THE ORBITAL ARMS RACE
Who Truly Owns the Highways in the Sky, And Who Pays When They Collapse to Earth
A Legal Inquiry into Satellite Pathways, Space Debris, and the Coming Age of Extraterrestrial Litigation
I. A Frontier Without a Deed
Two hundred and fifty miles above your head, at this very moment, roughly nine to eleven thousand active satellites are moving at approximately 7.8 kilometres per second, fast enough to cross India from Mumbai to Delhi in under three minutes. Interwoven between them are the remnants of seven decades of human ambition: dead satellites, spent rocket stages, flecks of paint travelling fast enough to punch through aluminium, and the fragments of at least two deliberate weapons tests. No nation owns this highway. No single court has jurisdiction over it. And yet, when two objects collide up there, or when a piece of one of them survives re-entry and lands on a rooftop in Naples, Florida, or a farmer’s field in Western Australia, very real, very terrestrial legal claims follow.
This is the paradox at the heart of modern space law: humanity built an intricate legal architecture for outer space in the 1960s and 1970s, an era when fewer than a thousand functioning objects orbited the Earth, and has been trying to stretch that architecture over a sky that will hold, by credible industry estimates, over 100,000 active satellites by the mid-2030s. The law of “orbital pathways” was never really a law of property. It was a law of radio frequencies, state responsibility, and diplomatic liability, and it is now being asked to do the work of zoning law, tort law, insurance law, environmental law, and criminal law, simultaneously, for a domain with no police, no courts of first instance, and no single sovereign.
This article examines four interlocking questions that define what we call the Orbital Arms Race:
1. Who legally “owns” or controls a satellite’s orbital pathway, and is that even the right question?
2. What treaty and domestic frameworks govern liability when space debris causes harm, in orbit, and on Earth?
3. How have courts, regulators, and diplomatic channels actually adjudicated debris-related disputes to date?
4. What reforms, checkpoints, and probable outcomes should practitioners, policymakers, and industry watch for?
II. The Myth of Orbital “Ownership”
2.1 No Real Estate in the Sky
Article II of the Outer Space Treaty of 1967 (“OST”), the constitutional document of space law, ratified by 115 states including the United States, Russia, China, and India, states that outer space, including the Moon and other celestial bodies, “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” No state, and by extension no company incorporated within that state, can plant a flag on an orbital lane and call it property.
This was tested directly in 1976, when eight equatorial nations, Colombia, Ecuador, Congo, Zaire, Indonesia, Kenya, Uganda, and Brazil, issued the Bogotá Declaration, asserting sovereign rights over the segments of the geostationary orbit (GEO) directly above their territory, on the theory that geostationary slots were a scarce natural resource tied to the Earth beneath them, not part of “outer space” proper. The declaration argued that this orbital band did not fall under the definition of “outer space” set out in the 1967 treaty and was therefore a natural resource belonging to the subjacent states. The claim was rejected by the overwhelming majority of the international community as inconsistent with the Outer Space Treaty and was, in practical terms, abandoned, but it was never definitively litigated, and echoes of the same argument resurface today whenever equatorial and developing nations complain that geostationary slots are being monopolised by early movers.
2.2 So Who Actually Allocates the Lanes?
If no one owns an orbital pathway, someone still has to manage traffic on it; otherwise, every satellite operator’s downlink signal would collide with every other’s. That function falls to the International Telecommunication Union (ITU), a UN specialised agency, which coordinates radio-frequency spectrum and associated orbital slots (chiefly in the geostationary arc) through its Radio Regulations. The ITU does not grant ownership; it grants priority of use, recorded through a “first-come, first-served” registration and coordination process, later modified for certain frequency bands to include equitable-access safeguards for developing nations.
In Low Earth Orbit (LEO), the shell between roughly 300 and 2,000 kilometres, home to mega-constellations such as Starlink, OneWeb, and China’s Guowang, there is no equivalent slot system at all. National regulators, principally the U.S. Federal Communications Commission (FCC), license domestic operators, and the ITU coordinates frequency use, but physical orbital shells in LEO are allocated essentially on a first-come, first-served operational basis, with no binding cap on the number of satellites a shell may safely hold. Commentators have pointed out that this practice, allowing companies to saturate finite orbital shells without a governing environmental assessment, sits uneasily with the Outer Space Treaty’s declaration that space is the “province of all mankind” and its prohibition on national appropriation “by other means.”
