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