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Introduction
The history of spaceflight can be divided into two spheres, where the first would encapsulate the stories of individual humans in outer space, and the second would be covering the stories of machines. In the field of crewed space missions, those stories would certainly overlap, branching out into design and operational philosophies behind US and Soviet spacecraft (best portrayed in the cooperation and difficulties faced by the Apollo-Soyuz test in 1975)[1]. Other fields would include bioastronautics, space exploration, in-space telescopes, as well as materials science experiments in short and long-term microgravity. Materials sciences experiments studies the effects of microgravity, as well as the space environment on properties of subject materials. They included crystal growth, welding, metallurgical processes (such as melting, joining and alloying), and more recently additive manufacturing (commonly known under the umbrella term of “3D printing”). Historically, space manufacturing experiments can be traced back to the Vulkan welding experiment on Soyuz 6 in 1969 and Skylab experiments between 1973-1974, though the concept of producing unique commodities that would benefit from microgravity can be found even in the pre-space age works of futurists and science fiction authors, such as Konstantin E. Tsiolkovsky.
Space Manufacturing, currently referred to as In-Space Manufacturing (ISM)[2] consists of industrial processes carried out in outer space that aim at producing designated products. These processes would include materials processing, production, assembly and integration carried out in orbit on the surface of celestial bodies (such as the Moon or Mars). Products of ISM would include spare parts, modification kits, fuels, components, systems, as well as a scope of satellites, rovers and structures (shielded habitats for crew). ISM is sometimes considered part of other activities, like In-situ Space Resource Utilization (ISRU), In-Space/On-Orbit Servicing, Assembly and Manufacturing (ISAM/OSAM). ISM has a prospect of being integral to ISRU and industrial scale space mining operation, as the aim of extracting space resources is to utilize them in industrial processes for the benefit of sustainable extraterrestrial activities, as well as terrestrial markets.
While ISM seems to be a promising endeavor (though in its infancy), its legal aspects still remain unclear. The reason for this lack of clarity and certainty stems from the nature of international space law and its relation to national regulation. Therefore let us venture into the uncharted regions of the regulatory prospects of in-space manufacturing in regards to space law.
Space objects
As we all know, the exploration of outer space is considered the province of all humanity, guaranteeing every nation the freedom to explore and use outer space for peaceful purposes (Art I OST), no part of outer space nor celestial body is subject to national appropriation or claims of sovereignty, whether supported by occupation (in the form of instruments, landers, flags or permanent presence of people) or any other means (Art II OST). That however doesn’t make spacecraft and its personnel free from any national or international obligation from the moment they leave Earth and enter into the domain of outer space (bearing in mind that the demarcation line between airspace and outer space hasn’t yet been officially established). Space activities carried out by states or their nationals are performed with the use of space objects. Space objects in turn are considered a quasi-territory of the launching state (the state of registry), which retains jurisdiction and control over their registered space object (Art VIII OST). Thus space objects can be astrolegally considered the in-space appendage of a state of registry, and states bear both international responsibility for authorization of space activities carried out with the use of a space object (Art VI OST) and liability for damage (Art VII OST and the provisions of the Liability Convention).
While there is no clear definition of a space object in the international space law, besides the brief definitions given by the Liability and Registration conventions, states can adopt their own definitions in their national space law[3]. Furthermore, space objects in the scope of space law, come into existence with their entry into the proper space object registry. Yet while the external effects of space object’s activity (collisions, harmful contamination and interference) are mostly subject only to international space law, the internal activities (on-board experiments, crew safety, manufacturing) are mostly subject only to national space laws. The word “mostly” is very important, for there is a significant overlap in selected areas – authorization and supervision may all for certain maneuvers or use of instruments and devices that affect the surrounding environment, like direct space resource prospecting, while carrying weapons of mass destruction on board of space objects is prohibited under international space law. This also involves dual use of space technologies (while the OST prohibits establishing fortifications on the Moon, every surface station is required to withstand local levels of radiation and meteor impacts, thus doubling as an “unarmed” bunker).
