Planet and Moon

Dissertation

Spacial Demarcation and Delimitation of Outer Space: Just How Outer Is Outer Space?

Over the course of a year, I researched and wrote a double credit dissertation as part of my law degree. I decided to do it on outer space as there currently isn't a consensus on where air space ends and outer space begins (which is something that must be sorted out sooner rather than later with the emergence of commercialised space flight and space litter becoming a big problem). I have decided to include my dissertation on this website with the hope that doing this will achieve a few things:


1) Stimulate interest in Aviation and Outer Space law in a wider audience

2) Help undergraduate students to grasp the basics of writing a dissertation (DISCLAIMER: requirements may vary depending on the law school and module weight.)

3) Help to generate debate within the legal, political and scientific communities. By no means do I think that this single dissertation will provide the answer to such a complex issue, but perhaps it may be seen by someone who can take my ideas and develop them further in order to find a workable solution.

Whether you are a student, legal, political or scientific professional or just a curious reader, I hope you find the following pages insightful, helpful and interesting. 

 

Abstract

Despite powered, sustained, and controlled airplane flight not being a reality until the Wright brothers managed it in 1903, the international debate over the delimitation and demarcation of outer space has been raging since the early twentieth century. Through conventions like the Paris Convention of 1919, the Chicago Convention of 1944 and the Outer Space Treaty of 1967, mankind has attempted to find a mutually beneficial and agreeable solution. However, theories based on science have long battled against theories of arbitrary nature and legal egotism, clouding the path towards a solution.
This dissertation deals with exploring and comprehending the history behind the emergence of this debate, understanding the importance of this topic, and expanding on the different theories and conventions currently used by countries, governmental organisations, and private companies. The purpose of this is to identify the key areas of contention, establish the areas of recurrent themes throughout the topics evolution and critically consider the legal enforceability, scientific truth and the rationale behind these conventions and theories. Consequently, this dissertation will offer a deeply considered, intellectually sound theory which could transform the way mankind uses airspace and outer space, thus helping to further our species survival and advancement whilst abating the feuds which have lasted for over a century.
Finally, this dissertation shall conclude that the efforts made thus far have been unsatisfactory and largely the making of power games and pseudo-altruism. It will find, however, that this issue certainly is solvable, and science already has a worthy answer.

 

Acknowledgements

I wish to express my sincere gratitude to Dr. Kathryn Wright, a senior lecturer at the University of York and my dissertation supervisor, for offering insight and a different perspective whilst writing this piece of literature. I would also like to thank her for encouraging me along the way, giving me fantastic advisory services and in general being a wonderful supervisor to have when undertaking something as complex as this topic. Without Kathryn’s help and support I certainly wouldn’t have been so intellectually stimulated throughout this piece, as having someone to be a sounding board has proved to be so very important. I would also like to thank Professor Jenny Steele, a professor and director of research at the University of York, for being there to offer help and support throughout some of the more challenging times throughout the dissertations formation, as well as over the past two and half years. For that, I am extremely grateful.


I owe a great deal to the services and facilities provided by the University of York, and the Law School in more specific cases, without which it would have been far more difficult, if not impossible, to have undertaken this winding journey through aerospace history. Within the Law School I would like to thank Louise Prendergast, who is the Disability and Welfare Officer, for providing help, support and pointing me in the right direction during some challenging times. Whilst there are many more lecturers that I would like to name, there simply would not be sufficient room to list them all here. However, I would like to give a special thank you to Sarah Archer, Professor TT Arvind, Professor Jay Cullen, Dr Patrick Gallimore (for his effort to keep the courses within the Law School running as well as possible whilst in these unprecedented times), Lucy James, Dr Liam Kilvington, Dr Wendy Laws, Professor Matt Matravers, Dr Jed Meers, Mhairi Morter, and Professor Scott Slorach for helping me to develop and further myself. Without their help, which was instrumental in my development, I would not have been able to have undertook something as multifaceted as this. Recognition also must be paid to Dr Patrick Gallimore for his effort to keep the courses within the Law School running as well as possible whilst in these unprecedented times.

 

Abbreviations

CEO – Chief Executive Officer
COPUOS – Committee on the Peaceful Use of Outer Space
FAI – Fédération Aéronautique Internationale
GPS – Global Positioning System
GSO – Geostationary Orbit
IAASS - International Association for the Advancement of Space Safety
IATA – International Air Transport Association
ICARe – International Cooperation in Aviation Research
ITU – International Telecommunication Union
NACA – National Advisory Committee for Aeronautics
NASA – National Aeronautics and Space Administration
U.N. – United Nations
UNGA – United Nations General Assembly

 

Statutes and Cases

Cases

Bury v Pope (1587) Cro Eliz 118, [1653] EngR 382, (1653) Cro Eliz 118, (1653) 78 ER 375 (B)

Mortensen v. Peters (1906) 8 F.(J.) 93.

Parker v Parker, 1954, A.C. 15


Statutes

Herring Fishery (Scotland) Act 1889

International Air Navigation Conference, Paris 1910

Convention Relating to the Regulation of Aerial Navigation, (Paris Convention) 1919

The Convention on International Civil Aviation, (Chicago Convention) 1944

The Convention on the High Seas 1958

The Convention on the Territorial Sea and the Contiguous Zone 1958

United Nations General Assembly Resolution 1721 (XVI), 1961

United Nations General Assembly Resolution 1884 (XVIII), 1963

United Nationals General Assembly Resolution 1962 (XVII), 1963

Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962 (XVIII), 13th Dec 1963

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (Outer Space Treaty)

The Convention on International Liability for Damage Caused by Space Objects 1972

Plenipotentiary Conference, International Telecommunication Convention, Málaga-Torremolinos, 1973

The Declaration of the First Meeting of Equatorial Countries 1976 (Bogota Convention)

The United Nations Convention on the Law of the Sea 1982

Space Activities Amendment Act 2002

United Nations International Space Law Instrument ST/SPACE/61/Rev.2, 2017

The Space Industry Regulations 2020

 

Chapter One: A brief history of the emergence of space law.


"Whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell" – Edward Coke[1]


Romans were amongst the first to consider airspace laws as a way of protecting the public and private rights of citizens[2]. As such, when airspace and outer space law started to be scrutinised at an international level in the early 20th century, a number of concepts discussed were already well grounded in history and law. Throughout 1908-1909, France protested against Germany in an effort to halt the flying of military balloons across the frontier. With the protesting being in vain, France decided to call the first International Conference on airspace in 1910[3]. The view across the board closely mirrored that of the Romans, with the declaration that ‘State sovereignty reaches quite as high as the State’s interest can reach’[4] succinctly summarising the conferences denouement.

Astutely encapsulating the four main theories prevalent until the conventions of the early 20th century, McNair[5] reported that:

  1. Airspace is without laws and proclamations of rights, bar those which States require for their sustentation

  2. The Roman maxim ‘cujus es solum ejus est usque ad coelum’ (whose is the soil, his is also that which is above it into infinity) is applicable, even in its most crude of forms

  3. The above theory is deviated from when granting non-military aircraft their right to innocent passage, and;

  4. When drawing parallels with the maritime belt of each State, it must be concluded that there is a lower zone for territorial airspace and a higher zone, to an unlimited height, of free airspace[6].


Between the Paris conference in 1910 and the start of the First World War in 1914, nations acted swiftly to assert their rights to bar aircraft from flying over their territory. This was the result of a failure to agree upon a convention at the conference, with the decree’s agreed on in Paris utilised alongside unilateral legislation to enforce this restriction[7]. A noteworthy example of this hostility was the 1913 bilateral agreement between France and Germany[8]. Signed by the French Ambassador, Cambon, and the German Secretary of State, Von Jagow, this agreement provided a distinction between civil and military aircraft, set out entrance requirements over each other’s territory and laid out any prohibited zones. As such, it is often considered to the be the first recognition of State sovereignty in the air[9], but is also testament to the antipathic nature of the airspace debate at the time. The First World War, however, did bring about a sudden realisation of the importance of airspace regulation beyond that of the aforementioned vague promulgations. With the dangers posed to States being subjacent to foreign crafts at the forefront of nations consciences post-war, the logical solution was bound to lead to a multilateral treaty which would safeguard airspace for mutually agreed upon, determinable uses such as the free passage of civil aircraft[10]. Hence, the Paris Convention of 1919[11] was consequently born.

