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Серія ПРАВО. Випуск 86: частина 5
264
УДК 340.1
DOI https://doi.org/10.24144/2307-3322.2024.86.5.40
COSMIC JURISDICTIONS:
QUOD LEGE NATURAE, MORIBUS ET CONSUETUDINE INDUCTUM EST
Marinich V.K.,
Ph.D. student in Law
(National Aerospace University
named after M. E. Zhukovsky
“Kharkiv Aviation Institute”, UA),
Head of NGO “Magistrat”, attorney
ORCID: 0000-0002-3206-1436
e-mail: narmer.scorpion@gmail.com
Myklush M.I.,
Ph.D. student in Law
(Toulouse Capitole University
“Doctoral School of Law and Political Science”, France),
Member of NGO “Magistrat”, attorney
ORCID: 0009-0005-2202-9482
e-mail: spaceprinciples@gmail.com
Marinich V.K., Myklush M.I. Cosmic jurisdictions: quod lege naturae, moribus et consuetudine
inductum est.
The study is devoted to organizing the legal space of the Universe based on “ius naturale,” morals,
and consuetudes of space activities, with the prospects for the existence of extraterrestrial intelligent
beings in the Universe.
On the grounds of the results of the study, 7 natural factors and 2 technical factors are identied, the
inuence of which determines the spaces to which the sovereignty and jurisdiction of both states and all
of humanity extend.
Based on these factors, the NMC Concept “natura, moribus et consuetudines” is proposed, according
to which, due to natural and other factors, all outer space above the Earth`s surface is divided into a “do-
mestic room” (our Solar System) and an “alien room” (outside the Solar System), the boundary between
which are the Kuiper Belt and the center of the Sun.
At the same time, it is proposed to apply the principle of “Res Communis Humanitatus” to the “do-
mestic room”, and the new principle of “Res Nullius Civitatis et Res Communis Animal Rationale” to
the “alien room”.
Additionally, the authors emphasize the fact that the above factors have already formed the structure
of the “domestic room” regardless of the existing intentions and suggestions, leaving the world to rec-
ognize and accept it.
Within the structure of the “domestic room”, the following two types of spaces have been formed: the
“unied and sovereign spatial-territorial domains of states”, to which the exclusive jurisdiction of states
extends, and “Res Communis Humanitatus”, to which generally recognized international law extends.
In these circumstances, considering all natural and technical factors, the authors take notice of the al-
location of two separate layers in “Res Communis Humanitatus”: “Orbital layer” and “Ballistic space”.
The authors also propose developing a “sanitary atmospheric zone” to ensure humanity`s safety from
the eects of the “X” factor.
Moreover, the authors suggest applying dierent principles of international regulation to the “Bal-
listic space,” the “Orbital layer” and the space beyond it, based on the mechanisms of “tacit consent,”
“silent disapproval”, “active consent”, and “active disapproval”.
The result of this research is a draft Pact for the Cosmos.
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Key words: space law, theory of state and law, history of law, evolution of law, jurisdictions, cos-
mos, international law, aerospace, outer space
Марініч В.К., Миклуш М.І. Космічні юрисдикції: quod lege naturae, moribus et consuetu-
dine inductum est.
Дослідження присвячено питанню організації правового простору Всесвіту на основі «ius na-
turale», традицій та звичаїв космічної діяльності, з урахуванням перспектив існування у Всесвіті
позаземних розумних істот.
За результатами проведеного дослідження виділено 7 природних факторів та 2 технічні фак-
тори, вплив яких фактично визначає простори, на які поширюється суверенітет та юрисдикції як
держав, так і всього людства.
На основі цих факторів запропоновано Концепцію NMC «natura, moribus et consuetudines»,
згідно з якою, з огляду на природні та інші фактори, весь космічний простір над поверхнею Землі
ділиться на «домашню кімнату» (наша Сонячна система) та «чужу кімнату» (за межами нашої
Сонячної системи), кордоном між якими буде пояс Койпера і центр Сонця.
При цьому для «домашньої кімнати» пропонується застосувати принцип «Res Communis Humanitatus»,
а для «чужої кімнати» – новий принцип «Res Nullius Civitatis et Res Communis Animal Rationale».
Також автори звертають увагу на те, що вказані фактори вже сформували структуру «домашньої
кімнати» незалежно від існуючих бажань і пропозицій, і нам залишається лише визнати її і прийняти.
У структурі «домашньої кімнати» сформувалися два типи просторів: «єдині та суверенні про-
сторово-територіальні домени держав», на які поширюється виключна юрисдикція держав, і «Res
Communis Humanitatus» – на який поширюється загальноприйняте міжнародне право.
При цьому, враховуючи всі природні та технічні фактори, автори виділяють у «Res Communis
Humanitatus» два окремі шари: «Орбітальний шар» і «Балістичний простір».
Крім того, авторами запропоновано створення «санітарної атмосферної зони» для забезпечен-
ня безпеки людства від впливу фактора «Х».
Водночас, авторами заініційовано впровадження різних принципів міжнародного регулювання
для «Балістичного простору», «Орбітального шару» і простору за його межами, на основі ме-
ханізмів «мовчазної згоди», «мовчазної незгоди», «активної згоди» і «активної незгоди».
Результатом цього дослідження стала пропозиція проєкту Пакту про Космос.
Ключові слова: космічне право, теорія держави та права, історія права, еволюція права, юрис-
дикції, космос, міжнародне право, космічний простір
Problem statement.
The formation of international space law began in the second half of the 20th century when it was
trendy among most states to carry out international constructive, tolerant, and peacekeeping activities.
In this regard, the provisions of international space law were generally implemented, but only because
it was de rigueur rather than “jus cogens” (since space law, in principle, lacks international mechanisms
for enforcing its implementation).
However, in the 21st century, the situation changed dramatically, and the politics of power and tech-
nological superiority became a thing among powerful world leaders.
As a result, the provisions of existing international space law appeared to be questioned or ignored.
That took place not only due to a change in “political fashion”, but also because of a large pool of prob-
lems that were not promptly resolved either at the international UN level or at the level of interstate
agreements. According to the authors, only solving these problems can make space policy sustainable
and avoid space anarchy and dictatorship of superpowers.
Currently, the main challenge for space policy and space law is the determination of aerospace ju-
risdictions (national, international, and others) regulating the eective and fair implementation of outer
space activities. At the same time, the lack of acceptable solutions to this problem muddles space law,
since international norms are observed only to the extent that they are acceptable and convenient for the
main space actors. That is to say, space law is more formal than a substantial mechanism for regulating
space activities, which is based on the favor of the most powerful states.
In this regard, Bleddyn Bowen made a good point that in space activities the most powerful states
dictate the rules to other states, leveling international norms, since no one can hold them liable for vio-
lation [16, p. 479–480].
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A distinguished example of the mentioned behavior is the US initiative to explore and develop the
Moon, which was ocially announced by President Donald J. Trump on December 11, 2017 [63] in
Space Policy Directive-1 [65].
Ipso facto the United States of America that had previously refused to sign the Agreement Governing
the Activities of States on the Moon and Other Celestial Bodies (or the Moon agreement) dated De-
cember 05, 1979 [56], announced the launch of an active space campaign for the exploration and Moon
development (decipher as “for prot”) in violation of generally accepted human principles stated in the
mentioned Moon agreement.
At the same time, as the leader of the relevant initiative, which is somewhat similar to Shere Khan
from “The Jungle Book” (Rudyard Kipling), the United States of America oered other states to join
the Moon Initiative based on the Artemis Accords [51] (decipher “or remain without their share of the
plunder”).
As a matter of course, the call to action voiced by the superpower was not ignored by the less pow-
erful space actors, and on October 13, 2020, the Artemis Accords, along with the United States, were
signed by Australia, Canada, the Republic of Italy, Japan, the Grand Duchy of Luxembourg, the United
Arab Emirates, the United Kingdom [51]. Moreover, under ocial data from NASA, as of this writing,
a total of 50 states have already joined the Artemis Accords [38]. At the same time, most of the acced-
ing states had previously signed and ratied the Moon agreement, which is contradicted by the Artemis
Accords.
Therefore, less powerful space actors, fearing to be left without a share of the plunder, rushed after
Shere Khan, who intended to jump into the re without realizing all the consequences. The Artemis Ac-
cords have become like Niagara Falls, which drags all other actors into a dangerous trap.
However, the unfortunate thing is that the signing and ratication of the Artemis Accords by many
states and space agencies marked the beginning of the collapse of existing international space law and
order, creating the preconditions for the dictatorship of space law of the most powerful states.
In this respect, such a dictatorship poses huge risks for the emergence of contradictions and military space
conicts between the most powerful states, which Bleddyn Bowen also mentioned [16, pp. 415–416, 477–478].
The only way to avoid the stated conicts is to develop a minimum of clear rules for space activities
based on generally recognized aerospace jurisdictions. At the same time, the mentioned jurisdictions are
the foundation for the future construction of a civilized international space policy and the formation of
space law. Without the creation of the relevant foundation, politics and law are doomed to failure.
The status of the issue.
Many theories and proposals exist regarding the delimitation of aerospace above the Earth`s surface.
Academics like Csaba I. A., Christol C. Q., Asamoah O. Y., Cheng B., Oduntan G., Ogunbanwo O.
O., and many others contributed valuable insight.
However, despite such a large number of proposals and theories, all of them remained only subjects
of behind-the-scenes negotiations, and none was taken as a basis since it was not considered acceptable
from a scientic point of view.
