DRAFT PROTOCOL REGARDING THE DELIMITATION OF OUTER SPACE AND TERRITORIAL AIRSPACE (WITH ANNEX)
(Space Delimitation Protocol)
(Space Delimitation Protocol)
OPSA-2014-01
Revised 13 January 2015
The States Parties to this Protocol,
Recognizing the common interest of all mankind in furthering the exploration and use of outer space for peaceful purposes,
Believing that the future development of international civil aviation and spaceflight can greatly help to create and preserve friendship and understanding among the nations and peoples of the world,
Noting that the Chicago Convention on International Civil Aviation lacks a definition of “airspace,”
Noting that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies lacks a definition of “outer space,” “space vehicle,” “air space,” and “space object,”
Noting that the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space lacks a definition of “spacecraft,” “space object,” “outer space,” and “space vehicle,”
Noting that the Article 1, paragraph (d) of the Convention on International Liability for Damage Caused by Space Objects and Article 2, subparagraph (b) the Convention on Registration of Objects Launched Into Outer Space defines the term “space object” with reference to “space object” itself,
Noting that the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies lacks a definition of “spacecraft” and “space object”,
Noting that the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets lacks a definition of “outer space,”
Recognizing the significant differences between the legal status of airspace and that of outer space,
Convinced that the establishment of a universally agreed precise legal, technical, and political definition of the boundaries separating airspace from outer space, of the term outer space itself, and of spacecraft, will contribute to the strengthening of international cooperation in the field of the exploration and use of outer space for peaceful purposes, and will further the purposes and principles of the Charter of the United Nations,
Have agreed on the following:
ARTICLE 1
DEFINITIONS
1. The term “outer space” means all regions above the
minimum perigee at which it is possible for a space object to
complete at least one revolution of, or to pass on a hyperbolic trajectory,
Earth without propulsion and by virtue of the inertia of its mass, as evidenced
by flights recorded, pursuant to Article 4 of the Convention on Registration of Objects Launched Into Outer Space, with the space object
registry maintained by the Secretary-General of the United Nations and verified by tracking data or telemetry as of 1 January of the
year in which the present Protocol was opened for signature, rounded down to
the nearest whole number of kilometers, and revised according to flights
recorded with said agency as of the first day of every subsequent calendar year
divisible by five, as documented in Annex 1 of this Protocol, any change
therein automatically entering into force on 1 April of the same year;
2. The term “airspace”
means the region of Earth’s atmosphere below the maximum altitude at which it is
possible for an aircraft to sustain straight and level flight but not exceeding
the altitude defined in paragraph 1 of this Article, as evidenced by flights
recorded with the International Aeronautical Federation as of 1 January of the
year in which the present Protocol was opened for signature, rounded up to the
nearest whole number of kilometers, and revised according to flights recorded
with said agency as of the first day of every subsequent calendar year
divisible by five, as documented in Annex 1 of this Protocol, any change
therein automatically entering into force on 1 April of the same year;
3. The term “mesospace”
means the region of Earth’s atmosphere below the altitude defined in paragraph
1 and above the altitude defined in paragraph 2 of this Article;
4. The term “space object”
means any
artificial object, or components thereof, including its ballistic carrier
rocket and parts thereof, either exceeding, or launched with the intention,
declared to the jurisdictional
air traffic control authority, of exceeding, the altitude
defined in paragraph 1 of this Article, or any artificial object that has
achieved orbit of or escape from Earth, or any artificial object launched from
a celestial body that has achieved orbit of or escape from said celestial body,
or any artificial object entering Earth’s atmosphere from outer space as
defined in paragraph 1 of this Article;
5. The terms “spacecraft” and “space
vehicle” mean any
artificial object, or components thereof, excluding its ballistic carrier
rocket and parts thereof launched from either the surface or the atmosphere of
Earth, but including any object which functions as an integral part of its
ballistic carrier rocket before performing other functions in outer space,
either exceeding, or launched with the intention, declared to the jurisdictional air traffic
control authority, of exceeding, the altitude
defined in paragraph 1 of this Article, or any artificial object that has
achieved orbit of or escape from Earth, or any artificial object launched from
a celestial body that has achieved orbit of or escape from said celestial body,
or any artificial object entering Earth’s atmosphere from outer space as
defined in paragraph 1 of this Article;
6. The term “aircraft” means any machine that can derive
support in the atmosphere from the reactions of the air other than the
reactions of the air against Earth’s surface, and neither exceeds, nor departs either the surface or the
atmosphere of Earth with the intention, declared to the jurisdictional air traffic
control authority, of exceeding, the altitude
defined in paragraph 1 of this Article, nor departs either the surface or the atmosphere of Earth as a ballistic carrier rocket;
7. The term “launching State”
means:
a. A State which launches or
procures the launching of a space object;
b. A State from whose territory or facility a space
object is launched.
