Putting the White House executive order on space resources in an international context
by Ian A. Christensen and Christopher D. Johnson
|The issuance of this executive order must be viewed not in isolation but instead in the larger context of US space exploration and space commercialization policy.|
This Executive Order (EO 13914) does not fundamentally change any US position on space resources, but has already sparked international reactions, ranging from supportive, to skeptical, to outright accusatory. These reactions are no doubt a reflection of the view of the current president as much as, or perhaps more than, the underlying subject matter of EO 13914. This essay will explain how EO 13914 restates existing US positions rather than taking new ones, place this order in the context of recent and ongoing international discussions on space resource use, and conclude with a prognosis for how the United States will engage the international community under this order.
It is important to begin with the facts. The issuance of this executive order must be viewed not in isolation but instead in the larger context of US space exploration and space commercialization policy. The United States clearly views space resources utilization as both a key part of achieving the long-term goals of the Artemis program and future human space exploration, and as a foundational element of a robust future commercial space economy. The week prior to the release of EO 13914, NASA released its Plan for Sustained Lunar Exploration and Development as part of the Artemis Program. This plan describes a vision for sustained scientific and exploration activities on the Moon, conducted in partnership with other states, and in which in situ resource utilization (ISRU) is a key enabling factor. US officials have also spoken in the past on the role space resources will play in growing the commercial space economy. The order’s support for commercial space resources utilization is consistent with US law under the Commercial Space Launch Competitiveness Act of 2015, which passed the Congress with bipartisan support and was signed into law by President Obama.
This vision is one in which fuel and other resources obtained from the Moon lower the costs of space activities and help to enable new space applications. These two policy goals (the Artemis program and development of commercial space) are linked. It will be through partnership with government space exploration programs that space resources utilization technologies will be developed, and space resources companies will find initial markets. Use of resources has consistently been part of global space exploration strategies prior to the Trump Administration. For example, the 2010 NASA Authorization Act, passed by a Democratic Congress and signed by President Obama, makes several references to the use of resources as a key part of space exploration. Internationally, the Global Space Exploration Roadmap, a product of several international space agencies through the International Space Exploration Coordination Group (ISECG), also refers to ISRU as a critical capability for long-term space exploration.
Properly understood in this context, the executive order is not a policy change for the United States; instead, it is implementation guidance to the State Department and other US agencies. It provides clear and public direction on the need to enable space resources utilization to support the Artemis international engagement strategy. Resolving some of the legal uncertainties around space resources utilization is part of the strategy for achieving the policy goals of the Administration.
|In those multilateral discussions, consensus is slowly emerging that space resources utilization is a permitted use of celestial bodies, rather than their unlawful appropriation.|
The language used in the order concerning opposition to the Moon Agreement and the US objection to discussion of space as a “global commons” is prominently featured, but these positions are not new and in fact reflect long-standing US policy. The order is also a clear statement of the US negotiating and diplomatic position regarding the Moon Agreement and global commons in multilateral discussions of space resources utilization.
In those multilateral discussions, consensus is slowly emerging that space resources utilization is a permitted use of celestial bodies, rather than their unlawful appropriation (outside perhaps of the extreme case of the full consumption of an asteroid.) Questions are now centering on how to govern this type of use. In order to provide effective governance and the legal certainty that governmental programs and commercial operators require, international coordination and agreement will be required. Individual states (including the United States) cannot provide that certainty on a unilateral basis. For example, one cannot create a claims system without some level of mutual recognition and protection of claims, be that on a bilateral, minilateral, or multilateral basis. The executive order should not be understood as a unilateral approach, but rather as a strong signal that the United States intends to seek pragmatic and practical resolution of space resources governance questions.
The most important multilateral discussions on the use of space resources take place at the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), and especially at the COPUOS Legal Subcommittee. As of 2020, COPUOS comprises 95 Member States, and is one of the largest committees in the UN system. In 2016, upon a proposal by the Belgian delegation, the topic of space resources first appeared as a single-year agenda item of the Legal Subcommittee. Since then, agenda item 15, General exchange of views on potential legal models for activities in exploration, exploitation and utilization of space resources, has received ever-increasing attention by the subcommittee.
Last year at the COPUOS main session, the committee endorsed a proposal put forth by Belgium and Greece nominating Andrzej Misztal of Poland and Steven Freeland of Australia to serve as Moderator and Vice-Moderator of “scheduled informal consultations” with COPUOS Member States on the topic of space resource governance approaches. Their consultations are meant to gather the views of COPUOS Member States on their preferred way forward for the committee’s work on the subject of space resources. These activities within the Legal Subcommittee attest to the increasing attention paid to space resources within COPUOS.
