The Hague Building Blocks: A Small Step Toward the Moon Treaty?
[In December 2017, the Hague International Space Resources Governance Working Group published its Draft Building
Blocks for the Development of an International Framework on Space Resource Activities (see
https://www.
universiteitleiden.nl/en/law/institute-of-public-law/institute-for-air-space-law/the-hague-space-resources-governance-
working-group; link to Building Blocks after introduction).   Below is an extended comment that was submitted using the
structure recommended by the Working Group.]

Do you think that the Draft Building Blocks cover all relevant topics?  No

What is missing?

1.  Opening Statement: The list of stakeholder categories does not include public interest NGO’s.  Academia, agencies,
and government are not sufficient.  Humanity as a whole must be represented by organizations not bound to a specific
institution or source of funding.
2.  Purpose: The statement of purpose calls for recommendations concerning an implementation strategy and forum, but
such recommendations are either nonexistent or vague.  There is also a call for standards and procedures to be created
but few details as to how.  More below.
3.  Introduction: Contrary to the Working Group’s assertion, it is both feasible and necessary at this time to address Space
Resources Activity, which includes exploration and extraction (“searching” and “recovery”, 2.3).  Contemporary technology
and resources have already made this the appropriate time to start that process.  
4.  2.2 and footnote 3: Contrary to assertion, Utilization (or perhaps Activity) must include the initial entry of space
resources into the commercial market.  One of the main drivers of an international framework is to create some sort of right
that allows operators to market extracted resources.  The moment of entry is also the time when fees might be collected.  It
should not be ignored solely because some want such payments to be voluntary.
5.  Non-Extractable Resources: The definition of a “resource” in 2.1 is too limited.  Celestial bodies can be a commercial
resource even if materials are not extracted (e.g., the locations for hotels and solar-farms, especially if some sites, e.g.
polar regions, are better than others and thus limited).  The Building Blocks do not mention such resources, even though
such commercial use would still require the granting of priority rights, the development of best practices, the avoidance of
adverse effects upon others, and the possible sharing of benefits.  The standards, principles, and governance process
developed for material resources can easily be applied to location resources, and thus should be included.  The potential
operators of such enterprises should likewise be included as stakeholders.

Do you think that the Draft Building Blocks are detailed enough?  No

1.  1.2.a and 4.3.d: Do “United Nations treaties” and “international law” include the Moon Treaty and the other treaties,
principles, and related resolutions adopted by the United Nations?  See http://www.unoosa.
org/res/oosadoc/data/documents/2017/stspace/stspace61rev_2_0_html/V1605998-ENGLISH.pdf for list and texts.  You
must be specific one way or another or risk being misleading.  Looking at the Building Blocks as a whole, I believe you are
trying to satisfy at least the principles of the Moon Treaty.
2.  3.1: The Building Blocks must include “and any national activity that they authorize/supervise” to clarify that the
international framework will apply to non-governmental entities.  There are some who will forcibly argue that it does not if
such activity is not so specified.
3.  12.1.f: Should specify that intellectual property owned by non-governmental nationals is included in the “sharing of
benefits”.  See below for details.

What are the 3 most controversial topics addressed in the Draft Building Blocks?

1.  Granting of property rights.  This is the most controversial topic at this time because some States are granting them
unilaterally to their nationals, an apparent violation of the Outer Space Treaty prohibition against any State claiming
sovereignty.  The Building Blocks attempt to grant such rights using an international framework of laws, which is consistent
with Article 11 of the Moon Treaty.
2.  The sharing benefits with less-developed countries, humanity as a whole.  The Building Blocks attempt to do this
without any mandatory payment by operators.
3.  The structure of ongoing governance and administrative agency.  The Building Blocks attempt to enumerate functions
that must be performed but lack specifics as to who and how.

Do you think that these controversial topics have been addressed adequately?  No

If not, what improvements do you suggest?