ARTICLE 2
APPROPRIATION
ARTICLE 3
APPLICABILITY OF INTERNATIONAL LAW
1. In mesospace, the rules and regulations in force for all space objects shall be those
established pursuant to Article 12 of the Chicago
Convention on International Civil Aviation relating to the flight and maneuver
of aircraft in
airspace over the high seas.
2. Each State Party
undertakes to adopt measures to insure that every space object flying in its
airspace or maneuvering within its territory and that every space object for
which it is the launching State, wherever they may be, shall comply with the
rules and regulations relating to the flight and maneuver of space objects
there in force.
3. Each State Party undertakes
to insure the prosecution of all persons violating the regulations applicable
to paragraphs 1 and 2 of this Article.
4. All space objects,
wherever they may be, shall be subject to the
Convention on International Liability for Damage Caused by Space Objects.
5. Nothing in the present Protocol shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a State Party.
ARTICLE 4
INTERGOVERNMENTAL ORGANIZATIONS
ARTICLE 5
RATIFICATION AND ENTRY INTO FORCE
2. This Protocol shall be subject to ratification by signatory States. Any State which does not sign this Protocol before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.
3. This Protocol shall enter into force upon the deposit of instruments of ratification by a majority of States which have registered with the United Nations Office of Outer Space Affairs the launch of spacecraft into orbit around Earth, including all permanent members of the United Nations Security Council.
4. For each State depositing its instrument of ratification or accession after the entry into force of this Protocol, it shall enter into force on the thirtieth day following the date of deposit of any such instrument.
5. The Secretary-General shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession to this Protocol, the date of its entry into force and other notices.
ARTICLE 6
RESERVATIONS
ARTICLE 7
AMENDMENTS
ARTICLE 8
WITHDRAWAL
ARTICLE 9
AUTHORITATIVE TEXTS
ANNEX 1
DELIMITATION OF OUTER SPACE AND TERRITORIAL AIRSPACE
2. Pursuant to Article 1, paragraph 2 of the present Protocol, as evidenced by flights recorded with the International Aeronautical Federation as of the date of this Annex, the maximum altitude at which it is possible for an aircraft to sustain straight and level flight is established as 53 kilometers. (BU60-1, 2002-05-23)
3. This Annex shall be revised according to flights recorded with the space object registry maintained by the Secretary-General of the United Nations and the standards set by and flights recorded with the International Aeronautical Federation as of the first day of every subsequent calendar year divisible by five.
8 comments:
Thomas:
I had some thoughts regarding your treaty proposal:
a. Article 1(3) - What purpose is served by creating the "Mesospace" zone? Since it appears to be treated as airspace in any event, why not call it that? Otherwise you're simply creating a second zone of ambiguity beyond the air/space boundary.
b. Article 7 - The definition of Launching State needs to be broader. It should at least also account for State responsibility under circumstances that involve non-state procurement and operation by citizens.
c. Article 3 - The scope of a State's jurisdiction seems too broad. The level of jurisdictional scope is typically reserved for instruments involving criminal activity. Probably better to use the Outer Space Treaty model here.
d. Article 4 - Given its customary status, the Outer Space Treaty requirement seems redundant.
e. Article 5 (3) - The reference to UN Security Council permanent members is redundant as all of those States have registered objects in the past.
f. Article 5(4) - Why delay entry into force for superfluous accessions? The significant act is the ratification itself. There is no significant benefit to delaying responsibility of the State under this instrument.
g. Article 6 - This is usually a non-starter for the United States given its nearly unique constitutional relationship with international law. Only the most important instruments escape the US boilerplate reservation.
h. You might want to consider the tidal analogy for measurement of territory from UNCLOS III when defining the air space boundary.