This paper will not dwell on this convention as the bulk of it was carried over to later conventions, but Art. 1 is worthy of some further studying. “Every Power has complete and exclusive sovereignty over the airspace above its territory” the article reads. At first glance, one could be mistaken for simply harking back to the Roman maxim as an explanation of the influence for this article, but ‘airspace’ had not been probed for a definition at this point; even in the 50’s ‘airspace’ was a term of confusion rather than explanation. Indeed, even the Annex to this convention describes aircraft as “any machine that can derive support in the atmosphere from the reactions of the air”[12]. Why this term was left open for ambiguity to possess it is yet to be understood, but what it meant in practical terms was that come the space age of the 50’s and 60’s, simply synonymising ‘airspace’ with ‘all space accessible to man’[13] caused “the most vexed problems”[14], leaving both terms with neither a suitable definition, nor with any logical link to sovereignty. This led the likes of the U.S.S.R. to dismiss the Western concept and understanding of national sovereignty as “unscientific geocentralism, a return from Copernicus to Ptolemy”[15].

The formation of a new convention in 1944[16] did little, if anything, to contextualise the concept and limits of airspace sovereignty. Any belief that a new convention would offer further understanding of airspace was quashed, with the very first article being an almost complete copy-and-paste of the former convention. More interestingly though is the use of the term ‘every state’ as opposed to ‘every contracting state’ in this article. Given the context of the times, with being at the tail end of the Second World War and with many countries under the control and/or ownership of the most developed nations (whether that be as a consequence of the war or the colonial history of Great Britain, for example, with many countries under their control not regaining some form of independence until well after the war), it is clear that such nations party to this convention were less concerned with probing the idea of ‘airspace’ and more concerned with asserting their own power and control over the skies. This was shown in its most bare form when president Eisenhower delivered a speech prior to the signing of the Chicago Convention, in which he asserted that closing “great blocs of air” as a consequence of the act of legislating the skies would be akin to “tracing in the sky the conditions of future wars”[17]. Indeed, Eisenhower’s unveiling of the ‘Open Skies’ idea (which consisted of making bilateral agreements with individual nations, which despite hiding under a façade of transparency and bureaucratic avoidance via the use of a less complex method of agreement, was a clear attempt to avoid the shackles of a multilateral agreement) was the start of a power struggle which the U.S. Delegation still argues to this very day, reluctant to define the line between airspace and outer space or legislate its usage[18].

In order to try and define the limits of the Chicago Convention, John Cobb Cooper, who was the chairman of the drafting committee for the convention, later explained that, in his view at least, the convention deals with only “those parts of the atmosphere where the gaseous air is sufficiently dense to support balloons and airplanes”[19]. Assuagement was only short-lived however, as in September 1956 an experimental aircraft known as X-2 was unofficially recorded at a height of 24 miles[20], achieved only by the use of a rocket engine. The issue very clearly was that this craft was deriving support from the air, and thus was an aircraft, but also used a rocket engine which meant that it did not rely on the air to feed the engine, as rocket engines have air pre-mixed in with the fuel. This also meant that support from the air was not a criterion for achieving flight. As such, it could be described as both being and not being an aircraft, leaving such a machine in limbo with the legislation and able to pass over other territories theoretically without contravening the convention. Only a year afterwards, the U.S.S.R. launched the first man-made satellite, with a second one the following month. Named Sputnik I and Sputnik II, these satellites furthered the debate created by X-2 when the Mullard Radio Astronomy Observatory recorded that the minimum height of orbit of these satellites was around 125 miles above the Earth, with a maximum orbit around the 590-mile mark[21]. These satellites managed to orbit the globe without any protesting from the subjacent territories, despite orbiting at a level low enough to still encounter atmospheric drag from the thermosphere[22]. These two factors led to the realisation that State sovereignty does have its limit, with outer space being terra communis[23] (meaning for the good of humanity rather than being available for claims of sovereignty), a now fundamental rule of international space law. In forming this view, parallels were drawn between the skies and the sea’s, with the right of innocent passage and the idea of a contiguous zone (that being a State owned zone in which the concerned State can act in order to prevent security risks and assert their sovereignty), with a further zone for the common heritage of mankind beyond it, being lifted from the Territorial Sea Convention[24]. It is also worth noting that despite being a development in the great debate of outer space delimitation, it cannot be ignored that this is still closely linked to the preceding ideas of the early 20th century[25][26], thus demonstrating the difficulty that the newly established COPUOS had in trying to establish a universally agreed upon demarcation point[27].

The introduction of the Outer Space Treaty[28] in 1967, along with the Chicago Convention, signalled the start of a new level of transparency and global cooperation with over 110 signatories[29] to the new convention and 193 to the Chicago Convention, now ratified in many countries which were not signatories originally[30]. Articles 1-3[31] predictably reaffirmed the common heritage of mankind view taken by the preceding convention, and that shared by the law of the seas[32], whilst in the opening text[33] requesting the continuation of studies into defining outer space. Despite being 54 years on since this declaration, we are by no means any closer to an answer with a global consensus. One of the main reasons for this is that airspace has never been defined in any form[34], let alone outer space. Furthermore, the relationship between the boundary of airspace and outer space has never been defined, making it extremely difficult to define airspace and outer space as they currently cross over in a grey zone, so to speak, within which we cannot decipher the characteristics needed to compartmentalise the two types of space.

It is also clear to see that during this evolution of airspace and outer space legislation, the criteria defining its slow morphing through time has largely been led by mountebank-like behaviour, solipsistic concerns masquerading as global altruism. This is perhaps summarised best by the likes of the aforementioned Paris Convention[35], which in Art. 1 highlighted that the following convention applied to “the colonies and territorial waters thereto”[36]. As alluded to on page three, and pointed out by Dr. Oduntan[37], the lens through which the convention was written is clearly one which celebrated the spoils of war, and one through which laws ought to be tailored to European expectations. In much a similar way, the more recent Bogota Convention[38] demanded the space up to and including the GSO be included as part of a nation’s sovereignty, some 36k kms above Earth[39]. The reasoning put forward by the equatorial nations was that any part of space which could be used for a satellite to linger above a subjacent territory should be the territory of that state only[40]. However, it is also likely that the convention was put forward in an attempt to hinder the space programs of the developed nations, who up until this point had been in control of the direction of airspace and outer space legislation. For example, only a few years prior the ITU suggested that the amount of space resources a nation could have (i.e. moon rock, asteroid material etc.) should be defined by the technical facilities at their disposal[41]. Of course, such retaliatory action by the equatorial nations may be seen as unnecessary as it did little to help further the debate, if anything creating further contention by approaching the subject with a lex talionis attitude, but it did shine a light on the wild theories which could be utilised for a nation’s own needs and desires.

In concluding this chapter, it is one of the themes to keep in mind. Nations will create façades in order to disguise their own legislatorial agenda. They will also seek to rest on different viewpoints and theories in arguing their case, regardless of how abstract they may be, leading to a vast array of currently used demarcation points.



Chapter Two: Currently Used Demarcation and Delimitation Points


2.1: Aerodynamic Control Surfaces Are No Longer Useful


The X-15, an experimental craft designed to collect data on aerodynamics, the limits of conventional flight controls, and aero-thermodynamics, completed 199 flights in its almost 10-year long program[42]. It was bestowed with many accolades, including world speed and altitude records[43], afforded by the use of a mixture of conventional flight controls and 12 rockets. This meant that it could still be controlled safely and effectively above the height at which the gaseous air is insufficient to sustain ‘normal’ flight. It was discovered that the 50-mile mark (roughly 80km) was the point at which this switching of control methods was required[44]. This finding was considered to be a definitive answer to the demarcation point of outer space by many, leading to the likes of the U.S. Military, NASA and the National Committee on Aeronautics (NACA) adopting this as their official boundary between airspace and outer space. Indeed, eight of the X-15 pilots flew above this 50-mile mark, resulting in being presented with their Astronaut wings by NASA[45], officially declaring them as humans who have been into outer space. This definition is given credence by the fact that the mesopause (this being the cross over area to the thermosphere, an area with air density so low that it is often thought of as being a part of outer space) has been calculated to be within 500 metres of this 80km mark[46].

