Open Access Research Article
White Black Legal – International Law Journal · ISSN 2581-8503
THE LEGAL GREY AREA OF INDIA’S STRATOSPHERE
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Abstract
THE LEGAL GREY AREA OF INDIA’S STRATOSPHERE
AUTHORED
BY - VENGATA KRISHNAN S S
BBA
LLB (Hons.)
CRESCENT
SCHOOL OF LAW, BSACIST
Abstract
The distinction between
airspace and outer space has remained one of the most unresolved questions in
international law despite decades of legal and technological developments.
Rapid advancements in aerospace technology have increasingly blurred this distinction,
particularly within the stratosphere. The stratosphere has evolved into a
strategically significant region supporting scientific research, high-altitude
surveillance, defence operations, telecommunications, reusable
launch vehicles, pseudo-satellites, and other near-space activities. However, neither international air law nor space law provides a definitive
legal status for this region.
This paper examines
the legal uncertainty surrounding the status
of the stratosphere from an Indian perspective by analysing the
interaction between the Chicago Convention, 1944, the Outer Space Treaty, 1967,
and India's domestic legal framework, including the Aircraft Act, 1934 and
the National Space Policy, 2023. Although
the Chicago Convention recognises the complete and exclusive sovereignty of every State over the airspace
above its territory, it does not prescribe the vertical extent of such
sovereignty. Likewise, the Outer Space Treaty establishes the principles of freedom of exploration, peaceful
use, and non-appropriation of outer space without
defining where outer space legally begins. This absence of a universally
accepted boundary has created a regulatory vacuum with significant implications
for India's sovereign rights, jurisdiction, national security, commercial space
activities, and international obligations. Contemporary developments, including
high-altitude surveillance platforms, hypersonic technologies, reusable launch
systems, and near-space operations, have demonstrated that the existing legal
framework is insufficient for modern aerospace
activities. Through a doctrinal analysis
of international treaties, domestic legislation,
policy documents, and technological developments, this paper identifies legal
gaps hindering effective governance of this transitional atmospheric region. It
contends that the stratosphere should be recognised as an emerging legal and
strategic domain requiring greater regulatory attention. The paper concludes
that India should adopt a comprehensive legal framework clarifying its
jurisdiction over stratosphere while remaining consistent with international
law.
Keywords: Stratosphere, Air and Space Law, India,
Sovereignty, Outer Space Treaty
Introduction: The Stratospheric Dilemma
The stratosphere, spanning approximately 12 to 50 kilometres above
the Earth's surface, occupies a uniquely ambiguous
position in international law, situated between national airspace, where States
exercise complete sovereignty, and outer space, designated as the province of
all mankind. For India, a nation rapidly advancing its aerospace technology,
defence capabilities, space exploration ambitions, and commercial space
ventures, this region—often termed the "stratosphere grey zone" or
"near-space zone"—presents profound legal, strategic, diplomatic,
environmental, economic, and technological challenges. The absence of a clearly
recognised legal boundary
between sovereign airspace
and outer space
has created a regulatory vacuum that complicates India's ability to
regulate activities, assert sovereignty, address foreign incursions, manage
environmental impacts, foster a burgeoning space economy, and leverage
technological advancements within this critical zone. Despite significant developments in international air and space law, the legal
status of the stratosphere
remains uncertain, giving
rise to questions regarding jurisdiction, applicable legal regimes,
and the extent of State authority over activities occurring in this
transitional region.
Against this backdrop,
the present paper examines the legal grey area surrounding India's stratosphere through an analysis
of the Convention on International Civil Aviation, 1944 (Chicago Convention) and the Treaty
on Principles Governing the Activities
of States in the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies, 1967 (Outer Space Treaty). The study adopts a doctrinal
research methodology by examining the relevant
treaty provisions, India's
domestic legal framework, and contemporary developments
relating to air and space
activities. In particular, it analyses Articles
1, 2, and 3(a) of the Chicago Convention together with Articles I, II, and III of the Outer Space
Treaty to evaluate how the existing legal framework contributes to the
uncertainty surrounding the status of India's stratosphere. It further examines
the implications of this uncertainty for India's national security, aerospace
activities, commercial space ventures, environmental sustainability,
international obligations, economic opportunities, and technological
advancement. Accordingly, this paper seeks to examine whether
the absence of a legally
recognised boundary between sovereign airspace and outer space creates
regulatory uncertainty over the legal status
of India's stratosphere.
