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region with vibrant, sustainable economies; and an outward-looking region within our
global community of nations”.

In the same statement it was pointed out that ASEAN’s vision “has great
resonance with the 2030 Agenda for Sustainable Development, and as we work towards
implementation, there is much inspiration we can draw from the “ASEAN Way” of
compromise, consensus, and consultation”. Thailand was commended in the same
document “for its able and forward-looking leadership as Chair of ASEAN for 2019. Your
theme “Advancing Partnership for Sustainability” speaks to opportunities for both the
region and the wider world, in the areas of harnessing and regulating technology,
increasing connectivity and cooperation, and moving towards sustainable security and
development. It is vital that we build stronger partnerships at all levels to manage these
transitions – and to ensure that people are always at the heart of our efforts”, said María
Fernanda Espinosa Garcés.8

2. Conceptual framework

All ASEAN members took part in the UN Millennium Summit which on September
8th 2000 adopted by consensus the United Nations Millennium Declaration. This Summit
was the largest gathering of world leaders in history as of the year 2000.Over 150 world
leaders representing 189 countries participated in the Millennium Summit, including 100
heads of state, 47 heads of government, three crown princes, five Vice presidents, three
Deputy Prime Ministers, and 8,000 other delegates.9

The main document adopted by the Summit -the Millennium Declaration-
contains eight sections related to the following: Values and Principles; Peace, Security
and Disarmament; Development and Poverty Eradication; Protecting our Common

8 For the full statement see https://www.un.org/pga/73/, accessed on September
11, 2019.

9 Statistical data have been taken from https://en.wikipedia.org/wiki/Millennium_
Summit, accessed on September 10, 2019.

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Environment; Human Rights, Democracy and Good Governance; Protecting the
Vulnerable; Meeting the Special Needs of Africa; Strengthening the United Nations.
In resolution 55/2 containing the UN Millennium Declaration section I dedicated to
Values and Principles starts as follows :”We, heads of State and Government, have
gathered at United Nations Headquarters in New York from 6 to 8 September 2000, at
the dawn of a new millennium, to reaffirm our faith in the Organization and its Charter
as indispensable foundations of a more peaceful, prosperous and just world”.

The part of this section related specifically to values reads as follows in
paragraph 6 : “We consider certain fundamental values to be essential to international
relations in the twenty-first century. These include:

• Freedom. Men and women have the right to live their lives and raise their
children in dignity, free from hunger and from the fear of violence, oppression or
injustice. Democratic and participatory governance based on the will of the people best
assures these rights.

• Equality. No individual and no nation must be denied the opportunity to
benefit from development. The equal rights and opportunities of women and men must
be assured.

• Solidarity. Global challenges must be managed in a way that distributes the
costs and burdens fairly in accordance with basic principles of equity and social justice.
Those who suffer or who benefit least deserve help from those who benefit most.

• Tolerance. Human beings must respect one other, in all their diversity of
belief, culture and language. Differences within and between societies should be neither
feared nor repressed, but cherished as a precious asset of humanity. A culture of peace
and dialogue among all civilizations should be actively promoted.

• Respect for nature. Prudence must be shown in the management of all living
species and natural resources, in accordance with the precepts of sustainable
development. Only in this way can the immeasurable riches provided to us by nature
be preserved and passed on to our descendants. The current unsustainable patterns of
production and consumption must be changed in the interest of our future welfare and
that of our descendants.

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• Shared responsibility. Responsibility for managing worldwide economic and
social development, as well as threats to international peace and security, must be
shared among the nations of the world and should be exercised multilaterally. As the
most universal and most representative organization in the world, the United Nations
must play the central role.

