Executive Orders and Artemis Accords – Considerations for Canada

The NASA Artemis Accords. Credit: NASA.

The United States government has recently announced two major proclamations in relation to their current and future space exploration program and has requested prospective international partners, including Canada, to effectively embrace these declarations if they wish to join the U.S. program.

Since Canada’s space endeavours are closely aligned with those of our southern neighbour, how this country responds to these approaches may have a significant impact on the future development of our national space program, our long-standing position as a respected, independent voice in relation to global space diplomacy and our relationship with the U.S. even beyond space concerns.

In this three-part series, we will provide a background on these two pronouncements and then give some thoughts as to what they mean for Canada, as well as some of the issues that should be considered, as the Government of Canada negotiates agreements with prospective partners in relation to its space exploration program.

If outer space is not a global commons, what is it?

David Kendall

The first of these initiatives is an Executive Order (EO) issued by the U.S. President on “Encouraging International Support for the Recovery and Use of Space Resources,” dated 6 April 2020.  As several commentators have noted, this EO does not break any new ground since the ideas contained therein have been publicly stated by various officials associated with the U.S. government in the past. 

It does, however, provide these previous statements with a prominent level of backing within the U.S. legal and political system, and, in addition, requests that the Secretary of State “take all appropriate actions to encourage international support” for the EO’s major thrust that deals with legitimizing the public and private recovery and use of resources in outer space. 

Related: Are the Artemis Accords the path forward?

Fundamentally, the EO reiterates the position of the United States government, as formalized in the 2015 Commercial Space Launch Competitiveness Act, in providing a legal foundation permitting U.S. citizens, and by inference U.S. commercial and government entities, to recover resources from celestial bodies and use those resources for whatever means they so wish within applicable U.S. law. 

At the time of its release, this unilateral legislation was exceptionally controversial and elicited very strong positions and statements for and against from a wide cross-section of commentators.  Over the past five years, however, the view that the collection and utilization of resources in outer space are fundamental to the successful and sustainable development of human activity away from our home planet is, for the most part, acknowledged.

It is also generally accepted that nations that lead such ventures will work with commercial, for-profit corporations that will be an important partner in order to share costs, accept some of the risk, and develop a viable program for the future.  Furthermore, it is generally accepted that such space resource exploitation will need to be formalized within a new, widely-accepted, multinational, regulatory framework as further elucidated below.  

The Executive Order is mute about how the recovery and use of space resources should be governed except to note that the United States has “joined,” and therefore intends to abide by the provisions of, the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies; a.k.a., the Outer Space Treaty (OST).

While this is important in that it reaffirms the intent of the U.S. to abide by Article II of the OST that prohibits “national appropriation” of outer space, including the Moon and other celestial bodies, “by claim of sovereignty, by means of use or occupation, or by any other means,” it remains silent on how potential disagreements or disputes would be resolved. 

One clear example of a possible area of contention relates to “camping rights” whereby the citizens of two countries, working under their own national regulations pertaining to space resources, develop the means to pursue similar or identical aims at similar or identical locations on a particular solar system body as permitted by the “free access” clause under Article I of the OST. 

This could become a very realistic issue if it turns out that certain limited regions of the moon, for example, contain valuable and/or unique materials or if a particularly auspicious asteroid in a favourable orbit is found to have relatively easily recoverable prized minerals.

This lack of clarity on the part of the U.S. as to how it intends to develop a common understanding with other nations or blocs of nations is an area that should concern Canada as it negotiates statements and/or arrangements in relation to this order.

Furthermore, if Canada agrees with the statement that citizens “should have the right to engage in commercial exploration, recovery, and use of outer space, consistent with applicable law,” and signs onto an arrangement regarding the “safe and sustainable operations for the public and private recovery and use of space resources,” will such an agreement implicitly mean that the government has decided that Canadians will also have these rights without a broader national discussion or international dialogue on this topic, a position that might be out of synchronization with other allies and partners with whom we intend to pursue future space exploration activities?

A second, and in some sense more curious, issue in relation to the Executive Order is the rejection of the concept of outer space being a “global commons.” While there is no legal agreement on the term it is “typically used to describe international, supranational, and global resource domains in which common-pool resources are found. Global commons include the earth’s shared natural resources, such as the high oceans, the atmosphere and outer space and the Antarctic in particular” as defined in Wikipedia.

This statement raises the immediate question – if outer space is not a global commons, what is it?

Scott Pace, the Executive Secretary of the U.S. National Space Council, has stated that outer space is a “legally and physically unique domain of human activity.” What is missing is the word “shared” before “domain,” presumably intentionally. Even this clarification fails to differentiate outer space from the high oceans, the atmosphere or Antarctica, all of which could also be identically so described. And why is this issue being raised now since global rules define how states can operate in these other domains, including supporting commercial activity; rules that have been carefully negotiated and are globally accepted?

As noted in an article by P.J. Blount & anon, the U.S. has been using the concept of global commons, both in terms of a description of the high seas and of outer space, for some time; thus, why the sudden change and for what reason? Herein lies another area that Canada, in its negotiations with the U.S. State Department, should pay particular attention to. Does Canada wish to align itself with the statement that outer space is not a global commons contrary to the opinion of prominent legal experts in Canada as well as international partners?

In part 2 of this series, we will examine the Artemis Accords and what these might mean for Canada’s space exploration program.

Editors note: Part 2 will be available Wednesday, June 10.

Contributed by: David Kendall, former Director General of Space Science and Technology, Canadian Space Agency; former Chairman of the United Nations Committee on the Peaceful Uses of Outer Space; co-founder of the Outer Space Institute; faculty member, International Space University.

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