Article 1 of the Chicago
Convention: Sovereignty over Airspace
Article 1 of the
Chicago Convention establishes that “every State has complete and exclusive
sovereignty over the airspace above its territory.”[1]
For India, this provision constitutes the legal foundation for exercising
sovereignty over its landmass and territorial waters, which extend up to 12 nautical miles from the baseline, as recognized under customary
international law and the United Nations
Convention on the Law of the Sea 1982.[2]
However, the Chicago Convention fails to define the upper limit of this
"airspace", thereby creating the central legal issue examined
in this paper: where does India's sovereign
airspace end and outer
space begin? The Kármán Line, approximately 100 kilometres above Earth, is
often cited as the boundary between airspace and outer space, but this
threshold lacks legal endorsement in any international treaty.[3]
The stratosphere, ranging from 12 to 50 kilometres, falls within this undefined
zone, where conventional aircraft operations diminish and outer space
activities remain undefined. This omission creates regulatory uncertainty
regarding India's claim to sovereignty over the stratosphere, as the Convention
provides no vertical limit to the term "airspace". The legal
uncertainty has significant practical implications, particularly as India
increasingly relies on high-altitude platforms, such as weather balloons,
surveillance drones, high-altitude pseudo-satellites (HAPS), and scientific
experiments, which operate in the stratosphere. For instance, the India Meteorological Department deploys stratospheric balloons to monitor weather patterns and atmospheric conditions,
supporting disaster preparedness against monsoons, cyclones, and floods.
Although these activities are generally treated as occurring within
India’s sovereign airspace, the absence of a clearly
recognised legal boundary raises uncertainty regarding the legal regime applicable to such
operations, particularly where they approach the transitional zone between sovereign
airspace and outer space. Consequently, this uncertainty may affect
India's jurisdiction over such
operations and create diplomatic and regulatory challenges. Moreover, India’s
ambitious space programmes, including the Chandrayaan
lunar missions and the Gaganyaan human
spaceflight initiative, involve stratospheric transits, highlighting the need
for legal certainty regarding the stratosphere.
Article 2 of the Chicago
Convention: The Undefined Vertical Extent of Sovereignty
Article 2 of the
Chicago Convention defines a state’s territory as “the land areas and
territorial waters adjacent thereto under the sovereignty, suzerainty,
protection or mandate of such State.”[4]
This provision delineates the horizontal extent of India’s sovereignty,
encompassing its landmass and territorial waters up to 12 nautical miles.
However, it remains silent on the vertical dimension, failing to specify the
altitude at which India's sovereign airspace
ends and outer space begins.
Accordingly, Article 2 assumes particular significance in
examining the central question of this paper, namely whether the absence of a
legally recognised boundary between
sovereign airspace and outer space
creates regulatory uncertainty over the legal status of
India's stratosphere. For example, India may seek to regulate high-altitude
activities, such as stratospheric balloons used for scientific research, HAPS
for telecommunications and internet connectivity, or hypersonic vehicles
developed for defence purposes, as extensions of its sovereign airspace. In the
absence of a legally defined altitude limit, such claims may be contested by
other States on the ground that these activities occur within outer space,
where national sovereignty is prohibited under international law. The resulting uncertainty complicates India's ability
to exercise jurisdiction, enforce domestic laws, and
fulfil its international obligations in relation
to activities occurring
within the stratosphere, particularly as emerging
aerospace technologies increasingly blur the distinction between aircraft and
spacecraft. The rise of private space companies in India, such as Skyroot
Aerospace, Agnikul Cosmos, and Pixxel, which are developing suborbital launch
vehicles, HAPS, and hyperspectral imaging satellites that traverse the stratosphere, underscores the need for legal
clarity to regulate these activities effectively. The absence of legal
certainty not only affects governmental regulation but also influences
commercial decision-making, compliance requirements, and long-term investment
within India's emerging aerospace sector. These companies are driving India’s
ambition to become a global leader in space technology, with projections estimating India’s space economy
to reach $13 billion by 2027.
However, the lack of
a defined legal
framework for stratospheric operations creates uncertainty for both regulators and industry players, potentially deterring investment, stifling
innovation, and limiting
India’s competitiveness in the global space market.
