1. Introduction
The use of outer space to expand and entrench State power is an increasingly pressing concern. While the Outer Space Treaty of 1967 (OST) proclaims freedom, equality, non-appropriation and common benefits from the exploration and use of outer space (OST, Arts. I-II), its legal architecture echoes historical doctrines that facilitated imperial expansion under the guise of universality. The increasing dominance of the United States (U.S.) over Low Earth Orbits (LEO) is a warning sign that the current legal framework in outer space repeats this familiar pattern.
A striking example in early 2025 highlighted this dynamic, when reports suggested that the U.S. could influence Ukraine’s access to Starlink’s crucial internet services as leverage to pressure the country into signing a deal for its natural resources (Shalal & Roulette, 2025). As recent analyses show, Starlink’s role in Ukraine is not merely commercial, but directly embedded in U.S. governmental priorities and the company consciously operates within the geopolitical environment (Abels, 2024, p. 847). Because Starlink operates in Ukraine under contract with the U.S. Department of Defence, any restriction of access would be a convergence of private capability and State-driven geopolitical objectives, rather than an autonomous corporate decision. This reflects the broader risks posed by monopolisation of LEO space services; powerful States can leverage privately operated yet essential infrastructure to exert influence while maintaining plausible deniability under international law. Such dynamics are enabled by a legal regime that grants near-unlimited freedom in outer space and continues to inadequately regulate the responsibilities and geopolitical involvement of private actors.
Since international space law only prohibits legal (de iure) national appropriation over outer space and its celestial bodies, the law is currently not sufficiently robust to prevent factual situations of domination and control in outer space. This paper aims to highlight how certain paradoxes in space law, which advocates for universal freedom but contains ambiguities surrounding responsibility in the public-private nexus, can be exploited for geopolitical dominance and ultimately threaten common use. The legal paradox between “freedom for all” and the inevitable domination by the powerful, a dynamic deeply rooted in colonial history, is not only alive but thriving in the context of outer space.
The history of the legal regime in outer space exemplifies how the drafting of international law cannot be seen as separate from imperial history and the thereby enhanced power imbalances. During the drafting of the OST, the inaccessibility of space acted as a steep threshold and cutoff between the ‘haves’ and ‘haves-not’ in terms of financial capacity and space technologies. This left particularly the “Global South” to hope that outer space would be different from the colonial resource-grabs they were so familiar with (van Eijk, 2022, p. 31). How the drafting of the Outer Space Treaty left the practical consequences of Global South input limited, is elsewhere better and more elaborately described (van Eijk, 2025; Durrani, 2019). It suffices to note here, though, that the concluded freedom of access and use (Article I) and the non-appropriation principle (Article II) seem egalitarian in nature, but were practically never equipped to address the structural inequalities embedded in access to space technology, capital and launch infrastructure.
While often presented as neutral and universal, international legal frameworks tend to reflect dominant political and economic realities present during their drafting. This is noticeable especially in the regulation of supranational or shared domains, where international law has struggled to resist extractive pressures from technologically dominant actors. As capitalism expanded, legal systems adapted to support it; Natarajan critically observes that the spread of capitalism demanded legal systems to transform common spaces into categories “more amenable to facilitating the infinite growth of industry and capital” (Natarajan, 2023, p. 7).
But by the very act of adopting shared domains into the language of law, common areas like the deep seabed (Ranganathan, 2019, p. 586–591, 596) and outer space (Craven, 2019, p.547) were opened up to exploitation and legitimised as areas of extractive behaviour and corporate interests (Natarajan, 2023, p. 8). Granted, this came with the caveat that certain benefits should be shared (U.N. Convention on the Law of the Sea (UNCLOS), Arts. 136 & 140), or its exploration or use should be carried out for the benefit and in the interest of all countries (OST, Art. I). However, without the pre-emptive and effective operationalisation of such sharing mechanisms, exclusive appropriation of shared resources can still occur; recent developments regarding space and the deep seabed clearly indicate that there are growing extractive intentions in these areas with little to no practical regard for shared benefits.
Such expansion of State power through collaboration of law and private industry is not a new phenomenon. Just as the doctrine of terra nullius justified European powers in establishing sovereignty over lands they deemed unoccupied (Western Sahara, paras. 87–93), and as Grotius’ Mare Liberum opened the oceans to facilitate Dutch appropriation under the guise of freedom (Schrijver & Prislan, 2009, p. 170), so too has the OST’s emphasis on “freedom for all” enabled a race not for shared access, but for factual (de facto) control by powerful States and private entities in space. As such, States, private actors and international law form a powerful alliance that ultimately serves and entrenches hegemonic powers.
