Near space as a sui generis zone: A tri-layer approach of delimitation

The lack of a legal boundary between air space and outer space has not given rise to significant difficulties in the determination of applicable law with respect to traditional flight craft – aircraft and space objects, due to their separated sphere of activities. But the advent of new flight craft that are capable of operating in the intermediate “near space”, i.e. Near Space Vehicles, would render a clarification of their applicable law and the legal status of the zone requisite. For the purpose of balancing the right of exploration and use of near space and the security interest of subjacent States, this short note proposes a tri-layer approach of delimitation by which near space is established as a sui generis zone reserved exclusively for peaceful purposes, while the space below the upper operative limit of aircraft and that above the lower operative limit of space craft are air space and outer space respectively.