Article 3(a) of the Chicago
Convention: The Regulatory Gap for State Aircraft
Article 3(a) of the Chicago Convention limits its applicability to civil aircraft, explicitly excluding state aircraft used for military, customs,
or police purposes.[5] This exclusion means that India’s
military aircraft, high-altitude surveillance drones, HAPS, or experimental vehicles operating in the stratosphere are not governed by the
Chicago Convention. While this grants India significant discretion over its
state aircraft operating within its sovereign airspace, it simultaneously
creates a regulatory gap for stratospheric operations, as no comprehensive
international legal framework specifically governs state aircraft operating
within this transitional zone. This regulatory gap assumes particular
importance in the context of the present study, as it further
illustrates how the absence of a legally
recognised boundary between sovereign airspace and outer
space contributes to uncertainty regarding
India's jurisdiction over stratospheric activities. The
exclusion of state aircraft from the Convention also raises important legal
questions concerning the regulation of foreign military operations within
India's stratosphere, particularly where jurisdiction itself remains uncertain.
For instance, if a foreign state operates
a high-altitude surveillance drone at 30 kilometres above Indian territory, India may view this as a
violation of its sovereignty. However, the lack of a clear boundary between
airspace and outer space, combined with the exclusion of state aircraft from
the Chicago Convention, leaves India with limited legal recourse to challenge
such activities. Consequently, the legal uncertainty extends beyond questions
of sovereignty and has direct implications for national security, defence
planning, intelligence gathering, and regional strategic stability. India’s development of hypersonic weapons,
such as the BrahMos-II missile, which operates at stratospheric
altitudes, highlights the need for a clear legal framework to govern such activities. Without
such legal clarity,
India risks jurisdictional disputes concerning
the legality of its stratospheric military operations, particularly as major
powers continue expanding their high-altitude defence capabilities. The absence
of regulation also raises concerns about potential escalations, as misidentification of stratospheric objects
could lead to diplomatic or military tensions,
especially in a geopolitically sensitive region like South Asia, where India shares borders with
China and Pakistan. For example, incidents involving unidentified high-altitude
objects could exacerbate tensions in disputed border regions like Ladakh, where
India and China have faced military standoffs. Thus, Article 3(a) further
highlights the regulatory uncertainty governing state aircraft operations in India's stratosphere.
Article I of
the Outer Space Treaty: Freedom of Exploration and the Jurisdictional Dilemma
The Outer Space Treaty
introduces further complexities to the legal status of India’s stratosphere. Article I declares that “the exploration
and use of outer space… shall be carried out for the benefit and in the
interests of all countries… and shall be the province of all mankind.”[6] It
guarantees free access to outer space for all states without discrimination and
encourages international cooperation in scientific investigation. However, the
treaty does not define where outer space begins, leaving the stratosphere’s
status ambiguous. This legal uncertainty creates a tension between India’s
sovereign rights under the Chicago Convention and the principle of free
exploration and use of outer space recognised under Article I of the Outer Space Treaty.
If the stratosphere were considered part of outer space, the scope of India's
authority to restrict foreign activities would require assessment under the
Outer Space Treaty and other applicable rules of international law. For
example, the 2023 incident involving a Chinese
high-altitude balloon over North America
sparked debates about whether such objects
fall under airspace or outer space jurisdiction, highlighting the global
relevance of this issue. India faces a similar jurisdictional dilemma, as
foreign entities may characterise their stratospheric operations as scientific activities protected under
Article I, thereby
limiting India's ability to exercise effective regulatory control. Furthermore, Article I's characterisation of outer space as
the "province of all mankind" presents a practical challenge to
India's assertion of sovereign authority over activities occurring within the
stratosphere. The Indian Space Research
Organisation (ISRO) frequently conducts launches that traverse the stratosphere,
such as the Polar Satellite Launch Vehicle (PSLV), Geosynchronous
Satellite Launch Vehicle (GSLV), and Small Satellite Launch Vehicle (SSLV)
missions, which are critical for India’s satellite deployment, navigation, communication, and scientific research. While these activities are regulated under domestic
law as airspace operations, their classification could
shift to outer space activities if the stratosphere is deemed beyond India’s sovereign
control, subjecting them to international scrutiny under the
Outer Space Treaty. Accordingly, the continued absence of a clearly
recognised international boundary between
airspace and outer space
may complicate India's expanding
space ambitions and reinforces the need for greater international legal clarity through
multilateral efforts to address this jurisdictional uncertainty.