Unfortunately though, without solving the main challenge of building a solid foundation for space
law and policy, many scientists became bewildered by secondary issues, including those related to the
implementation of private space activities, and even began to propose solutions to them, for example,
on the following issues:
— commercial use of outer space [42][3][4][50];
— commercial use of international space stations [8][36][48];
— regulation of space trac [27];
— regulation of the operation of commercial platforms for launching objects into space [43];
— liability, disputes, and insurance of space activities [33][34][67];
— commercial mining [32][44][45][57];
— space tourism [21][35][47][62];
— a form of commercial contract [2];
— ownership of objects obtained as a result of space activities, investment in space activities, par-
ticipation of private companies in the militarization of space and other challenges of commercialization
of space activities [46][29][61].
It is important to note that all proposed solutions are based on the precarious balance of peaceful
coexistence of the main space actors. Once this balance is disrupted, no one will take these studies into
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account (they will simply become useless), since the rules will be set only by the strength and power of
the main space actors, advancing their interests.
Moreover, the emergence of the prospect of one or more states gaining enormous prots, which could
signicantly upset the economic and military balance between the superpowers, threatens the immediate
outbreak of hostilities in space and on Earth by those states whose goal is to prevent such superiority.
For this very reason the task of establishing generally recognized aerospace jurisdictions, based on
which international rules for regulating space activities will be developed, is of paramount importance.
The article aims to organize the legal space of the Universe based on “ius naturale”, morals, and
consuetudes of space activities with prospects for the existence of extraterrestrial intelligent beings in
the Universe.
The basic material.
1. Overall perspective of jurisdictions.
1.1. Well-established concepts and principles of jurisdictions.
With the object of discussion of the ways, situations, and those to regulate space activities, it is nec-
essary to understand the principles of jurisdiction that could be applied in outer space and on celestial
bodies.
Within the established doctrine of international law, the universal framework for the jurisdiction of a
state is nationality and territory as well as the right to protection [19, p. 49–50]. Additionally, according
to the existing concept of jurisdiction, the objective (actual) jurisdiction of each state is directly related
to its territory. This is because “the notion of jurisdiction nds its origin in the concept of territory, the
principle of sovereign equality and non-interference with the domestic aairs of States” [19, p. 49].
At the same time, at its core, the word “territory” comes from the Latin word “terra” (meaning “earth
or land”) and is in no way connected with air or space, implying a description of an area on the land
surface [40, p. 11–13]. In this regard, any option for establishing the jurisdiction of a state in space can
only be considered through the prism of the direct connection of this space with a specic area on the
land surface.
It is generally accepted that jurisdiction always consists of two complementary regulatory elements,
namely, “jurisfaction” (Prescriptive [legislative] jurisdiction - the power of lawmakers and the relevant
competence to apply the law to certain individuals) and “jurisaction” (Prerogative [enforcement] juris-
diction - administration of justice and enforcement of law in a certain territory) [19, p. 34, 50].
For these purposes, «the concept (doctrine) of State jurisdiction means the right of a State to regu-
late the rights of persons, to aect the property, things, events, and occurrences whether by legislative,
executive or judicial measure» [19, p. 34, 49].
On the same note, according to the method and scope of exercise of jurisdiction, the following types
are specicated: “exclusive jurisdiction” (a state has an exclusive right to exercise jurisdiction), “con-
current jurisdiction” (more than one state may simultaneously assume jurisdiction over persons, things
or occurrences), “complementary jurisdiction” (a state may under international space law assume juris-
diction supplementing the jurisdiction of a third state) [19, p. 34].
In addition, it is necessary to understand that only “exclusive jurisdiction” is a full-edged and
autonomous jurisdiction, and all other jurisdiction options are derivative elements based on interstate
agreements.
On a separate note, when describing the concept of public jurisdiction, three dierent types of juris-
dictions are often singled out: territorial, quasi-territorial, and personal [19, p. 50].
However, only in the case of territorial jurisdiction does a state have exclusive jurisdiction within
its territorial domain over things, property, persons, and legal transactions done within it, including the
extraterritorial activities of such persons [19, p. 51].
In other cases, the jurisdiction is not generally recognized and exclusive jurisdiction, but it is only
part of individual contractual interstate agreements (id est treaty jurisdiction).
For instance, personal jurisdiction is the totality of powers of a state concerning its vehicles, natu-
ral and legal persons (objects of jurisdiction) bearing its nationality, enjoying its protection, or owing
it allegiance wherever it may be [19, p. 68]. That is, what it involves is mainly objects of jurisdiction
located within the territory of a foreign state (viz. outside the territory of the state of their registration).
It indicates that when carrying out activities, these objects do not fall under the exclusive jurisdiction
of their state but have to comply with the rules of a foreign state (in the way the foreign state permits).
Accordingly, personal jurisdiction is not about the establishment by the state of registration of rules for
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such objects, but it consists of establishing prohibitions on certain actions to the detriment of the state of
their registration (provided that compliance with such prohibitions will not contradict joint agreements
with a foreign state). Thus, we can say that personal jurisdiction is not exclusive jurisdiction but is only
an element of an agreement between states. Accordingly, personal jurisdiction also cannot be automati-
cally applied on terra nullius (outside the territorial jurisdictions of states).
Wherein, quasi-territorial jurisdiction is the total of the powers of a state in respect of embassy,
ships, aircraft, and spacecraft (to the extent to which they are also granted legal personality) having its
nationality [19, p. 57]. That is, quasi-territorial jurisdiction diers from personal jurisdiction in that it
extends to all persons and things on board, including the activities of such persons, whether on board
the craft or elsewhere [19, p. 57]. Thereafter, the theory of quasi-territorial jurisdiction considers the
vehicle and embassy as the territory of a state of their registration located outside its internationally
recognized territorial boundaries (within the territory of a foreign state or terra nullius). However, in
this case, quasi-territorial jurisdiction is also not exclusive jurisdiction, but it is only an element of an
agreement between two states or within a group of states and can only apply to objects located on the
territory of one contracting state, but which are the property of another contracting state. Accordingly,
quasi-territorial jurisdiction also cannot automatically apply beyond the territorial jurisdictions of all
states (terra nullius).
That is to say, personal jurisdiction and quasi-territorial jurisdiction do not entail absolute compe-
tence for any state but are only elements of agreements and concessions between two or more states – in
other words, they regulate the relations between or among these states.
Only territorial jurisdiction provides a state with an absolute and independent right to regulate any
activity (but only within its territory).
1.2. Historical principles of formation of sovereignty and jurisdiction of states.
Over a long time horizon states have protected their territorial integrity (that is, access to natural,
human, and tax resources within a certain territory), including by adopting and signing relevant legal
acts and international treaties [30, p. 577]. Gradually, from the seventeenth century AD, the doctrine
of jurisdiction began to emerge from the concepts of sovereignty and territoriality, which was nally
established in the nineteenth century [19, p. 49]. The mentioned doctrine, on the one hand, asserted the
rights of states in the territories they occupied, and on the other hand, limited their rights only to these
territories.
Therefore, states have established the principles of jurisdiction under which they have legal compe-
tence and can use resources only within their borders, and, accordingly, not possessing the competence
and right to use objects (resources) outside their territory [30, p. 577].
In turn, to date, the boundaries of state territories (exclusive jurisdiction boundaries), in most cases,
had already been determined, both on land and in water. Within these borders, a state has exclusive ju-
risdiction, and beyond them (terra nullius or on the high seas) the exclusive jurisdiction of a state ends
[24, p. 4].
Wherein, the provisions of Article 1(1) of the Chicago Convention on International Civil Aviation (7
December 1944) established as follows, “The contracting States recognize that every State has complete
and exclusive sovereignty over the airspace above its territory”. In such a way, the spatial-territorial
jurisdiction of states is not limited to the surface of the Earth but is directed up into space and down to
the center of the Earth, somewhat reminiscent of the shape of an inverted cone with uneven sides that
coincide in shape with the borders of states on the surface of the Earth [24, p. 4].
And if the issue of the lower limit of state jurisdiction has not yet been raised, then the question of
the need to determine the upper limit of the spatial-territorial jurisdiction of states, as well as the estab-
lishment of the legal status of outer space and celestial bodies has been discussed for a very long time.
However, to this day, the discussed challenge remains unresolved.
2. Legal status of outer space: analysis of existing theories and proposals.
2.1. Theories of outer space legal status.
The matter of regulating space activities, human relations, and state-to-state regulations (including
those related to the jurisdiction of states) in outer space and on celestial bodies has existed from the very
beginning of the development of outer space law.
Attempts to solve the problem have led to the emergence of many concepts, theories, and proposals
for determining the competence (jurisdiction) of subjects of space activities in outer space and on ce-
lestial bodies.
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According to one of the most popular concepts of international public law, the state can act wher-
ever direct prohibitions and restrictions are not established for it under international law, and in certain
circumstances, it can even fall outside the scope of the international law framework [18, p. 146]. The
discussed concept appears sui generis a colonizer concept since it invites states to act on the principle of
“everything that is not prohibited is permitted” as well as make decisions and act outside their territory
based on their interests regardless of the interests of humanity.
However, in respect of this concept, three theories arose for the regulation of activities in neutral
territories, which can be described as follows: “Res Communis” (or “Res Communis Omnium”), “Res
Nullius”, and “Res Communis Humanitatus” (or “the Common Heritage of Mankind”) [18, p. 147].
