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Home / Space / Entrepreneurship / #SpaceWatchGL Perspective On US Space Resources Executive Order: Dimitra Stefoudi On How The U.S. Seeks Cooperation Through The Outer Space Treaty

#SpaceWatchGL Perspective On US Space Resources Executive Order: Dimitra Stefoudi On How The U.S. Seeks Cooperation Through The Outer Space Treaty

This artist’s concept shows the Lunar Flashlight spacecraft, a six-unit CubeSat designed to search for ice on the Moon’s surface using special lasers. The spacecraft will use its near-infrared lasers to shine light into shaded polar regions on the Moon, while an onboard reflectometer will measure surface reflection and composition.. Image courtesy of NASA/JPL-Caltech.

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 Dimitra Stefoudi of the University of Leiden in The Netherlands (below) and Christopher Johnson of the Secure World Foundation (see here).

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

The Executive Order mentions that among its purposes is to tackle uncertainties regarding the right to extract and use space resources by public and private actors, and to encourage international support therein. Toward this end, it clarifies the US position regarding the relevance of the Outer Space Treaty and the Moon Agreement and suggests methods for soliciting international support for commercial space resource utilization.

The Executive Order does not add anything new to the discussion about the legality of ownership and use of space resources in the US, which is regulated by Title IV of the US Commercial Space Launch Competitiveness Act on “Space Resource Exploration and Utilization”. The Space Resource Exploration and Utilization Act of 2015 provides that US citizens are entitled to the resources they obtain. That should provide the necessary legal certainty to the commercial space sector, regardless of the provisions of the Moon Agreement. However, since the Act is only applicable to US operators, it is useful to clarify the views of the US toward the Moon Agreement and the perceived legal reasoning for commercial space resource utilization, before soliciting international support. As far as the strategic rationale is concerned, the Executive Order adds an important policy aspect as it outlines the current US position on that matter. This aims to not only direct the discussion around the regulatory regime governing space resource activities but also to place the US in the centre of such discussion. In recent months, space resource utilization has gained momentum in terms of regulatory and policy advancements. The topic has been part of the UNCOPUOS Legal Subcommittee Agenda since 2017 and proposals for the Subcommittee to establish a Working Group to on the legal aspects of space resource activities were part of the 2019 session. At the same time, other countries, notably Luxembourg, have moved forward with adopting national legislation on space resources, while other domestic laws are in the pipeline. In this regard, this Executive Order that calls for international support for the recovery and use of space resources and spells out the US position and priorities is a topical development. Even more when by doing so, it also aims at removing the uncertainty that discourages the participation of commercial companies and the attraction of investments. The introduction of the Space Resource Exploration and Utilization Act was meant to encourage the growth of pioneering space mining companies and, despite the financial hardships that led them out of business, initiated the discussion regarding the factors that influence the development of the commercial space mining sector. Among these factors is governmental support through capital investment, as is the case with Japan and Luxembourg, contract allocation, as may be the case for upcoming agencies’ missions to the Moon and Mars, or at least through a policy that acknowledges and promotes private interests in space resource activities. These factors are connected to the economic rationale behind the Executive Order. Further development of the space resource industry requires broader international cooperation and larger-scale projects jointly procured by several states.

In this second wave of growing commercial interest in space resource utilization, it is not the original pioneering companies anymore, but the emerging start-ups, as well as the legacy space companies that want to expand their business into commercial space resource utilization, which seek regulatory and financial support. The lesson learnt since 2015 is that the recovery and use of space resources is not another business opportunity, but the only viable way to support lunar exploration and longer space missions. This is an additional strategic rationale presented in the Executive Order, which considers commercial participation key in the success of “long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies”. This shift in the narrative reflects the change in international discussions, which began by condemning space resource utilization, at least until the adoption of an international regime, and matured into exploring how it can be carried out sustainably and for the common benefit.

Nevertheless, an obvious concern regarding both the strategic and economic rationale of the Executive Order is its untimely release, amidst the peak of a deadly pandemic. Even though recent developments press for the advancement of space resource utilization, major space companies have halted their activities, international space events will not take place and international organizations will not convene to discuss their space agendas. This may mean that the Executive Order will not attract the attention it hoped for and will need to resurface at a time when international support can be sought. On the economic side, with the escalation of the virus outbreak, at least in the short run, commercial space companies, including space resources companies, may face the severe financial impact that will not allow them to move forward with their planned research and development. Until now, there is limited reaction to the Executive Order and it remains to be seen whether countries, organizations or private companies will comment on it.

