This Historical Fragmentation of US Space Law

As one of the earliest entrants into the space domain, the United States has been on the forefront of innovation in space technology and has, like in other industries, been a proponent of private commercial enterprise in the space domain. This has led to a thriving American space industry across a diverse field of space activities. This diversity of space activities has been a key driver in the development of the US commercial space sector, but it does not come without its drawbacks. One of the clear trends that one can observe in the development of US commercial space law is that it is often reactive in nature. In other words, after new innovations emerge, the law is developed to cope with those new technologies, leaving in its wake a patchwork of regulation. This trend has led to a fragmentation of commercial space law. The competence to regulate space activities is not vested in a single federal agency but is instead spread across a number of agencies. This has led to a critique that US space law is burdensome. This can be seen in the Commercial Space Launch Competitiveness Act of 2015 and the Trump Administration’s Space Policy Directive 2, which both attempt to address the problem of regulatory burden and complexity in the space industry. This chapter will argue that the American system of commercial space law is highly fragmented because of its historical development in tandem with the development of space technologies, and it will examine the current state of play in the regulation of commercial space as the United States attempts to simplify the regulatory framework. The chapter first addresses the historical development of US commercial space activities and shows how the development of the law led to the current state of fragmentation. It then turns to a discussion of the current state of play in the regulation of space activities and the various attempts at smoothing the authorization and licensing procedures for commercial companies. Finally, it draws conclusions on how the United States might address the issue of fragmentation in the current and future eras of space innovation.