By Ben Logan

The commercial and military expansion of activity in space is accelerating at a pace the law has failed to keep up with. Space has had a military dimension for a long time, since Cold War missile technology and early reconnaissance satellites, but today’s phase of militarization is taking place alongside a surge in private activity. While they are often treated as separate issues, the rise of private enterprise and the renewed militarization of space are not only parallel developments. They are very much related, and their convergence risks creating a regulatory crisis.

Over the past two decades, private actors have taken up a central role in orbital activity. SpaceX’s Starlink constellation already comprises thousands of satellites, with tens of thousands more on the way. China’s Guowang and Amazon’s Project Kuiper are following suit. This has led to a transformation in who operates in space and whose interests dominate. Meanwhile, the regulatory framework is still based on treaties from the Cold War era, such as the 1967 Outer Space Treaty (OST) which never anticipated this level of private-sector involvement. Low Earth Orbit (LEO) is essentially operating on a first come, first served basis, with actors racing to occupy territory, often at the expense of everyone else.

At the same time, the militarization of space is accelerating. Major powers are increasingly incorporating space into military doctrine. The creation of the US Space Force and the development of anti-satellite (ASAT) weapons by Russia, China, and India mark a return from peaceful exploration in space to strategic posturing. ASAT tests, such as China’s in 2007 and Russia’s in 2021, have created thousands of pieces of long-lived debris, flying through orbit at high velocity and posing serious risk to anything in their path.

Important legal problems arise in the overlap between these trends. Today, commercial satellites are no longer purely civilian. In Ukraine, Starlink has supported military communications, and commercial imaging companies such as Maxar have provided battlefield imagery, blurring the line between private and public. As the private industry becomes entangled in military conflict, it invites targeting and escalation. All it takes is for one of these densely populated satellite networks to be targeted or caught in the fallout of a kinetic strike, and the consequences could be catastrophic. Kessler Syndrome describes a chain reaction of orbital collisions, as debris creates more debris, which would not only threaten to destroy communication and navigation systems, but could potentially close off access to huge areas of LEO for decades.

What makes the situation more concerning is the absence of effective mechanisms to regulate either one of these trends, never mind their convergence. The OST prohibits the placement of weapons of mass destruction in orbit, but says nothing about conventional weapons or ASAT tests. It fails to create binding obligations for private actors, whose activities are left to national regulation which is often under-resourced or strategically lenient. Voluntary guidelines, such as the UN’s Long-Term Sustainability Guidelines, are useful in principle but lack enforcement power.

The issue has only grown more concerning with the wider erosion of multilateral cooperation. The international order has been weakened by the retreat of major powers. Under the Trump administrations, the US has pulled out of the Intermediate-Range Nuclear Forces Treaty, the Iran nuclear deal, the Paris Agreement on climate change, and major multilateral institutions such as the UN Human Rights Council and the World Health Organization (WHO). China’s space programme remains largely state-run, and Beijing has been cautious of signing up to binding constraints in strategic areas. Meanwhile, Russia has resisted progress on space security, including blocking consensus in the UN Open-Ended Working Group on Reducing Space Threats in 2023. This is all evidence of a shift away from the post-World War II consensus that global problems require cooperative solutions.

However, there is room for quiet optimism. The Agreement under the UN Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), finally adopted in 2023 after two decades of talks, sets binding duties to protect marine biodiversity in areas beyond national jurisdiction. It emerged from lengthy UN negotiations in which coastal and small island States, environmental NGOs, and scientists argued the high seas should be treated as a shared ecological system rather than a distant resource frontier. The treaty shows that, even in a fractured world, States can still reach agreement on how to govern the global commons, and it offers a clear parallel for outer space: a treaty built on specific obligations and a basic acceptance that allowing an environment to fail serves nobody’s interests.

An orbital debris treaty would need three core elements. First, it would end ASAT testing, which poses an immediate and avoidable threat to the orbital environment. Second, it would impose enforceable end-of-life rules for all satellites to curb the build-up of long-lived debris. Third, it would set out a workable liability regime for both States and commercial operators, so that those who generate debris carry the cost of the damage and the clean-up. Over time, an instrument of this kind could support a broader system of space traffic management, with shared expectations on how satellites are launched, operated, and retired in increasingly crowded orbits.

Existing UN forums could start this work. The UN Committee on the Peaceful Uses of Outer Space (COPUOS) could be asked to prepare options for such a treaty, while the UN General Assembly’s (UNGA) First Committee (Disarmament and International Security) and the UN Office for Disarmament Affairs take up the question on an ASAT testing ban and what monitoring and verification might look like.

The current mix of outdated rules, accelerating commercial and military activity, and a weakening commitment to cooperation is not stable. If these trends continue to go unchecked, the chances of collision rise, both literal and political. The question is not whether space debris will reach a tipping point, but when – and whether the law can catch up in time to prevent it. The BBNJ Agreement has shown that multilateralism can still succeed when the stakes are high enough. And in space, the stakes could not be higher.

* * *

Ben Logan is a Trainee Barrister, Institute of Professional Legal Studes, Queen’s University Belfast.