Houston, We Have a Problem: International Law’s Inability to Regulate Space Exploration

by Madi Gates, NYU Law J.D. Class of 2026

I. Introduction

The commercial space industry is rapidly transforming science fiction into reality. Companies like SpaceX and Blue Origin are redefining access to space, while NASA’s Artemis program, with support from commercial entities, reignites the race to the Moon. As everyday adventurers walk the edge of Earth’s atmosphere and visionaries recruit future Martian colonists, these advancements evoke awe. However, such feats by private actors pushing the limits of possibility also raise questions about current legal frameworks governing space activities and liability for non-state actors.

The international space law regime, developed during the Cold War-era Space Race, emerged at a time when private space activity was virtually nonexistent and when only two nations held spacefaring capabilities. As the final frontier becomes a hotbed for both groundbreaking achievements and unprecedented challenges, it is increasingly clear that the existing legal structure is inadequate to address the complexities introduced by the rapidly expanding private space sector, especially concerning how to attribute responsibility and manage emerging risks. Moreover, the very boundaries of outer space have yet to be legally delimited. Neither international organizations nor states have definitively established the legal boundaries of outer space. This lack of agreement leaves critical questions of sovereignty and jurisdiction unresolved, complicating efforts to create a comprehensive legal framework for space activities.

II. Origins of International Space Law

International space law emerged during the Space Race. The groundwork was laid by United Nations General Assembly Resolution 1348 in 1958, which addressed the question of the peaceful use of outer space. This resolution established the Committee on the Peaceful Uses of Outer Space (COPUOS), the primary intergovernmental committee governing outer space activities today.

In 1963, COPUOS, supported by the United Nations Office for Outer Space Affairs (UNOOSA), articulated nine legal principles guiding space governance. These principles were formalized in the Outer Space Treaty (OST) of 1967, which prohibits militarization of space and mandates that space exploration benefit all humankind. However, it was conceived in a context where private space activity was virtually nonexistent, with states as the sole operators in space. Thus, the treaty, like many international agreements of its time, reflects a highly state-centric model of governance.

Subsequent treaties expanded the legal principles of the OST. The five core international space law treaties­—namely, the Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1976 Registration Convention, and the 1984 Moon Agreement—establish the foundational legal framework for space activities. The Rescue Agreement obligates states to assist astronauts in distress, while the Liability Convention establishes mechanisms to hold states accountable for damages caused by their space activities. The Registration Convention mandates that states provide information about the objects they launch, and the Moon Agreement sets out principles for resource use and the protection of the Moon and celestial bodies. However, like the OST, these treaties did not anticipate private space activity, resulting in substantial shortcomings in their ability to address the complexities introduced by evolving modern space dynamics.

III. Core Principles

The foundational treaties of international space law, particularly the OST, established key principles reflecting the geopolitical realities of the Cold War.

A significant principle is that outer space is the province of all humankind (Article I of the OST), which prohibits national appropriation or sovereignty claims, thereby preventing territorial disputes in space. Article II explicitly forbids states from claiming ownership over celestial bodies such as the Moon, asteroids, or other planets, promoting shared exploitation and resource use.

Article IV further reinforces peaceful intentions by banning weapons of mass destruction in outer space and military bases in outer space. This article was crucial in ensuring the demilitarization of space, reinforcing the treaty’s goal of keeping outer space free from armed conflict. 

Perhaps the most pertinent provision for today’s space landscape is Article VI, which obligates states party to the treaty to authorize and continually supervise the activities of non-governmental entities in outer space. This requirement reflects the treaty’s state-centric foundation, placing the responsibility for monitoring private actors on states. However, it also highlights a major challenge, as the growing role of private companies complicates states’ ability to regulate space activities fully.

Finally, Article IX requires states to avoid harmful interference with the activities of others, aiming to minimize conflict by considering the interests of other spacefaring nations.  

While these principles effectively promoted peaceful space use during the Cold War, they are increasingly outdated in the context of modern exploration. The rise of private companies in the space industry exposes significant gaps in the regulatory framework, as state-centric principles struggle to accommodate non-state actors by lacking mechanisms to ensure compliance with international law.

