SPATIAL DEMARCATION: HOW SHOULD WE DEFINE STATE LIABILITY IN OUTER SPACE?
Tracy Albin
Curtin University of Technology
Abstract
The issue of spatial demarcation is one that has troubled UNCOPUOS for many decades. Spatial demarcation is essential in order to define and enforce State responsibility for their conduct within both air space and outer space. There have been many theories put forward in order to settle the debate, but no one theory has been sufficient to satisfy the elements of practicality, science and conclusiveness. The two most popular theories, spatial demarcation and functional demarcation, will be critically discussed below, with a consideration of the emerging practice of space tourism and its effect on the debate.
3,666 words
I INTRODUCTION
“There is no universally agreed precise legal, technical or political definition of either the boundaries separating air space from outer space or of the term ‘outer space’ itself.”[1] The delimitation of outer space has been an issue faced by the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) for many years. Delimitation is central to the notion that state sovereignty extends to only the airspace above a State, and not to any area beyond the point at which outer space is said to begin.[2] Delimitation is also important when considering State liability under the Convention on International Liability for Damage Caused by Space Objects (‘Liability Convention’).[3] There are, amongst others, two mainapproaches to delimitation; the functionalist approach and the spatialist approach.[4] This essay will examine the advantages and disadvantages of these two approaches, as well as the impact that the emerging practice of space tourism has on the need for delimitation, and demonstrate why the spatialist approach is the preferred method.
II THE FUNCTIONALIST APPROACH TO DEMARCATION
AOverview of the functionalist approach
The functionalist approach to delimitation seeks to define the boundaries of air space and outer space with reference to the function of the object that is the subject of the liability.[5] This approach believes that “(Space law) ...cannot be associated with a limited space, but only with the character of the activity under regulation.”[6]In accordance with this approach, a commercial international flight would not be subject to the Liability Convention as its function is to fly within the area of air space, whereas a space tourism flight may be subject to the Liability Convention because its purpose is to enter outer space. One clear advantage of the functionalist approach is that it would align delimitation with the approach of the majority of the lexspecialis as it currently stands.
B The current lexspecialis
Article VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the ‘Outer Space Treaty’)[7] and Article II and III of the Liability Convention impose State responsibility for damage caused by “space objects”, referring to those objects that have a purpose intended to be served in outer space. This approach also appears in Article V of the Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched in Outer Space (the ‘Rescue Agreement’)[8] and Article I and II of the Convention on Registration of Objects Launched into Outer Space (the ‘Registration Convention’).[9] However, the current lexspecialis of Space Law is not consistent. For example, Article II and IV of the Outer Space Treaty provide support for a spatialist approach to delimitation. Those provisions exclude State sovereignty and create liability in relation to outer space, respectively, with the primary consideration being the clear distinction between air space and outer space rather than a reference to the purpose of the object in issue.
C Other advantages
Other advantages of the functionalist approach are that it counteracts the disadvantages of the spatialist approach. As will be seen below, one of the main criticisms of the spatialist approach to delimitation is that differing atmospheric conditions and advancing technologies make it difficult to ascertain a precise and constant limit of State sovereignty. Some Latin American States have advocated support for the functionalist approach, in light of this shortfall:
‘The aerospace object should have a single legal designation, subject to special provisions determining the applicable regime, especially in view of the impossibility of specifying precisely where air space and outer space begin and end respectively, a problem which has made it difficult to reach a consensus on criteria to be adopted in defining aerospace objects. Consequently, applying either air law or space law depending on the type of space crossed by the trajectory of the aerospace object would cause problems. Our preference is therefore for the second option of applying either one regime or the other throughout the entire flight, according to its destination.’[10]
DDisadvantages of the functionalist approach
There are some clear disadvantages to the functionalist approach. The most prominent shortfall is the lack of agreement between State parties on a definitive test for determining whether or not an object satisfies the standard required.[11] This is reflective of the difficulty involved with actually defining what a “space activity” is.[12]Any definition may involve significant ambiguities, particularly in situations where the object is destined to perform its functions in one area, perhaps air space, but its purpose is to carry out an outer space function such as observing space activities. This also raises particular uncertainty when considering technological developments such as the Virgin Space Ship One which is an aircraft used for the purpose of carrying out the fundamentals of air space transport, carrying passengers between destinations, but enters outer space in order to do so.