In order to translate these shared values into actions, we have identified key
objectives to which we assign special significance.”10

In a simple classification, values can be divided into universal, regional, national
and individual. Universal values are independent of time, place, language and culture.
They have a high relevance today and their existence has to be attentively scrutinized
in global and regional instruments. Facts are expected to testify to their presence in
current international relations more eloquently than the words through which they are
expressed in legal or political instruments. By their very nature universal values rise
above the diversity of individual roles of countries. They are able to strengthen the
existing order and help build up a better one. Universal values are meant to be gradually
reflected in the laws and philosophical doctrines, in education, language, rules and
norms. The UN has a vital role to play in giving tangibility to universal values.11

Guided by universal values, member states are constantly called upon by the
UN to strengthen regional and international peace and security for the benefit of all.
The growing interdependence between nations is an imperative reality and all
states are expected to conduct their relations on the basis of the universal values and
to shape their behavior in harmony with these values. Their fundamental objectives can
be peacefully achieved only if they are in accordance with universal values and are able

10 The Millennium Declaration is permanently available at https://undocs.org/en/
A/RES/55/2.

11 See the key-note speech by Kofi A. Annan published under the title Universal
values can help bridge the world’s divides available at https://www.kofiannanfoun
dation.org/news-releases/kofi-a-annan-universal-values-can-help-bridge-the-worlds-
divides/, accessed on September 12, 2019.

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by their substance to reflect common aspirations and are clear enough to be largely
supported by meaningful international cooperation.

One of the simples’ explanations of the high practical significance of values in
general was expressed by Mahatma Gandhi, leader of the Indian independence
movement and pioneer of the philosophy and strategy of non-violence. He said, “Your
beliefs become your thoughts. Your thoughts become your words. Your words become
your actions. Your actions become your habits. Your habits become your values. Your
values become your destiny.”12

There is no consensus in the doctrine of international law on the real existence
of universal values. For instance, Professor David Kennedy from the Institute for Global
Law and Policy, Harvard Law School, Cambridge, MA, wrote the following:” If we step
back for a moment, we could say that international law promises to play a series of
quite distinct functions in international society. Many look to international law for the
expression of universal values, most commonly in the human rights canon. But we now
know that people disagree about the most fundamental things, that values are not
universal, and that even human rights can often be part of the problem as of the
solution.” The same author concludes that “Exercising our critical muscles, we can
discourage being carried away by the dream of universal values”.13

A significant warning about some inappropriate interpretations of universal values
was expressed on 28 September 2019 by an ASEAN Member State. Taking the floor in
the general debate of the 74th session of the UNGA, Prak Sokhonn, Cambodia’s Deputy
Prime Minister and Minister for Foreign Affairs and International Cooperation, said the
emergence of a multipolar world should pave the way to peaceful coexistence. But
some powers, under the pretext of universal values, are fomenting a new form of global
division that recalls the worst moments of the cold war. Using humanitarian reasons as

12 The quotation is available at https://www.goodreads.com/quotes/50584-,
accessed on September 14, 2019.

13 See New Approaches to International Law.The European and the American
Experiences. Published by T.M.C. ASSER PRESS, The Hague, Springer-Verlag Berlin,
Heidelberg, 2012, p.VIII.

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a pretext to interfere in domestic affairs or to provoke regime change is deceptive and
deceitful, he said, adding that increasingly serious threats to global security and the
planet’s future are a direct consequence of weakening multilateralism.14 This warning is
instructive. Reading and interpreting realistically world developments, the UN of the
twenty-first century has the historic duty of encouraging a positive step towards a
process of active solidarity by promoting values, attitudes and specific initiatives capable
of improving inter-State relations.

3. Peace-oriented values

Google indicates there are about 134,000,000 results for ASEAN in September
2019.In accordance with the same source, there are about 6,930,000,000 results for the
word value, while for the expression “ASEAN and universal values” there is only one
result. This result is from the article by R. Parker published in and cited 2016by three
other authors.15 Parker advocates for the necessity to formulate a definition that
addresses both core ASEAN and universal values. We proceed in the following pages to
an analysis of the ASEAN Charter which contains three specific references to values.16

Article 1, paragraph 1 of the ASEAN Charter starts by proclaiming that “The
Purposes of ASEAN are: 1. To maintain and enhance peace, security and stability and
further strengthen peace-oriented values in the region; ….” This is the first text of this
legal instrument related not only to values in general but to the “peace-oriented
values” which are not listed in the Charter. The second reference to values appears in
article 2 of the Charter dedicated to principles. Paragraph 2 of this article stipulates that

14 See https://www.un.org/press/en/2019/ga12198.doc.htm, accessed on
September 30, 2019.

15 See for the full text of the article https://research.acer.edu.au/cgi/view
content.cgi?article=1020&context=ar_misc, accessed on September 9, 2019.