As we’ve established, the general rule for space objects is that what occurs on space objects is the sole business of the state of registry, along with the concerned parties. Taking into the account that the majority of space manufacturing activities will be carried out within the confines of space objects (whether its a designated module or a workshop on board of a space station, a freeflyer satellite platform or a robust “lunar factory”), it is understandable that in-space manufacturing operations aren’t much of a concern for international space law. That makes ISM the sole domain of states of registry, who retain jurisdiction over activities and processes taking place within their respective space objects.
Products of ISM
The goal of a manufacturing activity taking place on-board of a space object is to produce a product. Depending on the nature of the material substrates, products would be manufactured using either materials launched from Earth (as is the case with contemporary ISM demonstrators and experiments) or from extraterrestrial resources. In both cases, regulating manufacturing activities carried out on a space object will be the sole domain of the state of registry. Generally industrial safety standards, as well as provisions of civil/common law and especially patent law would apply to the interior of a space object accordingly. Thus any instance of patent infringement in regards to processes, products and devices, made, used or sold on board of a space object would apply in a similar manner to how patent protection is applied in regards to terrestrial territories.
However, here issues start popping up like failures on a substandard smallsat. ISM products, as we may refer to them, don’t exist in the legal terminology. For the sake of discussion, we shall divide them into two basic categories: Space products and Space manufactured objects. Space products will comprise of any small articles of manufacture and devices, that would form tools, spares, consumables and manually operated portable instruments, that might not be considered “space objects” if they were flown from Earth. Space manufactured objets (SMO) would be the other side of ISM products, consisting of components and modular elements that serve the same function as launched space objects. For now, let’s consider the former.
The regulatory perspective
The issue with space products is twofold. Leaving out the issues of patent protection, the authorized ISM operator might not be the free entrepreneur they dreamt themselves to be. This stems from the fact that, subject to authorization and continuous supervision, ISM activity will be heavily regulated and subject to rigorous standards. It is unclear how much of its product batch the operator can sell on the (poly-global) free market, without clearance or notice from the supervising body. Obligations of ISM operators in regards to national security or compliance with regulations set by authorities supervising tangible in-space commerce are yet unknown. There is no framework currently regulating the post-extraction activity regarding space resources, however we can assume that in the worst case scenario, both the manufacturer and miner will have to fill out a towering amount of paperwork in order for the former to purchase raw or processed resources from the latter. While the opposite might become reality in the near future, and both parties would have a lot of leeway in directing their business and forming supply chains, there is a concern of governments regulating what type, amount and form of products can be sold to unaffiliated parties (domestic and abroad). The commercial remote sensing framework may be reproduced in that regard [4], however bureaucratic micromanagement still remains on the table.
The other problem with tangible space products is their lack of registration. The reasons why the registry has been formed in the first place were transparency, accountability and designation of ownership. In the case of space products we still speak of ownership, as the manufacturer will be considered the owner of their product, unless specific regulations and contracts say otherwise. However ownership in civil or common law is not to be mistaken with ownership in regards to the provisions of international space law. If an artificial object bears no registration, it does not formally exist under international space law, thus no country is directly responsible or liable for any harmful or damaging occurrence involving space products abandoned, disposed of or lost in outer space or on a celestial body. They may still be considered space debris or even made into a commemorative statue [5]. Bearing in mind that the practice of tracking and identifying lost items and space debris goes far beyond the scope of regulation, This will cause issues in the long run.
