Originally Published 2020-04-13 10:00:07 Published on Apr 13, 2020
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.
Amidst a pandemic, Donald Trump signs order to mine on the moon

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.

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.

The last UN Group of Governmental Experts (GGE) on Prevention of Arms Race in Outer Space is a case in point. With this Executive Order, another line may have been crossed in the increasingly competitive space race.

This commentary originally appeared in The Wire.

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Rajeswari Pillai Rajagopalan

Rajeswari Pillai Rajagopalan

Dr Rajeswari (Raji) Pillai Rajagopalan is the Director of the Centre for Security, Strategy and Technology (CSST) at the Observer Research Foundation, New Delhi.  Dr ...

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