Amidst a Pandemic, Donald Trump Signs Order to Mine on the Moon - The Wire, 12 April 2020

I write for The Wire on US President Trump's Executive Order to mine on the Moon. On the anniversary of Yuri Gagarin's (and humankind's) first journey into space, the US Executive Order, stipulating that Americans should have the right use the resources of space, rings outrageous.

In the midst of the global pandemic crisis, US President Donald Trump has found time to sign an Executive Order charting out a new US policy on recovery and use of resources on the Moon, including water and minerals.

Despite the pandemic, the move has received global attention, much of it critical. But there are also some seeking to partner with the US on lunar exploration.

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The Executive Order reads that 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.”

The US seeking “the right to engage in commercial exploration, recovery, and use of resources in outer space” is possibly in line with international law. Nevertheless, it is controversial because it is unclear who other than national courts could enforce any mining rights, and national courts, in turn, cannot do so without exercising sovereign rights, as lawyers have pointed out.

But the explicit assertion that outer space will not be considered as part of global commons is new.

Space powers have generally been uncomfortable with idea of space as a global common because this was thought to preclude mining and extracting resources from space.

This was a major reason why the US and many other spacefaring nations such as the Soviet Union/Russia, China and Japan and even many of the countries making up the European space consortium refused to sign the Moon treaty. India is the only space power that has signed the treaty, though New Delhi has not yet ratified it.

Following the Executive Order, Dr. Scott Pace, Deputy Assistant to the President and Executive Secretary of the National Space Council, stated in a press statement that as the US “prepares to return humans to the Moon and journey on to Mars, this Executive Order establishes US policy toward the recovery and use of space resources, such as water and certain minerals, in order to encourage the commercial development of space.”

He went on to add that “the order reaffirms US 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.”

He also pointed out that the Executive Order “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.”

This Executive Order needs to be seen in the light of this 2015 US legislation that Dr. Pace referenced, the “Commercial Space Launch Competitiveness Act of 2015”, signed into law by President Barack Obama, which permits American companies to extract space resources.

A second document that relates to the Executive Order is the NASA’s Artemis lunar exploration programme. Last week, NASA came out with a report, the Plan for Sustained Lunar Exploration and Development, which outlines plans for long-term space exploration. The reports details plans for the next several years which includes humans returning to the Moon and a mission thereafter to “also emplacing and building the infrastructure, systems, and robotic missions that can enable a sustained lunar surface presence.” In order to do this, NASA wants to “develop Artemis Base Camp at the South Pole of the Moon.”

On the lunar exploration for water and other minerals, a White House space adviser is reported to have told the media that “it was important to clarify what US policy was toward the Moon Agreement and then lay out a more positive vision going forward.” Section 2 of the Executive Order talks about the Moon Agreement, saying that the US is not a party to the Agreement; and that the US does not believe “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.”

Trump has further directed the Secretary of State to oppose to any state or multilateral organisation that would consider the Moon Agreement as customary international law.

The other aspect that is emphasised in the Executive Order is the US seeking collaboration with like-minded partners. To this end, Trump has directed the Secretary of State to work out bilateral and multilateral statements of intent and arrangements “regarding safe and sustainable operations for the public and private recovery and use of space resources.”

The president has sought action on this within 180 days. It remains unclear what happens to the body of work done by The Hague Space Resources Governance Working Group which has been working to develop a legal framework for the use of space resources found on asteroids and other celestial bodies.

While most spacefaring countries are yet to make a formal response to the Executive Order, deputy head of Russian Roscosmos in charge of international cooperation is reported to have said that Trump’s Executive Order is “comparable” to colonialism. The Roscosmos has stated that “Attempts to expropriate outer space and aggressive plans to actually seize territories of other planets hardly set the countries (on course for) fruitful cooperation.” The Kremlin is also reported to have remarked that “any colonization of space would be ‘unacceptable’.”

The US is not the only country that has plans for the Moon and other celestial bodies. China has ambitious plans in this regard too. A few years ago, Ye Peijian, chief commander and designer of China’s lunar exploration programme stated that China would send the first batch of asteroid exploration spacecraft around 2020.

Ye added that “many of the asteroids near the Earth contain high concentrations of precious metals,” which could rationalise the huge cost and risks involved in these activities. He estimated their economic value to be in the trillions of US dollars.

Despite its criticism of the US move, Russia is not lagging behind when it comes to asteroid mining and other space exploration plans either. Russia plans to have a permanent base on the Moon somewhere after 2025 for possible extraction of Helium. In the mid-2000s, Russia had said that it will have a lunar base between 2015 and 2025. These plans appear to have been delayed because of domestic difficulties. Additionally, both Russia and China are also planning to team up, contributing science payloads to their respective Luna-26 and Chang’e-7 spacecraft sometime in the 2020s. They also plan to establish a joint lunar and deep space data centre with hubs in both the countries.

