murder of Jamal Khashoggi, a Saudi journalist who worked for the Washington Post. The strategy does not shed light on how the relevant considerations were weighed. It says the United States will make use of partnerships with non-democratic countries that support our interests, “while we continue to press all partners to respect and advance democracy and human rights.” That’s fine as far as it goes, but it does not acknowledge, for example, that we sometimes have to subordinate human rights concerns for national security purposes, as when President Franklin Roosevelt allied with Stalin against Hitler. A strategy document should be an aid in resolving complexities, not a simplistic list of all the noble things we desire or wish to be associated with. Refugees Regarding refugees, it is sensible that the strategy reaffirms the US interest in working with other countries “to achieve sustainable, long-term solutions to what is the most severe refugee crisis since World War Two—including through resettlement.” But there is no mention of why US officials should press Persian Gulf states to accept more refugees from the Middle East, given that those states share language, culture and religion with those refugees.Willing Ends Without Providing Means The strategy does a lot of willing the end but not specifying or providing the means. As noted, the administration is not funding defense as it should to accomplish its stated goals. On Iran, the strategy says, “[W]e have worked to enhance deterrence,” but US officials have been trying to revive the nuclear deal that would give Iran huge financial resources in return for limited and unreliable promises. The strategy says, “We will support the European aspirations of Georgia and Moldova...We will assist partners in strengthening democratic institutions, the rule of law, and economic development in the Western Balkans. We will back diplomatic efforts to resolve conflict in the South Caucasus. We will continue to engage with Turkey to reinforce its strategic, political, economic, and institutional ties to the West. We will work with allies and partners to manage the refugee crisis created by Russia’s war in Ukraine. And, we will work to forestall terrorist threats to Europe.” But these items are presented simply as a wish list, without explanation of the means we will use, the costs involved or the way we will handle obvious pitfalls along the way. Setting Priorities A strategy paper should establish priorities, but this one simply says we have to do this and that, when the actions are inconsistent with each other. It is line with the quip attributed to Yogi Berra: When you get to a fork in the road, take it. It says we should act in the US national interest, but we should also always act with allies and partners. We should oppose Chinese threats, but always cooperate with China on climate issues. We should pursue the nuclear deal with Iran even when Iran is threatening its neighbors and aiding Russia in Ukraine (and, as noted, crushing its domestic critics). We should insist on a two-state solution to the Israel-Palestinian conflict while the Palestinian Authority remains unreasonable, corrupt, inflexible and hostile. A strategy should not set up choices that involve tradeoffs and then give no guidance on how to resolve the tradeoffs. If it promotes arms control and other types of cooperation (on COVID-19, for example) with Russia and China, it should forthrightly address problems of treaty violations and specify ways to obtain cooperation when it is denied. Such a document cannot specifically identify all possible trade-offs and resolve them, but it can set priorities and do a better job than this strategy does in informing officials on how to handle easily anticipated dilemmas. Strategic Guidance or Campaign Flyer The administration’s strategy combines valid points and unreality. It is unclear whether it is a serious effort to provide guidance, directed at officials, or a boastful campaign document, directed at the public. Mixing the genres is not useful.

Defense & Security
The Philippines Army standing in parade

Bound to Comply: the Philippines’ One-China Policy and Mutual Defense Treaty with the U.S.

