4.1.1 Freedom of exploitation of abiotic resources in outer space as a clear trend

The exploitation of abiotic resources in space as a freedom of exploration and use of outer space is championed by some countries. Some of them have enacted domestic legislations to this effect. In 2015, the US congress passed the Commercial Space Launch Competitiveness Act, which stipulates that:

This legislation appears to be in line with US practice regarding mineral exploitation in other ABNJs. The US Department of State, while rejecting the assertion of exclusive mining rights over a deposit of minerals in the deep seabed by Deepsea Ventures, Inc. in 1974, continued to state that ‘the mining of the seabed beyond the limits of national jurisdiction may proceed as a freedom of the high seas under existing international law’.Footnote ⁹⁷ The Convention on the High Seas in force at that time did not explicitly provide for mineral exploitation as a freedom of the high seas. The US likely took it as falling within ‘others which are recognized by the general principles of international law’.Footnote ⁹⁸ This is reiterated in the 1980 Deep Seabed Hard Mineral Resources Act,Footnote ⁹⁹ which comprises a licensing regime for exploration and commercial recovery activities of mineral resources in the deep seabed by those the US has jurisdiction.Footnote ¹⁰⁰

Some other states have followed suit. In 2017, Luxembourg enacted its Law on the Exploration and Use of Space Resources, which provides that ‘[l]es ressources de l’espace sont susceptibles d’appropriation’ (‘Space resources are capable of being owned’).Footnote ¹⁰¹ In 2019, the UAE became the third country to legislate on space mining. Although its legislation is not so explicit as those of the US and Luxembourg on the appropriability of space resources, this is a presumption in the provision that:

Japan’s Space Resources Act of 2021 also provides that the person who obtains a permit to pursue space resources extraction activities owns the resources exploited in accordance with the business activity plan attached to and approved together with the application for a permit.Footnote ¹⁰³

The number of states advocating the freedom of exploitation of abiotic resources in space is small. Those with domestic legislations to the effect are even less. It is against this backdrop that the Executive Order on Encouraging International Support for the Recovery and Use of Space Resources (Executive Order) was issued by the former administration of the US on 6 April 2020. The Executive Order, while reiterating that ‘Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space, consistent with applicable law’, stated that ‘it shall be the policy of the United States to encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law’.Footnote ¹⁰⁴ It also directed the Secretary of State to ‘take all appropriate actions to encourage international support for the public and private recovery and use of resources in outer space’, and to ‘seek to negotiate joint statements and bilateral and multilateral arrangements with foreign states regarding safe and sustainable operations for the public and private recovery and use of space resources’.Footnote ¹⁰⁵ These measures were aimed to garner wider state practice in support of the freedom of mineral exploitation in space.

The Artemis program, by which the US National Aeronautics and Space Administration (NASA) aims to build sustainable elements on and around the Moon, provides an opportunity for the US to promote ‘international support for the public and private recovery and use of resources in outer space’ as guided by the Executive Order. The Artemis Accords, which embrace a set of principles to guide co-operation among nations participating in the program, have now been signed by 20 states, i.e., Australia, Bahrain, Brazil, Canada, Colombia, France, Israel, Italy, Japan, the Republic of Korea, Luxembourg, Mexico, New Zealand, Poland, Romania, Singapore, Ukraine, UAE, the UK, and the US. With respect to the status of abiotic resources in space, the Artemis Accords affirms that ‘the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty’.Footnote ¹⁰⁶ The same position was held by the Hague Working Group, which in its Building Blocks proposed that ‘[t]he international framework should ensure that resource rights over raw mineral and volatile materials extracted from space resources, as well as products derived therefrom, can lawfully be acquired through domestic legislation, bilateral agreements and/or multilateral agreements’.Footnote ¹⁰⁷ It also proposed that ‘[t]he international framework should enable the mutual recognition between States of such resource rights’.Footnote ¹⁰⁸ With the Artemis program open to America’s like-minded partners,Footnote ¹⁰⁹ China and Russia have jointly initiated the International Lunar Research Station (ILRS).Footnote ¹¹⁰ They have been working on a Declaration setting out principles for the establishment of and international co-operation on the ILRS. With the Declaration yet to be released, it remains to be seen how far it would go on the status of abiotic resources in space.

The above state practice with respect to the freedom of exploiting abiotic resources in space constitutes ‘subsequent practice in the application of’ Article I of OST. While deriving from a liberal interpretation of the provision, they reinforce the liberal interpretation conversely. Due to the sparsity of practice, it is too early to claim an agreement has been established among the parties of OST on the liberal interpretation. But this is clearly the trend. This trend is in line with the object and purpose of OST to pursue ‘the great prospects opening up before mankind as a result of man’s entry into outer space’.Footnote ¹¹¹ It would not only secure the sustainable development on the Earth, but also provide support to humankind’s settlement on other planets. Of course, precautions should always be taken to prevent the spoiling and depletion of resources on the Earth despite the ongoing exploitation of resources on other planets. In this process which is bound to benefit the development of humankind, it is important to secure the legal certainty that rewards to investment will be protected. As held by Pound, a jural postulate of civilized society is that:

However, ‘rewards’ to investment should be limited, in particular when it becomes enormous as the technology improves. This should be limited at the stage when the priority rights are granted and can be offset by benefit sharing, matters to be discussed in Section 4.2.

