Inspired by the recent SpaceX launches I think a closer look is warranted at the laws governing outer space. Space policy or space law is governed by a treaty under the United Nations, its principles govern the activities of states in explorations and use of outer space. However, the treaty is deliberatively unclear and narrow. Weapons of Mass Destruction (WMD) are prohibited but any other form of weaponisation are not included in the treaty.
To supplement the Outer space treaty of the UN several multilateral initiatives were taken but ultimately did not gain enough support to be formalised. China, in partnership with Russia, put forward a treaty called The Treaty on the prevention of weaponisation of outer space, and the EU in similar fashion attempted to create a Code of conduct for outer space activities. The deadlock of these treaties can be explained due the very nature of the policy field. Only a very limited number of states have the capability for spacefaring, and those that have the means differ in interpreting the outer space treaty. No one wants to upset the current balance and satisfactory yet limited treaty.
It is no surprise then that states are turning to national law for space law creation. There is an evident need for a regulatory framework that states are now filling with a patch work of national law. A model (ILA model) has been created on the formulation of said laws, however upon examination it is merely a template for national regulation.
States adopt regulations that fit their need and are based on their interpretation of the outer space treaty. These new laws will become the basis for future international arrangements simply due to the fact of leading by example. In this scenario however, how then will the interests of the states that do not have space access capabilities be guaranteed? To state that subsequent domestic laws replace the OST is not a given, the US for instance, has shown to include the OST in its new laws to merely be subsidiary to the original treaty. But even if there is no intent to be malicious in the creation of national space law, the domain of space policy will be influenced, and non-spacefaring must be wary.
Ensuring non-spacefaring countries having a presence in the creation of space law is the ethical thing to do, but a case can be made whether it is rational. Countries that have invested a lot of capital in the creation of their space program should not be limited by those that do not. A balance of the scope of the international framework is therefor of utmost importance, and also the reason that it should stem from an international body. The more traction the privatised space market gets, the higher the need for a proper binding international space legal framework.