2.2: Spacecraft Live Here


At an altitude of roughly 100km (or 62.5 miles) the von Kármán line is the most widely used demarcation point, largely as a by-product of being used as the target altitude for a spacecraft in order to win the Ansari X-Prize[47]. It also gained a great deal of authority when an undated paper appeared on the ICARe site[48] (a part of the FAI who certify official records and are also the world governing body for air sports, as well as a leading organisation in the mission to define human spaceflight). Despite the natural changes in air density (for example, influenced by the weather, solar flares, radiation levels etc.) meaning that this line can change in altitude by almost 10 miles[49], it is considered to be the most reliable demarcation point that physics currently has to offer. In the simplest terms, this line describes the height at which a craft could only support itself in the atmosphere if it travelled at a speed quicker than orbital velocity. This is because at such a height, the air density is equivalent to 1/2,200,000th of that found on Earth’s surface[50]. This means that such an object would have to travel faster than 25,000 feet per second[51] (+/- 7,900m/s) to sustain flight, at which point the aerodynamic lift is taken over by centrifugal force, hence the ability of some craft such as the aforementioned Sputnik I and II to remain in orbit. Similarly, this has led lawyers who specialise in the field[52][53] to conclude that airspace ends where aerodynamic lift is insufficient to sustain flight. This can also be summarised by saying that any object which travels at less than said velocity (for example, the launching of a spacecraft into low earth orbit amounts to said craft needing to reach roughly 9.4km/s, or 21,027 mph) must be considered as flying in airspace, regardless of its altitude.

In finding further plausibility for the Karman line, it is worth noting that meteors tend to disintegrate somewhere within the 70-100km altitude range[54], thus suggesting that the atmosphere at this height is different to that of Outer Space. As shown in Appendix B[55], this is a very similar story for satellites. The graph demonstrates the height of apogee (the point of the orbit which is farthest from the Earth’s centre) and perigee (the point of orbit which is closest to the Earth) in comparison to the decay time of said satellite (the point at which an elliptical revolution/orbit is unsustainable). This height thereby shows the height at which atmospheric drag on the satellites is, at very least, palpable, signifying the presence of air which causes friction, thus disturbing the orbit. In all cases shown on the graph, a height roughly between 80-100km signals the start of satellite decay, even though these satellites all have differing characteristics, such as a differing in their mass or cross section dimensions. Despite this negligible difference, it is still true to say that once extreme property differences are at play, for example a lightweight balloon satellite or a rather heavy tungsten alloy satellite, then this Karman line can change by more than 120km[56]. Furthermore, it must be considered that the further away a satellite is placed from the equator in terms of latitude, the more apparent the atmospheric variations[57]. Of course, having a demarcation point which varies so much is not desirable at all, especially with technological advancements leading to satellites constantly possessing different characteristics, for example being built from new materials, being able to carry a heavier payload etc. As such, it may well be seen that the best way to deal with the demarcation point, assuming the Karman line was universally chosen for this purpose, would be to select the lowest height at which a satellite can remain in orbit. This would bring us back to a height of roughly 80km, which makes for a lovely coincidence as it falls nicely into the commonly found range for meteors to disintegrate, as discussed above.

2.3: Ground Control to Major Tom


The next altitude of significant importance is 76 miles, or roughly 122 km. This is because NASA Mission Control uses this height to signal the point of re-entry for shuttles, owing to the atmospheric drag on the shuttle becoming ‘noticeable’[58] to such an extent that a shuttle has to change from being operated by astronautical controls (i.e. thrusters) to being operated via aeronautical control surfaces, such as ailerons, the rudder etc[59]. Of course, it must still be remembered that space craft of varying properties will become affected by this drag at different heights, as discussed previously, but for the majority of space exploration missions, this altitude is a good indicative measurement. Ceccanti and Marcuccio allude to great difficulty for any space craft or machinery to remain in orbit at these low levels, proclaiming that simply lowering a circular orbit from 300 to 220 km results in an altitude loss increase from 1.1 km to 4.5 km every day[60], a simply unsustainable rate of decline. As such, it stands to reason that decreasing the orbit height a further 100km would result in any form of orbit (be that elliptical, circular etc.) simply being unsustainable. Consequently, their calculations lend credibility to NASA Mission Control insofar as the point at which the atmospheric drag becomes noticeable may well be a sensible altitude for demarcation of Outer Space. However, taking the view of renowned Astrophysicist Jonathan McDowell would lead to the conclusion that a demarcation point of 122 km is, in fact, rather higher than it ought to be. Having studied the orbits of over 43,000 satellites, McDowell prefers to use the mesopause, around 85 km above Earth, for such a point[61]. This would bring the demarcation point to within 5 km of the height set by the X-15[62], as well as in line with the view taken by NASA and NACA. His reasoning for selecting such an altitude includes referencing past satellites, such as the Soviet Elektron-4 satellite which made multiple orbits of the Earth with an altitude of roughly 85 km, as well as the use of modelling which, according to McDowell, shows that Earth’s gravitational pull becomes negligible between 66 and 88 km above Earth[63], again depending on the properties of the craft/machinery. Furthermore, McDowell’s position is echoed by George T. Whitesides, the Chief Space Officer and former CEO of Virgin Galactic, who is of the belief that “a reasonable position for ‘where space begins’ is around 80 km[64]”. Despite all of the evidence to the contrary, it must still be considered, and accepted, that the aforementioned height of 76 miles does in fact play a very important role in space exploration, satellite operations and the safe ascent and descent of space craft. Afterall, there is no denying that there are numerous molecular changes in the atmosphere at such an altitude, a sure sign of natural delimiting of airspace and outer space.


2.4: Elegy of the Perigee


In the 1960’s, Professor Cooper suggested that the demarcation and delimitation point of outer space ought to be placed in "the area whose upper or outer boundary is the outer limits of the solar system, and whose lower or inner boundary is the lowest altitude at which an artificial satellite may be put in orbit around the Earth”[65]. Rather fittingly then, the U.S. Army training reference texts pinpoint an altitude range of 80-93 miles (129-150 km) as a relatively wide starting point for outer space[66]. As alluded to by Cooper, the reasoning for this is that 80 miles is the lowest altitude at which an object can complete one full revolution in an elliptical orbit without the need for propulsion[67]. The higher limit is offered by the Compton Gamma Ray Observatory Satellite, which during its descent completed a full orbit of the Earth at an altitude of 93 miles using a single thruster[68]. This demarcation point also has a wide breadth of support, being adopted by the International Law Association during a meeting in Buenos Aires in 1968[69], as well as multiple scholars (admittedly, each with slight variations for the lower and upper limit, but thankfully these discrepancies cancel each other out, leaving us with a very similar figure of around 100 miles). As described by one exponent, “calculations of satellite lifetimes indicate that critical altitude is 100 miles”[70] for a satellite of ‘regular’ properties, but with a 5-mile numerical laxity to represent “the degree of arbitrariness”[71] in such a proposed definition. This lowest perigee theory also has the added benefit of being accepted and deemed suitable for roughly half a century. As Vosburgh voiced in 1970, the theory which “appears to be the most sensible places the line of demarcation between airspace and outer space at the lowest altitude at which an artificial satellite may be put into orbit around the Earth at least once”[72]. McMahon goes even further still, recognising that a demarcation point of between 70 and 100 miles (which puts the US Army Training Reference Text’s 80-93 miles snugly in the middle of this range) offers two distinct advantages; firstly, it takes into account the awareness required since the launching of Sputnik I changed our views of space, quashing the Roman maxim once accepted as prima facie, and, ex concessis recognises the legalities, legal implications and physical conditions required in the practice of orbiting satellites[73].