Given the changing balance of power dynamics, the outer space domain is once again becoming a victim to great power competition and rivalry.

To minimise the harmful impact of this competition and to establish certain amount of predictability in outer space affairs, there have been several efforts to develop certain global rules of the road. But these efforts have not made any progress.

Managing New Actors in the Space Domain - The Diplomat, June 29, 2019

In this week's column for The Diplomat, I looked at the new actors in outer space and what it means for the global governance and space sustainability issues. I argue new entrants in the Indo-Pacific offer both opportunities and challenges for the outer space realm.

New actors in space is a tricky idea to define. Is it determined by the number of years a player has been in the space business, or something more nuanced? If one is talking about industry and the commercial sector, it is relatively easy to categorize and identify who is a new actor in space. But when it comes to states, what determines who is a new space actor is slightly more problematic.

Surely, those emerging states that are pursuing space programs can be called new actors in space. Nevertheless, one must push the envelope further to look at who the traditional players are, and these are the United States, Russia, and Europe. Therefore, even countries like India and China and others who have pursued space programs for a few decades now can be called new actors in space. This is the case because one is beginning to see new facets of their space programs which are affecting space security and sustainability dynamics.

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But the space domain is changing. It is not just the presence of new start-up companies that are altering the space landscape, but there are any number of new state actors that are pursuing space programs for a number of different functions and utilities. This has been possible because there has been certain amount of democratization of space with access to space becoming a lot more affordable. Costs are coming down, technological hurdles are lower, and new space collaboration and partnerships driven by geopolitical goals are introducing new players in space. These make it possible for a growing number of actors to pursue space programs. Many states in Africa, Latin America, and particularly Asia are pursuing space programs for a variety of different utilities including for national security applications.

Entry of new actors in space bring both opportunities and challenges. On the opportunity side, space has become more accessible to a large number of states due to innovation in technology and dilution of certain global export control regulations. The development benefits alone of this are huge. There is a great opportunity here, for both private sector and for others, to collaborate with these new actors because they are looking for efficient, cheap, flexible solutions (such as in communications, or in weather forecasting or in remote-sensing applications for land use etc) rather than simply prestige projects.

New private actors bring new energy, new ideas, possibly a more efficient way of doing things. Of course, when private corporations get involved, some part of the social needs that governments focus on can be lost, obviously, since private actors are less likely to focus on development issues or on non-profit ventures. Even here, though, we need to acknowledge the general contribution made by these new entities in terms of the technologies they develop, which will have a broader impact, and make space more accessible.

Also, it is important to see what kind of partnerships can be fostered to make space accessible to all. Partnerships between private sector and national programs will be a good burden-sharing arrangement. This kind of public-private sector partnership has worked in the Western context with a lot more ease, but in the Asian context, it has not been easy. We see a bit of it, but established government space agencies tend to be suspicious of new private actors, such as in India. Another problem might be the kind of areas that private sector is involved, whether there are only areas servicing expensive, well-heeled customers (such as space tourism) or whether they are also looking at things that benefit smaller, poorer countries.

The entry of new actors in space has brought certain risks as well. One major risk is related to the impact on norms of behavior. With more actors in space, there has been a dilution of some of the existing norms and the new players appear to be less willing to play by rules developed by others. For instance, the norm of not testing anti-satellite (ASAT) missiles that prevailed for decades appear to be weakening. More importantly, the norm of not interfering in each other’s space assets appear to be getting diluted even further with the growth in cyber and electronic warfare in outer space.

The established players who have shaped these norms appear less likely to break those norms as compared to new players who are less bound by them. Newer players possibly assume that these norms are a way of restricting their growth and therefore they are less likely to play by them. Additionally, the spread of technology and geopolitical competition have aided this dilution of norms.

Therefore, as new players emerge in space, one of the critical areas to focus on is to strengthen the rules of the road, in a number of different ways. These could include establishing or reinforcing norms of responsible behavior, developing TCBMs and codes of conduct. These are the required first steps before establishing legal mechanisms because of the political difficulties that have come in the way of making new legal frameworks for outer space.

Rule-making was an easier exercise when there were fewer actors, obviously. Today, with close to 80 actors including non-state and new actors in space, finding an agreement and developing consensus has become a significant challenge. Finding an avenue to bring in the commercial voice is also important but traditional venues such as the Conference on Disarmament (CD), where space security and arms control issues are debated, are opposed to the introduction of commercial players as a stakeholder in their debates. This is not to suggest that commercial perspectives cannot be brought in through governments. But involving commercial players as independent actors in CD-like venues is not likely to happen in the near future.

Clearly, politics in outer space is getting complicated. It needs far more concerted attention than it has received. It may not be too late yet, but time is running out.