Article II of
the Outer Space Treaty: Non-Appropriation and India's Regulatory Authority over
the Stratosphere
Article II of the Outer Space Treaty states
that “outer space…
is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”[7]
This provision explicitly prohibits states, including India, from claiming
sovereignty over outer space. If the stratosphere is
considered part of outer space, India's assertions of jurisdiction over
stratospheric activities—including regulating rocket launches, intercepting
foreign objects, or conducting military tests—could conflict with the principle
of non-appropriation embodied in Article
II. Consequently, the absence of a
legally recognised boundary between sovereign airspace and outer space assumes direct
relevance to the central question of this paper, as it creates
uncertainty regarding the extent of India's lawful
regulatory authority. India currently enforces sovereignty over
its stratospheric operations, such as licensing commercial launches or
conducting defence-related activities. For instance, India’s 2019 Mission Shakti anti-satellite (ASAT)
test, which demonstrated its ability to destroy satellites in low Earth orbit,
likely involved operations that traversed the stratosphere. If such activities
are interpreted as occurring in outer space,
India could face international criticism for militarizing a zone where
sovereignty is prohibited. Accordingly, Article
II presents a jurisdictional dilemma
rather than a straightforward
prohibition, as the legality of India's actions depends upon whether the
relevant activities are characterised as occurring within
sovereign airspace or outer space.
The resulting legal uncertainty also affects India's ability to regulate
emerging aerospace technologies, including reusable launch vehicles, HAPS,
space tourism platforms, and stratospheric airships, whose operations increasingly blur the distinction between aviation and space activities. India’s own space
tourism initiatives, such as those proposed by private companies like Skyroot Aerospace and supported by ISRO’s Gaganyaan programme, further highlight
the need for a clear legal framework to govern stratospheric operations. As
commercial and private participation in the aerospace sector continues to expand, the absence of legal certainty may create
regulatory inconsistencies affecting licensing, liability, investment, and international cooperation. If these activities fall under outer space law, India’s
regulatory authority may be limited,
complicating its efforts
to ensure compliance with national
security, safety, environmental, and economic standards.
Article III of the Outer Space Treaty:
International Law and Peaceful Use
Article III of the Outer Space Treaty mandates
that outer space activities be conducted “in accordance with
international law, including the Charter of the United Nations, in the interest
of maintaining international peace and security.”[8]
This provision underscores the peaceful use of outer space and holds states
accountable for their activities. However, its applicability to the
stratosphere depends on whether this zone is legally classified as outer space,
an unresolved issue that lies at the centre of the present study. India’s
stratospheric activities, such as military surveillance, missile defence tests,
ASAT operations, or HAPS deployments, are often justified as sovereign rights
under the Chicago Convention. If the stratosphere is legally regarded
as outer space,
these activities would be subject
to the peaceful use principle under Article III, potentially limiting
India's ability to undertake certain
defence-oriented operations. For example, If such activities were considered to take place
in outer space, their legality would have to be
assessed in accordance with the Outer Space Treaty, the UN Charter and other
applicable rules of international law. Conversely, Article III provides India with a mechanism to protest foreign
activities in its stratosphere, such as surveillance balloons, drones, or airships, if they threaten international
peace. The 2023 Chinese balloon incident serves as a pertinent example, as it
raised questions about the legality of stratospheric operations under
international law. However, the undefined boundary between airspace and outer space
weakens India’s legal standing, as it cannot
definitively claim jurisdiction over the
stratosphere. This creates a legal
grey zone in which the scope of India's sovereign rights and its corresponding
international obligations remain uncertain, complicating both the regulation of
domestic activities and the legal response to foreign incursions within the
stratosphere.
Implications for India's
National Security
The legal grey area of
the stratosphere has profound implications for India's national security. The
stratosphere is increasingly critical for strategic operations, including
surveillance, missile defence, communication systems, early warning systems, and
counter-space capabilities. India's advancements in aerospace technology, such
as the BrahMos-II hypersonic missile, DRDO's
high-altitude platforms, and ISRO's reusable
launch vehicles, rely on access to this zone. However, the
absence of a clearly recognised legal boundary between sovereign airspace and outer space undermines India's ability to regulate and defend activities within the stratosphere. Foreign
incursions, including high-altitude drones, balloons, or stratospheric
airships, could exploit this legal uncertainty to conduct reconnaissance over
Indian territory. India's
strategic location in South Asia,
bordering China and Pakistan, further heightens the importance of
securing its stratospheric zone. For example, China's advancements in stratospheric airships
and surveillance drones
pose potential security
concerns for India, particularly in disputed regions such as Ladakh,
where high-altitude surveillance is vital for monitoring military activities.
Without a clearly defined legal boundary, India may face difficulties in
establishing violations of its sovereign rights, particularly where foreign
States contend that their activities occur within outer space. The exclusion of state aircraft
from the Chicago Convention further complicates this issue, as military
operations in the stratosphere remain largely unregulated, reinforcing the
regulatory uncertainty surrounding India's response to foreign surveillance and
reconnaissance activities.
