What the Heck is Outer Space?

We seem to be back to the current “do nothing” approach that many have suggested, which seemingly prevails

by Dr. Ruwantissa Abeyratne

Writing from Montreal

“It is a very sobering feeling to be up in space and realize that one's safety factor was determined by the lowest bidder on a government contract.”

― Alan Shepard

Patricia Lewis, Research Director at the Royal Institute of International Affairs – otherwise known as Chatham House – in her essay “ Create a Global Code of Conduct for Outer Space” sagely suggests that: “ A cross-regional group of like-minded countries (for example Algeria, Canada, Chile, France, India, Kazakhstan, Malaysia, Nigeria, Sweden, the UAE and the UK) should link up with UN bodies, including the Office for Outer Space Affairs (UNOOSA), COPUOS and ITU, and key private-sector companies to kick-start a new process for a global code of conduct to establish norms and regulate behaviour in space”.

Mystery Ever? 

The problem is that there is no internationally recognized definition, scope or parameters of “outer space”.

The Outer Space Treaty of 1967 – the principal international treaty governing matters in “outer space” - does not contain any definition, nor does any other treaty enlighten us on the matter. The Treaty merely provides, in Article 1 that the exploration and use of outer space, including the Moon and other celestial bodies, is required to be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. The treaty goes on to say that outer space, including the Moon and other celestial bodies, is free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and that there will be free access to all areas of celestial bodies. Freedom of scientific investigation in outer space, including the Moon and other celestial bodies is encouraged, and States are expected to facilitate and encourage international cooperation in such investigation.

There is just one snag: without knowing what “outer space” is, how can one even conceive of the implementation of this and other provisions of the Outer Space Treaty? Although the “spacialist” approach to this question calls for a demarcated boundary between air space and outer space, any attempt by its proponents has been thwarted by the perceived reluctance of States to tie themselves to a globally accepted principle that would define parameters of outer space linked to their sovereignty. This reluctance would of course be for geopolitical reasons. Adam Ward, Deputy Director of Chatham House correctly points out in his essay “Adapt or Die”: “The concept of the ‘rules-based international order’ refers today in its most general sense to arrangements put into place to allow for cooperative efforts in addressing geopolitical, economic and other global challenges, and to arbitrate disputes”.

Air law clearly dictates that each State has complete and exclusive sovereignty over the air space above its territory. “territory” is defined as the land areas and territorial waters adjacent to the State concerned. The term “territorial waters” is defined at maritime law as a 12 nautical mile radius around the land area of a State. The issue now is to decipher when air space ends and outer space begins. There are several theories that have been put forward on this issue. The first is the “functionalist theory” which states that a single regime should apply throughout a flight and be calculated based on the delimitation or definition of the air space/outer space regime founded on the purpose and activities for which an object is designed in air space or outer space. Then there is what is called the “arbitrarist” approach where some have recommended that the demarcation between air space and outer space should be decided by drawing an arbitrary line between air space and outer space.

The Bogota Declaration of 1976 was signed by 8 States traversed by the Equator (Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire which is now the Democratic Republic of Congo) which provides inter alia that the geostationary synchronous orbit (GSO) is a physical fact linked to the reality of planet Earth because its existence depends exclusively on its relation to gravitational phenomena generated by the earth. Therefore, GSO would not be considered as being conducted in outer space. This means that the States signatories to the Bogota Declaration claim sovereignty on GSO carried out over their territories on the following principles: The sovereign rights put forward by the equatorial countries are directed towards rendering tangible benefits to their respective people and for the universal community, which is completely different from the present reality when the orbit is used to the greater benefit of the most developed countries. The segments of the orbit corresponding to the open sea beyond the national jurisdiction of states will be considered as common heritage of mankind. Consequently, the competent international agencies should regulate its use and exploitation for the benefit of mankind.

The Bogota Declaration goes contrary to an approach suggested by some that outer space should begin at the lowest point of orbital flight. This approach suggests that sovereignty should extend to the lowest height at which an object requires to enter into orbit and circle the Earth. That point has been variously put between 70 km and 160km.

The signatories do not object to the free orbital transit of satellites approved and authorized by the International Telecommunications Convention, when these satellites pass through their outer space in their gravitational flight outside their geostationary orbit; the devices to be placed permanently on the segment of a geostationary orbit of an equatorial state requires previous and expressed authorization on the part of the concerned state; and the operation of the device should conform with the national law of that territorial country over which it is placed. The said authorization is different from the co-ordination requested in cases of interference among satellite systems, which are specified in the regulations for radiocommunications. The authorization refers in very clear terms to the countries’ right to allow the operation of fixed radiocommunications stations within their territory.

Another theory called the “Usque ad Infinitum” theory posits that sovereignty of a State should extend beyond any altitudinal bounds. This has been criticized as being both arbitrary and ambivalent. The “national security and effective control” theory on the other hand suggests that state sovereignty should extend as far out as the subjacent state could exercise effective control. This is based on the argument that state sovereignty extends to any point in outer space if activities conducted therein affect state security or human welfare.

Finally, there is the “aerodynamic lift” theory which recommends that outer space should begin at the point at which an aircraft cannot operate with aerodynamic lift. It is known that with increasing altitude the density of air, as well as the upward pressure of air, decrease and ultimately come to a point where in the complete absence of air, an aircraft would not be able to fly. This is the point, according to the aerodynamic lift theory, where outer space should begin.

All the abovementioned theories have been rejected due to various perceived inadequacies and flaws. For example, the aerodynamic lift theory has been rejected on the ground that the absence of air cannot be clearly identified with an altitudinal limit and that there could be areas in outer space where pockets of air may be found. The Usque ad Infinitum theory has been debunked for obvious reasons. The Bogota Declaration applies only to 8 Equatorial States.

We seem to be back to the current “do nothing” approach that many have suggested, which seemingly prevails.

Dr. Abeyratne is Senior Associate, Air Law and Policy at Aviation Strategies International and former Senior Legal Officer at the International Civil Aviation Organization. He is the author of The Frontiers of Aerospace Law (Ashgate) and Space Security Law (Springer).