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“BUFFER ZONE: AN ANSWER TO THE ISSUE OF SPACE DEMARCATION” -BY ARJIT TIWARI AND SUYASH GUPTA

B. A. LL. B. (HONS.) FOURTH SEMESTOR

DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY. LUCKNOW

20TH FEBRUARY, 2017

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INTRODUCTION "The universe is more vast than all imagining, and filled with wonders more than we can dream is a heritage for all mankind." - U.N. Chronicles International law marked its final frontiers with the advent of space law which binds nations not only within the boundaries of earth but for the acts committed outside earth boundaries. Space law is a set of rights, liabilities and duties arising out of human intervention in outer space. It is an area of the law that encompasses national and international law governing activities in outer space. Precisely, space law is a conduct and regulation guiding human interventions in space regime. The dream of conquering the sky came true when first man-made satellite “Sputnik-I” was launched by USSR on October 4th, 1957 but this feat also brought a question amongst nations as to who owns the space which lies above. As early as on 13 December, 1958, the general assembly of the United Nations passed a resolution, wherein it recognized “the common interest of mankind in outer space” and “that it is the common aim that outer space should be used for peaceful purposes only”.1The principle was drawn from laws at high seas and all states were given equal access and freedom of exploitation2 keeping mankind’s interest above individual state-interests. Though, by keeping ‘outer space as a right of all but sovereign to none’ the problem of ownership of outer space resolved but to what extent this sovereignty extends still remained an issue. The UN Committee on the peaceful uses of outer space (UNCOPUOS) established in 1958 formed legal sub-committee from March 19 to April 6 19843 regarding the definition and delimitation of outer space, the legal sub-committee established a working group to deal with this problem but even today, there is no such conclusive theory substantiating the delimitation and demarcation of outer space and air space regime.

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Resolution 1348(xiii) Alan boyle and P.W. Birine, Oxford University press(2nd edition, New Delhi, 2004) 534 3 Geneva pg. 326 2

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DELIMITATION AND DEMARCATION“The drawing of a line could be a beginning rather than an end”.4 Delimitation is a process of determining the land or maritime boundaries of a State, including that of any continental shelf or exclusive economic zone, and is generally done by means of geographical coordinates of latitude and longitude.5 The determination of a boundary may be embodied in a treaty or in the judgement of an international court or tribunal. Demarcation is further and separate procedure of marking a line of delimitation (usually only on land) with the physical objects, such as posts, stone cairns, etc. The given definitions of delimitation and demarcation were only restricted to the land and sea territorial boundaries but failed to have implementation in past, as there was no such need at that time. But, advancement in technology and space commercialization had raised a definitive need for setting a boundary between air space and outer space, therefore a clear meaning of demarcation and delimitation should be made for space law regime. As is well known, there are many differences between air law and space law, mainly because air law is based on complete sovereignty of the state over the space above its territory while space law is based on principle of freedom of use and exploration and rules out any claim of sovereignty. Considering the fact that, it is logical to differentiate air space and outer space. The cogency of that logic has increased significantly during the years of space exploration and use. Theories regarding delimitation and demarcation of outer spacePatrick Del, Duca6 and Carl Q. Christol7rightly noted that demarcation point is still an open question and an unsettled issue in air and space law. In different times, different theories have been proposed for the purpose of legal demarcation and delimitation of air space and outer space regimes. These theories have been adopted and executed by states according to their interest and will with their varied interpretations. Some of the famous theories supported by majority of nations are as follows ‘A new Look on the Delimitation of air space and Outer space’. 50th session of the UNCOPOUS legal subcommittee (IISL/ECSL space law symposium, Vienna, 20th march 2011). 5 Anthony Aust, ‘Handbook of International Law’, (2nd edition, 2005) 34 6 Duca Del Patrick Review. of: ‘La Responsibilita Staki per le attivita svolte nello spazio extra atmospherica’, 87 American Journal of International Law (by Gabrella Catalano Sgrosso., 1993) 355 7 Christol Carl ‘The unsettled issue of formal boundary between sovereign airspace and non-sovereign outer space’, 87th American Journal of International Law (1993) 491. 4

