A Critical Analysis of America’s Space Law Policy about Encouraging Space Exploration
“The United States does not view the Outer Space as a global common”
- Donald J. Trump
A member of the US military unfurls the new US Space Command flag alongside US President Donald Trump, US Vice President Mike Pence (2nd L), and US Secretary of Defense Mark Esper during an event establishing the US Space Command in the Rose Garden of the White House in Washington, DC, August 29, 2019. | SAUL LOEB/AFP via Getty Images
On 6th April 2020, the President of the United States of America, Donald Trump issued an Executive Order which has significantly clarified America’s stance on outer space-related issues for the future. Through this Order, the U.S. wishes to explore space commercially and also generate international support for the same. The biggest question remains whether these endeavors are truly for space exploration or for space exploitation and misuse of outer space resources. This Executive Order was received by both Americans and the rest of the world with a bit of suspicion. In the Order, Trump himself writes how there is a lot of uncertainty with regard to the position of international law when it comes to exploration and the right to recover space resources. Yet, he went ahead and explicitly stated that the U.S. will be pursuing its agenda of this “innovative and sustainable space program” with the involvement of commercial actors. This article shall analyze this Executive Order and attempt to examine its effects on existing international space law.
EXECUTIVE ORDER’S COMPATIBILITY WITH INTERNATIONAL SPACE LAW
In section 1 of the Order, Trump states that the U.S. is adopting a policy of engaging in a long-term commercial exploration of outer space and its celestial bodies (Moon, Mars, etc.) for recovery and use of its resources. He supports this policy by establishing that outer space is not everybody’s to share collectively; it is not a global common. Hence, it follows that Americans should have the right to explore outer space commercially and use its resources. In addition to this, he addresses the reason why commercial entities have been discouraged from space exploration for private benefit till now. It is due to the legal lacuna and lack of clarity that exists in existing international law with regard to the right to recover and use space resources. The Moon Agreement of 1979 which has been signed and ratified only by 18 countries states that Moon and other celestial bodies should only be used for peaceful purposes. It also bans the ownership of any extraterrestrial property by any organization or private entity and most importantly, it states that the Moon and its natural resources are a “common heritage of mankind” which makes it forbidden to extract its resources. The U.S. has not signed the Moon Agreement and as clearly established in section 2 of the Order, the U.S. rejects the Moon Agreement as an effective instrument to promote commercial participation in outer space.
While not being a party to the Moon Agreement certainly does seem to justify the relevance of this Order in the context of international law, the problem arises when we bring into the picture the Outer Space Treaty (OST) of 1967, which the U.S. is very much a party to. Though the OST has many shortcomings of its own and remains vague on issues such as testing of conventional weapons in free space, one thing is well established through Article II of the treaty- that is, “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.” The OST, through Article I openly urges states to freely explore the moon and other celestial bodies for benefit of mankind, however, despite this, the Order can be construed to be in contravention of Article II. The claims put forth by Trump are that the United States wants to head the program for “the return of humans to the Moon for long-term exploration and utilization, followed by human missions to Mars and other destinations.” Even though other states are being encouraged to support this initiative, it seems as if this entire project might be U.S.-dominated and swayed by U.S. interests. This can be seen in the wordings of the Order that refuse to view the Moon as a global common or the overt dismissal of the Moon Agreement by Trump, and most importantly, the fact that the Order is being justified by merely stating that there is “uncertainty” in the Outer Space Treaty itself which leaves rooms for interpretation within it.
EXPLO-RATION OR EXPLO-IATION?
The Executive Order is a direct extension of NASA’s Artemis Program which was mandated by Trump earlier Space Policy Directive I. The objective of the Artemis Program (2017) is to send humans to Moon again as well as collaborate with commercial partners to “use innovative new technologies to explore more of the Moon and its resources than ever before.” The Artemis Accords which have been signed by 7 other countries apart from the U.S. might seem like a very progressive and futuristic plan for outer space exploration. Similarly, advocates of this Order believe that it is a good plan for the progress of humankind, however, the reason why so many countries such as Russia and China have not signed these accords or have not been in support of this Order is that firstly, space exploration programs such as these are resting on the mistaken conception that resources from outer space will benefit humanity. Resources like water- ice, and helium do not exist in very large quantities in our reachable space. These supplies are both limited and non-renewable, and thus cannot be exploited sustainably which is kind of contrary to the whole “sustainable and innovative” mission in the first place. Secondly, and most importantly, the biggest question that arises is how does one guarantee that these recovered resources will be shared and the benefits will be reaped by all countries? as provided by Article IX of the OST. The U.S.-centric approach to these plans of exploration greatly jeopardizes the future of peaceful cooperation between States in matters of outer space.
RESPONSES OF OTHER COUNTRIES
Section 3 of the Order directs the Secretary of State to pursue efforts for international support for this policy. Various countries such as Luxembourg, Japan and United Arab Emirates (UAE), and other countries that signed the Artemis Accords have spoken positively about the Order. The United States and Luxembourg have both passed domestic laws enabling space resource utilization, have signed a cooperation agreement related to space commerce, and several space companies have operations in both countries. 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. Surprisingly, Australia which is a party to the Moon Agreement has also shown support for this U.S. strategy.
Russia and China, which are the two biggest stakeholders in outer space apart from the U.S. have expressed concerns regarding the Order. Russia has sternly opposed the U.S. approach and compared it to colonialism. Russia’s space agency Roscosmos said that “attempts to expropriate outer space and aggressive plans to actually take over other planets” deter international cooperation in the space arena. Vladimir Putin himself said that any attempt to colonialize space would be “unacceptable”.
International outer space law has always remained somewhat of an ambiguous and contentious area. Unfortunately, many of these new developments and futuristic ambitions such as the Executive Order in question could have not been foreseen and anticipated by the existing treaties when they came into force. The ultimate goal for all space-faring nations should be to maintain space as a conflict-free and open for all zone. International treaties and obligations should adapt to suit these aims. In the context of the Order, we can only know what the future holds once deliberations are taken forward and greater clarity is provided on how inclusive this policy will be for countries across the world. Till then, it is best to view these efforts with a skeptical lens for the best interest of international space law.
 Executive Order On Encouraging International Support for the Recovery and Use of Space Resources, signed April 6th 2020, https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/.
 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement), signed December 18th 1979, United Nations Office of Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html.
 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty), signed on January 27th 1967, United Nations Office of Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html.  Artemis Program, National Aeronautics and Space Administration (NASA), 2017, https://www.nasa.gov/artemisprogram.
 James S.J. Schwartz, “Space for concern: Trump’s executive order on space resources”, Oxford University Press, Aril 22nd 2020, https://blog.oup.com/2020/04/space-for-concern-trumps-executive-order-on-space-resources/.
 Kiran Mohan Vazhapully, “Space Law at Crossroads”, Opinio Juris, July 22nd 2020, http://opiniojuris.org/2020/07/22/space-law-at-the-crossroads-contextualizing-the-artemis-accords-and-the-space-resources-executive-order/.
 Ian A. Christensen and Christopher D. Johnson, “Putting the White House Executive Order on space resources in an international context”, The Space Review, April 27th 2020, https://www.thespacereview.com/article/3932/1.
 The Moscow Times, “Russia compares Trump’s space mining order to colonialism”, April 7th 2020, https://www.themoscowtimes.com/2020/04/07/russia-compares-trumps-space-mining-order-to-colonialism-a69901.