Uncertainty in the definition of “outer space” and “space object”: a problem for suborbital flights and other “New Space” activities?
Uncertainty in the definition of “outer space” and “space object”: a problem for new space activities?
As space companies plan more and more ambitious missions to space which go beyond the traditional satellite business – such as non-earth-orbiting satellites, space resource activities or suborbital flights,[1] – it gives us the opportunity to discuss some traditional space concepts that are still unclear. The uncertainty could have at some point a pretty relevant practical implication in point of proper license/authorization.
2.1.2 (a) What is a “space object”?
Imagine you are a space company that plans to perform a suborbital flight business.[2]
A sub-orbital flight is a flight up to a very high altitude which does not involve sending the vehicle into orbit. It should be noted that ‘sub-orbital trajectory’ is defined in the legislation of the United States as (49 U.S.C. § 70102 (20) (2004)): “The intentional flight path of a launch vehicle, re-entry vehicle, or any portion thereof, whose vacuum instantaneous impact point does not leave the surface of the Earth. [3]
In 2005, the ICAO (“International Civil Aviation Organization”) studied the concept of sub-orbital flights in relation to the Convention on International Civil Aviation.[4]
The first problem for a suborbital flight business is definitional: Is the vehicle an “aircraft”[5] or a “spacecraft”?[6] In fact, the vehicle would be a hybrid between the two, having some elements of a rocket (spacecraft) and behaving like an aircraft in some parts of the flight.[7] However, if commercial suborbital vehicles “are considered (primarily) as aircraft, when engaged in international air navigation” they would be regulated by the “Chicago Convention, mainly in terms of registration, airworthiness certification, pilot licensing and operational requirements.”[8] “Sub-orbital vehicles considered as civil aircraft crossing foreign airspaces could then be treated as engaging in international air navigation, for which ICAO would be competent.”[9]
The FAA granted to SpaceShipOne, the first private suborbital vehicle,[10] a launch license as a “Reusable Launch Vehicle” (a rocket) but did not register with the UN as a space object. [11] The FAA found a second vehicle for a suborbital flight, Paragon,[12] to be a spacecraft because of the technology it used to keep humans alive was the same as the space shuttle.[13] Of course, a vehicle can be a “spacecraft” for domestic law and not a spacecraft under international law, so registration as a spacecraft might not be necessary. This conclusion, however, creates confusion, which certainly do not help financing.
The FAA followed one type of “functionalist approach” in licensing Paragonlooks at the function of a vehicle to determine which laws apply (airspace laws or outer space laws). However, functionalist approach is not a monolith; in fact, it has variations, in as much it can look at the functions of a vehicle or at the nature of the activity performed by it. For example, ICAO in its 2005 study followed a functionalist approach, looking at the nature of the activity performed: “flights which would be passing merely in transit through (sub)orbital space in the course of an earth-to-earth transportation would remain subject to air law.”[14] The ICAO also noted how the definition of outer space had been debated inside the UN Committee on Peaceful Use of Outer Space (UNCOPUOS)[15] for decades,[16] and how the debate between “spatialist approach (which looks only at the altitude from Earth) or “functionalist approach” (with its several variations) remained unsolved.[17] The ICAO concluded that only under a “functionalist approach” can the issue of suborbital flights be solved:[18] under a “spatialist approach”, it is impossible to say which laws apply to suborbital flights, since there is “no clear indication in international law on the delimitation between airspace and outer space which would permit to conclude on the applicability of either air law or space law to sub-orbital flights”. [19] Instead – the ICAO concluded – under “functionalist approach”, in suborbital flights “air law would prevail since airspace would be the main centre of activities.” [20]
The FAA and ICAO, applying two variations of the functionalist approach, reach opposite results regarding which law applies to suborbital flights.[21] Therefore, even with a functionalist approach, uncertainties remain, which could create a problem in raising capital because the debtor would be unable to present evidence of proper license/authorization.
The categorization problem might not exist only for suborbital vehicles. Incredibly, it could exist also for satellites. Nobody doubts that a traditional satellite is a space object. But with lower earth orbit (LEO) “small satellites (micro-, nano-, pico-, cube-, PocketQub, and femto sats),[22] which are as small as 5 cm in size and weigh as little as 0.2 kg,” the discussion can become complicated.[23] Proper licensing might not be the only problem. Smallsats fly much lower than traditional satellites;[24] considering the uncertain definition of “outer space” and technological development that pushes the altitude of these objects lower and lower, a risk for these smallsats if a “spatialist approach” were to be accepted. If “space begins” at 100km, as some “spatialists” claim,[25] then any activities to reach that altitude over a country would be a violation of its sovereign airspace. Some states might find that smallsats are violating the sovereignty of their airspace and shut them down. [26] It has never happened, of course, but the situation could change. This could be another aspect of concern for creditors.
