“China Wants to Rewrite the Sky”: Beijing’s Push to Claim ‘Near Space’ Risks Shattering Global Airspace Laws and Sparking a Legal Cold War

The recent downing of a Chinese high-altitude balloon by the U.S. military has reignited discussions about the legalities of airspace and the emerging concept of “near space.” This incident has brought to light China’s potential strategy of using legal narratives to influence international norms and establish a new domain of control. With reports of China possibly establishing a “Near Space Command,” questions are being raised about the implications of such developments on global airspace governance. Understanding these dynamics requires examining both the established international laws and China’s strategic intentions.

Understanding the Concept of Near Space

Near space, a term often used to describe the region between 12 to 62 miles above sea level, is a zone that has garnered significant interest from military strategists and policymakers. The lack of a clear international legal framework governing this area has led to ambiguities and opportunities for strategic maneuvering. While the Outer Space Treaty of 1967 ensures free access to outer space for all states, the boundaries between airspace and outer space remain undefined, creating a legal gray area.

China’s interest in near space is not merely operational but also legal. The notion that near space should be a legally distinct zone has been advocated by Chinese military scholars for over a decade. In a 2011 article, a researcher from the Academy of Military Sciences described near space as a “legal blank that needs to be filled urgently.” This perspective suggests that China sees an opportunity to shape the legal discourse and potentially gain strategic advantages in this unregulated domain.

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The Legal Framework: Airspace vs. Outer Space

The legal distinction between airspace and outer space has long been a subject of international debate. The Convention on International Civil Aviation grants sovereign control of airspace to individual states, while outer space is governed by principles of free access. However, no international agreement defines where airspace ends and outer space begins, leaving near space in a legal limbo.

China's narrative appears to challenge this status quo, advocating for a distinct legal regime for near space. This approach aligns with China's strategic concept of legal warfare, which involves using legal arguments to advance national interests. By promoting the idea of near space as a separate legal entity, China could potentially legitimize its activities in this area and de-legitimize opposition from other states.

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China's Near Space Strategy: Legal Warfare

China's legal warfare strategy, part of its "Three Warfares" doctrine, involves using legal narratives to influence international norms and gain strategic advantages. This strategy is evident in China's approach to near space, where it seeks to establish new rules that serve its national interests. The People's Liberation Army's emphasis on legal warfare highlights the importance of aligning legal narratives with military objectives.

China's sustained narrative about near space in both legal and technical contexts conforms to each of these aspects of legal warfare.

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The strategy involves promoting the notion of near space as a separate legal zone and challenging existing international laws that limit China's access to high-altitude airspace. By framing near space as a distinct legal domain, China aims to legitimize its activities and create a pretext for its incursions into other states' airspace.

Implications for Global Airspace Governance

The potential establishment of a "Near Space Command" within the PLA raises concerns about the militarization of near space and its impact on global airspace governance. Although reports suggest that such a command has not been officially established, the discussion reflects China's strategic interest in expanding its influence in high-altitude airspace.

The implications of China's near space narrative extend beyond the legal realm. If successful, this narrative could alter the balance of power in airspace governance, challenging existing international norms and potentially leading to increased tensions among states. The international community must consider the long-term implications of China's legal warfare strategy and its potential impact on global security.

The evolving discourse on near space presents an opportunity for the international community to reassess the legal frameworks governing airspace and outer space. As China continues to advocate for a distinct legal regime for near space, other states must evaluate their responses and strategies. Should the international community engage in dialogue to establish clearer boundaries and legal norms for near space, or should it resist changes that could alter the existing balance of power? The future of global airspace governance may hinge on the answers to these questions.