How High the Sky? Studies in Space Law General Editor F.G. von der Dunk (University of Nebraska-Lincoln, College of Law, Space, Cyber and Telecommunications Law Program) Editorial Board E. Back Impallomeni (University of Padua) M. Ferrazzani (Head Legal Department, ESA, Paris) S. Freeland (University of Western Sydney) J. Gabrynowicz (National Remote Sensing & Space Law Center, University of Mississippi) S. Hobe (University of Cologne) R. Jakhu (Institute of Air and Space Law, McGill University) F. Lyall (University of Aberdeen) V.S. Mani (School of Law and Governance, Jaipur National University, Jaipur) K.U. Schrogl (ESA, Paris) L.J. Smith (Leuphana University, Luneburg) Volume 13 The titles published in this series are listed at brill.com/slaw How High the Sky? The Definition and Delimitation of Outer Space and Territorial Airspace in International Law By Thomas Gangale LEIDEN | BOSTON Library of Congress Cataloging-in-Publication Data Names: Gangale, Thomas, author. Title: How high the sky? : the definition and delimitation of outer space and  territorial airspace in international law / by Thomas Gangale. Description: Leiden : Brill Nijhoff, 2018. | Series: Studies in space law ; Volume 13 |  Based on author’s thesis (J.S.D.—University of Nebraska, Lincoln,  2017) issued under title: The definition and delimitation of  outer space and territorial airspace in international law. |  Includes bibliographical references and index. Identifiers: LCCN 2018035518 (print) | LCCN 2018036189 (ebook) |  ISBN 9789004366022 (E-book) | ISBN 9789004366015 (hardback : alk. paper) Subjects: LCSH: Space law | Airspace (International law) Classification: LCC KZD1445 (ebook) | LCC KZD1445 .G36 2018 (print) |  DDC 341.4/7—dc23 LC record available at https://lccn.loc.gov/2018035518 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1871-7659 isbn 978-90-04-36601-5 (hardback) isbn 978-90-04-36602-2 (e-book) Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner. For my mother and for Marilyn ∵ Contents Foreword: Into the Lion’s Den Once Again ix Acknowledgements xiii List of Illustrations xiv Abbreviations xvi 1 Opening Arguments 1 2 The Genesis of the Delimitation Issue 7 3 The Political Approach: A Fistful of Theories 31 4 The Political Approach: For a Few Theories More 49 5 The Spatial Approach: Arbitrary Altitudes 80 6 The Spatial Approach: Natural Phenomena 94 7 The Spatial Approach: Aerodynamic Lift 113 8 The Spatial Approach: Myths and Misconceptions 120 9 The Spatial Approach: Aerostatic Buoyancy 157 10 The Spatial Approach: Lowest Perigee 165 11 The Functional Approach: Security of the State 209 12 The Functional Approach: Its Rise and Stall 233 13 The Functional Approach: What Are Space Activities? 246 14 The Functional Approach: What Are Space Objects?  264 15 What is Outer Space? 280 16 A Temporal Approach 291 viii Contents 17 National Practices and Legislation 309 18 Right of Passage 321 19 Effective Control and State Interest Reconsidered 372 20 A Hybrid Approach 389 21 A Draft Space Delimitation Convention 424 22 Practical Considerations and the Convention 459 23 The Outer Limits 472 24 Summation 490 Appendix 1: Altitudes of Interest with Regard to Spatial Delimitation 499 Appendix 2: Space Object Perigees below 100 Kilometers 506 Appendix 3: Selected Suborbital Flights 508 Appendix 4: Space Vehicle Reentry Altitude and Range Profiles 534 Appendix 5: Space Vehicle Ground Tracks 535 Appendix 6: Draft Convention Regarding Delimitation 560 Appendix 7: Proyecto de Convenio Relativo a la Delimitación 567 Appendix 8: Projet de Convention Concernant la Délimitation 574 Appendix 9: Проект Конвенция Относительно Разграничении 581 Appendix 10: Progetto di Convenzione sulla Delimitazione 589 Bibliography 596 Index 630 Foreword: Into the Lion’s Den Once Again Is there really any such thing as “space law?” How can there be when there is no generally agreed legal definition and delimitation of outer space? Perhaps space lawyers accept the declaration by fiat that there is such a field of law, as they would not want to be practicing a nonexistent field. I certainly would not want to go the effort and expense of earning a juridical science doctorate in a nonexistent field, and so it is a matter of self-interest that I dispel any ques- tion of the existence of the field of space law by devising a legal definition and delimitation of outer space which is technically correct, logically sound, and practical to apply, and which therefore has the highest probability of becoming generally accepted and ratified as international law. This is my second book on outer space law and policy. Although other is- sues of our time interest me, and I have and probably will continue to write about them, I cannot escape being a child of my time, to whom his grandfather pointed out Echo 11 passing across the sky shortly after dusk, to whom his father taught the then nine planets and their sizes and their distances from the sun, who as a first grader watched on a large black-and-white console television set up in the school auditorium the launch of Alan Shepard on a 15-minute journey into space,2 who as a tenth grader watched the first man walk on the Moon,3 who as a college freshman watched with sadness the last men return from the Moon,4 who could not then imagine that he would never see humans go to the Moon again, much less go to Mars, a goal that was in reach.5 In the late 1970s I earned a degree in aerospace engineering and a com- mission in the United States Air Force (USAF). When I was cleared to access Sensitive Compartmentalized Information, in particular certain military space projects such as Gambit6 and Hexagon,7 one of the “made men” invited me 1  Mark Wade, Echo, Encyclopedia Astronautica, http://www.astronautix.com/e/echo .html. 2  Mark Wade, Mercury MR-3, Encyclopedia Astronautica, http://www.astronautix .com/m/mercurymr-3.html. 3  Mark Wade, Apollo 11, Encyclopedia Astronautica, http://www.astronautix.com/a/ apollo11.html. 4  Mark Wade, Apollo 17, Encyclopedia Astronautica, http://www.astronautix.com/a/ apollo17.html. 5  Mark Wade, IMIS, Encyclopedia Astronautica, http://www.astronautix.com/i/ imis1968.html. 6  Mark Wade, KH-8, Encyclopedia Astronautica, http://www.astronautix.com/k/kh-8 .html. 7  Mark Wade, KH-9, Encyclopedia Astronautica, http://www.astronautix.com/k/kh-9 .html.