16 The official text of the ASEAN Charter is available at https://asean.org/storage/
images/archive/publications/ASEAN-Charter.pdf

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“2. ASEAN and its Member States shall act in accordance with the following Principles….
(l) respect for the different cultures, languages and religions of the peoples of ASEAN,
while emphasizing their common values in the spirit of unity in diversity;” The existence
of “common values” in ASEAN is presumed without being defined in the text.

The third reference to values is contained in article 35 entitled ASEAN identity
which reads as follows:” ASEAN shall promote its common ASEAN identity and a sense
of belonging among its peoples in order to achieve its shared destiny, goals and values.”
We will take now each universal value proclaimed in the UN Millennium Declaration
and will try to answer the question is , how and in what context these value are reflected
in the fundamental documents guiding at present the activities of ASEAN on regional
and global arenas.

Freedom is mentioned four times in the ASEAN Charter, the first time in its
preamble, in a paragraph reading as follows: “ADHERING to the principles of democracy,
the rule of law and good governance, respect for and protection of human rights and
fundamental freedoms; “This text is remarkable by its similarity with the language used
on the same issue in the UN Millennium Declaration. This idea is repeated in article 1
about purposes, in a separate sub-paragraph reading as follows:” 7. To strengthen
democracy, enhance good governance and the rule of law, and to promote and protect
human rights and fundamental freedoms, with due regard to the rights and
responsibilities of the Member States of ASEAN;”

The third time the concept of fundamental freedoms appears in the article about
principles, in a sub-paragraph reading as follows: “(i) respect for fundamental freedoms,
the promotion and protection of human rights, and the promotion of social justice;”.
The fourth (last) time the reference to fundamental freedoms is contained in article 14,
in its first sub-paragraph reading as follows:” 1. In conformity with the purposes and
principles of the ASEAN Charter relating to the promotion and protection of human rights
and fundamental freedoms, ASEAN shall establish an ASEAN human rights body”. It
should be reminded that the ASEAN Intergovernmental Commission on Human Rights
(AICHR) was inaugurated by the ASEAN Leaders on 23 October 2009 at the 15th ASEAN
Summit in Cha-Am Hua Hin, Thailand. The current functioning of the AICHR illustrates

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ASEAN’s practical commitment to advance strategies to consolidate the regional
cooperation on human rights. The AICHR is considered as an integral component of
ASEAN organizational structure and a permanent institution with overall responsibility
for the promotion and protection of human rights in ASEAN.

Equality is mentioned five times in different contexts in the ASEAN Charter. The
first reference to equality appears in the preamble of this multilateral treaty which reads
as follows: “RESPECTING the fundamental importance of amity and cooperation, and the
principles of sovereignty, equality, territorial integrity, non-interference, consensus and
unity in diversity”. The same idea is present in article 2 about principles, its paragraph 2
having the following formulation: “2. ASEAN and its Member States shall act in accordance
with the following Principles: (a) respect for the independence, sovereignty, equality,
territorial integrity and national identity of all ASEAN Member States;” The third reference
to equality appears in the ASEAN Charter in a different context in article 11 the relevant
part of which reads as follows:” 1. The Secretary-General of ASEAN shall be appointed
by the ASEAN Summit for a non-renewable term of office of five years, selected from
among nationals of the ASEAN Member States based on alphabetical rotation, with due
consideration to integrity, capability and professional experience, and gender equality.”
The same idea is repeated in the same article 11 in paragraph 6 which says :” The four
Deputy Secretaries-General shall comprise: (a) two Deputy Secretaries-General who will
serve a non-renewable term of three years, selected from among nationals of the ASEAN
Member States based on alphabetical rotation, with due consideration to integrity,
qualifications, competence, experience and gender equality;” The last (fifth) reference
to equality is contained in article 42 which has a special significance for obvious
operational reasons. This article says:” 1. Member States, acting as Country Coordinators,
shall take turns to take overall responsibility in coordinating and promoting the interests
of ASEAN in its relations with the relevant Dialogue Partners, regional and international
organizations and institutions. 2. In relations with the external partners, the Country
Coordinators shall, inter alia: (a) represent ASEAN and enhance relations on the basis of
mutual respect and equality, in conformity with ASEAN’s principles;”

