Research Methodology Hypothesis This paper is an attempt to understand the efficiency of existing Airspace & Outer space laws at the international stage. Research Questions This project will explore the answers to certain questions * To understand the position of Airspace law? * To understand the position of Outer space law? * To analyze the role of existing policies & laws on Airspace & Outer space? * The Difficulties in Definition: Outer Space and Air Space?
Method of writing * This project has been predominantly written in an analytical and descriptive style. Sources of Data ————————————————- I have primarily referred to primary & secondary sources, such as UN policies on the subject, precedents and commentaries by various legal luminaries, in the course of writing this paper. A full list of the sources of data used in this paper is provided in the bibliography.
Space law can be described as the body of law applicable to and governing space-related activities. The term “space law” is most often associated with the rules, principles and standards of international law appearing in the five international treaties and five sets of principles governing outer space which have been elaborated under the auspices of the United Nations Organization. However, space law also includes international agreements, treaties, conventions, rules and regulations of international organizations (eg. he International Telecommunications Union), national laws, rules and regulations, executive and administrative orders, and judicial decisions. States which have national law and legislation governing space-related activities include inter alia Argentina, Australia, Canada, Finland, France, Germany, Hungary, Indonesia, Japan, New Zealand, Philippines, Republic of Korea, Russian Federation, Slovakia, Sweden, South Africa, Tunisia, Ukraine, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.
Space Law is a component of international law. International law is based on treaties developed by committees or conferences which inevitably defer to two absolutes: (1) The language, attempting to be all things to all people, will be both wording and awkward; an (2) Treaties are not law at all anywhere in the world (or off of it) until and unless it is adopted into the law of each of the 200 states on this planet (a process often referred to as “ratification”), and then it is enforceable only within the territorial limits of those states.
The United Nations Office for Outer Space Affairs is the Secretariat for the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), which is the primary international forum for the development of laws and principles governing outer space. In addition to providing parliamentary services, the Office prepares legal studies and background documents on various aspects of space law to assist member States in their deliberations.
In accordance with the Action Plan endorsed by the General Assembly in its resolution 55/122, the Office provides information and advice, upon request, to governments, non-governmental organizations and the general public on space law in order to promote understanding, acceptance and implementation of the international space law agreements concluded under United Nations auspices. The origin of space law can be traced to the launching on 4 October 1957 of Sputnik I, the first artificial Earth satellite. Since that time the legal regulation of outer-space activities has been largely centered in the UN Committee on the Peaceful Uses of Outer Space. The bulk of space law consists of norms incorporated in 5 multilateral treaties.
The most important is the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (also known as the Outer Space Treaty). The major principles of the treaty are freedom of access to, and use of, outer space; prohibition against national claims to sovereignty in any part of outer space; and a ban on the placing of weapons of mass destruction anywhere in outer space. ———————————————— The Basic principles of Space Law United Nations Treaties and Principles on Space Law The Committee on the Peaceful Uses of Outer Space is the only international forum for the development of international space law. Since its inception, the Committee has concluded five international legal instruments and five sets of legal principles governing space-related activities. The five treaties and agreements are: 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”), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967; *
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement”), adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968; * The Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”), adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972; * The Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976; The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”), adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984.
The international legal principles in these five treaties provide for non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes. Each of the treaties lays great stress on the notion that the domain of outer space, the activities carried out therein and whatever benefits might accrue there from should be devoted to enhancing the well-being of all countries and humankind, and each includes elements elaborating the common idea of promoting international cooperation in outer space activities.
The five sets of legal principles adopted by the United Nations General Assembly provide for the application of international law and promotion of international cooperation and understanding in space activities, the dissemination and exchange of information through transnational direct television broadcasting via satellites and remote satellite observations of Earth and general standards regulating the safe use of nuclear power sources necessary for the exploration and use of outer space. These are the principles governing the legal regime applying to space, to space objects and to the activities in outer space. The Treaty on Outer Space and the Agreement on Activities on the Moon. The United Nations Treaties on Outer Space (OST) main principles: Article 1 – This identifies three basic principles: * outer space to be free for exploration and use; freedom of scientific investigation – international cooperation is encouraged; * exploration and use to be carried out for the benefit and in the interests of all countries, (this is a major component of this legal regime and is now to be covered by the next Declaration drawn up by COPUOS) .