Challenges to India's
Commercial Space Sector
India's burgeoning space sector, driven
by ISRO and private companies such as Skyroot Aerospace, Agnikul Cosmos, Pixxel,
and Dhruva Space, is increasingly expanding into stratospheric operations,
including suborbital launches, high-altitude testing, hyperspectral imaging,
and communication platforms. The legal uncertainty surrounding the status of
the stratosphere complicates the regulation of these activities. The absence of a clearly
recognised boundary between sovereign airspace and outer space creates
uncertainty regarding the legal regime applicable to such operations. If the
stratosphere is treated as outer space, India must ensure compliance with the
Outer Space Treaty, potentially limiting its ability to impose domestic
licensing and regulatory requirements. For example, private space companies may
face international scrutiny
if their stratospheric operations are considered inconsistent with the Treaty's principles of free access or
peaceful use. Conversely, if the stratosphere is treated as sovereign airspace, India retains broader
regulatory authority but may face disputes concerning the extent of its
jurisdiction. The emergence of space tourism and reusable launch vehicles
further complicates this legal landscape, as these technologies frequently
traverse the stratosphere and blur the distinction between aircraft and spacecraft.
Skyroot Aerospace's successful launch of India's first private suborbital
rocket in 2022 and Pixxel's hyperspectral imaging satellites demonstrate the
growing commercial significance of this zone. Similarly, Dhruva Space's
satellite platforms underscore the economic potential of India's expanding
space sector. Consequently, the absence of a clear legal framework governing
stratospheric activities creates regulatory uncertainty relating to licensing,
taxation, operational safety, and commercial investment as private
participation continues to shape India's space economy.
Environmental Concerns in Stratospheric Operations
The environmental
implications of stratospheric activities add a critical dimension to the legal grey area. The stratosphere plays a vital role in regulating Earth's
climate through the ozone layer, which protects against
harmful ultraviolet radiation. High-altitude operations, including rocket
launches, hypersonic flights, HAPS, and stratospheric balloons, can release
pollutants such as black carbon, nitrogen oxides, and water vapour,
contributing to ozone depletion and atmospheric warming. India's increasing
stratospheric activities necessitate a legal framework addressing environmental
concerns alongside security and regulatory issues. The Outer Space Treaty's
emphasis on international cooperation could provide
a basis for India
to advocate global standards for stratospheric environmental protection,
although the absence of a clearly recognised boundary complicates their
implementation. India's commitment to sustainable development underscores the
need to integrate environmental considerations into its stratospheric policies.
ISRO's rocket launches traversing the stratosphere must balance scientific,
strategic, and economic objectives with environmental impacts, including
minimising ozone depletion and greenhouse gas emissions. Failure to address
these concerns could invite international criticism and weaken India's position
as a responsible space-faring nation.
Economic Implications of the Stratospheric Legal Vacuum
The economic
implications of the stratospheric grey zone are equally significant. India's space economy, projected to grow to $13 billion by
2027, relies heavily on stratospheric operations for satellite launches, space
tourism, high-altitude communication platforms, and remote sensing. The legal
uncertainty surrounding the stratosphere could deter foreign investment and hinder the growth of India's private
space sector. For instance, companies
such as Skyroot Aerospace,
Agnikul Cosmos, and Pixxel require a clear regulatory framework to attract
global partners and secure funding for their space programmes. Such legal
certainty would foster innovation, generate employment, and strengthen India's
position as a global hub for space technology. Additionally,
the stratosphere's potential for high-altitude internet connectivity through
HAPS could help bridge India's digital divide, particularly in rural and remote
areas. Regulatory ambiguity could delay these initiatives and reduce their
socio-economic benefits. Public-private partnerships between ISRO and private
companies could further promote technological advancement while ensuring
regulatory compliance, thereby strengthening India's expanding space economy.
Technological Developments and Regulatory Challenges
The technological
implications of the stratospheric grey zone are significant, as India seeks to leverage advancements in aerospace and space technology to strengthen its capabilities
in this zone. Developing surveillance systems, including high-altitude drones,
stratospheric airships, and satellite-based monitoring, can enhance India's
ability to detect and respond to unauthorised stratospheric activities. The
Defence Research and Development Organisation (DRDO) is developing
high-altitude platforms for surveillance, communication, and missile defence that could monitor
activities within the stratosphere. Similarly, ISRO's reusable launch vehicle programme and private
companies' suborbital technologies depend on stratospheric operations, reinforcing the need for a clear
legal framework to support technological innovation and regulatory certainty. Collaborative research
with international partners, including the European Space Agency, Japan
Aerospace Exploration Agency, and NASA, could further strengthen India's
technological capabilities while promoting cooperative approaches to
stratospheric governance. Joint initiatives on stratospheric environmental
monitoring could also address the ecological impacts
of high-altitude operations while encouraging international cooperation and
technological exchange.