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Solidarity is mentioned only once in the ASEAN Charter in its preambular part in
a separate paragraph in which the ASEAN Member States declare that they are
“CONVINCED of the need to strengthen existing bonds of regional solidarity to realize
an ASEAN Community that is politically cohesive, economically integrated and socially
responsible in order to effectively respond to current and future challenges and
opportunities;”. The fact that solidarity is mentioned only once in this multilateral
treaty should not be understood as a lacuna in the overall legal arsenal binding ASEAN
countries. The first substantive preambular paragraph of the ASEAN Declaration (Bangkok
Declaration) signed in Bangkok on 8 August 1967 by the five initial members of ASEAN
says that the signatories are” MINDFUL of the existence of mutual interests and common
problems among countries of South-East Asia and convinced of the need to strengthen
further the existing bonds of regional solidarity and cooperation;”17 Diplomats familiar
with the evolution of this regional organization cogently remind that “ASEAN developed
more complex institutional frameworks after the launch of the ASEAN Charter in 2008,
built organically on the solidarity established over previous decades”.18 It is also
appropriate to bring to public attention the high diplomatic significance of the Treaty
of Amity and Cooperation in Southeast Asia (TAC) of 24 February 1976. This treaty is a
unique multilateral legal instrument with a total of 36 contracting parties, including not
only the ASEAN Members but also USA, China, Russia, India, the European Union, and
with more countries ready to join it. For the purposes of this article it should be
reminded that Article 1 of this exemplary legal instrument says: "The purpose of this
Treaty is to promote perpetual peace, everlasting amity and cooperation among their
peoples which would contribute to their strength, solidarity and closer relationship."
(emphasis added)19. It is probably the only case in the history of multilateral treaties

17 The full text of Bangkok Declaration is available at https://asean.org/the-asean-
declaration-bangkok-declaration-bangkok-8-august-1967/, accessed on September 11, 2019.

18 See Kishore Mahbubani, Jeffery Sng, op.cit., electronic version, see note 2,
supra.20.See note 19 supra.

19 The full text of the Treaty is available at https://asean.org/treaty-amity-coo
peration-southeast-asia-indonesia-24-february-1976/, accessed on September 11, 2019.

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when the value of solidarity appears in the very first article of a treaty of such political
and diplomatic importance. During the current increasingly unsettled and challenging
world, the topicality of this provision about solidarity does not require special
demonstration.

Analyzing the relevance of solidarity for ASEAN, authors with a deep
knowledge of its functioning remind that “even when there were sharp disagreements
between Myanmar and its fellow ASEAN countries, Myanmar decided that sticking with
ASEAN was preferable to opting out. ASEAN camaraderie helped to create this deep
sense of solidarity, which would prove to be useful in crises”.20 The values of tolerance
and respect for nature do not appear expressis verbis in the ASEAN Charter. However,
they are reflected in other ASEAN documents binding all its members, as well as in
global instruments endorsed by the ASEAN countries. Such an instrument is, for instance,
the Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief proclaimed by UN General Assembly resolution 36/55 of 25
November 1981.21 Respect for nature is amply reflected in the 2030 Agenda for
Sustainable Development approved by 193 UN Member States, including all ASEAN
members.22 In accordance with a realistic assessment expressed in a well-documented
book “The culture of tolerance has not always prevented inter-ethnic violence in
ASEAN area but it has prevailed”. The same authors believe that “Southeast Asia seems
to have both the deepest diversity and the greatest levels of tolerance”. A relevant
example is mentioned: “Indonesia’s track record of promoting tolerance and
understanding among different religious communities is excellent”. In the same context,
it was pointed out that “This culture of coexistence between Islamic religion and Hindu