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?

The Moon Agreement is referred to in the Executive Order in relation to the question of whether it creates a framework for space resource utilization on a commercial basis. Since the US has not signed or ratified the Moon Agreement, it is not bound by its provisions and it should not come as a surprise that it does not recognize it as a legal basis for space resource utilization. The Executive Order only repeats this position of the US that the Moon Agreement is not the relevant legal framework, as opposed to the Outer Space Treaty, which is explicitly mentioned in the text of the Order and is also implied in the Space Resource Exploration and Utilization Act that calls for exploration and recovery in a manner consistent with the international obligations of the US.

It appears though that the reason for addressing the Moon Agreement in the Executive Order is the uncertainty it creates “regarding the right to recover and use space resources, including the extension of the right to commercial recovery and use”. Indeed, the Moon Agreement provides that the Moon and its natural resources are the common heritage of mankind and cannot become the property of states, international organizations or private companies. These provisions are equally applicable to other celestial bodies. Therefore, the Moon Agreement has been thought to put a moratorium to commercial space resource utilization, which is not in line with the interests of the US, leading it to explicitly object the relevance of the Moon Agreement to the exploration and use of space resources. However, the Moon Agreement allows the exploitation for space resources, following the establishment of an international framework. As far as the US is concerned, further clarification regarding the validity of the Moon Agreement was not necessary. Such clarification is relevant for those countries that are interested in supporting commercial space resource utilization, but have not signed or ratified the Moon Agreement. These countries may be influenced by the position of the US and denounce or disregard the provisions of the Moon Agreement. The Executive Order calls for the Secretary of State to oppose to the attempts that imply the customary character of the Moon Agreement, even though this is not a popular opinion, except for few theoretical analyses in scholarly publications. Despite its low degree of ratification, the Moon Agremeent has been the product of consensus-based agreement within UNCOPUOS and is considered by many states as an integral part of international space law, regardless of its binding force. The Executive Order may not be received well by these states as well as by the state parties to the Moon Agreement. For the former, it may be a matter of national policy to refrain from rejecting the Moon Agreement provisions, partly because they promote the view that space resource utilization should not be regulated by national laws, but by an international framework, as the Moon Agreement requires. They may even wish to maintain the option of ratifying the Agreement at a later stage. For the latter, the rejection of the Moon Agreement creates further implications. On the one hand, it may burden their current and future cooperation with the US in missions that involve the use of space resources. Major space-faring countries, such as France and India have signed the Moon Agreement, whereas The Netherlands and Australia, upcoming space players, have also ratified it. These states are within the range of countries that could support commercial space resource activities. However, States parties to the Moon Agreement have undertaken the obligation to establish an international regime for the exploitation of space resources, when such exploitation becomes feasible. Even though commercial space resource utilization is permissible and can be governed by the Outer Space Treaty, to which the US is also member, the parties to the Moon Agreement may not want to disregard its provision regarding an international framework. For the same reasons, these countries may be prevented from subscribing to an international framework of any sort, even if they fundamentally agree, if it does not consider the Moon Agreement among its constituents. Major and emerging space powers fall under the two aforementioned categories. In an optimistic scenario, they will agree to support the commercial use of space resources without specific mention to the Moon Agreement. In a realistic scenario though, as is pointed out in the Executive Order, the Moon Agreement has been signed and ratified by 17 of the 95 UNCOPUOS members states. Given that UNCOPUOS takes decisions based on consensus, the interests and views of all countries, parties or not to the space treaties, should be taken into account. In practice, this may prove burdensome and time-consuming inside and outside the UNCOPUOS mechanisms.

