Panel Discussion 5 — Space resource extraction

Governance Without a New Government: A Model Resource Agreement for the Moon Treaty

Dennis O’Brien, The Space Treaty Project, USA

Abstract: Outer space is a de jure common-pool resource (as defined by Nobel laureate Elinor Ostrom), created by Articles I and II of the Outer Space Treaty (open access and non-appropriation). As its use becomes more technologically/economically feasible, the need to govern such use has grown. But there is a tension/conflict between those who want a new international governing authority, like the Seabed Authority of the Convention on the Law of the Sea, and those who would rather rely on national law, with non-binding multi-national guidelines like the Artemis Accords.
The Moon Treaty, which also covers the Solar System beyond lunar orbit, offers an alternative. Article 11 calls for an “international regime” to govern the use of space resources. The Treaty has not been adopted by the major space-faring countries because they do not want a new governing body. But a legal “regime” can be limited to a binding international agreement that sets standards of behavior but uses existing structures of governance for administration. The key is to draft such an implementation agreement for the Moon Treaty, promoting national/private activity while protecting essential public policies.
The Space Treaty Project has spent five years working on a model implementation agreement, with extensive public consultation and feedback (www.spacetreaty.org/modelimplementationagreementcurrent.pdf). While confirming free access and non-appropriation, the latest draft also calls for sharing in situ resources, protecting celestial bodies’ environments and scientific/cultural sites, and acknowledging the rights of settlements and individuals. It thus promotes polycentric governance of outer space while deterring destructive conflict and monopolies.

Revisiting the Application of the Common Heritage of Mankind Principle to Outer Space

Klara-Maria Töpfer, German Space Agency, Germany

Abstract: The 1979 Moon Agreement (MOON) infamously did not reach wide-spread adoption, a fact which is often blamed on the inclusion of the Common Heritage of Mankind principle (CHM principle) in its Article 11. While the treaty failed to gain widespread acceptance, its provisions, including the CHM principle, were still adopted by consensus. Especially given the recent debates surrounding sustainable and equitable use of outer space, a re-examination of the principle’s applicability to outer space might be in order.
The CHM principle can be separated into a normative dimension focussing on peaceful and preservative use as well as a practical dimension regarding the regulation of (possible) exploitation regimes. A closer examination of Article 11 Moon Agreement reveals that a restrictive interpretation of the contained CHM principle as solely establishing an exploitation regime is more fitting. However, contrasting the normative dimension of the CHM principle against the 1967 Outer Space Treaty (OST) shows that while outer space is not a CHM, the normative dimensions of the principle have already become part of its legal body. Furthermore, an application of the principle could be considered through Article III Outer Space Treaty, which allows for the application of general principles of international law to outer space.
Ultimately, an analysis of the principle and the legal body of outer space respectively reveals a lot of synergies, and examining its possibilities and dimensions, especially in the context of current debates surrounding long-term sustainability, can prove a constructive contribution to the evolutive interpretation of outer space law.

Frameworks for Lunar Activities and the Due Regard Principle

Andrea Harrington, Air University, USA

Abstract: This presentation will address how states can use the due regard principle to maximize freedom of use for all, protect exploration, and minimize harmful interference to the activities of others.
Derived in a space law context from Article IX of the Outer Space Treaty, there exists a binding obligation to act with due regard for other states’ space activities/interests. Importantly, this provision modifies the broad right granted to all states under Article I of to freely use and explore space, requiring a balancing of interests. In line with application of this international law principle in other domains, “due regard” is not a universal rule, but rather a rule that can be applied on a case-by-case basis and used to develop parameters for responsible behavior in specific contexts (eg, lunar habitation, space resource utilization, implementation of AI technology, etc). Given that the principle is inherently flexible, it supports the development of commercial uses while providing an opportunity for heightened protection of scientific activities.
Use of the due regard principle to these ends provides a tie-in to existing Outer Space Treaty obligations with more teeth than a stand-alone non-binding soft law instrument would offer. Further development of our definition of acting with “due regard” as well as understanding of the opposite behavior “unjustified disregard” is needed. We can look to analogies in other areas of international law, as well as previous use of due regard in space (such as NASA Recommendations, Artemis Accords, Hague Building Blocks) as a starting point.

The issues concerning surface structures and industraforming

Kamil Muzyka, Institute for Law Studies – Polish Academy of Sciences, Poland

Abstract: Space resources serve several purposes to entities operation beyond Earth. While we mostly encounter them as a source of wealth and tradable commodity, the other, more technologically discussed aspect of space resources is the raw resource for manufacturing and construction. In this specific context we encounter not only the issue of presenting a in-space manufactured object the status of a space object, but in a similar way surface structures, which are more akin to civil engineering, earth moving (like launchpad shielding of fused regolith), could become to be recognized as space objects. A far more reaching issue is the prospect of industraforming, which is based on approaches seen in terraforming, yet its posthumanist aspect focuses not on creating an environment suitable for Humans, but for machines and engineered organisms, with the purpose of sustainable access to a bodies resources.