The X-15[1] was capable of reaching altitudes of more than 350,000 feet and speeds of up to Mach 6.7 (more than 5,100 miles per hour). The Kármán line[2], which is frequently regarded as the limit between Earth’s atmosphere and space, was also passed by the X-15. The Kármán line, however, is disputed and not an accepted international border.
Between 1959 and 1968, the X-15 programme, a collaboration between NASA and the US Air Force, flew 199 times[3]. These missions contributed to improvements in aircraft technology by providing crucial data on high-speed and high-altitude flying. According to NASA, the X-15 achieved multiple height and speed records, pushing the limits of manned flight. The knowledge gained from the X-15 programme was critical in the development of future spacecraft and hypersonic vehicles.
Territorial integrity[4] is the right of a State to control its own territory and to prevent other governments from infringing that right. The idea of territorial integrity may be affected by the absence of a precise definition of space. A plane like the X-15 might, theoretically, enter another nation’s airspace without that nation’s consent if it were to travel to the edge of space. This can be a breach of territorial integrity.
Due to the lack of a precise definition of where outer space begins, it is challenging to identify whether an aircraft has violated another country’s airspace. This ambiguity may result in diplomatic disagreements or even armed confrontation. For instance, a nation might see the approach of an X-15 or other comparable aircraft into its airspace as hostile and take appropriate action.
This problem isn’t specific to the X-15. Other aircraft that operated at high altitudes and might infringe on other nations’ airspace included the SR-71 Blackbird[5] and the U-2 espionage plane[6] and more recently the Spaceship Two[7]. However, the X-15 presents a particularly difficult scenario due to its extremely high speeds and altitudes.
The issue of territorial integrity and airspace violation extends beyond the X-15 to other high-altitude aircraft, such as the SR-71 Blackbird and U-2 espionage plane. These aircraft also faced challenges in navigating the complex airspace regulations and avoiding potential diplomatic disputes. The emergence of space tourism vehicles like Spaceship Two further complicates the matter, as they venture close to the edge of space. Striking a balance between territorial integrity and the advancement of aerospace technology requires international cooperation and clear regulations
Outer space is not subject to national appropriation, according to the 1967 United Nations Outer Space Treaty[8], but it doesn’t specify where it starts. It is also a well-established principle of international law that national sovereignty in terms of airspace does not extend indefinitely upwards[9].
The X-15 is just one illustration of a plane that might be difficult in this sense but it is simultaneously the most important as the X-15 is capable of being retrofitted with external fuel bays, thus implying that these bays are modifiable and can be retrofitted with weapons, additionally this is the only aircraft to have passed the Karman line which wasn’t purely intended for passenger transport i.e. space tourism. The only other aircraft to have achieved this feat were the Space ship one[10] and the Space ship two. With the latter still being in the
testing phase; these aircraft were developed with their primary aim being recreation.
The X-15, with its unique capabilities and potential for retrofitting, raises additional concerns regarding the militarization of space. The X-15’s ability to carry external fuel bays, which could potentially be modified to carry weapons, adds a layer of complexity to the issue of territorial integrity. While the X-15 was not primarily designed for passenger transport or space tourism, it highlights the need for clear regulations and international agreements to prevent the weaponization of space
The lack of a clear definition along with the issues of territorial integrity which can lead to military aggression also pose a significant problem on the issues of regulation in the context of liabilities, according to article 6 of the 1967 United Nations Outer Space Treaty, States are liable for all activities of organisations operating in outer space regardless of whether they are governmental entities or not. This places a duty of care on the part of the State. The state cannot reasonably regulate all of these organisations if the very nature of outer space is not clear.
To address the challenges posed by the lack of a clear definition of outer space, international treaties and agreements have been established. The 1967 United Nations Outer Space Treaty is a cornerstone of space law, prohibiting national appropriation of outer space. However, it does not provide a precise boundary for the beginning of space. Despite this, nations must adhere to the principle of national sovereignty in airspace, which has defined limits upward from the Earth’s surface
In the Era of commercialisation of space as outlined by companies like Blue Origin, SpaceX, Virgin Galactic and many more, regulation is of the utmost importance as most of these companies are offering recreational trips to space to passengers of varying nationalities. These missions use a variety of suborbital vehicles some of which feature aerodynamic control surfaces like the space ship one and two, but the mere presence of these surfaces do not make these vehicles come under the definition of aircraft, as their primary intent is to go to space. Because of the ambiguity on the delimitation of space, space-faring vehicles cannot be effectively defined and subsequently regulated.
Without a clear definition, a state cannot know the threshold beyond which an assertion of its power will be viewed as provocative and stop short of that line. Only when the frontiers of national sovereign rights in space are clearly defined, will deliberate actions of hostility be the sole factor leading to war; otherwise, pressure from conflicting policies may lead to war against the participant’s will.
There is no universally accepted definition of outer space because the term can be used to mean several things depending on the situation and intent. There are ongoing discussions regarding where exactly outer space begins, despite the fact that there is an international legal definition of it.
The height at which outer space begins is the principal point of contention among space-faring nations. Some nations hold that the Karman line, which is 100 kilometres above sea level, marks the beginning of space. Others contend that the start of space is higher still, at 80 or even 120 kilometres above sea level.
