Asteroid mining brings with it treaty and legal issues regarding who should benefit from the resources extracted. (credit: Brian Versteeg/Deep Space Industries)

The common burden of “spacemankind”

by Kamil Muzyka
Monday, July 10, 2017

The debate on whether to perceive the outer space and celestial bodies as either province of all humankind or Common Heritage of Mankind (CHM), among academic circles, has been carried out since the failure of the Moon Agreement of 1979. Recently, it has gained more attention after the United States adopted its own asteroid mining law, while Luxemburg is developing its own set of regulations. As other countries and agencies study the idea of actually extracting precious resources from the Moon and near Earth asteroids, the “Phantom of the UN Committee on the Peaceful Uses of Outer Space (COPUOS)” appears again, playing his CHM tune.

The debate won’t be banished until a consensus is settled. The most common notion is that treating celestial bodies as CHM is based on a postcolonial approach to international economics and politics. By this principle, the First World countries, which in past centuries gained enormous power and wealth through colonizing other lands and exploiting other countries, should now share the benefits of their development with their former colonies or, broadly, with the developing countries. This means that the United States, a leading spacefaring country, would have to accept the future regulations on space resource governance and extraction outlined after the ratification and adoption of the Moon Agreement.

The principle of equitable sharing of benefits is mostly vague, and several approaches have been made in academia in order to outline the percentage of profits being shared among the nations of the world. Taking all the risk and capital expenditure into account, the United States would have to bear the burden of providing the global community with platinum group metals, providing means to refuel non-US spacecraft in space, and have its own profits cut, in order to benefit the international community. The United States—itself a former colony—rejected the Moon Agreement.

During the recent session at COPUOS, the representative for the People’s Republic of China discussed the need for the international community to create a compromise between the CHM principle and the emphasis on profitable private space enterprise. The problem with putting CHM burdens on a nascent branch of the new space sector is the possibility of making it unsustainable and unfeasible. In the best-case scenario, the financial burdens might leave only a handful of powerful mining corporations in power with sufficient revenue to prosper, whereas smaller companies, not generating enough output to create a sustainable business, would be forced into a form of servitude, as a subcontractor.

In my recent work on problems with an international legal framework for asteroid mining, I have outlined several probable models, where the Common Heritage Principle could be mixed with a profitable asteroid mining business. One of the best examples would be a model based on maritime salvage. The space miner, being the salvor of the free floating “common heritage,” might redirect it into a Lagrange point and file a salvage claim to the proper court, and demand a reward for successful redirecting an asteroid from the United Nations.¹ That way, miners earn their profit by simply bringing back asteroids in whole or in parts, and are getting their operational costs covered, yet not claiming ownership of any part of the asteroid.

This is a win-win situation, for the United Nations can freely distribute resources and benefits among the nations of the world, with a special emphasis on developing nations, and miners profit from this operation as a contractor. Other models included a more NewSpace approach, of extra-UN regulations, where most did not involve any kind of CHM principle.

Yet there can be a solution, a compromise between the emphasis on sustainability and feasibility of commercial private space enterprise and sharing the benefits of space activities. One could propose a five-percent space activity tax on all space activities by national agencies and private entities. This tax does not solely apply to space miners, but also to Earth observation and telecommunication satellites, space tourism, commercial and non-commercial launches, private stations, and in-space construction and manufacturing. The five-percent tax on profits from space activities would be a plausible solution to the problem of spacefaring nations not sharing benefits with nations lacking any space capacity. The problem in this case, though, is that the United Nations has no tax jurisdiction over any national or multinational enterprise, thus the simple idea would likely end up an utter failure.

However, the world community might face problems of market speculation if companies can acquire rights to lunar and asteroid resources before extracting them. First is the field of patent law, where patent trolls use to stockpile patents, and harass practitioners of such solutions on the basis of claimed patent infringement, while not using the patents themselves. Recent patent wars had a major impact on both corporate global market strategy, but also created an atmosphere of fear, in which open-source solutions and their derivatives were viewed as the alternative.² Forcing, by analogy, small space prospecting companies into an unfavorable license and reaping huge royalties is not a best future for a developing new space industry.