India's Diplomatic Position
in International Space Governance
The legal grey area
surrounding the stratosphere also places India in a delicate diplomatic
position. As a signatory to both the Chicago Convention and the Outer Space Treaty,
India must balance
its sovereign rights with its international obligations. Asserting sovereignty
over the stratosphere risks accusations of violating the Outer Space Treaty's principle of non-appropriation,
while failing to regulate stratospheric activities could weaken India's
strategic and regulatory position. This
unresolved legal uncertainty also limits India's ability to adopt a consistent
diplomatic stance on the status of the stratosphere in international
negotiations. India's active participation in international forums, such as the
United Nations Committee on the Peaceful Uses of Outer
Space (COPUOS), provides
an opportunity to advocate for a clearly recognised legal demarcation
between sovereign airspace and outer space. Such a position would not only
enhance legal certainty but also reduce jurisdictional disputes relating to
emerging aerospace technologies and high-altitude operations. However,
achieving global consensus remains challenging because States continue
to pursue divergent legal and strategic interests. Developed nations with advanced
space capabilities, such as the United States,
China, and Russia, may favour a lower boundary
to maximise freedom
of access to outer space,
whereas developing nations, including India, Brazil, and South Africa, may support a higher boundary to preserve greater
sovereign control over the stratosphere. The lack of international
agreement on this issue has persisted for decades, with proposals such as the
Kármán Line failing to secure universal acceptance due to competing national
interests. India's growing influence in global space governance, demonstrated
through its leadership in initiatives such as the Global Space Summit 2024 and
its participation in the Artemis Accords, places it in a favourable
position to contribute meaningfully to future discussions on establishing
greater legal certainty regarding the boundary between sovereign airspace and
outer space.
Towards an International Legal Framework
Addressing the legal grey area of India's stratosphere requires a multifaceted approach that combines international advocacy, domestic policy
reforms, technological innovation, regional cooperation, environmental
stewardship, economic incentives, and public engagement. Given that the central
challenge arises from the absence of a legally recognised boundary between
sovereign airspace and outer space, any long-term solution must seek to reduce
regulatory uncertainty while balancing State sovereignty with the
principle of freedom of outer space. India should leverage its position
within the United Nations Committee on
the Peaceful Uses of Outer Space (COPUOS) to promote discussions on a
universally accepted legal demarcation between airspace and outer space. The
Kármán Line at approximately 100 kilometres remains the most widely referenced
threshold, but its lack of formal legal recognition limits its practical value
in resolving jurisdictional disputes. India could therefore support the
development of a treaty-based definition of the boundary between airspace and
outer space. Such a framework would enhance legal certainty by clarifying the
regulatory regime applicable to military surveillance, commercial launches,
scientific research, high-altitude pseudo-satellites (HAPS), and other emerging
aerospace activities. However, achieving global consensus will require
sustained diplomatic engagement, as technologically advanced States such as the
United States and China may be reluctant to accept a fixed boundary that could
restrict operational flexibility in near-space activities. India could
strengthen its negotiating position by building coalitions with other
developing nations, including Brazil, South Africa, Nigeria,
and Indonesia, which share similar
concerns regarding
sovereignty, regulatory certainty, and equitable participation in the future
governance of the stratosphere.
Strengthening India's Domestic
Regulatory Framework
India can strengthen
its domestic legal framework to regulate stratospheric activities regardless of
their legal classification. The Draft Space Activities Bill 2017, which seeks
to regulate India's space sector, could be expanded
to expressly address stratospheric operations. The legislation could establish regulatory
requirements for stratospheric activities without prejudging the unresolved
international boundary between airspace and outer space. It could also establish
licensing requirements for private entities
operating in the stratosphere, ensuring compliance with domestic and
international obligations and promoting greater regulatory certainty. Such a
framework would provide greater legal certainty for companies such as Skyroot
Aerospace, Agnikul Cosmos, Pixxel, and Dhruva Space while reinforcing India's
regulatory authority and encouraging responsible private participation in
emerging aerospace activities. India should also develop regulations for
emerging technologies, including space tourism, hypersonic vehicles, HAPS, and
stratospheric airships, to ensure safety, security, environmental sustainability, economic viability, and effective risk management. The National
Space Policy 2023 could provide the foundation for a comprehensive regulatory
framework balancing economic growth with environmental protection, national
security priorities, and long-term technological advancement.