Chapter Three: Alternative Theories


3.1: A Vacation for Delimitation


The ‘No Present Need’ Theory is often argued by developed nations, with the United States being perhaps the most enthusiastic proponent of this theory. The crux of their argument for many decades has followed the same reasoning, namely that ‘'outer space has no physically observable landmarks and most States are incapable of accurately determining the altitude of space objects and therefore are not in a position to monitor any agreed altitude boundary’[74]. Furthermore, it is the submission of the U.S. that enforcing a demarcation point would lead to overarching claims for sovereignty, much like when the high sea’s conventions were first introduced, as a way for nations to try and protect themselves. The issue with this, however, is that in the event of technology allowing activities to be carried out at lower altitudes in the near future, nations will not be allowed to carry out such an activity without a written agreement between the affected states, thereby opening the possibility of further conflicts and selfish reactionary behaviour resulting[75]. Numerous authors, like Morenoff, also support this theory, largely following similar arguments put forward by countries like the U.S. For example, Morenoff was famously quoted asserting that enforcing any such demarcation or delimitation boundary would ‘fetter space activities or needlessly interfere with the existing regime of international aviation’[76]. Despite the argument at first glance seemingly being noteworthy, perhaps even altruistic in that the proponents of this theory seem to be concerned about the development of other nations as well as their own, the truth is that this argument is largely one based on selfishness and is almost entirely irrelevant in the modern age. For example, technologies like GPS are easily able to track objects all over the world, meaning that nowadays we would be able to enforce areas of sovereignty in outer space, even if it transpired to be a relatively simple, archaic even, method[77]. Furthermore, such a theory actually began as a response to nations like Egypt, Poland and Belgium coming together in the 60’s and 70’s to demand a demarcation point as they did not have the capabilities to engage in many space activities[78], but also wanted to make sure they were not being taken advantage of by those nations which were able to carry out large-scale space missions and exploration, the U.S. and the U.S.S.R. being two examples of such nations. There are a great number of authors and legal professionals who have dismissed this theory, or other similar procrastinating behaviours, including Andem who stated in response to the theory that mankind cannot wait another fifty years in order to accumulate the amount of technical and scientific data required to alleviate any and all concerns and issues regarding a demarcation point[79], such as those arguments raised by the U.S., and Lord Denning who was once quoted saying ‘if you do not do a thing because it has not been done before, then the world will stand still, Law should develop’[80].


3.2: Ascend The Acclivity To Outer Space Activity


This theory suggests that outer space beings where space activities can be said to begin, for example moving in zero gravity. This theory does have an array of proponents, including F. B. Schick, D. Goedhuis and Chaumont. In supporting this theory, Chaumont argues that the ‘splitting of the area above the Earth would lead to a host of legal rules applicable to one and the same spacecraft in quick succession’[81] as a way of drooping a cloak of scepticism over the main demarcation points and conventions currently used and cited. As such, it is his submission that using a demarcation point starting where space activities begin would avoid this possible confusion and confliction. There are, however, two approaches to this theory; the ‘spatial approach’ is based on the scientific data such as gravitational pull from the Earth, the lowest satellite orbit perigee etc., whereas the ‘functional approach’ is based on the definition of space objects and the functions or purposes of space activities. The former approach may well carry some weight to it, being the basis for a few other theories due to being scientific instead of arbitrary in nature, making for a more accurate and reliable demarcation point, but in general there are a few glaring issues with this theory. Firstly, this theory does not make any distinction between aircraft and spacecraft, nor between air and space flight. The problem with this is that as technology advances, aircraft are able to fly at altitudes traditionally reserved for spacecraft and dual control surfaces in numerous aircraft mean that both in air and outer space, a single craft can simultaneously be demonstrating air flight and space flight because of these different propulsion and control methods. In critique of the spatial approach, this method naively doesn’t consider movements in outer space which are at less than circular velocity, the aforementioned problem of aircraft which can also perform space flight (such as the Canberra B 2), and launching manoeuvres at less than escape velocity as this has the possibility of endangering the subjacent state(s). In critique of the functional approach, aircraft like the ‘ZERO-G’ Airbus A310 offer mere mortals the opportunity to experience zero gravity by utilising the effects of parabolic flight, with the parabolic angle being changeable to also mimic lunar and martian gravity levels. In addition, as part of training for space flight, zero gravity conditions can be recreated without leaving the ground, let alone the atmosphere. When combined with the masses of experiments we can now conduct on Earth due to the supply of materials from space we have been able to store, there is little to no logic to conclude that the demarcation point should be where space activities can take place as in the 21st century, that would mean space starts a few feet from the ground. Similarly, this theory is a moot one as space activity (when not conducted in facilities on Earth) can only occur at heights above the Karman line, which as discussed earlier[82] means that any craft designed to allow this would have to withstand speeds far beyond those designed for aircraft. It therefore can be concluded that this theory is little more than the Karman theory approached with a philosophical mind, rather an entirely new theory.


3.3: Obscurity Over The Importance of Security?


This theory, which dates back over forty years, posits that national security and effective control over a country’s territory should be the basis for the demarcation point. To summarise this position, it is thought that ‘a State can deny the freedom of outer space flight above its territory if the activity endangers state security or human life’[83]. Despite the good intentions of this theory, it has a similar flaw to it as many of the others: wealthy nations. If such a theory were implemented, it would open up the skies and beyond for wealthy nations to have a monopoly over military, policing and other security uses, thus leaving poorer nations without the protection they have an equal right to. Viewing this theory from another angle presents a further problem, namely that of the struggle for supremacy between national and international laws. For example, under Australian domestic law, an object is not an outer space object until it has passed the 100km mark[84] with all space underneath this line being recognised as part of Australia’s airspace[85] (this is some 20km higher than the X-15 reached when space flight controls had to be deployed for safe control of the craft[86]). The issue with this is that customary international law (that being law which is of state practice and opinion juris) is only applicable to the extent that it is adopted into the national law. The case of Mortensen v. Peters[87] demonstrates this difficulty rather well. Here, the Captain was brought before the Scottish courts for failing to keep within the 3 miles limit prescribed by international law whilst he was fishing. This is even though under domestic law[88], it was perfectly legal for him to be fishing such a distance from shore. The court held that local statute would take supremacy over customary international law as the jurisdiction of the international laws would be denuded if they happened to clash with the domestic laws which apply national jurisdiction. The reasoning behind this ruling was clearly described as being that local statute binds the court, even in cases where doing such is in contravention of relevant international laws. From this case, there is clearly a question of how effective delimitating outer space with the rationale of security would be, especially with the defiance of nations to not be governed by international law, exemplified with cases like this and modern day events like Brexit, constant violations of UN legislation by countries like Myanmar and Syria and little to no enforcement of the Organisation for Economic Co-operation and Development Anti-Bribery convention in 30 countries[89] including France, South Korea, New Zealand, Japan and Belgium attests to.


3.4: Is There Consistence in An Arbitrary Distance?


The last alternative theory I shall discuss does not involve the use of science and figures, per se. Instead, the theory of arbitrary distances looks at a mix of practical application and applicable laws in other similar areas, such as the laws of the sea, in order to suggest heights for demarcation. Indeed, some scholars of this school of thought even suggest breaking down airspace and outer space into zones, thereby establishing different demarcation points for different purposes. A very basic outline of how such a theory may work in practice is that there may be a lower limit for territorial space, followed by an intermediate zone in order to allow for innocent passage of craft; this is much like the contiguous zone of the high seas[90], followed by an upper area of outer space in which there is no jurisdiction or control from any territory, group or organisation other than the basic conventions to protect the Moon and other vital celestial bodies[91]. A more primitive version of this theory came to light soon after the launching of Sputnik in 1957, with Soviet Lawyer Dr. G. Zadorozhni proposing that ‘freedom of the air, like freedom of the high seas, should be declared for the region beyond 20 or 30 kilometres (12 or 18 miles) above the earth’[92]. Shortly afterwards, Zhukov, another Soviet lawyer and Executive Secretary of the Space Law Committee of the U.S.S.R. Academy of Sciences at the time, hypothesised that an agreement between nations limiting national sovereignty to a relatively low altitude could be achieved if a separate agreement were made and agreed upon banning military activities in space[93]. Despite the promising sounds made by lawyers and space corporation executives in the mid-to-late twentieth century, nothing has materialised from it. One explanation for this concerns the difficulty with this theory, which is that even without being science based, arbitrary distances can not be so arbitrary as to have been pulled from thin air; this leads to this single theory giving estimates ranging by over 150,000 miles depending on the scholar you ask. Furthermore, the theory of arbitrary distances was originally based on the Chicago Convention[94] (in the west, at least, as the U.S.S.R. was not a signatory to the convention), which meant that within a decade or so of this theory coming to light it was dismissed by many academics; this is largely because the convention is irrelevant insofar as it did not purport to concern itself with spacecraft, rather the regulation of aircraft. This is even on the authority of Cooper[95], who was the chairman of the drafting committee for the convention. Arbitrary distances can not lead to a satisfactory outcome, due to the connections it has to many previously spoken about theories and conventions. For example, the vast numbers mentioned in the Bogota Convention[96] were higher than many nations would accept (with a suspiciously overwhelming majority of nations rejecting it being wealthy territories with flourishing space programmes) and the theory still has the problem of international law against domestic laws as explained in the security theory[97][98], but perhaps most importantly it does not develop the maxim of the Romans[99]. This, of course, is a ridiculous notion, especially given that if science were to be used as part of this theory, and indeed it were agreed that state sovereignty reaches as high as their interest[100] (which would be a perfectly rational expression when applying an arbitrary distance), then it may be argued that the height for delimitation should be at the point of Earth’s gravitational attraction being equalled by that of the Sun and other nearby celestial bodies. This would, hypothetically, mean that any object a nation places at such a height will not fall back to Earth, thus being concluded without debate that such an object is in space. Surprisingly, this has been previously argued, but the altitude required was placed at 1,500,000km (932,000 statute miles)[101]. Thus, regardless of whether this theory is approached purely arbitrarily, or with a scientific or mathematic lens, it can only be surmised one way, which is to say hoc omnino absurdum est!



