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    Since its inception, space law has been governed by principles and rules established by governments and primarily applicable to government activities. Today we are experiencing policy changes to encourage private sector initiatives to carry out government missions and to expand potential profit-making opportunities. The space treaties allow for nongovernmental activities in space but only under the auspices of a nation. Each nation approaches legal solutions in their own way. These variations in national law may create challenges for all space-faring nations. If there are no international agreements, they may create a more fragmented, unpredictable, and unsustainable environment for all participants, both governments and private companies in outer space.
    The fragmentation of international law is defined by the development of sets of rules pertaining to specific subject areas that may claim autonomy from principles of general international law. Those subject areas reflect the larger global issues that include the environment, energy, resource availability, migration, health, and the proliferation of weapons of mass destruction. Space law is unique and may be considered one of the fragmented areas of international law. The principles of the now 50-year old treaties have been formally acknowledged by all space-faring nations. New developments may threaten that.
    At issue are many areas of space law including liability, property rights, and environmental harm. Different on-orbit space activities such as satellite servicing, exploiting resources, and removing debris highlight the types of space activities with many similar legal concerns but which may result in different rules in different nations and even for different rules within a nation. New and growing legal tensions among space-faring nations will arise.
    Solutions to this problem are all suboptimal. Neither top-down oversight nor separate bottom-up rules or guidelines will suffice as stable, predictable, and long-lasting regimes that create a favorable legal environment for future public and private space exploration and use.


Henry R. Hertzfeld
Director and Research Professor, Space Policy Institute, George Washington University, Washington, DC; hhertzfeld@law.gwu.edu.
Article

How Simple Terms Mislead Us

The Pitfalls of Thinking about Outer Space as a Commons

Journal International Institute of Space Law, Issue 5 2015
Authors Henry R. Hertzfeld, Brian Weeden and Christopher D. Johnson
Author's information

Henry R. Hertzfeld
Research Professor, Space Policy Institute, George Washington University, Washington, DC

Brian Weeden
Technical Advisor, Secure World Foundation, Washington, DC

Christopher D. Johnson
Project Manager, Secure World Foundation, Washington, DC

Henry R. Hertzfeld
Space Policy Institute, The George Washington University, Washington, D.C., USA.

Henry R. Hertzfeld
Space Policy Institute, The George Washington University, Washington, D.C., USA, HHertzfeld@law.gwu.edu.

Timothy G. Nelson
Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, USA, Timothy.G.Nelson@skadden.com.

Prof. Henry R. Hertzfeld
Space Policy Institute, The George Washington University, United States of America, hhertzfeld@law.gwu.edu.

H.R. Hertzfeld
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