Once the domain of Cold War rivalry, space exploration today has become the shared contention of national governments, billionaires and private corporations alike. With corporations like SpaceX and Blue Origin offering space tours, colonization of Mars and more, the key question this article aims to address is: Can the current international regime afford privatization of space? This article examines whether the current international institutions are prepared to handle the ramifications of human colonization beyond Earth, as well as the growing power of private entities in space and the legal ambiguities they operate within.
Outer Space and the Law Orbiting It
Space explorations are majorly governed through the five United Nations-based space treaties viz, the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1976 Registration Convention, and the 1984 Moon Agreement. The Outer Space treaty (hereinafter, OST) is the most significant and currently has been ratified by 116 signatories and is one of the most successful treaties in International Law.
According to the OST, space is the “province of all mankind,” meant for peaceful purposes and for the good of all people. Crucially, national acquisition of space or celestial bodies “by claim of sovereignty, by means of use or occupation, or by any other means” is expressly forbidden by Article II. Though Article II discusses public appropriation, it says nothing about the part played by private players, a void that has grown more troublesome in recent years. Private space exploration was unthinkable in the 1960s but is now a billion-dollar industry.
Article VI states that countries are held internationally responsible for their governmental and non-governmental activity in space, even if the OST does not directly control private businesses. Additionally, the OST requires that private actors be “authorized and continually supervised” by the jurisdictions in which they operate. This establishes a chain of accountability in theory. But in reality, it produces ambiguities and legal gaps. For instance, while the Federal Aviation Administration (FAA) regulates commercial space activities for corporations like Blue Origin and SpaceX, since it is a national organisation, it is not bound by strict international monitoring despite these launches having obvious international repercussions. Although Article VII holds nations accountable for any harm their spacecraft may cause, it is nevertheless difficult to assign blame to individual private missions. Article VIII guarantees that the launching state retains jurisdiction and ownership over space objects; enforcement measures are lacking. Additionally, Article IX encourages states to consult when taking potentially damaging measures and to perform activities with proper care for others. However, these clauses are mainly aspirational in regards to private corporations and signify a legal blackhole.
A crucial but frequently disregarded duty is also introduced by Article XI, which mandates that states notify the UN Secretary-General and the international community about the nature, conduct, and location of their space activities “to the greatest extent feasible and practicable.” But in reality, Article XI is frequently overlooked and seldom implemented. Governments have limited incentive to enforce open reporting, especially when economic interests are involved, and private firms rarely reveal comprehensive mission data. This lack of transparency not only affects international trust but also exacerbates the divide between wealthy spacefaring nations and the rest of the globe.
Faring Orbits: The Legality of Space Tourism
While Martian Colony is a distant dream, space tourism is a reality that is here to stay but still remains ambiguous in international law. This is not a new feat, it was achieved in 2001 when Dennis Tito became the first space tourist. Since then, businesses including Virgin Galactic, Space Adventures, and Blue Origin have made orbital and suborbital travel affordable, albeit only to the very wealthy.
Space tourism works in a legal limbo that violates established international space conventions (see above). For instance, instead of strong passenger protections, the U.S. Commercial Space Launch Amendments Act (2004) imposed minimal regulatory monitoring that mostly relied on informed consent, a stark contrast to OST Article VI requirements.
The Titan submarine disaster of 2023, which killed five people during a deep-sea trip to the Titanic wreck, has turned into a potent warning to the quickly expanding space tourism industry. This is similar to the existing situation in commercial space tourism, where private businesses frequently use “informed consent” and liability releases rather than strict regulatory compliance. However, it is unclear who is responsible when private passengers are hurt or killed in space because only States are liable for damage caused by space objects under the 1972 Liability Convention. Stronger international liability regulations for human injury in space are crucial because of this gap and the lax safety requirements that demonstrate how current frameworks fall short of providing true protection or compensation.
