By Ashley S. Deeks
The details are disputed, but either way the result was the same: On March 14, 2023, a U.S. drone crashed into the Black Sea after an encounter with Russian aircraft.
According to the U.S. version of events, the unarmed MQ-9 surveillance drone was flying in international airspace when two Russian fighter jets dumped fuel on the drone before colliding with it in violation of international law.
The Russian Defense Ministry denied that its aircraft made contact with the U.S. drone. Instead, Russia asserted that the drone was flying in the direction of Russia’s borders with its transponder off, suggesting that Russia found the flight suspicious. In addition, Russia said, the U.S. drone violated the “temporary boundaries” that Russia had established for its operations against Ukraine and crashed on its own.
In light of Russia’s past misrepresentations about its military activities during its invasion of Ukraine, I view Russia’s assertions with skepticism. Moreover, as someone who studies international law and formerly served in the U.S. State Department as a lawyer advising on issues related to armed conflict, I see this episode as highlighting the right of countries to operate aircraft and drones in international airspace – even for the purposes of spying on another state.
Showing ‘due regard’
If the U.S. characterization of the facts is correct, then Russia did indeed violate international law by interfering with the U.S. drone.
Under Article 87 of the U.N. Convention on the Law of the Seas, the high seas – basically, waters that are not any country’s territorial sea or exclusive economic zone – are open to all states. And the right of a country to operate on the high seas includes the freedom of overflight.
The convention also states that the freedoms “shall be exercised by all states with due regard for the interests of other states in their exercise of the freedom of the high seas.”
The United States is not a party to the convention, which was signed in 1982 and currently has 168 parties, including Russia. Nevertheless, the U.S. recognizes many of its provisions as customary law; indeed, a key U.S. naval handbook recognizes that “the aircraft of all states are free to operate in international airspace without interference by other states.”
As such, Russia violated international law when it failed to act with “due regard” for the U.S. right to engage in freedom of overflight. In fact, based on the U.S. account, Russia directly interfered with that right. And it is presumably on this basis that the State Department spokesman called the drone’s downing a “brazen violation of international law.”
Any Russian concerns that the U.S. drone may have been spying on its military operations would not alter this conclusion. Freedom of overflight in international airspace includes the act of monitoring activities inside another state’s territory, as long as the monitoring occurs from within international airspace.
So it would not matter from the perspective of international law whether the United States was using the MQ-9 to spy on military activities inside Russia or Russian-controlled Crimea.
Aircraft in conflict zones
Russia appears to be taking the position that it was entitled to set up boundaries for its “special military operation” in Ukraine and that the United States disregarded those boundaries.
Russia may be referring here to a “maritime exclusion zone” that Russia set up in February 2022 to prohibit navigation in the northwest portion of the Black Sea.
In general, the United States considers such zones to be lawful if their purpose is to direct neutral ships and aircraft away from conflict areas – they can play an important role in reducing the risk that such vessels are mistakenly attacked. The United States itself established a “maritime safety zone” in the Mediterranean Sea in 2003 in connection with its invasion of Iraq.
However, neutral ships and aircraft do not become lawful targets merely because they enter such zones. Russia would only have had a reasonable claim to use force against, or interfere with, the U.S. drone if it posed an imminent threat of an armed attack or was otherwise a legitimate military target during an armed conflict. For this to be the case, the U.S. drone would have had to be taking direct part in hostilities, and it is known that the MQ-9 was unarmed.
On solid ground in the skies
Assuming the U.S. account is correct, it would not be the first time that a country has interfered with a U.S. surveillance aircraft in an unsafe manner and effectively downed it.
In 2001, a Chinese fighter jet bumped into a U.S. signals intelligence aircraft that was operating 70 miles from China’s Hainan Island. The U.S. aircraft was damaged in a way that forced it to make an emergency landing on Hainan, while the Chinese fighter jet itself crashed. At the time, the United States asserted that international law, including the “due regard” principle, permitted the United States to conduct surveillance flights in China’s exclusive economic zone, which the U.S. considered to be international airspace. China didn’t and detained the 24 U.S. crew members, demanding an apology from Washington. Since then, China has intercepted Australian and Canadian aircraft that were engaged in routine surveillance in international airspace, prompting complaints similar to those the United States is making now.
In both the China case and the recent Black Sea incident, the United States has taken a consistent, widely shared position on the use of international airspace. As such, I believe it is on solid ground in objecting to Russia’s actions as unlawful.
Ashley S. Deeks is Professor of Scholarly Research in Law at the University of Virginia.
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Bill says
Ashley S. Deeks Is also a Biden administration appointed official… why not print this as well?
Spying in a war zone and advising and providing weapons to one party does not fit the arguments in this article!
