WASHINGTON — An executive order by the White House April 6 seeks to establish international support for the U.S. position that space resources can be used by companies and organizations, and to head off alternative international legal regimes.
The executive order calls on the State Department to lead interagency efforts to encourage other countries to adopt the American position supporting “safe and sustainable operations for the public and private recovery and use of space resources.” That would follow federal law, in the form of the Commercial Space Launch Competitiveness Act of 2015, which grants American companies rights to space resources they extract.
“Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law. Outer space is a legally and physically unique domain of human activity, and the United States does not view it as a global commons,” the order, signed by President Donald Trump, states. “Accordingly, it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law.”
The order explicitly opposes the Moon Agreement, sometimes known as the Moon Treaty, that treats the moon and other celestial bodies as the “common heritage of mankind” and would establish an international regime to govern the use of such resources. The United States and most other major spacefaring nations rejected the final version of the Moon Agreement in the late 1970s, and to date the treaty has been ratified by only 18 countries.
“Supportive policy regarding the recovery and use of space resources is important to the creation of a stable and predictable investment environment for commercial space innovators and entrepreneurs, and it is vital to the long-term sustainability of human exploration and development of the moon, Mars and other destinations,” a senior administration official, speaking on background, said in a call with reporters about the new executive order.
Planning for the executive order started last year, the official said, but was ultimately linked to the release by NASA April 2 of a report outlining its long-term plans for sustainable lunar exploration. That included the development of in-situ resource utilization technologies to make use of water ice or other lunar materials to create fuel, oxygen and other materials, “enabling sustainable surface operations with decreasing supply needs from Earth.”
Another factor in the timing was the status of the U.N.’s Committee on the Peaceful Uses of Outer Space (COPUOS), a forum where matters like use of space resources are discussed. The meeting of the COPUOS legal subcommittee, scheduled for late March, was canceled because of the coronavirus pandemic, and the U.N. has delayed the full COPUOS meeting from June until at least the latter half of August.
“We’re having State Department reach out to our counterparts, partners, because we still, of course, want to talk about international cooperation on Artemis,” the official said. “With the NASA plan being out, we thought it was important to then put out this statement about what our attitude was toward use of space resources.”
The executive order doesn’t call for a new treaty or a similar binding international agreement, but instead a series of bilateral or multilateral agreements with nations that share American views on space resources.
The official declined to name any specific countries the United States may already be in talks with on the topic, but noted that some countries have either enacted laws similar to the U.S. one on space resources, like Luxembourg and the United Arab Emirates, or have otherwise issued statements in support of the American approach.
“There is not a whole lot which is new here,” said Chris Johnson, space law adviser for the Secure World Foundation, in an interview. That includes the rejection of the Moon Agreement and the concept of space as a “global commons,” but continued support for the Outer Space Treaty.
The executive order, he said, will reinvigorate a debate about how the use of space resources will be governed. “As of 2020, the conversation is no longer whether it’s legal or illegal to use space resources,” he said. “The conversation now at the international level is, do we need a new international regime? How do we govern this in a sustainable fashion?”
He said that, as the issue of space resources was discussed in the last few years, a few countries suggested the Moon Agreement as a model for an international regime. “That made a lot of folks nervous because it’s rules negotiated in the 1970s for activity that has yet to arise.”
Johnson said he thinks it’s likely that the United States is already talking with “like-minded” countries on the topic. That could help bolster the American view in eventual discussions at COPUOS or the U.N. General Assembly, noting that the consensus-based approach of COPUOS means it takes a long time to develop any rules or guidelines on space issues.
“In the meantime, there will be a lot of hand-wringing and scratching heads in other capitals around the world about what this means,” he said.