by Aaron Jed Rabena

In the event of hostilities in the Taiwan Strait, Manila’s defense treaty with the United States will give it little room to manoeuvre. President Ferdinand “Bongbong” Marcos Jr.’s recent visit to China underscores his intent to have a constructive relationship with China, and a balanced and diversified Philippine foreign policy. But as Sino-US relations deteriorate and United States President Joseph Biden veers towards strategic clarity to defend Taiwan amid heightened cross-Strait tensions, the risk of getting entangled in a Sino-US conflict over Taiwan has become a major policy issue for Manila.  All Philippine presidents have strictly adhered to the One-China policy which is enshrined in the Joint Communique on normalisation of Sino-Philippine ties in 1975. Even President Benigno Aquino III, who arguably pursued the most critical China policy in 2010-2016, toed the line on the One-China policy and repatriated wanted Taiwanese nationals to Beijing in 2011. Manila’s adherence to the One-China policy was reaffirmed by Marcos Jr. after U.S. House Speaker Nancy Pelosi’s visit to Taiwan last year.  In the event of a Sino-U.S. conflict over Taiwan, the legal status of Manila’s commitment to the One-China policy would be tested against its obligations under the 1951 Philippine-US Mutual Defense Treaty (MDT). The treaty highlights the “sense of unity,” “common determination” and “collective defense” against an “external armed attack” and “potential aggressor”, but it is ambiguous about the specific geographic scope of its application in the Pacific. While the Philippines sees the utility of the MDT primarily for a South China Sea contingency, the U.S. can invoke Article IV of the MDT in a Taiwan conflict. The article states that each party deems that “an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.”  With respect to “constitutional processes”, the 1987 Philippine Constitution gives the Congress the power to declare “the existence of a state of war”; only under such conditions or another national emergency, would the President be authorised by law to wield the necessary powers “to carry out a declared national policy.” As such, congressional intervention would be an important variable that needs to be closely watched. Manila can also mitigate entrapment risks by exercising its sovereign authority on where and how the U.S. military could access and use its facilities. The preamble to the Enhanced Defense Cooperation Agreement (EDCA) states that “US access to and use of facilities and areas will be at the invitation of the Philippines and with full respect for the Philippine Constitution and Philippine laws.” Yet, history has shown how the Philippines could be involved in a war over Taiwan even in the absence of a U.S. formal invocation of the MDT. Manila could send boots on the ground and/or provide logistical access for U.S. military operations. This was the case in the Korean War, Vietnam War, and U.S. wars in Afghanistan and Iraq.  Put differently, Manila is caught in a bind. On one hand, it fears Washington’s abandonment in the event of a South China Sea conflict with China. Manila has repeatedly demanded clarity and immediacy in U.S. alliance commitments. To this end, Manila concluded the 1998 Visiting Forces Agreement (VFA) and the 2014 EDCA with Washington to secure U.S. military presence in the region and security guarantees. On the other hand, the Philippine security establishment increasingly fears entrapment, where the country’s military is drawn into a Sino-US conflict over Taiwan. This reality became evident following former U.S. House Speaker Nancy Pelosi’s visit to Taiwan in August 2022. In September 2021, the Philippine ambassador to America said that the U.S. can use Philippine bases in a Taiwan conflict if it is important for the Philippines’ security. The condition, however, remains open-ended and is contingent on many indeterminate factors.  At the moment, the risks of entrapment are increasing, at least from the operational perspective. Since its coming to power, the Marcos Jr. administration has taken steps to bolster security ties with Washington. Both countries have agreed to explore joint patrols in the South China Sea, and accelerate the implementation of the EDCA through infrastructure enhancement at various locations. Both allies are looking at adding more sites for American military access, including in the northern province of Cagayan near Taiwan, to facilitate faster response to crisis situations. They have also agreed to double the number of troops involved in joint exercises and plan to sharply increase the number of bilateral defence activities in 2023. Given the timing of these initiatives, Beijing would likely see these Philippine moves as siding with America to undermine its One-China principle and enable U.S. military prepositioning for war-time contingencies. Should the Philippines provide basing access in a cross-strait conflict, Manila would certainly face Chinese sanctions. China could also play hardball in the South China Sea and its ballistic missiles could target countries facilitating U.S. combat operations. But if tensions in the South China Sea escalate and coincide with tensions in Taiwan, there will be a greater incentive for Manila to strategically align with Washington and accommodate U.S. military hardware.  How the Philippines should respond to a Taiwan contingency is not simply a legal question but a critical national security concern. There are around 200,000 overseas Filipino workers in Taiwan; repatriating them during an armed confrontation over Taiwan would be an enormous undertaking. This will be compounded by a massive human migration of Taiwanese nationals.  Even if Manila manages to sidestep the risks associated with entrapment in a Taiwan Strait conflict, it cannot escape the geopolitical ramifications of such a historic event. Should China successfully reunify Taiwan by force, China could inch closer to the northern Philippines and it will be easier for China to break through the First Island Chain. China’s takeover of Taiwan would also augment its power projection capability in the South China Sea. This would consequently impact Philippine maritime and security interests. Given the Philippines’ geographic proximity to Taiwan, its status as a U.S. defence treaty ally and its stakes in the South China Sea, there will be complications in Manila’s desire to be neutral in a Taiwan contingency.