The twenty-first century has brought in an era of technological advancements and innovations, especially in the race to outer space. Blue Origin, Virgin Galactic, or even Australia’s new venture with commercial rockets, have brought attention to the use of sub-orbital flights and their growing popularity amongst the wealthy. With several new enterprises coming up or in the process thereof, it is imperative to demarcate the laws governing such activities. In light of this, the present article explores the governance of sub-orbital flights and notes the lack of a dedicated mechanism, while recommending the creation of a specialized aerospace regime along with the adoption of the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”) Model to regulate the activities of such sub-orbital projects.
II. NEED FOR the CREATION OF A BOUNDARY
Since the 1950s, the issue of delimitation of outer space has been debated and discussed, albeit with the lack of a conclusive solution. Currently, there exists no boundary between a country’s airspace over which it has state sovereignty, and the outer space wherein state sovereignty is a prohibited concept. This leads to two issues – firstly, conflicts or confusion may arise amongst states vis-à-vis their rights and duties in the sub-orbital area; and secondly, there is an ambiguity as to whether such area is governed by Air Law or Space Law, thus indicating the absence of an exclusive regime to govern the area. Consequently, it is essential for state members to come to a consensus and resolve these issues.
III. EFFORTS taken TO REACH A CONSENSUS
Back in 2010, countries such as Germany, Saudi Arabia and the United States of America, while noting the importance of delimitation of outer space, did not deem it urgent to demarcate; whereas countries such as the Czech Republic, Iraq, Qatar and Belarus recommended immediate delimitation in order to avoid the eventual clash of national legislations in the sub-orbital area and the resultant disputes arising from it.
Despite the recognition of the importance of delimitation from both sides, no consensus was reached upon as to where the line must be drawn. Countries such as Australia had supported the notion of limiting a country’s airspace to 100 km above the Earth’s sea level, also known as the Kármán line, while the United States of America and Austria set the limit to 80 km in accordance with the aerodynamic-lift theory. The Fédération Aéronautique Internationale, which is the governing body of air sports, also adopted the Kármán line but recently started to reconsider its stance in light of new research that supports the 80 km boundary. While these nations and bodies debated around the 80-100 km region, countries such as South Africa and Belarus limited their vertical sovereignty to up to 18-20 km, which is far less than any number mentioned during the discussions.
Given the differing viewpoints amongst nations, it will be a Herculean task to put the fifty-year-old debate to rest. In lieu of this, a two-pronged approach is proposed to resolve the issue – firstly, the existing UNCLOS Model could be adopted to demarcate regions in the atmosphere and designate the applicable laws; and secondly, an aerospace regime could be developed that is inclusive of principles from both air law and space law to govern the sub-orbital area.
A. Adoption of the UNCLOS Model
As has been suggested by scholars before, based on the UNCLOS Model, the atmosphere can be divided into three separate regions: (1) the “Air Space Zone” which would extend up to 50 km from the sea level; (2) the “Near Space Zone” which would be from 50 km to 120 km from sea level; and (3) the “Outer Space Zone” which would be from 120 km and above from sea level. The Air Space Zone would be subject to the jurisdiction and sovereignty of the underlying state, as is with territorial seas, and would be bound by the principles laid down in the Air Law Conventions. The Outer Space Zone shall be regarded at par with the high seas, with no claims of sovereignty or appropriation by any entity being obliged and would abide by the norms laid down in the Space Law Conventions. The Near Space Zone shall adopt the principles followed in the region of the exclusive economic zone of coastal nations, i.e., it shall provide the right of innocent passage and peaceful use to other entities with the exception of requirement of permission from the country underneath for military aircraft, or even commercial aircraft that are being utilized for military or war purposes.
Despite the clear demarcation of regions and designation of laws, there still exists an ambiguity as to which Conventions shall govern the Near Space Zone. As an antidote to this confusion, the proposal of a new exclusive aerospace regime is put forward.
B. Creation of an Aerospace Regime
There are vast differences between the principles of air law and space law due to which a harmony needs to be created amongst the two to make the governance of the Near Space Zone perspicuous. Consequently, the ideal regime would be inclusive of standards from both laws without prejudice to either. The Aerospace Regime could impose the principles of non-appropriation and res communis, i.e., no component of space, either in part or whole, would be subject to the national sovereignty of a country, and all activities shall be conducted in the common interest and for the benefit of all mankind in the sub-orbital region as observed in space law, while the navigation and safety rules established by the International Civil Aviation Organization of the United Nations can be utilized for regulation of aircraft and vehicles flying through the region. The Near Space Zone could enjoy the sanctity accorded to outer space while being kept open to using and exploration by entities as provided under aviation laws.
It is noted that the development of an entirely new regime would be tedious for state members and may be considered unreasonable given the time taken to reach a conclusion on the delimitation of outer space, whose result is yet to see the light of day; however, the development of this regime is bound to yield fruit in the long run and remove any and all ambiguities that exist vis-à-vis the governance and delimitation of the sub-orbital region. Efforts need to be made by state members in the present while things are yet to get complex to prevent the growth of disputes in the future on the same subject matter.
With the growing involvement of private players in the race to space, the situation is bound to get more complex unless state members come to an agreement on the boundaries between airspace and outer space. Until that agreement comes into existence, which does not seem to be possible in the near future considering the lack of a conclusion to a debate that has been ongoing for more than fifty years, it is suggested that an aerospace regime is developed, with borrowings from both air law and space law, to govern the sub-orbital area. This would ensure proper governance of upcoming projects in the region while providing state members with more time to come to a decision on the limits of airspace.
[i] Priankita Das is currently a fourth year student at Ram Manohar Lohiya National Law University.