Private property and militarisation: the new frontiers of space law

Far above our heads, satel­lite con­stel­la­tions are mul­ti­ply­ing at a stag­ger­ing rate. The most con­sid­er­able of which are con­stant­ly expand­ing their net­works even fur­ther – name­ly Star­link by SpaceX for the Unit­ed States and Qian­fan by Shang­hai Space­com Satel­lite Tech­nol­o­gy (SSST) for Chi­na. These equip­ment deploy­ments, as well as on a larg­er scale the devel­op­ment of space projects, raise cru­cial legal ques­tions. In the event of a col­li­sion between satel­lites, for exam­ple, who is at fault? But also, can an enti­ty lay claim to min­er­al resources on the Moon or Mars? Or how do we reg­u­late the ambi­tions of pri­vate actors and those of cer­tain States? To answer these ques­tions, Lucien Rapp, spe­cial­ist in space law and pro­fes­sor at the Uni­ver­si­ty of Toulouse-Capi­tole, as well as at HEC Paris, shares his expertise.

TRUE

Today space activ­i­ties are also includ­ed in this leg­is­la­tion. This inter­na­tion­al law is based on sev­er­al found­ing legal texts, the prin­ci­pal one being the Out­er Space Treaty of 1967¹. These pro­vi­sions were cer­tain­ly marked by the con­text of the Cold War, but they remain very cur­rent. This treaty, signed by all the major space pow­ers of the time – France, the US, the USSR and the UK – estab­lish­es a set of rules in the explo­ration and use of space.

First, it pre­serves out­er space [Edi­tor’s note: the zone beyond Earth­’s atmos­phere] as a sanc­tu­ary by oppos­ing any claim of sov­er­eign­ty and keep­ing it free of nuclear activ­i­ty. It invites States to organ­ise activ­i­ties that fall under their juris­dic­tion and con­trol. It makes them respon­si­ble for their oper­a­tions and those of their nation­als in space and on Earth. In addi­tion, it pro­tects astro­nauts by mak­ing them “envoys of Human­i­ty.” This treaty is not alone, as it is accom­pa­nied by four oth­er treaties nego­ti­at­ed between the end of the 1960s and the mid-1970s.

In total, these five con­ven­tions and their prin­ci­ples con­sti­tute a sol­id legal foun­da­tion, accept­ed by all and whose author­i­ty is yet undisputed.

TRUE

The Out­er Space Treaty opens with three state­ments: the com­mit­ment of sig­na­to­ry states to explore and use space includ­ing the Moon and oth­er celes­tial bod­ies “for the ben­e­fit and in the inter­ests of all coun­tries, regard­less of their stage of eco­nom­ic or sci­en­tif­ic devel­op­ment”; the some­what con­tra­dic­to­ry procla­ma­tion of the free­dom to do so for States that have the means to do so, and the pro­hi­bi­tion of any nation­al appro­pri­a­tion by procla­ma­tion of sov­er­eign­ty. The text adds “nei­ther by use nor occu­pa­tion, nor by any oth­er means,” as if it were “the pre­rog­a­tive of all mankind” (in the French version).

The Out­er Space Treaty is struc­tured around states, each of which is deemed polit­i­cal­ly and legal­ly responsible.

And if we remem­ber Neil Arm­strong’s beau­ti­ful words dur­ing the Apol­lo 11 mis­sion (“that’s one small step for [a] man, one giant leap for mankind”), these prin­ci­ples nev­er­the­less strike a dis­cor­dant note in the cur­rent cli­mate, where there is reg­u­lar talk of the pos­si­bil­i­ty of pri­vate appro­pri­a­tion of min­er­al resources extract­ed from space, the instal­la­tion of nuclear pow­er sta­tions on the Moon, and the estab­lish­ment of safe­ty zones around space objects.

The Out­er Space Treaty is gen­er­al­ly described as a “state-cen­tred” treaty, mean­ing that it is struc­tured around states. Under the Treaty, each state in the space club is con­sid­ered respon­si­ble in two sens­es of the term: polit­i­cal­ly, because it must organ­ise its activ­i­ties and those of its nation­als; and legal­ly, because it under­takes to bear the con­se­quences of its actions and those of its nation­als. This explains why, with the devel­op­ment of pri­vate activ­i­ties in the space sec­tor and the num­ber of states in the space club, we have seen an increase in the num­ber of space laws. In France, Par­lia­ment adopt­ed the Space Oper­a­tions Act of 3^rd  June 2008, the LOS, which now serves as an inter­na­tion­al ref­er­ence for many states.

UNCERTAIN

In the absence of a spe­cif­ic ban, there is no objec­tive rea­son to oppose it, and we must accept that the rules will evolve to defin­i­tive­ly reg­u­late the sta­tus of this type of activ­i­ty. The real ques­tion that needs to be asked of the experts is what these resources are, whether they are of eco­nom­ic inter­est and for what uses, at what cost and with what tech­nolo­gies they can be extract­ed, stored, refined, trans­port­ed, etc. These ques­tions appear to be entire­ly open.