According to the rst theory of “Res Communis”, outer space and celestial bodies are considered a
common territory [18, p. 147]. Therefore, all states, their citizens, and legal entities are free to explore,
use, and develop the “commons” area. Precedently this theory was especially popular among underde-
veloped states willing to prot from the use of raw materials outside their territory (terra nullius or on
the high seas). However, when it came to outer space and celestial bodies technologically developed
states supported this theory since it allowed them to operate in space as if on equal terms but enrich fast-
er than underdeveloped states that are unable to get to space [18, p. 147]. Moreover, there is an opinion
that after the signing of the UN GA Resolution 1721 states recognized outer space and celestial bodies
as the territory of “Res Communis Omnium” [41, p. 12].
Under the second theory, “Res Nullius”, outer space and celestial bodies are the territory that belongs
to no one. However, this theory does not prohibit states or other actors from taking possession or control
of the territory of “Res Nullius” for their exclusively sovereign purposes by right of rst discovery or
use [28, p. 38]. In this regard, this theory, which has imperialist and colonial motives, is attractive to
states that claim world hegemony.
According to the third theory, “Res Communis Humanitatus”, outer space and celestial bodies are
the common territory of all humanity. Therefore, all states, their citizens, and international entities are
free to explore, use, and develop the common territory but only in the interests of humanity and on the
condition that they share the resulting benets with other participants (that is, there is a joint use aspect)
[18, c. 147].
However, despite high popularity, all these theories remain only theories, and the very concept of
colonizer cannot be called perfect and acceptable, because it does not consider the element of equality
for everyone and the possibility of the existence of alien intelligent beings in the Universe. Moreover,
we can say that an attempt to extend this concept to outer space and celestial bodies is a dangerous
process that could provoke a new space race and lead to a new type of armed conict - space warfare.
Under all circumstances, given that all three theories describe the legal status of Outer space, to
apply them it is necessary to dene the boundaries from which Outer space begins and the boundaries
within which it ends. That is, these theories rest on the need to delimit the aerospace above the Earth`s
surface and related jurisdictions.
2.2. Theories and proposals for the delimitation of aerospace above the Earth`s surface.
Most scholars attempt to determine the upper limit of spatial-territorial jurisdiction by dividing aero-
space into two separate spaces (airspace and outer space), explaining this approach by the dierent
physical characteristics and legal regimes of these spaces [40, p. 282–284].
As of today, there are many theories and proposals concerning the delimitation of aerospace above
the Earth`s surface.
Most of them were classied by McDougal, Lasswell, and Vlasic, namely: (1) proposals based upon
prescriptions of the Air Conventions, (2) proposals based upon varying physical characteristics of space,
(3) proposals based upon varying natures of ight instrumentalities, (4) proposals based upon the factors
of eective control, (5) proposals based upon the earth`s gravitational eects, and (6) proposals based
upon arbitrarily chosen altitudes [31].
One of the most popular proposals based upon the earth`s gravitational eects is to limit the airspace
of states to the upper limit at which the force of gravity inuences. However, it is very dicult to imple-
ment this proposal, since it turns out to be challenging to determine an object of ideal shape, weight, and
density on which the relevant experiment can be carried out. Unless the experiment could be run with
an international prototype kilogram made of a platinum-iridium alloy (90% platinum, 10% iridium) and
stored at the Bureau International des Poids et Mesures (in the city of Sèvres, France). However, to date,
there are no agreements on this issue.
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Additionally, there is a proposal to limit the airspace of states based on the geophysical meaning of
the term “airspace” (proposal based upon varying physical characteristics of space). Under this propos-
al, airspace ends where the air is exhausted [24, p. 5]. However, it is necessary to remember that “air
is a mixture of gases and is not a chemical compound”. At the same time, there is no clear boundary
between airspace and space without air (lled with vacuum), since the content of gases in near-Earth
space is observed from the surface of the Earth and further hundreds and thousands of kilometers up-
ward. In this regard, some scientists proposed considering the upper limit of the airspace to be a height
of 5.8 kilometers (approximately 3.6 miles) above sea level, below which is half of the air in the Earth’s
atmosphere [24, p. 5].
In addition, there is a theory of determining the upper limit of airspace at an altitude of 60 miles
(approximately 100 kilometers), above which a relative vacuum can begin [24, p. 5]. However, there
were also versions that the vacuum could only begin above 400 miles (about 644 kilometers) [24, p. 5].
In turn, one of the most promoted proposals for the delimitation of air area and outer space is to con-
sider the upper limit of the airspace to be the maximum altitude at which there is enough air for there to
be a “’lift’ from the air” for aircraft ights and balloons [24, p. 6].
There are also other theories, namely, “usque ad innitum” (extending jurisdiction upwards over the
territory of the state to add innitum), “the national security and eective control theory” (links jurisdic-
tion to the security of a state), “the lowest point of orbital ight theory”, “theories of arbitrary distances”
(dierent jurisdictional boundaries depending on various civil cases and court cases) [40, p. 305–310].
Additionally, Gbenga Oduntan proposed the following very compelling theory – “a staggered de-
marcation regime in international law to regulate jurisdiction over spatial territories” [40, p. 310–311]:
1. A lower demarcation line for territorial airspace of approximately 55 miles to be considered as the
maximum height for the airspace, which will be subject to the complete and exclusive sovereignty of
the subjacent state;
2. A buer zone for the next 45 miles (from 56 to 100 miles), which should be recognized as an area
of innocent passage for all states;
3. An outer space demarcation line of 100 miles, which should mark the beginning of outer space
(completely free from all claims of sovereignty and jurisdiction).
In general, it can be noted that there are many theories and proposals regarding the delimitation of
aerospace above the Earth`s surface.
However, despite such a large number of proposals and theories, all of them remained only subjects
of behind-the-scenes negotiations, and none was taken as a basis since it was not considered acceptable
from a scientic point of view [11, p. 138].
The issue of delimitation of outer space may have remained unresolved to this day because the ex-
pansion of the exclusive jurisdiction of states upward into outer space depends on it - that is, the expan-
sion of political inuence. Either way, since the states failed to agree on such delimitation of space, it
remains unclear how far the jurisdiction of a state extends in aerospace over its territory and where the
lower demarcation line of outer space is [11, p. 137].
2.3. The UN General Assembly opinion.
Pending a decision on the issue of delimitation of aerospace as well as due to the urgent need to de-
ne the competencies (jurisdictions) of both the main space actors and the UN, by the end of 1963, the
UN General Assembly announced several statements on this subject in the UN GA Resolution 1721 [58]
and the Declaration of Legal Principles [59], which could be formulated as follows:
“Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty,
through use or occupation, or by any other means.
The jurisdiction of States extends to all objects registered by them located in outer space and to
astronauts thereon.
The activities of States in the exploration and use of outer space and celestial bodies shall be carried
on following international law, including the Charter of the United Nations” [30, p. 579].
From that moment until the present day, the principles of determining jurisdiction have not changed
and have only been repeatedly supported in various international acts.
However, these statements did not provide answers to questions concerning the delimitation of aero-
space, the legal status of outer space, and the actual competence of subjects of space activities.
On the contrary, having announced these provisions, the UN General Assembly immediately faced the
need to solve new problems related to the regulation of activities in outer space and on celestial bodies:
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— determining the possibility of states applying national law in outer space and on celestial bodies;
— determining the limits of the competence of states to apply national law regarding their Cosmic
articial objects [31, p. 87];
— determining the limits of the competence of states to apply national law regarding astronauts in
the Cosmic articial objects of these states [31, p. 87];
— determining the possibility of states and international bodies applying international law in outer
space and on celestial bodies;
— and many other issues.
However, like previous tasks to dene the boundaries of outer space and the outer space competen-
cies of states, none of these tasks have been solved.
Thus, to date, the task of dening aerospace jurisdictions remains unresolved.
According to the authors, one of the causes commonly cited is the use of standard approaches to
determining jurisdictions that are usually applied on Earth.
In turn, for an eective and positive solution to this issue, it is necessary to form a concept of the
legal status of outer space and the limits of the aerospace jurisdictions of states, taking into account all
factors that inuence or may inuence space activities, as well as the security of states and all of hu-
manity as a whole.
3. Factors in the development of aerospace jurisdictions.
3.1. Overall perspective.
Any researcher who explores the processes of regulating space activities understands that outer space
law is a unique type of law. It cannot be compared with other types of law such as maritime or air law
due to the regulating relations within Earth.
For this very reason, all attempts to determine the jurisdictions and sovereignty of states based on
the division of aerospace into air and outer space from a physical point of view are meaningless. This
is due to the fact that air is not a separate neutral substance but is a mixture of gases, which by nature is
integrated into the composition of the entire aerospace. That is, air cannot be ideally isolated and sep-
arated from the entire aerospace.
Moreover, such a division of space for establishing jurisdictions is rather wanton from a legal point
of view.
Taking into account the development of technology and possible contact with alien intelligent be-
ings, it falls into place that jurisdictions can be established not only over the surface of the Earth but also
over the surfaces of other planets and celestial bodies.
However, if the mixture of gases above the surface of the Earth can notionally be named air (which
consists of 98-99% nitrogen and oxygen, as well as small amounts of argon, carbon dioxide, and hy-
drogen), then the same notion can hardly be applied to the mixture of gases above the surfaces of most
other celestial bodies.
Accordingly, the principle of determining jurisdictions based on the division of common space into
air and outer space will not apply to other celestial bodies.
