Journal of Air Law and Commerce
Abstract
Most of the law governing outer space is public international law, which applies, with limited exceptions, directly to nation-states (states) only. The application of international law to nongovernmental entities’ (NGEs), such as natural persons and companies with distinct legal personage, activities in outer space occurs through a state’s domestic legal implementation of that international law. The United States is a party to several treaties that govern the exploration and use of outer space (the Applicable Treaties), which, through the Supremacy Clause of the U.S. Constitution, become “the supreme Law of the Land.” The Applicable Treaties were written and went into effect when only states operated in outer space. When U.S. NGEs eventually began conducting non-national activities in outer space, the global and U.S. legal frameworks and associated regulatory apparatus, designed for the direct and indirect conduct of states’ national activities in outer space, were applied to NGEs’ non-national activities in outer space. This creates legal tensions and ambiguities arising from the application of laws never intended to apply to NGEs’ non-national activities in outer space. The frequency and variety of such activities will expand exponentially over time. How will the United States authorize and supervise such activities in accordance with its obligations under the Applicable Treaties? How can the United States hope to keep pace with the speed and ingenuity of commercial enterprise? Embracing the U.S.’ heritage of federalism may provide the answer and a competitive advantage in this new space race.
Recommended Citation
Steven E. Bartz, In the Heavens as It Is on Earth: Embracing Federalism to Supervise and Promote U.S. Non-Governmental Entities’ Non-National Activities in Outer Space,
91
J. Air L. & Com.
231
(2026)