1.  Property Rights:
a) The international framework of laws must detail the circumstances affecting the time/space/characteristics of any priority
rights for exploration/extraction, or it must specifically assign that task to a new governance process and its administrative
agency.  That agency should also be empowered to grant the priority rights necessary to bring resources to market.  As
currently written, the Building Blocks use the passive voice to declare that these things must happen without saying how or
by whom.  The agency called for in 17.c is given the portfolio of determining best practices; it should likewise be given
responsibility/authority for the above.
b) The status of intellectual property is left to agreements between individual States (12.1.f).  The framework should
declare that any intellectual property that is not banned from export must at least be made available for purchase/licensing
at fair market value, while allowing other types of sharing on a mutually acceptable basis.
2.  Sharing of Benefits:
a) The Building Blocks list some public policy activities that would be considered the sharing of benefits (12.1).  The
international framework of laws must specify that the public policy obligations of States under international law also apply
to any national activity authorized and/or supervised by those States (i.e., to space resource utilization/activity by any of
their nationals).
b) The Building Blocks rule out compulsory monetary benefit-sharing.  The international framework of laws should specify
that the administrative agency envisioned in 17.c can charge a fee to cover its administrative costs.  This would not be
"compulsory monetary benefit sharing" and thus still consistent with 12.2.  Any additional collection of fees for the sharing
of benefits (e.g., contributions to the international fund of 12.1.g) would be determined by the ongoing governance process
(see below).  A State can grant its nationals a tax credit for any such fees it believes that private enterprise should not bear
them.
3.  Ongoing Governance:
As noted above, the Building Blocks often say that certain functions should be done without specifying how or by whom.  
The international framework of laws must establish a process of governance for making such decisions and an agency to
administer them.  The Convention on the Law of the Seas (157 Member States) provides a model for such governance: an
Assembly of all Member States that chooses a smaller Executive Council that represents all interest groups, which itself
chooses a Finance Committee.  Procedural matters require a simple majority of the Assembly or Council, while substantive
matters require a 2/3 majority, but all financial proposals must come from the Finance Committee, which requires
consensus.  The governance established by the international framework need not be identical, but it must be as specific.  
Ongoing governance is the only way to “incrementally regulate space resource activities at the appropriate time.”

What are the 3 least controversial topics addressed in the Draft Building Blocks?  (see below)

Do you think that these topics have been addressed adequately?  No

If not, what improvements do you suggest?

1.  Cultural Heritage Sites:  There is a growing consensus that cultural heritage sites (e.g., early Moon landing sites)
deserve protection.  They are not mentioned in any space treaty.  The new international framework of laws must specify
that they are to be protected, perhaps deferring to UNESCO to designate such sites (protecting such sites on celestial
bodies would be added to UNESCO’s portfolio).
2.  Adaptive Governance:  Even the Moon Treaty acknowledges that regulations should be made only when advances in
technology and access require them.  That is why it is essential for any international framework of laws to establish an
ongoing decision-making process that has the authority to do so.  See above for a detailed example of such a process from
the Convention on the Law of the Sea.
3.  Sharing of Benefits:  Although many are averse to using the phrase “Common Heritage of Mankind”, there seems to be
agreement that the exploration/exploitation of outer space must benefit all.  Since there is no agreement yet on specifics,
especially the monetary sharing of benefits, any system of adaptive governance must include the potential for addressing
such matters at a future time.  It is not enough to pay lip-service to the ideal.

Do the Draft Building Blocks provide a useful contribution to the discussion on the governance of space resources?

Yes, they are an attempt to establish governance as need arises, as called for by the Moon Treaty.

Why or why not?

The Building Blocks are precisely what the Moon Treaty calls for: an effort to create incrementally an international
framework of laws based on the information and technology available at the time.  The Working Group should be
applauded for its effort while being prodded to make sure it addresses the concerns of all stakeholders.

What would be the ideal forum to submit the Building Blocks for further discussion and elaboration? e.g. UNCOPUOS,
UNGA, ITU, other (Please justify your answer)

This effort will require nothing less than a conference for drafting an Implementation Agreement for Moon Treaty, convened
by the current Member States, with all States invited.  There are growing calls for a “guiding document” that can resolve
the differences between national and international law and provide a legal framework that will facilitate humanity’s
departure from our home planet.  A treaty is the only mechanism that can do so.  The Moon Treaty already provides a
foundation for such a framework; an Implementation Agreement can address the existing concerns.  On October 3, 2018, I
presented a paper to the International Astronautical Congress that detailed how such an agreement would work.  It is
copied below in Other Remarks and sent via separate email to the Working Group

Thank you very much for your consideration of these comments.