Will a five-year mission by COPUOS produce a new international governance instrument for outer space resources?by Dennis O’Brien
|
| The establishment of the Working Group and its mandate is significant. It represents a consensus acknowledgement that the Outer Space Treaty (OST) does not adequately address space resource activity and how the benefits of outer space are to be shared. |
Fifteen member states and five non-governmental official observers responded to the surveys. The responses were recently posted online by the United Nations Office on Outer Space Activities (UNOOSA), the parent body of COPUOS. This article will look at eight of them: three from states representing the range of international opinion, and all five of the observers, who represent part of “civil society.”
COPUOS-LSC gave its Working Group the following mandate (emphasis added):
The Working Group shall:
(a) Collect relevant information concerning activities in the exploration, exploitation and utilization of space resources, including with respect to scientific and technological developments and current practices, taking into account their innovative and evolving nature;
(b) Study the existing legal framework for such activities, in particular the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and other applicable United Nations treaties, also taking into account other relevant instruments, as appropriate;
(c) Assess the benefits of further development of a framework for such activities, including by way of additional international governance instruments;
(d) Develop a set of initial recommended principles for such activities, taking into account the need to ensure that they are carried out in accordance with international law and in a safe, sustainable, rational and peaceful manner, for the consideration of and consensus agreement by the Committee, followed by possible adoption by the General Assembly as a dedicated resolution or other action;
(e) Identify areas for further work of the Committee and recommend next steps, which may include the development of potential rules and/or norms, for activities in the exploration, exploitation and utilization of space resources, including with respect to related activities and benefit sharing.
The establishment of the Working Group and its mandate is significant. It represents a consensus acknowledgement that the Outer Space Treaty (OST) does not adequately address space resource activity and how the benefits of outer space are to be shared. It is also the first time since the 1970s that member states of COPUOS have been willing to consider a new “international governance instrument” beyond non-binding principles and recommendations (e.g., the COPUOS long-term sustainability guidelines of 2019).
The Working Group has a five-year work plan. During initial setup in 2022, it was instructed to gather information from the members of the LSC to help establish the scope of its work. To that end, a survey was distributed to all member states and official observers, inviting a response to the following topics:
Luxembourg is a member of the European Space Agency and one of the first signers of the Artemis Accords. It is the second country (after the United States) to pass a national law authorizing its own nationals (including corporations headquartered there) to remove and take ownership of outer space resources. A sample from its response:
Luxembourg considers that the Artemis Accords, as well as the Building Blocks of the Hague Working Group, constitute a valuable contribution to the discussions in international fora, especially the UN COPUOS.
According to the Luxembourg legislature, space resources are now commonly defined as abiotic resources that are in situ in outer space and can be extracted. This notion includes, for example, mineral resources and water, but not orbital positions or frequencies.
Luxembourg ratified the Outer Space Treaty, the Liability Convention and the Registration Convention and is in the process of accessing the Rescue Agreement. Luxembourg has not signed the Moon Agreement. The international space treaties have not yet been tested with regard to the rights over resources found in space. Most of carried missions have taken place for scientific purposes. However, for the sustainability of future deep space exploration, for commercial space projects and space mining to be viable, future explorers and investors will need certainty regarding their rights to the materials they find.
It seems essential that the Working Group, especially when formulating the set of initial recommended principles, is driven by adaptive governance principle and focuses on the most pressing issues. The highest priority is the recognition of individual rights over space resources, mechanisms for avoiding harmful interference and for the establishment of safety zones.
| Australia is unique among the world’s space powers: it has ratified the Moon Agreement and signed the Artemis Accords. |
Russia is a fully “spacefaring” country, with the capacity to launch payloads and humans into outer space and send probes to the Moon and planets. It has neither signed the Artemis Accords nor passed a national law authorizing private ownership of space resources. From their response:
Space resources include celestial bodies, spaces and territories of celestial bodies, mineral resources, liquids and gases located on them, various types of radiation, orbital-frequency resource, and other objects… Due to the fact that the necessary legal framework for research and study of certain types of space resources, such as solar energy and the orbital frequency resource is available or not required, it is advisable to exclude these types of resources from the scope of the Working Group while referring to them in the classification system.