NASA has also funded three companies viz, Blue Origin, Nanoracks and Northrop Grumman Systems Corporation to the tune of 415 Million USD for the purpose of making commercialized space stations. Sunita Williams being stuck in space for over nine months revealed the potential dangers of allowing public-private partnerships with poor accountability mechanisms under international law. Risking the lives of even the wealthiest population whose next travel destination is space, should not be a normalized trend.
If present frameworks are already vulnerable due to the legal void surrounding space tourism, the prospect of colonizing Mars would only make these problems worse. Questions of jurisdiction, sovereignty, and enforcement take on a new urgency as the scenario changes from short-term suborbital excursions to long-term human presence on another planet. Mars is quickly becoming the next legal and political arena in space administration, making it more than just a scientific curiosity.
Colonizing Mars?
The idea of colonizing Mars is not new. It has been present in discussions since the early 90s. In 1996, Robert Zubrin laid down the reasons for why Mars is the next best planet for human settlement. Later, Florian Neukart proposed a “blueprint” for the ideal settlement on Mars which includes measures for food production and short trips for surveys amongst others. Today, this idea is being brought to life by Elon Musk through his project titled “Mars and Beyond” which aims to make humans an interplanetary species. While there are obvious concerns of accessibility, the monetary divide, the core exploration for us remains the legality of this fantasy.
There is a huge possibility that Martian law will be determined by the one who reaches it first. This would deviate from the very core of the common heritage of humankind and defeat the purpose of the OST. As discussed above, Article VI of the OST makes it clear that governments are internationally responsible for both governmental and non-governmental actors operating in space, even though firms must be licensed by a nation (in SpaceX’s case, the U.S.). This implies that any action taken by a business to claim authority over Mars may be illegal under international law and result in state responsibility. Given that SpaceX’s Starlink terms of service (Clause 11) controversially imply that Mars ought to be regarded as a “free planet,” this is particularly pertinent. Such wording runs counter to Article II’s ban on appropriation if it is taken as a declaration of sovereignty. In theory, even if such a claim were made by a private organization it has licensed, the United States would still be held accountable.
Shifting Orbits and Emerging Patterns
While it is encouraging to see the rise in ambitions to find a new home for humankind, this should not come at the cost of humankind itself. The glaring “black hole” aka legal vacuum makes it difficult for the community to ascertain any responsibility especially on the part of private players. Since there are currently no legally binding international norms regarding private corporations in space, it is worrisome that the industry is growing too quickly to be held accountable under the law. The increasing frequency of space tourism flights and increased push for Mars colonization needs immediate international legal clarification, especially with regard to liability, safety regulations, and fair access.
A rather promising trend is the rise of multipolarity in space governance among not so established spacefaring nations as well. Subnational organizations like the European Union and regional actors like the United Arab Emirates are starting to establish regulatory frameworks that put sustainability, transparency, and legal coherence first through programs like Mars 2117. A step toward centralized monitoring is reflected in the impending EU Space Act, which is anticipated to be passed in late 2025 and aims to harmonize regulations for commercial space operations while requiring compliance from non-EU companies. China’s Mars policy reflects its long-standing commitment to OST values by tacitly constructing the necessary infrastructure for sustained Martian interaction while openly rejecting claims of sovereignty. Although China’s moves, just like Musk, should be viewed critically with the only differentiating factor being that China is a party to the OST and will be held accountable under International Law directly.
However, with the entry of private players there has never been a more pressing need for an all-encompassing, legally enforceable international regime, one that recognizes space as a shared global commons, strikes a balance between innovation and responsibility, and incorporates the opinions of all countries, not just the wealthy and influential few space faring nations. The injustices and colonial legacies of Earth run the risk of being replicated in space if prompt and comprehensive legal reforms are not implemented. With little success being found through international efforts, especially in terms of enforcement, it is also recommended that nations ascertain stricter liability and higher accountability to private players in this field.
Alina is a 5th year law student from Nepal interested in international law and global politics. She writes on legal analysis, policy reforms and international law.
Ms. Tamanna is an Assistant Professor of Law with experience teaching International, EU, and Comparative law, integrating strong academic training with practical research, advisory work, and curriculum development.