 Harvesting resources from the Moon or other bodies raises questions about how those activities can and should be governed. (credit: ESA) |
Space Resources 2024: In search of the Grand Bargain
by Dennis O’Brien
Monday, June 3, 2024
The United Nations sponsored two meetings of space resource experts this spring, one in Luxembourg in March and the other in Vienna in April. The meetings were part of public outreach by the new Working Group on the Legal Aspects of Space Resource Activity (Working Group), created by the UN Committee on the Peaceful Uses of Outer Space (COPUOS). The experts were selected by the member states of COPUOS. Although there was a wide spectrum of opinion on many topics, the possibility of an agreement still seems within reach, a grand bargain that will support the private sector while protecting essential public policies.
The Working Group was formed in 2022 and given a five-year mandate, including the development of possible “additional international governance instruments.” It set five topics to be discussed at the Expert Meetings:
- Implications of the legal framework for space resource activities (SRA);
- Role of governance, including information-sharing, in supporting SRA;
- The scope of future SRA;
- Environmental and socioeconomic aspects of SRA;
- International cooperation in scientific research and technological development of SRA.
The first two were the focus of the sessions in Vienna and the last three in Luxembourg. However, there was much overlap. Rather than summarizing the views of each expert as presented, this report will instead paraphrase and group them by relevant topics, describing the diverse spectrum of interests, highlighting new ideas and approaches, and suggesting a potential agreement that would address the concerns of all.
1. Overall policy considerations
These are complicated times (global tensions, Ukraine). Outer space offers an opportunity to collaborate beyond our divisions. Resource cooperation can bring us together. International cooperation is a priority, based on our shared values and common interests. We must develop ethics that promote peace, safety, and sustainability.
Space resources activities have a global impact, are not confined to a single nation. They must be peaceful, benefit all, and improve human well-being. The issues are complex, interdisciplinary, and interlinked, but ultimately such activities must be responsible, sustainable, and equitable.
Although building on our common interests is important, some also spoke of the need to address our competing interests: Must protect interests. Balance competing interests. Balancing interests—the key to opening the lock.
2. Current status of space resources governance
There was consensus that the Outer Space Treaty of 1967 (OST) is the foundation of current international space governance, a binding agreement that has been adopted by all countries active in outer space. The articles mentioned most: Art. I (free access, nondiscrimination, benefit/interests of all countries, compliance with international law); Art. II (nonappropriation); Art. VI (compliance by nationals, including private); Art. IX (due regard, avoid harmful interference and contamination); Art. XI (share information).
The Outer Space Treaty incorporates related principles of international law. It supports science but is silent or vague concerning space resource activities. There is an absence of a legal framework for resources. OST Art. VI requires compliance in all national activities, public or private; national obligations are private obligations. OST Art. IX: due regard, respect interests of all member states, regime of consultation. There is good language in the Moon Agreement (MA), especially Article 4 (benefit all, due regard for “interests of present and future generations”)
But there were differing opinions about the inherent nature of outer space:
Outer space is a global commons. Outer space is not a commons. Outer space is a common-pool resource. Outer space is an area beyond national jurisdiction, as used in Biodiversity of Areas Beyond National Jurisdiction Treaty [aka BBNJ Treaty, aka High Seas Treaty]. The “Common Heritage of Mankind” is a political term and does not have a fixed legal definition.
Regional agreements are valid, helpful (e.g., Artemis Accords). National laws are part of the legal framework: Luxembourg in 2016 (a small country). Japan’s Space Resources Act of 2021 requires license and publication of activities (e.g., ispace). [Also USA 2015, UAE 2023] [There is a difference of opinion on the extension of national laws beyond a country’s jurisdiction.]
The International Telecommunication Union (ITU) is already providing governance of space resources (orbital slots and frequencies). ITU is a specific, successful legal regime, and thus a possible model. It promotes rational, economic, efficient, equitable utilization. Art. 42 protects equitable access and preserves resources for future use. [Note: the ITU is now considering expanding its governance to the Moon and cislunar space.]
