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#SpaceWatchGL Perspective On US Space Resources Executive Order: Guoyu Wang On Space Law Ambiguities

Artist’s concept from the 1970s of asteroid mining. Courtesy of Wikipedia

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 Professor Guoyu Wang of China (below) and Dr. Rajiswari Rajagopalan (see here).

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

The Executive Order echoes the continuous strategy of the U.S. in space which is alleged as “America First” and is highly in line with its economic rationale which could be more or less reflected in the Title 51 “National and Commercial Space Programs” of the U.S. Code which was issued in 2010, that “commercial activities of the private sector will substantially and increasingly contribute to the strength of both the United States space program and the national economy”. Moreover, it’s the regulatory rationale of the U.S. that through timely adjustment of its regulatory framework, including national space law and policy, to pave the way for the development of commercial space activities. Therefore, both this Executive Oder and the Space Resources Exploration and Utilization Act of 2015 might be based on the evaluation that 1) space resources have strategic and economic value, 2) space resource exploitation (including abstraction, recovery) is becoming or is going to be feasible, 3) legal and political certainties, whether nationally or internationally, is necessary for space actors, in particular private sectors, to be willing to invest in this domain.

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?

Before answering this question directly, there are two points should be made clear. First, it does not necessarily mean the U.S. will definitely exclude the Moon Agreement in the potential international discussion on the establishment of an international regime governing space resource exploitation and utilization. It’s not very objective or accurate to use the wording “reject”. It just shows its position that 1) The Moon Agreement is not customary international law, with which generally from an academic perspective I agree, and; 2) The Moon Agreement might not serve as an effective and necessary international document to formulize an international regime facilitating commercial space resources activities. In my opinion, it might not necessarily be the case.

Second, however, needless to say it shows that the U.S. is very prudent and hesitates to open any official discussion on the Moon Agreement or take it as an important reference for any international legal or political initiative regarding space resources exploitation. As far as I’m concerned, it’s mainly due to the ambiguous connotation and controversial understanding of the Common Heritage of Mankind (CHM) concept adopted by the Moon Agreement. In 1980, the American Ambassador Richard W. Petree, the US delegate to the Special Political Committee of the UN General Assembly, who expressed the U.S. understanding that the draft Moon Agreement, “as part of the compromise by many delegations, places no moratorium upon the exploitation of the natural resources on celestial bodies by States or their nationals.” It indicates to this day there is still the possibility that some countries might call upon such a “moratorium” basis on the Moon Agreement, inter alia, the CHM concept in Art.11, taking references from its interpretation and the relevant international mechanisms derived from the CHM concept in maritime law. Obviously, it would be not in favor of the interests of the commercial exploitation of space resources.

Therefore, in some sense, the position of the U.S. represents the common interests of the pioneers in space resources exploitation, in particular commercial ones. But still it’s too early to conclude that these positions would be supported by major space powers and be questioned or rejected by non-spacefaring countries. After all, it’s more a political matter than a legal one.

Generally, the possible response from a State could be observed or predicted on account of the following situations and concerns: 1) whether it is a State Party to the Moon Agreement, if so, it might argue that the U.S. underestimates or even undermines the value of the Moon Agreement; 2) whether a spacefaring country’s technical, financial and any other critical conditions are as mature or advanced as those of the U.S., or at least getting close, if not, this State might be hesitant in accepting those positions; 3) whether a State has reason to believe it could benefit from cooperative participation in space resources activities or sharing the benefits derived from them. This might override the first two concerns; 4) whether a State is an ally or a strategic competitor to the U.S., it might override all the above concerns at a certain level; and 5) besides, a major space power, which might highly value its common interests with developing countries, or a State has a longstanding tradition of being politically neutral, then more uncertainties might emerge.

In conclusion, the international response would be affected or even determined by two substantial factors: 1) whether an internationally accepted interpretation of the concept of CHM in the Moon Agreement could be achieved, if not, the relevant American positions would always have reasons to be understood; and 2) whether the U.S. or the international community could provide an ideal and practical solution regarding the international governance of the space resources activities except for the Moon Agreement. In my opinion, the Moon Agreement, no matter whether you like it or not, would be inevitably taken into account in the process to achieve this goal. After all, as a UN space treaty, it’s part of international space law and reflects certain political and legal consensus among those drafters in the late 1970s.

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?

