Data Analysis

For the purpose of claiming sovereignty and exercising jurisdiction, the precise definition and delimitation of the outer space is necessary. When attempting to differentiate between permitted and prohibited activities in outer space, it is essential to have operational definition of the boundary between airspace (where certain activities are allowed) and outer space (where comparable activities are banned, restricted or otherwise regulated). Unfortunately however, there is as yet no known universally agreed precise legal, technical or political definition of either the boundaries separating airspace from outer space or of the term outer space itself.⁴²⁸

It has become apparent that the usqueadcoelumrule, which provides for States sovereignty over their territorial airspace to an unrestricted extent, was not viable where space exploration was concerned. To obtain the individual States‟ consents prior to the passage of satellite and other vehicles orbiting more than 100 miles above their surface would just prove cumbersome in the extreme and in practice, States have acquiesced in

426Brazil, Columbia, Congo, Equador, Indonesia, Kenya, Uganda and Zaire.

427Space law, policy and doctrine <www.au.af.mlau/awc/space/primer/space-law-policy- doctrinepdf>

accessed on 23 February 2014.

428H. C.Harnsard, „Legal Theories on the Spatial Demarcation Boundary Plane‟ <www.herts.ac uk/-data/assets/pdf-file/0010/...HLJ-v112-oduntan.pdf>accessed on 23 February 2014.

163 such traversing.⁴²⁹ It is a trite observation today that there exists a great deal of difference between

the legal status of the airspace and that of outer space. In the former, States possess exclusive jurisdiction and in the later there can be no exercise of sovereignty and territorial jurisdiction.⁴³⁰ The legal distinction between the airspace and outer space and the two bodies of law governing them is not only factual but ultimately necessary.

The concept of sovereignty, it would appear, has not risen above the bounds of the earth‟s airspace. It actually makes no sense in conventional terms to speak of sovereignty in outer space seeing that,ab initio,international legislation developed to govern outer space has been unequivocal on the prohibition of the application of State sovereignty in outer space. Ofparticular importance on this point are the earlier- mentioned Treaties- the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 1967⁴³¹ and the Agreement Governing the Activities of the States on the Moon and other Celestial Bodies 1979.⁴³²

However, the concept of jurisdiction, on the other hand, applies to outer space and is recognized in the entire framework for regulation of man‟s activity wherever it occurs in the entire universe.⁴³³ The concepts of „province of mankind‟ and „common heritage of mankind‟ have been developed in space law to govern outer space, thereby establishing

429M. N. Shaw, opcit, p.480.

430G.Odunta, „The Never Ending Dispute: Legal Theories on the Spatial Demarcation Boundary Plane between Air space and Outer space‟(2003) 1 Hertfordshire Law Journal, 64-84.

431Also known as the Space Treaty.

432Also known as the Moon Treaty or Moon Agreement,UN Doc.A/34/664 (1979).

433Examples of such provisions include, Article 8 of the Space Treaty, (1967), which states that a State party on whose registry an object launched into outer space is carried shall retain jurisdiction and control over it; Article 12 (1) of the Moon Treaty confers jurisdiction and control over astronauts who are nationals of the sending State and Article VIII of the Space Treaty, (1967) also confers jurisdiction on the State of registry irrespective of the nationality of all persons aboard the space vehicle.

164 outer space as an international public utility. Article 1 of the Space Treaty (1967) states that:

The exploration and use of outer space, including the Moon and other Celestial Bodies, shall 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.

Furthermore, Article II (I) of the Moon Agreement (1979) provides that “The Moon and its natural resources are the common heritage of mankind”. Yet there is no clear guidance in any of these treaties as to where outer space begins. What remains to be archived by internationallawyers is to determine where exclusive sovereignty ends and where the province of all mankind begins.⁴³⁴ The demarcation point is still an open question and unsettled issue in Air and Space Law. It is safe to argue that this point must exist somewhere in between the airspace, the atmosphere and outer space.⁴³⁵

It has been argued that, precisely where the boundary lies is difficult to say and will depend upon technological and other factors,⁴³⁶ but figures between 50 and 100 mile above have been put forward.⁴³⁷ The boundary problem involves a number of pertinent and distinct issues. For instance, boundaries might be set in space for many different

434G.Odunta, op cit.

435Ibid.

436M. N. Shaw, op cit.

437The UK has noted, for example, that „for practical purpose the limit (between airspace and outer space) is considered to be as high as any aircraft can fly‟(1999) 70 BYIL, 520.

165 purposes. For example, space-craft using nuclear fuels might be prohibited from operating below certain altitudes; launchers might be prohibited from discharging waste in certain layers of the atmosphere; space craft returning to earth or moving away from it might be required to control their flight in such a manner as may be directed by the super-adjacent State.⁴³⁸

There is a strong feeling by the author of this work that one of the major reasons for the exercise of sovereignty by States especially as it touches the air territory is for security and protection of the territory from undue exposure to the damaging consequences of the activities in the air by other States. On this note therefore, it is suggested here that in addition to the theories postulated by some international figures, another criterion upon which demarcation of airspace from outer space should be based is the direct impact/consequence of the space activity on the State above whose territory the activity is carried out. Following this reasoning therefore, theheight or point in the space from where the activities in the space must have lost any direct consequence or impact on the State concerned should be marked as the dividing line between the airspace and outer space.