Technological Measures for Effective Governance
Technological
advancements can help India exercise practical control over its stratosphere
despite the absence of legal clarity. Developing surveillance systems,
including high-altitude drones, stratospheric airships, and satellite-based
monitoring, can improve the detection of unauthorised stratospheric activities.
DRDO's high-altitude platforms for surveillance, communication, and missile
defence could monitor the stratosphere and strengthen national security. Investment in hypersonic and suborbital technologies would also enhance
India's strategic capabilities. ISRO's reusable launch vehicle programme and
private companies' suborbital technologies rely on stratospheric operations and
would benefit from greater legal certainty. International collaboration with
the European Space Agency, Japan Aerospace Exploration Agency, NASA, and the
Indian Ocean Rim Association could strengthen India's technological
capabilities while promoting cooperative approaches to stratospheric
governance. Joint projects on stratospheric environmental monitoring could
address the ecological impacts of high-altitude operations while promoting
international cooperation and technological exchange.
The Role of Regional Cooperation
Regional cooperation can serve as an interim
mechanism for addressing the regulatory uncertainty arising from the absence of a
legally recognised boundary between sovereign airspace and outer space. Although it cannot resolve the issue of
international delimitation, it can facilitate common operational standards for
stratospheric activities pending a universally accepted legal framework. India could pursue
regional agreements through
organisations such as the
South Asian Association for Regional Cooperation (SAARC), the Bay of Bengal
Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC), and
the Quadrilateral Security Dialogue
(Quad) to establish
cooperative norms governing
surveillance, high-altitude operations, information sharing, and
responses to unauthorised stratospheric activities. Such agreements could
include notification mechanisms, confidence-building measures, and protocols
for addressing potential incursions, reducing the risk of diplomatic
misunderstandings and escalation. India and Pakistan
could develop bilateral
arrangements on high-altitude
surveillance activities to minimise tensions arising from the misidentification
of stratospheric objects. India's leadership in regional forums and strategic
partnerships with Japan, Australia,
and the United States through the Quad place it in a favourable position to
promote coordinated approaches to stratospheric governance. While regional
cooperation cannot replace an internationally recognised legal boundary, it
offers a practical interim solution for reducing regulatory uncertainty until
global consensus is achieved.
Promoting Economic Growth through Regulatory Certainty
Economic incentives can
further support India’s efforts to address the regulatory uncertainty
surrounding the stratosphere. By establishing a clear regulatory framework,
India can attract foreign investment and foster innovation in its space sector.
For example, tax incentives for companies developing stratospheric
technologies, such as HAPS, suborbital vehicles, or hyperspectral imaging,
could accelerate India’s space economy growth. Public-private partnerships,
such as those between ISRO and private companies, could drive technological
advancements while ensuring regulatory compliance. India’s Make in India initiative could be leveraged to promote domestic
manufacturing of stratospheric platforms, creating jobs and boosting economic
development. Additionally, public
engagement through education and outreach programmes could raise awareness of
the stratosphere’s importance, fostering domestic support
for India’s space
policies and encouraging STEM education to build
a skilled workforce for the space sector.
Research Suggestion
India should establish
a mandatory registration and tracking system for stratospheric objects and high-altitude platforms
operating over its territory as an interim
measure to address the regulatory uncertainty caused
by the absence of a legally recognised boundary between airspace and outer
space. Operators of scientific balloons, HAPS, high-altitude drones and similar
platforms could be required to register their activities, disclose their
purpose and payload, provide identification information, and maintain
continuous or periodic tracking during operations. India could also establish a central database
accessible to relevant
aviation, defence and space authorities for monitoring such activities. A similar
regulatory approach is followed in the United States, where unmanned free
balloons are subject to notification, tracking and reporting requirements[9].
Such a system would improve situational awareness, enhance national security
and safety, and enable India to exercise more effective regulatory oversight over stratospheric activities while the international legal status and boundary between sovereign airspace and outer
space remain unresolved.
Conclusion
In conclusion, the
legal grey area concerning India's stratosphere highlights the difficulty of
regulating a region between sovereign airspace and outer space. Articles 1, 2 and 3(a) of the Chicago
Convention recognise India's
sovereignty over its airspace but do not define
its vertical limit, while Articles I, II and III of the Outer Space Treaty
apply to outer space without clearly establishing where it begins. This
uncertainty creates challenges for national security, aviation safety,
scientific activities and commercial operations.
