Who Writes the Rules of Space? Attorney Michael J. Listner on the Fight to Control the Final Frontier

Behind the headlines of space exploration and innovation lies a far less visible story: the fight for legal control over the cosmos. Michael J. Listner, founder of Space Law & Policy Solutions, has made it his mission to track and interpret these power plays. 

A strategist in lawfare and space policy, he reveals how nations are leveraging treaties and institutions to gain the upper hand in orbit, on the moon, and beyond. In this conversation, Listner unravels the subtle dynamics of space law—from the brewing competition over debris mitigation to the commercial risks hidden in lunar governance—and explains why the battle for space is as much about politics as it is about technology.

Could you explain how nations and companies are using legal frameworks to gain advantages in space?

It's really a two-tiered dynamic. The U.S. has a heavy focus on commercial space, which stems from a critical provision in Article VI of the 1967 Outer Space Treaty. That provision allows non-governmental entities like companies to perform space activities under state authorization and supervision. Nobody thought it would prove significant—even Ambassador Goldberg was skeptical when he testified before the Senate Foreign Relations Committee of its limited scope. That assessment proved incorrect.

We're now adapting that treaty's interpretation through our actions, much like molding a piece of taffy. Companies like SpaceX and Blue Origin are expanding the interepretation of the treaty and creating new international law through customary practice. When these companies perform space activities, they're effectively conducting national space activities due to that authorization and supervision requirement.

This has created significant tension with Russia, China, and even European states. China and Russia have aligned their positions, essentially declaring, 'We have our own vision for the future, and we're going to shape it accordingly.' They're employing lawfare techniques, particularly through the UN where they maintain significant soft power influence, to challenge commercial space activities. It mirrors China's strategy in the South China Sea—openly challenging treaty interpretations while asserting their own version of international law.

Read "China, Article V, Starlink, and hybrid warfare: An assessment of a lawfare operation" for more on how nations use legal frameworks as tools of power projection

You’ve written about space debris challenges. How do you see the intersection of debris mitigation policies and national military interests shaping access to key orbital slots?

Space debris is a logistical problem, not an emotional issue. We have three major regions of orbit—low Earth orbit, medium Earth orbit, and geosynchronous orbit—and debris affects them differently. While people get very emotional about the Kessler syndrome theory of cascading debris creation, we need to approach this practically.

The U.S. pioneered the first rules in 1995 through NASA, requiring satellites to de-orbit within 25 years after the become non-functional. President Obama made these guidelines mandatory for government and military missions, but commercial space wasn't bound by them. The FCC jumped in, assuming authority over communication satellites like Starlink, requiring debris mitigation plans. They recently shortened the timeline to five years, though the legality of that remains questionable.

Here's the key point about national security: The Department of Defense issued a sustainability memorandum in 2023 but included a clause allowing the Secretary of Defense to override it. Same with the 25-year rule—it can be waived for national security interests. 

National security is probably one of the most fluid concepts ever, but it does affect outer space activities and debris mitigation.

The is no central, international authority over space debris because of national sovereignty. Some individuals and NGOs want to give some of that sovereignty to an international body like the UN, but that's a non-starter. Corruption and influence by the PRC in the UN would invite political abuse. I also think it would violate the U.S. Constitution.

Read "Taking the thumb off the scale: Chevron Deference, its repeal, and the effect on regulation of orbital debris" for an in-depth analysis of debris regulation challenges

What unstated commercial risks do you see in the current frameworks governing space resources, and how should stakeholders address them?

Legal uncertainty presents the primary challenge. This November marks a decade since Congress passed the space resources bill and President Obama signed it. Since then, meaningful legal progress has stalled. President Trump issued an executive order supporting space resources, and we've pursued diplomatic channels to advance this agenda. Several nations, including Luxembourg, the United Arab Emirates, and Japan, have enacted their own domestic legislation.

However, we face a fundamental issue: no one has implemented these frameworks. We lack what we term "state practice" to solidify the concept. NASA attempted to establish precedent by proposing a contract for lunar soil sample collection and purchase. Yet only Japan has actually licensed a commercial company for a space resource mission—the U.S. has not taken this step.

I directly addressed this with the FAA during a public comment period last year. When questioned about their implementation of space resource regulations, their Federal Register response effectively acknowledged their lack of regulatory authority. Reading between the lines, they're also indicating they lack authorization authority, despite Congressional legislation approving these activities.

This regulatory ambiguity deters venture capital investment, and without investment, companies cannot develop the necessary technology. It's a self-perpetuating problem that requires Congressional action to resolve, specifically designating appropriate regulatory authority.

You were briefly an Observer with the Global Expert Group on Sustainable Lunar Activities. During your tenure, did you see any trends toward lunar governance that concerned you?

The fundamental issue, which ultimately prompted my departure, was their fixation on pre-regulation. They sought to establish rules in isolation, without practical understanding of the activities they aimed to govern. Their approach focused on assembling NGOs to develop guidelines and recommendations for the UN, all without operational experience.

It's fundamentally impractical to establish regulations for unprecedented activities in an alien environment. You cannot anticipate all potential challenges, and premature regulation only serves to constrain innovation. Commercial entities sent representatives who were visibly dismayed, expressing clear opposition to pre-emptive regulation when operational parameters remained undefined.

There was no receptivity to alternative perspectives—their sole focus was on establishing comprehensive guidelines before any actual operations commenced. This approach ultimately proved unproductive, leading to my withdrawal from the group.

Read "Two Years After the ASAT Test Ban: A Realistic Assessment" for perspective on international space governance challenges

You published a quarterly briefing letter called The Précis, which ended in 2024 and covered space security legal matters. What concerning patterns have you noticed in how nations are positioning themselves to dominate space?

Throughout eight years of publication, great power competition emerged as the dominant theme. The central issue isn't the nature of the rules, but rather who holds authority to establish them. To draw an analogy from Lord of the Rings, it's comparable to one ring to rule them all. The West maintains its perspective on appropriate governance structures, reflecting our Western geopolitical framework. However, China and Russia have articulated their opposition, asserting their own vision should prevail.

Every aspect—commercial space, civil space, national security space—fundamentally reflects this great power competition. We're deeply engaged in this rivalry, particularly between the U.S. and China. The intelligence community's assessment during the Biden administration's transition explicitly highlighted this dynamic.

The previous administration's diplomatic approach and emphasis on cooperation proved ineffective. Our unilateral suspension of destructive ASAT testing, intended to encourage reciprocation, met with rejection from Russia, China, and India—they saw no benefit in relinquishing capabilities without compensation. As we potentially enter a second Trump term, we're likely to see a shift toward a more pragmatic approach prioritizing tangible outcomes over diplomatic gestures. The focus will be addressing reality as it exists, rather than as we might prefer it to be.

About Michael J. Listner

Michael J. Listner is an attorney, advisor, and the founder of Space Law & Policy Solutions, where he provides expert consultation on outer space law, policy, and national security. With a background in lawfare and hybrid warfare strategy, Michael has served as General Counsel (pro tem) and Senior Advisor to Lesath International, authored the quarterly space security briefing The Précis, and participated as an observer in the Global Expert Group on Sustainable Lunar Activities.

For more information, contact Michael at michael@spacelawsolutions.com.