Article II – (non-appropriation – geostationary orbit) * Outer space is not subject to national appropriation (important principle in relation to the utilization and extension into space of national laws). The Bogota Declaration of 1976 in which eight equatorial countries laid claim to the geostationary orbit as an integral part of their territory. Article III – IV (peaceful uses – international law) activities to be pursued in accordance with international law; * use for peaceful purposes (the use of military personnel for scientific research is not prohibited). Article VI (authorization and supervision of national activities) * States parties have international responsibility, even if activities are performed by private entities (such as a scientific entity). Articles VII and VIII (Liability and registration) * Should be seen in conjunction with the Convention on liability, which lays down two sets of provisions depending on whether damage is caused in space or on the surface of the earth, and with the Convention on registration.
Article IX (Cooperation – protection of the environment from pollution) * principle of cooperation and mutual assistance – corresponding interests; * conduct studies and undertake exploration of outer space in a manner that avoids contamination; * avoid potentially harmful interference – international consultations – debate on space debris, Article XI (requirement to inform, particularly the international scientific community) * promote international cooperation; * inform the public and the international scientific community, here again specific mention of the latter Article XII (Moon) * moon base open to representatives of other Parties on the basis of reciprocity. ————————————————- Airspace Law Airspace means the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere. *
Controlled airspace exists where it is deemed necessary that air traffic control has some form of positive executive control over aircraft flying in that airspace. Uncontrolled airspace is airspace in which air traffic control does not exert any executive authority, although it may act in an advisory manner. Airspace may be further subdivided into a variety of areas and zones, including those where there are either restrictions on flying activities or complete prohibition of flying activities. By international law, the notion of a country’s sovereign airspace corresponds with the maritime definition of territorial waters as being 12 nautical miles (22. 2 km) out from a nation’s coastline. Airspace not within any country’s territorial limit is considered international, analogous to the “high seas” in maritime law.
However, a country may, by international agreement, assume responsibility for controlling parts of international airspace, such as those over the oceans. For instance, the United States provides air traffic control services over a large part of the Pacific Ocean, even though the airspace is international. There is no international agreement on the vertical extent of sovereign airspace (the boundary between outer space— which is not subject to national jurisdiction— and national airspace), with suggestions ranging from about 30 km (the extent of the highest aircraft and balloons) to about 160 km (the lowest extent of short-term stable orbits). The Federation Aeronautique Internationale has established the Karman line, at an altitude of 100 km (62. miles), as the boundary between the Earth’s atmosphere and the outer space, while the United States considers anyone who has flown above 50 miles (80 km) to be an astronaut; indeed descending space shuttles have flown closer than 80 km over other nations, such as Canada, without requesting permission first. Nonetheless both the Karman line and the U. S. definition are merely working benchmarks, without any real legal authority over matters of national sovereignty. ————————————————- The Difficulties in Definition ————————————————- Outer Space and Air Space National sovereignty over air space is a primary feature of the international agreements regarding aviation.
The Convention on the Regulation of Aerial Navigation, signed in Paris on 13 October 1919, provided in Article I that “. . . .Every power has complete and exclusive sovereignty over the air space above its territory. ” The basic agreement governing postwar civil aviation, namely, the Convention on International Civil Aviation, signed at Chicago on 7 December 1944, reiterates the same principle, in virtually identical language. In direct contrast, claims of exclusive national sovereignty in outer space are prohibited by international agreement. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, was concluded in 1967 under the aegis of the United Nations.
Article II provides that: ‘Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means. ’ International agreements are also developing rules of law for outer space. The Outer Space Treaty itself, pledges the signatories “not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station weapons in outer space in any other manner. ” It also bans military bases, weapons testing, and military maneuvers from celestial bodies. The 1963 limited test-ban treaty prohibited nuclear explosions in outer space, as well as in the atmosphere and under water.
In 1968, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched in Outer Space was concluded. A convention dealing with liability for damage caused by objects launched into outer space is also being negotiated. The actual practice of nations also indicates a difference between national air space and outer space. Hundreds of objects have now been launched into orbit around the earth; in recent years no nation has protested such passage over its territory as violating its sovereignty. In fact, no nation has explicitly reserved its position concerning the passage over its territory of a space object of another country.
