The Never-Ending Problem of Demarcation: Addressing the Air/Space Boundary Issue in International and Domestic Law

This chapter examines the various legal approaches to demarcation of airspace and outer space. It will look at the issues in identifying the legal boundary at which sovereign air law ceases and an object or individual enters outer space. This discussion critically re-evaluates two approaches to identifying the boundary. The first of these, the spatialist approach, ascribes a specific altitude, such as the Kármán line. The second, the functionalist approach, takes a holistic view of the function and purpose of a spacecraft to determine the applicable regime. Neither of these propositions is without their difficulties and this chapter will look at the challenges posed by the development of launch solutions throughout the twenty-first century and the issues that these advances in technology present. It is contended that the problem of demarcation will need a legally certain position as human space activity develops if a conflict is to be avoided.