USA's Executive Order on Use of Space Resources : A critical perspective
Introduction
This piece intends to analyze the recent USA's Executive Order on Use of Space Resources which according to me is an unilateral act and violative of USA's international obligations.
Non-appropriation of outer space and outer space as global commons:
The international law on outer space started emerging as early as in 1957 when the first artificial satellite - Sputnik was launched. When countries did not protest against Sputnik flying over them, they implicitly accepted that the legal regime governing outer space is different from airspace. This is because in airspace, the sovereignty of a country prevails and no country would allow any flight in their airspace, without obtaining permission (which can be in any form). That outer space is governed by a legal regime different from airspace.
The defining principle of the law of outer space is that outer space is free for exploration for all countries. A natural corollary to this principle is outer space is not subject to national appropriation. As early as in 1961, UN GA Resolution 1721 (XVI)was adopted. It provides as follows: "Outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation" The same principle was expanded upon in 1963 by UN GA Resolution 1962 (XVIII) - Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The 1963 UN GA Resolution provides "outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". The non-appropriation principle was later included in Article 2 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 ("Outer Space Treaty"). The important thing to note here is that Article II of the Outer Space treaty prohibits appropriation by claim of sovereignty, by means of use or occupation, "or by any other means." Thus, any form of appropriation of outer space and celestial bodies by a State Party to the Outer Space Treaty is prohibited under the Outer Space Treaty.
It may be noted that the United States representative to United Nations Committee on the Peaceful Uses of Outer Space meeting in 1969 stated with respect to Article II of the Outer Space Treaty:" The negotiating history of the Treaty shows that the purpose of this provision (article II) was to prohibit a repetition of the race for the acquisition of national sovereignty over overseas territories that developed in the sixteenth, seventeenth, eighteenth and nineteenth centuries. The Treaty makes clear that no user of space may lay claim to, or seek to establish, national sovereignty over outer space." It may also be noted that a look into the negotiating history of the Outer Space Treaty will reveal that the consensus on Articles I and II were reached without much controversy. It may be noted here that the principles of freedom of outer space and non-appropriation of outer space are the longest standing principles of law of outer space and have been recognized as a principle of customary international law that is binding on all countries, irrespective of whether the country is party to the Outer Space Treaty. Thus, outer space is considered as a global commons.
USA's Executive Order on Use of Space Resources:
On April 6, 2020, the USA passed an Executive Order on "Encouraging International Support for the Recovery and Use of Space Resources" which is aimed at encouraging the private entities to "recover and use resources, including water and certain minerals, in outer space". The Executive Order, in some parts, reiterate the unilateral policy of United States to violate some provisions of the Outer Space Treaty, such as the non-appropriation principle. The Executive Order continues on the lines of Title IV of the U.S. Commercial Space Launch Competitiveness Act of 2015. Most relevant provision of the 2015 Act is Section 51303 which reads as follows: "A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including 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." However, as some scholars had noted, the provision stated that space resource extraction shall be in accordance with international obligations of United States and hence, perhaps United States did not wish to violate its international obligations on non-appropriation. The 2020 Executive Order, however, proves otherwise.
The salient features of 2020 Executive Order are as follows:
(a) Bring legal certainty regarding space resource extraction, in order to encourage commercial entities in the USA.
(b) Reiterate that USA is not party to Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 ("Moon Agreement") and state that 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".
(c) It also states that United States object to any claim that "Moon Agreement as reflecting or otherwise expressing customary international law."
(d) The United States does not consider the outer space as global commons, despite the language of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 ("Outer Space Treaty").
(e) Encourage international support for the public and private recovery and use of resources in outer space, consistent with the policy.
It may be noted here that scholars who emphasized on the importance of the Moon Agreement, mostly advocated for countries to ratify the Moon Agreement as the Moon Agreement provides mechanism to establish a common regime for resource extraction.
However, what I find most fascinating is USA denying that the outer space is not a global commons and that there is no restriction on space resource extraction by USA. The pertinent language from the Executive Order is as follows: "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." Thus, the USA clearly intends to violate the non-appropriation principle, which is both enshrined in Outer Space Treaty (to which USA is a party) and customary international law.
Conclusion:
Such unilateral policy by a State has the potential to disturb the delicate balance established by international space law. It may be noted that the 2015 Act of USA was met by opposition internationally, including statements by countries at UNCOPUOS. I believe it is responsibility of every country to evaluate the 2020 USA's Executive Order in respect to international space law. Else, the outer space may end up being prey of human greed and colonization which we have strived to prevent since World War II. Further, such an Executive Order has the potential to prevent future space entities and countries from exploring outer space.
Some References:
(a) Jakhu, Ram S. and Freeland, Steven, The Relationship Between the Outer Space Treaty and Customary International Law (2016). Available at SSRN: https://ssrn.com/abstract=3397145 or http://dx.doi.org/10.2139/ssrn.3397145
(b) https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/
- Upasana Dasgupta
Upasana is a doctoral candidate at the Institute of Air and Space Law, McGill University which she is pursuing under Professor Ram Jakhu. She is an alumnus of RML National Law University where she pursued B.A, LLB (Hons). She may be reached at upasana.dasgupta@mail.mcgill.ca. The opinion provided here is entirely my personal view.