The US position toward the Moon Agreement that it has not ratified does not prevent other countries from following a different direction. This Executive Order goes beyond that to indicate that the Moon Agreement is not effective or necessary for the promotion of commercial and scientific discovery and use of space resources. Irrespective of its efficiency in this regard, it may be considered necessary by certain countries. That is why the Commentary to the Building Blocks for the Development of an International Framework on Space Resource Activities, which was just published and is available to read online, refers to both the Outer Space Treaty and the Moon Agreement. Although the discussions within the Hague International Space Resources Governance Working Group focused mostly on the principles of the Outer Space Treaty, the Commentary mentions the relevant provisions of the Moon Agreement “For the States Parties to the Moon Agreement” that may want to use its provisions as legal basis.

Until now, only one official reaction has been recorded, albeit without direct mention to the Executive Order. After its release, a Roscosmos official said that plans to seize the territory of other planets and to expropriate outer space damage international cooperation. It remains to be seen if similar or different reactions will follow. However, with the cancellation of the UNCOPUOS sessions and with the shift in government priorities around the world, there may not be an appropriate forum for discussion in the coming months.

The bottom-line message promoted in the Executive Order is that regardless of the Moon Agreement, whose status has been extensively debated, the US recognises and seeks compliance with the provisions of the Outer Space Treaty. This could create common ground for further discussion and international support for commercial space resource utilization, notwithstanding potential conflicts with national positions with respect to the Moon Agreement.

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?

Even though we can deduct the meaning of the statement regarding outer space as global commons, this term is not present in any legal document, so we cannot claim with certainty what the intention of this view is. “Global commons” appears in international law literature and refers to areas outside the control of any state, such as the high seas, the deep seabed or even cyberspace, that do not belong to anyone but are meant to be shared and preserved. Applied to outer space, the concept of global commons could be interpreted as prohibiting rights over resources found in that area, particularly for commercial purposes, and would be contrary to the US policy of promoting such rights for commercial actors.

Nevertheless, similar concepts are included in the space treaties. The Outer Space Treaty provides that the exploration and use of outer space is the province of mankind and should be carried out for the benefit and in the interest of all countries. At the same time, it prohibits any means of appropriation of outer space, including the Moon and other celestial bodies. The US has signed and ratified the Outer Space Treaty and is bound by its provisions, as is spelt out in the Executive Order. Furthermore, the Space Resources Exploration and Utilization Act, which grants US citizens rights over resources, makes specific mention to the international obligations of the US. Consequently, it cannot be supported that the US is in any breach by denouncing outer space as global common, since it pledges compliance with the provisions of the Outer Space Treaty. In any event, the discussion around the legality of space resources activities has shifted from the prohibition of appropriation and the province of mankind principles. Eventually, resource rights will have to be recognized, for space resource utilization to become feasible and attractive to public and private investors. It has been supported that, once extracted, space resources do not fall under the prohibition of appropriation of outer space and celestial bodies. This interpretation serves the proper application of the international treaties to space resource activities and promotes their status as facilitators of space activities in general. In the framework of these treaties, current concerns focus on the sharing of benefits from space resource activities, and their safe and sustainable conduct. Therefore, implicitly, the perception of outer space as global commons has developed to incorporate commercial interests.

However, it is the formulation of this statement that may be perceived negatively. First of all, the concept of public commons may seem close to the common heritage of mankind principle, which is accepted by the Moon Agreement parties and other countries that acknowledge the Agreement’s provisions. Secondly and to the extent that the Outer Space Treaty is invoked, it is unclear why it was felt necessary to clarify that the US does not view outer space as global commons. Even if this statement is reassuring for those commercial interests that are, in the wording of the Order, discouraged by such unclarities, it may not be viewed as such by the states to whose international support this Order aims.

International discussion on the governance of space activities, in general, is often accompanied by a fragile balance among the interests of various states. This is evidenced by the use of terms, such as “province of mankind”, “common heritage of mankind”, “benefit of all countries” in the space treaties. These generic terms that are not specifically defined form part of treaties that were adopted in the ’60s and the ’70s, where the growing participation of non-state actors was not envisioned or prioritized. This does not mean that these concepts cannot find application in contemporary space activities. For example, the Building Blocks for the Development of an International Framework on Space Resource Activities adopted by the Hague International Space Resources Governance Working Group in November 2019 lay the groundwork for a potential governance framework, similar to the bilateral and multilateral arrangements that are proposed in the Executive Order. Throughout their text, the Building Blocks identify ways in which space resource activities can be carried out in accordance with the existing treaty provisions. In doing so, they deploy a language that is specific enough to describe the issues at hand, but general enough to encourage broader acceptance. This is an indication of the importance of the use of terms and semantics in space-related discussions, especially on a subject that is treated differently by various countries but requires a certain degree of consensus to be further promoted.