This paper explores the historical role of law to first enable and later legitimise private appropriation on behalf of States, and how we can currently see this developing in outer space. Firstly, it will be briefly discussed how the Outer Space Treaty’s promise of universality ultimately only serves those with past and present space capacities. Secondly, the paper explores how powerful States have used legal principles of freedom to entrench and benefit their own power, whilst using private actors as distant proxies and enforcers of their sovereignty. Three particular instances of this symbiotic relationship will be discussed that highlight the flexibility of private actors, the gradual legal consequences of appropriation, and the willingness of States to benefit private enterprise in order to expand sovereign power. Finally, the paper brings us back to the present, where it reviews how the law has facilitated the increasing monopolisation of orbital slots by dominant actors, and how new legal initiatives attempt to legitimise extractive and exclusive attitudes to space.
2. Freedom as a Legal Framework
According to the text of Article I of the OST, outer space and its celestial bodies are free for exploration and use. The free access to all areas of celestial bodies is “interpreted as extending to all areas of outer space sensu stricto as well” (De Man, 2016, p. 87). This freedom comes only with two main qualifiers: that such activities must be carried out for the benefit and in the interests of all countries (para 1), and the freedom of exploration and use must be non-discriminatory and based on equality (para 2). The extent of the obligation of the benefit principle was a controversial debate between developed and developing countries at the time, with the latter demanding for more concrete obligations for sharing benefits so equal access to space and its benefits could become a reality (see Jasentuliyana, 1989). Developed countries, refusing to concede their advantageous position, insisted that they themselves should be able to determine the extent of their cooperation, which has become the status quo for the past decades (see Deplano, 2023). The non-appropriation principle of Article II acts as another limit to the above freedom, and although it presents itself as a strict barrier against territorial expansion, discussions regarding resource appropriation and safety zones on celestial bodies seem to conveniently circumvent this prohibition.
The first two articles of the OST provide the strongest evidence for its codification of outer space as a global commons, though there still exists debate about whether the OST and the other space treaties actually qualify outer space as such (Pic et al, 2023). However, many generally agree that it should be viewed or treated as such, given the prohibition of sovereignty and military presence, free (scientific) access, and lacking but existing benefit sharing obligations, that we also find in other commons regimes (Palit et al, 2025; Kaul, 2024; Svec, 2022; Yap et al, 2023).
Despite this, the United States continues to reaffirm that it “does not view [outer space] as a global commons” (U.S. Executive Order No. 13914, 2020). As one of the major (or rather, main) actors in outer space, the U.S. has a direct benefit in resisting any recognition of legal obligations that diminish its privileged position. It was similarly opposed to UNCLOS for its qualification of the deep seabed as the common heritage of mankind (Schrijver and Prislan, 2009, p. 178). Though where UNCLOS establishes a regime with institutional oversight over activities in the Area (the International Seabed Authority), outer space currently lacks such binding and institutional mechanisms. So while the U.S.’ most recent call to speed up the issuing of seabed mineral exploitation licences (U.S. Executive Order, 2025) was rightfully met with much resistance and considered to violate both UNCLOS and customary law obligations (Lathrop, 2025), its unilateral action in space seems to be mostly uncontested.
This reveals the paradoxical nature of the freedom of both outer space and at sea; normatively, all States have equal freedom, but in practice, freedom of access functions as an open door that only the wealthy and technologically advanced can walk through. Rather than preventing domination, the principle of non-appropriation has inspired States to develop new forms of control that circumvent traditional modes of ownership. Formal or legal ownership over outer space is not necessary if States can still dominate it and other actors through control, access, infrastructure and economic influence, to the detriment of those without similar capabilities. The existing ambiguities and differentiating interpretations of the legal framework therefore invalidate its practical duty to protect space from unilateral domination by the powerful. This is exacerbated by private actors who have become the leaders of space exploration, and who can act as proxies for sovereign power while avoiding formal constraints.
Although space infrastructure is increasingly provided by private actors and space activities are constantly commercialising, States still carry international responsibility for national activities by governmental and non-governmental entities in outer space (OST, Art. VI). National activities by non-governmental entities further require authorisation and continuing supervision by “the appropriate State”. According to a traditional interpretation of article VI of the OST (Robinson, 2020, p. 9), States must take responsibility for all activities in outer space. However, this interpretation does not take into account legal uncertainties that arise from ambiguous terms such as “national activities” or “appropriate State”. For example, it is difficult to ascertain whether national activities are informed by the State of registration, launching State, or on the nationality of the person(s) actually performing the activities (Robison, 2020, p. 11), especially when activities involve complex constructions of multi-State and public-private collaborations. Responsibility becomes particularly prevalent when one considers the dominant position of the United States and certain private space actors on the market. As will be discussed later, the increasing congestion of LEO by limited actors not only shows the excessive taking of space, but it increasingly makes it more complicated and dangerous for future actors to get involved. This does not just solidify the monopolistic behaviour in space, but also threatens the right to free and equal access to space enshrined in the OST.