Also due to the sparsity of state practice, a customary rule for the freedom of mineral exploitation in space is in the process of crystallization at best, although unanimity is not always required for the practice to meet the material element of customary international law and the practice of ‘specially affected States’ should be given special weight.Footnote ¹¹³ Efforts have been made to identify a permissive customary rule for the exploitation of abiotic resources in space, by recourse to state practice regarding the collection of extraterrestrial substance. Since the 1960s, several manned or unmanned missions have been conducted, by the US, the former Soviet Union, Japan, and more recently China, to collect and return to the Earth samples from the Moon and asteroids. For instance, NASA is recorded to have returned 2,415 lunar samples weighing a total of 842 pounds (382 kilograms). These materials are considered a National Treasure, and goodwill gifts were presented to 135 states.Footnote ¹¹⁴ The collection of extraterrestrial samples has never encountered protests, and the gifts of samples were accepted with gratitude. It is, thus, argued that a customary rule has come into existence permitting the free exploitation of abiotic resources in space.Footnote ¹¹⁵

Proponents of the above argument neglect the novel distinction between scientific research and mineral exploitation, in terms of scale and purpose.Footnote ¹¹⁶ In other ABNJs, scientific research and resource exploitation are usually regulated separately. In the high seas, fishing and marine scientific research are two separate freedoms.Footnote ¹¹⁷ In the Area, both the Authority and states parties may carry out marine scientific research;Footnote ¹¹⁸ all rights in the resources thereof are vested in mankind as a whole, on whose behalf the Authority shall act.Footnote ¹¹⁹ The freedom of scientific investigation in Antarctica is recognized under the Antarctic Treaty,Footnote ¹²⁰ while mineral exploitation is explicitly prohibited by the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).Footnote ¹²¹ The distinction between scientific research and mineral exploitation is, as a matter of fact, implicit in OST. The former is highlighted as a special form of ‘exploration and use of outer space’.Footnote ¹²² The latter, as concluded above, is not expressly addressed in OST. States refrain from protesting the collection of lunar and asteroid samples, probably believing that such activities fell within the ambit of scientific investigation and were carried out on behalf of the humanity as a whole. The latter is not illusion, given that the flags of other states were flown on the Apollo manned lunar landing missions. These flags then accompanied the sample gifts given by NASA,Footnote ¹²³ making the recipient state even more reluctant to lodge a protest. It is, thus, farfetched to infer the freedom of large-scale mineral exploitation from the practice of sample collection, although it may form an initial step leading to, thus serving the purpose of, mineral exploitation. Ultimately, it would be rather absurd for a state to find itself suddenly bound by a legal rule which is starkly different from what it understood and consented to.

One may also argue for the freedom of mineral exploitation, under the Moon Agreement, as an incidental right of the freedom of scientific investigation.Footnote ¹²⁴ Article 6 of the Agreement provides ‘States Parties may in the course of scientific investigations also use mineral and other substances of the Moon in quantities appropriate for the support of their missions.’Footnote ¹²⁵ With the term ‘quantities appropriate for’ broadly interpreted as ‘quantities needed to’, it is held that ‘[s]ince, over time, the nature and extent of such investigations may be far-ranging, this provision will allow for very substantial uses of natural resources’.Footnote ¹²⁶ The crux lies in the scope of ‘use for the support of scientific investigations’, whether it is limited to the investigation phase, normally in the form of sample collection, or also extends to the commercial exploitation to ‘fund’ scientific investigations. The latter interpretation would allow substantial exploitation as scientific investigations in outer space are quite expensive.

The same question arose in the Whaling in the Antarctic case, when Japan argued that the sale of whale meat to fund research is allowed by Article VIII, paragraph 2 of the International Convention on the Regulation of Whaling (ICRW),Footnote ¹²⁷ which provides that ‘[a]ny whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted’.Footnote ¹²⁸ The Court said:

Here, the Court implicitly made a distinction between the sale of whale meat ‘incidental to’ the killing of whales for the purpose of scientific research, and the killing and sale of whale meat ‘in the name of’ scientific research. Although the Court did not oppose the selling of whale meat from those necessary for scientific research, it clearly took it illegal to kill whales and sell the meat, beyond what was necessary for research, to fund the research. This distinction is instrumental in the determination whether there is an abuse of Article 6(2) of the Moon Agreement, which is easy to verify as scientific research usually only requires small samples, thus involving very little ‘incidental exploitation’ of mineral resources.

