The Common Heritage of Humankind principle has regained international importance in relation to the exploitation of marine resources in areas beyond national jurisdiction. However, it is necessary to assess what role it might play in future international negotiations for the governance of space mining.

In a recent piece in The Strategist, Abdel-Motaal argued that contemporary developments in space policy, namely formation of the US-lead Artemis Accords, might be relevant for governance of resource extraction on earth, particularly for the long-speculated issue of Antarctic mining. We broadly agree with Abdel-Motaal’s conclusion that the Artemis Accords model to governing resource extraction, which is a facilitation-based approach to non-binding agreements between national agencies, is not likely to have influence upon current policy settings in Antarctica. The seven existing sovereignty claims in Antarctica, and the clear prohibition on mineral resource activities in the 1991 Environmental Protocol to the Antarctic Treaty, mean that Antarctica is a very different legal situation to Outer Space. Antarctica is not likely to see any mining over the coming decades, whether under the Artemis Accords model or otherwise.

However, Abdel-Motaal’s piece does raise an important issue, that is, the principle of “common heritage of mankind” (CHM), sometimes also called the “common heritage of humankind.” CHM is a principle in international law embodied in several international instruments such as the 1979 Moon Agreement and the 1982 Law of the Sea Convention (LOSC). The CHM principle is essentially a benefit sharing principle between developed and developing states regarding access to resources located in areas beyond national jurisdiction. During the 1970s and early 1980s the developing world was heavily promoting a policy agenda in the United Nations known as the New International Economic Order (NIEO) which sought more favourable arrangements for developing states in the international economic system. Developing states were concerned that new opportunities were emerging for potential resource exploitation in areas beyond national jurisdiction (such as the deep seabed, asteroids, and the Moon), but these opportunities will only be available to developed states which have the requisite technology and financial capacity. This concern with “being left behind” was raised strongly by developing states in the LOSC negotiations between 1973-1982.

The CHM principle does not appear in the Antarctic Treaty System, and due to the seven sovereignty claims to Antarctic territories, it is not possible to apply this principle in Antarctica.

However, the CHM principle was included in Article 11 of the Moon Agreement and in Part XI of the LOSC as a response to the above concerns. The CHM principle provides comfort to developing states that if resource extraction proceeds in Outer Space or the “Area” (i.e. the deep seabed beyond national jurisdiction) in the future, benefit sharing regimes would be first developed to ensure a just distribution of benefits to developing states. Part XI of the LOSC was amended in 1994 to allow sufficient ratification for the LOSC to come into effect and it provides the specific rules for benefit sharing of deep seabed exploitation. The LOSC currently has been ratified by 170 parties. However, the Moon Agreement has not been further developed to provide a regime of benefit sharing for space mining. The Moon Agreement also has very limited coverage, only 17 states in the international system having ratified it, none of which are major space powers that would be likely to independently pursue space mining in the near future.

While the CHM principle is historically important in the development of international law, particularly in balancing the resource interests of developed and developing states, deep seabed and space mining did not eventuate in the 1990 and 2000s. The lack of progress on deep seabed and space mining meant that tangible implementation of the CHM principle went missing. The CHM principle also lost prominence in international law discourse during the period of neoliberal globalisation of the 1990s-2000s, when free-market ideas were prioritised by developed states ahead of the redistributive concerns of developing states.

However, the CHM principle has again risen in prominence within international legal discussions. Firstly, the prospect of deep-seabed mining moving from the prospecting to extraction stage has heightened in recent years. Deep seabed mineral extraction is expected to commence soon. We are therefore likely to see the tangible operation of the benefit sharing of Part XI of LOSC. Secondly, in 2023 a new implementing agreement under the LOSC was agreed to—the Conservation of Biodiversity Beyond National Jurisdiction (BBNJ Treaty)—which contains important new rules on exploitation of marine genetic resources (MGRs). As a part of the negotiations for the BBNJ Treaty, CHM was very prominently raised by developing states, reflecting  similar concerns from the 1970-80s that developing states should not be left behind in terms of the benefits that flow from future marine genetic resource collection and exploitation in areas beyond national jurisdiction. The inclusion of CHM in the BBNJ treaty points to a re-assertion of the importance of the CHM principle in international law, particularly from the developing world perspective. In contrast, the Artemis Accords approach to space mining might be viewed as an attempt by the United States and other developed states (including Australia) to weaken any wider influence of CHM in any future space mining activities.

Technically CHM only binds a small number of states associated with the Moon Agreement. But if space mining activities proceed more generally under the 1969 Outer Space Treaty (Article 1), there is likely to be significant political pressure from developing states for a similar type of benefit sharing arrangement to be agreed on and put in place. There will again be political pressure from developing states to ensure that they are not left behind.

To summarise, the CHM principle arose out of conflict between developed and developing states in the 1970s over access to resources in areas beyond national jurisdiction. It has not occupied a central place in international legal discussions over the past three decades as the two key activities towards which it was directed, deep seabed mining and space mining, failed to materialise due to a combination of economic and technical matters. However, the CHM principle has now re-emerged prominently regarding access to MGRs from the oceans. In our view it will play a prominent role—despite being only embedded in the Moon Agreement—in future international negotiations for governance of space mining. Leading space powers, including the US and China, will need to think about how to respond to these calls for CHM, as space mining appears on the horizon of international affairs.

This research was supported by the University of Newcastle CHSF 2024 Pilot Research Scheme.  

Associate Professor Jeffrey McGee (Institute for Marine and Antarctic Studies – Faculty of Law, University of Tasmania). Dr Bruno Arpi (Institute for Marine and Antarctic Studies – Faculty of Law, University of Tasmania). Dr Bin Li (School of Law and Justice, University of Newcastle). Dr Yucong Wang (School of Law and Justice, University of Newcastle)

This article is published under a Creative Commons License and may be republished with attribution.