IV. Current Challenges

Modern space exploration faces challenges such as resource competition, debris management, and liability for private activities, which reveals the inadequacy of current international legal frameworks to regulate these issues effectively.

a. Race for Resources

A significant challenge lies in the race for extraterrestrial resources. As states and private entities set their sights on lunar and asteroid mining, complex legal questions arise. The NASA Artemis program, which aims to return humans to the Moon, has led to the development of the Artemis Accords, outlining principles for cooperation and resource sharing in lunar exploration. However, as the United States, Russia, and China announce plans for permanent lunar bases, questions about equitable access to and control of these resources are increasingly pressing.

Furthermore, several states now permit their citizens to own, transport, use, and sell lunar resources, which arguably conflicts with the OST’s principle of non-appropriation of outer space (Article II).  Former NASA Administrator, James Bridenstine, likened the acquisition of these resources to fishing in international waters—as long as no one claims ownership of the area from which they harvest, the activity is permitted, as long as it adheres to other provisions of the OST.

b. Space Debris Management

The increasing number of commercial launches has raised concerns regarding space debris management. As the number of private satellite launches increases, so does the risk of collisions in low Earth orbit, which can result in cascading debris that threatens operational spacecraft. While this debris seldom causes damage on Earth—it burns up during reentry—it may contribute to atmospheric pollution. Currently, there is no international legal framework in place to regulate debris, and existing guidelines rely on voluntary compliance. To ensure the safety and sustainability of future space activities while protecting the investments of private entities in space, an effective debris mitigation strategy is needed.

c. Liability Issues

The growing industry of civilian spaceflight raises liability concerns. Private companies are now transporting civilians beyond Earth’s atmosphere, leaving open the urgent question of who bears responsibility for accidents or damages. Current liability frameworks, such as the 1972 Liability Convention, which establishes a system for claims for damages caused by space objects, may struggle to adapt to the unique challenges posed by commercial space activities involving civilians, who cannot claim the title of “astronaut,” and thus lack protection under the OST.

In summary, this new era of space exploration presents multifaceted challenges that necessitate a reevaluation of existing international space law frameworks to ensure they adequately address the complexities of commercial activities.

V. Governance Gaps

The inadequacy of existing legal frameworks to address novel challenges posed by the expanding private space sector is becoming increasingly evident. As private actors enter the field, principles designed for state actors are proving insufficient.

a. State-Centric Treaties and Ambiguous Language

The five international space treaties were drafted with a focus on state actors, resulting in significant ambiguities concerning the rights and responsibilities of private entities. Terms like “national activities” and “non-governmental entities” lack precise definitions, creating regulatory gaps that allow private companies to argue that they do not fall under these categories, thereby evading oversight. This ambiguity enables states to interpret these terms as they see fit, further complicating the enforcement of existing treaties. The OST, for instance, places the burden of oversight on states, obligating them to ensure that private entities comply with international law. However, as commercial activities multiply, it becomes increasingly unrealistic for states to provide adequate oversight. This situation enables private companies to engage in activities that could have serious consequences for global safety and security without sufficient accountability.

Despite these challenges, states have made efforts to hold space actors accountable. In the United States, the Federal Aviation Administration (FAA) has taken primary responsibility for regulating space activity and is expanding its oversight of human spaceflight in response to the growing private space sector. However, the FAA’s efforts are hindered by challenges, including difficulties in recruiting and retaining a sufficient workforce. Even the United Kingdom, which boasts one of the most extensive space regulatory regimes, is struggling to adapt to this ever-evolving industry. 

Moreover, the OST, which serves as the cornerstone of space law, does not address a fundamental question: where does airspace end, and outer space begin? This lack of clarity further complicates defining the scope of legal jurisdiction and accountability for activities that occur in the area between these two zones, creating additional layers of ambiguity that could exacerbate regulatory challenges.

b. Weak Enforcement

The enforcement mechanisms of international space law are severely lacking, especially when it comes to private actors. Most treaties, including the OST, put the responsibility on states, rather than private companies, leaving private actors mostly unregulated.