Chapter Four: Commonalities, Sufficient For A Skeleton Proposal?


In forming a convention or other form of agreement which all nations are likely to be signatories to and abide by, legal application must harmoniously coexist with physics and, to some extent, common sense. This is especially true if the goal is to find a demarcation and delimitation point which will stand the test of time, at least for a few decades, before requiring updating. Whilst there are some issues with taking a zonal approach, for example many writers are adamant that ‘any extensive projection of sovereignty into airspace would be contrary to basic astronomical facts and that no claim of sovereignty, no matter how extravagant, would be sufficient’[102] to guarantee the safety and security of the underlying State, I would think it best to aim for such an approach being the basis of any agreement. This is because it seems to me that technology is evolving so fast that any single point of definition would be rendered irrelevant within a very short period of time. With this in mind, it should be the aim of the ICAO, COPUOUS, IATA and all other organisations for civil, military or other forms of aviation and space travel, to find a middle ground, perhaps utilising the zonal approach but with larger zones to allow a phasing over period when a particular zone is no longer effective. Of course, this would only be the start of such an agreement, so the question remains, what themes can be found throughout the legal debate of the last one hundred years which could synthesise and be appropriate for such an agreement?


4.1: Altitude Attitude


Firstly, low altitude demarcation points must be disregarded. This is for two main reasons. Firstly, wherever such a point is placed it shall only suffice until the next technological breakthrough renders it useless. Secondly, a demarcation point which is too low will mean that spacecraft will have to pass over other territories area of sovereignty in its journey too and from outer space. It would also mean that with the advancements in aviation, civilian aircraft may well soon be able to fly in ‘outer space’, bringing a whole range of complications for the industry, such as having to receive permission from each and every State such a craft were to fly over. Similarly, extremely high demarcation points must also be disregarded, but this is largely due to the safety implications it would impose. For example, if the Bogota Convention was put into effect, or the higher figures of the theory of arbitrary distances were, then it would simply be impossible for any nation to safely police it’s territory. Currently, no technologies exist which would allow a nation to ensure safety and security from such a height with even the most advanced satellites, like Capella-2, only being operational up to around 500km above Earth[103]. As such, it seems that theories which utilise mid-range figures should be considered further.

Despite saying this, the difficulty with persevering with a mid-range figure is that many nations, like the equatorial nations, would likely be reluctant to sign up to such an agreement. As explained in Chapter 2, the Bogota Convention[104] meant that poorer countries around the equator would have had the opportunity to police their territory more effectively, without the threat of wealthy nations using their more advanced technologies to be able to place surveillance equipment above the demarcation point. However, as Capella-2 and other modern satellites show, having sovereignty over thousands of miles of outer space would simply be too big an area for any country, even wealthy nations like the U.S.A, to police. One way to possibly appease such nations then could be the use of a mid-range demarcation point for the limits of airspace, followed by an area of peacekeeping space in which there is innocent passage granted to all civilian craft and the use of any force or weapons is banned, then a relatively small belt of space for policing purposes, with a final area of outer space for a country to use as they please. This could give the best of both worlds, as poorer territories will not have to be concerned about security, whilst wealthy nations have the technology to be able to make full use of each zone. Whilst this is a more complex version of the zonal approach than most academics favour, it does have the potential to show promising results.

I am in favour of referring to the von Karman line, about 62.5 miles up (100km), as the limit of airspace, purely because at this height the air is scarce enough to call it the edge of any reasonable measurement of air density (let us not forget that at such a height, air density is roughly 1/2,200,000th of that on Earth’s surface[105]). Indeed, the von Karman line can vary by around 10 miles, depending on the weather and external factors like solar flares, but for regulatory purposes I do not believe this matters very much. Furthermore, the speed at which a craft must be travelling at such an altitude to sustain flight (some 25,000 fps[106]) means that it is highly unlikely that any aircraft will be capable of flying at such an altitude any time soon. It would, however, allow breathing room for future developments so that the demarcation point is not rendered inoperable immediately.

For peacekeeping and innocent passage purposes, I propose a belt starting from 62.5 miles and ending at 80 miles high. This is because at an altitude of 80 miles, an object is able to complete an elliptical orbit without the need for thrusters or other forms of propulsion[107], thus meaning that despite the slight drag experienced at this height from the atmosphere, it fits the characteristics of outer space. It is also the same part of the atmosphere that the International Space Station is located in (albeit at a much greater altitude). Additionally, it has the benefit of being very close to the figures adopted by the International Law Association[108] and the U.S. Army[109], meaning that it would be easier to find support for than either using arbitrariness or using much more obscure science based on ‘technicalities’ which have little to no basis in legislating outer space. Choosing such an altitude would also safeguard it for many years to come, especially with the emergence of commercial ‘space’ travel being offered by a growing number of companies such as Virgin Galactic, Space Perspective and SpaceX. Nowadays, most of these companies are offering ‘space’ trips up to an altitude of 19 miles (or 100,000 feet), but the aim is for these companies to all be able to offer flights up to 50 miles or so in the next few years[110]. This, of course, is still 30 miles away from the 80 miles up I am proposing for commercial/civilian travel demarcation, leaving enough room for many years’ worth of development and future proofing it to some extent. Let us not forget that the difference between sub-orbital and orbital flight is that any craft would need to travel over 14,000 mph faster in orbital flight than sub-orbital to sustain itself[111]. This is simply not possible with todays technology, so there is a degree of assurance with such a proposed height.

A range between 80 and 100 miles should then be the area for policing purposes as this would serve several purposes. Firstly, it would afford the safety of those experiencing ‘space’ flights, helping to ensure a peaceful area of space with little threat of contention from other nations. For example, this band of space would mean that the 93-mile minimum altitude for an object to orbit with a thruster[112] would fall nicely into it. Hypothetically, this would then help to make sure that space weapons (which would likely utilise thrusters in order to travel to the target faster) are more easily identified and eliminated before they pose a credible threat to the target territory or any subjacent territories. Recognising that this height also falls into the area which Harwood identifies as being vital for recognising the legalities, legal implications and physical conditions required in the practice of orbiting satellites[113] also leads me to conclude that such a height would allow for more effective and safe policing of the practice of using satellites. Much like on Earth, policing at such an altitude would allow satellites and other objects which are on a collision path, perhaps then posing a threat to territories, to be monitored much easier and effectively.


I also suggest that the final zone ought to extend from 100 miles up to 500 miles. Whilst this is a very large area, which perhaps could pose challenges to getting support for from more advanced nations, it would make sure that no territory is disadvantaged, regardless of their economy or whether they have a space programme or not. As we have established, even the most advanced satellites nowadays are only effective at surveillance up to around 500 miles[114]. Making this the final demarcation point would therefore ensure the safety of poorer nations whilst still providing a large area for wealthy nations to conduct experiments, deploy and test satellites, rockets/shuttles, and other space objects, and develop their technologies and security.