3. The scope of future space resource activity/governance and process
What is a space resource? Anything that can bring benefit to others. Minerials/materials (including regolith, water), locations/territory (including “peaks of eternal sunlight”). Orbital resources such as slots and frequencies. Earth observations (imaging/data) are a resource, especially for developing countries.
Distinguish between types of resource mining, e.g., in situ resource utilization (ISRU) (e.g., materials used for base building and exploration) versus “reserve” mining for sale on Earth and other locations. Different governance is needed for different types of resource activity. Asteroid mining is likely reserve mining.
COPUOS process essential for creating new framework. Use COPUOS Space Resources Working Group. Different rules for different phases? Similar process to Moon Agreement Art. 11. OST Art. IX consultation process? Call to action: start drafting immediately. [Note: The Moon Agreement calls for review of resource governance every 10 years.]
4. Science and technology; sharing information
The greatest crossover of expert opinions occurred between the topics of information sharing and scientific and technological cooperation. The general opinion seemed to be that scientific discoveries, including new resources, should be shared freely, even by the private sector. Conversely, there was general acknowledgement that intellectual property, including patented technologies, needed to be protected, even as processes were developed to share essential technology with emerging countries.
Sharing information is a form of benefit sharing. Science transcends resource utilization; it increases knowledge of the universe and overall economic activity, and is good for all. Sharing information is essential, promotes transparency, inclusion, confidence building, coordination, capacity building, safety, peace, conflict avoidance, sustainability. Transparency and inclusivity maximize benefits. A range of info could be shared, including scientific data and research; resources are scientific.
OST Art. XI: share the nature, conduct, locations, and results of outer space activities. Registration Convention. International Lunar Research Station policy: share science and technology. Robust governance for info sharing, open data plan, crucial/ethical for SRA. Distinguish between scientific and commercial information. Scientific data in public domain, versus purely commercial. Share scientific knowledge; open source; genetic info and resources. Prospecting/discovery of resources, especially minerals, is scientific; sharing info is a win/win. Sharing info affects capabilities; the stakes are high. Responsibility and sustainability require strong governance and info sharing. Share data on resource locations, and techniques to avoid duplication.
Intellectual Property: OST Art. XI is not absolute: must balance needs/interests of investors. Technology is key. Free versus sale of info. This is still a new endeavor; what info is useful at what time? What is feasible now? There is a need for discretion.
Info sharing applies to private actors. How to encourage the private sector to share info? Registration, interoperability, standardization. Address intellectual property (IP) concerns using national law. [e.g., compensation for a government taking] Partnership with emerging countries. Promote operational cooperation, info exchange; ICGNSS model. [Note: COPUOS is now considering creation of an Action Team on Lunar Activity Coordination (ATLAC), a precursor to an ongoing mechanism for such coordination, which would include private sector participation.] Knowledge increases certainty. The private sector needs to exchange knowledge to be successful. Trade for guarantees/priorities?
5. Social and environmental aspects; sharing benefits
There was consensus on the sentiment expressed in the first paragraph of OST Art. I: “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” But opinions differed on its interpretation.
OST Art. I was cited repeatedly. Benefit all mankind: resolve divergence, remove obstacles, int’l cooperation, help developing countries. Small countries are important for inclusion, info sharing, accessibility, free exploration, peaceful use. Many small, emerging, and developing countries are already doing space science/collaboration, but positions are unequal. Not all countries have technology and investment capital to access. They need equitable access to resources, technology, information, and capacity building. Space law for new space actors. Equitable access to resources and technology is part of benefit sharing, but what is the best way?
Tension exists between benefit sharing and market practices. Doesn’t have to benefit every country. OST Art. I applies to “activity”, not space itself, therefore no authority for royalties on resources. Monetary sharing of benefits: decouple from resources themselves, focus on market and profits[see reserve mining, above], process for distribution should use sliding scale, help those most in need (e.g., capacity building). The Hague Group Building Blocks (section on Benefit Sharing) seeks balance: share benefits, but no mandatory monetary contributions.