III. The Treaty Architecture: Five Instruments, One Big Gap
International space law rests on five core United Nations treaties, negotiated between 1967 and 1979 under the Committee on the Peaceful Uses of Outer Space (COPUOS).
Two provisions matter most for the debris question, and it is essential to hold them apart:
This split standard absolute liability on Earth, fault-based liability in space is the single most important legal fact in this entire field, and it is why the diagram below matters more than it might first appear.
The logic is deliberate. Drafters in 1972 assumed that a government or citizen struck by falling space hardware should not have to prove that a foreign state’s engineers were negligent; the mere fact of the launch and the resulting harm is enough. But two satellites colliding in orbit was treated as a fundamentally different, more technical question, where allocating blame without proof of fault risked penalising responsible operators for the unavoidable hazards of shared orbital lanes.
3.1 The Attribution Problem Nobody Solved
Even where liability is clear in principle, whom do you sue? The Liability Convention channels claims through the “launching State”, defined broadly enough to include the state that launches, procures the launch, or from whose territory the object launches. In an age of multinational supply chains, an Indian payload, launched by a French rocket, from a spaceport in French Guiana, insured by a UK underwriter, and operated by a company incorporated in Delaware but headquartered in Bengaluru, there can be, in principle, several “launching states” simultaneously and jointly liable, with no binding formula for apportioning the loss between them internally. Scholars have spent decades debating whether “national activities” under Article VI tracks the same launching-state concept used in Article VII, or reaches wider, a debate with no settled answer even today.
IV. When the Sky Actually Falls: A Short, Sobering Case Log
Legal theory aside, the debris problem has already generated real claims, real bills, and, increasingly, real courtroom filings. The following cases form the closest thing space law has to precedent.
4.1 Reading Between the Cases: The Domestic Victim’s Trap
The Otero case exposes a structural blind spot that most popular commentary on “space law” misses entirely. The Liability Convention’s absolute-liability regime protects foreign victims of another state’s space object. Had the Otero family’s Florida home instead been located in Mexico or Canada, the U.S. government would, under the Convention, have been obliged to compensate the family without needing to prove negligence. But because the debris fell on U.S. soil and NASA is a U.S. federal agency, the family had no treaty claim at all; their only route was an ordinary domestic negligence claim under the FTCA, which does require proof of fault, subject to sovereign immunity, discretionary-function defences, and administrative exhaustion requirements.
4.2 The Attribution Problem in Practice
The 2024 Florida incident also illustrates the private-versus-public liability layering discussed above. The governing treaties hold launching nations, not the private companies actually involved, internationally responsible for falling space objects, meaning a victim typically has no direct international claim against a commercial operator, even where that operator built, owned, or discarded the debris. This does not mean commercial actors escape all consequences: national tort law may still apply to the victim, contractual risk-allocation clauses operate between launch providers, customers, and contractors, and licensing regimes frequently mandate insurance, with governments free to seek reimbursement from the operator responsible. Which of these routes actually applies depends on the operator involved, the terms of the launch licence, the place of impact, the states implicated, and the specific agreements underlying the mission, a fact-intensive inquiry that makes generic “who is liable for space debris” answers close to useless in practice.
V. The Numbers Behind the Danger: Quantifying the Orbital Commons
Debris surveillance networks currently track more than 43,000 objects larger than 10 centimetres, including approximately 9,300 active payloads and over 2,000 spent rocket stages. Statistical models such as ESA’s MASTER-8 predict an estimated 1.2 million fragments between 1 and 10 centimetres in size, and more than 140 million objects smaller than 1 centimetre, with the total mass of all human-made orbiting objects exceeding 15,000 tonnes.
At orbital velocity, size is almost irrelevant to lethality. A fragment as small as one centimetre carries enough kinetic energy to disable an operational satellite outright, and objects colliding on crossing trajectories can close at speeds exceeding 15 kilometres per second, more than ten times the velocity of a rifle bullet.
