International Institute of Space Law

Article

Near Space Activities – The Search for a New Legal Regime

Authors Mini Gupta en Tommaso Sgobba
Author's information

Mini Gupta
Mini Gupta, Adv. LLM. (Air and Space) Law, Leiden University, Leiden, the Netherlands.

Tommaso Sgobba
Tommaso Sgobba, Executive Director, International Association for Advancement of Space Safety, Noordwijk, the Netherlands.
  • Abstract

      Even though much innovation was occurring in outer space in the ‘space age’, it is only recently that activities in the stratosphere and mesosphere have caught the fantasy of business. Sub-orbital flights and high-altitudinal platforms (HAPs) are some of the ways in which the region’s capabilities are being sought to be exploited. The area is also environmentally very sensitive because of the presence of the ozone layer. Legally however it is an indistinct area, where it is not clear whether the activities that take place are airspace or outer space activities. Referred to by different names by different authors, this area is being designated as Near Space for the purpose of this paper. Extending from approximately 18km – 160km above sea level this is a region where most aviation activities come to an end but the atmosphere is too dense to support space activities. Given the current debates, there is a high likelihood of the area being demarcated simply as airspace or outer space, without much consideration being given to its unique scientific, technical and economic capacities. This paper argues that it is the underlying State that has the greatest interest in preserving the Near Space above its territory, and that similar to the EEZ a specific legal regime for Near Space is needed. The example of EEZ will be used to show how national laws (even in absence of an international regime) can benefit both the underlying States as well as preserve what is right now a global commons.

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