Developing an international regime for space resources through the lenses of the law of the sea. Recent lessons from the international seabed authority

With the International Seabed Authority approaching the approval of the Regulation on Exploitation of Mineral Resources, this paper aims at shedding light on the contribution of the deep seabed mining to the development of the regime for space resources envisaged by Article 11 of the Agreement Governing the Activities on the Moon and Other Celestial Bodies (Moon Agreement). The starting point is a brief reflection on whether the concept of the Common Heritage of Mankind (CHMK), which has been applied to space resources, is still suitable. The foreseen regime set for the mineral exploitation of celestial bodies, in fact, has often times said to be among the reasons for the lack of attractiveness of the Moon Agreement, which is still not ratified by the space-faring nations. More than fifty years after its first inclusion in an international agreement, the application of the CHMK shows opposing trends: the dichotomy between its supporters, in the light of the success reached in the Law of the Sea, and those mistrusting its factual application is also mirrired in the current debate on marine generic resources, which is undergoing at the United Nations. As an analysis of the enforceability and profitability of the CHMK for space resource is needed, a comparison with the Law of the Sea and its evolution, is of utmost importance. Taking into account the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and its 1994 Implementing Agreement on Part XI, which served the aim of enlarging the number of State parties to the Convention, the path followed in the field of the Law of the Sea can evidently pave the way for the adoption of a proper regulation of space mining. This is particularly true for the role played by the International Seabed Authority, whose institutional arrangements, with the necessary adaptations, can be easily considered as a model. In particular, the imminent approval of the Regulation on Exploitation of Mineral Resources constitutes a chance to draw useful hints for a future legal regime applicable to space resources. While some aspects can already be dealt with by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST) and the Convention on International Liability for Damage Caused by Space Objects (LIAB), the issues of plans of work, licensing mechanisms, reviewing of exploitation contracts, financial terms and dispute settlements are still to be settled and could be inspired by the existing regulations for deep seabed mining. Having regard to the recent studies on a possible framework for the exploitation of space resources, this paper will provide examples of how an appropriate and modern understanding of the CHMK, together with the sharing of best practices with the International Seabed Authority, can boost future arrangements.