The Decades-Long Legal Mission to Find the Border Between Air and Space

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COMMENTARY Timothy G. Nelson

Where does space begin? The decades-long legal mission to find the border between air and space

lthough very few people have been where “outer space” actually begins. Stranger SpaceShipTwo, with its tail booms to “outer space,” virtually everyone still, perhaps, many of the leaders in space ex- raised in the feathered position, near the 89.9-klometer peak altitude the has some conception of what it is. ploration (the United State, in particular) have vehicle achieved during its Feb. 25 A We have seen TV reports of astronauts vigorously opposed any attempts to fix such a suborbital spaceflight. (or cosmonauts) in orbit. Our popular culture – definition. in film, books, art and even music – is suffused The result is that no one at present can say with images of space. We conceive it as a place with certainty – from a legal perspective – where beyond the Earth’s physical limits, where there the “Earth” ends and where “outer space” begins. is no atmosphere, where things are “weightless” This definitional gap is evident in the main and where spacecraft operate (and where, ac- repository of space law, the 1967 Treaty on Prin- cording to the promoters of the 1979 film Alien, ciples Governing the Activities of States in the “no one can hear you scream”). Exploration and Use of Outer Space, including As lawyers, we know that there exists a thing the Moon and Other Celestial Bodies, otherwise called “space law,” governing the peaceful uses of known as the Outer Space Treaty. This treaty, “outer space.” Many may be surprised, therefore which has been ratified by over 100 countries

VIRGIN GALACTIC that there is, at present, no agreed definition on (including the major spacefaring nations), lays

SPACENEWS.COM | 25 26 |SPACENEWS 03.11.19 Space Treaty lays down aseries of widely negotiated when (at leastinthemindsof objects” are launched. Thesetreaties were the liability of the state from which “space different treaty rules, largely focusing on liability, whereas spacecraftare subjectto largely focusing on thecarrier’s potential rules governing aviation safety andliability, aircraft are subject toapanoply of treaty very different, too.For example, passenger liability for flight in the two regions are that freedom begins. (aviation law or spacelaw) tells uswhere freedom of theseas.But neither system Outer Space Treaty, much asaship enjoys navigational freedom accorded by the national sovereignty –andenjoys the that vehicle isno longer subjecttoany By contrast, once it enters “outer space,” lations, aswell asits right todeny access. is subjecttothat nation’s aviation regu vehicle traveling inanation’s “airspace” over theairspace above its territory.” So a has complete andexclusive sovereignty is basedon theprinciple that “every State Convention on International Civil Aviation) law (as laid out, for example, in the 1944 through air)andspaceflight. Aviation the rules for “aviation” (intuitively, flight navigation, because there isasplit in entities engagedin ultra-high altitude agree upon thisissue. Outer Space Treaty’s drafterscould not “outer space”is notdefined, because the space) – the boundary between Earth and struction” may notbedeployed inouter or any of kindsof weapons of massde- peacefully (such that “nuclear weapons claim of sovereignty,” andmust beused not subjecttonational appropriation by for exploration anduseby all States,”… “is for example, “outer space”must “befree accepted principles about “outer space,” – “outer space.” use of “outer space,” but does notdefine COMMENTARY T T A down a series of basic rules about the his haspractical implications for he international rules governing paradox thus arises.While theOuter

Timothy G.Nelson - less easi tion between airflight andspaceflight is in spacetourism,thefunctional distinc fight technologies, and the growing interest distinct, but with thegrowth insuborbital the drafters) air and space travel were very law working group (perhaps tobreak the In 2017,thechairman of theU.N. space countries have followed this approach. kilometers above sea level. Some other the position that airspace endsat 100 mark andKazakhstan,for example, take upper altitude boundary. Australia, Den • methods that have beenproposed are: the issue. Among thevarious competing has beenattempting since1984toresolve space law working group inVienna that similar impasse is evident within theU.N.’s between airspaceand“outer space.” A consensus on how todraw theboundary and countries have beenunableto reach et-powered aircraft tosuborbitalaltitudes. X-15 reached81kilometersorhigher13timesinthe1960s. X-15 testpilot BillDanawasoneofeightU.S. pilotstoearnastronautwingsforflyingthehypersonicrock A distancerule, usingasimple, fixed O ver the last 50 to 60 years, commentators ver thelast50to60years, commentators ly drawn. - - ting line.McDowell notesthat, space begins)at thelowest perigee of an under thisview, airspaceends(andouter • aerodynamic control. as therocket-powered Bell X-15) have no aircraft that fly above that altitude (such kilometers, apparently on the basis that wings toany pilot who hasgone above 80 “line,” theU.S. AirForce awards astronaut some have saidthat 100kilometers isthe for Astrophysics. He observed that, while Dowell of theHarvard–Smithsonian Center study by astrophysicist Jonathan C.Mc recently revisited in an important new technology itself changes. The line was theory, but subjecttochangeswhenever an aircraft – an attractive approach in on KármánLine–treating air at thepoint where it isimpossible tofly space as ending (and space beginning) • “as anofficial position.” current deadlock) supported thisapproach The V Orbi - - -

