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NATIONAL SPACE LAW

The third layer of legislation we have to take into account is National Space Law, in this

case Italian Space Law. In particular Law 89/2025. This law was adopted in June 2025

and it is already binding and applicable. It covers the same topics as the Commission

Proposal for regulation:

- Authorisation to perform in space.

- Security standards.

- Liability.

INTERNATIONAL SPACE LAW

International Law is the rst layer, the lower ones have to respect it.

Both the Italian law and the Commission’s proposal seem to be fairly coherent to

International Space Law. This may seem quite obvious because International Space Law

is made by very broad principle.

But if we look at the Moon Agreement, it has been rati ed just by 17 states. So the

problem here is: if you're not part of the treaty, do you have to respect it? One of the great

absentees from the Moon Agreement is obviously the US. The fewer states ratify the

treaty the more di cult it is to state its binding. If we want more states to ratify a treaty,

we have to demonstrate that some principles contained in the treaty have developed into

customary law, so that every state bounds to them. lex specialis

The second problem is that space law is considered which derogates, is an

exception to the ordinary rules of international law. Space law is a subsystem of

international law, a system that aims to have its own rules. In this regime states that don’t

ratify might appeal to public general international law:

- They’re not bounded to space law.

- They have rights form general international law.

TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE

EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER

CELESTIAL BODIES (1967)

It’s the rst treaty, usually abbreviated OST (Outer Space Treaty), and one of the most

rati ed that we have nowadays. Why? Just looking at the name, it says principles, not

rules. Principles are broad, vague, they’re not strong binding rules. It’s easier to achieve

consensus on them. States didn’t invent anything new to develop these principles, they

took their inspiration from the Law of the Sea If we think about space, a similar subject

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can be the Sea, especially high seas. States tried to copy solutions adopted within the

law of the sea. The transpositions was not always easy but that was the aim.

Article 1:

“1. The exploration and use of outer space, including the Moon and other celestial bodies,

shall be carried out for the bene t and in the interests of all countries, irrespective of their

degree of economic or scienti c development, and shall be the province of all mankind.

2. Outer space, including the Moon and other celestial bodies, shall be free for exploration

and use by all States without discrimination of any kind, on a basis of equality and in

accordance with international law, and there shall be free access to all areas of celestial

bodies.

3. There shall be freedom of scienti c investigation in outer space, including the Moon

and other celestial bodies, and States shall facilitate and encourage international

cooperation in such investigation.”

It crystallises some fundamental principles of space law which are valid still now.

It states that Space shall be the province of all mankind = common heritage of mankind of

humanity, something that belongs to all humanity. A common heritage of humanity theory

conveys an idea of non-ownership. States are not allowed to claim sovereignty over

space, the moon and other celestial bodies, which shall be free from any form of

sovereignty. If something so important is contained in the treaty but not in customary law,

every state can go to the moon and take possession of it, because its international law

gives it this right. This is why it’s important to extend space law from treaties to

customary law. In this case it’s easy because OST is widely shared. Do these rules also

apply to private actors/corporations?

Article 11 of the Moon Agreement is similar to art. 1 of the OST. It contains a similar

principle of non-appropriation but it uses a di erent terminology: neither the surface nor

the subsurface of the moon, nor any part thereof or natural resources in place, shall

become property of any State, international intergovernmental or non-governmental

organisation, national organisation or non-governmental entity or of any natural person. It

is sensitively di erent from OST, that took for granted that only states could go to Space.

The Moon agreement is more recent; it assumes that nobody, including private actors,

can claim property over the Moon. So article 1 of the OST is part of customary law, but it

only refers to State actors. Can we interpret art 1 of the OST coherently with art. 11 of the

Moon Agreement? Can we adopt a combined interpretation through subsequent practice

(provided for in the Geneva Convention) to also refer to non-state actors? We could but

the problem here is that article 11, and the Moon Agreement in general applies to 17

States, those that rati ed it.

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Principle of non appropriation: no state can claim sovereignty over any portion of outer

space or any celestial body.