In this regard, it has to be noted that we are surrounded by outer (cosmic) space (and not aerospace),
including above the surface of the Earth. At the same time, outer space near the Earth has only one fea-
ture which is about a large content of a mixture of gases that we call air.
In turn, the determination of jurisdictions within outer space depends on many “natural factors”,
both in near-Earth space and throughout our solar system, aecting both the safety of the existence of
humanity and the safety of the existence of individual states.
In this study, the authors can only oer their vision of such “natural factors” and jurisdictional op-
tions, which are subject to further discussion by the scientic community as well as representatives of
states and international organizations.
At the same time, to determine the jurisdictions in outer space consideration must be given not only
to natural factors but also to technical factors that aect the security of each state individually together
with the safety, equality, and eciency of all space activities of mankind.
Such factors include, for example, the military use of aerospace by the most powerful states (military cos-
mic reconnaissance activities of satellites, launching and testing of intercontinental ballistic missiles, etc.).
Therefore, to determine the types and bounds of jurisdictions, it is necessary to take into account
at least two kinds of factors (natural and technical), as well as their impact on three modes of security
(state security, security of humanity as a whole, and security of space activities).
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3.2. Natural factors.
3.2.1. The factor “Vita elementis”.
Analyzing natural factors that can inuence the formation of cosmic jurisdictions, the authors note
that this study is not geographical, biological, or geophysical but is a purely political and legal study.
Therefore, information about natural factors for this study is taken from open sources. In this regard, it
would also be quite acceptable to use information obtained by other scientists in the formation of exist-
ing theories of aerospace delamination.
At the same time, regarding natural factors, attention shall be paid to natural objects that have a di-
rect impact on the existence, safety, and activities of humans on Earth.
First and foremost, it is subject to the four basic elements on which human life on Earth depends:
earth, water, re, and air.
In this respect, to determine high-altitude jurisdictions (in cosmic space), an important aspect is the
altitude above sea level at which all these elements can be relatively stable (constant) and in a useful
state for humans.
In turn, it is a fact of common knowledge that the highest point of the stable earth`s surface (the
rst element) on our planet is the mountain peak Zhumulangma (or Everest) on the crest of the Great
Himalayas that lies on the border between Nepal and the Tibet Autonomous Region of China (at 27°59′
N 86°56′ E) [14].
In December 2020, the authorities of China and Nepal, when signing a boundary demarcation proto-
col, agreed on the ocial height of this mountain peak which is 8848.86 meters (about 29031.69 feet)
above sea level [15].
At one time, it is a matter of common knowledge that there is a large amount of water (the second
element) on this mountain that is almost always found at the top of the mountain in a crystalline state in
the form of snow and ice.
For its part, the possibility of the existence of a stable re (the third element) at such a height was
proven by a multinational expedition from China, which on May 8, 2008 raised the Olympic ame to
the mountain peak of Zhumulangma [12][66].
As for air (the fourth element), in this case, it is important to know the height at which air can be
conditionally dened as “sanus et utilis aerem”.
For example, scientists have established the fact that half of the air in the Earth`s atmosphere turns
out to be in a layer up to 5.8 kilometers (about 3.6 miles) above sea level [24, p. 5]. Maintaining the
saturation of the lower layers of the atmosphere with air to such a level is of great importance both for
the existence of all humanity as a whole and the existence of people in a particular state. Reducing sat-
uration levels can harm people`s safety.
In turn, when rising higher, it is necessary to regard the ability to carry out in general minimum life
activities on the surface of the Earth rather than the comfortable existence. At the same time, an ability
to exist at appropriate heights is most often determined by historical experience. To be sure, history pro-
vides evidence of the conquest of the mountain peak Zhumulangma (or Everest) by people without using
additional oxygen cylinders (in May 1978, it was fullled by Reinhold Andreas Messner and Peter Ha-
beler). Subsequently, this achievement was repeated by many other climbers. In this context, the highest
results in terms of duration of stay on Mount Everest were achieved by climbers from the Shar Pa. That
is, we can conclude that at the height of the Zhumulangma mountain peak, there is such an amount of
air that can be considered relatively sucient for the short existence of a human.
Thuswise, it may be said that the four elements on which human life on Earth depends (earth, water,
re, and air) form the rst natural factor, which can conventionally be called “Vita elementis”. Whereas,
this natural factor species the “Vita elementis” layer of the atmosphere and the “Vita elementis” stratum
at an altitude of 8848.86 meters (or 29031.69 feet) above sea level (this layer almost corresponds to the
troposphere [55]. In these circumstances, within this layer, a human can carry out activities relatively
comfortably. In this regard, the discussed factor is critical both for the security of humanity as a whole
and for the security of people in a particular state (that is, for the security of the state), but it does not
have a critical impact on the safety of space activities.
3.2.2. The factor “Tectum vitae”.
Such a critical natural object as the Earth`s ozone layer, the bulk of which is located in the atmo-
spheric layer up to 50 kilometers (31 miles) above sea level, lies right around the “Vita elementis” layer
[53][22].
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Ozone absorbs the most energetic wavelengths of ultraviolet light, known as UV-C and UV-B, wave-
lengths that harm living things [53]. Ozone molecules protect life on Earth - they help shield our planet
from harmful solar radiation [53]. Oxygen molecules absorb other forms of ultraviolet light, too. Together,
ozone and oxygen molecules can absorb 95 to 99.9% of the ultraviolet radiation that gets to our planet [53].
Accordingly, its destruction over any territory of the Earth can lead to the destruction of nature and
population in this territory, at least from solar radiation.
C’est-а-dire, the thickness and composition of the ozone layer in the Earth`s atmosphere shall remain
that way to eectively protect the Earth`s surface (as well as people, plants, and animals) from harsh
and excessive solar radiation.
The ozone layer serves as a kind of “roof” that protects the Earth and humanity from hard solar ra-
diation.
One can say that the ozone layer determines the second natural factor, which can be conditionally
called “Tectum vitae”. In turn, this natural factor shapes the “Tectum vitae” atmospheric layer and the
“Tectum vitae” stratum at an altitude of 8848.86 meters (or 29031.69 feet) to 48 kilometers (or 30 miles)
above sea level (this layer almost corresponds to the stratosphere [54]. In this context, such a layer is
critical for a human to comfortably carry out life activities. Due to this, the mentioned factor is critical
both for the security of humanity as a whole and for the security of people in a particular state (that is,
for the security of the state), but it does not have a critical impact on the safety of space activities.
3.2.3. The factor of “Acceptable atmospheric pressure”.
As mentioned above, the presence of air and ozone in the atmosphere has a great inuence on a
human’s ability to exist. However, not only the chemical but also the physical characteristics of the
atmosphere are important for human life.
For example, every person on Earth, at least once, has encountered the concept of atmospheric
pressure (the force with which the mass of the atmosphere exerts pressure on a man), which is often
classied as a meteorological factor.
At the same time, as of today, the inuence of atmospheric pressure, as a meteorological factor, on
patients with cardiovascular diseases is a generally accepted fact and is based on a large number of
studies. The research results indicate that weather changes such as a sharp increase or decrease in am-
bient temperature, uctuations in atmospheric pressure, and increased air humidity lead to an increased
risk of developing acute myocardial infarction, cerebral stroke, and increased mortality of patients [26,
p. 670–673][9, p. 1109–1116][7, p. 1074–1082][6, p. 139–140][5, p. 93–100].
Therefore, given that the organism of contemporary man is adapted to a comfortable existence only
at a certain stable atmospheric pressure, such pressure is an important factor for the life of mankind.
In this regard, since the beginning of the 17th century AD, scientists Vincenzo Viviani and Evangelis-
ta Torricelli carried out the rst measurements of atmospheric pressure using a mercury barometer. For
this purpose, “millimeters (inches) of Hg” was used as a unit of measurement of atmospheric pressure.
As of today, science uses several units of measurement of atmospheric pressure, the ratio of which is
approximately the following: 1 atmosphere = 1013.25 millibars = 760 millimeters (29.92 inches) of Hg
= 101325 Pascals. From these ratios of measured quantities, it can be seen that Pascal is the minimum
one and, accordingly, the most accurate unit of measurement of atmospheric pressure.
It is also generally known fact that the average and most acceptable atmospheric pressure on the
surface of the Earth is considered to be a pressure of 1 atmosphere [13][64, p. 38, 112][1, p. (12)10].
The stated atmospheric pressure is created by the volume and mass of the atmosphere (atmospheric
column), which is located above the Earth`s surface to a height at which the density of the atmosphere
is as low that the pressure created by the atmosphere is zero and as close as possible to zero.
That is, the mass of the atmosphere and the force with which it presses on the surface of the Earth are
very important indicators for human life. In this regard, to ensure comfortable human life, it is necessary
to measure and maintain the maximum height of the atmospheric column in cosmic space, which creates
an acceptable atmospheric pressure of 1 atmosphere (or 101325 Pascals) on Earth.
At the same time, taking into account the fact that it is almost impossible to determine absolute zero,
the atmospheric pressure that is closest to zero can be considered the atmospheric pressure that is less
than the smallest legal unit of measurement, meaning, less than 1 Pascal.
In turn, according to the COSPAR and U.S. Standard Atmosphere, atmospheric pressure below 1
Pascal begins above a geometric altitude of about 80 km (about 50 miles) above sea level [1, p. (12)9]
[64, p. 52, 136].
