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Jenifer K. Lamie has her LL.M. in Space, Cyber, and Telecommunications Law from the University of Nebraska College of Law, her J.D. from Vermont Law School, and a Master of International Studies from Otago University. She will join the US Army JAG Corps this summer.
What is the difference between soaring through the skies and launching into the heavens? When traveling from New York to Tokyo, is there a difference between (i) flying at 38,000 feet on a Boeing 777 and (ii) skipping across the suborbital atmosphere in a spacecraft? The answer, of course, is absolutely. But aside from the time saved and turbulence experienced, there is also a legal distinction.
Under long-established principles of international law, “every State has complete and exclusive jurisdiction over the airspace above its territory.”1 Airspace does not extend forever upward. At some point, it becomes outer space. Unlike airspace, which is subject to State sovereignty, outer space is more akin to the high seas because it is not owned by any nation but is instead open for use by all nations. The fundamental treaty governing exploration and use of outer space, commonly known as the Outer Space Treaty, states that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”2 So, there is a definite distinction between airspace and outer space, and different legal regimes are responsible for each. But where, exactly, does airspace end and outer space begin, or does it really matter?