The 2019–2026 growth rate represents roughly a six-and-a-half-fold acceleration over the pre-constellation era, driven overwhelmingly by the deployment of Starlink, OneWeb, and the early stages of Amazon’s Project Kuiper and China’s Guowang constellation.
5.1 The Kessler Syndrome: Fact, Not Science Fiction
In 1978, NASA scientist Donald J. Kessler proposed what has since become the defining nightmare scenario of orbital law and policy: that once the density of objects in a given orbital shell crosses a critical threshold, collisions will generate debris faster than atmospheric drag and natural decay can remove it, a self-sustaining cascade that could render entire orbital bands unusable for generations, regardless of whether any further launches occur.
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This is frequently dismissed in popular discussion as speculative or exaggerated. The evidence increasingly says otherwise. The European Space Agency’s 2025 Space Environment Report concluded that there is scientific consensus that the debris population would continue growing even if all future launches were halted immediately, because fragmentation events now add new debris faster than natural orbital decay can clear it, meaning that simply avoiding new debris is no longer sufficient, and active removal has become necessary. Current modelling places the band between roughly 600 and 900 kilometres altitude, precisely where fragments from the 2007 Chinese ASAT test, the 2009 Iridium–Cosmos collision, and the 2021 Russian ASAT test against Kosmos 1408 now reside, as the shell of greatest concern in 2026.
Debunking a common myth: It is often claimed in popular media that “space is infinite, so debris cannot really run out of room.” This confuses total volume with usable, collision-safe volume in specific high-value orbital shells (particularly Sun-synchronous orbits used for Earth observation, and the increasingly congested 500–600 km Starlink shells). Debris risk is not evenly distributed across all of space; it is acutely concentrated in a handful of orbital “neighbourhoods” that are disproportionately valuable for communications, navigation, and defence; precisely the neighbourhoods now filling up fastest.
VI. The Regulatory Patchwork: How Nations Are (Unevenly) Responding
No single global regulator governs space traffic management. Instead, a patchwork of domestic regimes has emerged, each imperfectly implementing states’ Article VI obligations.
6.1 India’s Position: A Practitioner’s Vantage Point
For practitioners advising cross-border clients between India and the Gulf, a corridor increasingly relevant as UAE-based and Indian satellite and downstream-data ventures multiply, India’s regulatory gap is not merely theoretical. India currently has no comprehensive statute directly implementing its international treaty obligations for domestic space activity, relying instead on the administrative Indian Space Policy of 2023 and IN-SPACe’s authorisation norms. The long-pending Space Activities Bill, first drafted in 2017, lapsed with the outgoing Lok Sabha in 2019, and now redrafted following consultation with more than 400 private space companies and start-ups, is intended to grant IN-SPACe statutory authority, address insurance access for high-value space assets, and formalise liability rules that are currently absent from binding Indian law. Until the Bill clears Cabinet approval and parliamentary passage, Indian private operators, and the foreign counterparties who contract with them, are negotiating cross-border risk allocation, insurance, and indemnity clauses against a backdrop of policy, not enacted statute. For contract drafters, this makes explicit, privately negotiated liability, insurance, and indemnity clauses considerably more important than they would be in a jurisdiction with a settled statutory liability regime.
VII. Adjudication: How Would (and Do) Courts Actually Handle This?
7.1 The Forum Problem
There is no “World Space Court.” When a dispute arises, it can, in principle, land in one of at least five very different forums, each with different rules, remedies, and enforceability:
7.2 Why Domestic Courts Increasingly Matter More Than Treaties
The practical reality emerging from the case log above is that most real-world orbital disputes never reach a treaty mechanism at all. The 2009 Iridium–Cosmos collision generated no state claim; commercial insurers simply absorbed the loss. The 2023 DISH matter was resolved entirely within U.S. domestic administrative law. The 2024 Otero claim proceeded under the FTCA, a purely domestic statute, precisely because the Liability Convention does not reach a state’s own nationals.
This suggests a probable trajectory: as commercial activity in orbit multiplies far faster than treaty reform, domestic courts, national regulators, and commercial arbitration will do most of the real adjudicative work, with the 1967–1979 treaty framework operating more as background allocation-of-responsibility scaffolding than as an active source of judicially enforceable remedies for private parties.
