Treaty and Regime Analysis

The Framework That Functions and Fails at the Same Time

The international space treaty framework is a peculiar object to analyze. It exists. States routinely refer to it. Domestic space laws in most space-faring jurisdictions cite it as their authorizing basis. Commercial operators structure their activities on the assumption that it constrains them. By any conventional measure of an international legal regime’s survival, the framework has endured: the Outer Space Treaty of 1967 remains in force, the Liability Convention remains in force, the Registration Convention remains in force, and the constellation of soft-law instruments that has accumulated around them continues to shape State practice.

And yet, measured against the questions practitioners actually bring to the framework today — how is lunar resource extraction governed, who authorizes on-orbit servicing activities, what are the operational obligations of a mega-constellation operator, how does the liability regime interact with commercial insurance — the framework frequently fails to produce answers. It fails not because its text is silent (though sometimes it is) but because its text is ambiguous on the points where ambiguity matters most, because its institutional infrastructure is thin to the point of invisibility, and because State practice has diverged in directions the text neither anticipates nor precludes.

This combination — nominal survival plus operational inadequacy — is the condition treaty and regime analysis is designed to make legible. The method’s value is not advocacy for or against the current framework but structured explanation of what the framework does, does not do, and what its evolutionary trajectory suggests for the next decade of practice.

From Krasner’s Regimes to the Space-Law Tradition

Treaty and regime analysis in international relations grew up in conversation between two scholarly traditions that were initially skeptical of each other. The international law tradition had long analyzed treaties as legal instruments — parsing their textual obligations, tracing customary-law development, and assessing compliance against the rules the texts established. The international relations tradition, in its dominant mid-century realist formulation, treated treaties as largely epiphenomenal — instruments that states signed when it suited them and ignored when it did not, whose operative force derived from underlying power distributions rather than from legal authority.

Stephen Krasner’s edited volume International Regimes (1983) was the synthesis that made “regime analysis” a productive category across both traditions. Krasner’s definition — regimes as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actor expectations converge in a given area of international relations” — was deliberately broad enough to accommodate both formal treaties and the informal structures that shaped behavior alongside them. The definition acknowledged the IR tradition’s point about underlying politics while preserving the international law tradition’s attention to textual and institutional structure.

Robert Keohane’s After Hegemony (1984) reinforced the analytical move from a liberal-institutionalist direction, arguing that international regimes persisted beyond the hegemonic conditions that produced them because they performed functions — information-sharing, transaction-cost reduction, mutual-monitoring — that states continued to value even as power distributions shifted. Oran Young’s International Cooperation: Building Regimes for Natural Resources and the Environment (1989) extended the framework explicitly to common-pool-resource problems, of which orbital space is a paradigmatic instance.

The space-law tradition inherited all three and added its own emphases. The five UN space treaties concluded between 1967 and 1979 (Outer Space Treaty, Rescue Agreement, Liability Convention, Registration Convention, Moon Agreement) were analyzed through the regime lens from the start, and as the framework aged into the 1990s and 2000s, scholars increasingly turned their attention to the soft-law layer that was growing around the treaties (ITU Radio Regulations, IADC Debris Mitigation Guidelines, eventually the UN Long-Term Sustainability Guidelines and the Artemis Accords). Modern treaty and regime analysis in the space domain draws on all three layers — the Cold War treaty core, the soft-law supplements, and the bilateral and private arrangements that increasingly structure practice — and its characteristic move is to analyze them as a single regime complex rather than as a hierarchy with the treaties at the top.

What Regime Analysis Sees That Text Analysis Does Not

The characteristic analytical gesture of treaty and regime analysis is the triangulation of three things the method insists on holding together: the normative text, the institutional architecture, and the record of State practice.

Two Frameworks for the Moon, and the Gap Between Them

Consider the analytical move applied to lunar resource extraction, currently governed (to the extent it is governed at all) by two overlapping frameworks that sit in uneasy relation to each other.

Framework A is the Moon Agreement of 1979, which establishes lunar resources as the “common heritage of mankind” and envisions an international resource regime to govern extraction once such extraction becomes feasible. The normative content is explicit on the foundational principle; the institutional architecture anticipates a future regime but does not construct it; the membership is the revealing fact. As of 2026, the Moon Agreement has eighteen parties, none of which is a major space-faring state. The framework exists textually but has no operational reach over the actors whose behavior would matter.

Framework B is the 1967 Outer Space Treaty’s Article II — the non-appropriation principle — supplemented by the interpretation advanced in the 2020 Artemis Accords (and in the corresponding domestic legislation of its signatories) that extraction of space resources does not constitute national appropriation of the celestial body in which those resources are embedded. This interpretation has attracted broad adherence from the principal space-faring states, supported by a growing body of State practice and domestic-law instruments. Its legal basis is contested by scholars and by a minority of states who read Article II more restrictively.