4.1.2 The lack of a prohibition on the exploitation of abiotic resources in outer space

In the modern international legal system predominated by positivism, any restriction on states shall be interpreted narrowly. As the PCIJ found in the Lotus case, ‘[t]he rules of law binding upon States … emanate from their own free will … Restrictions upon the independence of States cannot therefore be presumed’.Footnote ¹³⁰ The loose interpretation of this dictum, i.e., to the effect that what is not prohibited is permitted, has been put in question.Footnote ¹³¹ But between the presumption of prohibition and that of freedom, it is the latter that conform to the reality of state practice in the case of non liquet. Therefore, the baseline approach to outer space is a general freedom, which can only be limited by international consensus, and there is no explicit prohibition of commercial exploitation to start with.Footnote ¹³²

The non-appropriation principle codified in Article II of OST, as discussed in Section 2.1, only prohibits territorial sovereignty in outer space. That this principle does not prohibit the exploitation of abiotic resources in space also finds support in the fact that the Moon Agreement, while containing at least the same, if not more stringent, prohibition against national appropriation as the OST, comprises rules regulating resource activities on the Moon.Footnote ¹³³ In the exchange of views in COPUOS, the assertion that the exploitation of abiotic resources in space fell within the scope of non-appropriation was rarely made and has waned gradually.Footnote ¹³⁴ Having said that, the exploitation is permitted not simply because it is not prohibited.Footnote ¹³⁵ Rather, it is to derive from the freedom of exploration and use of outer space. In addition, it is without prejudice to the application of certain limits on the enjoyment of this freedom.

A caveat exists, however, with respect to the definition of celestial bodies. In the preceding discussion, celestial bodies and abiotic resources therein are regarded as having different status. This binary perspective may not apply to small asteroids and comets, as to exploit the abiotic resources therein would result in the consumption of the whole celestial body, tantamount to its appropriation in effect. No definition of celestial bodies is provided in any of the five UN treaties relating to outer space. Although it was acknowledged, in the scientific circle at the time when the OST was negotiated, that the size of celestial bodies varies significantly,Footnote ¹³⁶ the legal definition may not comprise all natural bodies found in space irrespective of their size. It is normal for a legal term to depart from the physical counterpart, an example being continental shelf which transcended the physical criteria of ‘natural prolongation’ to also comprise the element of distance.Footnote ¹³⁷ Lachs, writing in 1972, said that:

Little progress has been made ever since on the legal definition of celestial bodies, due to the lack of practical need to resolve this issue. As space mining comes closer to the reality, the definition of celestial bodies has become an issue calling for resolution.

Even the Moon Agreement, leaving aside for now its limited number of states parties, does not place a moratorium on the unilateral exploitation of abiotic resources on the Moon.Footnote ¹³⁹ Article 11 of the Agreement prohibits property claims over natural resources in place on the Moon, i.e., those in their original state before recovery. As discussed in Section 2.2, this provision prohibits property claims over natural resources in place on the Moon, like those enjoyed by coastal states in the EEZ and the continental shelf. The term ‘in place’, according to Christol, was proposed by the US to ‘make sure that the prohibition against the assertion of property right would not apply to moon rocks and other natural resources when they were reduced to the possession of the exploiter’.Footnote ¹⁴⁰ Mr. Hosenball, then head of the US delegation to COPUOS, explicitly denied the moratorium interpretation upon conclusion of the Moon Agreement.Footnote ¹⁴¹ This position was upheld by the US Administration in response to domestic concerns with regard to the ‘de facto moratorium’ effect of the Agreement on resource-related activities in outer space.Footnote ¹⁴² Then Secretary of State Cyrus R. Vance’s reply to Senators Church and Javits was but one example:

The Soviet Union, which rejected the idea of CHM in a categorical manner initially, accepted it when developing countries gave up imposing such a moratorium.Footnote ¹⁴⁴ The no-moratorium interpretation is also in line with the object and purpose of the Agreement, which in its Preamble underlines ‘the benefits which may be derived from the exploitation of the natural resources of the Moon and other celestial bodies’,Footnote ¹⁴⁵ as a moratorium would discourage the research and development of technologies. The exploitation is bound to benefit humankind as a whole, although the distribution of benefits in a wider range can only be realized by an international regime. In this regard, Christol wrote that the strategy behind the Agreement was to allow for exploitative activities despite an awareness of the fact that there would be extraordinary costs involved in returning substantial amounts of such resources to earth.Footnote ¹⁴⁶ This liberal interpretation of Article 11(3) does not contradict the non-appropriation principle reiterated in Article 11(2), which as demonstrated above only pertains to territorial sovereignty.