Personally, I observed more controversies and misunderstandings in the use or interpretation of “Global Commons” than those about the CHM concept. In my opinion, outer space should not be defined as Global Commons because this term has been trapped in a theoretical dilemma and brings up even more legal uncertainties considering the legal character of outer space has been a longstanding unsettled issue. First, the term “commons” originated in the economic domain and “global commons” came from the international relations field as a basis for global governance. Thus, its value in economic development and in pursuing a global order characterized as “shared-governance, benefits sharing, inclusiveness, inter-generational equity and sustainability,” should not be neglected and underestimated. However, subsequently, its legal meaning does not receive similar adequate concerns and discussions and so it lacks consistency and accuracy regarding its legal connotation. “Common”, as a legal term, whether in Roman law or Common law, always implies or leads to the concept of “common property,” however, it’s not used in a consistent way when used in cyber or outer space. Obviously, the majority would disagree to declare that cyber or outer space is common property of humankind. Instead, “global commons” was first used as a legal term from the theory of free passage on high seas. It emphasizes that certain areas are beyond any State’s jurisdiction but rather than its legal nature as a common property. Thus, the legal meaning of “common” and “global common” has been split and the term has been used in air, cyber, and outer space in ways that cause more severe fragmentation of its legal meaning.

Therefore, at least from a purely legal perspective, “global commons” is not a right and useful term to define the legal nature of outer space, on the contrary, it brings more uncertainties and unnecessary debates.

I’m not confident that the policy rationale behind the claim in the Executive Order is based on exactly the same logic, but it’s not difficult to imagine that the U.S. would be concerned to see in the future some State claim a share of the benefits derived from the U.S. private sector’s space mining activity and so trap the United States in legal and political debates because it admits that space is a global commons.

The issue is not the responses from other countries, but how to seriously and effectively seek international consensus on the legal character of outer space. If it is not a global commons, what is it or what shall it be? It can be envisaged that the controversies will remain until the U.S. or another country provides a convincing alternative concept.

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…?”

Like law, “encouragement” could also be divided into two forms, hard and soft. “Hard” means the U.S. would provide more opportunities for the international community to be involved in potential space resources exploitation activities. “Soft” means the U.S., 1) might seek international support for any international regulatory initiatives in the governance of space resources activities, in particular those that could facilitate commercial space resources exploitation, whether proposed by the U.S. or by any other State within or beyond the UN framework, and; 2) encourages like-minded States to make similar space law or policy with the U.S. In reality, practice has taken place in both “hard” and “soft” ways, although at different scales and levels. To what extent “international support” would turn into substantive and comprehensive space cooperation or international rules-making is still to be observed. It depends on how much political will the U.S. has and commercial incentives its private sector has to do so.

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

Not necessarily. Space resources extraction would become feasible on the basis of both technical and legal certainties. From a legal perspective, the Executive Order only shows a positive attitude to facilitate commercial space resources activities but still leaves the critical issues unsettled, for instance, what is the due interpretation of the CHM concept; what is the legal character of outer space if it is not a global commons; what should be an acceptable approach to formulate an equitable, inclusive, and efficient international regime and what are the specific contents of it; how to establish the incentives, cooperative, and appropriate sharing mechanisms in this regime? To what extent could this assumed international support practically shorten the waiting time of commercial space resources extraction will depend on how many of these questions can be satisfactorily answered.

Professor Guoyu Wang. Photograph courtesy of the author.

Guoyu Wang holds a doctoral degree in Law and Economics and is an Associate Professor and Dean of the Academy of Air, Space Policy and Law, at the Beijing Institute of Technology (BIT). Professor Wang also serves as Deputy Director, China National Space Administration (CNSA) Space Law Center (2017-), Legal Counsellor in Space Law, CNSA Lunar Exploration and Space Project Center (2016-), Space Security Consultant of United Nations Institute for Disarmament Research (UNIDIR, 2015), Academy Senior Fellow of Royal Institute of International Affairs, U.K. (2014); and Visiting Scholar, National Center for Remote Sensing, Air and Space Law, Mississippi University, U.S. (2011-2012). Professor Wang has served as a Chinese delegate and Legal Consultant of the United Nation Committee on the Peaceful use of Outer Space (UNCOPUOS, 2012-), Inter-governmental Space Debris Coordination Committee (IADC, 2014-), as well as a Chinese expert in the Long-term Sustainability for Outer Space Activities Working Group of UNCOPUOS (2012-), and has represented China in international space rules and policy negotiations and drafting. Professor Wang’s research focuses on international and national space law and international space politics. Professor Wang’s expertise includes legal and political analysis on space security issues, inter alia, arms control in outer space and space debris mitigation and remediation; space natural resources use and exploration; and Chinese space legislation.

The views expressed here by Professor Wang are his own and do not necessarily represent the views of the Beijing Institute of Technology, the China National Space Administration, or the Government of the People’s Republic of China.

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