Of the five major space law treaties, only the Liability Convention and the Registration Convention provide any structure for enforcement, and even those are limited. Furthermore, organizations such as UNCOPUOS are constrained in their enforcement capabilities. Since UNCOPUOS relies on diplomatic consensus, it can hinder urgent action, making it easier for private entities to evade accountability for breaching international law.

In the United States, industry experts have proposed that disputes involving private companies be resolved in federal courts or through aerospace arbitration. Outside of the U.S., however, pathways to justice are less defined.

c. Absence of Norms for Private Activities

The absence of universally accepted norms governing private space activities exacerbates these governance gaps. Historically, customary international space law has focused almost exclusively on state actors, as they were the sole operators in space. Without clear, widely accepted norms, customary international law fails to regulate the private space sector in areas where existing treaties are insufficient.

Given these gaps in governance and enforcement, private actors have many opportunities to skirt international space law. Ambiguities in treaty language and an absence of strong enforcement mechanisms allow these actors to operate with minimal oversight. For example, in 2020, a SpaceX satellite nearly collided with a European Space Agency satellite. In response to the incident, SpaceX referred to the near-collision as a “bug” and promised to take “corrective actions.” As space technology advances and the costs of entering space decrease, the presence of private companies in space will only grow. Without more comprehensive and enforceable legal frameworks, the obscurity of legal obligations and scarcity of accountability in outer space will generate increasingly severe risks. To uphold the rule of law, the international community must unite to create systems that ensure all actors are subject to clear and enforceable regulations.

VI. Toward a Robust Framework

a. Amending the OST

To fill the gaps in international space law, the Outer Space Treaty (OST) should be amended to explicitly incorporate private actors within its regulatory framework by imposing obligations on their home states to regulate them, thus creating indirect accountability for private actors. However, this adjustment alone will not resolve the broader issue of the treaty’s ambiguous language and broad provisions. Therefore, it may be beneficial to explore the creation of a new treaty that establishes clear international agreements outlining basic requirements for safety and liability specifically for private space activities. This approach would be novel in the context of space law, as no existing treaties currently address the public-private dynamic in this way. However, similar regulatory frameworks in other industries, such as the regulation of private aviation within the broader civil aviation framework, could provide useful analogies. Additionally, this new framework should also establish standards of conduct for private entities to ensure responsible behavior in space. For instance, Article VI of the OST could be reimagined to include precise definitions for terms like “non-governmental entities” to eliminate ambiguities, ensuring that all private actors and their respective obligations are explicitly encompassed under states’ responsibilities. This amendment would provide a clearer basis for holding states accountable for damages or harm caused by private actors in space.

b. Establishing a Monitoring and Compliance Authority

To improve international oversight, establishing a dedicated international monitoring body is essential. While UNCOPUOS has potential, it lacks the authority and resources for effective oversight. A new body would monitor compliance with established norms, gather data on private space activities, and identify potential violations. A separate compliance body would investigate violations and impose penalties on non-compliant entities, ensuring accountability.

While most international bodies are composed of states, there are examples in other domains where private actors play a big role in norm-setting. In internet governance, the Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit based in California, manages the global Domain Name System which is essential to the internet’s current function. Although ICANN does not create binding law, its influence in shaping communication and information policy norms surpasses that of many national governments and international organizations. This example prompts one to imagine a space governance framework where private actors and international organizations collaborate in shaping norms and ensuring that regulations evolve with space exploration, even if enforcement ultimately rests with states.

VII. Conclusion

The rapid growth of the commercial space industry exposes the inadequacy of existing international space law, which primarily targets state actors and fails to hold private actors accountable. To bridge these governance gaps, we must amend the Outer Space Treaty and establish a dedicated international monitoring and compliance body. The future of the final frontier hinges on the international community’s ability to adapt its legal structures to meet the complexities of modern exploration in order to ensure that space remains a domain for the benefit of all humankind.