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No present need theoryThe ‘No present need theory’ was initial ideology of nations like – Canada, Great Britain and United States in legislation of UNCOPUOS who believed that there is no such need to demarcate space. ‘By mid 1970s, a state divide has been observed on concept of demarcation and question of losing vertical space sovereignty. State like –France, Belgium, Italy, USSR, Poland and Egypt and others unified in a call for spatial demarcation’.8 But the United States remain ardent on the idea of no present need theory believing that there is no real usefulness and it is difficult to draw a boundary because ‘the region is devoid of physically observable landmarks and most countries are not capable of determining the altitude of space objects, and therefore have no way to monitor any agreed altitude boundary’.9 Several authors believes that the demarcation is a political issue , where every nation tries to look into their personal interest over the principle of common heritage and only a legislation on demarcation could create an equal status among nation regardless of their interest . Presently, nations are in urgent need to delimit and demarcate the space. For space active nations –creation of multi-lateral treaty would help them in establishing a greater access to outer space for its exploration and for developing nation it would open gates for the boost in economy by increasing traffic between earth and outer space. Thus, there is a need to negate the theory of no present need by spatialist demarcation theory which will be sufficient in providing a firm and reliable solution to the problem of space demarcation because ‘As a matter of fact, mankind cannot wait another 50 years in order to accumulate enough scientific and technical data before practical steps could be taken to select a specific altitude above sea level as a boundary between air space and outer space’.10 Bogota Declaration view After the launch of sputnik by Russia, Space race amongst nations was not just limited to space adventuring but opened gates to a wide segment of world- wide communication via satellites. Amongst all these developments the question of sovereignty was still a paramount concern of nations. On December 3 1975, eight equatorial states namely Brazil, Colombia, Oduntan Gbenga, ‘Never Ending dispute: Legal theories on Spatial Demarcation Boundary Plane between Air space and Outer space’, Hertfordshire Law Journal (2003) 67 9 Ibid. (See A/AC.105/C2/SR.316), Para. 1-7; (see also A/AC.105/C.2/7/Add.1), para.42, p.15. 10 Maurice Andem, ‘International Legal Problems in the Peaceful Exploratron and Use of Outer Space’, (1992) 153. 8

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Ecuador, Indonesia, Congo, Kenya, Uganda, Zaire, adopted the declarations of first meeting of equatorial countries at Bogota, Colombia.11 Bogota declaration talks about sovereignty of subjacent state till geo stationary orbit which is located up to an approximate distance of 35,871km.over the earth’s equator that is particularly essential for satellite telecommunications.12 The characteristics of satellite in Geo-stationary orbit13 created concerns for poor equatorial nations of their national securities14and limit in opportunities of use of orbital space. Reasons initiated Bogota declaration view- First, Demarcation was on the base of gravitational phenomenon which is a physical nature of the earth so demarcation till geo synchronous orbit should be considered as a part of state sovereignty rather than outer space.15Second, Satellite in geo-stationary orbit moves with same speed as that of earth and is relatively at rest to the earth causing a constant fear of surveillance by satellite of other nation on the nation lying below it. Third, Nations who are party to Bogota declaration were all developing or undeveloped states and haunted by the fact that the geo-stationary orbit is a limited resource and rise in satellite traffic would limit their scope of development in space sector. So, a need claiming sovereignty to geostationary orbit was brought into picture so as to resolve the apprehension of overcrowding. But, Bogota declaration was not binding due to principles of prescribed freedom and nonappropriation.16 State practices had attained the status of customary international law which means that –‘Bogota declaration is only applicable or can only do so to affect themselves and not state that are not party to the declaration’.17 Bogota declaration tends to provide state sovereignty to subjacent state till geo-stationary orbit which stands is in direct contravention to the ‘principle of common heritage’ as specified under outer space treaty18. Declaration if implemented would also give leverage to sovereign nations to plant military weapons for security purposes in orbit violating article IV of outer space treaty19wherein geo-stationary orbits are considered implied part of it.