This activity within COPUOS is one of the prompts that we believe gave rise to the executive order—an order that explicitly rejects the Moon Agreement on a number of fronts. Without the context of these discussions at COPUOS, and the persistent raising of the Moon Agreement there, the executive order may seem strange in its strident denunciation of that treaty. The Moon Treaty is widely seen as a failed, problematic treaty, finalized in 1979 but which did not enter into force until 1984 when the minimum required number of states ratified it (five.) Even today no major space power is a party, and only 18 states are parties to it.
The executive order explicitly rejects both the Moon Agreement as expressing customary international law (a non-contentious point) and instructs the State Department to “object to any attempt by any other state or international organization to treat the Moon Agreement as reflecting or otherwise expressing customary international law.” This denunciation seems also to show a weariness and irritation at the raising of the Moon Agreement within COPUOS as an attractive path forward.
|This denunciation seems also to show a weariness and irritation at the raising of the Moon Agreement within COPUOS as an attractive path forward.|
However, this order should not be construed as a renunciation of COPUOS. It is not that the United States is opposed to international discussions within COPUOS regarding the development of any international measures or understandings addressing space resources. Rather, it is that the United States is resistant to the continual pushing for the wider relevance and imposition of the Moon Agreement in those discussions and would prefer a more pragmatic discussion on pressing issues where progress and mutual understanding is possible. To the COPUOS community, Washington cannot make it any clearer: “Stop talking about the Moon Agreement as a path forward. It’s not going to happen.”
COPUOS remains a key forum for useful talks giving rise to coordinated, consensus-driven principles governing space activities, including the use of space resources. These shared understandings are based on the 1967 Outer Space Treaty, especially the freedoms of Article I, and suited towards fostering the purposes of the treaty listed in its preamble. The US position is of course also informed by the incorporation of the entirety of international law via Article III of the Treaty, and the understanding of Article II, by which no use or occupation of outer space, whether the Moon or other celestial bodies—no matter how extensive or persistent—would give rise to a lawful and recognized national appropriation of those domains. To the United States, the access, use, possession, utilization, exploitation, and benefits of space resources is permitted by the Outer Space Treaty, with the understanding that no such access, use, possession, utilization, exploitation, or the occupation of areas will or could ever give rise to a national appropriation which Article II explicitly prohibits. Because of Article II, outer space is simply not subject to such appropriation attempts. It reads:
Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
As the international forum of the peaceful uses of outer space, COPUOS is the established, traditional, and natural place for such discussions and the development and codification of any necessary new norms for space activities. However, no new internationally binding legal instruments have been developed at COPUOS since the Moon Agreement of 1979. Instead, work within COPUOS for the past 40 years has resulted in other instruments, adopted by consensus, and regarded as having normative force. For example, the recently-concluded guidelines for the long-term sustainability of outer space activities is the latest success out of COPUOS, and shows that a committee of more than 90 states can meaningfully discuss complex issues of spaceflight and reach consensus on best practices on these activities—all without codifying any new rights, obligations, or prohibitions in a legally-binding manner for member states.
But, what work should be done at COPUOS on space resources? The variety of the instruments developed there demonstrates that a new, international binding legal instrument is not the only (or perhaps even the best) method forward. In fact, given the still emerging nature of commercial space resource access and utilization, a binding treaty is likely inappropriate before the actual activity begins and may not even be appropriate thereafter. This is because other approaches exist besides high-level multilateral treaty-making. They include bilateral agreements between two states, minilateral arrangements among a small set of states (for example, the 1998 International Space Station Agreement), and national space law and regulation (the United States and Luxembourg space resources laws, for example.)
Which approach is best? A new international treaty, possibly replacing the failed Moon Agreement (a “Space Mining Treaty”)? Or, a COPUOS-led initiative resulting in principles declarations adopted by the UN General Assembly (“Space Resources Principles”), or a resolution from the General Assembly on a specific issue (“Recommendations on the practice of States in space resource activities”)? Or, a minilateral agreement developed outside of COPUOS, and between like-minded states? The further proliferation of national space laws to regulate national space resource activity? Or, a mix of some (or all) of the above?
There are strengths and shortcomings of each of these approaches. A new international treaty done through COPUOS would have widespread legitimacy and could substantially clarify and harmonize rules on a global level. However, once negotiated and adopted, treaties are essentially impossible to alter and therefore run the risk of becoming quickly outdated by advances in technology or scientific findings, as well as economically or politically irrelevant. Setting in stone the rules for a future activity that has not yet occurred seems hasty and ill-advised.
|Identifying and working with other like-minded states is not an end-run around the UN system; it is how most international space cooperation is already done.|
Conversely, purely national approaches such as national space legislation seem attractive, as states can determine for themselves their rights and obligations under international law and tie these understandings to their national interests and priorities. National space legislation is also generally developed faster than international space law. However, a proliferation of national law approaches runs the risk of fragmenting the international legal order, possibly creating problematic inconsistencies between how states view their rights and obligations under international law, and possibly leading to “forum shopping” actions by commercial operators, thereby weakening the system as a whole.