Response, Part 1
Thank you for your comments. It is always refreshing to communicate with a fellow scholar in this field.
Q: Re: Article 1(3) - What purpose is served by creating the "Mesospace" zone? Since it appears to be treated as airspace in any event, why not call it that? Otherwise you're simply creating a second zone of ambiguity beyond the air/space boundary.
A: There is no ambiguity. Mesospace is international airspace that is above territorial airspace and is below outer space, hence "meso." It serves several purposes. Its lower boundary is the limit of territorial sovereignty, its upper boundary is the limit of outer space; therefore it is a region of free, unrestricted passage. Since the boundary of outer space is subject to downward revision, without mesospace, this downward revision would diminish the limit of state sovereignty; there is no historical precedent for this, and states would reject the treaty. Since the boundary of territorial airspace is subject to upward revision, without mesospace, this upward revision would diminish the limit of outer space; although the legal consequences of this are unforeseeable, they are probably greater than zero, and they should be avoided. In contrast, mesospace is merely a region of transit between territorial airspace and outer space, it is not permanently inhabited by any objects, and therefore the legal consequences of diminishing this region should be negligible, and probably zero.
Q: Re: Article 1(7) - The definition of Launching State needs to be broader. It should at least also account for State responsibility under circumstances that involve non-state procurement and operation by citizens.
A: This paragraph is verbatim Article 1, paragraph c of the Liability and Article 1, paragraph 1 of the Registration Convention What would you suggest as an improvement?
Q: Re: Article 3 [?] - The scope of a State's jurisdiction seems too broad. The level of jurisdictional scope is typically reserved for instruments involving criminal activity. Probably better to use the Outer Space Treaty model here.
A: The reference is ambiguous; however, most of Article 3 is verbatim the last sentence of Article 12 of the Chicago Convention, mutatis mutandis. What would you suggest as an improvement? What model of the Outer Space Treaty would you apply here, given that this paragraph applies to activities in territorial airspace and in international airspace, not in outer space?
Response, Part 2
Q:. Re: Article 4 - Given its customary status, the Outer Space Treaty requirement seems redundant.
A: Possibly, but this declaration makes it clear that the controlling liability regime is the 1972 Liability Convention and not the 1952 Rome Convention and its protocols. It is better to be redundant than ambiguous.
Q: Re: Article 5 (3) - The reference to UN Security Council permanent members is redundant as all of those States have registered objects in the past.
A: It is not redundant. Without this provision the protocol could enter force without any of the Permanent Five; e.g. Israel, India, Iran, Japan, North Korea, South Korea. I want all of the Permanent Five to be States Parties before the protocol enters force.
Q: Re: Article 5(4) - Why delay entry into force for superfluous accessions? The significant act is the ratification itself. There is no significant benefit to delaying responsibility of the State under this instrument.
A: This paragraph is verbatim Article 19, paragraph 4 of the Moon Agreement, mutatis mutandis. A number of treaties have similar provisions. What is your specific objection to a thirty day period?
Q: Re: Article 6 - This is usually a non-starter for the United States given its nearly unique constitutional relationship with international law. Only the most important instruments escape the US boilerplate reservation.
A: Since the United States has consistently opposed any effort to define and delimit outer space for 60 years, the entire purpose of the protocol may be considered a non-starter. Other than the provisions that define and delimit territorial airspace and outer space, the language of the protocol is taken from treaties to which the United States is already party, so it is scarcely credible that the United States would enter reservations regarding any of that. Were the United States to enter a reservation to any provision of Articles 1 through 3, it would be "incompatible with the object and purpose of the treaty," violating Article 19 of the 1969 Vienna Convention on the Law of Treaties.
