Legal Implications of the Growth of Commercial Space

The very title of the Treaty on Principles Governing the Activities of Space in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies betrays its limitations. Negotiated at a time when just States—really just two States—were actively engaged in space activities, the Treaty only notionally contemplated the existence of non-State actors by including, after considerable discussion, language in Article VI which makes States liable for activities carried on even by their non-governmental entities. This responsibility far exceeds the international custom that States are responsible only for non-governmental entities that are acting under the direction or control of the State. Article VI further requires that States authorize and continually supervise the activities of their non-governmental entities. This—combined with (1) the broadly descripted concept of a launching State and (2) the vague character of the due regard principle encapsulated in Article IX of the Treaty—leads to legal convolutions that will only benefit litigating attorneys. This chapter will examine: (1) select commercial activities that have already tested the efficacy of the Outer Space Treaty in this new commercial space era including China’s formal complaint about the close proximity of two Starlink satellites to its space station; and (2) planned activities, such as the space hotels proposed by Blue Origin, that will sow even more confusion from a regulatory and legal perspective. In so doing, the chapter will dissect the concept of State liability for its non-governmental nationals with respect to all aspects of space activity, including environmental, and analyze what is truly required to meet the obligation to properly authorize and supervise such nationals. In addition, the chapter will explore how these issues overlay geopolitical considerations and consider the best way forward to prevent conflict in space.