Sustainability (multi-faceted) is the test for all space resource activity. New catalogue of principles based on sustainability. Conformity with existing laws. Identify sustainability in current/additional agreements. Assess every level, every function.
OST Art. IX: no harmful contamination. MA Art. 7: prevent the disruption of the existing balance of environment. Protect the pristine. COSPAR Planetary Protection Policy. Avoid space debris (interferes with goals): reduce, reuse, recycle. Manage, protect. Precautionary mitigation, remediation. Require environmental impact assessments for all space resource activity.
6. Overall governance
There was a spectrum of options presented for future governance, from binding treaties to non-binding guidelines and best practices. There was general agreement that national governments enforce international obligations, including private sector responsibilities.
Governance must assure accountability, responsibility, and accessibility. It must promote economic, ecological, and social justice. It must resolve attribution of rights, sharing of benefits. It must balance public and private concerns. Coordination and cooperation (public and private) are essential, whether binding or nonbinding. Must engage with NGOs. Must honor OST Art. IX, due regard for interests of all countries.
Consider the International Telecommunication Union and the Moon Agreement as models; both promote economic efficiency and equitable utilization of resources. The spirit of MA is still alive.
7. Management and regulation of space resource activity
There was general agreement that supporting the private sector is good public policy. The private sector provides resources, talent, creativity, and enthusiasm that are necessary for a sustainable human presence in outer space.
Encourage and enable utilization and exploitation by those who can. There is a need for an enabling framework for private success: regulations, technology, financing. Moon Agreement section 11.7 is not suitable. Hague Building Blocks: priority rights, advance notice of activities, develop best practices. Set aside 80% of Moon’s resources for private utilization, 20% for public. Understand before regulating. Demonstration projects. Focus on polar resources.
But most also spoke of the need for regulation to protect and promote other essential public policies, such as sustainability and nonappropriation.
Regulation and a legal framework is necessary for economic sustainability; learn from Earth’s economy. Need a framework that not only produces profit but also benefits all; can’t just be economic values and models. An international agency is needed for licenses, compliance, dispute resolution, and environmental monitoring.
Mining equals appropriation. “Safety zones” are de facto appropriation and give priority to whoever gets there first. Safety zones must be subject to international review; their deconfliction function is not obvious. Legal title needed for resource marketability, but who has jurisdiction to grant it? Need to clarify ownership, registration, environmental protection. National space resources acts must be lawful and their implementation must be reasonable.
Several speakers observed that regulation could be different for different types of resources and situations.
Distinguish between utilization for ISRU/exploration and “reserve” mining, with exports to Earth and other locations, and marketing. Reserve mining would be subject to fees, taxation, or royalties; no free dinner. Asteroids are not near-term resources, and must be careful redirecting them. Sudden influx or dumping of precious metals would be harmful to the world economy.
Many speakers noted that the free market economy for space resource activity is already being created on Earth with the development of auxiliary services and supporting technology.
New opportunities, economic opportunities. They will accelerate if done right. Create markets on Earth. Stimulate demand and create customers. Provide services: research and development, sales. Develop technology systems. Technology produces profit, which produces a market economy. Moon services: power, landing pads. Space solar power, sunscreens (energy shortage on Earth). Develop technology for interplanetary, interstellar navigation.
8. New international space resource agreement: pros and cons
A “robust” legal framework is needed for sustainability. An incremental approach is not enough, but instead need predictive governance. International predictive governance is needed for investors. Legal certainty promotes marketability and title. We have principles, but now need predictive rules. Interpretations varied: need all nations to agree. It reduces the risk of conflict and maintains peace and security. National legislation complicates and could harm developing countries: no first-come, first-served. Fly together and go farther.