Similarly to what is argued here, Jah points out that the “relentless drive for orbital dominance, fuelled by nations and corporations, harkens back to a colonial-era land grab”, in which particularly the U.S. is currently “winning the race for orbital domination” (Jah, 2023). As will be explored in the next section, the colonial dynamics in space referenced by various authors are not merely an empty analogy: States and private actors are repeating similar patterns of leveraging legal freedom for self-interest, which ultimately threatens the freedom of others.
3. Colonial Expansion through Law and Private Enterprise
The leveraging of law and private enterprise for expanding State sovereignty is not a novel phenomenon. Historically, domestic and international legal frameworks were not only permissive of private-led State expansion, but were often leveraged or directly developed after the fact to accommodate, validate, and integrate these factual situations into formal systems of sovereignty. First, this will be explored in terms of the legal concepts that facilitated State expansion, and which continue to lay the foundation of our management of common areas. Second, the paper analyses three different occasions that are emblematic of this relationship, and reveal the recurring logic through which States and private actors have jointly expanded influence in loosely governed spaces.
3.1 Terra Nullius and Mare Liberum
European expansion in the 17th century was justified by the natural law concepts known as terra nullius (‘land belonging to no-one’), and territorium nullius (‘territory belonging to no-one’). Conscious of the existing confusion between these two legal maxims and their different meanings (Fitzmaurice, 2007), the paper will continue to use the term terra nullius as the extractive, expansive mentality that permeated European societies and was embodied by this principle. Terra nullius remains the most commonly known historically “accepted legal methods of acquiring sovereignty over territory” established by occupation, as confirmed by the International Court of Justice in the Western Sahara case (para. 79).
The historical doctrine of terra nullius exemplifies how the absence of proper legal protection of areas can facilitate their monopolisation by powerful actors. As Ray and Parson argue, terra nullius “permits seeing, thinking, and regarding land as property and resources waiting for development, and justifies the extension of State and capital regardless of other possible purposes, or other ideological and cosmological claims and lifeways” (Ray & Parson, 2025, p. 91–92). The doctrine promoted the view that unclaimed areas must be taken if possible, and that failure to do so risked losing them to others, thereby incentivising expansion by those with the greatest power and technology. It legitimised imperial projects by granting Europeans an unrestricted “freedom” to claim territories deemed unoccupied, while they relied heavily on private actors to exert physical control, power, and violence (Mabee, 2009, p. 140), and to advance the narrative of universal freedom for global commerce.
Universal freedom for global commerce was also promoted through Hugo Grotius’ conception of the freedom of the oceans in Mare Liberum, which was in part written to defend Dutch expansionism towards the Indies (Manoli, 2022, p. 25–26). In fact, his manuscript was commissioned by the private Dutch East India Company (VOC) (van Ittersum, 2010, p. 388) to respond to the Portuguese-claimed monopoly on trade with the East Indies (Borschberg, 2007, p. 32). Grotius proposed naturally applicable laws which he claimed to be “self-evident and immutable” (Manoli, 2022, p. 26), deriving favourable legal solutions for his client from seemingly objective and universal principles (Natarajan, 2023, p. 10). This highlights the intricate and symbiotic relationship between the interests of private enterprise and those of the State; in advocating for the objective natural rights of all States and commerce, Grotius’ work directly benefited both Dutch colonial expansion and private trade relations of the VOC.
The cosmopolitan argument that the oceans could not be exclusively appropriated and should be free for all was used by colonial Powers to appropriate territories all over the globe. Naturally, this conduct was only available to those States and actors that had the technological and financial capacity to first traverse these vast oceans and then physically overpower potential resistance in those regions (Deudney, 2020, p. 298). Opening up the oceans to all thus primarily benefited those States that could engage in global trade or conquest across the oceans. Grotius’ argument was therefore not only relevant for his own time period; it is well-known that his ideas laid the groundwork for the global commons, currently imbued in varying degrees under the UN Convention on the Law of the Sea (Schrijver & Prislan, 2009, p. 180), the Outer Space Treaty, and the Moon Agreement (MA) (Rossi, 2017, p. 33–34). This is not to say that Mare Liberum itself should be equated to these more modern legal frameworks; as mentioned earlier, the latter instruments’ inclusion of benefit-sharing considerations provides much more substantive support for equal access and at least normatively prohibits unrestricted appropriation. The problem is that legally promoting near-unlimited freedom without proper institutional oversight or operationalised sharing, can ultimately be exploited.
3.2 Private Actors as Proxies of Sovereign Influence
Beyond relying on private individuals to conceive of and advocate for legal justifications for imperial conduct, States also depended on private actors for the actual seizing and controlling of areas considered terra nullius. Exploring the historical precedent of private-public partnership in territorial appropriation is crucial, as it directly mirrors our current legal and geopolitical reality in outer space. This section will therefore pinpoint three such historical occasions of private-turned-public appropriation on Earth in chronological order: early European colonisation on behalf of the Crown in the case of Columbus, subsequent colonial governance on behalf of the State by the Dutch West India Company (WIC) and the more recent development of State sovereignty over the Svalbard Archipelago. In each of these cases, legal freedom effectively enabled private actors and the State to claim and control territories and resources (see e.g. Ray & Parson, 2025, p. 82), only for them to be later subsumed under State jurisdiction. Each of these cases also highlights another aspect of the public-private relationship: the flexibility of private ambition, the gradual rather than immediate legal consequences of appropriation, and the insistence of States to expand sovereign powers to benefit private enterprise.
