New Way To Regulate Space? Evolving The Licensing Regimes For Space Activities

Authorisation and continuing supervision was the price paid by States in the 1960s to ensure that outer space was open for non-governmental and private entities. The obligation to authorise and continually supervise non-governmental activities in outer space, as contained in the 1967 Outer Space Treaty has typically (although not exclusively) been implemented through national legislation. This national legislation primarily takes the form of licensing regimes that prohibits space activities without an authorisation granted by a governmental authority. While this model has proven to be effective, it is far from the only regulatory model that can be applied to space activities. With space activities becoming dominated by commercial entities, there is an ongoing need to consider the regulation that applies to these activities from economic development, regulatory burden, and international law compliance perspectives. This Paper will consider an alternative regulatory model that, while still utilising prohibitions, would rely on notifications and activity-based enforceable codes of conduct. This approach will utilise broad-based behavioural norms reflective of international obligations codified in flexible performance-based terms centred around a presumption that activities should be permitted unless there is a firm basis to reject them. While such an approach will be more burdensome on the regulatory authority, it has the capacity to present a more efficient environment for non-governmental entities without a reduction in the overall enforceability or coercive power of the legal framework, or its compliance with international law more generally. The underlying premise of this Paper is that as regulated sectors evolve, the regulatory frameworks that apply to these sectors should evolve along with them.