So-called “minilateral” approaches, in the form of international agreements amongst a small number of like-minded states with consistent understandings of space law and complimentary national interests for space, also appear attractive. Minilateral approaches enjoy the expediency of national space legislation, and as they are negotiated amongst several like-minded states, such agreements could not be honestly accused of being merely “unilateral” measures. Lastly, identifying and working with other like-minded states is not an end-run around the UN system; it is how most international space cooperation is already done. Section 3 of the EO 13914 positively encourages such minilateral approaches:
In carrying out this section, the Secretary of State shall seek to negotiate joint statements and bilateral and multilateral arrangements with foreign states regarding safe and sustainable operations for the public and private recovery and use of space resources.
There are currently a variety of views on which avenue the development of new norms for the development of space resources should take. Some commentators are adamant that we need a new treaty, negotiated at COPUOS (because of, rather than despite, its size) and then presumably sent to the UN General Assembly as an Annex in a draft resolution for adoption there, just as treaties were done in the 1960s and ’70s. Despite the satisfaction this would give international space lawyers that the harmony of international space law remains intact, this approach is politically unlikely. Others in the space industry focused on the commercial development of space resources are less concerned with the applicable rules and might insist on a more laissez faire approach, or on purely national laws giving maximum freedom to nongovernmental (commercial) actors. The present authors are in the unenviable position of being in general disagreement with both approaches.
Thankfully, those who aspire to develop space resources are not the first to ponder this question. In deciding which avenue to pursue, the concept of subsidiarity should prevail. Subsidiarity is a principle of organizational logic that dictates that, for the sake of efficiency and effectiveness, rulemaking should be taken at the lowest necessary level. In other words, for issues that can be solved successfully at the national or regional level, or even amongst like-minded sets of states or commercial actors, there is no rational reason to work exclusively at a high-level multilateral body such as COPUOS. Additionally, for issues of purely state concern, it is not proper for COPUOS to determine how member states should be fulfilling their authorization and supervision obligations. Americans will recognize the logic of subsidiarity in our 10th Amendment, while Europeans see subsidiarity in the core EU treaties. The Catholic Church is seen as the main historical driver of subsidiarity. This approach, of course, leaves open any remaining issues that truly need international agreement for directed consideration at COPUOS or at other international fora.
Another reason to step away from a top-down approach is the importance of hearing from non-state actors, such as industry, academia, and civil society. One such approach is the recently concluded Hague International Space Resources Governance Working Group. The group involved more than 30 industry, government, and academia members representing a range of viewpoints: from Moon Agreement parties and traditional spacefaring states to emerging nations and startup companies. From this diverse background all members shared a common goal of creating an enabling legal environment for space resource activities. In November 2019, the Group released its 20 Building Blocks for the Development of an International Framework on Space Resource Activities (available in English, Chinese, French, Italian, Portuguese, and Spanish via the Group’s website).
The Building Blocks “are designed to serve as the basis for a possible international framework, without prejudice to its form and structure.” The Building Blocks identify principles and requirements that are, in the opinion of the group’s members, necessary to enable space resources utilization in a manner consistent with international law and providing industry legal certainty. The distinction that the group published the Building Blocks without prejudice to form or structure is important. Implementation of space resources governance will require international coordination, but that coordination might take several forms.
|You wouldn’t normally expect the United States, China, and Australia (a Moon Agreement party) to be grouped as like-minded in lunar exploration or commercialization approaches.|
The Building Blocks are unlikely to be implemented in a holistic fashion, but the principles contained within them might be implemented in a combination of multilateral guiding documents, state-to-state agreements (bi- or mini-lateral), and domestic law. In this regard, the Building Blocks represent a set of principles and topics for which an expert group has identified the need for further implementation. As such, they represent a possible starting point for discussions on taking “all appropriate actions to encourage international support for the public and private recovery and use of resources in outer space, consistent with the policy set forth in section 1 of this order” as Section 3 of EO 13914 directs the US government to do.
US administration officials indicated that this Executive Order means that the United States is willing to pursue conversations with like-minded states towards a stable and predictable legal environment for space resources utilization. In a briefing on the order, a senior administration official identified several potential countries to work with, based on space resources related statements that those countries have made: “We’ve been hearing positive statements out of Luxembourg, the United Arab Emirates, Canada, Australia, and frankly even China. Of course, there are other problems with China as you’re well aware, but even on space resources, China has been open to discussing how to produce a more stable and predictable environment.”
