International space law of the era of the beginning of the business colonization of space

Abstract

Traditional approach to the activity in outer space as exclusive domain of few big space faring states through special governmental agencies as a sort of natural monopolies is rapidly placing by the prevailing view that such activity could be successfully and efficiently performed by private entities and fair competition between such players shall be allowed and is even desirable. Increasing participation of private capital in exploration of the resources of outer space is a persuasive confirmation of the emerging large-scale, self-sufficient economy of the New Space attractive for potential investors. Such economy requires sufficient level of legal certainty in a form of effective legal rules adequately reflecting contemporary reality and capable to guarantee the rights of commercial players in exploration of space resources including ownership rights on space resources obtained. Arguably, such reshaping of international space law will take place outside the UN and would not be based on the concept of space as a common heritage of mankind. Main drivers of this reshaping will be unilateral national laws like the U.S. Commercial Space Launch Competitiveness Act or Luxembourg Space, bilateral agreements or international treaties with small number of participants (like the International Space Station Agreement or the Artemis Accords). Such national practice and international treaties claiming that they are adopted in implementation and in full conformity with the Outer Space Treaty will be viewed as subsequent practice and subsequent agreements clarifying, amending and even modifying rather vague provisions of the Outer Space Treaty. The values of the Outer Space Treaty will increase due to a lack of strict rules regulating or prohibiting commercial exploitation of space resources. It will allow to perform evolutionary reform of international space law using new avenues of the treaty creating new rules which will implement and improve provisions of the Outer Space Treaty.