Q: You might want to consider the tidal analogy for measurement of territory from UNCLOS III when defining the air space boundary.
A: Specifically, what do you have in mind?
If my responses do not adequately address your concerns, please, let’s keep the conversation going.
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Lawrence D. Roberts: I apologize, Thomas, but I'm afraid I will have to respond in a piecemeal fashion as time permits.
Lawrence D. Roberts: Re; The Art 1(3) Mesosphere issue.... I get it. You're trying to create a transitional zone of limited consequence as a means of politically papering over the boundary issue. The problem as I see it, however, is that the zone as you define it is the functional equivalent of outer space without calling it that. You STILL have the ambiguity of a volatile border with the added debate of a second borderline issue in the event of a dispute. Personally, I would go the opposite way given that the region itself has limited circumnavigational utility in any case. Why not max out the available airspace claims from the get go and include your mesospheric region within airspace? The net result, assuming a maximalist approach, would be precisely the same as the scope of sovereignty over territorial waters under UNCLOS III. Moreover, nations would be more comfortable signing on since they would be assured of maximum airspace protection.
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Thomas Gangale: Piecemeal works for me. We're considering a complex issue. I'm just happy to have a scholarly discourse.
Thomas Gangale: Mesospace is the functional equivalent of international airspace, not outer space; its controlling legal regime is the Chicago Convention with regard to the rules and regulations relating to flight and maneuver. See Article 3, paragraph 1 of the protocol.
There is no "ambiguity of a volatile border," and there is no debate regarding either of them. They are defined, orderly, and stable borders that are defined in Annex 1, and they are subject to adjustment, not by debate, but according to a defined, automatic process every five years.
If, as you suggest, one were to "max out the available airspace claims from the get go and include your mesospheric region within airspace," the result would be that once a new lowest perigee of a satellite were registered pursuant to the Registration Convention, the limit of territorial airspace would be contracted. Show me a nation-state that will cede some of its territorial sovereignty without a fight. The legal definition of mesospace solves that problem. Lowering the altitude definition of outer space based on a new lowest perigee will merely contract the limit of an international airspace, so who will care?
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Lawrence D. Roberts: I don't follow. On the one hand, you're telling me there is ALREADY an automated process by which variable borders shift between airspace and mesospace. On the other, you're saying that nations won't give up sovereignty once granted. Are you saying that the reallocation process currently only proceeds in one direction? To my maximum airspace point, there is no possibility of contraction as the airspace zone can only expand, not contract. Any retreat of atmospheric volume does not concurrently reduce a nation's airspace. Yes, there's a bit of generosity to the airspace boundary in such event, but realistically speaking, maintaining such extremely low orbits are impractical in any event.
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Thomas Gangale: At this time there is no process, neither automated nor otherwise, since the borders are undefined in current international law. The purpose of the protocol is to establish defined borders subject to automatic adjustment every five years. There is no defined sovereign territorial limit that nations would cede by becoming parties to the protocol; rather, what nations would "give up" is the present state of ambiguity, and in return they would gain legal certainty.
The adjustment of the lower limit of mesospace is upward based on the official IAF record for either the highest sustained, level aerodynamic flight or the highest aerostatic flight. The adjustment of the upper limit of mesospace is downward based on the lowest perigee of a satellite registered pursuant to the Registration Convention. Annex 1 of the protocol would be automatically updated to reflect these technological achievements at predictable five-year intervals.
Regarding your maximum airspace point, what is your definition of airspace and on what basis would it expand? I have not seen this. Regarding your phrase, "maintaining such extremely low orbits," what is your legal definition of "maintaining?"
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Thomas Gangale:
Corrigendum: In your first message (13 January 2015 15:25 UTC), I took your reference to Article 4 to mean Article 3, paragraph 4, since by your preceding reference to Article 7 you clearly intended Article 1, paragraph 7. Referring to Article 4, the reference to the Outer Space treaty is not redundant. It establishes the requirement that any intergovernmental organization that wishes to accept the rights and responsibilities of the protocol must have States Parties to the Outer Space Treaty as the majority of its members.
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