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Thus, we can say that atmospheric pressure determines the third natural factor, which can be con-
ditionally called the “acceptable atmospheric pressure” factor. In turn, this natural factor determines
the layer of the atmosphere of “acceptable atmospheric pressure” and the “acceptable atmospheric
pressure” stratum from the Earth`s surface to an altitude of about 80 km (about 50 miles) above sea
level (the upper limit of this layer almost coincides with the upper limit of the mesosphere [52]. In this
context, the factor of “acceptable atmospheric pressure” is critically important for a human to com-
fortably carry out life activities. Pursuant thereto, the described factor is critical both for the security of
humanity as a whole and for the security of people in a particular state (that is, for the security of the
state), but it does not have a critical impact on the safety of space activities.
3.2.4. The factor of “atmospheric density”.
Just like the mass (m) of the atmosphere, the volume of the atmosphere (V) has an important inu-
ence on the physical characteristics of outer space, which together with its mass forms such an important
value as the physical density of the atmosphere (ρ = m*V). Therefore, the density of the atmosphere
aects the movement of air masses and atmospheric precipitation, evaporation, and many other natural
phenomena on which human life depends.
Furthermore, the density of the atmosphere determines the force with which it resists the movement
of solid objects (humans, objects of fauna, or technical means). Such interaction of an object and space
is described by Newton`s third law (for every action, there is an equal and opposite reaction).
According to the U.S. Standard Atmosphere, the density of the atmosphere (the cosmic space near
the Earth`s surface) is approximately 1.225 kg/m³ (or 0.0765 lb/ft³) [64, p. 39, 112].
At the same time, taking into account the high hardness of the Earth`s surface and objects located on
its surface, as well as the fragility of the human body to such objects, it can be said that the density of
outer space near the Earth`s surface does not create any particular obstacles for human movement at a
speed that is safe for one.
Moreover, the density of the atmosphere, combined with atmospheric pressure, allows birds to y,
which are important elements of the earth`s ecosystem that ensure human life.
With the development of technological progress, humanity has also been able to lift and move objects
above the Earth`s surface that are heavier than air and have a reective surface (wing), using primarily
Newton`s third law and Bernoulli`s principle (on the pressure dierence).
The main characteristic that describes the ability to y is considered to be “the aerodynamic lift
force” or “the lift from the air” [10, p. 84, 390].
In this case, one of the formulas by which one can calculate “the aerodynamic lift force” is: L= ½
p*v²*S*CL (L - is the lift force, p - is the air density, v - is the velocity or true airspeed, S - is the plan-
form (projected) wing area, CL - is the lift coecient at the desired angle of attack, Mach number, and
Reynolds number) [10, p. 369, 377].
From this formula, it is born in upon that the density of the atmosphere plays a key role in creating
“the aerodynamic lift force” that allows a human to y using a wing (i.e., airplanes). However, at the
same time, the density of the atmosphere also creates resistance and a certain amount of friction, which
negatively aects the ability to y at high speed.
Hence, we can understand that with a decrease in the atmospheric density (which decreases with
the height of ascent above the Earth`s surface), the resistance will decrease and the ight speed will
increase, but also “the aerodynamic lift force” that allows ight will decrease.
Accordingly, at certain altitudes, where the density and pressure of the atmosphere will be minimal,
the ability to y with the help of a wing will be completely lost.
In scientic discourse, it is argued that as of today ights using the “aerodynamic lift force” are
possible up to an altitude of 25 miles (132,000 feet) or about 40 kilometers above sea level [40, p. 298],
where the density of the atmosphere is about 0.004 kg/m³ (or 0.000244 lb/ft³) ³) [64, p. 50, 121]. How-
ever, hypothetically speaking, future wing-based ights could be possible at altitudes of up to 50 miles
(264,000 feet) or about 80 kilometers, where “the aerodynamic lift force” is minimal [40, p. 298], and
the density of the atmosphere is about 0.00001 kg/m³ (or 0.000001 lb/ft³) [64, p. 53, 137].
In turn, the ability to carry out civil (peaceful) transportation of people and cargo using aviation,
which applies “the aerodynamic lift force”, is also the basis for the consistence human activity and eco-
nomic security of each state.
Accordingly, it can be stated that the “atmospheric density” determines the fourth natural factor,
which can be conditionally called the “aerodynamic density of the atmosphere” factor. For its part,
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this natural factor species the layer of “aerodynamic density of the atmosphere” (which allows for
the creation of “the aerodynamic lift force”) and the bounds of this layer (stratum) from the Earth`s sur-
face to a height of about 80 km (about 50 miles) above sea level. Therefore, the upper limit of this layer
almost coincides with the upper demarcation line of the mesosphere [52] and the limits of the layer of
“acceptable atmospheric pressure”.
At the same time, the factor of “aerodynamic density of the atmosphere” has a great inuence both
on the implementation of human life activities and on the economic security of each individual state.
However, this factor does not have a strong impact on the safety of space activities.
3.2.5. The factor “X”.
Notwithstanding, the most important aspect of atmospheric security (both for humanity and each
state) is the risk of a potentially dangerous “object X” (a new active chemical element, a virus, an in-
telligent biological organism, or a similar object) entering the atmosphere from outer space, which if
it gets the Earth is capable of destroying ora, fauna, and even the people. For example, while passing
through the atmosphere, when a spacecraft returns to Earth, some unknown space “object X” (previous-
ly attached to the spaceship in outer space or on a celestial body) may detach from it. We can say that
at this moment the “X factor” arises - the factor of “object X” entering the Earth`s atmosphere. Picture
that this “object X” is an unknown chemical element that is inactive in a vacuum, but when combined
with oxygen it could inuence the atomic structures of known chemical elements (for example, turn
steel into powder). After such “object X” gets the Earth, our civilization may return to its primitive
state. After all, the alchemists` legends about the philosopher`s stone may be based precisely on such a
cosmic “object X”.
Unfortunately, terrestrial technologies can identify in space those objects that they have already en-
countered and identied on Earth. That is, there is a high risk that none of the space researchers would
simply be able to detect this new “object X” and it could be introduced into the atmosphere of a state
that does not carry out space activities and does not have technologies capable of protecting it from “ob-
ject X”. Accordingly, the question arises at what height (the height of the “factor X”) the density and/or
composition of the Earth`s atmosphere is sucient so that, upon entering the Earth`s atmosphere, this
“object X” could further move into the life safety layer «Vita elementis» and cause catastrophic damage.
As of today, there is no answer to this question, and it requires additional scientic experiments to
determine the height of the sanitary atmospheric zone around the Earth.
It can be said that the risk of a dangerous object “X” entering a vital part of the Earth`s atmosphere
is determined by the fth natural factor, which can be conventionally called the factor “X”. At the same
time, the factor “X” is of great importance both for the human life activities and for the security of each
state. In this regard, the presence of the “X” factor requires the denition of the limits of the “sanitary
atmospheric zone” layer to ensure the safety of humanity, which still needs to be established. In this re-
spect, it shall be noted that this factor does not have a signicant impact on the safety of space activities.
3.2.6. The Orbital factor.
The so-called geostationary orbit (GSO) is located at an altitude of about 36,000 kilometers (about
22,370 miles) above sea level [40, p. 301]. The mentioned orbit is crucial for satellite telecommunications
because an object in that orbit over the equator travels at the same speed as the Earth [23, p. 53] – that is,
the movement of the satellite in this orbit is synchronized with the rotation of the Earth around its axis.
Such natural features of the Earth as gravity and axis-turning (the origin of which currently does not
yet have an exact scientic explanation) create a unique and eective “Orbital layer” around the Earth
and determine the sixth natural factor, which can be conditionally called the “Orbital layer” factor.
The discussed layer is above the “aerodynamic density of the atmosphere” layer (where atmo-
spheric density and friction are as low that they do not have a destructive eect on spacecraft) and ex-
tends to an altitude of 36,000 kilometers (about 22,370 miles) above sea level (where the most eective
geostationary orbit is observed).
At the same time, the “Orbital layer” factor does not have a critical impact on human life and state
security, but it is a very important factor for the implementation and safety of space activities in general.
For this very reason, today, the “Orbital layer” contains the largest part of spacecraft launched from
Earth.
3.2.7. Factor of gravitational and other natural interactions of objects in the Solar System.
Up to date, it is a fact of common knowledge that the Sun has a tremendous inuence on normal
human life and activities, warming the Earth and providing the necessary radiation for growing crops.
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Additionally, it is of general knowledge that the Moon inuences human life: ebbs and ows, currents,
dependence of living beings and plants on lunar cycles, and much more besides.
Less known but of equal importance is the inuence of the gravitational forces of the Sun and Moon
on the process of oscillatory and intermittent rotation of the Earth around its axis, namely, on the pro-
cesses called Nutation and Precession [39][20, p. 19–20, 199–200].
Moreover, gravitational forces permeate our entire Universe and have a huge inuence on its forma-
tion.
In addition, Kepler`s laws reect that gravitational forces have a strong mutual inuence on all ob-
jects of the Solar System, on their orbital motion, rotation, and location within the Solar System [17]
[20, p. 1–2, 30–33].
Therefore, it is safe to assume that damage to any celestial object in our Solar System (the Moon,
planets, or others) can lead to a change in its orbital motion, rotation, and location within the Solar
System and, as a consequence, to a change in the existing balance of gravitational forces in the Solar
System.
