Branson, Bezos and the frontiers of outer space

The feud between the billionaires has reignited the decades-old debate on the precise demarcation between the frontiers of air and space.

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Apart from flattering the egos of the concerned billionaires, the question of whether these sub-orbital flights advertised as “space flights” actually fly into space carries important regulatory consequences. The answer to the question determines the applicable legal framework, which are based on fundamentally divergent premises and can lead to potentially different outcomes.

The legal regime governing outer space, which has developed as a distinct body within international law, after the launch of Sputnik 1 in 1957, is composed principally of five multilateral treaties negotiated during the Cold War era, including the framework 1967 Outer Space Treaty. During this period, the idea of private participation in space was thought to be inconceivable. The regime is premised on the idea, which is reflected in the treaties, that outer space is free for exploration by all States; not subject to national appropriation; and must be used peacefully.

In contrast, by the time of Sputnik-1 launch, there was a well-defined body of rules governing commercial air travel, notably the Chicago and Warsaw Conventions. The legal regime was premised on the basis that air space constitutes an extension of the territory of the State over which it exercises complete and exclusive sovereignty.

This distinction has important practical consequences, in so far as vehicle can enter a State’s airspace only with its consent and is subject to its domestic laws. On the other hand, a vehicle, once it enters outer space, is no longer subject to national sovereignty and enjoys the freedom to explore space as accorded by the space treaties.

The applicable rules concerning both passenger liability and third party liability are different across the two regimes. Under international aviation law, there are multilateral treaties such as the Montreal and Rome Convention, which provide for liability of carriers for passenger injury or death and liability of operators for damage on the surface caused by the aircraft.

In contrast, under the antiquated space treaties, following the “State-oriented” model, the liability is imposed on the launching State for third party damage caused by a space object, whereas there exists no possibility of space tourists to claim compensation for injury or death. It is therefore not surprising that in view of the growing private participation in space, a number of States have enacted legislations which enable them to pass on the financial responsibility to private actors.

Despite the fundamentally different premise governing air travel, the drafters of the outer space treaties, including the principal 1967 Outer Space Treaty could not agree on any particular definition of outer space.

Accordingly, from a legal perspective, it was not clear where the frontier of space begins or more precisely, where air ends and space begins. For many years, prior to private participation in space activities and the evolution of reusable suborbital flights, this lack of a precise delimitation did not lead to any practical problems. The fact that major space faring states such as the United States found it to be in their security interest to not have a precise delimitation also led to an agnostic position on the issue.

However, this is not to suggest that attempts at a precise delimitation have not been made. Various proposals have been discussed at demarcating air and space. In the 1950s, noted Hungarian physicist, Von Karman, on the basis of atmospheric calculations, proposed a boundary that was rounded off to an altitude of 100 km above mean sea level. The 100 km boundary has accordingly become synonymous with the Karman line and the has been incorporated by some countries, such as Australia, in their domestic space legislations. Other proposals have sought to place the boundary at the lower perigee of an orbiting satellite ranging from 160 km to 100 km above mean sea level. More recently, Von Karman’s work has been revisited and it has been suggested that the actual boundary fixed by Karman was closer to approximately 84km above sea level.

Fixing any such boundary, however, is not without its own set of opponents. Too high a boundary might impede the peaceful exploration of outer space and too low a boundary may bring its own set of security concerns.

Nevertheless, with the advent of commercial space tourism, it may no longer be sustainable to leave the issue of delimitation of air and space undetermined. Given the proposal to begin regular private sub-orbital space flights by 2022, it may be an opportune time to revisit and finally decide the delimitation between air and space. It is important to appreciate that apart from the practical issues of navigation and liability that arise in the context of space flight, a variety of connected regulatory issues ranging from taxation to intellectual property would gain clarity, with the definitive demarcation of air and outer space.

Jay Manoj Sanklecha is a Mumbai-based advocate specialising in public international law

The views expressed are personal