This piece intends to analyze the recent USA's Executive Order on Use of Space Resources which according to me is an unilateral act and violative of USA's international obligations.
Non-appropriation of outer space and outer space as global commons:
The international law on outer space started emerging as early as in 1957 when the first artificial satellite - Sputnik was launched. When countries did not protest against Sputnik flying over them, they implicitly accepted that the legal regime governing outer space is different from airspace. This is because in airspace, the sovereignty of a country prevails and no country would allow any flight in their airspace, without obtaining permission (which can be in any form). That outer space is governed by a legal regime different from airspace.
The defining principle of the law of outer space is that outer space is free for exploration for all countries. A natural corollary to this principle is outer space is not subject to national appropriation. As early as in 1961, UN GA Resolution 1721 (XVI)was adopted. It provides as follows: "Outer space and celestial bodies are free for exploration and use by all States in conformity with international law and are not subject to national appropriation" The same principle was expanded upon in 1963 by UN GA Resolution 1962 (XVIII) - Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. The 1963 UN GA Resolution provides "outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". The non-appropriation principle was later included in Article 2 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 ("Outer Space Treaty"). The important thing to note here is that Article II of the Outer Space treaty prohibits appropriation by claim of sovereignty, by means of use or occupation, "or by any other means." Thus, any form of appropriation of outer space and celestial bodies by a State Party to the Outer Space Treaty is prohibited under the Outer Space Treaty.
It may be noted that the United States representative to United Nations Committee on the Peaceful Uses of Outer Space meeting in 1969 stated with respect to Article II of the Outer Space Treaty:" The negotiating history of the Treaty shows that the purpose of this provision (article II) was to prohibit a repetition of the race for the acquisition of national sovereignty over overseas territories that developed in the sixteenth, seventeenth, eighteenth and nineteenth centuries. The Treaty makes clear that no user of space may lay claim to, or seek to establish, national sovereignty over outer space." It may also be noted that a look into the negotiating history of the Outer Space Treaty will reveal that the consensus on Articles I and II were reached without much controversy. It may be noted here that the principles of freedom of outer space and non-appropriation of outer space are the longest standing principles of law of outer space and have been recognized as a principle of customary international law that is binding on all countries, irrespective of whether the country is party to the Outer Space Treaty. Thus, outer space is considered as a global commons.
USA's Executive Order on Use of Space Resources:
On April 6, 2020, the USA passed an Executive Order on "Encouraging International Support for the Recovery and Use of Space Resources" which is aimed at encouraging the private entities to "recover and use resources, including water and certain minerals, in outer space". The Executive Order, in some parts, reiterate the unilateral policy of United States to violate some provisions of the Outer Space Treaty, such as the non-appropriation principle. The Executive Order continues on the lines of Title IV of the U.S. Commercial Space Launch Competitiveness Act of 2015. Most relevant provision of the 2015 Act is Section 51303 which reads as follows: "A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including 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." However, as some scholars had noted, the provision stated that space resource extraction shall be in accordance with international obligations of United States and hence, perhaps United States did not wish to violate its international obligations on non-appropriation. The 2020 Executive Order, however, proves otherwise.
The salient features of 2020 Executive Order are as follows:
(a) Bring legal certainty regarding space resource extraction, in order to encourage commercial entities in the USA.
(b) Reiterate that USA is not party to Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 ("Moon Agreement") and state that 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".
(c) It also states that United States object to any claim that "Moon Agreement as reflecting or otherwise expressing customary international law."
(d) The United States does not consider the outer space as global commons, despite the language of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 ("Outer Space Treaty").
(e) Encourage international support for the public and private recovery and use of resources in outer space, consistent with the policy.
It may be noted here that scholars who emphasized on the importance of the Moon Agreement, mostly advocated for countries to ratify the Moon Agreement as the Moon Agreement provides mechanism to establish a common regime for resource extraction.
However, what I find most fascinating is USA denying that the outer space is not a global commons and that there is no restriction on space resource extraction by USA. The pertinent language from the Executive Order is as follows: "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." Thus, the USA clearly intends to violate the non-appropriation principle, which is both enshrined in Outer Space Treaty (to which USA is a party) and customary international law.
Conclusion:
Such unilateral policy by a State has the potential to disturb the delicate balance established by international space law. It may be noted that the 2015 Act of USA was met by opposition internationally, including statements by countries at UNCOPUOS. I believe it is responsibility of every country to evaluate the 2020 USA's Executive Order in respect to international space law. Else, the outer space may end up being prey of human greed and colonization which we have strived to prevent since World War II. Further, such an Executive Order has the potential to prevent future space entities and countries from exploring outer space.
Some References:
(a) Jakhu, Ram S. and Freeland, Steven, The Relationship Between the Outer Space Treaty and Customary International Law (2016). Available at SSRN: https://ssrn.com/abstract=3397145 or http://dx.doi.org/10.2139/ssrn.3397145
(b) https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/
- Upasana Dasgupta
Upasana is a doctoral candidate at the Institute of Air and Space Law, McGill University which she is pursuing under Professor Ram Jakhu. She is an alumnus of RML National Law University where she pursued B.A, LLB (Hons). She may be reached at upasana.dasgupta@mail.mcgill.ca. The opinion provided here is entirely my personal view.
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