20 See note 19 supra.
21 The Declaration is permanently available at https://www.ohchr.org/EN/Pro
fessionalInterest/Pages/ReligionOrBelief.aspx
22 The 2030 Agenda is permanently available at https://sustainabledevelop
ment.un.org/content/documents/21252030%20Agenda%20for%20Sustainable%20Deve
lopment%20web.pdf

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myths is part of the culture of tolerance of difference that Indonesian society has
developed”.23 (25)

While the value of shared responsibility is not included in this specific
formulation in the ASEAN Charter, its genuine meaning is expressed in terms whose real
significance is nearly identical with that expressed for this value in the Millennium
Declaration. In accordance with article 1 on principles “2. ASEAN and its Member States
shall act in accordance with the following Principles:….. (b) shared commitment and
collective responsibility in enhancing regional peace, security and prosperity;” Article 41
of the ASEAN Charter refers to shared responsibility in the following terms :” 1. Member
States, acting as Country Coordinators, shall take turns to take overall responsibility in
coordinating and promoting the interests of ASEAN in its relations with the relevant
Dialogue Partners, regional and international organizations and institutions.” Nine
references to “shared commitment” are contained in the document entitled Joint
Statement of the ASEAN-U.S. Special Leaders’ Summit: Sunnylands Declaration
Sunnylands, California, 15-16 February 2016.In paragraph 8 of the document the parties
expressed their “Shared commitment to maintain peace, security and stability in the
region”.24 A clear reference to shared responsibility is to be found in a programmatic
document entitled Sochi Declaration of the ASEAN-Russian Federation Commemorative
Summit to Mark the 20th Anniversary of ASEAN-Russian Federation Dialogue Partnership
“Moving Towards a Strategic Partnership for Mutual Benefit” . Article 1 of this document
expresses the commitment of the parties to “Further strengthen the Dialogue
Partnership based on the principles of equality, mutual benefit and shared responsibility
to promote peace, stability, security, prosperity, economic growth, sustainable

23 See note 20 supra.
24 The full text of the Joint Statement is available at https://asean.usmission.
gov/tag/joint-statement/ , accessed on September 20, 2019.

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development and social progress in the Asia-Pacific region with a view to working
towards a strategic partnership;”25

Another important document fully relevant from the perspective of universal
values is the ASEAN Human Rights Declaration adopted on 18 November 2012 by the
heads of state and government of this regional organization.26 In various formulations,
in conformity with the specific context of the document, the value of freedom is
mentioned in this Declaration 8 times, equality 6 times, tolerance 2 times, respect 4
times and responsibility 7 times. An original element of the Declaration is the emphasis
put on peace which in the UN doctrine is considered to be a supreme value of humanity.
Peace is mentioned 7 times in the Declaration and a special article is dedicated to the
right to peace which makes this document unique among similar global and regional
instruments. Article 38 of the Declaration stipulates that “Every person and the peoples
of ASEAN have the right to enjoy peace within an ASEAN framework of security and
stability, neutrality and freedom, such that the rights set forth in this Declaration can be
fully realized. To this end, ASEAN Member States should continue to enhance friendship
and cooperation in the furtherance of peace, harmony and stability in the region”. As
our article deals with ASEAN and universal values it should be also reminded that in
accordance with article 7 of the Declaration under consideration “All human rights are
universal, indivisible, interdependent and interrelated”. It can be asserted that the
values proclaimed in the Millennium Declaration (Freedom, Equality, Solidarity,
Tolerance, Respect for nature, Shared responsibility) are also universal, indivisible,
interdependent and interrelated. It can be illustrated by examples offered by the
diplomatic practice of ASEAN member States. In 2018 the delegation of Thailand, taking
the floor in the UNGA’s general debate, expressed “solidarity with the Government and
people of Indonesia for the terrible loss of lives, injuries and damages following the

25 The Sochi Declaration is available at https://www.asean.org/storage/2016/05
/Sochi-Declaration-of-the-ASEAN-Russia-Commemorative-Summit-Final.pdf, accessed on
September 20, 2019.

