Space. The Final Frontier. Where does that final frontier begin though? In your mind? 100 km up? Right here on Earth? Part one of “Where is Space?” discussed the pros and cons of legally defining space in terms of physical properties. Today, we’ll talk about determining where space law applies via two alternative approaches: functional and by fiat. From an intellectual property prospective, defining when and where space law applies is important because the United States has specific laws applying patent law to inventions used in space!
Functionally defined “space”
Unlike the physical approach to defining where space begins, the functionalist approach focuses on the purpose(s) of the craft in question and what the craft is being used for at a specific time. In many ways, this approach to defining where space law should apply finds its roots in maritime law, the law of the sea. Maritime law can apply to a vessel “in navigation.” That term is a legal term of art; it has a specific meaning to maritime lawyers. Like many terms of art, “in navigation” doesn’t mean quite what it sounds like it means! A ship is generally considered “in navigation” when it is carrying goods on the rivers and seas. So far, so good! But a ship is considered “in navigation” even when it is not actively voyaging the seas if it has been constructed, commissioned, and not withdrawn from service. Ships are still considered “in navigation” when they’re sitting at the pier waiting for a new cargo, moored undergoing repair, or taking on fuel and supplies in preparation for another voyage! Additionally, if a ship has been built but is on a shakedown cruise or undergoing sea trials before it is commissioned, it is not considered “in navigation” and some aspects maritime law might not apply to it!
A maritime law style approach to defining where space law applies has advantages and disadvantages, especially when considering reusable vehicles, like Stiga, Xaero, Dragon, SpaceShipTwo, or New Shepard. A maritime law-style approach would reduce or eliminate confusion about whether a suborbitial vehicle which barely crosses the Kármán Line at apogee is subject to space law because the design of the vehicle controls rather than fluctuating atmospheric properties. Potentially, this approach gives the vehicle operator more control over when space law starts being applied to a vehicle. On the other hand, adoption of an “in navigation” analogue for applying space law might lead to space law attaching to a reusable vehicle like the Stiga rocket even when it is planted firmly on Earth and not being actively used. Finally, initial test flights, such as Falcon 9’s COTS Demo Flight 1, which successfully orbited and returned to Earth a test Dragon capsule, might be excluded from some laws controlling space activities because Falcon C1 was akin to a sea trial rather than a routine cargo delivery operation.
“Space” defined by fiat
The last approach to defining where space begins is an arbitrary approach. Organizations like the X Prize Foundation and the Fédération Aéronautique Internationale define space as starting at 100 km above mean sea level. This arbitrary line is based on Kármán’s calculations. This definition has been criticized by some individuals. For example, José Mariano López-Urdiales, the founder of zero2infinity, argues that a 100 km definition of space is “somewhat arbitrary and the view from 36 km [where his ballons travel] offers essentially the same viewing experience.”
In 2002, the case for a 100 km high gateway to space was bolstered when Australia passed a series of amendments to its Space Activities Act. The act now applies to an “area beyond the distance of 100 km above mean sea level.”
The 1976 Bogota Declaration is an interesting approach to creating a legal definition of space. The 1976 Bogota Declaration, also known as the Bogota Convention, states that geostationary orbits (GSO), which are “located at an approximate distance of 35,871 km” above mean sea level, are natural resources dependent on physical phenomena on Earth. These orbits are not part of space and are therefore subject to the control of the countries over which geostationary orbits reside (i.e. equatorial nations). Thus, the Bogota Convention seems to state that space doesn’t begin until you’re more than 10% of the way to the moon! The equatorial nations of Ecuador, Colombia, Brazil, Congo, Zaire, Uganda, Kenya, and Indonesia signed this declaration; however none of these nations have a significant, if any, launch capability. Such a launch capability could be used to enforce the Bogota Convention claims to GSO. Space faring, non-equatorial nations have taken a dim view of the Bogota Convention and are therefore unlikely to assist in its enforcement.