4.2: Beginning The Abstention of Avoiding Intention


Intention is another key factor in the demarcation of outer space which has, until now, largely been ignored. Furthermore, conventions which have found support amongst nations have largely disregarded aircraft which are not civil[115]. The difficulty with this is that in order for any zonal approach to work, and in order to create a level playing field for all territories, policing aircraft would have to be consigned to following the legislation laid out in a convention. Simply exempting them will make poorer nations much less likely to be signatories to any such agreement due to the vast power inequality which would subsequently exist. The main factor, however, is that aircraft and spacecraft ought to be under the legislation of separate stipulations, regardless of the altitude at which they are travelling. With legislation already in place which distinguishes between the two, such as the Liability Convention[116], and theories proving that regardless of altitude, an aircraft and a spacecraft can be distinguished by the speed at which it is travelling[117][118] (due to the effects of centrifugal force beyond a specific altitude), it would make little sense to try and apply the same legislation to two distinctly different types of craft. Academics like Masson-Zwaan help to make this distinction, as she pointed out that ‘[t]he legal regime governing aviation is very detailed ... in terms of liability, registration, jurisdiction, traffic and transit rights, certification of aircraft and crew’[119], there isn’t nearly as much legislation on operating spacecraft with most of the laws in place concerning themselves with the running of companies engaged in spacecraft operations and the bureaucratic  activities involved such as filing for licenses to operate[120] rather than the debate of delimitation and how this applies to spacecraft. I also believe that splitting the two could help avoid some very complex issues in the near future. For example, as aircraft become more advanced, they are able to fly higher. However, they are not held to the same maintenance and build quality standards of spacecraft, meaning that it could potentially be very dangerous to allow aircraft to fly at such a height. With the strategy I propose, any manned craft flying at such a height would have to be classified as a spacecraft, thus meaning that they would be held to more strict legislation regarding their maintenance, build quality, licensing etc. This would not make the zonal approach moot, however, as the demarcation lines would still apply to both types of craft but would simply safeguard against credible threats to health and safety and the wellbeing of human lives. This also aligns with the views of many academics and lawyers, such as Hogan[121] and Potter[122], regarding distinguishing between aircraft and spacecraft by their speed, as currently only spacecraft are capable of such great speed and velocity changes, meaning that the legislation will improve safety in this respect. Improving safety by differentiating between aircraft and spacecraft would also have a thankful by-product, reducing the dependency of States on conventions and legislations like the Liability Convention[123]. This would avoid many of the contentious issues regarding craft accidents, crashes and the following compensation which would otherwise result. 



4.3: Legem, Nunc Et In Posterum: Ineptias More Dat Viam Ad Sensum Communem


The final piece of the puzzle seems to be the withdrawal of dependency on past conventions, instead looking forward and thus reversing the stagnant, nostalgic nature of legislation and forthcoming theories. Even more recent conventions, such as the Outer Space Treaty[124], the 2020 Regulations[125] and the International Space Law UN instrument[126] all have their basis in war-time agitation through the likes of the 1910 Conference[127], the subsequent bilateral agreement[128] and the Paris Convention[129]. The issue with this is that it has been impossible to move away from power games and petty technicalities because all of the conventions which followed were simply moulded from those which preceded it. It seems that the only other approach really considered, and forcefully asserted by States like the U.S., is to simply say that there is no need to even be having such a debate[130]. This completely neglects the importance of there being a level playing field, however, and ignores some of the basic mission statements which are mutually agreed by nearly every nation such as outer space being terra communis[131]. Indeed, even the Law of the Sea’s didn’t come about with so much contention[132][133], despite being of much more immediate importance to mankind. Why there has been such a massive debate over outer space delimitation is still a mystery in many respects, but we do know that advantages over other territories and access to outer space materials play a large part in it. Therefore, I propose for the existing conventions to be little more than skeleton sections in future legislation. This would help to create a more collaborative effort between nations insofar as no single nation would then be a bigger beneficiary of the legislation than any other. It would also help the zonal approach I have proposed to be introduced with more support, alongside any such new legislation which would have to include a section, or sections, outlining the importance of intention in the differentiation between aircraft and spacecraft. Whilst it is very unlikely that some nations would ever be signatories to future conventions (for obvious reasons, mind you, such as North Korea, Cuba and China), it is imperative in my view that countries work together and live by their terra communis pledge. With recent events around Earth, such as the Iraq war, financial crash, numerous terror attacks, Brexit and the Coronavirus, I do believe that we are in a position of needing nations to work together, and where the mood across the globe suggests countries are far more willing to collaborate than when these conventions were first conceived. Simply put, absurdities which I have critiqued like the vast figures of the Bogota Convention[134], the contradiction and struggles between International and Domestic law[135] and the vexed problems[136] caused by leaving terms like airspace and outer space undefined must give way to a fresh approach, as outlined by my sui-generis zonal theory and those offered by academics[137][138] who have applied more science and less arbitrariness than any legislation on the subject currently in use.


Chapter Five: The Present and The Future: Concluding Remarks


In bringing this paper to a close, I must affirm that I am aware that the zonal approach has been around for a long time, with very rudimentary versions written about as early as the 1950’s[139]. However, it is an approach which I believe to be the most effective and efficient we have available to us currently. Whilst Dr. Meyer was never a proponent of the zonal approach, he did highlight that any theory or convention which designated a part of space above Earth to be airspace and airspace simultaneously (as was the case with Cooper’s proposal to the UN ad hoc COPUOUS[140]) would have to be rejected on the basis that allowing such a confusing merging of areas would ‘lead to the greatest legal confusion’[141]. Whilst I do completely agree with this statement, I do find that the aforementioned conventions do not deal with this issue at all, especially with their reluctance to even define an aircraft or spacecraft, let alone the areas in which each shall operate. It is of equal importance to realise and accept that a solution to this problem, such as the one I have offered, will not bring about an overnight fix, nor could it temper the hot coals of contention we are faced with against numerous socialist regime States, who have dismissed our theories and approaches to the issue as nothing more than pseudo-altruism wrapped in idealism. Of course, I disagree with the sentiment but, as I hope I have effectively conveyed throughout this paper, I do believe that at the core of spatial demarcation and delimitation are issues which have been neglected; intention of the craft, zonal equality and the irrelevance of past legislation (by and large, but not in its entirety) which has shown itself to be superannuated but has still been relied on and forcefully moulded to attempt to fit the modern age, despite being grossly inadequate. The research shown in this paper ought to have clearly demonstrated that conventions which were drawn up before the invention of cabin pressurisation (in the case of legislation drawn up before the Boeing 307 which came about in 1938), commercial jetliners, Apollo 11 and high speed flight (past the speed of sound which occurred for the first time in 1947 by Charles Yeager) amongst many other developments have no place in the modern age.

I hope that by presenting my findings and offering what I consider to be a well thought out proposal, I can at least create a stepping stone or another rung up the ladder towards the greater goal of our aerospace community finally agreeing on a definitive solution to this great debate of ours. I do believe that this paper has helped to accentuate the lack of scientific data used thus far by lawyers, governments, and some academics. I also believe that whilst the application of scientific knowledge to the problem should not be the be-all-and-end-all, as legal application and enforceability must reign supreme in order for any agreement to have any weight to it and to enable suitable punishment for those who consequently contravene it, it does play a role far more significant than has been acknowledged thus far.


In answering whether the demarcation and delimitation of outer space is, in fact, a perennial issue, there has been an abundance of evidence presented which suggests that it is an issue for which there are solutions, but also an issue for which no solution can be perennial. The constantly evolving and adapting landscape this issue finds itself in means that the effectiveness and longevity of any piece of law is at the mercy of the rate of development of aerospace technology. This does not mean, however, that it is appropriate to surmise the issue by simply declaring that no demarcation point is needed. The words of Andem ring true with the realisation that we simply cannot afford to wait[142], especially with the constant threat of war in these agitated times. It will be interesting to see how nations currently developing their space programmes for the first time, and those who will inevitably be able to do so in the near future, will react to suggests such as these. I suspect that notably more aggressive States will be reticent to show any support, however this does also depend greatly on the rate of the commercialisation of space travel. The latter will also be true of developed nations, I believe, as the pattern of behaviour shown by these nations since that first Paris conference over 100 years ago suggests that the capitalistic tendencies of their respective governments will result in further claims of sovereignty, far overreaching their rights and aggravating developments made on the issue, as soon as the lucrative operations of companies like SpaceX, Virgin Galactic and Space Perspective become realised on a larger scale. Therefore, I believe that such a zonal approach would help to mitigate any such issues in the near future, as every nation will get their own slice of the pie, so to speak. I also believe that without a substantive change in our approach towards this issue, we are heading for a major stunting in the development of our understanding of the world and outer space, as well as a major downgrade in our ability to keep inventing things to make our lives safer, better and easier. Let us not forget that it is precisely because of mankind’s curiosity for space exploration that we have been able to invent so much, after all artificial limbs, baby formula, air purifiers, ice resistant aircraft, LED’s, water filtration, insulin pumps, LASIK eye surgery, and much of the equipment used by firefighters, amongst many other great inventions, all came about as a direct result of space exploration and space related experiments.

Consequently, it is even more important than many shall ever know that this debate is brought to a close, and sooner rather than later. Even though I believe that the organisations involved in these agreements have not done their job as effectively as one might have hoped for, I sincerely believe that there is light at the end of the tunnel for this debate, it just won’t be as simple and arbitrary as many seemingly would like.