In turn, a modication in the orbit of any celestial object or a change in the balance of gravitational
forces in the Solar System can lead to a catastrophe on Earth (from a collision of celestial bodies to a
change in the conditions of the Earth`s rotation both around the Sun and around its axis).
Thus, a balanced and stable Solar System is the basis for the sustainable existence of all humanity on
Earth and the consistent implementation of space activities.
Various types of interactions of celestial bodies within the Solar System (from gravitational forces
to radiation), which strongly inuenced the stable and safe development of life on Earth, determine the
seventh natural factor, which can be conventionally called the Factor of gravitational and other nat-
ural interactions of objects in the Solar System.
In this context, the outer limits of the space occupied by the Solar System can be combined with the
outer bounds of the Kuiper Belt, which is home to the most ancient asteroids. In such a way, the Solar
System includes the Sun, which is the star and center of the system, as well as eight planets: Mercury,
Venus, Earth, Mars, Jupiter, Saturn, Uranus, and Neptune [49]. Some of these planets are orbited by one
or more moons same as the Earth is orbited. In addition, there are ve ocially recognized dwarf planets
in our Solar System: Ceres, Pluto, Haumea, Makemake, and Eris, hidden among the Asteroid Belt and at
the very edges of the Solar System near the Kuiper Belt [49]. Some scientists suggest that even further
beyond that, there is the mysterious Oort Cloud, a collection of icy objects that gives birth to dazzling
comets with long tails. However, due to its signicant distance from the Sun (1 light year or 50,000-
100,000 astronomical units), this cloud does not have any eect on human life and space activities, and
it can hardly be attributed to the Solar System.
The inner limit of the Solar System can be conventionally designated as the center of the Sun. How-
ever, taking into account the paradigm of the space-time continuum, each part of the Universe (including
the Solar System) can supposedly have both outer and inner sides, and the beginning of space can simul-
taneously be its edge. Accordingly, under certain conditions, the inner limit of the Solar System can be
considered its outer demarcation limit. As a result, the mentioned limit could be very conditional, built
on the principles of classical geometry.
However, at this stage, the main aspect is not determining the exact demarcation lines of the Solar
System, but understanding that the Factor of gravitational and other natural interactions of objects
in the Solar System exerts a strong inuence on all aspects of human activity: from ordinary existence
to space activities.
3.3. Technical factors.
3.3.1. The factor of “Permanent civil space orbital transportation”.
As of today, the plans of companies such as “Blue Origin” and “SpaceX”, as well as some other
space companies, to organize space tourism and permanent space transportation of passengers and cargo
between dierent locations on Earth are widely blazed. In this case, it refers to transportation for which
spacecraft will be used, that is, a technical means capable of rising above the layer of “aerodynamic
density of the atmosphere” and carrying out a controlled ight in the “Orbital layer”.
In turn, it is obvious that such transportation the likes of regular air transportation will pose a security
threat to the population of both transit countries and countries of departure and destination. Therefore,
any attempts to create permanent civil space transportation between dierent destinations located on the
territory of dierent states will require the development of uniform international standards and addi-
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tional state and international control over the safety of such transportation (uniform launch and landing
standards, transit corridors, passenger safety standards, and much more).
Accordingly, the moment deriving from technical progress one of the space companies announces
the organization of permanent space orbital transportation up to a certain orbital altitude, this will au-
tomatically lead to the emergence of such a technical factor as “Permanent civil space orbital trans-
portation”. The result of the introduction of the mentioned factor will be the emergence of a layer of
“Permanent civil space orbital transportation”, the lower limit of which will be the upper bound of
the layer of “aerodynamic density of the atmosphere”, and the upper limit will be the maximum orbit-
al ight altitude of the spacecraft that will be used for such transportation.
3.3.2. The Ballistic factor.
The main task in the eld of international security in space is to solve problems that can become a source
of conict between states. One of these problems is the unsolved issue of jurisdictions in outer space.
For over 60 years, scientists and lawyers have been trying to tackle the challenge without success,
and being carried away by it they missed the fact that the military had already solved this problem in a
radical and rigid way by creating Intercontinental Ballistic Missiles.
As far as the case is concerned, it is not about launches of combat-loaded Intercontinental Ballistic
Missiles, since this fact in itself is a catastrophe for all of humanity.
The issues at hand are only test or demonstration launches of Intercontinental Ballistic Missiles,
which pose a threat to space activities.
An example of this is the test launches of intercontinental ballistic missiles by the United States,
Russia, and North Korea during 2020-2024.
The peculiarity of these launches is the altitude to which Intercontinental Ballistic Missiles can rise.
Thus, already at the end of the 20th century, the military defense complexes of the world`s leading
players determined the maximum eective ight altitude of Intercontinental Ballistic Missiles to be 400
kilometers (about 250 miles) above sea level [60, p. 158]. At the same time, some types of Interconti-
nental Ballistic Missiles can reach an altitude of up to 7,000 km (4,350 miles) above sea level as con-
rmed by tests conducted by North Korea in 2024 [37]. However, reaching such an altitude signicantly
increases the ight time and accordingly makes the mentioned missiles more vulnerable and ineective.
In this regard, it makes no sense to consider the altitude above 400 kilometers (about 250 miles)
above sea level, within which the main tests of ballistic and hypersonic-guided missiles are conducted.
At the same time, even though test or demonstration launches of such missiles pose a serious threat
to space activities, no one can prohibit these states from carrying out such launches.
De facto, the world has appeared under circumstances where intercontinental ballistic missiles have
given rise to a technical factor that can be conventionally called a “Ballistic factor”.
The result of this factor is the emergence of a “layer of Ballistic space”, the lower limit of which is
the surface of the Earth, and the upper bound is the maximum eective ight altitude of Intercontinental
Ballistic Missiles (that is, 400 kilometers or about 250 miles above sea level).
Moreover, the “Ballistic factor” carries great risks for the life of humanity and the security of states
(the risk of air crashes, falling debris, and much more), and also carries a visible threat to the safety of
space activities in general, since the ight trajectories of Intercontinental Ballistic Missiles at high alti-
tudes intersect with the ight trajectories of space satellites in the “Orbital layer”.
In addition, it is necessary to take into account the fact that further development of technologies may
lead to an increase in the eective ight altitude of such missiles, which will automatically aect the
increase in the height of the “layer of Ballistic space”.
4. Denition of space (cosmic) jurisdictions based on the concept “natura, mores et consuetu-
dines”.
4.1. Basic principles of the concept «natura, mores et consuetudines» (nature, morals, and con-
suetudes) (NMC).
As discussed above, multiple theories, concepts, and suggestions exist for determining jurisdictions
in space activities. Even the authors previously proposed the option of developing aerospace jurisdic-
tions based on dividing the aerospace around the Earth into four layers: “the layer of life safety of the
State” (9 kilometers or 5.6 miles above sea level), “the layer of economic security of the State” (60 ki-
lometers or about 37.3 miles above sea level), “the layer of atmospheric (natural) security of the State”
(1000 kilometers or about 621 miles above sea level), “the layer of spatial security of humanity” (up to
an altitude of 36,000 kilometers or 22,370 miles above sea level) [30][31].
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However, considering the results of this study and identifying factors that inuence or may inuence
the formation of jurisdictions, the authors concluded that the proposed concept should be revised.
It is necessary to understand that cosmic jurisdiction is connected not only with the operation and use
of outer space but also to the safety of space activities and the safety of the existence of states and their
people [40, p. 306]. Thus, this issue is not only legal or technical-physical but also political.
It is safe to say that one of the most important issues of space jurisdiction is not about the limit
between outer space and airspace but concerning the demarcation of the upper limits of the spatial-ter-
ritorial jurisdiction of a state – in other words, where is the upper limit of the state`s political space. To
determine this bound, the essential thing one should understand is that the political space of a state ends
where the threat to the security of its existence (sovereignty) disappears. However, when developing the
law of jurisdictions, it is important not to lose sight of the fact that “ius dicitur locus in quo ius reddi-
tur” (law is the place where the right/decision is exercised/made) [25, p. 87] and “legis virtus haec est
imperare vetare permittere punire” (the power of the law is to command, prohibit, permit, punish) [25,
p. 87]. That is when it comes to the legal formation of the security of states and humanity, it is to be
understood that the law is rendered useless provided it is established in those places where there is no
opportunity to control its observance.
At the same time, to avoid conicts when forming ocial jurisdictions, it is important to remember
the words of ancient Roman jurist Ulpianus, quoting the Greeks, “των νομων οι μεν εγγραφοι, οι δε
αγραφοι” (some laws are written, while others are unwritten) [25, p. 85].
In this context, the question is about already-established morals and consuetudes.
Some of these morals and consuetudes (appropriation of orbits, launching unidentied objects into
space, using satellites for military purposes, etc.) are carried out by separate actors with the tacit consent
and failure to combat from other actors.
Other morals and consuetudes (nuclear tests, ballistic missile launches, wars, the death penalty, etc.)
are performed by separate actors with vociferous objections and condemnation from other subjects but
without their real opposition to such actions.
In turn, as another ancient Roman lawyer Iulianus said, “Invetarata consuetudo pro lege non inmeri-
to custoditur, et hoc est ius quod dicitur moribus constitutum” (the former vested consuetude appears to
be law on merit, and this law is called the law established within morals) [25, p. 113].
Therefore, it is essential to gure out which of these morals and consuetudes can be conditionally
recognized and accepted as a fact for determining space jurisdictions, and which cannot be accepted
under any circumstances. In this context, would be appropriate words of ancient Roman lawyer Paulus,
“optima enim est legum interpres consuetudo” (the best commentator of law is consuetude) [25, p. 115].