26 The ASEAN Human Rights Declaration is permanently available at https://www.
asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_Booklet.pdf

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catastrophic earthquake and tsunami that hit the island of Sulawesi.”27 As far as the
respect for nature is concerned, the Thai delegation announced in the same diplomatic
forum that “Thailand is the first Asian country to join a global initiative to clean up the
oceans around tourist hotspots like Koh Samui, Koh Tao and the famous Phuket. We are
working on raising public awareness on climate change. We are also cooperating with
other countries in the region to mitigate the risks of natural disasters like what just
happened in Indonesia”.28 A serious challenge about the practical relevance of the
values of tolerance and solidarity in the ASEAN area is illustrated by the tremendous
difficulties emerging from the situation of Rakhine State in Myanmar. We will present a
few positions expressed on this issue by some ASEAN Member States using UN
documents and respecting the nuances and the terminology of original statements
dictated by political attitudes of diplomatic representatives. In 2018, in its statement in
the UNGA’s session, the delegation of Malaysia said:” In Myanmar, Muslims in Rakhine
state are being murdered, their homes torched and a million refugees had been forced
to flee, to drown in the high seas, to live in makeshift huts, without water or food,
without the most primitive sanitation. Yet the authorities of Myanmar including a Nobel
Peace Laureate deny that this is happening”.29

The delegation of Singapore reminded in the same debate that ASEAN Member
States are “committed to the peaceful resolution of disputes through multilateral
processes. The situation in Rakhine State in Myanmar is a grave concern. The crisis is
complex and deep-rooted and will not be resolved overnight. There are accounts of
brutal and shocking atrocities. “We condemn all human rights violations. We expect the
Independent Commission of Enquiry established by the Government of Myanmar to

27 The full statement is available at https://gadebate.un.org/generaldebate
73/en/, accessed on September 25, 2019. For the full texts of all statements made in
the general debate of the UNGA’s 73rd session see https://gadebate.un.org/sites/default
/files/gastatements/73/sg_en.pdf

The names of countries appear in alphabetical order.
28 See note 29, supra.
29 For the statement of Malaysia see the document mentioned on note 29 supra.

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carry out impartial investigations expeditiously and hold those responsible fully
accountable. The voluntary return of displaced persons to Myanmar in a safe, secure
and dignified way should commence without undue delay. Ultimately, a political
solution needs to be found, involving reconciliation, fairness, justice, and better
prospects for all communities. Only then can there be a durable solution to this
complex inter-communal problem”.30 On September 28, 2019 the delegation of
Myanmar said it shared the international community’s concern about the violence in
Rakhine state, stating that attacks by the Arakhan Rohingya Salvation Army had triggered
the current humanitarian crisis there. The Government of Myanmar prioritizes
repatriation and is cooperating with Bangladesh, the United Nations Development
Program (UNDP), the Office of the United Nations High Commissioner for Refugees
(UNHCR) and ASEAN to that end.31 Is there a collective position of ASEAN inspired by
solidarity and tolerance on this issue? There is an inconclusive answer formulated in the
Joint communique of the 52nd session of the ministerial meeting of the ministers of
foreign affairs of ASEAN Member States which took place in Bangkok and is dated 31 July
2019. In the relevant paragraphs of this document the following points deserve
attention: “We discussed and received a briefing from Myanmar on the humanitarian
situation in Rakhine State. We reaffirmed our support for a more visible and enhanced
role of ASEAN to support Myanmar in providing humanitarian assistance, facilitating the
repatriation process and promoting sustainable development.” There is no doubt that
providing humanitarian assistance is an act of solidarity which deserves legitimate
appreciation. However, this document in its entirety is mostly descriptive and procedural,
does not condemn religious intolerance and the demands addressed to Myanmar
authorities are not imperative. The document is a good collection of wishes, but it does
not contain deadlines and specific modalities of implementation. On a relatively optimistic
note, it should be mentioned that the ministers of foreign affairs of the ASEAN Member
States” looked forward to the continued and effective dialogue between Myanmar and

30 For the statement of Singapore see note 29 supra.
31 See the UN press release of September 28, 2019, available at https://static.un.
org/press/en/2019/ga12198.doc.htm accessed on October 1st, 2019.