There are 2 main approaches which are contemporarily used to classify outer space and the vehicles used therein; The Functionalist Approach and the Spatial Approach.
The functionalist approach takes into consideration the nature of the vehicle used and what its primary intent is i.e. if a vehicle is meant to go to space but also features aerodynamic control surfaces which qualify it as an aircraft, it should still be considered as a spacecraft due to its primary nature.
The Spatial Approach on the other hand makes use of technical and scientific definitions of altitude of aircraft, height above sea level, layers of the atmosphere etc. The known delimitations between air and space based on the Spatial approach can be found on table 1, page 5-7, in the following citation[11].
These nations’ considerations are mostly driven by their own interests, whether they be commercial, scientific, or military. For instance, nations with strong military forces may favour a lower definition of outer space since it would allow them to continue using lower-altitude military satellites. A greater altitude for the concept of outer space, however, may be supported by nations with advanced space programmes who need more room for commercial or research operations.
Furthermore, some nations can consider the concept of space to be a crucial component of their sovereignty or sense of national identity. They might favour a definition that is consistent with their historical or cultural viewpoints, which may differ from those of other nations. An example of this might be the award of the space badge by the U.S. military, currently this badge[12] is awarded to military personnel who cross the altitude of 50 miles regardless of the nature of their mission. If the U.S. ratifies the Karman line as the international standard it would mean that they have to rescind these badges/honours bestowed.
As space exploration enters an era of commercialization, with companies like Blue Origin, SpaceX, and Virgin Galactic offering suborbital trips to space, the need for effective regulation becomes paramount. The absence of a clear definition for space and the ambiguity surrounding space-faring vehicles hinder the ability to establish comprehensive regulations. International cooperation and dialogue are essential to develop a framework that ensures safety, security, and responsible exploration in this new era of space tourism
Overall, the lack of agreement on a definition of space emphasises how complicated and multifaceted space exploration is and the necessity of ongoing international cooperation and communication.
In conclusion, the absence of a widely agreed-upon definition for outer space poses significant complexities and obstacles in various aspects of space exploration. The remarkable X-15 program serves as a prime example, highlighting the intricate issues surrounding territorial integrity, airspace violations, and the potential weaponization of space. As we venture into the era of commercialization and space tourism, the imperative for international collaboration and open dialogue becomes even more pronounced. It is crucial for nations to join hands and establish comprehensive frameworks that prioritize safety, security, and responsible exploration in this uncharted frontier. By courageously tackling these challenges, we can forge a path toward a future where space is accessible, utilized, and shared by all while upholding the principles of international law, territorial sovereignty, and collective progress.
[1] NASA. (2023, March 2). X-15 Hypersonic Research Program. Retrieved from https://www.nasa.gov/centers/armstrong/news/FactSheets/FS-052-DFRC.html
[2] Fédération Aéronautique Internationale. (2019, March 14). Statement about the Karman line. Retrieved from https://www.fai.org/news/statement-about-karman-line
[3] NASA History Division. “Chapter 6 The X-15 Hypersonic Flight Research Program.” NASA History Division, history.nasa.gov/SP-4219/Chapter6.html Accessed May 27, 2023
[4] Blay, S. K. N. (2010, March). Territorial integrity and political independence. In Max Planck Encyclopedia of Public International Law (Vol. 9, pp. 1116-1129). Oxford University Press.
[5] Newdick, T. (2018, November 29). That time a crippled SR-71 Blackbird in emergency was intercepted by four Swedish Viggens after violating Sweden’s airspace. The Aviationist. Retrieved from https://theaviationist.com/2018/11/29/that-time-a-crippled-sr-71-blackbird-was-intercepted-by-four-swedish-viggens-after-violating-swedens-airspace/
[6] Stevenson, John R. “The Legal Aspects of the U-2 Incident.” American Journal of International Law 54, no. 4 (October 1960): 841-53. doi:10.2307/2201295
[7] Spaceship Two. (n.d.). Wikipedia, The Free Encyclopedia. Retrieved May 27, 2023, from https://en.wikipedia.org/wiki/SpaceShipTwo
[8] United Nations Office for Outer Space Affairs. (n.d.). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. Retrieved May 27, 2023, from https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html
[9] McDougal, Myres S. “Space Law and Space Politics.” The American Journal of International Law, Vol. 55, No. 2 (Apr., 1961), pp. 256-278. DOI: https://doi.org/10.2307/2200411.
[10] “SpaceShipOne.” Encyclopædia Britannica, Inc., Encyclopædia Britannica Online, 2023, https://www.britannica.com/topic/SpaceShipOne.
[11] Reimuller, Jason R., David A. Coyne, and David A. Schmidt. “Where is Space? And Why Does That Matter?” ERAU ScholarWorks, Florida Institute of Technology, 2013, https://commons.erau.edu/cgi/viewcontent.cgi?article=1052&context=stm
[12] U.S. Space Command. “Army astronaut receives prestigious qualification device.” U.S. Space Command Newsroom, 2020, https://www.spacecom.mil/Newsroom/News/Article-Display/Article/2420273/army-astronaut-receives-prestigious-qualification-device/.
Author: Soumik Ghosh
Juris Centre 