President Trump’s Space Resources Executive Order
On 6 April 2020 President Trump issued his latest Executive Order on ‘Encouraging International Support for the Recovery and Use of Space Resources’. This has garnered some attention, and this post will examine what the Executive Order means, and place it within the broader context of US space policy and law, and international law. There are a number of elements that are worth exploring in greater detail, such as the question of whether outer space is a ‘commons’ but as they could easy occupy an entire post of their own I won’t delve too deeply into that issue.
First, it is worth discussing what an Executive Order is.
An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government… executive orders… have the force of law, much like regulations issued by federal agencies… Executive orders are not legislation; they require no approval from Congress…
However, the President does need to have the legal authority to issue an Executive Order either directly from the Constitution or via previous authorisation from Congress.
Indeed the opening of this Executive Order cites Title IV of the US Commercial Space Launch Competitiveness Act of 2015 (hereinafter ‘the 2015 law’) as the authoritative basis for the Executive Order (as well as the President’s general powers under Article II of the US Constitution).
The Executive Order itself is largely a restatement of existing US policy on space resources, and aligns with much of what has been said by the US delegation at the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS). The key points are:
The US supports the right for commercial ‘recovery’ and ‘use’ of space resources
The US is not a party to the Moon Agreement, and rejects the Moon Agreement as a basis for any space resources governance regime
The US rejects the notion that the Moon Agreement is reflective or expresses customary international law
The US repudiates the notion that space is a ‘commons’
The US will seek international support for the ‘exploitation’ and ‘use’ of space resources and to this end “the Secretary of State shall seek to negotiate joint statements and bilateral and multilateral arrangements”
It is likely that had the UNCOPUOS Legal Subcommittee not been cancelled due to the international public health emergency then the US would have made a statement similar to this Executive Order (indeed as reported by Jeff Foust that is one of the reasons for it). Though, of course, that doesn’t mean that this Executive Order wouldn’t still have been issued.
Outer space is an international domain and ‘governed’ by international law. For the purposes of this post I will discuss two treaties that are most relevant, the Outer Space Treaty of 1967 and the Moon Agreement of 1979.
The legality of space resource activities under international space resources have long been debated but there has been a particular focus on this topic over the past five years as a result of the US 2015 law.
The key provisions of the Outer Space Treaty for our purposes are Articles I, II, and VI. Article I of the Outer Space Treaty stipulates that States enjoy freedom of ‘use’ of outer space. However, Article II says that they are not able to ‘appropriate’ outer space, the Moon, and other celestial bodies by any means. Article VI is also relevant as it makes States responsible for their nationals in outer space and requires that they ‘authorise’ and ‘continually supervise’ their activities.
It is generally accepted that this means that neither States nor their nationals can claim territory on the Moon, but there has been debate about resources. As I argued in my recently successfully defended PhD thesis it is reasonable to take a broad definition of ‘use’ which would extend to the extraction and ‘use’ of resources, however, owing to Article II there cannot be any assignation of ‘prior’ rights to the resources in situ in a celestial body. A broad interpretation of ‘use’ has long been advanced by the US, Luxembourg and a number of other States at UNCOPUOS and elsewhere, further, it is a view that is gaining traction.
Space resource activities are permissible under international space law, though we are still working out the details. National legislation as passed by the US in 2015 is key to doing that and this Executive Order will also help advance that endeavour, particularly given its welcome emphasis on ‘international support’.
As for the Moon Agreement, it is generally considered a ‘failed treaty’ as, as mentioned in the Executive Order, it has a very low number of parties, however it is an active and valid treaty and is the fifth of the ‘UN’ space treaties. Article 11 of the Moon Agreement declares the Moon and other celestial bodies to be the ‘Common Heritage of Mankind’ and stipulates that there needs to be an international regime to regulate space resource activities. The US isn’t a party to the Moon Agreement and is therefore not bound to follow it. Further, claims that the Moon Agreement has some kind of status under customary international law doesn’t hold water. However, as there are States who are parties to the Moon Agreement who are members of UNOCPUOS there has been discussion of its relevance at UNCOPUOS. There is a potential concern for fragmentation of the space governance regime if we see a divergence of the Outer Space Treaty and Moon Agreement states. However, there shouldn’t be too much read into the ‘rejection’ of the Moon Agreement in this Executive Order, it has been US policy for 40+ years and as evidenced by the low uptake of the Moon Agreement is a sentiment shared by many countries.
What does this Mean?