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…?”

The purpose of this Executive Order is to appeal to “like-minded countries”, which may be interested in supporting further development of commercial space resource activities. Given that there are countries that have adopted or are planning to adopt national laws to promote space resource utilization, as well as countries that are willing to support an international framework for the governance of space resource activities, this is a plausible call to the international community to show support for the public and private recovery and use of space resources. Although it does not initiate the discussion on the national or international level, this policy declaration from a major space-faring power may reinstate the existing interest of countries and incentivize more countries to become engaged. Similar was the impact of the Space Resources Exploration and Utilization Act of 2015 that sparked the discussion concerning the lawfulness of commercial space resource utilization and the need for legal certainty in order to for space resource activities to become viable. This led to the emergence of private companies outside the US that wanted to be involved in such activities and consequently to the involvement of states and national agencies in this field. Now that space resource utilization has been established as permissible commercial activity, the industry needs wider state support to move forward. For international support on this matter to be achieved though, it would require more than a policy declaration. The Executive Order suggests taking actions to encourage such support through joint statements, as well as bilateral and multilateral arrangements among countries, so it will ultimately depend on whether and how other countries will act upon this proposal. Several countries want to support their national space resource activities, such as Japan, Luxembourg and the UAE. For those countries, this Executive Order may function as an invitation to cooperate. Moreover, the purpose of the Order to “encourage international support” is easily attainable, as it does not require the lengthy procedures and wide agreement of a legislative initiative. At the same time, if achieved, this international support could initiate the discussion on a governance framework for space resource activities. Until such effort is undertaken on the international level, cooperation among those countries that are invested in the commercial utilization of space resource can promote the growth of this sector.

At the moment, it is difficult to predict whether the Executive Order will serve as encouragement for international support for space resource utilization. Not only did it come unexpectedly, but also at a time where the priorities of governments are far from focusing on space exploration and the development of commercial space activities. Even more so, if the private space sector faces severe financial losses in the aftermath of the pandemic, which will either delay or even eliminate their plans for space resource utilization.

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

The prospect of commercial space resource extraction, as well as utilization of the extracted resources, only partially depend on international support toward such endeavours. Talking about commercial companies, the realization of such plans relies primarily on their business plan and financial structure. Moreover, eventual delays in the development of space resources activities may depend on the commercial opportunities that currently exist or will emerge in the near future. In situ space resource utilization requires careful calculation of the prospected market for such missions. Certainly, space exploration missions, such as Artemis and the Lunar Gateway, as well as larger space missions, especially those backed by states and space agencies will help commercial space resource activities come closer to fruition. In this regard, the Executive Order that promotes the public and private recovery and use of space resources is a positive step forward. Furthermore, as it rightly points out, legal certainty regarding these activities will also help attract private investments and allow the sustainable development of this industry.

In any event, the extraction and use of space resources is a multi-faceted topic. Except for the financial and legal challenges, which can be facilitated by international support, significant advancement is required in the search for available resources, the development of appropriate mining techniques, as well as in the establishment of standards for safe and sustainable conduct in outer space. These additional steps also call for a concerted effort among states, which does not depend on, but can be reinforced by this Executive Order, which can serve as reminder or incentive for other states to actively support commercial space resources activities, in anticipation of or as a replacement for an initiative through international regulatory channels.

Dimitra Stefoudi. Photograph courtesy of the author.

Dimitra Stefoudi is part of the Research and Teaching Staff of the International Institute of Air and Space Law of Leiden University and a PhD Candidate in Space Law. Since 2016, she has been the Assistant Executive Secretary of the Hague International Space Resources Governance Working Group and has co-edited the Commentary to the Building Blocks for the Development of an International Framework on Space Resources Governance. Dimitra is member of several space organizations, including the International Institute of Space Law, the European Center for Space Law and the Netherlands Space Society. Dimitra is Visiting Lecturer at the ISU Space Studies Program and speaks frequently in international conferences and public events.

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