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[1976] 16 I.L.M.1. Original declaration of 1976,’Word press’ (2009), https://bogotadeclaration.wordpress.com/declaration-of1976/ accessed on 2 February 2017 13 Gorove S. ‘The Legal Status of the Geostationary Orbit: Some Remarks’, Journal of Space Law (1985) 53. 14 Martinez L, ‘Communication Satellites: Power Politics in Space’, (1985) 53. 15 MJ Finch, ‘Limited Space: Allocating the geo stationary orbit’, Northwestern journal of International Law and Business, (1986) 790-791 16 ‘The Bogota Declaration Special feature: Current document’,(1978), Accessed on 28 January 2017. http://heinonline.org/HOL/Page?handle=hein.journals/jrlsl6&div=24&g_sent=1&collection=journals 17 Article 34, Vienna convention sl (3) 347 18 Arvid Pardo, ‘United Nations’ (1967) 19 Article 4, Outer space treaty (1967) 12

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However one cannot negate this view that Bogota declaration cannot be a binding tool on all nations to bring nations at par equal in space demarcation. Bogota declaration If enacted , will create declining

doubts of biased interest towards

poor equatorial nations, consequently

the growth of space – faring nation in satellite communication but

if not

implemented will be an injustice to the poor equatorial nations in terms of security and opportunity. Therefore, a persistent conflict among poor equatorial nations and developed space –faring nation is obvious and retaining sovereignty up to geostationary orbit will not solve the contention of insecurity and over utilization of geo-stationary orbit which is a limited resource and been exploited by space faring nations. The Aerodynamic Lift TheoryAerodynamic Lift theory was first proposed by - Haley, J.C. Hogan20, B. Potter

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and J.C.

Cooper.22 These theorists proposed that airspace ends where an aircraft does not find enough aerodynamic lift to assist a flight. They believed that this position subsist in stratosphere only. After taking all the research and scientific experiments they came to conclusion that 25 miles above sea level is the maximum height which provides an aerodynamic support sustained by an aircraft flight. Also an area of 50 miles was set which can be said to have some kind of aerodynamic support in the air. Von Karma proved that at about 53 miles the environment completely loses aerodynamic support and centrifugal force comes into power 23, therefore many scientists said that it is the highest distance after which sovereignty should not be enforced. Shortcomings to the aerodynamic lift theory emerged with advancements in space technology. Advent of a new class of aircraft – the North American X-15 in 1959 capable flying to a height previously considered supra-atmospheric24. This new class of aircraft brought a new concept of hybrid vehicles which were not restricted to laws of aerodynamic lift and capable of both as a traditional aircraft and a space craft. The dual characteristics of hybrid space vehicles which are used as a surface to surface (STS) or surface to outer space

Hogan, ‘Legal Terminology for the Upper Regions of the Atmosphere and Space Beyond the Atmosphere,’ 51 American Journal of International Law (1957) 362. 21 Pitman B. Potter, ‘International Law of Outer Space’, 52 American Journal of International Law (1958) 305. 22 J.C. Cooper, 'High Altitude Flight and National Sovereignty’, in Explorations in Aerospace Law: Selected Essays, Vlassic (ed.) (1968) 368, 370. 23 A.G. Haley, ‘Space Law and Government’, (1963) 77, 97-107 24 Yvonne Gibbs, ‘NASA Armstrong fact sheet: X-15 hypersonic Research Program’ (14 February 2014) https://www.nasa.gov/centers/armstrong/news/FactSheets/FS-052-DFRC.html accessed on 5 February 2017 20

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(STO) lead to the confusion as to under which legal regime a vehicle covering vertical space should be regulated. Theorist somewhere believes that aerodynamic lift theory should not be considered so rigid rather it should be flexible enough to evolve with development in technology and provide a suitable and effective technique of demarcation.

The Functional ApproachThe concept of outer space has to be defined on the basis of a definition of the concept of space activities, or at any rate in close relation with that term.25Since most of the earth’s part is covered with sea which is not subjected to any sovereignty, the need for demarcation of air and space regime on the basis of spatialist approach has proved to be insufficient. Thus, the insufficiency can only be tackled by an objective approach based on the purpose of object involved. Functionalist approach implies fixing of boundary line on the basis of the instrumentality involved, which means there should be a distinction between aeronautical and astronautical activities.26The ‘functionalist’ is less concerned with physical factors but stresses the purpose for which an instrumentality exists and for which it is being employed at the relevant time.27 The basic difference between the spatial approach and the functional approach is that while the former is based on the adoption of certain scientific and technical criteria and relies on purpose of instrumentality involved, latter concentrates on physical element.