Second is the “salvor in possession” principle, that was applied during the RMST Inc. vs Wrecked and abandoned vessel case.³ In short, RMST Inc. gained a title, which creates a legal fiction of ongoing salvage operation concerning the wreck of the RMS Titanic. That way no other salvage party may operate on the wreck or in its vicinity, thus securing a monopoly via salvage markers placed on site. Although there is a difference between a legendary wreck and an asteroid in space, the principle of possessing a monopoly is doubly being practiced (there are no actual attempts to pick up the hull, but the cargo/elements of the interior and belongings of the passengers are being salvaged with some regularity.)

Finally, there is the problem of the “Paper Satellites” analogy⁴ that is currently being addressed by the International Telecommunication Union (ITU). The problem with securing an orbital slot—a natural and limited resource, according to the ITU constitution—while not putting an object in it is also a form of abuse of monopoly.

Thus, free market principles should be guarded against their abuse by institutions similar to 19th century whaling norms. Norms set by whalers, like “the iron holds the whale,”⁵ with its requirement of remaining in “Fresh Pursuit,” can be translated as “a ship being en route,” and losing the right to mine a near Earth asteroid after some period of time. This way, one might only hold the monopoly on extracting resources from a certain asteroid when in possession of means of extraction and delivery.

Even those norms won’t necessarily prevent market speculations, especially if raw data from prospector probes is treated as trade secret by companies. One might speculate on open markets with prices of commodities and materials. However, speculation might actually work against said mining companies, as their revenues might easily drop before the commodity lands on Earth. Thus, such speculation might weed out some competition, which might in consequence lead to even greater monopolies held by miners with sufficient output.

We, the people of Earth want—or, rather, some of our representatives claim that we do—space miners to bring us the cornucopia. Space mining might have the power to make exploitation of developing countries a thing of the past, end wars and famine, and make even transhumanist dreams come true. But following that path, we are not far from exploiting others. Space mining includes in situ resource utilization (ISRU), which doesn’t require introducing those resources to the terrestrial market. ISRU covers a broad range of applications, including refueling space vehicles, construction, sustainable habitation, and manufacturing of spare parts. The first entity to master and industrialize the process of refueling space vehicles might become the first space mogul.

But what about the principle of sharing benefits under the CHM principle? Why is someone who is creating a sustainable space environment for human activity to be charged for space activity? This is the reason why the Common Heritage Principle hasn’t been adopted, as an expansion of the Province of Mankind. Joanne Gabrynowicz points out that Province refers to the activities of state parties and nationals, while common heritage refers to the matter.⁶ Current provisions of international space law are based on the principle of province of all humankind, thus an entity setting up a ground volatile extraction station gets to keep both the fuel produced, as well as any commodities fabricated or constructed on the moon or in orbit. Those materials might be essential for the survival of lunar or deep space habitats, interplanetary transports, and so on.

Besides commercial refueling stations, most of those ISRU techniques would mostly be used for meeting ongoing needs of station’s personnel and hardware. The more self-sufficient a habitat or spacecraft is and less relying on resupply from Earth, the better. For those on site, charged with maintaining the station and stockpiling materials for future needs, the requirement to share the benefits is unreasonable. Their benefit is their well-being, whereas their parent space agency or company should benefit from better operation, increased lifespan, and reduced maintenance and resupply launch costs. Putting additional taxation on sustainable technologies, to which ISRU spinoffs will contribute, is also unreasonable.

The model behind the Common Heritage of Mankind was based on the fear that rich nations would exploit the resources in international waters, as well as those in outer space, thus gaining an even bigger advantage against the remaining countries, especially the developing nations of Africa and Asia. Furthermore, it included not only the need for participation in space exploitation, but also an argument of post-colonial resentment.

