[Lakshay Beniwal is a student at School of Law, Christ University]
Introduction
The Kármán line gets its name from the Hungarian- American mathematician and aerospace pioneer Theodore von Kármán. Von Kármán was involved in early aircraft and helicopter designs during World War I. In 1930, he moved to the United States and was an accomplished person in the field of supersonic flight around World War II. Notably, von Kármán and his colleagues founded the Jet Propulsion Laboratory. He was among the first people to calculate the altitude above which aerodynamic lift could no longer support an aircraft’s flight. This was an important legal and regulatory development as it delimits airspace from outer space. According to Theodore von Kamran, the most reasonable edge of space where forces of aerodynamic lift are not enough would be around 275,000 feet (84km). However, since then, the definition of the Kármán Line has changed significantly with different countries with different sets of approaches. The discussion around the Kármán line and the legal delimitation of airspace and outer space is becoming more important by the second as commercial spaceflight becomes a reality. With ambiguity in the delimitation of airspace and outer space, it is challenging to determine which set of laws would apply to passengers aboard these aircraft/spacecraft. In this article, the author attempts to demystify the von Kármán line and surrounding legal ambiguity surrounding the delimitation of airspace and outer space.
Where exactly is the von Kármán Line positioned?
There are several interpretations of the von Kármán line across the globe, the Federation Aeronautique Internationale (FAI), an international standard-setting and record-keeping body accepts the von Kármán line to be at 100 kms (62 statute miles) above the Earth’s surface. Although, Kármán himself never proposed the line to be at 100kms. Col. Schofield made the first notable mention of a delimiting boundary in outer space of the US Air War College in 1958, who referred to a line at 50 nautical miles (58 statute miles and 92.6kms). The United States developed the system to use nautical miles, and this practice got carried over to the National Aeronautics and Space Administration (NASA). Unfortunately, this has caused a lot of ambiguity in the available legal literature regarding the same. The United States Air Force Instruction (AFI) 11-402, dated 13th December 2010, defines the criteria for being eligible to wear an astronaut badge on one’s uniform as a USAF-rated officer who has completed duties in space (50 miles above the Earth’s surface). This interpretation creates further confusion about the altitude of the von Kármán line, as one cannot assume whether it is 50 nautical miles or 50 statute miles. When the United States Air Force (USAF) and NASA developed the North American X-15A rocket, which Robert M. White piloted to 95.9 km above the Earth’s surface, this was higher than 50 statute miles and nautical miles and therefore, Mr.White was awarded an astronaut badge. In totality, there were thirteen flights that exceeded fifty statute miles and only four flights out of that exceeded fifty nautical miles. However, the pilots who flew above fifty statute miles were not given recognition. This was rectified when retired NASA pilot Bill Dana received their astronaut wings acknowledging the height of fifty statute miles to be considered as spaceflight. Andrew G. Haley, who is believed to be the world’s first person to practice space law, coined the term Kármán Line in 1975 and referred to it as the primary jurisdictional line, which indicates the place in the atmosphere where the airspace terminates. According to Haley, the Kármán Line was at 275,000 feet. Still, he pointed out that this limit may significantly change according to more heat-resistant material development, better re-entry techniques, etc. However, Haley had been uncertain in determining the position of the von Kármán line, from his initial claim of the Kármán line being at 275,000 feet, he later referred to an agreement between the FAI, the United States and the Soviet Union regarding a 100-kilometre line as a determination of spaceflight. Despite the irregularities and the inconsistency with the proposed Kármán Line, initially major spacefaring nations started using the 100-kilometre mark as the delimitation between airspace and outer space.
The lack of uniformity in a defined edge of space has caused several upheavals in the commercial space industry, which notably was among the few industries to have a positive growth even in the COVID-19 pandemic. On July 11, 2021, when Richard Branson’s Virgin Galactic made the first crewed commercial space flight, several questions were raised about whether the particular aerial adventure can be termed as a spaceflight or not? This was done on the grounds of Virgin Galactic’s VSS Unity flying above the Kármán line. The VSS Unity flew a little above 86kms above the Earth’s surface, which is well above the NASA, FAA and United States set 50-mile limit, however, it is still much lower than the Internationally accepted Kármán line, which is at 100km. A situation like this poses a significant legal challenge as the Air and Space law jurisdictions are uncertain, and it would be difficult to determine liability in case a mishap occurs.
Conclusion
The United States has maintained that setting up a delimitation boundary between airspace and outer space through international law is unnecessary. At a United Nations meeting in Vienna in 2001, the delegation from the United States made a statement about the definition and delimitation of outer space by saying that it is not necessary, and no legal or practical problems have arisen in the absence of such definition. However, a lot has happened in the commercial space industry since 2001, and this is the right time to define the boundaries of airspace and outer space. With more commercial space operations taking place, especially those who go into orbit and glide back into the Earth’s atmosphere, the private companies require a governing law that will apply if an operational mishap occurs in the airspace or outer space.
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