[1] Bury v Pope (1587) Cro Eliz 118, [1653] EngR 382, (1653) Cro Eliz 118, (1653) 78 ER 375 (B)

[2] Cooper, J. C., “Roman Law and the Maxim ‘Cujus Est Solum’ in International Law”, Explorations in Aerospace Law (Vlasic, ed. 1968), pp. 55, 102.

[3] International Conference on the Regulation of Air Navigation, Paris, 1910

[4] Lycklama à Nijeholt, “Air Sovereignty”, The Hague, 1910, 46 as cited in Cooper, J. C., ‘Flight-Space and the Satellites’, The International and Comparative Law Quarterly, Jan, 1958. Vol. 7, No. 1, 82-91, 83

[5] McNair, A, The Law of the Air, 3rd Edn, London: Stevens & Sons, 1964, 5

[6] Oduntan, G, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation, Research in International Law, Routledge, 2019, 60-61

[7] Cooper (n4)

[8] Rolland, C.F, L'Accord Franco-Allemand du 26 juillet 1913 rélatif à la navigation aérienne, 20 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 697

[9] Henry-Coüiannier, André, Elements créateurs du droit aérien. Paris (Per Orbem 1929),16 as cited by Sand, P.H., Freitas & Pratt, G.N, ‘AN HISTORICAL SURVEY OF INTERNATIONAL AIR LAW BEFORE THE SECOND WORLD WAR’, Institute of Air and Space Law, McGill Law Journal, Vol. 7, No. 1, pp. 29–42, 31.

[10] Akehurst, M, ‘A Modern Introduction to International Law’ (3rd Edn), (London: Allen & Unwin, 1980), 183

[11] Paris Convention 1919 - http://library.arcticportal.org/1580/1/1919_Paris_conevention.pdf

[12] Paris (n11)

[13] Saint-Alary, R., Le Droit Aérien, Paris, 1955, 66; cited by Galina, A., ‘On the question of interplanetary law’, Sovetskoe Gosudarstvo I Pravo No 7, July 1958, 52-58; reprinted in ‘Space Law: A Symposium’, Washington D.C., 1959, 508.

[14] Lyon, J. T., ‘Space Vehicles, Satellites, And The Law’, Historical Survey of International Air Law, 1960-1961, 7 McGill Law Journal Nos. 1 and 2, 272

[15] Korovin, ‘International Status of Cosmic Space’, International Affairs, 53-59 (Moscow), No. 1 (Jan. 1959) as cited by Jessup, P. C., and Taubenfeld, H. J., ‘Controls for Outer Space’, New York, 1959, 220

[16] Convention on International Civil Aviation, Chicago, 7th December 1944

[17] Proceedings of the International Civil Aviation Conference, Washington, D.C., Vol. 1, 43

[18] Legal Subcommittee (LSC) of the UN Committee on the Peaceful Uses of Outer Space (COPUOS), United Nations General Assembly, 2010

[19] Cooper, J.C., “Legal Problems of Upper Space”, Proceedings of the American Society of International Law (1956), 85 and an earlier version of this discussion was made available in Cooper, J.C., “High Altitude Flights and National Sovereignty”, This Quarterly, Vol. 4, 1951, 411

[20] Aviation Week, October 1st 1956

[21] Cooper (n4), 88

[22] Jursa A.S., Handbook of Geophysics and the Space Environment, Air Force Geophysics Laboratory, United States Air Force, 1985

[23] Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962 (XVIII), 13th Dec 1963, Art. 1-3 http://www.unoosa.org/pdf/gares/ARES_18_1962E.pdf

[24] Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29th April 1958, entered into force on 10th September 1964, Articles 1,2 and 14-17.

[25] McNair (n5)

[26] Oduntan (n6)

[27] Von der Dunk, F.G, “The Sky Is the Limit – But Where Does It End?”, 2005, Space, Cyber and Telecommunications Law Program Faculty Publications. 34. 85.

[28] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Resolution 2222 (XXI), 10th October 1967

[29] http://disarmament.un.org/treaties/t/outer_space (accessed 08/01/2021)

[30] https://www.icao.int/secretariat/legal/List%20of%20Parties/Chicago_EN.pdf

[31] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html (accessed 08/01/2021)

[32] Territorial Sea (n24)

[33] UNOOSA (n31), 4(b)

[34] Diederiks-Verschoor, I.H.P., Kopal, V., “An Introduction to Space Law”, Kluwer Law International; 2nd Revised edition (14 Oct. 1999), 17.

[35] Paris Convention (n11), Art. 1

[36] Ibid

[37] Oduntan (n6), 62-63

[38] Bogota Convention 1976 - http://www.root.ps/download/ASM/dec_bogota.pdf

[39] Ibid, s1

[40] Martinez, L., “Communication Satellites: Power Politics in Space”, 1985, 53

[41] ITU Malaga-Torremolinos Convention 1973

[42] Appendix A: X-15 Flight Log - https://history.nasa.gov/x15conf/log.html

[43] Ibid (flights 59, 62, 77, 91, 175 and 188 are examples of these world records)

[44] Lal, B., Nightingale, E., “Where is Space? And Why Does That Matter?”, 2014, Space Traffic Management Conference. 16. 4

[45] https://www.nasa.gov/pdf/366588main_X-15_Poster.pdf

[46] McDowell, J.C., “The X-15 Spaceplane”, Quest Spring 3 (1), 1994, 4-7

[47] “Where is Space?” (n44)

[48] Dr. Sanz Fernandez de Cordoba, S., “100Km Altitude Boundary for Astronautics”, Last Updated: 21/06/2004, Accessed: 17/01/2021

[49] “Where is Space?” (n44)

[50] Marciacq, J.B, Morier, Y, Tomasello, F, Erdelyi, Z, Gerhard, M, “Accommodating Sub-Orbital Flights into the EASA Regulatory System”, 2008, In Proceedings of the 3rd IAASS Conference “Building a Safer Space Together”, Issue SP-662, Jan. 2009

[51] Haley, A.G., Space Law and Government, 1963, 77, 97-107

[52] Potter, P.B., International Law of Outer Space, 52 American Journal of International Law, 1958, 305

[53] Hogan, “Legal Terminology for the Upper Regions of the Atmosphere and Space Beyond the Atmosphere”, 51 American Journal of International Law, 1957, 362

[54] McDowell, J.C, “The Edge of Space: Revisiting the Karman Line”, Acta Astronautica 151 (2018), 668-677, 671, 4.3

[55] Ibid, 672

[56] Ibid, 676, 5.3

[57] Ibid, 675 and Appendix C

[58] “Where is Space?” (n44), 5

[59] Ibid

[60] Ceccanti, F., Marcuccio, S., “Earth Observation from Elliptical Orbits with Very Low Perigee”, 3 https://www.researchgate.net/profile/Salvo-Marcuccio/publication/254337349_EARTH_OBSERVATION_FROM_ELLIPTICAL_ORBITS_WITH_VERY_LOW_ALTITUDE_PERIGEE/links/53eb36a60cf28f342f451e1a/EARTH-OBSERVATION-FROM-ELLIPTICAL-ORBITS-WITH-VERY-LOW-ALTITUDE-PERIGEE.pdf (accessed 03/03/2021)

[61] Voosen, P., “Outer Space May Have Just Gotten a Bit Closer”, Science Mag, 24th July 2018, Para. 3

[62] “Where is Space?” (n44)

[63] Ibid, Para. 6

[64] Ibid, Para. 9

[65] J.C. Cooper, "International Control of Outer Space", Zeitschrift fur Luftrecht und Weltraumrechtsfragen, vol. 9 (1960), 288 as cited in McDougal, M.S., Lasswell, H., Vlasik, I., “Law and Public Order in Space”, Yale University Press, 1963, 355

[66] “Where is Space?” (No 44), 5-6

[67] Ibid

[68] Harwood, W., “NASA space telescope heads for fiery crash into Pacific”, Astronomy Now, 28th May 2000

[69] Perek, L., “Scientific Criteria for the Delimitation of Outer Space”, 5 Journal of Space Law, 1987, 111 as cited in Oduntan (n6), 307

[70] Jastrow, R., Proceedings, 1st Colloquium on the Law of Outer Space, 1958, 82, as cited in Oduntan (n6), 307