Here,

instrumentality involved can be any vehicle launched for the purpose of space exploration and for civil aviation. But functionalist approach was well criticized on the grounds - Firstly, there may be an ambiguity and even dispute between states as to the classification of particular activity. Secondly, it is not sensible to omit the location of the activity from consideration and fix only

Oduntan Gbenga, ‘Never Ending dispute: Legal theories on Spatial Demarcation Boundary Plane between Air space and Outer space’, Hertfordshire Law Journal (2003) 69 26 Francis Lyall and Paul B. Larsen, ‘Space Law: A Treatise’, Ashgate Publications (Burlington, USA, 2009) 169-171 27 Ibid, page 169 25

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on is intention. And thirdly, were a functional classification to be determinative of the application of air or space law, which law would apply to the space plane.28

BUFFER ZONE IN SPACE DEMARCATIONA buffer zone is defined as “… an area surrounding the nominated property which has complementary legal and/or customary restrictions placed on its use and development to give an added layer of protection to the property. This should include the immediate setting of the nominated property, important views and other areas or attributes that are functionally important as a support to the property and its protection”.29 Definition describes buffer zone as an extra added protection layer to the property or sovereign territory only. Zone has all sorts of legal and customary restrictions (restrictions which are followed for a longer period of time and can be assumed as an obligation on nations) placed on it, for its usage and development. According to U.S. military a buffer zone is expressed as “a defined area controlled by a peace operations force formed to create an area of separation between disputing or belligerent forces and reduce the risk of renewed conflict”.30Also, UN officials sometimes refer to such zones as an “area of separation”.31

A buffer zone has flexible-use capacity: it can guard passively and defensively against threats of both other states and (transnational) non-state actors. However, it can also be used proactively, even opportunistically, when states create a buffer zone to use force against non‘the NASA shuttle and other aerospace vehicles a primer for lawyers on legal characterization’ (1978) 8 Cal. West int. L.J.403 -53; T.L. Masson- Swan, ‘the aerospace plane; an object at the cross-roads of air and space law’, in T.L. Masson-Swan and P.M.J. Mandes de Leon, eds, air and space law de Lege Ferenda-essays in honour of Henry A. Wassenburg (Dordrecht: Nijhoff, 1992) 247-61 29 Project ‘marine and coastal protected areas’, Report on buffer zone assessment with relevance on marine and coastal protected areas, (by Dr. Andrian Vaso September 2013) 1 30 United States/Department of Defence, Dictionary of Military Terms and Acronyms (Washington, D.C.: GPO, 2011). 31 Alan James, ‘The United Nations on Golan: Peacekeeping Paradox?’ International Relations 9, no. 1 (1987), pp. 64–84. 28

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state actors. Buffer zones function in a legal grey area whereby jus ad bellum or jus in Bello (right to war) norms are temporarily suspended. Actually, their flexibility both in militarystrategic and legal terms are precisely why they are attractive to many states.32Precisely, the aspects of military strategy and sovereign security could arguably make buffer zone a viable option in differentiating vertical space. A buffer zone, can take many forms. It can be installed unilaterally or multilaterally, as well as by a UN Security Council resolution. It might be patrolled by a single state or a coalition, by two states together (even prior to potential adversaries), or by UN peacekeepers. It could also be demilitarized, so as to keep the area neutral and prevent hostilities. Moreover, a buffer zone can be enforced through other related tools, such as no-fly zones or naval blockades.33 Therefore a buffer zone can be interpreted as an area aiming to avoid harm cause to public at large either by war or environmental plunder. Buffer Zone in spatial demarcation was propounded by Mr Gbenga Oduntan34though his analytical research on space law regime.35Towards the end of his research he has conclusively determined demarcation of vertical space through scientific validations and use of outer space and air space as an innocent passage zone. He proposed in his theory that the lower demarcation for airspace should be at approximately 55 miles from earth surface, so till 55 miles, all nations will have sovereignty. From 55 miles there should be a zone of 45 miles which will be considered as Buffer zone i.e. from 55 miles to 100 miles there should be a zone which will demarcate air space and outer space. Therefore he concluded his theory by stating that Outer space will start from 100 miles from earth surface and no nation can claim its sovereignty in any means after this point. In other words, Outer Space- from 100 miles Air space- Up to 55 miles Buffer Zone- Zone of 45 miles from 55 to 100 miles Demarcating airspace and outer space These figures are taken due to many justifiable reasons, Firstly it is proven that the aerodynamic lift ends around 25 miles from earth surface, so we are taking extra 30 miles for Lionel Beehner and Gustav Meibauer, ‘The futility of buffer zones in International politics’, (2016) 4 Ibid, Page3 34 Lecturer, University of Kent 35 Hertfordshire Law Journal, 1(2), 64-84 ISSN 1479-4195 online/ISSN 1479-4209 CD-ROM 32 33