The second ISM product that is worthy of mentioning is the SMO. Space manufactured objects will face similar regulatory hurdles as space products, with additional regulatory frameworks on top of that. Leaving aside the issue of some ISM processes occurring outside of the space object (which adds an additional layer to discussed problems), SMOs would possibly employ the legal properties of classical (launched) space objects, as well as the technical ones. This would entail their obligatory registration, resulting in the state of registry retaining jurisdiction and control over them. It is worth noting that while Art VIII of the OST includes objects “launched, landed and constructed”, there isn’t much clarity in regards to what would constitute a “construction material” for the latter space object. However, there is no certainty regarding that SMOs would be classified as space objects per se, as national regulations are free to regulate their national activities as they see fit – as long as those regulations comply with the general requirements set forth by the Outer Space Treaty [6]. Therefore SMOs might be included in the space object registry, and their national registration included in the UN space object registry in accordance with the Registration convention [7]. Regulators however might provide a specific form of recognizing SMOs as quasi-objects, where the state generally retains jurisdiction and control over those objects, yet not including them into the space object registry. Thus those quasi-objects would remain recognized as some special form of space infrastructure under national space law and for space policy and commerce consideration, while not being perceived as space objects erga omnes. This might be the case with SMOs being included as “components” of a “collective space object” [8], or as in-situ manufactured additions to launched space objects which form the core, to which the manufactured components are integrated into [9]. There were attempts to codify this concept, as can be seen in Art 6 of the Building Blocks For The Development Of An International Framework On Space Resource Activities [10], and Sec 3 point 11 of the American Free Enterprise Commercial Space Act of 2017 [11,12], yet none of them become either a UN resolution nor national law.
Conclusions
There is no arguing that in-space manufacturing activities are permissible under international law. However, there are problems that stem from the scope of the activity and its relation to other activities in outer space and on celestial bodies. As with space resource activities, ISM lacks a clear regulatory framework even on the national level. as ISM is an integral part to space resource utilization, they will have to become interlinked on the regulatory level. Lack of legal clarity will in turn make this upstart field of industry more prone to risk, leaving it remaining in its infancy stage for an unknown period. Future space regulations should address the issue of ISM products and their commercial as well as administrative aspects, in order to create a more safe and sustainable environment for new advancements for the industry and space resources based endeavors.
Kamil Muzyka
Edited by Mariusz T. Kłoda
[1] Bourefly, M. G. The Legal Framework of the Spacelab/Space Shuttle Programs in Comparison with the Apollo/Soyuz Test Program, 9 J. SPACE L. 77 (1976).
[2] Muzyka K. In-Space Manufacturing (ISM). In: Elgar Concise Encyclopedia of Space Law 2025 Jan 9 (pp. 126-129). Edward Elgar Publishing.
[3] Hearsey, Ch.M. Comparative Study of the Definition of Space Object in National Space Laws and Its Legal Effect Under International Law (May 2, 2012), https://ssrn.com/abstract=2072514
[4] Le, H., Commercial Remote Sensing: The National Security Dilemma, The Denver Journal of International Law & Policy, December 14, 2022, https://djilp.org/commercial-remote-sensing-the-national-security-dilemma/
[5] One Small Step to Protect Human Heritage in Space Act, Pub. L. 116–275, 134 Stat. 3359.
[6] von der Dunk, Frans G., The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law. Space, Cyber, and Telecommunications Law Program Faculty Publications. 69 (2011).. https://digitalcommons.unl.edu/spacelaw/69
[7] Muzyka K. Paragraphs for Space Shoggoths, Bush robots, and Dyson Trees–the legal complexity of manufacturing space objects using natural and artificial space resources. Ad Astra. Program badań nad astropolityką i prawem kosmicznym. 2021(2):5-22.
[8] Salmeri, A. Collective Space Object as a New concept of International Space Law, Air and Space Law 46, no. 2 (2021).
[9] Hanlon, M.L.D., Wood, S., Lovejoy, R., Astro-Intellectual Property: A New Frontier for Innovation, AIPLA CLE Paper 2024.
[10] Hague International Space Resources Governance Working Group, Building Blocks For The Development Of An International Framework On Space Resource Activities, https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht–en-ruimterecht/space-resources/revised-building-blocks-following-the-meeting-of-april-2019.pdf
[11] American Space Commerce Free Enterprise Acr H.R.2809, later reintroduced as American Space Commerce Free Enterprise Act of 2019, H.R.3610;
[12] Hao, L., & Tronchetti, F. The American Space Commerce Free Enterprise Act of 2017: The latest step in regulating the space resources utilization industry or something more?. Space Policy, 47 (2019), 1-6.
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