Renewed Ambitions in Space-Exploration Lawmaking

By Christopher D. Johnson

On May 30, 2020, Space Exploration Technologies makes reference to the Trump Administration Space Corporation (SpaceX) wowed spectators, confounded Policy Directive 1 of 2017, which set multiple national detractors, and thrilled anxious fans with the first suc- space-exploration goals and established the priority of cessful commercially built and operated launch of the fully leveraging the domestic commercial space sector American astronauts to the International Space Sta- to accomplish these aims.2 tion (ISS) orbiting at around 17,500 miles per hour at However, the main import of the Order is to direct approximately 248 miles above the Earth. Departing and advance the discussion on space resources. To from Launch Pad 39A at the Kennedy Space Center in do this, the Order comments forcefully on the inter- Florida—the same launchpad used by the Apollo and national context surrounding space resources by first Space Shuttle programs—astronauts Bob Behnken and stating that international legal uncertainty exists con- Doug Hurley become the first American astronauts cerning the right to recover and use space resources, launched on American rockets from American soil in including the commercial right to recover and use almost 10 years. This mission ends the almost decade- space resources—in part because of uncertainty sur- long lack of domestic human-launch capability that rounding the 1979 Moon Agreement.3 followed the retirement of the Space Transportation Additionally, while the United States is not a party System (Space Shuttle) in 2011. With this new mission, to the Moon Agreement, it is a party to the 1967 Outer the commercial provisioning and service of human Space Treaty,4 and the Order takes the position that orbital spaceflight has now begun. As with many new differences between those two treaties’ regulation of commercial activities and technological advances, new space resource use create significant uncertainty for laws and regulations follow. any advanced space missions or for any long-term Recent ambitious regulatory initiatives at the national human presence on celestial bodies. and international level demonstrate that, at long last, The Order explicitly rejects the Moon Agreement American lawmaking specifically focused on space as reflecting customary international law; it rejects the exploration and utilization is accelerating. A few recent wider ratification of the Moon Agreement as a desir- notable initiatives in national legislation directed at able way to address legal uncertainty regarding space space exploration and development are detailed below. resources; and it rejects the Moon Agreement as a source for any substantive guidance for any poten- White House Executive Order on Space Resources tial way forward. This strong denunciation is a wise On April 6, 2020, the White House issued Execu- move, as the Moon Agreement (in this author’s opin- tive Order No. 13914, recontextualizing American ion) is truly a poor path forward for current or future commercial space activity within government-led space activities. Written long before space-resources exploration programs and firmly placing the use of utilization was even technologically possible, the space resources within America’s economic sphere.1 Moon Agreement contains untested concepts such as This Order, Encouraging International Support for the Common Heritage of Mankind principle applied the Recovery and Use of Space Resources, takes a bold to the space domain. It also contains articles with position on the access, recovery, possession, use, and overlapping and contradictory clauses that make it right to sell space resources, as well as on how the unclear what a subject of the law can legally do with United States will undertake international engagement space resources. And while a few State delegations on these issues. It proclaims that “Americans should at COPUOS (the United Nations Committee on the have the right to engage in commercial exploration, Peaceful Uses of Outer Space) continually bring up recovery, and use of resources in outer space, consistent with applicable law.” Christopher D. Johnson ([email protected]) is the space law adviser at Secure World Foundation, a private nongovernmental This order will have national and international organization focused on space sustainability. He is an adjunct implications. First, the order reaffirms the importance professor of law at Georgetown University Law Center, where he that the U.S. government places on commercial part- co-teaches the Space Law Seminar, and a faculty member at the International Space University, headquartered in Strasbourg, France. ners for government-led space activities, including Johnson is admitted to practice law in the District of Columbia, New crewed space exploration programs. This reaffirmation York State, England, and Wales.