As a matter of fact, the Moon Agreement was a victory for major space-faring countries amidst the New International Economic Order (NIEO) movement, which had the connotation that the Western countries ‘have been blatantly immoral and should atone for their guilt by accepting the obligations of the new international economic order’.Footnote ¹⁴⁷ Soon after the UNGA adopted Resolution 2754 imposing a moratorium on the exploitation of resources in the deep sea-bed in 1969,Footnote ¹⁴⁸ developing countries embarked on new efforts to impose a similar moratorium on the Moon. At the time, there seemed to be two versions of CHM, one resembling the Roman concept of res communis featuring free access, the other prohibiting unilateral exploitation. While the former version was advocated by developed countries, it is the latter that prevailed in both UNCLOS and CRAMRA. CRAMRA, without mentioning CHM, prohibited Antarctic mineral resource activities outside the Convention.Footnote ¹⁴⁹ By contrast, the CHM that found its way into the Moon Agreement was the version promoted by developed countries, one containing no moratorium on the exploitation of mineral resources on the Moon. Hence, it is fair to say that the Moon Agreement is consistent with the OST with respect to the right to recover and use natural resources on the Moon.Footnote ¹⁵⁰

The above interpretation, which is largely made from the US perspective, is not without dispute.Footnote ¹⁵¹ In the COPUOS, it was expressed that:

The US delegate, without going into its real position in the negotiation of the Moon Agreement, simply said this issue should be reviewed in accordance with its international treaty obligations.Footnote ¹⁵³ The existence of different interpretations with respect to the possible moratorium effect of the Moon Agreement attest to the lack of a consensus to this effect. In the end, such a moratorium, even if it can be established, would not be very impactful due to the small number of states parties of the Moon Agreement. It is well possible that non-parties now find unilateral pledges made more than four decades ago, such as those above, contrary to their interest.

Another question, which is again without much impact at the practical level but should be raised only for the sake of completeness, is whether a moratorium would arise when the negotiation of an international regime is ongoing or runs into stagnancy. A negative view was expressed by Mr. Reis who represented the US in the LSC.Footnote ¹⁵⁴ He also held that refusal by a state to accept such an international regime would not preclude that state or its nationals from exploiting the natural resources of the moon or other celestial bodies.Footnote ¹⁵⁵ Such a position, if put to the extreme, would defeat the purpose of the lump sum deal of no-moratorium under Paragraph 3 of Article 11 of the Moon Agreement and the obligation of negotiating an international regime under Paragraph 5. As Mr. Hosenball pledged after denying the moratorium effect of Article 11:

The same pledge was reiterated by Ambassador Richard W. Petree, then US Deputy Representative to the Security Council.Footnote ¹⁵⁷ The need to negotiate an international regime further dissuaded the US from becoming a party.Footnote ¹⁵⁸

4.2.1 International co-ordination of mineral activities in outer space

The need of an international regime for mineral activities in outer space will primarily stem from the potential conflicts between entities conducting such activities if the laissez-faire approach is followed. The risk of conflict is high when the resource in question is subject to competing acquisition. In contrast to the assumption of res communis that they were inexhaustible and consequently their consumption was non-rivalry, today many resources in ABNJs have become increasingly limited. The surface of the Moon, with a size equivalent to the African continent, may become congested as an increasing number of lunar bases are established, especially in its polar regions where water ice concentrates.

Domestic licensing regimes are insufficient to the end of avoiding potential conflicts. On the contrary, they may aggravate it. In the context of deep seabed mining, although the US maintains a domestic regime for the exploration and exploitation of mineral resources in the Area,Footnote ¹⁶¹ it has clarified that a license under the Act ‘gives the holder the exclusive right to explore a specific area, but only as against other US entities’ and the US would need to accede to the UNCLOS for the license to be afforded international recognition and security of tenure.Footnote ¹⁶² In practice, some US nationals have incorporated subsidiaries in states parties of the UNCLOS so that they can participate in the deep seabed mining within UNCLOS.Footnote ¹⁶³ This attests to the limit of the laissez-faire approach whereby each state adopts its own licensing regime for the extraction of abiotic resources in ABNJs.

Existing international law contains general principles for the deconfliction of activities in outer space. Article IX of OST provides that states parties shall ‘conduct all their activities in the outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty’.Footnote ¹⁶⁴ It also sets out a mechanism of prior consultation to avoid harmful interference. The Moon Agreement, on the other hand, did not go further than setting out main purposes of the international regime to be established, namely orderly and safe development, rational management, expansion of opportunities in the use, and equitable sharing of benefits.Footnote ¹⁶⁵

