Suborbital Flights and the Delimitation of Air Space Vis-À-Vis Outer Space: Functionalism, Spatialism and State Sovereignty

Abstract

This article examines the definition and delimitation of outer space and its relationship to air space, and proposes a remedy to the uncertainty created by the significant differences in the Air Law and Space Law regimes. COPUOS and the academic community have discussed and debated the issue of the definition and delimitation between air space and outer space for more than five decades, without achieving consensus. This article examines the relationship between this issue and the definition of suborbital flights for scientific and/or for human transportation. The principal purpose of this article is to summarize the theories and approaches that have been proposed on this topic, and the legal regime(s) that apply to such flights. This article ultimately proposes a solution to the dilemma as to where the altitudinal lines between air space and outer space should be drawn, which in turn will clarify the jurisdictional lines between Air Law and Space Law.

Keywords: Space Law, Outer Space, Air Space, Air Law, Safety