3.2.1 Crown and Charter: Columbus
Before modern States, it was not uncommon to have private actors claim lands on behalf of the Crown – that being the public authority, or “the embodiment of all sovereign rights” (Kantorowicz & Leyser, 2016, p. 381). The Crown could delegate authority to private individuals or corporations to acquire and administer territories on its behalf. One such individual, Christopher Columbus (Delaney, 2006, p. 261), was denied by various sovereigns before the Spanish royalty finally accepted his scheme (Campe & Upton, 1911, p. 24–28). In a decree that specified Columbus’ future privileges and rewards for conquering the new territories, the Spanish Royalty commanded him to:
“discover and subdue some Islands and Continent in the ocean, and it is hoped that by God’s assistance, some of the said Islands and Continent in the ocean will be discovered and conquered by your means and conduct […].” (Privileges and Prerogatives, 1492).
After “discovering and conquering” any of the territories, this suggests that Columbus was to establish some form of administrative jurisdiction by forceful means and through indefinite occupation. Through colonisation, employed private actors could turn what was formerly outside of sovereign influence into a direct part and extension of that Crown’s sovereign power. So rather than being the application of existing sovereignty, colonialism actively constituted and extended sovereignty (Anghie, 2005, p. 38). While public authorities like the Crown and later States reaped the benefits of conquering of unknown lands outside their own sovereign territories, historically it was through employing private companies and persons that they achieved this goal.
The strategic flexibility in this historical account is directly mirrored by contemporary private activity in space. Just as Columbus was rejected by several sovereigns before finding support from the Spanish Crown, private space actors can forum-shop among national jurisdictions to find the most favourable legal and political conditions. This allows them to advance commercial goals and sidestep responsibility, while States are able and willing to leverage such private ambition to expand sovereign influence in space.
3.2.2 Guiana Boundary Case and the Dutch WIC
The Guiana Boundary case was a legal dispute between Brazil and Great Britain involving contesting claims over the land that was originally appropriated by a private actor on behalf of the Dutch Republic (Guiana Boundary, 1904), and concerned the territorial boundary between British Guiana and Brazil. The award, rendered by the King of Italy in 1904, reaffirms the terra nullius doctrine, claiming that to “acquire the sovereignty of regions which are not in the dominion of any State, […] occupation [must] be effected in the name of the State which intends to acquire the sovereignty of those regions” (Guiana Boundary, 1904, p. 21). Moreover, it was asserted that occupation could only be carried out by “effective, uninterrupted, and permanent possession being taken”, and that only a manifest intention of occupation could not suffice (Guiana Boundary, 1904, p. 21). In other words, before being able to acquire the legal title over a territory, a State would first need to have effective and factual control over the territory.
These passages also confirm that the physical occupation of a territory did not need to be carried out by the State itself; occupation in the name of the State by any other actor carried the same legal consequences. According to the award, the private Dutch West India Company (WIC) “performed acts of sovereign authority over certain places in the zone under discussion, regulating the commerce carried on for a long time there by the Dutch, submitting it to discipline, subjecting it to the orders of the Governor of the Colony […]” (Guiana Boundary, 1904, p. 22). In its Charter, the WIC was granted full sovereign authority by the States-General of the United Netherlands to:
“[…] make contracts, engagements and alliances […], and also build any forts and fortifications there […] for the preservation of the places, keeping good order, police and justice […].” (Charter of the Dutch WIC, 1621).
Consequently, “furnished with the sovereign powers by the Dutch Government,” the WIC effectively acquired “sovereignty of regions which [were] not in the dominion of any State” (Guiana Boundary, 1904, para.21). Afterwards, it would carry out duties usually reserved for the sovereign power of the State. Until the British State became the “successor to Holland, to whom the Colony belonged,” (Guiana Boundary, 1904, p. 22) the territory was under effective Dutch sovereign jurisdiction which delegated its effective occupation to the WIC.
The award also confirms that the assertion of rights of sovereign jurisdiction was “gradually developed and not contradicted and, by degrees, became accepted even by the independent native tribes who inhabited these regions” (Guiana Boundary, 1904, p. 22). In appropriating territories on behalf of a State, private actors like the WIC thus directly contributed to the gradual development of sovereign jurisdiction. Yet the legal title to the land was still contingent on, and secondary to, the occupation and de facto control. Even if, theoretically, no formal sovereign claim was made, States could still exploit occupied territories and extract benefits from them through their private proxies. The existence of sovereign title over such territories was therefore merely a declarative consequence – not a constitutive element – of a State’s factual sovereign power.
