Exploring Outer Space: The Role of Private Companies

Image via NASA

Over the past two decades, discussions about the future of outer space have often gone hand in hand with the role that private space companies, such as SpaceX, Blue Origin, and Rocket Lab, have had in transforming the space industry. Outer space has quickly developed into a competitive commercial landscape, a contrast to initial space law activity that focused on exploration.[1] With this shift, questions have arisen about whether current international space treaties provide adequate protections for space governance between states and private entities, and the protection of outer space resources.

The 1967 Outer Space Treaty

The 1967 Outer Space Treaty (OST) provides the basic framework for international space law and establishes the key principle that outer space is free for exploration and use by all countries.[2] It also asserts that no nation can claim sovereignty over celestial bodies and that outer space must be used for peaceful purposes.[3] The issue of governance of private companies arises because the OST targets the actions of nations, rather than regulating the behavior of private companies. 

Article VI of OST does mention private companies but states that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities.”[4] Article VI further elaborates that “the activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”[5] As a result, the burden of enforcing the OST against private companies falls upon the state parties to the treaty with private space industries. For example, if a private space company launched a satellite from the United States, the U.S. government would be the country responsible for ensuring that the private space company is complying with international space law.

Challenges with Private Space Regulation

Due to the legal framework of OST, as the private space industry has expanded, so has the opportunity for legal loopholes. Under Article VI, since enforcement is the responsibility of states, private space companies might be incentivized to either choose a state not party to OST or a state with lax enforcement mechanisms to conduct their business.[6] This ability to “shop” for the best legal environment can lead to huge inconsistencies in the regulation of space activities, thus undermining international space law. 

For example, in 2017, Luxembourg passed a law on the exploration and use of space resources, stating that “space resources are capable of being owned.”[7] Depending on how this is interpreted, this could be in direct contradiction to international space law, which states that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”[8] Regardless, regulations such as this have resulted in Luxembourg being coined as “a rising star in the space industry,”[9] attracting companies interested in asteroid mining and lunar exploration.

Potential Solutions

As space exploration continues to become more and more commercialized, it has become increasingly apparent that existing treaties may need to be updated to address modern challenges. The space industry could also benefit by amending existing treaties to include more robust and standardized regulatory laws.[10] Not only will this help create more consistency with the types of space exploration and activity occurring, but it will also help reaffirm the commitments made by signatories of OST.

And even though these concerns might seem fairly novel, the need for new regulations for international space law is not a new concern. In 2020, the United States introduced the Artemis Accords, which are a set of principles that guide the peaceful exploration and use of space based on OST.[11] Unlike older treaties, the Artemis Accords serve to explicitly address the role of private sector operations, while also setting guidelines that adhere to existing national and international space laws.[12] However, many countries have refused to sign the Artemis Accords due to it being too “US-centric.”[13]Additionally, critics note that the Artemis Accords “shed private corporations of responsibility and create a scenario in which rogue private entities could violate the terms of the agreement without facing severe consequences.”[14] Thus, even with the development of newer agreements, similar issues with the regulation of private companies still arise.

While national and private sector interests are the primary motivators pushing space development, international cooperation is essential moving forward. Bilateral agreements such as the Artemis Accords seem to only ignite more tension between States and leave crucial gaps, such as the regulation of weapons in outer space. The future of space law has to prioritize accountability, sustainability, and equity for all States involved in order to create a balance between responsible space exploration and activities and the economic interests of private space companies.

Ankita Joshi is a Staff Editor at CICLR.

[1] Scott Atkins, The Commercialisation of Outer Space, Norton Rose Fulbright (June 2022), https://www.nortonrosefulbright.com/en-us/knowledge/publications/102a426e/the-commercialisation-of-outer-space [https://perma.cc/75KX-C7AU].

[2] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Oct. 10, 1967 [hereinafter Outer Space Treaty].

[3] Id.

[4] Id. at art. VI.

[5] Id.

[6] Moza Alhamed, Sude Capoglu, Sana Feroz, Sophie Hobbs, Seoeun Park & Zihan Wang, Loophole and Lacunae in International Space Law, OxJournal (Oct. 21, 2022), https://www.oxjournal.org/loopholes-lacunae-space-law/ [https://perma.cc/Z4RV-5LZZ].

[7] Luxembourg, Space Resources Law (2017), available at https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html [https://perma.cc/A8DQ-9SDD].

[8] Outer Space Treaty, supra note 3.  

[9] Luxembourg, a rising star in the space industry, Deloitte, https://www.deloitte.com/lu/en/Industries/technology/research/luxembourg-space-industry-companies.html [https://perma.cc/SY5F-MYBD].

[10] Alhamed et. al., supra note 5.

[11] Artemis Accords: Principles for a Safe, Peaceful, and Prosperous Future in Space, NASA, https://www.nasa.gov/artemis-accords/[https://perma.cc/3UA3-QFXB].

[12] Id.

[13] The Artemis Accords: International Cooperation in the Era of Space Exploration, Harvard International Review (Jan. 27, 2023) https://hir.harvard.edu/the-artemis-accords/ [https://perma.cc/8LC5-AN54].

[14] Id.