As the United States begins to extend its jurisdiction into the vacuum of space, a new system of governance will inevitably emerge, shaped not just by laws and treaties but by interactions, perceptions, and evolving norms. Constructivist theory, with its focus on the social construction of reality, offers an illuminating lens through which to understand how American space governance might unfold in the early colonization era. In this environment, law is not only codified but lived, defined by practice and legitimacy.
The United States does not begin its governance of space from a blank slate. The foundational document remains the 1967 Outer Space Treaty, which declares that outer space is the “province of all mankind” and prohibits national appropriation of outer space. Yet, it also enables signatories to maintain jurisdiction over their registered spacecraft and personnel. This means American settlers on a U.S.-flagged habitat on the Moon or Mars would fall under U.S. civil and criminal law, as codified by the state or federal authority responsible for that registration. But in the vacuum of deep space, where emergency scenarios unfold faster than legal deliberation, the law becomes more than statutes; it becomes the shared expectations, duties, and codes of conduct that take root among the settlers themselves.
NASA, though an iconic agency, does not lead U.S. space governance alone. Instead, the national architecture is divided between civil, military, and commercial command structures. NASA governs civil space exploration, coordinating research and deep space missions. The U.S. Space Force, established in 2019 and operating under the Department of the Air Force, handles national security and defense-related matters in orbit and beyond. As of fiscal year 2024, the Space Force operates with a budget exceeding $30 billion and a workforce of over 14,000 uniformed Guardians and civilian personnel. Meanwhile, the Department of Commerce, through its Office of Space Commerce, regulates private entities and supports U.S. leadership in commercial space activity.
Private actors are not just stakeholders; they are system builders. Companies such as SpaceX, Blue Origin, and Axiom Space are not just contractors but founders of new communities. SpaceX’s Starship system, with its unprecedented cargo capacity, has already delivered essential materials to lunar staging areas. By 2027, NASA aims to establish the Lunar Gateway, a modular station orbiting the Moon, to serve as a launchpad for future missions to Mars. But who governs these shared assets? And under what authority? In space, ownership is nebulous, but functional control is everything. The Artemis Accords, a multilateral framework signed by over 30 nations, outline transparency, interoperability, and the peaceful use of space. Still, these are principles, not enforcement mechanisms. The role of private companies in shaping these norms and their potential influence on the future of space governance is a fascinating aspect to consider.
Here is where constructivism offers clarity. Governance in the early colonization period will be shaped not only by formal treaties but also by the emergent norms formed through daily operations. If settlers on Mars develop a practice of democratic councils, backed by Earth-based legal norms, that structure may carry moral legitimacy even before it gains formal recognition. If resource sharing becomes standard practice among multinational crews at the Gateway, it could lay the groundwork for customary law. Social norms will harden into expectations and, over time, into written codes. These processes will be accelerated by the communications infrastructure connecting Earth and its offworld colonies. While current delays range from 2.5 seconds (Moon) to 22 minutes (Mars), the ability to share data, video, and administrative records will allow Earth-based institutions to monitor and influence colonial governance, without micromanaging it. The role of Earth-based institutions in providing oversight and influencing colonial governance should instill confidence in the audience about the robustness of the system.
The challenge, however, lies in the gaps. In the early years of colonization, there will be emergencies, disputes, and perhaps crimes that test the legal scaffolding. Who arbitrates a theft on Mars? What authority governs an airlock sabotage in orbit? While U.S. law can technically apply, enforcement will be uneven and likely delegated to mission commanders or local governance bodies. The International Space Station has already set a precedent: its Intergovernmental Agreement includes provisions for criminal jurisdiction based on nationality. The Moon and Mars, although farther away, may adopt similar arrangements, at least initially. The potential for conflict resolution and the system's adaptability in addressing such challenges should reassure the audience about the robustness of space governance.
Congress has already begun laying down statutory precedents. The U.S. Commercial Space Launch Competitiveness Act of 2015 recognizes the right of U.S. citizens to own resources extracted from celestial bodies. This does not violate the Outer Space Treaty, provided it avoids claims of sovereignty. In effect, this allows American corporations to mine resources while avoiding a legal vacuum. In 2020, Executive Order 13914 further clarified U.S. policy, stating that the United States does not view space as a global commons and encourages commercial exploitation. This approach may clash with rival visions from nations such as Russia or China, which favor more centralized, state-controlled governance. In the years ahead, the competition for governance legitimacy will be waged not only with rockets but with norms.
Looking forward, American space governance is likely to evolve into a federated model, Earth-based institutions will establish strategic principles, while autonomous colonial governments will handle local implementation. This could mirror the federal-state balance within the U.S. itself. Key agencies will include NASA, the Space Force, the Department of Commerce, and the Federal Aviation Administration’s Office of Commercial Space Transportation. Their regulations, shaped by Congressional oversight, will anchor governance. But their success will hinge on legitimacy, not just legality.
Constructivism reminds us that law is not a thing imposed but a process enacted. As Americans plant their boots and flags on alien soil, their governance will depend not just on the laws they bring, but on the habits they establish, the ideals they carry, and the norms they are willing to fight for. In the end, the governance of space will not be a fixed architecture, but a living constitution, written in the dust of other worlds.
References
Agreement Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 37 I.L.M. 715.
Artemis Accords. Washington, DC: U.S. Department of State, Oct. 13, 2020. https://www.state.gov/artemis-accords/.
Commercial Space Launch Competitiveness Act, Pub. L. No. 114–90, 129 Stat. 704 (2015).
Executive Order 13914, “Encouraging International Support for the Recovery and Use of Space Resources,” 85 Fed. Reg. 19549 (Apr. 6, 2020).
NASA, Fiscal Year 2025 Budget Estimates. Washington, DC: NASA Budget Office, Feb. 2024.
National Space Policy of the United States of America. Washington, DC: White House, Oct. 2024.
Office of Space Commerce, Department of Commerce, Traffic Coordination System for Space (TraCSS) Beta Deployment Report. Washington, DC: U.S. Department of Commerce, Sept. 2024.
Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies), Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
Space Resources Exploration and Utilization Act, Pub. L. No. 114–90, 129 Stat. 704 (2015).
U.S. Space Force Authorization Act of 2019, Pub. L. No. 116–92, 133 Stat. 1382 (2019).
U.S. Department of Transportation, Federal Aviation Administration, Office of Commercial Space Transportation, “Licensing and Safety Requirements for Human Space Flight,” 14 C.F.R. Part 460 (2025).
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