An important task of the Working Group is also to develop a monitoring mechanism for activities related to the exploration and utilization of space resources, which may include:
- issues of establishing responsibility when implementing the said activities;
- monitoring compliance with established international standards regulating the extraction of space resources, as well as control over the lawfulness of such operations;
- control over the organization of licensing of activities related to the exploration, exploitation and utilization of space resources;
- an algorithm for resolving conflicts and disputes between actors engaged in the extraction and utilization of space resources, an algorithm for international consultations between states;
- a mechanism for informing the international community (including the obligation to inform the UN Secretary-General) of the nature, progress, locations, and results of such activities;
- consideration of the feasibility of establishing a special international body responsible for securing the regime of the utilization of space resources (by analogy with the ITU, the International Seabed Authority).
A space resource, even after its extraction (removal), does not lose its unique natural extraterrestrial origin, unlike a resource mined on Earth. The transformation of space resources, in particular their extraction and, as a result, the acquisition of a natural-anthropogenic nature, does not give rise to ownership of these resources. However, the national legislative initiatives of certain States vest their non-governmental persons, citizens and entities with the right to mine, appropriate, own, transport and sell the mineral resources of celestial bodies, including asteroids. But the national law of any State cannot extend to territories outside its jurisdiction.
Thus, it is necessary for the Working Group to determine a mechanism for prioritizing missions and the number of admissible missions in the light of the physical characteristics of the celestial body and to consider the issues of the avoidance of the depletion of extraterrestrial resources and conservation of the space environment, among other issues.
Australia is unique among the world’s space powers: it has ratified the Moon Agreement and signed the Artemis Accords. Steven Freeland of Australia has been named vice-chair of the Working Group (Andrzej Misztal of Poland is the chair). Here is part of its response as it tries to straddle two worlds:
Australia considers that the type of space resources and activities that fall within the mandate and scope of the Working Group may include:
- Activities contemplated by the five United Nations (UN) treaties on outer space;
- Activities and definitions contemplated by the Hague International Space Resources Governance Working Group on the Building Blocks for the Development of an International Framework on Space Resource Activities, including definitions for the terms ‘space resource’ and ‘space resource activities’;
- Activities contemplated by national agencies, including the Artemis program;
- Activities contemplated through States Members’ policies, including NASA’s Lunar Landing and Operations Policy Analysis and the European Space Agency’s Space Resources Strategy.
Australia is party to the five UN treaties on outer space and is committed to meeting its international obligations. Australia is also committed to contributing to the development of norms that ensure the long-term safety, stability and sustainability of the outer space environment. The activities of States in outer space are also guided by a number of non-binding instruments. Despite not holding the status of law, Australia recognises that these non-binding instruments indicate the intentions of signatory States as to their conduct in outer space.
Australia does not consider that Article II of the Outer Space Treaty prohibits ownership of resources extracted or removed from the Moon or other celestial bodies. However, ensuring compliance with Articles I and II of the Outer Space Treaty requires some understanding of the elements of those obligations or ways of satisfying them in the context of space resource activities, and the Working Group may like to give consideration to this issue.
In Australia’s view, the establishment of an international regime governing exploitation of the Moon’s natural resources consistently with Article 11(5) [of the Moon Agreement] would permit and facilitate space resource exploitation in a rational, safe and equitable manner, providing a means by which the exploration and use of outer space can be carried out for the benefit and in the interests of all countries.
Six observers responded to the survey. One of those, the European Space Agency, is an inter-governmental organization. The other five are non-profits, part of “civil society,” defined as “any non-profit, voluntary citizens’ group which is organized on a local, national or international level” that gives voice to stakeholders. Here is a sample of their responses, in alphabetical order:
| Some do not want any additional rules unless they confirm private property rights and protect space resource activities. Others would require any space resource activity to be approved by an international authority. |
For All Moonkind is focused almost exclusively on the preservation of historic/cultural landing sites from the early years of lunar exploration. Their position is that any resource agreement must include protection of such sites:
Culture is who we are, where we have been and where we are going. It is what shapes our identity as humans. In short, development cannot be sustainable without culture. Moreover, cultural heritage protection is a mainstay of intergenerational equity. The protection and preservation of human heritage recognizes those who came before us, protects the gains of our civilization and allows future generations to learn from both their processes and results.
As the Working Group considers the legal aspects of space resource activities, it must address the impact those activities will have on cultural heritage and use the universality of heritage to achieve consensus.