Don’t be too ambitious. Any new regulation should be narrowly tailored, not predictive. We still don’t know what space resource activity will be. Not ready for new regulation. No need to change prior agreements. Reform existing treaties and include all nations and sectors in the process. Gradual movement: Building Blocks, GEGSLA, ESRIC. Use OST Art. IX to address situations as they arise. It is easier to prohibit bad behavior and prevent harm. National laws and bilateral and regional agreements (e.g. Artemis Accords) are OK if compatible with international law.
Conclusion: the Grand Bargain
The process currently underway at COPUOS is effectively an Article IX consultation under the Outer Space Treaty. It is based on concerns that “an activity or experiment planned by another State Party in outer space… would cause potentially harmful interference with activities in the peaceful exploration and use of outer space.” There is no need for a new treaty; rather, the States Parties can adopt an Article IX “consultation agreement” that would address the gaps in the OST concerning space resource activity.
Although the market for space resource activity has not yet matured, it is sufficiently foreseeable to allow such an agreement, one with the flexibility to develop standards and recommended practices as circumstances evolve by creating an ongoing mechanism or process that will engage with all stakeholders, including the private sector.
It is not enough to build a framework based on our common interests; we must build one that also addresses our competing interests. We can do that through a Grand Bargain, a legal framework based on a consultation agreement that supports private space resource activity in return for protecting essential public policies. The Space Treaty Project has been promoting a Model Resource Agreement for years. Here is the latest version, modified to consider the ideas and issues raised at the UN-COPUOS international expert conferences:
Model Consultation Agreement, Outer Space Treaty Article IX
1. The States Parties agree to create, by separate agreement, an Agency for Lunar [Outer Space] Activity Coordination (“Agency”), an administrative agency within the secretariat of the United Nations Office for Outer Space Activities.
2. All cislunar [outer space] activities, including space resource activities, shall be registered with the Agency by the country authorizing/supervising the activity, including activities by its nationals.
3. Outer space resources shall include materials, locations, and nonmaterial assets such as radio frequencies.
4. Any materials removed from in place shall become the property of the entity removing them, subject to the entity’s own national laws.
5. All space resource activities shall require an environmental impact assessment that is filed with the Agency prior to commencement of the activity.
6. Access to outer space resources shall be shared. Space resource activities shall be conducted in such a manner so that others can safely access the same resources. Any activity that might deplete a resource shall be subject to additional consultation.
7. The States Parties agree to share scientific data and information on the nature, conduct, locations, and results of space resource activities, including the discovery of new resources. Any concerns regarding private intellectual property shall be addressed using applicable national laws.
8. The Agency shall coordinate the development of standards and recommended practices. Priority will be given to equitable access to technology. No standard or practice shall be adopted that requires technology that is subject to export controls or is otherwise unavailable.
9. There shall be no fees for local utilization of outer space resources. Fees for the marketing of such resources, if any, shall be determined by the States Parties. Any fees collected shall be used to support equitable participation in outer space activities, including capacity building.
10. The States Parties shall review this Agreement in 10 years.
We have reached a pivotal moment in humanity’s history: our departure from the home planet. The decisions made now will affect humanity for decades, perhaps centuries. The closest parallel occurred five centuries ago, when the Age of Exploration became the Age of Imperialism, with its legacy of war, violence, and neglect that still affect us today. We can avoid repeating that pattern, but we must choose to cooperate in the utilization of resources from new worlds. Future generations are counting on us; let us not disappoint them.
Dennis O’Brien is a space lawyer and former member of the NASA-UC Law Research Project in San Francisco. In 2017 he started The Space Treaty Project, a scientific and educational nonprofit based in northern California. Since then, he has produced over 35 papers, presentations, and articles on space law and policy. His most recent presentation, at Space Resources Week 2024 in Luxembourg, focused on the sustainable use of space resources and concerns that humanity is about to repeat the mistakes of the Age of Imperialism.
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