In addition, consideration must be given to the fact that regardless of the level of technological prog-
ress, a human remains part of the Universe, for which the basis of development is “Ius naturale, quod
natura omnia animalia docuit” (natural law that all the creatures were taught by the nature) [25, p. 83].
For this very reason, when establishing any jurisdictions, it is necessary to take into account not only
technical and political factors but also natural factors that aect the stability of the surrounding outer
space and the safety of the existence of all humanity as a whole.
At the same time, it should be noticed that the basic “lex naturae” (law of nature) states “cum iure
naturali omnes liberi nascerentur” (under natural law, everyone is born free) [25, p. 85]. Accordingly,
outside the jurisdictions, there can be no laws other than “leges naturae” and all attempts by states to
establish laws for a free man outside their jurisdictions (in outer space) can deliver the only result - a
cosmic revolution.
Consequently, the NMC concept involves the development of space jurisdictions with the consider-
ation of natural and technical factors, established morals and consuetudes along with the safety of space
activities, states, and humanity as a whole.
Hence a preliminary nding is that we can recognize and adhere to some delimitations of jurisdic-
tions (by this medium jurisdictions “quod lege naturae, moribus et consuetudine inductum est” have
existed for a long time), while states can only agree on other demarcation limits, and when some bound-
aries are generally found beyond the competence of people and states.
4.2. “Domestic room” and “alien room” of outer space.
Planet Earth and its nature are the natural habitat of humans, where one is born, grows up, and lives,
and where all natural environments are interconnected with each other and with humans. The Earth and
the space surrounding it are a kind of “domestic room” of humanity. At the same time, the dimensions,
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bounds, and structure of the “domestic room” depend on the natural objects of the Solar System, which
aect the existence of mankind and their modication can negatively aect the safety of humanity.
Therefore, people have every right to explore and develop such natural objects, since this is of para-
mount importance for the existence of all mankind.
At another point, aerospace and celestial bodies outside the “domestic room” of mankind, which are
not the natural habitat of humans and do not aect the safety of the existence of mankind, are an “alien
room”, where a human is only a guest who does not have no rights. In addition, it is necessary to take
into account the existence probability of extraterrestrial intelligent beings outside the “domestic room”,
to whom humanity cannot lay down the rule but can only negotiate with them. That is to say, people
cannot set rules in the “alien room” but can only oer formats of cooperation, both for themselves and
for extraterrestrial intelligent beings.
Given this fact, the only solution for determining jurisdictions will not be the delamination of air and
outer space, but the denition of the boundary between the “domestic room” and the “alien room” to
delimitate the outer limits of human security.
In turn, as stated earlier, the Factor of gravitational and other natural interactions of objects in
the Solar System has the most large-scale (in terms of space) inuence on the stable and safe develop-
ment of life on Earth, determining the size of the “domestic room” within the Solar System.
Taking this factor into account, the Kuiper Belt can be considered the spatial-geometric outer bound-
ary between the “domestic room” and the “alien room”, and the center of the Sun is the spatiotemporal
boundary between these rooms.
Thus, beyond the Kuiper Belt and the center of the Sun, there is the “alien room” for humanity.
At the same time, considering that the Factor of gravitational and other natural interactions of
objects in the Solar System inuences the life activity of all humanity, the basis for space activities
throughout the Solar System will always be international law, common to all states and inhabitants of
the Earth, except spaces that are within the exclusive jurisdiction of individual states.
In turn, it`s most likely that the activities of any state or person outside the Solar System (within the
“alien room”) will not have any impact on the existence of another state or all of humanity on Earth. In
this regard, there can be no international or national rules or jurisdictions outside the Solar System. In the
“alien room”, actors of space activities cease to be subjects of international and national space law and
can independently and from choice enter into agreements and contracts for cooperation outside the Solar
System. In such case, because by natural law every person is born free, neither states nor international
organizations can establish mandatory rules for actors of space activities outside the “domestic room”.
That is, any cooperation agreements cannot establish any rules in the “alien room” for space actors
that are not parties to such agreements.
However, it is necessary not to forget about the possibility of existing outside the “domestic room”
of alien intelligent beings and civilizations, with whom it will be necessary to agree on the exploration
and exploitation of outer space.
Accordingly, despite the absence of the need to develop international mandatory rules of behavior in
the “alien room”, the authors propose already at this stage to outline general principles of such behavior
that are common to all humanity. Representatives of humanity will be able to adhere to these principles
(at their own discretion) outside the Solar System, both in relations with alien intelligent beings and in
relations with each other.
For example, the authors propose to abandon the colonial principles of “Communis”, “Res Nullius”,
and “Res Communis Humanitatus”, and adopt a new principle as the basis for behavior in the “alien
room” - “Res Nullius Civitatis et Res Communis Animal Rationale”.
Under the proposed principle, any activity of states and people in the “alien room” cannot be in the
interests of one or several states but shall consider the interests of all humanity and extraterrestrial in-
telligent beings.
4.3. The structure of the “domestic room”.
Until the time when humanity learns to independently create solar systems similar to our system and
repair and restore them, states and people on Earth can only recognize their dependence on the Factor
of gravitational and other natural interactions of objects in the Solar System and acknowledge the
inuence of space activities on the Solar System stability.
This is precisely why, any space activity of any actor within our Solar System can only be carried out
considering the mentioned factor, which aects the stability and safety of life of all humanity.
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That is, such space activities can only be performed in the parts of our Solar System and in such ways
that do not and cannot cause damage to any person, state, or all of humanity.
In turn, the only way to regulate the interests and ensure the security of all mankind is to establish
and comply with the provisions of international law developed in the interests of all mankind (since no
state has yet created a single legal act in the interests of all mankind).
That is to say, the Factor of gravitational and other natural interactions of objects in the Solar
System establishes a rule according to which the provisions of international law developed in the inter-
ests of all humanity automatically apply to the entire “domestic room” within the Solar System, except
for spaces of national jurisdiction and those regarding which a single rule will be established by all
states on Earth, applicable in the interests of individual states and not humanity.
At the same time, provided all people were Animal Rationale, and strived for common security and
common goals, without attempts to single out the spheres of security and inuence of separate states,
then there would be no need for division and structuring of the “domestic room”.
However, the desire of separate states and people for superiority over others requires ensuring the
security of all humanity from the unpredictable activities of such states and people, by determining the
internal boundaries, size, and structure of the “domestic room”.
Therefore, the internal boundaries, dimensions, and structure of the “domestic room” depend not
only on the Factor of gravitational and other natural interactions of objects in the Solar System
but also on many other “natural factors” that aect the safety of existence of all humanity, states, and
individuals both in near-Earth space and throughout our entire Solar System.
Moreover, in addition to “natural factors”, it is also necessary to take into account “technical factors”
that aect the security of each state, as well as the safety, equality, and eciency of space activities of
all actors.
The inuence of many of these factors on the security of states, their populations, and humanity as
a whole has already determined the boundaries, sizes, and locations of spaces and jurisdictions within
the “domestic room” regardless of the existing intentions and requirements. It only remains to recognize
and accept this fact.
Thus, according to the previously discussed research results, only the layers “Vita elementis” and
“Tectum vitae”, the “layer of acceptable atmospheric pressure”, and the “layer of the aerodynamic
density of the atmosphere” which are above the territory of each specic state turns out to be the crit-
ical basis for the life of the population of the state. At the same time, these layers do not exert a critical
impact on the livelihoods of the population of other states, including their space activities.
In this regard, together with the territory of the corresponding state, these layers create a spatial-terri-
torial unit (domain), which will always be subject to the sovereignty of such a state, since the existence
of the state itself depends on it.
Accordingly, it is necessary to recognize the fact that due to natural law and existing natural factors,
there is a single and sovereign spatial-territorial domain for each state, which includes the surface of
the Earth (on which the territory of this state is located), underground space (to a safe depth), and outer
space (up to an altitude of about 80 km or about 50 miles above sea level).
Since the existence of a particular state completely depends on the stability and security of each such
domain, the exclusive spatial-territorial jurisdiction of only this state will operate within its limits.
In turn, outside its domain, no state can have exclusive jurisdiction. Considering this fact and the
inuence of the Factor of gravitational and other natural interactions of objects in the Solar system
on the safety of all mankind, no actor can carry out space activities that may pose risks to the existence
of all mankind. That is, each subject is obliged to carry out space activities outside the spatial-territorial
domains of states only taking into account the interests of all humanity.
Actually, the above natural factors have already established the rules according to which throughout
the Solar System, outside the spatial-territorial domains of states (above 80 km or about 50 miles above
sea level), only the jurisdiction of international law, supported by the majority of the population and
subjects of international law, applies.
One can only recognize and accept the fact that the space of the Solar System beyond the spatial-ter-
ritorial domains of states is “Res Communis Humanitatus”.
In this regard, any actor that conducts space activities in violation of generally recognized interna-
tional law (including without the permission of generally recognized international bodies) will always
be considered to be committing an unfriendly act towards other states and all humanity.
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In this respect, it is to be understood that the international organization of space activities in “Res
Communis Humanitatus” has its characteristics, including those related to the security and equality of
states (although not directly).