2.1.2(b) What is “outer space”?
The definition of “outer space” is one of the most difficult issues in space law. No convention defines it. As mentioned, there are basically two approaches, i.e., a “spatialist approach” which seeks to identify a precise altitude limit between airspace and outer space and a “functionalist approach” which looks either at the nature of activities performed or at the type of vehicle used.[27]
In the spatialist approach, at least eight possible criteria have been identified for the demarcation of the boundary between airspace and outer space, but the most widely accepted limitation focused on the lowest perigee of an orbiting satellite, i.e., altitude of 100/110 km above sea level.[28] COPUOS rejected the specialist approach1967 the COPUOS Scientific and Technical Subcommittee found that “at that time no scientific and technical criteria could be found which would permit a precise and lasting definition of outer space.”[29] At least among Western delegations, this attitude and conclusion appear to be unchanged.[30]
For the functional approach, a spatial delimitation is unnecessary: the only necessary distinction is the one “between aeronautical and space activities, wherein the latter should be subject to space law irrespective of an altitude at which they were carried out.”[31]
Many states do not feel that the adoption of a definition of “outer space” is a pressing matter; in fact, many countries do not feel that a definition is even necessary; on converse a definition would have unpredictable consequences and could limitation technological development.[32]
While this is a reasonable position, financers of smallsats constellation might be looking to greater predictability. While certainly space companies have raised capital for LEO sats,[33] and there is little doubt that LEO sats are space objects in orbit, regardless of their size and their altitude,[34] the industry – and especially companies engaged in “new space” – could benefit from more clarity on the definition of “outer space” and “space object”.
[1] For example, suborbital flights are currently being planned and are in various stages of development by companies like Blue Origin, Virgin Galactic, and SpaceX. Blue Origin, founded by Amazon CEO Jeff Bezos, is developing the New Shepard spacecraft for suborbital flights. The company has already completed several successful test flights of the vehicle, and they plan to begin commercial operations soon time in the future. Virgin Galactic, founded by billionaire Richard Branson, is also developing a suborbital spacecraft called SpaceShipTwo. The company has completed multiple test flights of the vehicle and has already sold tickets for suborbital space tourism flights, with commercial operations also expected to begin sometimes in the future.
While SpaceX, founded by Elon Musk, is primarily focused on orbital spaceflight, it has also announced plans to use their Starship spacecraft for suborbital point-to-point travel on Earth. However, this is still in the development phase and has not yet been tested. Overall, suborbital flights are becoming an increasingly popular area of development in the private spaceflight industry, with several companies actively working on spacecraft for this purpose.
[2] Committee on the Peaceful Uses of Outer Space (COPUOS), Legal Subcommittee, Concept of Suborbital Flights: Information from the International Civil Aviation Organization (ICAO), dated 19 March 2010, referring to ICAO Secretariat’s letter dated 17 March 2010 stating that ICAO was “aware of the fact that commercial suborbital operations are being planned by various entities” and ICAO believed that the study performed by ICAO in 2005 is still current. The study in question is ICAO Secretariat’s study on the Concept of suborbital flights (C-WP/12436), dated 30/05/05 (“ICAO’s 2005 Study on Suborbital Flights”). COPUOS documents is available at https://www.unoosa.org/pdf/limited/c2/AC105_C2_2010_CRP09E.pdf (Last visited on Dec. 9, 2022) and contains the text of ICAO’s 2005 Study on Suborbital Flights.
[3] Id. at 2.
[4]Id.
[5] “Aircraft. Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.” Id. “Aeroplane. A power-driven heavier-than- air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight.” Id.
[6] “Neither the Convention on International Liability for Damage Caused by Space Objects … nor the Convention on Registration of Objects Launched into Outer Space … offer a definition of ‘space object’ but they stipulate that a space object includes its component parts as well as the launch vehicle and parts thereof.” Id. at 3.
Such vehicles could fulfill the principal elements in the definition of aircraft and be used as such during a portion of their flights, but they offer some characteristics of a rocket as well. It is likely that other vehicles engaged in the future in such sub-orbital flights would similarly be of an hybrid nature. Id.
[8] Id.
[9] Id. at 4. ICAO has jurisdiction when you have a “international air service” pursuant to Part IV of Chicago Convention, i.e., an “air service which passes through the air space over the territory of more than one State”. Id.
[10] The first private suborbital flight was in 2004 (SpaceShipOne): the vehicle “complete[d] two sub-orbital flights within two weeks carrying weight equivalent to three human adults up to about 62.5 miles (100 km).” Id. at 2.
[11] SpaceShipOne was granted a launch license by the Office of Commercial Space Transportation (AST) of the FAA as a “Reusable Launch Vehicle” (RLV), classified as a rocket but did not register in the UN Register of Space Objects as a space object. Id. at 3.