As a means of deconfliction, the idea of ‘safety zone’ has been proposed by NASA and the Hague Working Group.Footnote ¹⁶⁶ This is not a new idea. It has been employed in other open areas such as the Exclusive Economic Zone (EEZ), the high seas, and the Area. In the EEZ, the coastal state has, among others, the jurisdiction with regard to the establishment and use of artificial islands, installations and structures.Footnote ¹⁶⁷ Around such artificial islands, installations and structures, the coastal state has the right to establish reasonable safety zones ‘in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures’.Footnote ¹⁶⁸ In the Area, safety zones shall be established around installations used for carrying out activities there ‘to ensure the safety of both navigation and the installation’.Footnote ¹⁶⁹ Around scientific research installations, which may be deployed and used in any area of the marine environment, safety zones may be created too.Footnote ¹⁷⁰

The application of safety zones in the sea is aimed to guarantee the safe and orderly conduction of concurrent utilizations of the sea. Navigation is the primary utilization to be balanced against what the safety zone is established for. These utilizations are given equal importance and shall be respected mutually. For instance, the breadth of safety zones established in the EEZ shall not exceed a distance of 500 metres measured from each point of the outer edge although some flexibility is possible.Footnote ¹⁷¹ In addition, such safety zones shall be respected by all ships,Footnote ¹⁷² and ‘may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation’.Footnote ¹⁷³ Similarly, in the Area, ‘[t]he configuration and location of such safety zones shall not be such as to form a belt impeding the lawful access of shipping to particular maritime zones or navigation along international sea lanes’;Footnote ¹⁷⁴ and safety zones around scientific research installations shall be of a reasonable breadth not exceeding a distance of 500 metres, and all states shall ensure that such safety zones are respected by their vessels.Footnote ¹⁷⁵ Thus, the regime of safety zones concretizes due regard, a reciprocal obligation applicable to different utilizations of the sea generally.Footnote ¹⁷⁶ Forming a contrast to this, the Artemis Accords, while correctly invoking Article IX of OST as the legal basis for safety zones,Footnote ¹⁷⁷ should have placed more emphasis on the reciprocal obligation of due regard rather than the unidirectional obligation of voiding harmful interference.Footnote ¹⁷⁸ The Hague Working Group Building Blocks seems to take a more balanced approach, by providing that the free access to any area of outer space shall not be impeded by such safety measure.Footnote ¹⁷⁹ While allowing the restriction of access for a limited period of time,Footnote ¹⁸⁰ the Building Blocks also took it necessary to conduct appropriate international consultations in the case of overlapping safety zones and conflicts involving the freedom of access.Footnote ¹⁸¹

Even if the reciprocal deficiency is remedied, the regime of safety zone in itself may not be sufficient for the co-ordination of mineral activities in outer space between different entities. The most straightforward question to be encountered is what preferential rights should be accorded to pioneer developers and on what basis. In other ABNJs such as the Area and Antarctica, sophisticated rules are stipulated whereby mineral activities are typically divided into three stages, i.e., prospecting, exploration, and exploitation, in which the subjects are subject to different levels of deconfliction measures in terms of exclusivity and privileges. For mineral activities in outer space, the Hague Working Group Building Blocks proposed:

The term ‘search for’ here is ambiguous and may cover both prospecting and exploration. To accord operators engaged in the prospecting of resources preferential rights is unusual in other ABNJs. In the Area, for instance, prospecting may be conducted simultaneously by multiple prospectors in the same area or areas.Footnote ¹⁸³ In Antarctica, it was contemplated that prospecting of mineral resources therein shall not require authorization by institutions of the CRAMRA,Footnote ¹⁸⁴ and operators engaged in prospecting in the same general areas shall conduct their activities with due regard to each other’s rights.Footnote ¹⁸⁵ In both areas, prospecting does not confer on the prospector any rights with respect to resources.Footnote ¹⁸⁶ It is exploration and exploitation/development that are usually conducted in an exclusive manner. For this reason, they are usually subject to the approval of managing bodies, the Authority for the Area and the Regulatory Committee for Antarctica.Footnote ¹⁸⁷ In case of competing applications for exploration in Antarctica, the applicants shall be invited to resolve the competition among themselves, by means of their own choice within a prescribed period, and if unresolved it shall be resolved by the Regulatory Committee.Footnote ¹⁸⁸ Exploration does not confer exclusive rights of exploitation, but it does give the entity a priority. In addition, the rights of authorized exploration and development prevail the right of prospecting.Footnote ¹⁸⁹

The above provisions for the Area and Antarctica offer valuable experience for the design of an international co-ordinating regime for mineral activities in outer space. In doing so, the features of resource activities in outer space should be taken into account, in particular how the prospecting of abiotic resources in space is different from that on the Earth. For instance, some researchers proposed the idea of ‘astronomical prospecting’ for the accurate determination of the orbits of Near-Earth Asteroids (NEAs) and a preliminary determination of their composition, thus reducing the need for in situ prospecting.Footnote ¹⁹⁰ Such prospecting can be done on a non-exclusive basis. As it can be scaled to characterize all NEAs as they are discovered, it is inappropriate to accord priority rights to entities conducting them. However, when surveying satellites and rovers are used not only to determine the existence of minerals but also to conduct qualitative assessment of minerals there, the line between prospecting and exploration becomes blurred. The future international co-ordinating regime should grant priority rights that are commensurate to the labour spent. Pound’s idea of rewarding investments should not be unlimited.