Thus, the risk of the appearance of a natural factor “X” requires the determination of the limits of
“the sanitary atmospheric zone” to ensure the safety of both all humanity and individual states. At this
stage, the authors propose to dene the demarcation limits of “the sanitary atmospheric zone” by the
boundaries of the “Orbital layer”, within which articial space objects and natural space objects [31]
comparable in size are subject to Earth`s gravitational forces, making them “fall” to Earth.
Separately, consideration should be given to the implementation of space activities within the “Orbital
layer” (above 80 km or about 50 miles above sea level and up to an altitude of 36,000 kilometers or about
22,370 miles above sea level) and beyond. As we have mentioned before, such activities can only be car-
ried out on the basis and within the framework of generally recognized international law. However, it is
necessary to take into account the risks for humanity posed by space activities within the “Orbital layer”,
as well as the need to develop space technologies, the possibility of the emergence of the layer of “Per-
manent civil space orbital transportation”, and the equal rights of states to carry out space activities.
Given these factors, the authors propose to apply dierent principles of international regulation for
space activities within the “Orbital layer” and beyond based on the mechanisms of “tacit consent”,
“silent disapproval”, “active consent”, and “active disapproval”.
Thus, to carry out space activities within the “Orbital layer”, the authors propose to use the mecha-
nisms of “active consent” and “tacit consent”.
The “active consent” is determined by the development of an international legal “Act of Active Con-
sent”, which establishes the right for all actors to conduct space activities within the “Orbital layer”,
rules, responsibilities, as well as mechanisms for monitoring such activities and mechanisms for bring-
ing to responsibility.
The “tacit consent” is determined by the right of subjects to perform their space activities within the
“Orbital layer” based on the “Act of Active Consent” without additional permissions from international
and national authorities of the state of registration for each launch of an articial space object into space.
In turn, to carry out space activities outside the “Orbital layer” but within the orbit of the Moon
(approximately 378,000 kilometers or 235,000 miles from the Earth) and on the Moon itself, the authors
propose to use the mechanisms of “silent disapproval” and “active consent”.
The “silent disapproval” means the initial prohibition for actors to carry out their space activities
outside the “Orbital layer” but within the orbit of the Moon and on the Moon itself.
The “active consent” in this case is determined by obtaining separate permission from generally
recognized international bodies to carry out space activities outside the “Orbital layer” but within the
orbit of the Moon and on the Moon itself.
At the same time, to perform space activities beyond the “Orbital layer” and beyond the orbit of the
Moon, the authors propose to use the mechanisms of “tacit consent” and “active disapproval”.
In this context, the “tacit consent” implies the initial permission for actors to carry out their space
activities beyond the “Orbital layer” and the orbit of the Moon. However, the subject cannot carry out
such space activities in the event of “active disapproval” being expressed to one.
The “active disapproval” in these circumstances is determined by the prohibition of generally rec-
ognized international bodies or the majority of subjects of international law on the implementation by
a specic subject of specic space activities outside the “Orbital layer” and beyond the orbit of the
Moon.
According to the authors, such a mechanism for regulating space activities within the “Orbital
layer” and beyond will make it possible to protect humanity from danger and, at the same time, ensure
equal rights of states without slowing down the development of space activities.
In addition, when regulating space activities within the “Orbital layer”, it is necessary to take into
account the technical “Ballistic factor”, which exists due to modern mores and customs and no one can
exclude it. This “Ballistic factor” carries great risks for the life of humanity and the security of states
and today has already formed a conditional layer of “Ballistic space” (from the surface of the Earth to
400 kilometers or about 250 miles above sea level), leaving the world to recognize and accept this fact.
Considering that, on the one hand, the jurisdiction of international law operates in the “Orbital lay-
er”, and on the other hand, as of today, no one can exclude the “Ballistic factor”, the authors propose
to apply an “inclusive military jurisdiction of states” within the “Ballistic space”.
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The essence of the “inclusive military jurisdiction of states” will be that each state possessing Inter-
continental Ballistic Missiles has the right to launch such missiles for test purposes (but with mandatory
prior notication to international space authorities) or to destroy an object that threatens the security of
such a state and is located within the “Ballistic space”.
At the same time, already at this stage, the authors propose that the UN initiate the signing of an in-
ternational agreement to limit the altitude of the use of Intercontinental Ballistic Missiles to a maximum
altitude of 400 kilometers or about 250 miles above sea level, with the prospect of further reducing this
altitude.
Conclusions. In order to determine space jurisdictions, this study analyzes natural and technical fac-
tors that have or may have a critical impact on the existence and security of states, the life of humanity,
and the implementation of space activities.
According to the results of the study, as of today, it is possible to identify 7 natural factors and 2
technical factors, the inuence of which actually determines the spaces to which the sovereignty and
jurisdiction of both states and all of humanity extend.
The following factors can be attributed to natural factors: “Vita elementis”, “Tectum vitae”, “factor
of acceptable atmospheric pressure”, “factor of the aerodynamic density of the atmosphere”, “factor X”,
“Orbital factor”, “Factor of gravitational and other natural interactions of objects in the Solar System”.
Among the technical factors, the “Ballistic factor” and the “Factor of Permanent Civil Space Orbital
Transportation” are highlighted.
Based on these factors, the NMC Concept “natura, mores et consuetudines” is proposed, according
to which, due to natural and other issues, all outer space above the Earth`s surface is divided into a “do-
mestic room” (our Solar System) and an “alien room” (outside the Solar System), the boundary between
which is the Kuiper Belt and the center of the Sun.
At the same time, it is proposed to apply the principle of “Res Communis Humanitatus” to the “do-
mestic room”, and the new principle of “Res Nullius Civitatis et Res Communis Animal Rationale” to
the “alien room”.
Additionally, the authors draw attention to the fact that the above factors have already formed the
structure of the “domestic room” regardless of the existing intentions and suggestions, remaining the
world to recognize and accept it.
Thus, in the structure of the “domestic room”, two types of spaces are formed: the “unied and sover-
eign spatial-territorial domains of states”, to which the exclusive jurisdiction of states extends, and “Res
Communis Humanitatus”, to which generally recognized international law extends.
Moreover, considering all natural and technical factors, the authors address the allocation in “Res
Communis Humanitatus” of two separate layers: “Orbital layer” (above 80 km or about 50 miles above
sea level and up to an altitude of 36,000 kilometers or about 22,370 miles above sea level) and “Ballistic
space” (up to 400 kilometers or about 250 miles above sea level).
The authors also propose the creation of a “sanitary atmospheric zone” to ensure the safety of human-
ity from the impact of the “X” factor. The outer limits of the zone will coincide with the outer boundaries
of the “Orbital layer”.
Understanding the need to develop space technologies and ensure the safety and equal rights of
subjects to carry out space activities, the authors propose the application of dierent principles of inter-
national regulation for “Ballistic space”, “Orbital layer” and space beyond it.
These principles are based on the mechanisms of “tacit consent”, “silent disapproval”, “active con-
sent”, and “active disapproval”.
To implement the NMC Concept and avoid conicts in Space, the authors propose the following draft
of the Pact for the Cosmos.
PACT FOR THE COSMOS
The States Parties to this Pact,
Recognizing the common interest of all mankind in furthering the exploration and exploitation of
outer space for peaceful purposes and the benet of all mankind,
Willing to prevent the Cosmos from becoming an area of international conict,
Declare the following:
1. The objective of this Pact is to safeguard the interests of States and all humanity on Earth.
2. In this regard, the Parties to the Pact acknowledge as follows
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2.1. All outer space from the surface of the Earth to an altitude of 80 kilometers 467 meters (or 50
miles) above sea level that lies above the sovereign territory of each State is part of the single and sover-
eign spatial-territorial domain of the State concerned, to which its national exclusive jurisdiction extends.
2.2. Every object in the Solar System located outside the sovereign spatial-territorial domains of
States and within the Kuiper Belt is the common space heritage and domestic room of humanity, to
which the generally recognized international law applies, based on the principle of Res Communis Hu-
manitatus.
2.3. All objects in outer space outside the Solar System are the alien room for States and all humanity,
which adopt the principle of Res Nullius Civitatis et Res Communis Animal Rationale.
2.4 Ballistic space (from the Earth`s surface to 403 kilometers or 250 miles above sea level) and the
Orbital layer (above 80 kilometers 467 meters or 50 miles above sea level and up to an altitude of 36,000
kilometers or about 22,370 miles above sea level) along with the space beyond them are part of the do-
mestic room, and any activity in these spaces is regulated based on generally recognized international
law by virtue of such legal instruments as:
a) active consent – a consent international act;
b) tacit consent – the initial permission for any subject to act within the framework of a consent
international act;
c) active disapproval – a prohibitive international act;
d) silent disapproval – an initial prohibition on any activity.
2.5. The Parties to the Pact undertake to revise the upper limit of the Ballistic space each calendar
year in the direction of its reduction.
2.6. The Parties to the Pact shall be obliged to establish by 2030 a sanitary atmospheric zone up to
an altitude of 36,000 kilometers or approximately 22,370 miles above sea level, as well as mechanisms
for its control and protection of humanity from any objects that may be harmful.
3. The United Nations has exclusive jurisdiction over the common space heritage of mankind, which
takes precedence over any national jurisdiction.
4. Any lawful activity concerning the common space heritage of mankind shall be carried out with
the authorization of the United Nations and in compliance with international agreements.
5. Any actor (state, company, or individual) that has engaged in unlawful activities to the common
space heritage of mankind shall be considered to have committed an unfriendly or hostile act towards
humanity and each state signatory to the Pact.
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