Dennis C Rathsam says
Once again the countries that hate America, are taking pot shots at us. When will the president grow a spine and do something. Im not advocating war but you gotta stop this blaten battering of a 32 million dollar drown. China sends balloons, Mexico sends us fentenyol…. Whats next? Would America,s greatest generation, take this crap? I dont think so. They fought to keep us safe, they saved America. We need real leadership, now more than ever. Remember President Reagen…Peace through strenth, what a concept. America has become a laughing stock to the world, as we cower down to our enemies. China has made the Bidens rich, beyond there wildest dreams….Thank god the Bidens banking records are finnaly being released, it sure doesnt look for for them….I have just one question, What did China & Russia get for giving the Biden family million of dollars? How on earth did Obama let Biden get away with his? Pay for Play?
Pogo says
@dcr
Since you’re being off-topic and irrelevant anyway:
2+2=4
Speaking of something for nothing: if it wasn’t anything, what in the hell was it?
https://www.google.com/search?q=jared+2+billion+dollars
https://www.youtube.com/watch?v=l91ISfcuzDw
Officer, they went that way
https://www.google.com/search?q=executive+compensation+by+country
Geezer says
Firstly, my heart goes out to you…
America as a laughing stock? Yeah, if you’re demented.
(Well, with Trump at the helm, it was leaning towards being a laughing stock.)
But before you march to Pomp and Circumstance, recall that even
a broken clock is accurate for one minute, twice every twenty-four hours.
https://www.youtube.com/watch?v=Kw-_Ew5bVxs
Please know that the community has assorted intervention programs
that you can take advantage of.
May I recommend some mental calisthenics?
There’s a treatment plan to wean you off of Fox News and Breitbart.
You can visit sites such as Foreign Affairs, USN Proceedings, Stars and Stripes, etc.
The mind is a terrible thing to waste.
Free it from the bondage of obtuseness and proclaim loudly: Let My People Go!
But hey…
You are so right–damn that Mexican Fentanoyl.
Remember Popeye the Sailor Man?
Well, he had an on-and-off relationship with Olive Oyl.
Fentanoyl ruined what could have been the century’s most celebrated love affair.
Olive drowned with $32,000,000 of Popeye’s hard-earned currency.
And they blamed a Russian Jet for dumping fuel on Olive.
Wow, a 32-million-dollar drowning…FENTANOYL!!!
Is China sending balloons?
Yes, sir, and they remind me of a certain commenter that’s full of hot air.
Geezer says
The US has plenty more drones to antagonize Puty-Put.
The US will just send our Ukrainian friends some more HIMARS rocket launchers
for kicks and giggles. Well, a lot more than that…
The US and NATO are a humungous stone in Vladdy’s shoe.
They’ve exposed the paper Russian bear…
Joe Biden and the gang have reunified the Atlantic Treaty nations, and that’s a huge accomplishment after El Trumpo stupido.
If Chump Trump were in office, he’d be puckering up his stupid lips to Putin’s and the Nomenklatura’s a**es.
Now Russia is staring at the eventuality of 2 new NATO countries and another one (Finland) right on its border!
Finland has one of the world’s best-trained and equipped militaries.
That’s about 830 miles of their border staring at NATO, with Sweden nearby joining a little later. (Think Baltic Sea logistics)
Talk about containment! Biden and his people have done a masterful job.
Don’t be surprised if Putin is living out his last few days.
So the Russians down a drone…big deal. It doesn’t even add up to the annoyance of hearing a MAGA member
talking the usual parroted gibberish within earshot.
I now worry about a war with China–poor Walmart would go bankrupt…
Where are you going to buy your Elmer Fudd uniforms now?
Oh no, a leggings shortage!
don miller says
it is how they chose to do it that sends a message. on video they pee’d fuel on our drone. get it?
Geezer says
Shoo!
Timothy Patrick Welch says
Don’t be cute, and don’t make things up. Thanks—FL
Who destroyed the pipeline?
Who’s family took money from Ukraine?
Who is wasting our tax dollars?
Who has dwindled our National oil reserve?
Who’s family took money from China?
I’m not sure who he is but is he serving America’s best interest?
don miller says
knowing full well the world would see the whole thing on video; the russian jet pee’d on our drone with fuel, then bumped it out of the sky. biden harshly responded by calling that peeing unsound environmentally. think that sacred them off from future worse acts? we becoming a joke and sound senseless. fits with his afghan runout and letting the Iranians hurl 300 projectiles into our mid east bases since he took over. think he’ll ever scare iran into new nuke talks like he promised? wen trump didn’t deliver on a promised action, it was called a LIE. what is it now?
Geezer says
“we becoming a joke and sound senseless.” Huh?
The USA is no “joke.” The author of the line above is.
Reading between the lines of your two last comments, I feel a sense of sympathy for you.
Pack up your crayons and get to work on your spelling and grammar.
Thanks for the Pidgin English demo, though…
Now SHOO.
Concerned Citizen says
If only these Drones had a self destruct button. Erase the data hit the button. A non issue after words.