Policy and regulation

Space law is thin, old and mostly not designed for commercial activity. It rests on five treaties negotiated between 1967 and 1979, since when no binding multilateral space treaty has been concluded.

The treaty regime

Three provisions of the Outer Space Treaty do most of the work.

Article II prohibits national appropriation of celestial bodies by claim of sovereignty, use, occupation or any other means. It says nothing explicit about private extraction of resources, which is the ambiguity underlying every current resource debate.

Article VI makes states responsible for the activities of their nationals, including private companies, and requires authorisation and continuing supervision. This is why every commercial operator needs a national licence: the state is on the hook for what it does.

Article VII establishes launching state liability, elaborated by the Liability Convention into absolute liability for damage on Earth or to aircraft, and fault-based liability for damage in space. The distinction matters, because proving fault in an orbital collision is difficult and no case has ever been brought.

The resource question

Several states, including the United States, Luxembourg, the United Arab Emirates and Japan, have enacted laws recognising private ownership of resources extracted from celestial bodies.

The legal argument is that Article II prohibits appropriating a body but not extracting and owning material from it, by analogy with fishing in international waters: the ocean cannot be claimed, but the fish caught become property.

The counterargument is that this reads a commercial regime into a treaty that contemplated none, that the analogy to the high seas is not obviously correct because the treaty’s language differs, and that a small group of states cannot establish international law by passing consistent domestic legislation.

The position is genuinely unsettled. It has not been tested because nobody has extracted anything of value, and the practical significance is that a company raising capital against future resource ownership is relying on an interpretation rather than an established right. See Asteroids and comets.

The Artemis Accords attempt to establish operating norms outside the treaty process, including safety zones around operations. Whether safety zones are compatible with the non-appropriation principle is disputed, and the fact that they are established through bilateral agreements rather than multilaterally is itself the subject of criticism. See Artemis and human lunar return.

Launch and reentry licensing

Every launch from a national territory or by a national entity requires authorisation.

Licensing is oriented around third-party risk: the expected casualty from a failure, the flight corridor and range safety, the debris footprint of a reentry, and financial responsibility through insurance or bonding.

Notably, licensing generally does not assess whether the mission is a good idea, whether the business is viable, or whether the payload is useful. The state’s interest is that a failure does not harm uninvolved people and that liability is covered.

Spectrum and orbital slots

Radio spectrum is the scarcest regulated resource in space and is coordinated internationally through the ITU.

The regime is first come, first served by filing date, which produced a long-standing problem of paper satellites: filings made to reserve priority with no intention to launch, sometimes then sold. Milestone requirements now force actual deployment on a schedule, which has reduced speculative filing while making schedule pressure on genuine operators severe.

Geostationary slots are additionally coordinated under a planning regime that reserves capacity for every country, on the principle that the orbit is a shared resource rather than a first-mover prize. That is a deliberate departure from first-come-first-served and reflects developing countries’ concern that the orbit would be fully allocated before they could use it.

Remote sensing

Imaging licensing is separate from launch and spectrum, and is where policy most directly limits capability.

Resolution limits have historically been imposed on commercial operators, at 0.5 m for a long period in the United States and later relaxed. Restrictions on imaging specific territories have also been applied. The tension is between commercial competitiveness, since a domestic operator restricted below what foreign operators offer simply loses the business, and national security concerns about who can see what.

The trend has been toward relaxation, driven by the recognition that restrictions are ineffective when foreign capability is unrestricted. See Earth observation.

Export control

Export control is the regulation with the largest practical effect on day-to-day engineering, and it is frequently the most frustrating.

Under the US regime, spacecraft and many components are controlled either as munitions under ITAR or as dual-use items under EAR. Control follows the item and the technical data, not just the physical hardware, so a conversation with a foreign national about a controlled design can itself be an export.

The historical lesson is instructive. Moving commercial satellites to the munitions list in the late 1990s was intended to protect US technology. Its main measurable effect was to reduce the US share of the commercial satellite market, as customers chose suppliers who would not require export licences. Subsequent reform moved many items back to the dual-use list.

Gaps

The framework has clear holes, and they are widening.

No traffic management

Conjunction warnings are advisories. No binding rule requires coordination, assigns right of way, or determines who manoeuvres when two active satellites conjunct.

No debris enforcement

Mitigation guidelines are non-binding internationally. National rules vary, and an operator can license in a permissive jurisdiction.

No debris removal authority

An object remains the launching state property indefinitely, so removing someone else debris requires consent that may be impossible to obtain.

Resource rights unsettled

Domestic laws assert what the treaty does not clearly permit or forbid.

No agreed rules on interference

Deliberate interference with satellites, jamming and cyber attack sit ambiguously between existing frameworks.

The structural problem is that binding international agreement is slow and the activity is fast. The response has been soft law: guidelines, norms of behaviour and bilateral accords. These are better than nothing and are not equivalent to a regime with enforcement, and whether they suffice as the orbital population grows is the central policy question of the next decade. See Space debris and traffic management.

References

• Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1967, and the associated UN treaties.
• Lyall, F. and Larsen, P. B. Space Law: A Treatise, 2nd ed., Routledge, 2018.
• ITU Radio Regulations, Articles 9, 11 and 22, and Appendices 30, 30A, 30B.
• FCC Report and Order 22-74, Mitigation of Orbital Debris in the New Space Age, 2022.
• Jakhu, R. S. and Pelton, J. N. (eds.) Global Space Governance: An International Study, Springer, 2017.
• US Department of State, Artemis Accords, 2020.