The future international co-ordinating regime should also be designed in such a way to avoid de facto monopoly of abiotic resources in space. The exercise of the freedom of exploration and use of outer space is inherently limited by the freedom itself, which is enjoyed by ‘all States without discrimination of any kind’.Footnote ¹⁹¹ As the space capability of states varies greatly, the over-exploitation by states with more advanced capability may create a de facto monopoly, and hinder the enjoyment of this freedom by late-coming states.Footnote ¹⁹² There is even a risk that the very small number of subjects capable of carrying out mineral activities in space have de facto property over abiotic resources in place on celestial bodies, which this article has argued against so strongly. This concern is valid as the priority rights can be renewed repeatedly and a cartel can be easily formed between the very few exploiting subjects to split the available resources. The freedom of exploration and use should be interpreted as preventing the occurrence of such scenarios. In the words of Lachs, the law should ‘refuse to sanction situations which may close the door to equal rights and benefits for all States in the future’.Footnote ¹⁹³

Of course, this question shall not be divorced from the exhaustibility of abiotic resources in space. In principle, the freedom of exploitation should be subject to heavier limitations when the resource in question becomes limited. This is what has happened to the freedom of fishing in the high seas, which has come under increasing limitation by regional fisheries management organizations as they become limited. In the context of space, what stands at the two ends of the exhaustibility scale are the Asteroid Belt between the Mars and the Jupiter, which seem to contain infinite mineral resources in the light of current technology, and the Moon and the Mars, whose resources are more limited. Of course, accessibility should also be taken into account. Asteroids coming close to the Earth are easier to access than those residing in the Asteroid Belt. Their exploitation should be encouraged before they drift away.

Therefore, a category-specific regime is plausible for the international co-ordination of mineral activities in outer space. The exploitation of asteroids, including NEAs with a narrow time window for access, should be subject to the ‘first come, first served’ principle to promote efficient use. On the other hand, abiotic resources on close planets, which are limited, should be partly reserved for late-coming states. A parallel regime resembling that for the Area is ideal for this purpose, but resistance from major space-faring countries is foreseeable. Innovation is needed to balance equality against efficiency. In this regard, some experience can be learned from the international regulations of radio frequencies and the Geostationary-Satellite Orbit (GSO). The International Telecommunication Union (ITU) recognizes that:

The concept of ‘efficient, rational and cost-effective utilization’ is implemented through a ‘first come, first served’ procedure, while a certain amount of frequency spectrum is set aside for future use by all countries, particularly those which are not in a position, at present, to make use of these resources.Footnote ¹⁹⁵ In order to promote efficient use, a 7-year limit is applied to ‘bring into use’ successful applications.Footnote ¹⁹⁶ The ITU now also requires that the majority of slots applied for must be used directly by the country requesting the slots.Footnote ¹⁹⁷ In a word, equality must be afforded an opportunity, but should not undermine efficiency in an undue manner.

4.2.2 The need to revive the obligation of benefit sharing

The obligation of benefit sharing is another element of CHM which distinguishes it from the Roman concepts of res communis and res nullius. Accordingly, developing countries ask for a portion of the direct revenues deriving from the exploitation of resources in ABNJs.

On benefit-sharing, the OST only explicitly goes as far as the sharing of results of activities conducted in outer space, to the greatest extent feasible and practicable.Footnote ¹⁹⁸ Article I lays down the general obligation that the exploration and use of outer space ‘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’.Footnote ¹⁹⁹ Whether this provision incurs the obligation of benefit sharing is a matter of dispute. Some even doubt the possibility of complying with, or to verify compliance with this provision given the broadness of the terms used therein.Footnote ²⁰⁰ At the COPUOS, some delegations expressed that developing countries were not to be excluded from the benefits of space exploration and their rights were to be considered,Footnote ²⁰¹ and benefits were to be enjoyed by all states and peoples.Footnote ²⁰² This is not without challenge. A contrary view can be advanced that to reap the benefits of the exploitative activity is ‘inherently unfair’.Footnote ²⁰³ Some also observed that to reap such benefits neither ‘provides an incentive for technologically advanced nations to conduct expeditions’, nor provides incentive for less-developed nations to develop technology or fund exploration.Footnote ²⁰⁴ As a legal obligation, benefit sharing only arises from the explicit consent of states.

