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. Over the next few weeks, SpaceWatch.Global will publish a range of perspectives supporting and opposing the EO from experts around the world. Today’s two expert perspectives come from Elina Morozova of Russia (below) and Michael Listner of the United States (see here).
In your opinion, what is the underlying strategic and economic rationale for President Trump’s Executive Order?
As far as strategy is concerned, I view the Executive Order we are discussing as a call for international rulemaking concerning an issue which is economically important to the US. In doing this, President Trump suggests using an instrument, which is alternative to the one existing since the very beginning of the space age, that is the UN Committee on the Peaceful Uses of Outer Space within whose walls all five UN space treaties came into the world. At the venue of its Legal Subcommittee there has been in progress, for some time, a general exchange of views on potential legal models for activities in exploration, exploitation and utilization of space resources. The fundamental difference between the two legal avenues we are reviewing is that the UN COPUOS always seeks consensus meaning that a decision can only be made in the absence of any objections on the part of nearly one hundred states. Obviously, this requires painstaking work and time, and in the absence of long-awaited progress, states may wish to take alternative international steps that allow to legally express the will of fewer states. Thus, for instance, President Trump’s approach implies joint statements and bi- or multilateral agreements with like-minded foreign states. Evidently, such examples of state practice and sources of international law will not reflect the standpoints of states which do not share the US stance with respect for outer space resources. In just six months, the Secretary of State is to present a status report to the President, ideally, with some success, what simply looks like cosmic velocity compared to the pace of the UN Committee or any other multilateral forum. This is one point. And the main thing is that the US would clearly like to play a leading role in making international rules as proposed by President Trump.
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?
Indeed, the US is not a party to the 1979 Moon Agreement and not bound by its clauses. At the same time, I do not think that we should underestimate the importance of this full-weight international treaty. Its text was approved unanimously by the UN General Assembly, including major space powers as its members. Despite the essentially fewer number of ratifications in comparison with any other UN space treaty, it is important that so far not a single state has withdrawn from the Moon Agreement although all states have such a right. That is, it cannot be called ‘legally inconvenient.’ The Moon Agreement can neither be called obsolete, since half of the parties joined it after the 2000s. This agreement might even gain a second wind if it could serve as a basis for a future legal regime for activities in exploration, exploitation and utilization of space resources. However, the US obviously feels that it would be more convenient to start from scratch signing new bilateral agreements and multilateral agreements with a limited membership. This approach does not contradict any international law rules. The appeal to contest clauses of the Moon Agreement as customary rules of international law should not be understood as somehow overstating the capability of a single country inasmuch as the recognition of international custom as such depends on general practice accepted as law. At the same time the US statement does reflect state practice which is important in the context of customary international law and lays the groundwork for a potential application of the so-called persistent objector concept that can make an international custominapplicable to such an objector.
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?
Since ‘global commons’ is not a legal term in international space law, I do not feel that this phrase should be interpreted as rejecting any rule of international law. For instance, the 1967 Outer Space Treaty, which is obligatory for the US, reads that the exploration and use of outer space should be the ‘province of all mankind’ and recognizes ‘common interest of all mankind’ in pursuing such activity for peaceful purposes. In other words, it is the activity in space that is meant by the treaty rather than outer space whose legal status is not described as ‘global commons,’ and no contradictory wordings can be found here. The 1979 Moon Agreement not binding on the US speaks about the status of the Moon itself and about its natural resources calling them the ‘common heritage of mankind.’ Again, the Executive Order does not contradict this other wording.
In my opinion, ‘global commons’ is used in the Executive Order to describe the economic sense and financial expectations related to the use of outer space, in the first place, for commercial purposes. While incurring significant costs a state is not willing to equally share the fruits of this activity with those who did not spend a cent. It wants private investment to be repaid because acting alone it will obviously be unable to afford either scientific discovery or commercial recovery of space resources of the Moon, Mars, and other destinations.
Interestingly, such a statement, which teeters on the brink of legal and non-legal wordings, may be interpreted as undermining the cornerstones of international space law. We already see very sharp criticism confirming that the Executive Order starts meaning something else. No matter whose fault that may be – an author’s or a reader’s – this is not a message that should be sent to other countries.
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…?”
Reserving the role of a leader for itself the US suggested that like-minded foreign states leave a mark in the history of making international space rules. Since 1979, when the above Moon Agreement came into existence, not a single legally binding rule of international law devoted to the regulation of space activity has been approved. Discussions of potential legal models for activities in exploration, exploitation and utilization of space resources can be truly called the most heated. Any progress on the international level can be regarded as success while its sponsors can count on becoming more important internationally and expect to take part in long-term international projects. Even if the US fails to be the first to exploit the resources of the Moon, it would rather share spotlight with its followers than give priority to a competitor.
Hypothetically assuming that this Executive Order leads to international support, will it make the prospect of commercial space resource extraction closer to reality?
I think it will.
First, technological advances and law are always closely intertwined. On the one hand, the advances of science and technology require that new forms of relations among states using such achievements be regulated. On the other hand, new law rules stall the spread of prohibited kinds of activity and foster allowed ones. International support cannot but contribute to the development of space technology and systems needed for commercial space resource extraction.
Second, any business needs a stable, or at least predictable, legal environment. International support may secure a favorable investment climate and help keep cash in the space industry: retain conservative investors which may be otherwise disappointed with OldSpace as exemplified by conventional satellite operators now having problems and revive advanced investors’ interest in NewSpace because the hopes of such investors could turn sour given the latest news about some ambitious projects.
Elina Morozova is Head of International Legal Service at the Intersputnik International Organization of Space Communications. Elina earned two university degrees in International Law and World Economy and is the author (co-author) of more than three dozen publications on international space law and satellite telecommunications in English and Russian. Elina is Associate Editor and Core Expert of the McGill Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS). She also takes part in the work of the Expert Committee of the CIS Interparliamentary Assembly – Regional Commonwealth in the Field of Communications and sits on the Board of Directors of the International Institute of Space Law.