On the other hand, no nation has been willing to limit its air space to a specific height; to do so would define the upward extent of its sovereignty and, implicitly or explicitly, the lower limit of what it considered to be outer space. There are two general schools of thought regarding the need for and desirability of arriving soon at a clear line of demarcation between air space and outer space. One approach cites the need to delimit the legally binding obligations regarding the activities and authority of nations in outer space and air space, respectively. Without such a demarcation, it is contended, there will arise, as technology advances, disputes regarding the extent and nature of the obligations nations have assumed in the international agreements related to outer space.
Similarly, without agreed definitions, a nation could assert claims of sovereignty that would interfere with space activities desired by many other countries. The other approach argues that there is no evidence that a demarcation line is needed and that to set one now would be premature and possibly counterproductive. The proponents of this point of view call attention to the rapid pace of space technology and the practical uncertainties regarding the characteristics of feasible and desirable space activities. Trying to set a boundary now, they feel, would risk getting it too high or defined in a way that might turn out to be detrimental to future space activities. Implicit in this viewpoint, there seems to be the expectation that the later agreement is reached, the more likely the boundary is to be set lower than it would be at present. ) Those who endorse a cautious approach note that the lack of specific agreement has not led to any international difficulties and does not seem likely to. They also suggest that the effort to establish a definitive boundary could, itself, lead to controversy and confusion, as has happened in regard to the demarcation between territorial waters and the high seas. A scientifically more sophisticated proposal might be to use the characteristics of the atmosphere to determine an appropriate dividing line between air and outer space.
Suggestions have been made to establish the demarcation on the basis of differentiation between the several layers into which scientists divide the atmosphere. The troposphere, the layer nearest the surface of the earth, extends up to about 9 to l0? miles at the equator and 6 to 7 miles at the poles. It is the layer in which weather phenomena occur, and it is the field of operation for conventional aviation. The troposphere contains three-fourths of all the air surrounding the earth. Most of the rest of the air in the atmosphere is contained in the next layer, called the stratosphere. It is above the weather and is reached only by the most advanced aircraft and research balloons. Its upper limit is about 25 miles.
The troposphere and stratosphere contain about 99. 7 percent of the air. A third layer, called the mesosphere, extends to about 50 miles, and beyond that is the ionosphere. The latter is sparsely occupied by gas particles, less dense than the most complete vacuum that can be achieved on earth. The upper limit of the ionosphere is not defined. The major difficulty in trying to define a boundary by utilizing the characteristics of the atmosphere is the lack of uniform criteria. The physical characteristics of the atmosphere and of the various layers can be judged by a variety of criteria, such as the composition of the gases, their densities and their temperatures.
These properties are not uniform at a certain altitude. They can also vary with solar activity, time of day, season, region, and other circumstances. The boundaries between the layers of the atmosphere are thus not precise, uniform in height above the earth, or constant. Nor is it possible, because of the variance in the properties of the atmosphere, to arrive at any other boundary between air and outer space that would be precise, uniform, and constant. One of the most widely discussed proposals for a demarcation between air space and outer space is that it be established at the altitude where aerodynamic lift yields to centrifugal force, what is known as the “Von Karman line. To accomplish aerial flight, weight equals aerodynamic lift plus centrifugal force. Aerodynamic lift decreases with altitude because of the decreasing density of the air. Beyond zero airlift, centrifugal force takes over. This approach also involves several difficulties that seem to preclude a uniform and constant boundary. The theoretical limit of the height of air flight may increase as the result of such developments as improved cooling techniques or more heat-resistant materials. The aerodynamical forces also vary with the character and speed of the specific object involved. Moreover, the density of the atmosphere itself is not constant but is subject to a variety of fluctuations, as already noted.
The International Law Association (not an intergovernmental body) did adopt in 1968 a definition of outer space as the space beyond the lowest perigee reached by any satellite placed in orbit before 27 January 1967, the date on which the Outer Space Treaty was opened for signature. The Association, however, added that this definition was without prejudice to the possibility of including later any part of the space below that perigee. The association’s added qualification indicates one of the difficulties in this approach. The perigee of a durable satellite orbit at present is about 95 to 100 miles. However, improvements in space flight technology, such as orbiting with continuing rocket thrust, may lower this perigee to 70-75 miles. That large an element of legal uncertainty would hardly be compatible with a definition seeking to determine national sovereignty over air space.