Vereschetin takes the position that under the functionalist approach, these objects should be classified as space objects, even during the stages where they operate within air space:
‘As to ‘ordinary’ space planes, if their raison d’être is the delivery of cargo or persons to and from space, they should be treated, in principle, from the very beginning to the very end of their mission as ‘space objects’ within the meaning given to this term in space law. Conversely, if any are destined for Earth-to Earth transportation and, if during their operation they only traverse the fringes of outer space, these vehicles should be treated as aircraft.’[13]
Furthermore, when adopting the functionalist approach, it is impossible to disregard the location of the space object; in order to determine whether the function was carried out in either air space or outer space, a specific point of delimitation must be established.In light of this, the functionalist approach is actually based on thefundamental consideration of the spatialist method. This dependency between the two approaches provides implicitsupportfor the spatialist approach.
III THE SPATIALIST APPROACH TO DEMARCATION
AOverview of the spatialist approach
The spatialist approach to delimitation seeks to define the boundaries of outer space with reference to a specific and definitive distance from the Earth’s surface.[14]Some academics argue that the atmosphere is dynamic and fluctuates in density making demarcation impossible and that adopting the spatialist approach may impede on the development and growth of potential space technologies.[15] However there are substantial benefits to adopting this method of delimitation. The spatialist approach has in inherent element of certainty and precision that will facilitate improved application of the lexspecialis to Space Law disputes as well as the efficiency of their resolution. By implementing a clear and definitive demarcation point, it will be easier for State parties to understand, and indeed to act within, their sovereign jurisdiction and obligations under international law. There are multiple theories encapsulated under the spatialist approach; the lowest perigee of an orbiting satellite and the aerodynamic theory will be discussed below.
B Lowest perigee of an orbiting satellite
Under this approach, the demarcation of air and space would be pronounced with reference to the lowest height at which an aircraft would be required to enter into orbit and circle the Earth.[16]This distance is said to be around 160kms however with technology advancing and the creation of new, low orbiting satellites, some estimations have been as low as 70kms.[17]This approach was accepted by the International Law Association in 1968[18] and has generated support based on its scientific merit and its relevant consideration of physical concepts and technological applications.[19]
Jastrow, amongst other scientists, have advocated for this approach:
‘The reference to orbiting vehicles, or satellites immediately introduces the possibility of a physically sound definition for the limits of airspace…I have in mind the fact that at low altitudes a satellite is quickly destroyed by friction. Therefore, I suggest that the boundary to the airspace of a nation should be defined as the altitude at which the density of the atmosphere is sufficiently low to permit the completion of one circuit by an orbiting vehicle, without destruction by atmospheric friction…Our calculations of satellite lifetimes indicate that critical altitude is 100 miles for a satellite of a typical weight and dimensions, i.e., a weight of one ton and a cross sectional area of 30 square feet. The critical altitude of 100 miles will vary by uncertainty of the density of the atmosphere at that altitude, and also for reasonable variations in satellite mass and cross sectional area, or more properly, the ratio of those last two quantities. This figure of 5 miles represents the degree of arbitrariness in the proposed definition.’[20]
However, a major criticism of this approach is that the minimum heights at which satellites can enter the Earth’s orbit is at least twice the height at which aircrafts can suitably sustain flight.[21] Therefore to accept this approach over the aerodynamic theory, discussed below, would be to unanimously accept the merits of one over the other. Another significant shortcoming of this approach is the inability of scholars and scientists over time to ascertain a demarcation line with exaction. The current range is between 70 and 160kms, which does little to apportion liability under the lexspecialisin a concise manner. Changing technologies and fluctuations in the Earth’s atmosphere have the tendency to change these estimates and therefore if UNCOPUOS were to adopt this approach unequivocally, it would be constantly varying to reflect these changes.[22]
CAerodynamic theory
The aerodynamic theory is an alternative approach to the ‘lowest height of orbit’ theory and enjoys significant support from various scientists and theorists.[23] The theory sets demarcation at the point where an aircraft can no longer sustain itself in flight; this occurs where the aircraft has insufficient aerodynamic lift. This position is said to be in the stratosphere where all air density is lost-approximately 83kms above sea level but it has been theorised as high as 120kms. Robert Goedhart has expressed support for this theory stating:
‘In summary, it might be said that a height between 80 km and 90 km is most appropriate for drawing a legal boundary line between airspace and outer space. The lower and denser part of the atmosphere is as good as homogeneous in its chemical composition, whereas the upper part of it is in more than one respect equivalent to cosmic space, thus differing essentially from the deeper air layers. Luckily enough, this intermediate area which presents itself as a matter of nature, happens to coincide with the numerous proposals done in Western literature on international law: most of them are directed at choosing a height between 80 km and 100 km above mean sea level.’[24]
A theory that is inextricably linked to the aerodynamic theory is the “Von Karman Line” approach to delimitation. This approach seeks to establish demarcation at the point where aerodynamic lift becomes irrelevant and the outward force takes over.[25]This approach has been adopted by the Federation AeronautiqueInternationale and is reflected in the practice of many States.
