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#SpaceWatchGL Perspective On US Space Resources Executive Order: Christopher Johnson On How The U.S. Seeks To Be A Pioneer In Space Resources Norm Development

First picture from the far site of the Moon. © APAweb / China National Space Administration / AFP

On 6 April 2020, US President Donald J. Trump signed an Executive Order (EO) on Encouraging International Support for the Recovery and Use of Space Resources. This order addresses US policy regarding the recovery and use of resources in outer space, including the Moon and other celestial bodies. Today SpaceWatch.Global publishes the last two perspectives supporting and opposing the EO from experts around the world. Today’s two expert perspectives come from Christopher Johnson of the Secure World Foundation (below) and Dimitra Stefoudi of the University of Leiden in The Netherlands (see here).

In your opinion, what is the underlying strategic and economic rationale for President Trump’s Executive Order?

The strategic rationale seems to be the desire for the US to be the leading pioneer of not just space resource development, but of the norms applicable to space resource development. In other words, the precise rights, freedoms, obligations, and prohibitions on the use, exploitation, and utilization of space resources is not currently set down. To date, we have basic principles: the rights created by Article I of the Outer Space Treaty, the prohibitions of Art. II, the obligations of supervision, authorization, responsibility/liability, and due regard, as well as US national space legislation. And that’s it. Beyond that, we merely have subjective, academic interpretation of how those rules apply to space resource utilization – an activity not contemplated by the architects of space law whatsoever.

Strategically, the US seems to want to be the leading and precedence-setting actor laying down the rules on how we can use space resources in the future. Rather than having those rules determined through a long, uncertain multilateral process such as might happen within COPUOS, a forum where many States which are not even planning on using space resources would be given the golden opportunity to weigh in and shape those rules for the States which are eager to do such activity. Done through COPUOS, who knows if any outcome would actually foster and assist the development of space resources, rather than freezing those activities indefinitely. Cynically, this would be like having landlocked States negotiating maritime law. They don’t have any ‘skin in the game’, but they want to set the rules governing those who do.

The economic rationale is perhaps more difficult to discern, as space resource activities are, frankly, still a number of years away, and the technology and business cases are simply not sound. The companies that wanted to mine asteroids have mostly gone bust. However, any such activities will have to take place in a clear, knowable, and predictable normative and regulatory environment, which can be created by national space law, and by international law, or by a combination of law at both levels. The US would like to the leading nation in the use of space resources. It’s worth noting that other States are also interested in space resources, such as Luxembourg, and others.

The Executive Order explicitly rejects the 1979 Moon Agreement. How do you think this will be received by other countries, particularly other major space powers?

It will not be surprising to any other major serious space powers, or even to any middle space powers. No major space powers are party to the Moon Agreement (MA), nor any middle power. Austria and Netherlands are both parties to the MA, which will make them unattractive jurisdictions to incorporate any commercial space enterprise, in my opinion. Regrettably, it seems to be the policy of the Dutch government to never back out of an international agreement it has signed, no matter if the situation changes, and it is no longer in the national interest to be a party. France has signed but not ratified it, and apparently has no intention to ever ratify.

Australia is a party, and I would ask if being a party to the Outer Space Treaty and the Moon Agreement at the same time creates problems, as they seem to create inconsistent rights and obligations. I wouldn’t be surprised if the Australian government re-evaluated its membership in the Moon Agreement club. For those States which are a party to the MA, I don’t know if they can lawfully participate in any deep space exploration which is operationally dependent on using space resources, as the Moon Agreement arguably prohibits such use.

Your readers can check the ratification status of the UN treaties on space at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html

The Executive Order rejects the Moon Agreement because, in recent years, COPUOS has taken up discussions on the use of space resources, and the governance of such activity. And in those discussions, a few delegates representing States have raised the Moon Agreement as being the best way forward, saying that the wider ratification of the Moon Agreement is the best way to quickly develop a governance structure for the use of space resources. Unsurprisingly, delegations from Moon Agreement States have done this. There are fans of the Moon Agreement, who are often more fans of international law than of space activity, and see it as their hobby to promote the Moon Agreement. Whether their capitals back home know they are promoting the Moon Agreement is a good question.

This Executive Order is seeking to make it clear that, as we develop the norms for space resources activity, the Moon Agreement path is not the path the US want to pursue. Let’s go another path, using national law, the Hague Space Resources Building Blocks, bi-lateral and mini-lateral arrangements, and whatever is practical coming from COPUOS, as a better path. There may be good ideas in the Moon Agreement, but there are enough bad and uncertain ideas that, frankly, it’s just not fit to regulate this activity in a productive or sustainable fashion. And more importantly, politically, the Moon Agreement is radioactive, so it’s not really worth any further serious reference in shaping norms for space resource activity.

Despite the few outlying fans of the Moon Agreement (Belgium, Greece, a few other States), the vast majority of the world seems to be undecided and on the fence as to the best way forward. A few years ago, the conversation was “What about Art. II of the OST? Is this even legal to use space resources?” Now, the conversation is “Ok, it appears to be legal to use space resources, and it is even desirable and necessary to use them for any further space exploration and to develop the space industry, but how should we govern this activity? Do we need a new, comprehensive, multilaterally UN treaty addressing every aspect, negotiated at the highest levels? Do we merely need national space legislation? Or a mix? Pragmatically, what needs to be decided at the COPUOS level, and what can be left to States to decide?”

