Yesterday, April 6, 2020, the President issued an Executive Order on Encouraging International Support for the Recovery and Use of Space Resources. The order states U.S. policy regarding the recovery and use of resources in outer space, including the Moon and other celestial bodies, and provides guidance to the State Department on how to address such issues in the international arena.
In a press release, Dr. Scott Pace, Deputy Assistant to the President and Executive Secretary of the National Space Council, noted that the order:
reaffirms U.S. support for the 1967 Outer Space Treaty while continuing to reject the 1979 Moon Agreement, which only 17 of the 95 Member States of the United Nations Committee on the Peaceful Uses of Outer Space have ratified in the past four decades. The order further clarifies that the United States does not view outer space as a ‘global commons,’ and it reinforces the 2015 decision by Congress that Americans should have the right to engage in the commercial exploration, recovery, and use of resources in outer space.
The order itself states that uncertainty regarding the right to recover and use space resources has discouraged some commercial entities from investing in such enterprises. Continuing questions about the applicability of the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”) have deepened the uncertainty. The E.O. notes that the United States has neither signed nor ratified the Moon Agreement, and then goes into more detail, while at the same time tasking the State Department with objecting to those who claim the Moon Agreement is customary international law:
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.
The E.O. assigns the State Department one more task: encouraging international support for both the private and public recovery and use of space resources. The Secretary of State has 180 days to report to the President on the results of his efforts.
I’ve seen questions about whether the President may set this guidance by Executive Order. He can. The order creates no new laws, but is instead consistent with Congressional law. We all know from 7th or 8th grade civics classes that Congress writes the laws and the President carries them out. We may also remember that in 2015 Congress passed a law recognizing a U.S. person’s rights in resources he might extract from outer space, including from celestial bodes such as the Moon:
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.
Congress having explicitly recognized a U.S. citizen’s rights in extracted resources, and Congress having urged the President to promote those rights, the E.O. appears appropriate. Here, the President is using an executive order to provide his agencies guidance on how to interpret the law and carry out Congress’ wishes.
Agreed, on the surface. My only wish is that the wording could have been just a tad more oriented to saying the exact same thing, but in a way targeted to not unnecessarily worry other nations about our intentions.
I’ve already had to explain on forums like Twitter et al to other nationals that this EO is really the logical extension of a set of laws and policies that have, in reality, been many years (and several Administrations) in the making; particularly when it comes to enhancing the private sector, expanding use of public private partnerships,; and is totally consistent with the 2015 law that Obama signed, etc.
The problem is two fold:
1. a simple reading can honestly give, to non-Americans, the impression that American policy believes international forums should enhance American private sector activities ONLY. I’ve already run into that. Just a few simple word usage changes could have avoided this.
2. We in the pro-space development community need to stop being naive in pretending that the messenger of good policy doesn’t matter; it does. The worst, least trusted American Administration since America was founded – that’s not an opinion; all international polling shows this- automatically leads the entire rest of the world to assume automatic ill intentions with any interpretation that is applied to policy statements released. That simply wasn’t true with past Administrations; but it is now. And it was incumbent on the NSpC staff to have the maturity to understand that & to put forward especially vetted verbiage that both met the same intent as we have here but that is also less susceptible to the very, very, very understandable likelihood that any policy was guaranteed to be given zero benefit of the doubt.
I only read what Laura has posted here but as I did I thought that it nearly seemed to be a direction to our State Department to be supportive of other nation’s efforts in space, not any sort of inhibition of them.
And, frankly, the words don’t change the messenger so if the messenger is the problem the words won’t fix it. Can’t fix it.
I’m sort of tired of treating other nations like children who can’t figure out what’s going on past their emotional reactions to Trump.