However, like all theories, this approach is not without its disadvantages. With the rapid advancement of technology, we have seen the creation of the new X-15 class of aircraft which combine elements of aircraft and spacecraft to fly above lower airspace at a height which is considered super-atmospheric.[26] These aircrafts may pose a problem when attempting to implement the aerodynamic theory as the demarcation point based upon the point at which an aircraft can no longer sustain the force to continue in flight will not apply to these aircrafts. These considerations generate support for the functionalist approach, which would attach State liability to the aircraft when it is serving its function in air space, and would relinquish responsibility when the aircraft entered outer space and served its outer space function. Another suggested approach is to implement a medium between the ‘lowest perigee or orbit’ approach and the ‘highest point of aerodynamic lift’ theory, averaging the two distances to find an acceptable demarcation point.
DThe emergence of customary international law
There is a strong support for the proposition that a crystallised customary law has emerged which imposes a mandatory obligation for State’s to consider the point of delimitation as 100kms above the Earth’s surface.[27] For example, section 8 of the Australian Space Activities Act 1998 (Cth) defines “space object” as one that is carrying out a function 100km from sea level or above.[28] The Federal Aviation Administration has also shown support for this position, readily applying astronaut status to those who travel beyond 100kms from sea level.[29] Further confirmation of this proposition has been given by the Federation Aeronautique International, the International Academy of Astronautics, and the Russian Federation.[30]
Russia hasstated that “a [S]tate’s sovereignty does not extend to the space located above the orbit of the last perigee of an artificial Earth satellite (approximately 100 [kilometres] above sea level).”[31] These examples support the use of the spatialist approach, in particular the method known as the “Von Karman line”, to settle the issue,favouring it over the functionalist view.[32]
IV THE EFFECT OF SPACE TOURISM ON THE DEMARCATION ISSUE
A Space tourism livens the debate
A necessary consideration when having regard to the delimitation issue is the emergence of space tourism and the effect this commercial practice will have on the delimitation debate. The Futron Corporation predicted that by 2021 over 15,000 passengers could be flying sub-orbitally annually, representing a revenue of $700 million.[33]There is not currently a “consistent, comprehensive body of law addressing the related issues” involved in space tourism.[34] A journey of space tourism involves both air space and outer space travel; the delimitation of outer space will therefore have significant implications for the issue of liability arising from accidents occurring on these types of journeys.[35] There have been three different regimes suggested for determining liability in commercial sub-orbital flight; spatialist delimitation, functional delimitation and the creation of a whole new legal regime to apply, regardless of the function or location of the space vehicle.[36]
B Which approach is best for space tourism?
It has been suggested that the spatialist approach is of little practical use when determining liability in space tourism due to the uncertainty surrounding delimitation, and hence the difficulty in applying this theory when it is not yet an accepted practice. The functionalist approach provides a little more practicality, rendering international space law applicable regardless of whether the space vehicle actually reaches its destination in outer space, assuming that its function was intended to be carried out there. However, this method tends to fall short of the requirements when the function of the vehicle is to enter outer space for only a few seconds, such is the case with supersonic space planes.[37] The third method, the creation of a whole new legal regime applicable to space tourism, appears more favourable. In light of the challenges faced by the two preceding approaches, the creation of a new and innovative regime that can be specifically tailored to the needs and risks involved in space tourism, especially since there is currently no clear approach to delimitation, would provide a more sufficient method of determining liability.
The emergence of space tourism has highlighted the need for a clear approach to delimitation to be settled in international law.[38] It has been noted that the functionalist approach is dependent on the existence of a fixed boundary between air space and outer space. In order to determine the function of an object, it is still necessary to know where air space ends and outer space begins.[39] This demonstrates the suitability and practical efficiency of a spatialist approach to delimitation; to apply the functionalist approach, after already satisfying the ideology underlying the spatialist approach, would be to complex the issue even further. Therefore, while the creation of a new legal regime which applies to space tourism across both air space and outer space appears more useful, the emergence of space tourism and the debate it has awakened concerning the need for delimitation of outer space show further support for the use of the spatialist approach.