Reilly II, J. F., 2013, Avoiding extraterrestrial claim jumping: Economic development policy for space exploration and exploitation, in W. A. Ambrose, J. F. Reilly II, and D. C. Peters, eds., Energy resources for human settlement in the solar system and Earth’s future in space: AAPG 7 Memoir 101, p. 141–150. Avoiding Extraterrestrial Claim Jumping: Economic Development Policy for Space Exploration and Exploitation James F. Reilly II American Public University System, 111 W. Congress St., Charles Town, West Virginia, 25414, U.S.A. (e-mail: [email protected]) ABSTRACT ny frontier exploration effort transitions eventually to an exploitation phase. Exploitation can be research or economic in nature. In either case, A a regulatory framework is required to coordinate and govern any activity in the new realm. The Earth orbital regime has entered the exploitation phase with the advent of a permanent research facility in the form of the International Space Station (ISS) and increasing activity in the private sector. The lunar regime and perhaps near-Earth asteroids will be potentially entering the exploitation phase within the next two decades. A regulatory structure in the form of an in- ternational agreement using elements similar to the Antarctic Treaty and the Intergovernmental Agreement for the ISS may be used as an example of a poten- tial regulatory structure for the exploitation of the extraterrestrial environment. Inevitably, economic development will follow the research phase if not specifi- cally prohibited in any future treaties or agreements. To manage these activities, an organization similar to the World Trade Organization could form the basis of a management body for economic activities. INTRODUCTION that we use everyday. The only real differences between this site and any other remote mining ‘‘This mining outpost owned by an interna- facility are the long daylight periods and what tional conglomerate runs three shifts every 24 h, seems like even longer nights. Days are, by most recovering unique materials from the soils and residents’ accounts, easier to handle as the bright ships them to facilities where they are processed light makes it easier to move around. The high and delivered to industries that use them to gen- temperatures during the solar noon, however, erate the energy and manufacture the products sometimes cause cooling systems to overheat. The Copyright n2013 by The American Association of Petroleum Geologists. DOI:10.1306/13361571M1013544 141 142 / Reilly nights do have their awe-inspiring aspects, how- under several regulatory schemes: enterprise-only ever, since the stars are too numerous to count governance, where corporate policies regulate opera- and, when lights are left off and by looking close- tions (essentially a laissez-faire environment); nation- ly, a miner can see colors in the dots of light not al legal frameworks, where corporations and other seen on earth...’’ (an excerpt from the TerraLuna entities are regulated by the laws of their home coun- Mining Confederation brochure, welcoming visi- try; or international agreement, where the interests tors to the Mare Procellarum mining facility). of the participating nations will be merged to form a regulatory regime to ideally provide a stable economic The above is obviously fiction, but someday, extra- climate for commercial activities. Each of these three terrestrial mining will be an industry actively pursued points in the regulatory spectrum will be briefly re- by corporate entities once economic critical mass, or viewed to define potential strengths and shortcomings when reserves and demand reach the point of com- in each of the different approaches. An attempt will mercial interest, is achieved. Although it may be a de- then be made to define an option providing the most cade or more away, as Harrison H. (Jack) Schmitt palatable regime for the future enterprises that will risk (2006) describes in his book Return to the Moon,the extensive sums to form the future industries while rec- pressure for exploitation of assets, both mineralogical ognizing the regulatory interests of the public sector. and potentially biological, on near-Earth bodies will Multinational agreements, most commonly those ultimately be inevitable. As in recent low Earth orbit driven by the political sector, commonly retain po- exploration projects, like the International Space Sta- litical risk in the form of common-heritage-of- tion (ISS) and numerous communications and resource mankind clauses that effectively impede develop- monitoring satellites and systems, extra-terrestrial asset ment. In effect, the inclusion of commons language exploitation, when it occurs, will likely not be a single may be thought of as the distribution of any realized nation’s effort but one of a transnational or truly inter- benefits to the broader community of humankind national entity. The future business may be totally com- without regard to the participation of any commu- mercial or may be a hybrid government-commercial nity in the development of the enterprise. Benefits enterprise. In either case, political considerations that transferred to those who have not provided capital will be unavoidable will exist. An agreement between in one form or another in the form of investment (or political entities will need to exist to allow the devel- skininthegame)intheenterpriseisanotherway opment of equitable relationships by the transnational of describing this condition. This has been a major economic entities and the protection of investment and impediment to ratification of the United Nations production by regulation that will allow a legally clear Convention on the Law of the Sea (UNCLOS) Treaty and clean process for exploitation of future resources. by the United States primarily because of the lack of By negotiating the terms of an international agree- commercial protections for a return on investment ment and the regulating structure now, an equita- and the lack of adequate protections on the intel- ble and flexible framework may be developed under lectual property (IP) developed as part of any exploi- which any and all signatories will be involved in the tation program. Unless an organization or country governing process before economic and political decides to proceed in an enterprise, ignoring these pressures arise to make the task more difficult. What conditions on the assumption that they are ulti- form could this agreement take and what might mately unenforceable, the inclusion of the com- work effectively as a regulatory body in this new en- mons language in the Law of the Sea Treaty will still vironment? This chapter will present a possible for- need to be addressed before any commercial activity mat for an international agreement using aspects of may proceed. the successfully implemented agreements governing A concept of shared risks, shared rewards exists Antarctic operations and the ISS as a guideline for a in almost every commercial mining and/or extrac- space exploration and exploitation instrument and for tion enterprise. Hydrocarbon exploration agree- proposing an international governing body using the ments routinely exist between regulatory agencies Worl Trade Organization (WTO) as a model. of the respective governments owning the license areas and industry partners that are commonly multi- REGULATORY FRAMEWORK national in origin. This works well when the regulat- ing agency (owning government) owns the rights and Exploration and exploitation of the Moon and licensing authority to the resource area. What hap- ultimately other celestial destinations may operate pens when that ownership is unresolved as in the Avoiding Extraterrestrial Claim Jumping / 143 case of international waters for mineral extraction economic zones (EEZ). However, in the case of the or in the case of resources in the space regime? Where Moon and other celestial bodies, any such ownership does the regulatory authority come from and who or territorial claim is specifically rejected within the delegates that authority to that entity? Outer Space Treaty. However, where national juris- Early stages of exploration leading to exploitation diction is extended into the stateless regimes, then may conceivably be conducted unilaterally by any national-level regulations have characteristically cov- enterprise. However, in any completely open market ered operations. Examples are the national research space, ownership of the assets will eventually become stations in Antarctica (Figure 1) and those within a critical governance issue requiring regulation. As an the national assets of the ISS (Figure 2). In the case of example, as satellite telecommunications demand in- the United States stations in Antarctica, United States creased, the slots for satellite positioning in the geo- law is extended for both civil and criminal matters. stationary orbit plane (GEO) became a critical asset Aboard the ISS, United States law extends to the issue. In response to the pressure of avoiding not only modules operated by the United States. However, in physical, but also radio frequency interference be- the case of the ISS, the United States legal extensions tween GEO communication satellites, the Interna- generally do not extend into the other key compo- tional Telecommunication Union (ITU), originally nents of the station owned and operated by other formed in 1865 to provide a common set of rules for countries. In this case, a separate supranational agree- telegraphy across national borders, became empow- ment was made between