This group of states is striking for its diversity: you wouldn’t normally expect the United States, China, and Australia (a Moon Agreement party) to be grouped as like-minded in lunar exploration or commercialization approaches. However, “like-minded” does not mean that all participants begin from the same standpoint; it means that they are able to identify shared interests and work towards those shared interests.
So what does this intention for bilateral coordination mean, and how will the United States go about engagement? For some of the countries identified, the alignment is clear. The United States and Luxembourg have both passed domestic law enabling space resource utilization, have signed a cooperation agreement related to space commerce, and several space companies have operations in both countries. The United States and Canada have a long history of cooperation on space exploration and existing technical exchanges related to space resources. Canada’s terrestrial mining sector is also beginning to show interest in space resources activities. Not mentioned by the administration official was Japan, which seemingly would be an oversight. Japan is a key partner in Artemis and is home to one of the more prominent lunar commercialization companies, ispace. US and Japanese officials have already been holding discussions related to cooperation on sustainable lunar exploration activities, including ISRU. Australia and China are somewhat outliers in this group of countries.
Australia was mentioned in connection to the executive order, despite the order’s emphasis on moving beyond discussion of the Moon Agreement. In this case, potential cooperation is linked both to Artemis program, and to potentially shared legal interests. Australia has signed a statement of intent to cooperate with NASA on activities related to Artemis, which might include robotics for ISRU activities. Several universities in Australia have been working on technology development related to ISRU activities, sometimes in cooperation with Australia’s significant terrestrial mining sector. On the legal side, while Australia is a party to the Moon Agreement, scholars closely associated with the Australian government have spoken positively of the need to develop international legal frameworks that address property rights in space activities. The United States might find common ground here.
The inclusion of China in discussions of states where implementation of the executive order might seek out common ground is especially intriguing. China is generally seen as a competitor to the United States in space activities, and a certain line of commentary holds that space resources could become a flashpoint in the US-Chinese space relationship. Yet Chinese exploration plans for the Moon require the same type of ISRU activities that are part of the Artemis sustainability plan.
US officials have seen Chinese positions on space resources utilization (as expressed in multilateral forums) shift over recent years. Initially, Chinese statements at COPUOS expressed concerns over the legality of US law permitting commercial space resources utilization. Recently, however, Chinese positions have shifted to the view that space resource utilization is a permitted activity. As part of that shift, China has expressed a willingness to discuss governance frameworks for space resources activities, and in 2018 entered into a cooperation agreement with Luxembourg which includes economic and political cooperation related to space resources. The United States and Luxembourg signed a Memorandum of Understanding in 2019 that similarly includes the possibility of bilateral cooperation in projects of common interest in space resources exploration, exploitation and utilization. Far from engaging in a wide-ranging cooperation with China, US officials likely see China’s interest in lunar exploration and shift in position as opening a potential situational ally in moving multilateral space resources discussions beyond rehashing the Moon Agreement, and towards pragmatic discussions.
|Providing private operators legal certainty in space resources utilization activities will fundamentally require international consultation and coordination.|
There is a risk that the language used in this EO 13914—in particular its refutation of the global commons concept and the Moon Agreement—could become associated with President Trump and an “America First” approach. For those “on the fence” on whether we need a space resources treaty, including like-minded countries eager to develop space resources, this could lead to a renewed interest in the Moon Agreement. This would be regrettable, as space development advocates have long existed before the Trump Administration and understand that ambitions for space will be inherently international.
In conclusion, the executive order is consistent with past US policy in international engagement on this topic and seeks to provide legal certainty to US entities. The order is also a clear signal that the United States does not see the Moon Agreement as a practicable path forward. However, the order does not close the door for further discussion and progress on space resources governance in COPUOS, or through other bilateral and multi-party forums. Far from it, in fact. Providing private operators legal certainty in space resources utilization activities will fundamentally require international consultation and coordination. This action by the White House is a step towards defining how US agencies will engage in that process and should be understood as a clearly signaled US interest in moving forward with international discussions of practical steps towards space resources utilization.
However, how this is implemented amidst the range of issues at COPUOS and elsewhere remains to be seen, and geopolitical pressures and politics always have a chance of impacting how norm setting develops. While this summer’s session of COPUOS has already been delayed, when the session begins again, actions like the executive order will be at the top of the list for discussion amongst Member States. Alongside these COPUOS discussions, activity will continue towards Artemis program development and implementation. This activity will certainly include US international engagement and further development of cooperation agreements. As this strategy is executed, the actual operational practices developed for ISRU activities will significantly inform the establishment of applicable norms and principles.
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