Until an
internationally recognised boundary is established, India should adopt an
interim mandatory registration and tracking system for stratospheric objects
and high-altitude platforms operating over its territory. Scientific balloons,
HAPS, high-altitude drones and similar platforms could
be required to disclose their purpose, payload
and identification details and maintain appropriate tracking. A central database
accessible to aviation,
defence and space authorities would improve
situational awareness and regulatory oversight. Such measures would allow India
to address immediate security and safety concerns without prejudging the
unresolved international question of the boundary between airspace and outer
space.
References
The present research is
based on an analysis of the following treaties, statutes, policy documents, official
reports, and academic
literature. These sources
have provided the legal and conceptual foundation for the
arguments advanced in this paper.
A. International Treaties and Conventions
1.
Convention on International Civil Aviation (Chicago
Convention), 1944.
2.
Treaty on
Principles Governing the Activities
of States in the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies (Outer Space Treaty), 1967.
3.
United Nations
Convention on the Law of the Sea (UNCLOS), 1982.
B. Indian Legislation and Policy
1.
Aircraft Act,
1934.
2.
Aircraft Rules,
1937.
3.
National Space Policy, 2023.
4.
Draft Space Activities Bill, 2017.
C. United Nations Documents
1.
United Nations
Office for Outer
Space Affairs (UNOOSA), Status of International
Agreements relating to Activities in Outer Space.
2.
United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS), Reports of the Legal Subcommittee.
D. Books
1.
Bin Cheng,
Studies in International Space Law
(Oxford University Press,
1997).
2.
Malcolm N. Shaw, International Law (9th ed., Cambridge University Press, 2021).
3.
Frans G. von der Dunk
(ed.), Handbook of Space Law (Edward Elgar, 2015).
4.
Francis Lyall
& Paul B. Larsen, Space Law: A Treatise
(2nd ed., Routledge, 2018).
5.
Paul Stephen
Dempsey, Public International Air Law (McGill University Press, 2008).
E. Journal Articles
1.
Bin Cheng,
"The Boundary Problem
between Air Space and Outer
Space."
2.
Frans G. von der Dunk, "The Delimitation of Outer
Space Revisited."
3.
Gbenga Oduntan,
"The Never Ending Dispute:
Legal Theories on the Spatial Demarcation Boundary Plane between
Airspace and Outer Space."
4.
Joanne Irene
Gabrynowicz, "Space Law: Its Cold War Origins and Challenges in the Era of
Globalization."
F. Government and Institutional Publications
1.
Indian Space
Research Organisation (ISRO), Annual Report.
2.
Defence Research
and Development Organisation (DRDO), Annual
Report.
3.
India Meteorological Department (IMD), Upper Air Observation Publications.
4.
IN-SPACe, Indian Space
Sector Reports.
G. Official Websites
1.
Indian Space Research Organisation (ISRO).
2.
United Nations
Office for Outer Space Affairs
(UNOOSA).
3.
International Civil Aviation Organization (ICAO).
H. Foreign Legislation and Regulations
1.
United States Code
of Federal Regulations, 14 CFR §§ 101.33–101.37, “Unmanned Free Balloons.”
[1] Convention on International Civil
Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295 (Chicago Convention), art 1.
[2] United Nations Convention on the Law of the Sea (adopted
10 December 1982,
entered into force
16 November 1994) 1833 UNTS
3, art 3.
[3] Thomas Gangale,
The Development of Outer Space: Sovereignty and Property Rights
in International Law (Praeger 2009) 45.
[4] Chicago Convention (n 1), art 2.
[5] Chicago Convention (n 1), art 3(a).
[6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon
and Other Celestial
Bodies (adopted 27 January 1967, entered into force 10 October 1967)
610 UNTS 205 (Outer Space Treaty), art I.
[7] Outer Space Treaty (n 13), art II.
[8] Outer Space Treaty (n 13), art III.
[9] 14 CFR §§ 101.33–101.37 (United States), Unmanned Free Balloons, Federal
Aviation Regulations.
How to Cite This Article
VENGATA KRISHNAN S S, THE LEGAL GREY AREA OF INDIA’S STRATOSPHERE., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 60-79. Available at: https://www.whiteblacklegal.co.in/public/details/the-legal-grey-area-of-indias-stratosphere
Author & Publication Record
Authors: VENGATA KRISHNAN S S
Registration ID: 107127 | Published Paper ID: WBL7127
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 60-79
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