The Sky Is The Limit - But Where Does It End?

Paper number

IAC-05-E6.2.01

Author

Dr. Frans G. Von der Dunk, International Institute of Air and Space Law, The Netherlands

Year

2005

Abstract

The discussion on the delimitation, and hence definition of 'outer space' as an area, and subsidiary 
to that on the need or desirability to have such a delimitation and definition, harks back to the 
beginning of the space age. Until then, it had been quite clear that every state exercised full 
sovereignty over the sky above its territory and territorial waters, whilst no one felt the need for 
finding out how high upward such sovereignty would exactly extend. With Sputnik, for the first time 
the practical question arose however whether there indeed was an upper limit to airspace, and if so, 
where it would lie. The debate since then has mainly been a theoretical one, partly because several 
important space faring nations did not consider it necessary or even appropriate to establish a 
legally relevant fixed boundary between 'outer space' and 'airspace' as 'geographical' areas for 
human activities.
It is the main thrust of this paper, firstly, that this situation is changing. It is contended that 
in particular the recent adventures of SpaceShipOne which for a brief moment 'dipped' into outer 
space - if one agrees that outer space begins at an altitude of 100 km - bring the question of where 
'outer space' begins back on the table. Consequently, wherever that question is indeed considered 
relevant, in the absence of any international agreement on such a delimitation or definition, viz. 
the need or desirability to establish one, other legally relevant means are sought to deal with the 
issue.
Secondly, such development of alternate means has, in turn, its own indirect impact at the 
international legal plane. Such various developments as Australian national law referring to a lower 
boundary for outer space and the need to choose for certification of SpaceShipOne and crew may, in 
the end, through the mechanism of formation of international custom and opinio juris, lead to a 
customary legal rule.
The current paper thus, firstly, briefly recapitulates the discussion of the last decades on 
delimitation and definition of outer space, secondly, refers to a few events which directly touch 
upon this issue, thirdly, tries to analyse the legal aspects of the solutions chosen to deal with 
that, including the vexing question of formation of customary law, and finally tries to draw some 
conclusions with respect to the overarching question: if the sky is the limit, where does it end?

Abstract document

IAC-05-E6.2.01.pdf

Manuscript document

IAC-05-E6.2.01.pdf (🔒 authorized access only).

To get the manuscript, please contact IAF Secretariat.