Space Education and Strategic Applications Journal
General Assembly .” 72 The U . S . is adopting a bilateral approach , some would argue they seek to force agreement with the safety zone concept , and its accompanying understanding that entities may stake a claim on the Moon , by dangling the opportunity “ to join in America ’ s Moon mission .” 73
Underlying the differing approaches to implementation of safety zones is the U . S . disavowal of the concept that space is a global commons . This sentiment was first captured in the Commercial Space Launch Competitiveness Act , 74 signed into law by President Obama , that recognizes commercial properly rights in resources extracted from celestial bodies . The Trump Administration punctuated this statement with the 2020 issuance of an Executive Order which makes quite clear that “ the United States does not view [ outer space ] as a global commons ,” but as a “ legally and physically unique domain of human activity .” 75 Moreover , it is incontrovertible that while the Moon Agreement , ratified by only eighteen States , avers that the Moon “ and its natural resources are the common her- itage of [ hu ] mankind ” 76 the much more popular Outer Space Treaty states that “ the exploration and use of outer space ... shall be the province of all [ hu ] mankind .” 77 Many scholarly articles have been written that explore the concept of a global commons 78 and the difference between “ common heritage ” and “ province .” Ultimately , the terms have many connotations , but like the concept of due regard itself , they provide little guidance regarding space resource utilization activity .
Implementing a safety zone regime in space would remove many of the uncertainties in the Outer Space Treaty and eliminate the guesswork in the balancing act presupposed by the concept of due regard . However , the fact is that a bilateral approach , as espoused by the U . S . feels exclusive and , if does not garner widespread adoption , it will leave many sites — both operable and heritage — vulnerable . Similarly , an international effort to address these important issues through the COPUOS will undoubtedly take many years , if not decades to reach conclusion . 79
74 U . S . Commercial Space Launch Competitiveness Act , H . R . 2262 , 114 th Cong . ( 2015 ). 75 Exec . Order No . 13914 , 85 Fed . Reg . 70 ( Apr . 10 , 2020 ). 76 Moon Agreement , supra note 17 , art . 11 . 77 Outer Space Treaty , supra note 6 , art . I .
78 For an excellent review of the concept , see Henry R . Hertzfeld , Brian Weeden & Christopher D . Johnson , How Simple Terms Mislead Us : The Pitfalls of Thinking about Outer Space as a Commons , 58 Proc . Int ' l Inst . Space L . 533 ( 2015 ).
79 It took nine years for delegates to the United Nations Committee on the Peaceful Uses of Outer Space to agree to twenty-one nonbinding guidelines supporting the long-term sustainability of outer space activities and the delegates have yet to agree on even the definition and delimitation of outer space – after decades of consideration .
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