International law must withstand decades or centuries, thus must consider things like newly developing nations, which here includes future communities in outer space, living of the land and creating their own culture. As suggested before, this can be actually seen as a new form of colonialism, where space colonists are being exploited for the benefit of all humankind. So why is it that the UN is more concerned with direct benefits, not access to spinoff technologies and incentives for private or public entities providing such access or implementing such in developing nations, such as sustainable water management or energy production and storage?

Perhaps such spinoffs weren’t so visible during the initial proceedings on the Moon Treaty. Maybe it is due to fear of losing any significance on the international arena by the developing nations that had suffered colonial exploitation in their past, or those who are being exploited or kept in debt due to their natural resources. When addressing this issue, one must recall that the reason they remain in debt and exploitation is the lack of feasible alternatives. On the other hand, if space miners would be the breadwinners of the future economy, shouldn’t they be paid accordingly by all nations of the world, as they do provide the means of sustainable development and changes in economic paradigms?

Still, the problem of legal regimes still remains, as there needs to be a safe and clear legal pathway for the private enterprise of different nations to thrive and settle disputes. Also, even setting aside the CHM principle, and following the factual provisions of the OST, one must bear in mind safety reasons behind regulations on space activities.

First of all, the safety of mining operations or other space activities is not an easy task, as one might see in video games. Vehicles must not collide with each other, and damaging any delicate structure that sustains humans is out of the question. Mining equipment must not create space debris. Jettisoning any “overburden” from an asteroid should be considered illegal, for it creates additional human-made space debris that is dangerous to systems and vehicles.

Russia has its own regulations on establishing safety zones around space installations and objects. That is to say, it does not constitute appropriation “by other means,” as its purpose is the safety of any third party equipment, personnel or the facility/vehicle itself. One would not like unauthorized personnel near the mining site due to the risk of injury, damage, or death.

A related safety issue is the storage of hazardous materials, including RTGs and other radioactive items. There needs to a form of safety standards for the storage and transport of such materials.

In conclusion, there needs to be a broader discussion on ways for all entities to participate in deep space endeavors, and coming to terms may require an agreement similar to one established with the International Space Station inter-governmental agreement of 1998. Humanity in space already carries the burden of exploration. Every new approach is the frontier, and they do benefit all humanity, but not in the way some academicians and politicians perceive “benefiting”. Maybe the development and wider availability of orbital space tourism could create a requirement for all who tend to work in space law or space policy to look down on the Earth from up there.

Endnotes

1. Kamil Muzyka. The problems with international legal framework for Asteroid Mining – Space Law Resource 2017
2. B. Zorina Khan/ “Trolls and Other Patent Inventions: Economic History and the Patent Controversy in the Twenty-First Century” Department of Economics, Bowdoin College, Brunswick, Maine, and National Bureau of Economic Research, Draft of September 2013.
3. “R.M.S. TITANIC, INC., successor-in-interest to Titanic Ventures, limited partnership, Plaintiff,v.The WRECKED AND ABANDONED VESSEL, Its Engines, Tackle, Apparel, Appurtenances, Cargo, etc.,Located Within One (1) Nautical Mile of a Point Located at 41 43' 32" North Latitude and 49 56' 49 "West Longitude, Believed to be the R.M.S. Titanic,” In Rem, Defendant No. 2:93cv902. August 12, 2010. United States District Court, E.D. Virginia, Norfolk Division.
4. Iulia-Diana Galeriu. “‘Paper satellites’ and the free use of outer space”.
5. Robert C. Deal. “Fast-Fish, Loose-Fish: How Whalemen, Lawyers, and Judges Created the British Property Law of Whaling”.
6. Joanne Gabrynowicz. “The ‘Province’ and ‘Heritage’ of Mankind Reconsidered: A New Beginning”, Lunar Bases & Space Activities, 1988.

Kamil Muzyka is a PhD candidate at the Institute for Legal Studies of the Polish Academy of Sciences, at the faculty of Industrial Property Law. He’s a member of Space Law Resource, co-editor of “Prawo i Kosmos” and a consultant for the Polish Space Agency and EX-PL. His main focus of research is on regulations related to space mining, in-space manufacturing, and ISRU.

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