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Bangladesh to facilitate the repatriation process of displaced persons from Rakhine
State.” They “stressed the need to find a comprehensive and durable solution to
address the root causes of the conflict and to create a conducive environment so that
the affected communities can rebuild their lives”. Yet, Myanmar is not firmly requested,
but just “encouraged” to continue to implement the remaining recommendations of
the final report of the Advisory Commission on Rakhine State.32 In the most recent report
by the UN Secretary General on the situation of human rights in Myanmar, dated 20
August,2019,under the symbol A/74/311, a document to be considered during the 74th
session of the UNGA, it is noted that “Even though the primary responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes against humanity
lies with the Government of Myanmar, the international community, through the United
Nations, should provide all means of assistance to ensure that Myanmar is meeting its
responsibility in a manner that is consistent with international law and standards”.33 The
value of shared responsibility was firmly promoted by Singapore who had the
chairmanship of ASEAN in 2018.In a statement made during the 73rd session of the UNGA
the delegation of Singapore called the UN” the ultimate bastion of multilateralism”. In
its opinion “Our work in ASEAN is rooted in our belief that regional organizations can
demonstrate how multilateralism can continue to be relevant and beneficial to all our
peoples”.34 On the similar note, on September 30, 2019, the delegation of Thailand, a
country which has the chairmanship of ASEAN for the current year, said: “Growth and
prosperity requires peace. Political and economic advancements require stability.
Technology requires conscience. Environment requires hard work and sacrifice. Progress
requires sustainability. These tautological notions are age-old, yet their achievement

32 The full text of the ASEAN Joint Communique is available at https://asean. org/joint-
communique-52nd-asean-foreign-ministers-meeting/, accessed on September 20, 2019.

33 The report of the UN Secretary-General is available at https://undocs.
org/en/A/74/311under the symbol A/74/311 - E - A/74/311 and was considered by the
Third Committee during the 74th session of the UNGA.

34 See note 32 supra.

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remains elusive. The most recalcitrant question is not the why, but the how—how to
achieve those requisites in order to reach the desired objectives.”35

4. Conclusions

It is rewarding to learn that the topic of universal, regional and individual values
is on the ASEAN’s agenda for the future. Indeed, as announced on 26 June 2020 in the
Chairman’s Statement of the 36th ASEAN Summit there is “progress made by the ASEAN
Senior Officials Meeting on Youth (SOMY) in undertaking the second phase of the ASEAN
Youth Development Index, which seeks to assess the domain of ASEAN Awareness,
Values and Identity”. The domain of values can be interpreted in a large sense by
including the six universal values analyzed in this article from the perspective of ASEAN’s
legal and diplomatic perspective, as well as regional or individual values reflected in the
current work of this organization which have to be further defined and developed. For
the present, ASEAN Member States can be congratulated for the successful reflection of
the six universal values in their legal and political instruments and for the clear
determination to further elaborate on regional and individual values. A promising
example in this regard is offered by the same Chairman’s Statement mentioned above
in which it is outlined that the ASEAN Summit itself encouraged partnerships with
relevant ASEAN bodies and regional and international institutes to further promote the
culture of peace and moderation in ASEAN.36 Peace as a supreme value was analyzed

35 For a summary of the Thai statement see https://static.un.org/press/en/
2019/ga12199.doc.htm, consulted on October 2, 2019.The full statement is available at
.http://www.mfa.go.th/main/en/news3/6885/109544-Statement-by-the-Minister-of-
Foreign-Affairs-of-th.html ,accessed on October 2, 2019.

