This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on Technology & the Law of Corporate Responsibility – The Impact of Blockchain, 30th Anniversary of the United Nations Convention on the Rights of the Child, United Nations Day – A Time to Reflect on the Potential Role of the International Court of Justice, Facebook’s New “Supreme Court” – The Oversight Board and International Human Rights Law, and Reflecting on 10 Years of the United Nations Guiding Principles on Business and Human Rights.
You probably heard that Jeff Bezos, the founder of Amazon and the space company Blue Origin, recently went to space. Bezos’ highly publicized eleven-minute flight, accompanied by his brother and two other passengers, followed Richard Branson’s trip to the “edge of space” last month, which reached an altitude of 53 miles (85 km) above the earth. Meanwhile, Blue Origin’s flight reached an altitude of 66.5 miles (107 kilometers), four miles above the “internationally recognized” 62-mile (100 km) boundary between the earth’s atmosphere and space. The question of whether both men qualify as astronauts depends on your definition of outer space – NASA, the U.S. Air Force, and the Federal Aviation Administration would say yes, as they consider outer space to begin 50 miles (80 km) above the earth’s surface.
Meanwhile, the “internationally recognized” boundary, known as the Kármán line and monitored by the Federation Aeronautique Internationale, is not agreed upon in international law. On the contrary, the international institutional body devoted to space law, the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space (COPUOS), has been formally considering the definition and delimitation of outer space since 1967. COPUOS was created by the United Nations (UN) General Assembly in 1959 with the mandate to, among others, strengthen the international legal regime governing outer space. COPUOS is administered by the UN Office for Outer Space Affairs (UNOOSA), based in Vienna, Austria.
It should be noted, however, that several attempts to define and delimit outer space preceded the work of the Legal Subcommittee, as it became clear early in the 20th century that air space and outer space were legally and physically separable environments, and thus the legal regimes to apply to these two environments should be substantially different.
Absence of Consensus on a Definition of Outer Space
Despite more than half a century of international cooperation and discussion within the Legal Subcommittee of COPUOS, and despite the widely used 62-mile (100 km) Kármán line as a reference, disagreement among states still exists regarding the definition and delimitation of outer space. Several states involved in the Legal Subcommittee discussions on the topic even disagree about establishing an international legal definition and delimitation of outer space at all, arguing that it is a theoretical exercise that could unintentionally complicate existing activities and that a definition might not be adaptable to continuing technological advances.
While there is also a debate among states regarding an appropriate altitude to distinguish air space from outer space, there is another definitional debate about whether to even use the criterion of altitude to define and delimit outer space. Some states propose using a functional approach to define and delimit outer space, wherein space law would apply to any activity aimed at putting a space object into earth orbit or beyond in outer space.
The “functional approach” proposal would therefore be preferable, this argument goes, as it would apply the space law framework to suborbital flights, such as those taken by Bezos and Branson. Other states have argued that the functional approach would have a negative impact on the sovereignty of states over their national airspace and potentially exclude the application of international space law to nuclear weapons and weapons of mass destruction.
Why a Legal Definition of Outer Space Matters – the Space Treaties
The legal definition of outer space matters (arguably – see above) because article I of the 1967 Outer Space Treaty (officially the Treaty on Principles Governing the Activities of states in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies), which has 111 ratifications, provides:
Outer space, including the moon and other celestial bodies, shall be 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 there shall be free access to all areas of celestial bodies.
Thus article I of the Outer Space Treaty clearly establishes international law, as opposed to domestic laws, as the governing law in outer space. As such, “space law” is a series of international treaties, principles, guidelines, and resolutions, including four more treaties (the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement) and five principles (the Declaration of Legal Principles, the Broadcasting Principles, the Remote Sensing Principles, the Nuclear Power Sources Principles, and the Benefits Declaration). In other words, determining when something is in domestic airspace, as opposed to outer space, determines whether national law, as opposed to international law, applies.
Other Space Law Issues Addressed by the COPUOS
Beyond negotiating the legal definition and delimitation of outer space, the COPUOS Legal Subcommittee is currently discussing a variety of other issues, including the specific issue of suborbital flights for scientific missions and/or human transportation. In addition, the Legal Subcommittee is exchanging information on legal mechanisms relating to space debris mitigation and remediation measures, which takes into account the work of the COPUOS Scientific and Technical Subcommittee.
In its most recent meeting, concluded in June 2021, the Legal Subcommittee asked states members and permanent observers to submit concrete and detailed proposals regarding several issues, including (i) the relationship between suborbital flights for scientific missions and/or for human transportation and the definition and delimitation of outer space; and (ii) which legislation applies or could be applied to suborbital flights for scientific missions and/or human transportation?
While the COPUOS Legal Subcommittee continues to receive concrete and detailed proposals regarding these issues, and space tourism continues to evolve, we can probably at least agree that Jeff Bezos did (probably) go to outer space. What law applied to him and his team, while they were there for eleven minutes, remains a bit more complicated.