My Perspective On US Space Resources Executive Order: Raji Rajagopalan On The EO’s First Mover Advantage - SpaceWatch Global, April 15, 2020

Recently, I did a Q&A with the SpaceWatch Global on the US Space Resources Executive Order.

On 6 April 2020, US President Donald J. Trump signed an Executive Order (EO) on Encouraging International Support for the Recovery and Use of Space Resources. This order addresses US policy regarding the recovery and use of resources in outer space, including the Moon and other celestial bodies. Over the next few weeks, SpaceWatch.Global will publish a range of perspectives supporting and opposing the EO from experts around the world. Today’s two expert perspectives come from Rajeswari Rajagopalan of India (below) and Professor Guoyu Wang of China.

For the full Q&A, click here.



In your opinion, what is the underlying strategic and economic rationale for President Trump’s Executive Order?

The possible underlying economic and strategic rationale is to gain the first mover advantage. While the US and other western space players talk about space mining and resource extraction, China has been making progress. Whether the resource is being extracted for bringing it back to Earth or for making the Moon as the base for more ambitious plans to go to Mars, the technological benefits through spinoffs from such activities are significant. The US clearly does not want to let China gain any unilateral advantage.

The Executive Order explicitly rejects the 1979 Moon Agreement. How do you think this will be received by other countries, particularly other major space powers?

Rejection of the 1979 Moon Agreement is not a surprise because very few countries have signed and ratified it. What is surprising in the Executive Order is the explicit rejection of the idea of outer space as a global commons. Even though the suspicion was that this was how the United States (and others) viewed it, openly saying so in the EO is unusual. For that matter, even other spacefaring powers have had similar attitudes towards space because if space is truly a ‘global commons’, it would prevent other states also from activities such as resource mining in space. And this is possibly the reason why all the major spacefaring powers including the US, Russia, China, Japan and many in Europe have not signed the Moon Treaty. India is among the handful of space powers that is a signatory to it although it has not ratified it.

Similarly, the Executive Order explicitly rejects the view that space is a Global Commons. What, in your opinion, is the policy rationale behind this claim and, again, how do you think this will be received by other countries?

It is correct that this is not the first US administration to hold this view. But equally, other countries also hold such views, though they have not been as explicit about it. Trump’s action, however, might be indicator that competition for resources in space is likely to accelerate because others countries are likely to see this as reason to speed up their programs.

In your view, how likely will this Executive Order “encourage international support for the public and private recovery and use of resources in outer space…?”

Trump’s approach on setting up a base camp on the Moon has already seen many countries supporting it. I would assume these players including the UAE, Luxembourg and Canada, Australia, would find a way of supporting this idea as well.

Hypothetically assuming that this Executive Order leads to international support, will it make the prospect of commercial space resource extraction closer to reality?

It might lead to international collaboration. But I wrote an Op-Ed where I raised some of the complications of this. For example, how would national courts arbitrate any disputes unless these are subject to national sovereignty? If this is beyond national courts, how can disputes between parties engaging in such activities be resolved? Unless these legal issues are resolved, technical advances cannot by itself ensure resource extraction from space.

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.

For the full post, click here.

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.

If Space is ‘the Province of Mankind’, Who Owns its Resources? - ORF Occasional Paper, January 2019

My first substantial publication for the year is on space mining, examining the legal angles to this emerging issue. Senjuti Mallick and I have co-authored an ORF Occasional Paper titled, "If Space is ‘the Province of Mankind’, Who Owns its Resources?: An Examination of the Potential of Space Mining and its Legal Implications," where we analyse the rationale for extraterrestrial mining, as well as the efforts and responses of various countries—i.e, USA, Luxembourg, Russia, China and India. In examining the legal and governance basis for States and commercial players, this paper appreciates the economic benefits of space mining but argues against the national legislations legalising extraterrestrial appropriation of resources due to inconsistency with international treaties and customary international law. It further argues that the concept of “common heritage of mankind” is defeated in the light of such legal frameworks. The paper ponders the global governance challenges brought about by space mining activities and suggests legal, policy and global frameworks for realising the benefits of commercial mining without creating disparity between nations and disrupting dynamics of the world economy.

INTRODUCTION
June 2018 marked the golden jubilee of the first United Nations (UN) Conference on the Exploration and Peaceful Uses of Outer Space, held in
Vienna in 1968. It also marked 51 years of the Outer Space Treaty (OST) of 1967. Today, what was once fodder for cosmological science fiction
has become reality, owing to outer-space innovations that have happened in the last half a century. Unlike the lunar missions of the past,
contemporary explorations are led mostly by private-sector entities eager to capitalise on the potential of extracting resources in outer space.
How plausible is extraterrestrial mining—is it a long-term proposition or more of a fantasy? And what challenges are facing those engaged in
space mining?

Soon after a bill was signed increasing the 2018 budget for NASA (the US’ National Aeronautics and Space Administration), Senator Ted Cruz said, “I’ll make a prediction right now—the first trillionaire will be made in space.” The question is, however, how those trillionaires will make their riches from space. Both Peter Diamandis (founder of the Google Lunar XPrize competition) and Neil deGrasse Tyson (US astrophysicist) suggest that the financial returns are to be made from mining/ asteroids.

Indeed, the economic imperative for space mining is evident and analysts predict that these extraction activities could translate to a multibillion-dollar industry. NASA estimates, for example, that the value of asteroids out there could be in the vicinity of US$700 quintillion – that amount is roughly equivalent to US$95 billion for each of us here on Earth. Another major attraction for the prospective extraterrestrial mining companies is the availability of precious minerals in abundance on the Moon, on Mars and the asteroids (among them—lithium, cobalt,
nickel, copper, zinc, niobium, molybdenum, lanthanum, europium, tungsten, and gold). After all, these metals and mineral resources have
grown scarce on Earth, and both governments and commercial actors are pushing to look to celestial bodies for resources.

This paper examines the legal and governance basis for States and commercial players to undertake space mining activities. It does not,
however, cover the technical aspects of space mining; that is a separate field by itself. The first section discusses the rationale for different stakeholders in undertaking extraterrestrial mining. So far, the countries most eager and making the most active preparations for space mining are the US and—surprisingly, as it has not been typically a spacefaring nation—Luxembourg. This section will detail these efforts as well as those of other countries planning to follow the path being paved by these two. The second section then examines the legal basis for space mining, covering provisions of national and international law. The subsequent section looks at the global policy discourse responses from other governments to proposals and preparations for space mining, primarily Russia and China. The paper concludes by summarising the global
governance challenges that are brought about by space mining activities.

For the full paper, please click here.



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