This dynamic and logic is deeply resonant in outer space today, where power is exercised through technological capacity and de facto control, rather than formal sovereignty. As will be discussed later, current legal ambiguity in space has also gradually enabled States to shift the benchmark of legal reality, where today unilateral interpretations are promoted and supported that ultimately justify and legitimise exclusive claims in space.
3.2.3 Private Activity in the Svalbard Archipelago
In more recent history, the Arctic archipelago of Svalbard presents an interesting case relating to territorial appropriation. The archipelago was one of many land areas considered to be terra nullius. By 1612, the English Muscovy Company claimed a monopoly over hunting in the region, facing much competition from other companies (Grydehoy, 2020, p. 269). After disputing claims relating to hunting grounds, pragmatic agreements were made between private companies from the Netherlands, England, Germany and the Kingdom of Denmark-Norway (Grydehoy, 2020, p. 169; Pop, 2000, p. 278).
While the Kingdom of Denmark-Norway intended to claim sovereign jurisdiction over the archipelago, it did not possess the military means to challenge the ongoing Dutch and English operations, which were actually unable to profit from the expeditions and relied mostly on State support (Grydehoy, 2020, p. 269). This highlights the lasting symbiotic relationship between States and their private proxies carried over from the previous examples; States provided the necessary financial, political and military support, and in turn actively relied upon private actors to act as practical occupiers in order to disrupt disputed sovereign claims by others over Svalbard.
At the 1919 Paris Peace Conference, the Allied Supreme Council granted Norway with sovereign jurisdiction over Svalbard, but the archipelago was to remain open to international activity. This transfer of title was the result of the 1920 Treaty Concerning the Archipelago of Spitsbergen, otherwise known as the Svalbard Treaty. It establishes that absolute sovereignty is granted to Norway (Svalbard Treaty, Art. 1), but that ships and nationals of all parties “shall enjoy equally the rights of fishing and hunting in the territories” (Svalbard Treaty, Art. 2). The Mining Code for Spitsbergen was adopted in 1975, which added the right of all the signatory States or companies established in those States to search, acquire and exploit natural deposits of coal, mineral oils and other minerals and rocks (Mining Code, Art. 2). Mining activities by various States or companies are therefore regulated by a treaty granting absolute sovereignty to one State, highlighting once again that States do not need the legal title over a territory in order to enjoy its benefits.
The legal regime governing Svalbard provides a cautionary tale of how an area open to all was first appropriated by private actors through monopolising activities in the region, but was later brought within national jurisdiction (Pop, 2000, p. 278). As Christopher Rossi argues, when States were confronted with an inability to assert direct sovereignty over this remote and uninhabited territory, they developed their own de facto practices for managing access and extracting resources. These arrangements, though sometimes formulated in the language of common use or shared administration, effectively safeguarded their own national interests while preventing other States from asserting exclusive sovereignty over the region (Rossi, 2017, p. 133).
This method of States circumventing barriers to extensions of sovereignty directly parallels the current situation in outer space: while the OST is clear on its prohibition on national appropriation, its protections are limited to de iure claims and do little to prevent de facto forms of control taking hold. The difference between the legal framework for Svalbard and outer space is that national appropriation on the former was not expressly prohibited by a treaty (Pop, 2000, p. 278). However, the OST leaves ample room for practices that gradually consolidate influence and quietly erode the principles of equal access and common use.
These historical examples reveal a recurring pattern: whether through royal charters, corporate mandates, or eventual treaties, law has repeatedly legitimised acts of private appropriation on behalf of States. Rather than acting as a retroactive constraint on expansionist activity, legal systems incorporated the geopolitical status quo and adapted to preserve the benefits of such conduct for sovereign powers. The public-private nexus by itself does not inherently threaten the common good; it is rather the lack of proper legal limits and oversight on unlimited freedom that inevitably creates fertile ground for exploitation. This retrospective is not merely of historical interest; it raises important questions for how we understand and assess current and developing legal regimes governing outer space. If history shows that legal frameworks tend to follow rather than lead, reacting to dominance rather than preventing it, then it becomes all the more urgent to interrogate whether developing laws can truly prevent appropriation in space, or whether they too will ultimately normalise and enshrine it.