The moon agreement is clearer than the OPT in saying that the moon is part of the

common heritage of mankind, but what does it really mean “common heritage of

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mankind”? It means that there cannot be sovereignty claims, also there is a duty to not

create damage, and also the fact that these common areas, if they generate positive

outcome (money), everyone has to bene t from them > a system of shared use and of

shared bene t.

For example, under the UN convention on the law of the sea, we have established an

authority that has to ensure that all the states take bene t from the economic resources

that come from the sea.

The question is: if we associate the idea of common heritage of mankind with the general

participation in the bene ts, can we take this approach and create a new international

organisation to somehow regulate the economic exploitation of the space? Evidently the

regime that we have created for the law of the sea is quite complicated, but a lot of states

participate. If we try to take this approach and transpose it to the eld of space law it gets

even more di cult, mainly because there are not as many states taking part in the space

law treaty. So this is an open issue in space law.

How can we make everyone bene t from the individual exploitation of space resources?

Another problem: sometimes you don’t necessarily put a ag of your state and claim

territorial sovereignty over a piece of space, sometimes you just use consistently a piece

of space and you could do something that is called appropriation by use. You get

something that nobody else gets to use.

So claim of sovereignty is not necessarily formal, it can also be by use.

The problem is mainly regarding orbits, corridors where you put satellites and they stay

there. There are two types of satellites: low orbit and geostationary satellites. The lower

orbits are satellites are not high up and are stuck into earth gravity, they also rotate in sink

with earth. Geostationary satellites are far away and beyond the gravitational attraction of

earth, also they don’t move with earth, they have a xed point and don’t move.

Why is the orbit of satellites so important? Because satellites, to function properly, use a

band, they produce a signal and the signal needs a band. Each band (frequency) requires

a speci c position. Each band is associated with a speci c orbit, so the rst problem is:

the geostationary satellites that are xed in speci c points, is that a case of appropriation

by use? It’s a problem and for this speci c reason, when it comes to geostationary

satellites, states have developed an international organisation, the international

telecommunication union (ITU). The ITU gives a license to states to operate at a certain

orbit. They formally allocate a frequency band. So this international regime allocates

orbits when it comes to geostationary satellites.

The ITU doesn’t regulate lower orbits, it’s not in its powers. Here the problem is that in the

past some states had sent a lot of lower orbit satellites, and once you send a satellite into

space is not necessarily possible to take it down, so the states occupied big portions of

the lower orbits by sending the satellites and leaving them there.

Currently there is a lot of trash in the orbit of earth, which is against the principle of

common heritage of mankind because there is a lot of space debris (detriti spaziali) and

other states cannot use frequencies and orbits because there is too much trash. This is

the rst problem of the principle of non appropriation.

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The other issue related to it is that some states do in fact have domestic legislation that

does allow national operators to go do outer space to take resources (es. NASA) => the

question is: should they distribute the bene ts of this exploitation? Are they bound by

international law? If we look at state practice we could say that they should contribute to

the distribution of the common goods, however growing domestic legislation allow

domestic operators to exploit space without sharing the bene ts.

In this sense, the community that follows the common heritage of mankind doctrine

should lead us to think that those states that are allowing domestic operators to exploit

without the state being bound to the international treaty, are against international law. So

what some states are doing is pretty much unlawful in terms of international law, but the

number of these states is growing and this has a great importance: if a su cient number

of states starts doing it probably means that international law is changing/will change.

You not only have to share bene ts but also information and clearly states are not happy

to have to share their own information and space programs. We don’t have anything other

than a general principle.

Article 4 of the outer space treaty talks about the nuclear weapons, which cannot be put

“States Parties to the Treaty undertake not to place in orbit around the

by states in orbits:

earth any objects carrying nuclear weapons or any other kinds of weapons of mass

destruction, install such weapons on celestial bodies, or station such weapons in outer

space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty

exclusively for peaceful purposes. The establishment of military bases, installations and

forti cations, the testing of any type of weapons and the conduct of military manoeuvres

on celestial bodies shall be forbidden. The use of military personnel for scienti c research

or for any other peaceful purposes shall not be prohibited. The use of any equipment or

facility necessary for peaceful exploration of the moon and other celestial bodies shall also

not be prohibited.”

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