International air and space Law boundaries : A new frontier

Abstract

On the 22nd of October 2021, a revolutionary new device called a Sub-orbital Accelerator was powered up for its first test launch in the desserts of New Mexico in the United States. The kinetic Sub-orbital launching system launches a rocket object into the atmosphere where rocket boosters ignite to propel the rocket object to reach lower Earth Orbit to deliver payloads such as satellites. The rocket object launched from the system travels through airspace to reach lower earth orbit and beyond. The rocket object travels through airspace and into outer space. Airspace and outer space are governed by fundamentally different legal regimes. Under Air Law States have exclusive territorial jurisdiction over their airspace, whereas in Space Law which governs outer space - State sovereignty is prohibited, as outer space is subject to non-appropriation. The differences between the legal regimes begs the question where delimitation may be found between airspace and outer space. The predominate theories regarding delimitation are the Spatialist and Functionalist approaches. Proponents of the Spatialist approach suggest various lines or boundaries based on different applicable standards. The Functionalist approach in the alternative places focus on the type of object in order to determine whether or not it operates in airspace or outer space. Under the Functionalist approach, should the rocket object launched from the Sub-orbital Accelerator be made for atmospheric flight it would function within airspace and in the alternative should the rocket object be made for beyond atmospheric flight it could be considered a space object. Upon re-entry the rocket object remains classified as a space object. Both the Functionalist and Spatialist approaches escape the general acceptance of States- although both theories are still primarily the sources that dominate the thinking of States and bodies such as the United Nations.