4. Echoes in the Void: Law and Power in Space
In today’s space politics, we see a direct rhetorical return to doctrines like terra nullius and Mare Liberum, concepts that historically cloaked domination and exclusion under the guise of openness and financial opportunity. These attitudes are even expressly promoted, with States and private industry justifying and actively endorsing the claiming and colonisation of “empty land” on the Moon or Mars through exciting movie trailers or public stunts (Ray & Parson, 2025, p. 77, 88). Recent plans of the United States to install a nuclear reactor on the Moon by 2030, explicitly framed as a defensive measure to prevent China and Russia from establishing keep-out zones through their own exclusive International Lunar Research Station (ILRS) (Skove, 2025; Kaul, 2024, p. 4), exemplify this narrative: while condemning appropriation, the United States seeks to pre-emptively establish its own strategic zone of influence. As this section will discuss, the expansive rhetoric of “freedom” is now instrumentalised in outer space to justify actions that functionally replicate sovereign appropriation, echoing the logic of territorial acquisition once legitimised by terra nullius. And in similar fashion, private actors are employed to extend this sovereign reach, and to establish early and lasting advantages.
Hugo Grotius’ claim that the oceans were inexhaustible by mere use was refuted over time as the effect of maritime traffic itself on the marine environment became better known (Feenstra, 2009, p. 91; Schrijver & Prislan, 2009, p. 176). In a similar way, it could be argued that LEO has limited safe orbital positions that can be used (Jakhu, 2006, p. 74), and that space holds a finite amount of realistically accessible natural resources. The most valuable and realistically accessible orbital slots and resources will be claimed by the first actors, making it progressively more difficult, dangerous and expensive for later actors to obtain similar positions and resources (see also Durrani, 2019, p. 447–448). The freedom of outer space is thus only truly “free” for those who come early. While the non-appropriation principle prevents States from formally appropriating any part of space, it does nothing to prevent them from still being able to exploit and factually control certain parts of it. As discussed regarding the Guiana Boundary case, it has never been explicitly necessary for States to claim sovereignty over territories; they only did because the legal mentality at the time allowed sovereign expansion through territorial acquisitions. Even without formal sovereignty over any part of outer space, States can still enjoy the strategic, economic and military power and benefits arising out of the de facto appropriation by their private proxies.
The rapid pace of private innovation, the vast sums invested, and the non-democratic development of space technologies (Ray & Parson, 2025, p. 89) reinforce a neoliberal logic grounded in private property rights, free enterprise, and the pursuit of unlimited growth (Billings, 2023). Such logics fuel the capitalist incentive to secure the earliest and most enduring presence in orbit, an expansion that States are ultimately responsible for under Article VI of the OST, yet from which they also stand to reap strategic and military benefits. This drive mirrors legal mentalities such as terra nullius, where law legitimised expansion by framing unclaimed spaces as resources to be developed, an approach now repackaged through neoliberal ideals of private accumulation and perpetual growth. The dynamic is further reinforced by legal structures such as the International Telecommunication Union, which allocates orbits and radio frequencies on a first-come-first-served basis. This method of allocation has led to the administrative nominal ‘occupying of space’ through the registration of “paper satellites” (Pozza, 2024, p. 23), which serve as pre-emptive placeholders for potential future projects. In practice, it results in a de facto appropriation of orbital slots by those who are able to file early and in large volumes (Sharma, 2025).
Figure 1 shows that as of December 2025, 1.686 space objects were launched into orbit by the U.S in 2025 alone, 87% (1.479) of which listed under a Starlink name. The last launch-date by the U.S. listed in the index was in June 2025, meaning that many more launches are not yet included in this graph and calculation. The rapid deployment starting 2020 marks the latest addition to the total number of 14.465 Earth-orbiting objects listed in the index, of which 9.804 (or 67%) are attributed to the U.S. alone. The United States is therefore actively occupying a majority of the orbital positions that are currently being used, with more objects launched each month. Without an indication that this staggering rate of launches will slow down, there is a clear threat of increasing orbital congestion by limited actors (Erwin, 2024), possibly resulting in the gradual monopolisation of orbital positions.
Figure 1
UNOOSA Online Index for Space Objects, registrations by the United States as of 17 December 2025.1
The increasing concentration of space-based infrastructure in the hands of a few commercial actors thus raises significant concerns about potential monopolistic control over access to space-based services (see e.g. Schrogl & Maddrick, 2025). While the OST does not regulate (commercial) monopolies, a scenario in which a single entity controls critical space infrastructure could have significant implications for the principle of free access to space. The OST highlights that access to and use of space is a fundamental freedom enjoyed by all States parties, meaning that responsible States have a passive obligation to not interfere with the rights of other States in outer space. This is also confirmed by article IX of the OST, which holds that States should be guided in outer space by the principle of cooperation and mutual assistance, and that they should conduct their activities with due regard to the corresponding interests of other States Parties. Taking up disproportionate or excessive space in orbit, or claiming natural resources on a first-come-first-serve basis, practically excludes the States that would come after from doing the same (see e.g. on anti-access in orbit and area denial in: Betar, 2025). Current congestion in LEO already increasingly forces space operators to make more evasive manoeuvres, meaning that more unrestricted launching in large volumes increasingly endangers the ability of future space actors to exercise their rights under the OST. Once our orbital slots in LEO are all physically taken, or once it is decided that launching more objects will be too hazardous (see Mariappan & Crassidis, 2023), States without space capacity will no longer be able to access and use space with similar freedom.