[71] Ibid

[72] Vosburgh, J. A., “Where Does Outer Space Begin?”, American Bar Association Journal, Vol. 56, No. 2 (Feb 1970), pp. 134-136, 136

[73] McMahon, “Legal Aspects of Outer Space”, 38 Brit. Y.B. Int'l L. 339, 1962, 341 & 343 as cited in Ibid

[74] COPUOS working papers A/AC.105/C2/SR.316, paras 1-7, A/AC.105/C.2/7/Add.1, Para 42, 15

[75] Monahan, R. (2008) The sky's the limit? Establishing a legal delimitation of airspace and outer space, Durham theses, Durham University. S.4, 11 - http://etheses.dur.ac.uk/2248/

[76] Morenoff, J., ‘World Peace Through Space Law’, 1967, 1

[77] Monahan (n75)

[78] Dr. Oduntan, G., ‘The Never Ending Dispute: Legal Theories on the Spatial Demarcation Boundary Plane between Airspace and Outer Space’, 2003, 4

[79] Andem, M. N., ‘International Legal Problems in the Peaceful Exploration and Use of Outer Space’, 1992, 153

[80] Parker v Parker, 1954, A.C. 15, 22

[81] Chaumont, Le Droit de l’espace, 1960, 37

[82] Haley (n51)

[83] Umozurike, U. O., ‘Introduction to International Law’, Spectrum Books Ltd, Ibadan, 1993, 264

[84] Space Activities Amendment Act 2002, 5, s8

[85] Ibid, 14, Sub-Section 26(2) (note)

[86] Lal (n44)

[87] (1906) 8 F.(J.) 93.

[88] Herring Fishery (Scotland) Act 1889

[89] Transparency International, ‘Exporting Corruption’, ‘Progress report 2018: Assessing enforcement of the OECD Anti-Bribery Convention’, 2018, 10-11

[90] Convention On The Territorial Seas (n24)

[91] Resolution 2222 (n28)

[92] 200th Circuit by Satellite To-Day, TIMES (London), Oct. 18, 1957, 7

[93] Zhukov, G. P. in Schwartz, H., ‘U.S. Plan to Put a Man in Space Is Ridiculed by Soviet Scientist’, N.Y. TIMES, Jan. 11, 1960, 25

[94] ICA (n16)

[95] Cooper (n19)

[96] Bogota (n39)

[97] Mortensen (n87)

[98] Transparency International (n89)

[99] Cooper (n2)

[100] Nijeholt (n4)

[101] Rinck, G., ‘Recht in Weltraum’, 9 Zeitschrift für Luft- Und Weltraumrecht, 1960, 200-201

[102] Jenks, ‘International Law and Activities in Space’, in The International and Comparative Law Quarterly, 1956, 101

[103] https://directory.eoportal.org/web/eoportal/satellite-missions/content/-/article/capella-x-sar (accessed 17/04/2021)

[104] Bogota (n38)

[105] Marciacq (n50)

[106] Haley (n51)

[107] Where is Space? (n44), 5-6

[108] Perek (n69)

[109] Where is Space? (n44), 5-6

[110] Harwood, W., ‘Company plans space tourism flights in high-altitude balloon’, CBS News, 18th June 2020 (accessed 18/04/2021)

[111] Mann, A., ‘What's the difference between orbital and suborbital spaceflight?’, Space.com, 10th February 2020 (accessed 18/04/2021)

[112] Harwood (n68)

[113] Harwood (n73)

[114] Directory (n103)

[115] For example, the Chicago Convention lists aircraft which are Military, or for Customs or Policing purposes, as being exempt from the convention as they are deemed ‘state’ aircraft, Convention (n16), Art. 3, (a) and (b)

[116] Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187

[117] Potter (n52)

[118] Hogan (n53)

[119] Masson-Zwaan, T., ‘Regulation of Sub-Orbital Space Tourism in Europe: A Role for EU/EASA?’, 35 AIR & SPACE L., 2010, 263, 265

[120] The Space Industry Regulations 2020, Pt. 3, CH 1, s.5 and CH 7, s.57 for example

[121] Hogan (n53)

[122] Potter (n52)

[123] Convention (n116)

[124] Treaty (n28)

[125] SIR 2020 (n120)

[126] 2017, ST/SPACE/61/Rev.2

[127] International Conference (n3)

[128] Rolland, C. F. (n8)

[129] 1919 (n11)

[130] Legal Subcommittee (n18)

[131] UN General Assembly Resolutions 1962 (XVII), 1721 (XVI), and 1884 (XVIII) are good examples of this.

[132] Geneva Convention on the High Seas, 1958, Art. 2

[133] Convention on the Law of the Sea, 1982, Art. 89

[134] Bogota (n38)

[135] Parker (n87)

[136] Lyon (n14)

[137] Oduntan, G. (n6), 11.10, 310-311

[138] Benko, M. (Ed.) and de Graaff, W. (in cooperation with) Forum for Air and Space Law, Vol I, International Space Law in the Making: Current Issues in the UN Committee on the Peaceful Uses of Outer Space, Benko, M. and Schrogl, K., Editions Frontieres, France (1993) at 126 as cited in Monahan (n75), 4

[139] Goedhuis, D., ‘Rapporteur on Air Sovereignty and the Legal Status of Outer Space’, International Law Association, New York University Conference, 1958

[140] Cooper, J. C., ‘International Control of Outerspace’, 9 Zeitschrift für Luftrecht, 1960, 290

[141] Meyer, A., 9 Zeitschrift für Luftrecht, 1960, 300

[142] Andem (n79)

 

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Harwood, W., ‘Company plans space tourism flights in high-altitude balloon’, CBS News, 18th June 2020 (accessed 18/04/2021)

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Cooper, J.C., “High Altitude Flights and National Sovereignty”, This Quarterly, Vol. 4, 1951

Cooper, J.C., “Legal Problems of Upper Space”, Proceedings of the American Society of International Law (1956)

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COPUOS Working Paper A/AC.105/C2/SR.316

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J.C. Cooper, "International Control of Outer Space", Zeitschrift fur Luftrecht und Weltraumrechtsfragen, vol. 9 (1960)

Jastrow, R., Proceedings, 1st Colloquium on the Law of Outer Space, 1958

Jenks, ‘International Law and Activities in Space’, in The International and Comparative Law Quarterly, 1956

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Appendices

Appendix A: X-15 Flight Log (Flight number stands for: X-15 number - Free flight number - B-52 carry number)

https://history.nasa.gov/x15conf/log.html 

Appendix B: Geodetic height of apogee and perigee against the time taken for elliptical satellite decay. Labelled A-F, the satellites recorded in this graph are; a) Satellite 748 (1964-006 B, Elektron 2, 2D No. 2), b) Satellite 12512 (1981-30 A, Molniya-3 No. 30), c) Satellite 14587 (1983-126 A, Kosmos-1518, Oko 6022), d) Satellite 22189 (1992-069 A, Kosmos-2217, Oko 6059), e) Satellite 29399 (2206-038 B, Chang Zheng 3 A Y10 Third Stage Rocket), and, f) Satellite 38255 (2012-019 B, Centaur AV-031 Rocket). (view graph at: https://www.researchgate.net/figure/Geodetic-height-of-apogee-and-perigee-versus-time-for-the-decay-of-selected-elliptical_fig1_326153433)

Appendix C: Atmospheric Variation at differing latitudes. This graph shows the atmospheric variations at different latitudes (Equator, 45˚ N, 80˚ N and 80˚ S). It is worth noting that at a height of roughly 87km, the atmospheric variations are more stable across the latitudes than at lower altitudes. (see graph at: https://www.sciencedirect.com/science/article/pii/S0094576518308221 (Fig 4.))

Appendix D: The Bogota Convention 1976 (Available to read at: https://www.jaxa.jp/library/space_law/chapter_2/2-2-1-2_e.html)

Appendix E: Earths Atmosphere (Source: freepik.com/premium-vector/diagram-layers-within-earth-s-atmosphere-illustration-vector-eps10_3351105.htm)

Appendix F: Satellite Decay Illustration. This picture shows how satellite decay may look. The dense atmosphere combined with the extraordinary heat (often over 1000˚c) and rapid changes in speed due to these variables results in the satellite ‘burning up’ in the atmosphere. Depending on these variables and the angle of approach of the decaying satellite, debris can go in many directions, spreading to create a debris field of over 10 miles wide in the worst cases. (Source: https://spaceflightnow.com/cgrodeorbit/ (Photo cited by them as NASA))