The regime analysis reveals that the operational legal situation is not a gap — the absence of rules — but a fragmentation. Two incompatible frameworks coexist. Framework A’s “common heritage” principle and Framework B’s extraction-permissive interpretation cannot both govern the same activity under the same legal logic; they reach different conclusions from different starting premises. The Moon Agreement has the textual clarity of a codified regime but lacks the memberships that would make it operative. The Artemis Accords interpretation has the practical weight of major-state adherence but lacks the clear treaty-law foundation that would make it settled doctrine rather than contested practice.

The non-obvious insight is the strategic one. A practitioner advising a lunar-resource commercial venture or a national policy office is operating in a landscape where the legal risk is neither “no rules” nor “clear rules” but “rules in contestation.” The risk-management implications differ from either simpler case. An operator relying on the Artemis interpretation is not operating in a legal vacuum; it is operating within a contested regime whose trajectory is not yet fixed. A state advocating the common-heritage interpretation is not asserting an obsolete rule; it is asserting a textually codified one with limited operational adherence. The operative legal risk is regime fragmentation, not regime absence, and the strategic posture for any actor depends on which resolution of the fragmentation they expect — or are working to shape.

The regime’s evolutionary trajectory is the other content of the analysis. The soft-law layer is accumulating (the Artemis Accords, national resource-rights laws, emerging norms around coordination and safety zones). Customary law is arguably developing in the extraction-permissive direction, but the evidence is not yet sufficient for that conclusion to be confident. The regime is fragmenting in the short term; whether it consolidates on one of the two interpretations or settles into a permanent two-track structure depends on factors that the regime analysis can map but cannot predict — great-power alignment, commercial activity volumes, near-term dispute events that force specific decisions.

Where It Earns Its Keep and Where It Falls Short

The method’s strength is the disciplined integration of text, institution, and practice. No other method in the library produces the regime profile that treaty analysis does, and for any strategic question that turns on international legal structure, the method is foundational. It is especially valuable in the space domain precisely because the domain’s regime is so unusual: old treaties, thin institutions, increasingly active State practice, and a rapidly accumulating soft-law layer. A regime this idiosyncratic cannot be understood through text alone or through practice alone, and the method’s triangulation is the only way to hold the full picture steady.

Its weaknesses are consistent with its nature. Treaty text analysis alone is insufficient; State practice, political context, and power dynamics determine how regimes actually function, and a purely legalist reading misses the politics that animate the regime’s operation. Pairing with realist power analysis supplies the power-distribution reading that the method itself does not generate; pairing with liberal-institutionalism supplies the functional-benefits reading that explains why regimes persist beyond their original political conditions; pairing with constructivist analysis supplies the norm-contestation reading that treaty analysis often surfaces but does not fully theorize.

Access to State practice data is uneven. Transparent space-governance states produce rich practice records; others produce sparse ones, and the gap produces systematic blind spots in regime assessments. The space treaty regime is uniquely challenging in this respect because its Cold War origins embedded asymmetries in the practice record that the subsequent decades have not entirely resolved.

The method describes what exists but is less equipped to prescribe what should exist. Normative judgments about which of two competing interpretations is “better” require additional frameworks — institutional design analysis for prescriptive work, comparative policy analysis when the comparison is across domestic implementations of the same international obligation, policy cycle analysis when the question is how reform might be advanced. A regime analysis that offers prescriptive conclusions without acknowledging that the prescriptive move requires a different method is overreaching.

The method also risks privileging formal legal instruments over informal norms and industry standards that often shape actual behavior more directly than the treaties themselves. Debris mitigation practice is governed in operational reality by industry adoption of IADC guidelines and by insurance-underwriting criteria, not primarily by treaty obligation. A regime analysis that stops at the treaty layer misses most of what is actually governing behavior.

For emerging technologies, the method reveals gaps but cannot fill them. Identifying that the current regime is silent or ambiguous on in-orbit servicing, on active debris removal, or on lunar surface operations is useful; designing the framework that would govern those activities responsibly is a different task, requiring forward-looking policy design methods that treaty analysis does not itself contain.

The library treats treaty and regime analysis as tightly connected to several neighbors. Regime profiles provide empirical substrate for liberal-institutionalism’s assessment of whether institutions function as cooperation-enablers or empty shells. Treaty comparisons feed comparative policy analysis when the question is how different domestic systems implement the same international obligations. Interpretive ambiguities and evolving practice supply constructivist analysis with evidence of norm contestation. Gap analysis feeds into policy cycle analysis and institutional design as reform-agenda inputs.

For the Practitioner