7.3 Probable Outcomes for the Next Decade
VIII. Checkpoints and Solutions: What Would Actually Fix This?
Rather than proposing a single grand treaty (unlikely, given current geopolitical alignment), the more realistic reform agenda clusters around five practical checkpoints:
IX. Conclusion: The Law Is Playing Catch-Up, and Everyone Knows It
The treaties that govern outer space were drafted for a world of a few dozen government-owned satellites and two superpowers. They now govern a domain adding roughly 1,700 trackable objects a year, dominated by commercial mega-constellations, with private litigants increasingly finding themselves in the gaps between “international responsibility” and “domestic remedy.” The Cosmos 954 settlement showed that the treaty framework can work; slowly, imperfectly, at roughly fifty cents on the claimed dollar. The Otero family’s Florida claim showed what happens when a victim falls outside that framework entirely. The DISH fine showed that domestic regulators, not international tribunals, may end up doing the real enforcement work of the coming decade.
For lawyers, policymakers, insurers, and space industry counsel, the practical takeaway is not to wait for a new grand treaty. It is to understand, precisely, jurisdiction by jurisdiction, contract by contract, which of the five adjudicative pathways described in Section VII actually applies to a given client’s risk, and to draft accordingly. The orbital arms race is not just about satellites and debris. It is, increasingly, about who gets to write the governing law clause before the next fragment falls.
References and Sources
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), 1967, Arts. I, II, VI, VII, IX.
2. Convention on International Liability for Damage Caused by Space Objects (Liability Convention), 1972, Arts. II, III.
3. Convention on Registration of Objects Launched into Outer Space, 1976.
4. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement), 1979.
5. Bogotá Declaration, 1976 (unratified; rejected by the international community as inconsistent with the Outer Space Treaty).
6. United Nations Office for Outer Space Affairs (UNOOSA), “International Space Law Explained,” un.org.
7. Global Arbitration Review, The Guide to Aviation and Space Disputes (2nd ed.), “Orbiting human-built objects: managing and resolving satellite disputes.”
8. American Bar Association, Business Law Today, “On Clearing Earth’s Orbital Debris & Enforcing the Outer Space Treaty in the U.S.” (January 2022).
9. EJIL: Talk!, “Starlink and International Law: The Challenge of Corporate Sovereignty in Outer Space” (2025).
10. Federal Communications Commission, Enforcement Bureau, DISH Network Corporation Order and Consent Decree, DA 23–911 (October 2, 2023).
11. NASA / Reuters / CBS News / Space.com / NPR reporting on the Otero v. NASA administrative claim under the Federal Tort Claims Act (2024).
12. Canada–USSR Protocol on Settlement of Claim, Cosmos 954 (April 2, 1981), UNOOSA Bilateral & Multilateral Agreements archive.
13. McGill Law Journal, “After the Fall: An Analysis of Canadian Legal Claims for Damage Caused by Cosmos 954.”
14. Canadian Yearbook of International Law, “Liability for Damage Caused by Space Debris: The Cosmos 954 Claim” (1989).
15. European Space Agency, “ESA Space Environment Report 2025.”
16. eoPortal, “Orbital Debris” database and reference article (2026 figures).
17. Wikipedia / Vajiram & Ravi / Lexology / CSDR, reporting on India’s draft Space Activities Bill and Indian Space Policy 2023.
18. Permanent Court of Arbitration, “Optional Rules for Arbitration of Disputes Relating to Outer Space Activities” (2011).
All web-sourced facts and figures were verified through contemporaneous reporting and primary regulatory or treaty documents current as of September 2026. Figures describing the current orbital debris population are necessarily estimates, given the limits of ground-based tracking for objects below approximately 10 centimetres, and are drawn from ESA and eoPortal modelling as cited above.
ABOUT THE AUTHOR
Angana Sarmah
Angana Sarmah is a lawyer with over 13 years of experience practising across multiple jurisdictions in India, the UAE, and internationally. She specialises in cross-border contract negotiation and has seen firsthand how cultural differences shape contract interpretation and enforcement.
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