NASA

FAA OFFICE OF COMMUNICATIONS airspace and outer space. To quote the U.S. State Department in a 2001 statement to the U.N.: Our position continues to be that defining or delimiting outer space is not necessary. No legal or practical problems have arisen in the absence of such a definition. On the contrary, the differing legal regimes applicable in respect of airspace and outer space have operated well in their respective spheres. The lack of a definition or delimitation of outer space has not impeded the development of activities in either sphere. The U.S. position of remaining delib- erately agnostic on this issue might not be sustainable in the long run. As the use of space grows, the number of countries interested in regulating it may also grow. There are advantages to reaching consensus on the issue: If countries can agree upon a workable boundary, they may also U.S. Transportation Secretary Elaine Chao pins FAA astronaut wings on SS2 pilot Frederick “CJ” Sturckow be able to agree on related issues, such as during a Feb. 7 ceremony in Washington as Virgin Galactic founder Richard Branson looks on. clear rights of peaceful passage through other countries’ airspace, to the extent orbiting satellite – perhaps as high as 160 in commercially vital geostationary orbits. necessary to enter (or return from) space. kilometers, but arguably lower; because a An extreme example of boundary-drawing It is also unsafe to assume that, if no satellite with an elliptical orbit can sustain a is the Bogota Declaration of 1976, in which boundary delimitation is agreed upon, perigee of 100 kilometers for long periods, a group of equatorial states laid claim to the issue can be left open indefinitely. whereas a satellite with a circular orbit can the geostationary orbit areas above them. The two zones (air space and outer space) operate at 125 kilometers This claim, however, was met with wide- indubitably exist, and are recognized by spread skepticism at the time and is not international law. It follows that a boundary Every proposal, however, has drawn widely accepted. must exist somewhere. By not defining it some criticism. Some fear that if a line is There are also technical uncertainties themselves, countries run the risk that, in the drawn relatively low, there will be a host associated with measuring the line. Satel- event of a future dispute, an international of activities above the line that would lite and aircraft capabilities may change adjudicative body will define it for them. potentially go unregulated. For example, over time, meaning that the Von Kármán Furthermore, the regulatory areas some of the submission to the U.N. work- or orbiting line may also change. Even if of friction are likely to grow. While, at ing group have warned that because the the line is fixed at a given distance such present, the practical debate has tended “near-space” area, of up to 160 kilometers as 100 kilometers, technological advances to focus on the differing rules of naviga- from sea level, is subject to growing use may render that border unsound. Above tion and safety, there is a host of other (e.g., from spent rocket stages and/or all, the concept of the Von Kármán Line policy areas – taxation, intellectual suborbital vehicles), there is a legitimate ignores that there are apparently several property, national security and privacy, need to regulate that space as a separate layers of space with different characteris- to name but a few – where a clearly de- zone. A too-low boundary may also raise tics. McDonnell’s study, for example, tells fined boundary between air and space security concerns. us that above the stratopause there is the may be useful in the long run. We can Equally, if the boundary between air and mesosphere , the thermosphere and then all talk about boldly going into space, space is drawn too high, then this might the exosphere. Particles in these layers are but the sticklers among us would like to obstruct space launches and satellite traf- said to behave differently. know where space actually begins. SN fic – and will also clash with the existing These and other arguments have moti- role of the International Telecommuni- vated some countries, such as the United TIMOTHY G. NELSON IS A PARTNER AT THE cation Union, which is responsible for States, to urge that no attempt should be NEW YORK LAW FIRM SKADDEN, ARPS, SLATE,

NASA FAA OFFICE OF COMMUNICATIONS allocating satellite orbital slots, including made to define the boundary between MEAGHER & FLOM LLP.

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