FALSE

Sov­er­eign­ty and own­er­ship are often con­fused. The treaty pro­hibits claims of sov­er­eign­ty by a state but says noth­ing about pri­vate own­er­ship oth­er than the cryp­tic phrase as men­tioned above: “nei­ther by use or occu­pa­tion, nor by any oth­er means.” It is this loop­hole that the Unit­ed States, with the Artemis Accords, and oth­er space­far­ing states after it, have rushed to exploit to set a prece­dent and estab­lish a cus­tom­ary rule.

Dur­ing the Sum­mer, this issue returned to the inter­na­tion­al spot­light with Amer­i­can and Sino-Russ­ian plans to install nuclear reac­tors on the Moon to gen­er­ate elec­tric­i­ty for future res­i­dents. This instal­la­tion defies both the let­ter and the spir­it of the Out­er Space Treaty and, even more so, the inter­na­tion­al con­ven­tion that pro­tects the Moon. Add to this that the sen­si­tive nature of the ener­gy source used requires the estab­lish­ment of safe­ty zones, which amounts to the appro­pri­a­tion of por­tions of out­er space by the States con­cerned or their nationals.

UNCERTAIN

The Artemis Accords are an inno­v­a­tive legal instru­ment designed by the US author­i­ties, NASA in par­tic­u­lar, and whose sig­na­ture is a pre­req­ui­site for oth­er states to coop­er­ate with the Unit­ed States on the Artemis pro­gramme and, more gen­er­al­ly, on the peace­ful explo­ration of space. They take the form of a uni­lat­er­al, appar­ent­ly non-nego­tiable text set­ting out a set of new prin­ci­ples, some of which sig­nif­i­cant­ly sup­ple­ment or mod­i­fy the inter­na­tion­al regime for space activ­i­ties as defined by the Out­er Space Treaty. Among these prin­ci­ples is that of pri­vate prop­er­ty in space.

How­ev­er, the Artemis Accords spec­i­fy that they are con­sis­tent with gen­er­al inter­na­tion­al law and inter­na­tion­al space law and that the com­mit­ments they cov­er are not bind­ing, which leaves some doubt as to their true legal scope.

TRUE

Yes, this is one of the cur­rent chal­lenges fac­ing inter­na­tion­al space law. Space activ­i­ty is inher­ent­ly dual use, serv­ing both mil­i­tary and civil­ian pur­pos­es. This is true of the tech­nolo­gies, it is true of the indus­try, and it is also true of the uses to which they are put.

Hence the export con­trols to pre­vent the pro­lif­er­a­tion of weapons, the grad­ual ban on anti-satel­lite mis­siles, and the efforts cur­rent­ly being made to com­bat cyber threats, from jam­ming broad­casts to spy satel­lites. The NIS2 direc­tive, which is cur­rent­ly being trans­posed in France through a bill known as the ‘Resilience’ bill, is a step in this direc­tion, as is the EU Space Act.

UNCERTAIN

Space is not offi­cial­ly a the­atre of hos­til­i­ties, but it is already heav­i­ly mil­i­tarised. Civil­ian and mil­i­tary satel­lites coex­ist there, with the lat­ter’s activ­i­ties obvi­ous­ly being any­thing but peace­ful.  It is to be hoped that this sit­u­a­tion will remain unchanged and that it will not change in the near future. It seems that most states are aware of this.

FALSE

We have an inter­na­tion­al judge, the Inter­na­tion­al Court of Jus­tice. But this judge only set­tles bor­der dis­putes between states; out­er space, by its very nature, can­not give rise to this type of dis­pute. As such, I am not aware of any deci­sions that have been made in this regard.

How­ev­er, we can­not rule out the pos­si­bil­i­ty that dif­fi­cul­ties may one day arise, par­tic­u­lar­ly in the man­age­ment of the fre­quen­cy spec­trum or orbital posi­tions, which are becom­ing increas­ing­ly con­test­ed and whose inter­na­tion­al regime involves del­i­cate coor­di­na­tion pro­ce­dures. Although not sub­ject to inter­na­tion­al lit­i­ga­tion before the Inter­na­tion­al Court of Jus­tice, this type of dis­pute between States, between States and oper­a­tors, or between oper­a­tors may be sub­ject to inter­na­tion­al arbitration.

FALSE

We know how to define air­space both in the part reserved for air traf­fic (as estab­lished by the ICAO) and in the part cor­re­spond­ing to upper air­space, where sophis­ti­cat­ed bal­loons or drones, known as HAPS, cur­rent­ly oper­ate. How­ev­er, none of the rel­e­vant treaties, name­ly the Chica­go Con­ven­tion on Inter­na­tion­al Air Trans­port and the Out­er Space Treaty, have estab­lished any boundaries.