Similarly, the Executive Order explicitly rejects the view that space is a Global Commons. What, in your opinion, is the policy rationale behind this claim and, again, how do you think this will be received by other countries?

The policy rational seems to be a desire to set the goalposts of the conversation. Or, to re-set them, as delegations at COPUOS often misquote (accidently, or otherwise) the language from the treaties, and say things like “We all know, and agree, that outer space, including the Moon and other celestial bodies, is the common inheritance of all humankind” or similar misquotations from the Outer Space Treaty.

In fact, Article I of the Outer Space Treaty addresses and regulates the activity of using and exploring outer space, rather than the physical domain of space itself. It stipulates that:

The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation. [emphasis mine].

However, nowhere in the Outer Space Treaty, nor in any subsequent United Nations treaty on space, nor in any other binding international legal instrument or resolution from the United Nations Security Council or General Assembly, is there the establishment or agreement that outer space, or any party thereof, is a res communis, res nullius, or res extra commercicum, or ‘commons’, or ‘global commons’, ‘international commons’, or ‘global public good’, or other similar pronouncement. Scholars have applied some of these terms to explain activity or phenomena there, often with persuasive explanatory or predictive results, but legally there is no source of law establishing outer space as such.

The use of certain portions of space can be meaningfully explained using these terms, especially ‘global public goods’ to discuss the benefits of weather data or GPS, and an economist might use the phrase ‘commons’ to discuss GEO, but this Executive Order is to make it clear that the entirety of outer space, neither void space nor celestial bodies, is not somehow owned collectively by the international community of States.

How will this be received by other States? Well, I hope that States will make sure their advisors, the space law experts, will give them advice that this is indeed a more correct understanding of the (modest) state of international space law. The order states:

Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons.

And this phrase states that while space is not a global commons (space is not even ‘on the globe’, so how can it be a ‘global’ commons?), and that we will have to develop some other concept of what space, and subsets of space, exactly are, as outer space is a “legally and physically unique domain”.

While there is no permissible national appropriation (OST Art. II), humanity has the right to access, explore, and use space for beneficial purposes, including commercial purposes. Indeed, the ‘use’ of space, including the Moon and other celestial bodies, is right there in the full title of the Outer Space Treaty. Other countries would be wise to reflect on the modest and uncertain way that space law actually addresses this issue, and not try to perform herculean feats of treaty interpretation to arrive at a conclusions that are not were not intended by the drafters, nor to be found in the treaties themselves.

In your view, how likely will this Executive Order “encourage international support for the public and private recovery and use of resources in outer space…?”

Optimistically, likeminded States who are also eager to develop space resource activities and to assist their commercial space industry develop will see the utility of clarifying the road ahead. Those States who wish to actually forge ahead might craft their own national space legislation, giving their nongovernmental (commercial) entities the explicit rights under Art. I to use space resources. Luxembourg is there already, and apparently the UAE, and perhaps Brazil, or Japan, may be following soon.

And these countries which are willing to put skin in the game might coordinate with the US, and also meaningfully take part in multilateral discussions, at COPUOS and elsewhere, where space resource topics and issues which need international coordination or agreement might be discussed. Collectively, we might not need a new, comprehensive UN treaty on space resources, but we might be assisted by a UN Resolution, developed at COPUOS, on the definition of space resources, or how space resources can be accessed and used without violating Art. II of the Outer Space Treaty, and even what actions would rise to the level of individual possession of space resources without crossing over the line to impermissible national appropriation. We also need to discuss internationally what constitutes the ‘basket or rights’ over a resources, and what acts constitute lawful utilization. There are some topics where we will need an international conversation and agreement, and where this is appropriate and practical.

However, it’s politics, so don’t be surprised if it’s scuttled at the last minute. I’d like to see a short and concise document from COPUOS, akin to recent COPUOS documents on enhanced registration practices, or on the concept of launching State. If you open up discussions on a treaty, it will take at least a decade and in the meantime, no space resource utilization missions will be launched. It will stunt progress in spaceflight, not because of any technological impediment, but purely because of political impediment. I want to see this activity within my lifetime.

We should always remember that the US is also pushing ahead with the Artemis mission, to put the next man and the first woman on the Moon by 2024, and international partnership for that will be crucial. The order states:

Successful long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies will require partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space.

Any long term presence on the Moon will require the use of resources there, and it will be made unnecessarily complex if the US brings along any astronaut from a partner State which is party to the Moon Agreement that believes that we can’t use resources there.

Hypothetically assuming that this Executive Order leads to international support, will it make the prospect of commercial space resource extraction closer to reality?

Hypothetically yes. This is the strongest possible signal to clarify the US national understanding of space law on the use of space resources. The US is saying that it, and it’s companies, can go ahead and use space resources. Consequently, the road ahead for commercial space resource extraction is cleared.

Chris Johnson. Photograph courtesy of the author.

Chris Johnson is the Space Law Advisor for the Secure World Foundation, and is a Professor of Law (Adjunct) at the Georgetown University Law Center where he co-teaches the spring Space Law Seminar, and a Faculty Member at the International Space University. A member of the International Institute of Space Law (IISL), Mr. Johnson has written widely on space law and policy issues, and represents the Secure World Foundation at the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).

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