Even the Moon Agreement, which addresses natural resources of the Moon explicitly, does not contain a benefit sharing mechanism. It only provides for, as one of the main purposes of the international regime to be established,

This provision speaks of ‘equitable’, rather than ‘equal’ sharing of benefits. While the latter means equivalent or identical distribution of financial and economic benefits, the former means distribution proportionate to the economic, scientific, or technological effort put forth by each state.Footnote ²⁰⁶ Therefore, the Moon Agreement does not envisage a one-sided approach for the benefit of developing countries, but seeks a balance between investing and non-investing states parties.Footnote ²⁰⁷ Of course, distribution solely by labour is not always equitable. It may lead to a situation that many states remain empty-handed for not being able to put in any effort in extracting mineral resources in outer space. In this regard, Article 11(7) of the Moon Agreement also requires that special consideration be given to the interests and needs of the developing countries. It is thus also fair to say that the Agreement does not envisage a one-sided approach for the benefit of space-faring countries either.

The obligation of equitable benefit sharing did not form an obstacle to the endorsement of the Moon Agreement by space powers. Mr. Hosenball, while pledging to negotiate an international regime, acknowledged that the no-moratorium was ‘part of the compromises made by many delegations’.Footnote ²⁰⁸ By the time, equitable sharing of benefits was accepted as one of the main purposes of the regime to be established, which in turn formed part of the compromises. In the last few decades however, this obligation has come under growing criticism. Concerns have been expressed that the new international regime to be established would potentially be predominated by developing countries which outnumber and can outvote developed countries, thus being able to impose the obligations of technology transfer and payment of international taxes on the latter.Footnote ²⁰⁹ These are regarded as ‘unwise business decisions’ made by nations that ‘do not bear any risk’.Footnote ²¹⁰ Of course, there was no uniform view among the delegations, when the Moon Agreement was concluded, as to what specific obligations the general requirement of equitable benefit sharing would entail. It is, thus, not clear whether the current debates indicate a decay of the obligation of benefit sharing, or form a continuation of the effort to dwell on an issue never solved in the negotiation. But the former has clearly happened in other ABNJs, where very strong benefit-sharing mechanisms negotiated during the NIEO movement for the Area and Antarctica were either watered down significantly or never put in practice.

The UNCLOS provides that activities in the Area ‘shall … be carried out for the benefit of mankind as a whole … and taking into particular consideration the interests and needs of developing States …’, and the Authority ‘shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area …’.Footnote ²¹¹ It establishes a ‘parallel’ system whereby entities with advanced technologies are required to share their preliminary research, by submitting two mining sites. The applicant is also required to share specialized technology with the Enterprise and qualified developing nation.Footnote ²¹² In addition, the payment of application fees, annual fixed fee, and other financial contributions is mandatory for entities substantively engaged in the exploration and exploitation of the Area.Footnote ²¹³ These obligations were then eroded by the 1994 Implementation Agreement. Under the Agreement, transfer of technology is no longer mandatory and unconditional, but follows a market approach;Footnote ²¹⁴ more specific rules are laid down for economic assistance to developing countries affected;Footnote ²¹⁵ and financial requirements are significantly reduced and more flexibilities are provided.Footnote ²¹⁶

The benefit-sharing mechanism for Antarctica, on the other hand, was never put into real test as to the acceptability to states. With an aim to ‘promote opportunities for fair and effective participation of all Parties’ and ‘take into account the interests of the international community as a whole’,Footnote ²¹⁷ CRAMRA comprises a regime of benefit sharing similar to that in UNCLOS. For the conduction of prospecting, the request for identification of an area for possible exploration and development, and the application of a permit for exploration and development, the payment of fees is required.Footnote ²¹⁸ Operators engaged in exploration and development shall pay levies and payments in the nature of and similar to taxes, royalties or payments in kind.Footnote ²¹⁹ In determining the disposition of revenues accruing to it, which are surplus to the requirement for financing the budget, the Commission shall ‘promote scientific research in Antarctica, particularly that related to the Antarctic environment and Antarctic resources, and a wide spread of participation in such research by all Parties, in particular developing country Parties’, and ‘ensure that the interests of the members of Regulatory Committee having the most direct interest in the matter in relation to the areas in question are respected in any disposition of that surplus’.Footnote ²²⁰ However, with the entry into force of the Madrid Protocol on 14 January 1998, which provides for comprehensive protection of Antarctica and prohibits all mineral resource activities of indefinite duration,Footnote ²²¹ the CRAMRA was shelved. It is uncertain whether its regime of benefit sharing can survive the new international geopolitics even if the moratorium of Antarctic mining is lifted.