Zones could be established to manage, and hopefully prevent, conflict, starting with proposed heritage protection zones. For All Moonkind also suggests that the first Coordination Zones can be implemented immediately, to recognize and protect human heritage on other celestial bodies. We believe that international community will be more willing to reach agreement regarding the protection of a site of universal value, as opposed to the operative site of a State or private company.
The Moon Village Association is an umbrella organization that facilitates the work of many groups and individuals. Its response was primarily written by Suyan Christina Malhadas and the Space Law and Policy Research Group of the Catholic University of Santos, Brazil, with contributions from members of MVA’s Adaptive Governance Working Group, including this author.
The response highlights sharing the benefits of outer space exploration and development. Although it stopped short of calling for mandatory benefit sharing, it did call for consideration of benefit sharing at every level of decision-making:
It is the sense of this Working Group that benefit sharing as a desirable feature in the context of international and space law, is in the process of maturing into a more consequential working theme, whose consideration should be deemed mandatory at relevant legal and operational levels, in the same vein as all relevant factors reviewed in this recommendation should be considered mandatory.
This said, it is also the sense of this Working Group that no benefit sharing first principles and specific mechanisms may manifest unless access issues have been resolved in close concertation with key operators and strongly invested stakeholders.
Specific mechanisms need to be considered simultaneously to legal and operational clarification, in the context of space resources utilisation, of non-exclusionary forms of priority and property rights intended to enable investment and operations to proceed.
While remaining aware of the fact that without economic sustainability there is neither sustainability nor access to and sharing of benefits, it is nonetheless the sense of this Working Group that, without a broad and inclusive debate on measures to mitigate future inequalities that may result from lack of sufficient consideration of access and benefit sharing issues, it would become considerably more difficult to assert international legitimacy in defining above specific legal and operational mechanisms.
The National Space Society was formed in 1987 by a merger of the National Space Institute with the L-5 Society. It generally supports the private sector and discourages regulation:
Notably, there are four factors most relevant to the development of a set of initial recommended principles: 1) the mitigation of harmful impacts and interference; 2) the need for economic incentives and clarity in benefit-sharing; 3) recognition of resource rights regardless of domestic or international implementation; and 4) the dissemination of data.
First, the mitigation of harmful impacts and interference speaks to the impacts of ISRU [in situ resource utilization] activities and external interference upon ISRU activities. The protection of international cultural heritage sites in outer space should be paramount regarding ISRU impacts… As humanity transcends into the solar system, the protection of how we progressed is important historically, culturally, and inspirationally.
Second, the current void of governance has contributed to a lack of investment in ISRU because of uncertainty within the legal field and the calls for monetary benefit-sharing. The recommended principles should incentivize investment by clarifying that benefit-sharing ought not to be compulsory monetary benefit-sharing but rather encouragement of enabling and promoting the development of technology, capabilities, and education; particularly in developing countries. Benefit-sharing could also take the form of an international fund to assist in the above-mentioned actions and bolstering the ever-necessary UN SDGs [sustainable development guidelines]. Clarity with the intentions of benefit-sharing is likely to incentivize economic activity to develop ISRU further.
This leads into the third and fourth factors of resource rights and data dissemination. In order for ISRU to further the human experience to outer space, the right to utilization is necessary. Thus, legitimate resource rights provided through legal processes should be recognized regardless of their domestic or international implementation. This would also incentivize economic investment. Lastly, the dissemination of data related to the type and amount of resources discovered and/or extracted should be considered. This is significant because as data becomes available regarding the amount of resources in varying places, it can create clearer methods of governance.
The Open Lunar Foundation is “committed to enabling peaceful, cooperative lunar settlement for the benefit of all life.”
The recovery, exchange and use of natural resources have always been foundational to the development and maintenance of any human society. Yet history also shows that uncoordinated access can create conflict and unfettered development can grow to the detriment of people, places and intentions. As humanity seeks to establish new roots in the vastness of space, the technical, economical and legal ability to make use of available natural resources will thereby play a crucial role in determining our failure or success.
In polycentricity, a shared set of goals and institutions empowers local management by semi-autonomous decision makers. Polycentricity leverages localized synergies and deep system knowledge for high social-ecological and governance congruence. Through subsidiarity and diversity, polycentric governance enables institutional experimentation and exchange in uncertain and complex environments. In a polycentric lunar governance system, the different lunar resource systems can be managed locally and individually while conforming to universal norms and principles such as transparency, sustainability, peace, cooperation, and justice.
