On 6 April 2020, the United States’ President issued an Executive Order on Encouraging International Support for the Recovery and Use of Space Resources.
Just when half of mankind were hit by Covid 19 lockdowns, the President Trump aims for the stars (or rather for outer space resources). In his Executive Order of 6 April 2020, he declares:
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. 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 new Executive Order builds on the US policy of promoting and developing a commercial space industry, materialised in the 2015 U.S. Commercial Space Launch Competitiveness Act establishing, inter alia, the right of U.S. citizens engaged in commercial recovery of space resources “to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States”.
Luxembourg has adopted a similar legal framework in its Law of 20 July 2017 on the Exploration and the Use of Space Resources (Loi sur l’exploration et l’utilisation des ressources de l’espace) declaring prominently that “space resources are capable of being owned” («Les ressources de l’espace sont susceptibles d’appropriation»).
Continuous uncertainty of international law
These and other unilateral regulations implemented by States draw on the prevailing uncertainties of international law concerning the exploitation and the appropriation of space resources.
The 1979 Moon Treaty
The Agreement governing the Activities of States on the Moon and other Celestial Bodies, adopted by the General Assembly in Resolution 34/68 of 5 December 1979, contains some legal principles for the exploration and exploitation of space resources. Article 4(1) provides:
The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.
Article 11 places celestial bodies and their resources under the régime of common heritage of mankind and prevents unilateral appropriation, including by private entities or natural persons. However, no specific legal régime for the exploitation of space resources was established in the 1979 Agreement. Rather, Article 11(5) provides:
States Parties to this Agreement hereby undertake to establish an international régime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible.
No such legal régime has been established, despite some efforts. Indeed, the very principles underlying the régime envisaged by the 1979 Agreement remain disputed. Only 18 States have ratified the 1979 Agreement; none of the States Parties is actively engaged in human spaceflight. It can therefore hardly be described as an instrument crystallising general international law in respect of the exploitation of celestial bodies. The Executive Order of 6 April 2020 confirms the position of the United States of America in respect of the 1979 Agreement in Section 2:
[T]he Secretary of State shall object to any attempt by any other state or international organization to treat the Moon Agreement as reflecting or otherwise expressing customary international law.
The 1966 Outer Space Treaty
Thus, the prevailing international instrument remains the Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, adopted by the General Assembly in Resolution 2222(XXI) on 19 December 1966, and largely ratified, including by the States most directly concerned by outer space activities. This instrument does not establish a régime akin to common heritage of mankind. Furthermore, it does not contain a provision similar to Article 11 of the 1979 Agreement prohibiting the appropriation of resources. Article II merely establishes:
Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use of occupation, or by any other means.
Absence any reference to resources, States have taken the position that the resources of celestial bodies can be subject of appropriation, including by private individuals, as long as the Moon or the celestial body concerned are not made subject to the sovereignty of any State.
Continuous necessity for an international régime
Whether this interpretation of the 1966 Treaty advanced by some States, including the United States and Luxembourg, is right or wrong, an international legal environment bringing certainty and stability is still needed. In light of the need of substantial upfront investment, private entities are certainly reluctant to engage in the exploitation of outer space on a basis comparable to the decentralised régime of the exploitation of the living resources of the high seas under Article 116 of UNCLOS. It remains rather difficult to imagine a legal régime that does not embody some kind of exclusivity and licencing. This can only be achieved by international cooperation.
Even if it looks just like another unilateral steps of President Trump, the Executive Order of 6 April 2020 does not exclude an international legal régime. On the contrary, it directs the U.S. Administration to develop joint statements, bilateral agreements, and multilateral instruments with other States to enable and guarantee safe and sustainable operations for the commercial exploitation and use of space resources.
What such a régime will look like, remains uncertain. Although the United States do not exclude to draw on legal precedents and solutions adopted in other domains, a solution built on the principle of common heritage of mankind, as envisaged in the 1979 Agreement for celestial bodies, or as already in place under Article 136 of UNCLOS for the Area, seems to be excluded in light of the resistance of the United States of America as one of the leading nations in the exploration of the outer space.
It should however be noted that appropriation and property right are not indispensable for a stable, predicable and equitable régime attracting private investors. The régime established for the exploitation of the seabed and the ocean floor beyond the limits of national jurisdiction, based on the principle of common heritage of mankind is an example that, it seems, attracts interest and investment. As of today, the International Seabed Authority has concluded exploration contracts with thirty contractors.
Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, 6 April 2020
Section 1. Policy.
Space Policy Directive-1 of December 11, 2017 (Reinvigorating America’s Human Space Exploration Program), provides that commercial partners will participate in an “innovative and sustainable program” headed by the United States to “lead the return of humans to the Moon for long-term exploration and utilization, followed by human missions to Mars and other destinations.” Successful long-term exploration and scientific discovery of the Moon, Mars, and other celestial bodies will require partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space.
Uncertainty regarding the right to recover and use space resources, including the extension of the right to commercial recovery and use of lunar resources, however, has discouraged some commercial entities from participating in this enterprise. Questions as to whether the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”) establishes the legal framework for nation states concerning the recovery and use of space resources have deepened this uncertainty, particularly because the United States has neither signed nor ratified the Moon Agreement. In fact, only 18 countries have ratified the Moon Agreement, including just 17 of the 95 Member States of the United Nations Committee on the Peaceful Uses of Outer Space. Moreover, differences between the Moon Agreement and the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies — which the United States and 108 other countries have joined — also contribute to uncertainty regarding the right to recover and use space resources.
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. 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.
Section 2. The Moon Agreement.
The United States is not a party to the Moon Agreement. Further, the United States does not consider the Moon Agreement to be an effective or necessary instrument to guide nation states regarding the promotion of commercial participation in the long-term exploration, scientific discovery, and use of the Moon, Mars, or other celestial bodies. Accordingly, the Secretary of State shall object to any attempt by any other state or international organization to treat the Moon Agreement as reflecting or otherwise expressing customary international law.
Section 3. Encouraging International Support for the Recovery and Use of Space Resources.
The Secretary of State, in consultation with the Secretary of Commerce, the Secretary of Transportation, the Administrator of the National Aeronautics and Space Administration, and the head of any other executive department or agency the Secretary of State determines to be appropriate, shall take 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. 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.
Section 4. Report on Efforts to Encourage International Support for the Recovery and Use of Space Resources.
No later than 180 days after the date of this order, the Secretary of State shall report to the President, through the Chair of the National Space Council and the Assistant to the President for National Security Affairs, regarding activities carried out under section 3 of this order.
Section 5. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The text of the Executive Order is available online on the website of the White House.