17 April 2020 Input for the newsletter SpaceWatchGlobal on the U.S. Executive Order on Encouraging International Support for the Recovery and Use of Space Resources of 6 April 2020
The Executive Order states that the U.S. will conduct its activities “consistent with applicable law”. The U.S. Government has repeatedly confirmed its dedication to the rule of law in outer space. This is a positive commitment.Amongst the applicable, binding law, relevant to the recovery and use of space resources is Art. II of the 1967 Outer Space Treaty: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”. No single State, or groups of States, can create norms and practices in conflict with this provision. Any activity of any State, which is not in accordance with this provision is in contradiction to binding international law. An authoritative interpretation of this and other relevant provisions of the Outer Space Treaty can only be undertaken by the entirety of the States Parties to the treaty. Any new provisions for binding international space law have so far only emanated from global international negotiations in global forums as the United Nations Committee on the Peaceful Uses of Outer Space, reporting to the UN General Assembly, or from the International Telecommunications Union.Concerning the Moon Agreement, which has been adopted by unanimity in the UN General Assembly in 1979, there has been a development of slow but continuous increase of parties to this agreement also due to continuous exchanges in UNCOPUOS and the experience with the Deep Seabed Mining regime of the Law of the Sea.In the past decades, international law of the “global commons” has maintained the understanding that a “first-come-first served” should be avoided in view of a responsible and sustainable use open for all, including the late comers. Space exploration and use has so far been governed by these principles and the rule of law in general. This should be conserved for the benefit of all, today and also in the future. Kai-Uwe Schrogl is the President of the International Institute of Space Law (IISL) which is the global association of space lawyers from almost 50 countries. From 2014-2016 he was the Chairman of the UNCOPUOS Legal Subcommittee. Please see here for the link to the newsletter.