The potential restriction of Starlink services to Ukraine highlights how monopolies over space services can threaten access and use of space. If no alternative infrastructure exists that can sufficiently support State functioning, Ukraine would be ipso facto forced to rely on a dominant provider with its own national interests, making any denial of service a de facto exclusion from space benefits, challenging the spirit, if not the letter, of the OST’s guarantees. Starlink’s contract with the U.S. Department of Defence means that restrictions could be attributable to the State, shifting the issue from a corporate choice to possible State interference. The questions are whether (1) restricting a State’s access to or use of outer space and private infrastructure would actually violate another State’s “freedom”, and (2) whether such restrictions imposed by States can invoke its international responsibility. Although the OST holds that States are internationally responsible for non-governmental activities, the threshold of attributing such restrictions remains unclear. More generally, these considerations reflect how the current legal framework, by promising free access but failing to restrict accumulation, enables domination over space through sheer presence. It allows States to consolidate power, not by claiming orbits directly, but by monopolising the services essential to its use.
It is that legal grey zone between private action and State power that once enabled, and still enables, States to push the boundaries of influence. The legal ambiguity surrounding unclear responsibility and unrestricted freedom allows private actors to act as proxies for State power in space, and to offer deniability as well as leverage at the same time. The apparent “lawlessness” of the present moment and appeal to soft-law instruments is not a neutral absence of strong regulatory oversight; it is a powerful and strategic tool that establishes a favourable status quo that future legal developments may simply entrench. While multilateral discussions about interpretation, orbital congestion, space debris, resource activities and accountability of private actors in space remain ongoing, however, States are forging their own political alliances and legal interpretations that move faster than international consensus.
4.1 Artemis Accords: Unilateral Framing of Resource Governance
One current attempt at justifying or legitimising factual situations of power and control through legal framing is perhaps best represented by the ongoing discussions regarding space resources and the Artemis Accords, a NASA-led initiative signed by 59 States (Artemis Accords, 2020). The U.S. government has openly framed the initiative’s purpose as promoting the U.S.’ exploitative and commercial interpretation of the Outer Space Treaty (de Zwart, 2021, p. 76), positioning the framework not as a safeguard for common governance, but as a permissive gateway for those already capable of acting in space.
Viewed through this paper’s central framing, the Accords do not represent a rupture with past practice, but the most recent articulation of this familiar pattern: their permissive treatment of resource extraction enables capable States to accrue benefits now, without any real commitment to sharing or any accompanying mechanism to operationalise this. The Accords thus allow States to extend their influence through corporate proxies without requiring formal sovereign claims, thereby reproducing the same dynamic by which legal freedom historically facilitated private accumulation on behalf sovereign powers. The Accords are further relevant to the discussion in this paper because they legitimise the appropriation of space resources ahead of international consensus and incentivise States to send their powerful private industry to reap the benefits. This mirrors and in a way returns to historical doctrines that allowed resource benefits to flow solely to those with the capacity to engage in such behaviour. In this way, the Accords pre-emptively prioritise the interpretation and extractive desires of capable States and private actors, and consolidate the factual power dynamics already present in outer space.
With most signatories being technologically advanced States, its relative success may be due to political and economic alliances, or dissatisfaction with the purposeful lack of binding solutions coming from the UN system; it is well-known that the multilateral law-making process through UNCOPUOS has not produced any binding agreements in almost 50 years, with space actors opting for more “soft-law” instruments based on best practices, which has essentially given free reign to current space powers. This impetus toward bilateralism in space joins a recent and ongoing shift in international law where powerful States opt for more flexible non-binding and self-serving instruments instead of multilateral frameworks. This is particularly evident by the U.S. withdrawing from various international institutions and treaty regimes to prioritise national interests over shared governance. In this regard the Artemis Accords form part of a wider legal strategy in which States with capacity choose structures that maximise their unilateral gain while minimising accountability.
On the one hand, the Accords are commendable for their effort to innovate and provide a concrete step to break the multilateral deadlock (Deplano, 2021), but on the other hand, they directly contribute to the ongoing fragmentation of space law. They also highlight a similar dynamic as in Svalbard: if legal systems or multilateral blockades do not immediately serve the interests of dominant space actors, they will find their own way of facilitating their extractive desires. The acquiescence of the signatories and the limited formal opposition the Accords have faced further raise the possibility that its principles will gradually become customary law (Ferreira-Snyman, 2021, p. 32). As Ferreira-Snyman points out, it might be “inevitable that once a private company has de facto control over a space object […] such control may become legal once the majority of States recognises or at least does not object to such appropriation” (2021, p. 27). The same can be said about disproportionate control over orbital slots in LEO, which has so far not received much attention or condemnation, pointing to a passive acceptance of the status quo. Similarly, beyond our orbits, once resource activities begin on celestial bodies, there will be virtually no way to stop them or their lasting impacts (Erlank, 2015, p. 2516). Relying on ex post facto mechanisms, after resource extraction and settlement has already begun, is unlikely to reverse the effects flowing from de facto appropriation, just as international law has never fully undone colonial inequalities.