Today, it has become increasingly difficult to incorporate the obligation of benefit sharing into new law-making processes regarding ABNJs. Negotiations are currently underway with an aim to conclude the Regulations on Exploitation of Mineral Resources in the Area (Mining Code). It would concretize the benefit-sharing provisions of UNCLOS and the 1994 Implementation Agreement by comprising the obligation to pay royalty and fees.Footnote ²²² While the legal obligation of monetary benefit sharing is explicitly provided in the two mother treaties, hence not subject to much dispute, states disagree on the extent of sharing and the utilization of fees collected. Greater difficulties are met in the negotiation of an agreement for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ), which is yet given CHM status.Footnote ²²³ While developing countries demand inclusion of the obligation of benefit-sharing by tying it to the access of MGRs, developed countries are against such an obligation, in particular that in the monetary form.

The strong mechanisms of benefit sharing were achieved in UNCLOS and CRAMRA because it was tied to the right of access preemptively. The Moon Agreement, on the other hand, set the issue of benefit sharing aside for the future negotiation when the exploitation is feasible, in order not to frustrate the efforts seeking feasible exploitation. This gap provides an opportunity for space-faring countries, even if they join in the treaty, to decouple free access from benefit-sharing, with the former upheld and the latter watered down if not abandoned completely. The obstacle to benefit sharing will be high in the future negotiation of an international legal regime, which is likely to follow a binary pattern between space-faring countries and non-space-faring countries. Although among the former category of states there will be need for deconfliction, most of them are not parties to the Moon Agreement and share the common interest on the freedom of mineral exploitation in space. This forms a contrast to the negotiation of UNCLOS which cannot be simplified into a narrative of developing/developed countries. There, while developing countries were keen to preserve the deep seabed as the CHM, many of them were also coastal states seeking to extend their jurisdiction into the sea.Footnote ²²⁴ The extension of jurisdiction also coped with the interest of many maritime powers, who at the same time advocated the preservation of high seas freedoms. By contrast, the binary pattern likely to be followed in the future negotiation on mineral activities in space would make it more difficult to achieve compromises than in UNCLOS III. This holds true for the issue of benefit sharing.

Recent state practice has betrayed the resistance of major space-faring countries to strong benefit sharing. The Artemis Accords provide for the obligation of open sharing of scientific data,Footnote ²²⁵ with private sector operations exempted from this commitment.Footnote ²²⁶ This practice represents a narrow interpretation and application of Article XI of OST, which may be justifiable by the discretion of ‘to the greatest extent feasible and practicable’ in the provision. The Hague Working Group Building Blocks addresses the benefits ‘arising out of the utilization of space resources’ explicitly. The sharing of such benefits is to be realized ‘through the promotion of the participation in space resource activities by all countries, in particular developing countries’, and the benefits to be shared may include enabling, facilitating, promoting, and fostering the development of space science and technology and of its applications, the development of relevant and appropriate capabilities in interested states, co-operation and contribution in education and training, access to and exchange of information, incentivization of joint ventures, the exchange of expertise and technology among states on a mutually acceptable basis, and the establishment of an international fund.Footnote ²²⁷ The inclusion of compulsory monetary benefit-sharing in the future international framework is explicitly rejected.Footnote ²²⁸

Capacity building and co-operation are apparently a tuned-down version of benefit sharing, but their value deserves a second thought. As an old Chinese saying goes, ‘Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.’ This may be useful at the early stage of mineral exploitation in space, when strong mechanisms of monetary benefit sharing may discourage technology development. When profitability remains to be proved, co-operation and capacity building are more feasible means of benefit sharing. The problem of this approach pertains to the legal nature of co-operation and capacity building. Although the OST does take international co-operation as an objective,Footnote ²²⁹ whether it is a legal obligation was subject to dispute. This question was clarified in the 1996 International Cooperation Declaration. According to it, while particular account should be taken of the needs of developing countries, states are free to determine all aspects of their participation in international co-operation in the exploration and use of outer space on an equitable and mutually acceptable basis.Footnote ²³⁰ It is thus important to establish the legal obligations of capacity-building and co-operation. This seems acceptable to major space-faring countries as well as others, although the latter may expect more than this.

Having said that, monetary benefit sharing shall not be ruled out. With the advance of technology, space mining can become a highly profitable enterprise. If it is agreeable that Pound’s theory of rewarding investments should be limited, monetary benefit sharing can help to offset the rewards disproportionate to investment. Existing legal regimes, international and domestic, offer valuable experience on the forms of monetary benefit sharing, such as the collection of fees and royalties. Of course, to establish the legal obligation of monetary benefit sharing, the consent of major space-faring countries is needed. The immense difficulty of this approach is foreseeable. The acceptability of such an obligation is also related to the utilization of the gains collected. Proposals have been made to apportion the resource fund among states, e.g., by reference to the citizen’s dividend model of Alaska.Footnote ²³¹ However, the simple division of gains among states would make the whole benefit sharing regime less acceptable to major space-faring countries. Perhaps to limit the use to deal with common challenges in space and even on the Earth, such as the proliferation of space debris and the spread of pandemics, would help to garner wider acceptance from key players.