Create a Catalog of Scarce Resources: Not all space resources are equally accessible or exist in large quantities. Specific resources or regions may be affected by inherent conditions of scarcity, such as the “peaks of eternal light” at the lunar poles or the “radio quiet zone” on the far side of the Moon. To ensure appropriate management regimes, we recommend developing and updating a living list of resources and regions involving conditions of scarcity. States, operators and other interested stakeholders should involve themselves in this definitional process and publicly commit to recognizing and respecting the list.
Scaffolding Towards Shared Frameworks: Wishing to ensure that emerging lunar regulations truly enable a plurality of societies, parties and activities, while not over-specifying institutional structures based on past approaches, a foundational document could be adopted which focuses on guiding principles and shared agreements rather than specific resource management and coordination approaches. Such a document could emphasize commitment to peace, cooperation and accessibility while protecting the ability for adaptive learning and evolution.
The Space Generation Advisory Council submitted its E.A.G.L.E. report from May 2021 in lieu of a specific survey response. The particulars of “Effective and Adaptive Governance for a Lunar Ecosystem” are too long to summarize (see list below). In general, it calls for a new international “charter”:
The regulatory tools devised in UNCOPUOS seemingly follow a life span of roughly 20 years. Treaties, principles, and guidelines each characterised two decades of international space diplomacy by providing a reference narrative for the community. After long reflection, we realised that the narrative of the next two decades could be captured by charters. With this term we refer to a legal document enacted to define the essential features and boundaries of a legal framework through the solemn commitment of its signatories. Examples of famous charters used in this sense include the Magna Carta Libertatum, the Charter of the United Nations and the Charter of Fundamental Rights of the European Union.
- Suggested Topics for a Lunar Governance Charter
- Fundamental Principles of Space Law
- Guiding Principles for a Lunar Governance Charter
- Inclusiveness
- Interoperability
- Human Life Protection
- Heritage Preservation
- Science / Business Balance
- The Use of Lunar Resources
- Safety Zones
- Liability & Registration
- Minimum Coordination
- Conflict Resolution
At the E.A.G.L.E. Team, we value the ability to unite and converge above everything else. When we set foot to initiate the development of this document, our main goal was to provide a contribution that could simultaneously increase the value of all others by providing them with meaningful opportunities to be expressed. We wanted to inspire global actors and catalyse international discussions on the exploration and use of the Moon. With this purpose in mind, we birthed the idea of a Lunar Governance Charter as a shared narrative that could frame the global debate on lunar governance within pragmatic but also idealistic terms. Structured in the way presented in Section 3, we believe that a Lunar Governance Charter could constitute a useful reference framework for the evolution of adaptive governance.
The responses from member states and observers show a wide spectrum of opinion concerning “additional international governance instruments.” Some do not want any additional rules unless they confirm private property rights and protect space resource activities. Others would require any space resource activity to be approved by an international authority, like the International Seabed Authority in the UN Convention on the Law of the Seas.
| The next five years may well produce a new international agreement that will guide the nations of Earth as we begin to leave the home world. Without one, we might repeat the mistakes of the Age of Imperialism. |
In between are those who do not want a new authority but do want a new international agreement that will protect essential public policies while providing legal support for private activity. That agreement might be a standalone treaty, like the other UN space treaties, or it might be part of the Moon Agreement as an Article 11 resource agreement.
There is also a spectrum concerning what public policies should be protected. Most would agree on protecting heritage sites, but does that include every track mark by every rover? To what extent do we share information and technology? As for protecting activities, how can safety zones or priority rights be structured so that they are not prohibited exclusive claims? In general, how can we maximize sharing the benefits of outer space while still establishing mechanisms that promote economic sustainability?
The next five years may well produce a new international agreement that will guide the nations of Earth as we begin to leave the home world. Without one, we might repeat the mistakes of the Age of Imperialism, when powerful countries battled for control of distant resources, causing centuries of war, suffering, and neglect. Humanity has a chance to start over, and the new COPUOS working group might be the best vehicle for doing so. For this year’s meeting dates and other information about COPUOS and the Legal Subcommittee, click here.
Note: we are using a new commenting system, which may require you to create a new account.