On the other hand, there are certain trends both within and outside of the space law discourse that point to potential legal pathways that break away from the historical pattern discussed in this paper. Firstly, the Outer Space Treaty already contains the foundational principle that space activities should be carried out for the benefit and in the interests of all countries (OST, Art. I). Reimagining or actually operationalising this principle could directly resist the monopolisation of access and influence (Williams, 1975, p.795; Deplano, 2023, p. 695). This requires challenging the perception of outer space as an unlimited void waiting to be claimed, owned or used (Ray & Parson, 2025, p. 78, 91–92), a view actively cultivated by private industry (Ray & Parson, 2025, p.88). Instead, we need to promote an understanding of space as an inherently fragile part of nature, of our extended ecosystem, that requires shared stewardship (Pozza, 2024, p. ix). Existing initiatives also provide preliminary guidance on this front. For one, the Moon Agreement already framed the Moon and its natural resources as the common heritage of mankind (Art. 11). Also the Hague Building Blocks envision a framework that considers all interests and proposes benefit-sharing mechanisms such as the establishment of an international fund, technology-transfer and capacity-building. These two frameworks, as well as many more, including the various soft-law space instruments adopted over the past decades, will be taken into account by the UNCOPUOS Working Group on Legal Aspects of Space Resource Activities. While only focussing on resource activities, it is to be hoped that the Working Group can find a way to satisfy the increasing extractive desires whilst preventing a new resource-grab full of conflict, and that its recommended principles can guide us toward an equitable and sustainable future in space. Finally, there is a growing body of literature that suggests that there is a general principle of benefit-sharing under international law, as already evident in sustainable development law and in the law of the sea (see Morgera, 2024), which may also inform the future of space governance.
5. Conclusion
As Ray and Parson observe, “[t]he development of State-corporate partnerships in the colonisation of space is a farcical return of the Dutch East India’s logic of mercantile capitalism” (2025, p. 91). Much like the VOC and WIC, today’s space corporations operate under frameworks that blur the lines between commerce and sovereign authority. As the historical parallels have highlighted, private actors have long served as legal and political shield for sovereign aims. The legal notion of “freedom”, whether under terra nullius, Mare Liberum, or the OST, has consistently benefited those with the capacity to establish and early and lasting presence.
Natarajan aptly points out that “international law enables efficient corporate extractivism” even in the few remaining global commons like the deep sea and outer space (2023, p. 9). If the OST and discourse surrounding it were once hesitant or ambiguous about allowing such practice, this restrictive approach is quickly disappearing. Recent developments under the Artemis Accords and in domestic State practice make clear that sovereign expansion through private actors in areas of orbital presence and space resource extraction is steadily being normalised. Meanwhile, the language of shared benefits has functioned as a minimal concession that allows powerful actors to still keep most of their economic, strategic and military advantages.
In light of these historical and developing patterns, there is a pressing need for international law to prevent the consolidation of practical domination by a minority of actors in space, and to account for the historically disadvantaged position of others. This requires more than normative commitments to equity; it demands concrete, enforceable mechanisms obliging States to take responsibility for private conduct and to hold to account those actors that threaten equal access and freedom in outer space. The law must not only respond to present inequalities but proactively design forward-looking and evolving frameworks to prevent their reoccurrence. This can only be done by fully acknowledging the historical complicity of law in enabling the extractive and expansive ambitions of private enterprise and sovereign power alike.
If the exploration and use of space is truly to benefit all countries, if outer space is truly a global common, all States must be able to participate in space activities and resist those activities and behaviours that are not in the global public interest. It is in the collective interest that no single actor wields uncontrolled power over our orbits and beyond (Williams, 1975, p. 799; Johnson-Freese & Smith, 2020). The historical analysis in this paper has highlighted that without active resistance, familiar patterns of private and public domination will re-emerge in a new domain. Unless we reconceptualise space governance through equitable and participatory frameworks, we may be left with a regime that continues the same colonial dynamics that still shape international society.
Notes
[1] United Nations Office for Outer Space Affairs, Online Index of Objects Launched into Outer Space, Filter: State/Org: United States of America; In Orbit: Yes; Status: in orbit; Launch Year: 2025. Starlink entities found by entering the name “Starlink” in the search bar.
Acknowledgements
I would like to thank the anonymous reviewers for their insightful comments and constructive suggestions, which have greatly improved this work. Gratitude is also extended to my supervisor and friends for valuable editorial guidance and support during the early stages of this work. Finally, I want to thank the production teams at IJC and Ubiquity for the smooth process. All remaining errors are my own.
Competing Interests
The author has no competing interests to declare.