[13] “Paragon plans the flight of a capsule that can carry eight people to over 30 kilometers (98,425 feet) by means of a helium balloon.” Letter of FAA to Pamela L. Meredith, counsel for Paragon dated Sept 26, 2013 at 1 (“FAA Letter to Meredith”), available at https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2013/Meredith-ZuckertScoutt&Rasenberger_2013_Legal_Interpretation.pdf. Last visited on Dec. 9, 2022.
Given the proposed shirt-sleeves environment, the duration of its mission and the physiological responses of a human body to the altitude at which Paragon intends its World View capsule to operate, the capsule needs to be built to operate in outer space … Regardless of whether 30 kilometers constitutes outer space-and the FAA renders no opinion on that question-a person would experience the same physiological responses at 30 kilometers as if exposed to the environment of low-Earth orbit (LEO). Thus, Paragon’s capsule will need to be space qualified, and Paragon intends it to be able to operate in the equivalent of low-Earth orbit. Id. at 3.
[14] ICAO’s 2005 Study on Suborbital Flights at 4.
[15] Formed by the UN General Assembly in 1959, the COPUOS’s mandate is to foster “international cooperation in peaceful uses of outer space,” to study “space-related activities that could be undertaken by the United Nations, encouraging space research programmes” and to study “legal problems arising from the exploration of outer space.” COPUOS “was instrumental in the creation of the five treaties and five principles of outer space”. Committee on the Peaceful Uses of Outer Space, available at https://www.unoosa.org/oosa/en/ourwork/copuos/index.html. Last visited Nov 4, 2022.
[16] ICAO’s 2005 Study on Suborbital Flights at 4.
[17] Id.
[18] Id. at 5.
[19] Id. at 5.
[20] Id.
[21] The application of a functionalist approach can lead to the conclusion that a suborbital flight should be subject to outer space laws, looking at the vehicle (as the FAA did in Paragon) or to airspace laws, looking at the activity, as the ICAO did.
[22] What are SmallSats and CubeSats?, available at https://www.nasa.gov/content/what-are-smallsats-and-cubesats. Last visited on Nov 4, 2022.
There is no internationally agreed upon specific definition of ‘small satellite.’ This term undoubtedly indicates a space object as understood within the scope of the Registration Convention, which applies to small satellites in the same way as it does to big satellites. … their operational use is expected to increase exponentially for several commercial purposes (e.g. Earth observation, communications, high- speed data connectivity, education, etc.) and military applications. …. There have been several estimates about the number and the economic value of such satellites. … Euroconsult forecasts the launch of more than 3600 smallsats by 2026 with their total market value of approximately $22 billion. Jakhu’s Critical issues related to registration at 413.
[24] Smallsats fly at an altitude of 160-320 kilometers. What is a Smallsat? available at https://www.blacksky.com/what-is-a-smallsat/. Last visited on Nov. 9, 2022.
[25] “If a spatialist approach is adopted, the boundary should be set at an arbitrary altitude. … However, despite several states have set an altitude limit in their domestic space legislation, falling the [Kármán line] —are converging on an altitude of between 100 and 110 kilometers above sea level.” Online Editor, Where Does Outer Space Begin?, Denver Journal of International Law and Policy, available at http://djilp.org/where-does-outer-space-begin/. Last visited on Dec. 11, 2022.
[26] Marietta Benkö & Englebert Pleascher, Space Law: Reconsidering the definition/delimitation question and the passage of spacecraft through foreign airspace (Eleven International Publishers, 2013), 31 (discussing the existence of an international “right of passage”, i.e., when an object has to transit over the territory of a country at less than 100 or 80 miles of height, to reach its final destination), 32 et seq. (“Benkö & Pleascher, Space Law: Delimitation Question”).
[27] See Part II § 1.2(a).
[28] Benkö & Pleascher, Space Law: Delimitation Question at 31.
[29] Id. at 40.
[30] Id.
[31] Id. at 35.
[32] Id. at 41.
[33] See, e.g., Spire Global Inc. Spire Obtains $120 Million Credit Facility from Blue Torch Capital, available at https://ir.spire.com/news-events/press-releases/detail/114/spire-obtains-120-million-credit-facility-from-blue-torch. Last visited on Dec. 12, 2022.
[34] LEO satellites fly low but (currently) still much higher than airplanes do.
[A LEO sat is positioned] normally at an altitude of less than 1000 km but could be as low as 160 km above Earth – which is low compared to other orbits, but still very far above Earth’s surface.
By comparison, most commercial aeroplanes do not fly at altitudes much greater than approximately 14 km, so even the lowest LEO is more than ten times higher than that. European Space Agency (ESA), Types of orbits, available at https://www.esa.int/Enabling_Support/Space_Transportation/Types_of_orbits. Last visited on Dec. 19, 2022.