This is all the more prob­lem­at­ic giv­en that the Chica­go Con­ven­tion estab­lish­es the prin­ci­ple of com­plete and exclu­sive sov­er­eign­ty of States over their air­space, where­as, as I have point­ed out, the Out­er Space Treaty pro­hibits any procla­ma­tion of sov­er­eign­ty by States. Arbi­trar­i­ly, the famous Von Kar­man line, at 100 km, is used as a con­ve­nient boundary.

TRUE

Like air­craft or ships, they depend on the sov­er­eign­ty of a State and are attached to it. And it is because they are attached to it through reg­is­tra­tion that the ‘launch­ing’ State can exer­cise juris­dic­tion and con­trol over them and agrees to assume inter­na­tion­al respon­si­bil­i­ty for them with regards third par­ties and oth­er States. All of this is very consistent.

I men­tioned ear­li­er the pro­hi­bi­tion of any appro­pri­a­tion. Space objects (arti­fi­cial bod­ies in out­er space) are an excep­tion to this rule because they are attached to the juris­dic­tion of a State. The ques­tion remains, how­ev­er, whether all launched space objects – many of which are still oper­a­tional – are actu­al­ly reg­is­tered. Unfor­tu­nate­ly, this is not the case. The future Euro­pean reg­u­la­tion (EU Space Act), the text of which was made pub­lic on 25 June 2025, estab­lish­es a Euro­pean reg­is­ter of space objects, the URSO, which will list all objects launched by Euro­pean oper­a­tors as well as by non-Euro­pean oper­a­tors pur­su­ing activ­i­ties on the ter­ri­to­ry of the Union.

TRUE

Con­tracts between oper­a­tors and nation­al space agen­cies, as well as between oper­a­tors them­selves, are now an inde­pen­dent and impor­tant source of legal rules. For many, they some­times con­ve­nient­ly fill gaps left by nation­al or inter­na­tion­al legislation.

The adop­tion of inter­na­tion­al tech­ni­cal stan­dards is essen­tial for the devel­op­ment of space activities.

A text­book exam­ple is the con­tracts con­clud­ed between oper­a­tors for ser­vices pro­vid­ed in space, such as refu­elling or, more gen­er­al­ly, main­te­nance of oper­a­tional satel­lites. To pro­vide its ser­vices, the satel­lite involved must dock with the satel­lite on which the inter­ven­tion is required. Once docked, do these two satel­lites form a sin­gle space object or do they remain sep­a­rate? The ques­tion that aris­es and that the con­tract must cov­er is obvi­ous­ly that of lia­bil­i­ty in the event of an acci­dent caused to anoth­er satel­lite or to a third party.

The adop­tion of inter­na­tion­al tech­ni­cal stan­dards is essen­tial for the devel­op­ment of space activ­i­ties. This is because satel­lite com­mu­ni­ca­tions account for most of the space activ­i­ties mar­ket, but also because the space indus­try is based on assem­bly process­es. All of this requires equip­ment to be inter­op­er­a­ble. It is there­fore impor­tant to have a har­monised set of inter­na­tion­al tech­ni­cal standards.

UNCERTAIN

The Out­er Space Treaty and its sup­ple­men­tary con­ven­tions lay a sol­id foun­da­tion. Although they date back to the ear­ly days of space explo­ration, they remain a use­ful ref­er­ence that no space­far­ing nation seri­ous­ly con­sid­ers chal­leng­ing. Since then, space has become a mar­ket that needs to be reg­u­lat­ed. The amount of debris accu­mu­lat­ed in near-Earth space rais­es the risk of con­ges­tion that could make access impos­si­ble; it must there­fore be managed.

Inno­va­tion reigns supreme in the space sec­tor, and tech­no­log­i­cal devel­op­ments are undoubt­ed­ly out­pac­ing legal devel­op­ments. We need to rethink space gov­er­nance to take this into account, con­sid­er giv­ing out­er space and its poten­tial com­mer­cial exploita­tion a legal regime inspired by that of the high seas, and ensure the effec­tive coex­is­tence of a ful­ly-fledged inter­na­tion­al organ­i­sa­tion, the ICAO, and an inter­na­tion­al asso­ci­a­tion, IATA, which exists in the avi­a­tion sec­tor, and rede­fine the role of exist­ing UN insti­tu­tions: COPUOS and the Office for Out­er Space Affairs (OOSA).

Peri­ods of great upheaval, such as the one we are cur­rent­ly expe­ri­enc­ing, main­ly in the space sec­tor, are gen­er­al­ly con­ducive to the major devel­op­ments that fol­low them. We can there­fore remain confident.

Interview by Marie Varasson