In many ways this Executive Order doesn’t mean a whole lot. As mentioned, it a restatement of existing US policy and would probably have matched the US statement at the Legal Subcommittee of UNCOPUOS. As it is an Executive Order it will garner more attention than a statement at UNCOPUOS usually does (indeed I’m seeing that from twitter… and is not uncommon in relatively niche policy areas when something unusually high profile happens), but even the ‘order’ to the US State Department probably doesn’t already mean much as they are already active in this area. That said an Executive Order may embolden these efforts and provide an impetus for action.
The ‘space isn’t a commons’ statement may be one of the more important elements. While it has been said by Trump administration officials before (most notably Scott Pace) putting it in an Executive Order gives it more heft. While I think the ‘space as a commons’ debate warrants its own post, it is worth bearing in mind that it should probably be read in conjunction with the repudiation of the Moon Agreement, so ‘space isn’t a commons’ is primarily about the Common Heritage of Mankind principle (and it is important to remember that the US is one of the few countries that isn’t a party to the UN Convention on the Law of the Sea, in no small part because of their objection to the Common Heritage of Mankind principle.)
Does it matter?
While it is true that this Executive Order largely restates existing US policy and law and therefore won’t come as a surprise to those of us who have been following the space resources debate for the last five years, it is significant that it is an Executive Order. This, as mentioned above, has the force of law and is signed by the President. That has a weight to it that a speech by Scott Pace, even at the Galloway Symposium, or a US State Department employee at UNCOPUOS, does not.
Second, this is both State Practice and evidence of opinio juris. This has significance for any developing customary international law regarding space resources. It will also be interesting to see what, if any, formal international reaction is (i.e. does the German Foreign Ministry issue their own statement.) Particularly as this is an Executive Order, it’s one thing to do the diplomatic equivalent of ‘subtweeting’ in a statement during the ‘general exchange of views’ at UNCOPUOS and an entirely different thing to do it in an Executive Order…
It is also worth watching to see whether there are any changes to the way US military official speak about outer space, as they do often use ‘global commons’ language with regards to outer space but that is to analogise it as equivalent to the high seas as an ‘operational domain’. Now that it has gone from being ‘something said by administration officials’ to part of an Executive Order we may see a change in language (at least in prepared remarks).
Forth, there’s going to be a report in 6 months, and I, for one, will be interested to read it.
This isn’t particularly ground-breaking. The US passed a law saying Americans could ‘own’ space resources in 2015, the US has been rejecting the Moon Agreement for 40 years, and the Trump administration has said that they don’t think space is a global commons a few times. However, it does matter that this is an Executive Order, and it is good to see a desire to develop ‘multilateral’ instruments on space resources (particularly from an administration that isn’t overly keen on multilateral instruments).
That said, ‘likeminded nations’ and the hostility to the Moon Agreement indicated in section 2, provoke further concerns about the dangers of ‘fragmentation’ of the space governance regime. Though that’s not a criticism, per se, rather something to watch out for.
It is also important to remember that this is an election year, therefore everything could change in a few months. However, while President Trump is more enthusiastic for space and space resources than previous US presidents (and seemingly either of the potential Democratic alternatives) his position isn’t out of line with general US policy so I wouldn’t expect a wholesale change if it is President Biden in the White House next year, though that might not be true for the ‘commons’ position (when a member of the US Senate Mr Biden supported UNCLOS ratification.)
This will garner attention because it is an Executive Order, but it isn’t really ‘new’. It’s reasonable to query whether it was necessary, and it seems unduly obsessed with the Moon Agreement. It will be interesting to see what comes in the next year, particularly vis-à-vis the directive to the State Department to develop bi- and multilateral instruments.
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https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/?fbclid=IwAR2VM927Uak4AE7iasdNH4ptwHYXDynkfbufZTZJzMy8pXtTSnhZFas4T8E https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/ https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf https://www.unoosa.org/oosa/en/ourwork/copuos/index.html https://twitter.com/jeff_foust/status/1247237343460851719 Sovereignty, Jurisdiction, and Property in Outer Space: Space Resources, the Outer Space Treaty, and National Legislation, University of Northumbria at Newcastle https://spacepolicyonline.com/news/pace-outlines-trump-administrations-approach-to-space-development-and-law/ I’m not familiar enough with Senator Sanders’ positions to speculate on this with any confidence but he does seem to be if favour of fairly substantial changes to US policy although I doubt this would be a high priority https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1049&context=law_globalstudies 359