New Executive Order Calls for International Agreements for Space Resource Rights, But No New Treaty

President Trump signed a new Executive Order today that clarifies the U.S. position on whether a new treaty should be negotiated to grant rights to space resources like water and minerals mined on the Moon.  The U.S. stance against new treaties is well known, but the Executive Order formalizes it.

The concept of mining the Moon, asteroids and other space objects for precious resources to be used in space or back on Earth has been around for decades.  Perhaps the best known advocate was the late Prof. Gerard O’Neill of Princeton University beginning in the 1970s.  Many others followed in his footsteps.  Today Blue Origin’s Jeff Bezos and United Launch Alliance’s (ULA’s) Tory Bruno are among the most prominent. Bezos’s futuristic vision is to move heavy industry into space and “rezoning” Earth for residential and light industry purposes only.  Bruno, and George Sowers who created a first-in-the-world graduate program in space resources at the Colorado School of Mines after a career at ULA, talk about a self-sustaining cislunar space economy based on mining and utilizing space resources.

The legal status of claims to space resources is unresolved, however.  In a recent speech, Bruno cited legal and regulatory clarity as a critical missing component needed in order to create that off-world economy.

The United States passed a law in 2015, the Commercial Space Launch Competitiveness Act, which grants property rights to resources mined in outer space, but it only applies to U.S. companies. A few other countries also have laws, but there is no international agreement.

These issues often are debated at the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS), the body through which the five existing space treaties were negotiated.  The United States and all the major space-faring countries are signatories to four of them, including the 1967 Outer Space Treaty (OST), the granddaddy of them all.  The last in the series, colloquially called the Moon Agreement, is the one most focused on lunar resources.  Patterned after the Law of Sea Treaty negotiated in the same era, it makes space resources “the common heritage of mankind.” Only 18 countries are signatories to the Moon Agreement, not the United States or the other major space powers.

Today’s Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, makes clear the United States recognizes the OST, but not the Moon Agreement, and supports commercial exploitation of space resources.

Uncertainty regarding the right to recover and use space resources, including the extension of the right to commercial recovery and use of lunar resources … has discouraged some commercial entities from participating in this enterprise. …

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. — Executive Order

The Executive Order directs the Secretary of State to “encourage international support for the public and private recovery and use” of space resources by negotiating joint statements and bilateral and multilateral agreements.

But not a new treaty.  A Senior Administration Official said today that negotiating a treaty is not practical given the many, many years it would take. He acknowledged that some countries prefer a treaty that sets up a “tidy and neat…  transnational authority and license process, whereas we take the view that sovereign states should be the fundamental entity and should have, in fact, control.”

He tied signing of the Executive Order today to last week’s release of NASA’s plan for sustainable lunar operations which envisions significant lunar resource exploration and utilization as part of the Artemis program to return astronauts to the lunar surface.  He added that U.S. officials had planned to discuss the U.S. position with the international community at UNCOPOUS, but the March-April meeting of its Legal Subcommittee as well as the June meeting of the full committee were cancelled because of the coronavirus pandemic.  Their reaction now will come in response to cables sent by the State Department.

Christopher Johnson, Space Law Advisor at the Secure World Foundation, told SpacePolicyOnline.com that while there is little new in the Executive Order, it is “meant to drive a nail in the coffin” of the Moon Agreement and “make sure nobody wants to revive it as a potential model for any governance regime.”  He anticipates that internationally the Executive Order “will be viewed cynically” and the State Department “will have a significant task in allaying tensions amongst international allies, partners, and with the majority of the world which is undecided and cautious on the matter, and significant work in responding to spin and accusals” by certain countries.