Harmonized International Space Rules Seen as Increasingly Out of Reach

There’s greater concern among nations about the lack of clarity on what agreements like 1967's Outer Space Treaty say about novel space missions like rendezvous and proximity operations, said Andrea Harrington, co-director of McGill University's Institute of Air and Space Law.

Pollpeter said China's lunar exploration program is fundamentally about international cooperation, as the country has an agreement with Russia to partner on an international research space station, a temporary lunar base by 2035 and a long-term, continually manned presence on the moon by 2045. After that, China will be talking about sending astronauts to Mars, he said. “China wants to be a superpower. Superpowers have big space programs."

China's lunar program rivals the U.S.-led Artemis Accords, a set of nonbinding principles governing space exploration and use, Pollpeter said. China has signed partnership agreements with 11 nations for its lunar program, focusing on the global south and BRICS members, he added. There's concern that China will be aggressive in claiming lunar territory when trying to use or mine the moon, he said, citing the need for efforts to deconflict orbits around the moon. The prospects for U.S./China cooperation seem slim, especially since technological cooperation between NASA and the Chinese space program is very difficult, he said.

China almost surely will remain a closed market to commercial services, like satellite communications from U.S. providers, given its government’s preference for control of information, Pollpeter told us later.

The University of Mississippi School of Law's Charles Stotler, director of its Center for Air and Space Law, said there was a trend toward international collaboration at the beginning of the space age, but it didn't last, with global coordination becoming the dominant approach. The debate over cooperation versus coordination is playing out now before the U.N. Committee on the Peaceful Uses of Outer Space, which is determining how to manage space traffic.

Increasing use of rideshares in launches is ramping up international cooperation issues, said Blue Origin Senior Legal Counsel Austin Murnane. The growth of commercial activity on the moon is enabling more international commercial transactions and cooperation, he added.

Pollpeter said China is generally supportive of harmonizing rules, but it prefers going through the U.N.

There’s also greater interest in using nuclear energy in space for propulsion and power, but the U.S. launch and nuclear power regulatory systems serve more as barriers than enablers, space law experts said. There’s a lack of clear regulatory guidance for nuclear systems in space, said Clarence Tolliver, a nuclear energy and space lawyer at Pillsbury Winthrop.

FAA licensing involves risk assessments to determine the insurance or financial wherewithal a company needs. He said it might be tough to get insurance for nuclear systems, as commercial insurers often don't cover their risks.

Hogan Lovells nuclear power lawyer Amy Roma said there have been executive actions in recent years pushing nuclear power’s use in space, such as the formation of working groups. Nuclear Regulatory Commission licensing is designed for large-scale nuclear power plants, she said, though it has been working on a framework for micro-reactors.

A set of executive orders last month (see here, here, here and here) regarding nuclear energy pushed for streamlining the regulatory process, but there’s no additional funding to increase federal activity, along with the rise in federal employee workload and mass employee exodus, Roma said.