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Trump’s space order shows why the Outer Space Treaty must go
In mid-December, the White House released an executive order establishing the second Trump administration’s space policy. In the order, the president outlines a policy to “secure the Nation’s vital economic and security interests” and “unleash commercial development” in the stars.Mastery over space and its riches will go to the nations able to pursue their interests within that domain and defend them.The order follows on the Department of Energy’s “first-ever government purchase of a natural resource from space” last May. If successful, the procurement of lunar helium-3 by 2029 promises to be the first nugget in a 21st-century gold rush. With the value of the isotope reaching $20 million per kilogram by some estimates, prospecting and settlement of the final frontier — a goal of President Trump’s order — might soon follow.Withdrawing from the Outer Space Treaty might help secure that frontier for Americans. Ratified by the Senate in 1967, the treaty was born of the Cold War. After the Soviet Union launched Sputnik in 1957, the global community focused on how to prevent pre-existing terrestrial tensions from spilling over into space.Inspired by the scientific cooperation displayed during the 1957-58 International Geophysical Year, the U.N. Ad Hoc Committee on the Peaceful Uses of Outer Space believed that a precedent of peaceful coexistence had been set in the cosmos and did not prioritize “problems relating to the settlement and exploitation of celestial bodies.” After all, Yuri Gagarin had not yet completed his maiden orbit, nor had Neil Armstrong made his “small step.”The final treaty preserved that oversight. Inspired by the 1959 Antarctic Treaty, the OST proscribed claims of sovereignty (Article II) and banned WMDs in outer space and military activities on celestial bodies (Article IV). It remained an open question how international law would govern settlement and exploitation and keep it peaceful.As the Cold War has given way to new tensions between the United States, Russia, and China, the realms of space have remained anything but “realms of peace.”Even before the OST, the superpowers developed anti-satellite weapons. Such innovation has not slowed. The vice Chief of space operations even testified to Chinese weapons systems that can conduct “dogfighting” in orbit. Notwithstanding Russia’s status as a party to the treaty, the American people experienced an anxious evening in 2024 when intelligence revealed that Russia may be developing a nuclear-armed electromagnetic pulse system in orbit.Americans, both in and out of uniform, rely on the military satellites that form the Global Positioning System. How might American or allied forces fare against a near-peer adversary if even a portion of GPS satellites are out of action?The first Trump administration did not shy away from the stars, establishing the Space Force. Nonetheless, China has responded in kind with an “aerospace force” of its own. A new space race has begun, and the stakes are perhaps higher than they were during the Cold War.Unlike in the mid-20th century, the settlement and exploitation of the cosmos are now within sight. The moon is rife with rare-earths and terrestrially scarce helium-3, which might unlock the challenges of nuclear fusion and quantum computation. Accordingly, China and Russia are racing back to the moon.It is clear that the current legal framework for space neither admits of sovereignty nor effectively constrains adversaries. Yet mastery over space and its riches will go to the nations able to pursue their interests within that domain and defend them. Will America be able to?Withdrawing from the OST would clear the chief international hurdle to exercising sovereignty over celestial bodies, which have cost American lives and capital to survey. Absent Article IV, the United States would be able to develop systems to defend the nation’s interests off-Earth in response to adversarial threats. Mike Solana may see his dream become reality.A pathway to defensible sovereignty over celestial bodies would set the legal conditions for a true American space economy. Territorial ownership in the cosmos would build on the Commercial Space Launch Competitiveness Act of 2015, which allowed private entities to recover and sell astral treasures. The government would have the authority to order the coming lunar helium and asteroid gold rush with a usage scheme similar to that governing federal lands. Finally, private space operators would know they have a right to mine and keep what they mine — with the legal fallback of the state.The second-order benefits from such policies would flow back down to Earth. Extraterrestrial mineral leases could generate government revenues, and space-based securities could launch a new financial industry. The increased commercialization of the cosmos may finally make off-Earth settlement profitable at scale, inspiring figurative and literal pioneers.Leaving the OST might inspire America’s adversaries to do the same. However, withdrawal would let the United States treat space as a legitimate arena for applying national power, as China has done. It would be a proportional response to nations that have acted as if the treaty did not exist. Exiting would enable the U.S. to legally and openly develop the same capabilities as its adversaries, mitigating the chances of conflict. Leaving the OST might very well restore strategic balance.There are few better motivations for the pursuit of peace than the promise of profit. As Russia and China pursue their national commercial interests in space, the risk of disruption to billion-dollar development projects would disincentivize expansionist or militarist aggression. The same risk would also motivate former parties to the treaty to prevent environmental contamination. Even amid tension, space powers should recognize mutual self-interest, such as in preserving the rescue-and-aid guarantees of the treaty or establishing exclusive economic zone-style areas on shared celestial bodies.RELATED: What’s Greenland to us? Photo by Leon Neal/Getty ImagesFundamentally, some measure of competition is good. The new contest over space could ignite a worldwide flood of passion for exploration. That race to the stars (with winners) would be more honest than the original “carried out … in the interests of all countries.” To date, only five countries have ever landed on the Moon.Fortunately, the logistics of withdrawal itself are far from a moon shot.Article XVI of the Outer Space Treaty empowers the president to provide one year’s notice of withdrawal. Judicial delay would be unlikely. In Goldwater v. Carter, the Supreme Court found that presidential termination of a ratified treaty was a “nonjusticiable political dispute.” For precedent, the White House can look to President Bush’s withdrawal from the Anti-Ballistic Missile Treaty: Congress and the courts did not object.Shipments of cosmic resources for epoch-making technologies are on their way. President Trump seeks a return to the moon by 2028, with “a permanent lunar outpost” and “economic development” to follow. America cannot turn its back on the spacefaring future, and aging international and national law must adapt before our adversaries arrive. Only then may America trade the title of “aerospace republic” for a simpler one: “space republic.”Editor’s note: This article was originally published at the American Mind.
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