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other vagaries of the atmosphere. Secondly many theorists have said that the lowest orbital space flight distance around 70-90 miles, so 100 miles is a good figure to demarcate the outer space. Thirdly, a zone of 45 miles of buffer zone will help small nations to launch their space rockets without asking permissions from other neighbouring states. Also it will help better to elaborate or to define the legal status of atmosphere by creating 3 levels and will help in lowering the precise limits of outer space. Space tourism in Buffer ZoneTourism in space is “any commercial activity offering customers’ direct or indirect experience with space travel” and a space tourist is “someone who tours or travels into, to, or through space or to a celestial body for pleasure and/or recreation”.36 Tourism in space has always been a prerogative of state37 but idea of Privatization of space travel will open a new segment of space commercialization and take economy to new heights. However the concept had no longer remained a mere idea, companies such as Virgin galactic38 and Space X39 are taking lead in space travel by giving common man an experience of independence from earth’ s gravitational pull for a very short duration of time, so for these activities buffer zone can be used in future. Though the intended theory claims that the buffer zone will act as an innocent passage zone, modification with regard to idea of space tourism to the proposed theory will help in solving the issues of space travel between the proposed limit.

CONCLUSION Sovereignty has always been a priority of nations, limited either to land territory or sea but past four decades had seen huge efforts from nations in prioritizing vertical space for their security and other personal reasons which in turn created disparity amongst nations. Failure to resolve this issue of disparity with regard to demarcation is limited to the scope of scientific advancement and political interest of nations. A buffer zone in this context will emerge as a tool of conflict management in a new and systematic fashion countering the

Sandeepa bhatt B. ‘Space law in the era of commercialization’, Eastern book company (first Edition, 2010) 19-21 37 Diederiks and V. Kopal, ‘The boundaries of outer space’, Kluer Law International (3rd edition, 2008) 15-17 38 Elizabeth Howell, ‘Spaceship two: on a flight path to space tourism’ http://www.space.com/19021spaceshiptwo.html accessed on February 5 2017 39 Susheela Shrinivas, ‘Making Money in Space’, Science Reporter (CSIR Publication, January 2017) 14-20 36

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present theories of demarcation of outer space and open gates to space tourism in buffer zone boosting economy and national security of space faring nations. The research paper highlights theories related to demarcation which are criticized on two grounds --- First is failure to evolve with advancement in scientific technology eg. Aerodynamic lift theory failed to accommodate itself beyond the use of traditional vehicle and had no stand on use of hybrid vehicles. Second, disparity amongst nations due to Individual political interests such as Bogota declaration view which failed to draw support among developed space faring nations as it would limit their use of geo-stationary orbit and no present need theory which is supported by developed space faring nations so that they can guard themselves from framing of any international norm or organization restricting their unlimited right to use the vertical space For resolving a midway approach should be adopted to tackle the grounds of criticism. This midway approach is buffer zone theory proposed by Dr. Gbenga Oduntan which would provide ‘right of innocent passage’ to the re-entry of space vehicles from outer space and shall limit the use of zone for the purpose of space tourism exclusively. Buffer zone in space demarcation caters to some of the crucial needs of nations’ interests. First, it will resolve the lack of clarity which exists with regard to laws guiding use of hybrid aerospace vehicles in air and space law regimes. Second, it will bring all nations in parity regarding the sovereignty of their air space. Hence, resolving issues of their national security. Third, it will be an area benefiting space tourism without any hassles with regards to breach of air sovereignty set differently by different nations. As a concluding thought with regard to implementation of the proposed theory, initially all member states of United Nations should become signatory and ratify the treaty as soon as possible. Further, some suggestions should be included in the treaty defining firstly, legal status of the space vehicle operating exclusively in buffer zone. Secondly, should define legal status of the commuter which is exclusive from air and space commuters. Thirdly, should mention rights and liabilities arising due to any accident caused and fourthly, a proper frame work of regulations should be made for managing ‘buffer zone traffic At last, paper opens a wide segment of debate on the acceptability of buffer zone and regulation guiding space tourism in buffer zone. It also raises a point of debate as to how far

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nature of buffer zone will be sustained if space tourism in buffer zone is brought into application.