Published in The Air & Space Lawyer, Volume 33, Number 3, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. the Moon Agreement at each session, the U.S. position The Order also directs the Secretary of State, in the is firm and has remained consistent. The Order states: course of its international engagement (and in con- sultation with the Departments of Commerce and Sec. 2. The Moon Agreement. The United States is Transportation, NASA, and other federal agencies) to not a party to the Moon Agreement. Further, the “take all appropriate actions to encourage international United States does not consider the Moon Agree- support for the public and private recovery and use of ment to be an effective or necessary instrument resources in outer space . . . .” These actions will include to guide nation states regarding the promotion of the negotiation of bilateral and multilateral agreements commercial participation in the long-term explo- with other States around the globe regarding the safe ration, scientific discovery, and use of the Moon, and sustainable recovery and use of space resources.7 Mars, or other celestial bodies. Accordingly, the Following the release of the Order, such international Secretary of State shall object to any attempt by engagement efforts did not take long, as we have now any other state or international organization to seen with the announcement about the Artemis Accords, treat the Moon Agreement as reflecting or other- a NASA-led international space exploration framework. wise expressing customary international law. The Artemis Accords Besides this comprehensive dismissal of the Moon For those not keeping track, the last time anyone set Agreement, the Order also rejects the contention that foot on the surface of the Moon was December 13, outer space, including the Earth’s Moon and other 1972, when NASA Astronaut Gene Cernan (1934– celestial bodies (e.g. Mars, asteroids) or “void” space 2017) climbed aboard the Apollo 17 Lunar Module to itself, is somehow legally a global commons. The return to Earth after three days of lunar exploration. phrase “global commons” is more of an economics con- After almost 50 years, the United States has resolved cept than a term with legal consequence and is rather that it is time to go back. To that end, NASA created difficult to apply to outer space. No source of interna- the Artemis program, its mission being to bring the tional law positively designates any portion of outer first woman and the next man to the surface of the space, or the entirety of outer space itself, as a global Moon by 2024,8 and its name derived from the ancient commons. Additionally, outer space is not on our globe Greek goddess Artemis, the twin sister of Apollo. (it’s . . . in outer space) so logically, how could it be a The Artemis program will be implemented and led “global” commons when it’s not on the globe? Other by NASA with significant international and commercial domains that are sometimes referred to as “global com- partnerships. Traditional space agency partners may mons” include the high seas, the deep seabed, and include the European Space Agency (ESA), the Rus- international airspace. In contrast, Antarctica is referred sian Space Agency (Roscosmos), the Japanese Space to as an “international commons,” as only some partic- Agency (JAXA), the Canadian Space Agency (CSA), ular States share rights and responsibilities there. The and others. Emerging space powers such as Australia, Order’s pronouncement that outer space is not a global New Zealand, Luxembourg, or the United Arab Emir- commons will spark mostly academic refutation, but it ates may also join in. However, as of this writing, no serves to show how strongly this administration feels firm details on partnerships between NASA and other about acting to prevent possible obstacles to national space agencies have been announced. Artemis will also and commercial recovery and use of space resources. fully leverage U.S. commercial space industry capacity, The Executive Order will also have domestic implica- and companies such as SpaceX and a host of others are tions. First, it is rare, and thus precedential, for a White expected to participate. Currently, the plan envisions 37 House to use an Executive Order to address civil space launches and a Moon base beginning in 2028.9 activities and space exploration.5 The Order is also con- Structuring and executing the Artemis program sistent with and expands on previous legislative action, will require international legal agreements between namely the Space Resource Exploration and Utilization NASA and its foreign governmental and space agency Act of 2015, which is the landmark U.S. law on space partners. Artemis’s immediate human-spaceflight pre- resource utilization.6 The 2015 law created definitions decessor, the International Space Station (ISS), was of space resources and established the right for pri- legally structured as a multilateral treaty with sub- vate American entities to access and possess such space sidiary bilateral arrangements between the United resources. The first of its kind anywhere in the world, States and partner nations.10 Artemis will take a differ- this national space legislation governing private com- ent approach. On May 15, 2020, NASA Administrator mercial space resources has influenced similar national James F. Bridenstine gave a presentation on the Arte- lawmaking internationally. Now the Executive Order mis Accords, a set of legal and policy principles for further solidifies and develops the rights of private agreements with other countries about using and commercial space resource access and use. It will be operating in space and fulfilling the Artemis mission.11 received warmly by private commercial space explora- The basic elements of the Artemis Accords appear to tion advocates and actors and their financial backers. be a reiteration of basic principles of the Outer Space

