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#SpaceWatchGL Perspective On US Space Resources Executive Order: Michelle Hanlon On How The Moon Agreement Is Finished

Image courtesy of For All Moonkind, Inc.

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 three expert perspectives come from Michelle Hanlon of For All Mankind (below), Sebastien Moranta of the European Space Policy Institute (see here), and Professor Alice Gorman of Australia (see here).

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

The Order is a logical next step following President Obama’s signature of the Commercial Space Launch Competitiveness Act of 2015 which “promotes the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.”

In the four years since the passage of that legislation, the legal underpinnings regarding the extraction of resources by non-State actors has been plagued by uncertainty.  While the debate has slowly evolved from “whether we can” to “how can we manage and administer,” businesses – especially ones driven by new technologies – need certainty in order to attract necessary investment.

The Order takes the important step of explicating, in writing, the US position regarding the Moon Agreement.  It is an important step forward as too much time has been sent hand-wringing over the Moon Agreement and what it means, or how it can be implemented.  It’s time to turn the international community’s attention away from this Agreement and put the focus squarely on how we are going to manage space resource extraction and use.

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?

We’ve already seen Russia’s response.  Clearly, this is going to cause some consternation and certainly there is always a knee-jerk reaction to sweeping policy statements.  But remember, none of the other major space powers has executed the Moon Agreement.  The only nations who are in a position to criticize this stance are nations who have ratified the Moon Agreement – there are only 18 of those.  If Russia or China objects to the US statement that the Moon Agreement is not effective, then they should also explain why they have not ratified the Agreement themselves.

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?

Nomenclature is the foundation of legal analysis.  We lawyers pride ourselves on creating legal interpretations for what are otherwise common phrases.  Stating that the US does not view space as a global commons begs the question, what does the US consider the definition of a “global commons” to be? Dismissing space as a “global commons” will surely make many other states upset.  But that is not the meat and potatoes of this Order.  The focus should be on what the US has said the space domain is, namely, a “unique domain of human activity.”

I applaud the decision to try and take the nomenclature out of the analysis.  There are too many preconceived notions of what a global commons is or should be or how resources in a global commons should be allocated or shared.  Space is a new domain of human activity unlike anything we have here on Earth.  It deserves consideration without the baggage of terrestrial interpretations.

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…?”

I believe that this Order will definitely encourage international support for the recovery and use of resources in outer space.  The reality is that there are many companies from all around the world looking into space resource extraction.  Fundamentally, if humans want to become a multiplanetary species – and we need to in order to survive – we must learn how to harness the resources of space to enable further exploration of the Universe.  Ultimately, I think that some people equate resource extraction solely with greed or profitmaking motives. Of course profit must be made to support growth, but we should look at space resource extraction the same way the world looked at aviation in the early 20th century.  This is an industry that nations should support because ultimately, it will support unprecedented economic growth – something from which all nations will benefit.

In short, the statements made in the Order about the US position on the Moon Agreement and the characterization of space are simply textual context for what many understood to be the US position.  What’s new is that the US is formally extending a hand and inviting collaboration.  I certainly hope the international community will respond favorably. We cannot jump to conclusions about what the US wants to do with space resources or how it perceives the management of resources ought to be implemented.  The US has not stated that is has the right answer.  It has simply said we need to address this issue, hopefully together.

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

Arguably, the companies involved in research and development of space resource mining techniques are not waiting for international guidelines in order to start work! Many are moving forward despite the lack of certainty.  However, this Order does two things: first, it brings the concept back into the public eye – it can inspire investment and development; second, it shows support for resource extraction by private entities.  In other words, the US government is making very clear that as it negotiates agreements with other states, it will work to protect the research and development and investment of commercial endeavors.  This kind of support can only make commercial resource extraction closer to reality.

Michelle L.D. Hanlon. Photograph courtesy of the author.

Michelle L.D. Hanlon is Co-Director of the Air and Space Law Program at the University of Mississippi School of Law and its Center for Air and Space Law.  She is also a Co-Founder and President of For All Moonkind, Inc., a nonprofit corporation that is the only organization in the world focused on protecting human cultural heritage in outer space.  For All Moonkind has been recognized by the United Nations as a Permanent Observer to the United Nations Committee on the Peaceful Uses of Outer Space.  Michelle Chairs the International Committee of the National Space Society and is the Editor-in-Chief of the Journal of Space Law, the world’s oldest law journal dedicated to the legal problems arising out of human activities in outer space.

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