Another problem with this definition involved the practical questions of who determined precisely the lowest perigee of a satellite before 27 January 1967 and whether it was an active satellite or a piece of space debris. More generally, this approach also fails to provide a precise and continuing boundary because, scientifically speaking, no precise altitude can be determined as the single lowest possible perigee of any artificial satellite. Such a determination would depend on the characteristics of the object and the atmosphere; and these vary, as already noted in connection with aircraft. An effort has been made to get around all these problems of scientific definition by proposing that the exclusive sovereignty of an underlying country should extend as high as it could effectively apply its authority.
This principle has often been asserted in efforts to analyze the scope and effects of the international agreements governing civil aviation. However, it has equally been challenged on the grounds it would produce unacceptable disparities, conflicts, and uncertainties. Since nations are at widely different levels of scientific and technical development, their air spaces would vary greatly. If each country were allowed to project its sovereignty upward and sideward in accord with its effective power, conflicting claims would seem highly likely to occur; and there would be no way to resolve them except naked power. The criterion of effective power would also create marked uncertainties because sovereignty would vary with the development of technology.
Another attempt to avoid the difficulties of spatial definitions proposes that a distinction be made between aeronautical and astronautical activities, rather than trying to decide on a demarcation between air space and outer space. The proponents of this approach argue that a legal definition is usually needed to permit certain activities and prohibit others. Accordingly, they feel that in regard to outer space activities, it would be better to seek this objective, not by trying to set boundaries but by defining objectives and missions for space vehicles. Their thought is that the important interests of all countries can be protected more effectively, not by putting territorial limits to national sovereignty but by legally prohibiting those actions in the course of space activities that would endanger these interests.
This approach proposes that stronautical activities should be subject to one and the same legal regulation, irrespective of the altitude at which they are carried out. It would apply to them the moment they leave the earth, in order to avoid a complicated determination of their passing from one legal status to another. This concept stems from the belief that, as the scope of international space law gradually extends; international regulation will have to approach the launching pads. The only way to preserve the logical unity of legal regulation, it is contended, is by dispensing with a demarcation in space and adopting a functional criterion. However, there are difficulties with this approach, too.
It is not always possible to distinguish precisely between space activities and other activities. Using the purpose of each activity as the criterion has been suggested; but often this could be ambiguous (e. g. , an aircraft equipped with scientific instruments to observe an eclipse, or balloons bearing instruments for space observations). Moreover, the prospects of scientific and technical progress in the development of aircraft and space vehicles make the practical problem of distinguishing between them ever more complicated. Another intricate problem of potentially great scope is how nations could differentiate between space activities at low altitudes and air activities, so as to regulate each effectively and discretely.
About the only sound conclusion from a review of the various approaches to differentiating between air space and outer space is that no fully satisfactory answer is in sight. In fact, each of the approaches seems to have at least one serious defect. The problem has not been a pressing one. Indeed, the many uncertainties and potential developments in space activities have even suggested some wisdom in waiting until man’s abilities and needs in space are much better defined. However, technology is moving on. In the not too distant future, machines capable of flying along a ballistic trajectory are expected to orbit the earth, fly in outer space and air space, and make soft landings on the earth.
The space shuttle, which NASA hopes to make a follow-on program to the projected Apollo and Skylab series, apparently will be such a vehicle. Aeronautical researchers are reported to be thinking about a hypersonic transport (HST) as a next step after the supersonic transport, for about the year 2000. Some of the features being considered are described as “rocket-assisted take-offs” and “space vehicle-like bursts beyond the atmosphere followed by semi-orbital ‘free fall’ until descent. ” Developments such as these are bringing closer the day when some formula will be needed, as a practical matter, to accommodate the differences between air space and outer space.
The difficulties involved in all the approaches that have been suggested indicate that the decision may well have to be an arbitrary one. The goal obviously should be to select a boundary that seems to balance best the varying difficulties, advantages, and other pertinent considerations. Some demarcation line in the 50- to 75-mile altitude range may be the most satisfactory—or least unsatisfactory.
Bibliography * International law, Malcolm N. Shaw 5th edition * The law and policy of air space and outer space: a comparative approach, Peter P. C. Haanappel * Jstor. org * Heinonline. org