Published in The Air & Space Lawyer, Volume 33, Number 3, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Treaty with some additional progressions and innova- of which might not only encircle the entire Moon but tions.12 The restatements of basic principles include may even leave the Moon permanently. As lunar dust can the exhortation that the Moon be used exclusively for be harder, sharper, and smaller than grains of broken peaceful purposes, as well as obligations concerning glass, dust plumes are a real threat to operations.16 Addi- transparency about national space activities, release of tionally, radio-frequency interference is another potential scientific data to the international community, the inter- threat for surface operations. Consequently, the estab- national registration of space objects, the emergency lishment, maintenance, and observance of safety zones assistance of astronauts, and an understanding that will be necessary for Artemis and other lunar activities. the use of space resources is permissible under exist- ing international space law. These basic elements of Conclusion space law are found in the first 11 articles of the Outer These two initiatives, the White House Executive Order Space Treaty, as well as the 1968 Astronaut Rescue and and the Artemis Accords, demonstrate an energetic and Return Agreement. In turn, the elements of the Artemis proactive stance taken by the United States (whether Accords that offer a progressive development of inter- from the White House, NASA, or Capitol Hill, or on national space law include a requirement that national an interagency basis) to address current and emerg- Artemis partners implement interoperability between ing space activities head on by regulating carefully but actors, the protection of lunar heritage sites, the decon- robustly what needs to be regulated and creating an fliction of lunar activity, and obligations for the removal enabling environment for anticipated governmental, of spacecraft and orbital debris. public-private, and wholly private space activities. The protection of lunar heritage sites (including Lastly, it should be noted that these are not the only American, Soviet, Indian, and Israeli spacecraft) on recent regulatory initiatives affecting users of space the Moon is necessary to preserve and protect those that interested readers may wish to learn about. Other locations as historically significant, precious artifacts recent national regulatory endeavors have addressed of human space exploration. There is even an orga- activities closer to Earth, with new rules focused nization, For All Moonkind, promulgating the legal on space debris. These include the updated Orbital protection of these heritage sites.13 In 2011, NASA Debris Mitigation Standard Practices (ODMSP), which developed guidelines on lunar heritage sites.14 now encompass different orbital regimes and different However, perhaps the most interesting and undevel- categories of small spacecraft.17 The updated ODMSP oped element of the Artemis Accords has to do with might be contrasted with the perhaps more ambitious deconfliction of lunar activities among Artemis part- Report and Order and Notice of Further Rulemaking ners. On the topic of deconfliction, NASA states that on Orbital Debris from the Federal Communica- tions Commission (FCC).18 Both of those documents, [a]voiding harmful interference is an important released in 2019, are aimed at addressing the persis- principle of the Outer Space Treaty which is tent and growing problem of space debris, especially implemented by the Artemis Accords. in light of the growing field of new users to the space domain, including numerous small satellite operators, Specifically, via the Artemis Accords, NASA and and so-called “megaconstellations” of large numbers of partner nations will provide public informa- spacecraft in orbital shells around the Earth. Whether tion regarding the location and general nature of focused closer to Earth or further out, budding space operations which will inform the scale and scope lawyers have plenty to consider. of “Safety Zones.” Endnotes Notification and coordination between partner nations 1. Exec. Order No. 13914 (Apr. 6, 2020), 85 Fed. to respect such safety zones will prevent harmful inter- Reg. 20,381 (Apr. 10, 2020) (“Encouraging Interna- ference, implementing Article IX of the Outer Space tional Support for the Recovery and Use of Space Treaty and reinforcing the principle of due regard.15 Resources”), https://www.federalregister.gov/ Consequently, while national appropriation of space documents/2020/04/10/2020-07800/encouraging-interna- and subparts thereof is impossible under Article II of tional-support-for-the-recovery-and-use-of-space-resources. the Outer Space Treaty, States retain jurisdiction and 2. Space Policy Directive 1: Presidential Memorandum on control over their registered space objects under Article Reinvigorating America’s Human Space Exploration Program VIII, and therefore the concept of “safety zones” appears (Dec. 11, 2017), 82 Fed. Reg. 59,501–02 (Dec. 14, 2017), necessary under Artemis. In reality, given the physical https://spacepolicyonline.com/wp-content/uploads/2017/12/ circumstances of the Moon, safety zones make sense. Space-Policy-Directive-1-in-Fed-Reg.pdf. On average, the horizon of the Moon is only around 1.5 3. Agreement Governing the Activities of States on the miles from any given location (omitting hills, valleys, and Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 craters). Additionally, any takeoffs and landings from the U.N.T.S. 3 [hereinafter Moon Agreement]. Moon will certainly create plumes of lunar dust—some 4. Treaty on Principles Governing the Activities of States