36 The full text of the Chairman’s Statement of the 36th ASEAN Summit is
available at https://asean.org/storage/2020/06/Chairman-Statement-of-the-36th-ASEAN-
Summit-FINAL.pdf and was consulted on August 28, 2020.See also The Langkawi
Declaration on the Global Movement of Moderates adopted on the occasion of the 26th

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in the light of the ASEAN’s conceptual background in section III of this article. It will be
interesting to follow how moderation, as an ASEAN value will be further developed
having in mind that it has been already recognized by ASEAN that this value “guides
action which emphasizes tolerance, understanding, dialogue, mutual respect and
inclusiveness and is a tool to bridge differences and resolve disputes.”

It can be anticipated that the debate on universal values with the participation
of ASEAN countries will continue during the future sessions of the UNGA under the
agenda item on the promotion of a democratic and equitable international order.
Resolution 65/223 adopted by the UNGA on 21 December 2010 contains frequent
references to matters related directly or indirectly to universal values. In an appropriate
context, these references concern inter alia the following : the right to an international
economic order based on equal participation in the decision-making process,
interdependence, mutual interest, solidarity and cooperation among all States;
international solidarity, as a right of peoples and individuals; the promotion and
consolidation of transparent, democratic, just and accountable international institutions
in all areas of cooperation, in particular through the implementation of the principle of
full and equal participation in the decision-making mechanisms.37

In a realistic approach, it should be recognized that the direct references to
universal values in global and regional documents are not frequent, their substance is
not always explained and the UN is far away from a necessary process of codification
and progressive development of such values. So being the case, an important playing
role has to be attributed to the educational system in order to make public opinion
more interested, more familiar and knowledgeable about the complex content of
universal values as proclaimed by the UN Millennium Summit in the Millennium
Declaration. For such educational activities, useful guidance can be found in the UN

ASEAN Summit in Langkawi, Malaysia, on 27 April 2015 available at https://asean.org/wp-
ontent/uploads/2012/05/LANGKAWI-DECLARATION-ON-THE-GLOBAL-MOVEMENT-OF-
MODERATES-Final.pdf and visited on August 28, 2020.

37 For the full text of the resolution see https://undocs.org/en/A/RES/65/223,
accessed on October 1st 2019.

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resolutions on relevant matters in particular in the most recent one entitled Education
for Justice and the rule of law in the context of sustainable development. The resolution
with this title was already adopted by ECOSOC and was also endorsed by the UNGA
during its 74th session.38 It can be also expected that when the process of revision of the
ASEAN Charter will be launched, the diplomats and lawyers involved in this process
would try to elaborate more on the content of peace- oriented values already present
in this constitutive instrument and will do that having in mind the six fundamental
values proclaimed in the Millennium Declaration, namely freedom, equality, solidarity,
tolerance, respect for nature and shared responsibility. ASEAN could initiate a very
useful process of codification and progressive development of universal values by taking
inspiration from the activity of the Special Committee on Principles of International Law
concerning Friendly Relations and Co-operation among States which after 7 years of
work adopted in 1970 a document entitled Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations.39 Having in mind the experience of the Committee
which drafted the Declaration on friendly relations it should be reminded that such a
process demands a long period of time and the final result may not be at the expected
qualitative level. The history of the work undertaken within the framework the Council
of Human Rights for the codification of the right to peace is fully eloquent about many
legal and political difficulties which cannot be underestimated while trying to prepare a
consensus document dedicated to a universal value already considered to be a
supreme value of humanity.40 An auspicious occasion for further developments in the
promotion of universal values will be offered by the celebration in 2021 of the
International Year of Peace and Trust decided by the UNGA on 12 September 2019.In

38 The full text of the resolution is available at https://undocs.org/E/CN.15/2019/
L.10/REV.1, accessed on October 2, 2019.

39 The Declaration on Friendly Relations is permanently available at https://www.
un.org/ruleoflaw/files/3dda1f104.pdf

40 The Declaration on the Right to Peace was adopted on December 19, 2016 and
is available on a permanent basis at https://www.refworld.org/docid/589c72134.html

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accordance with resolution A/RES/73/338 co-sponsored by many countries including
Thailand, ” the International Year of Peace and Trust constitutes a means of mobilizing
the efforts of the international community to promote peace and trust among nations
based on, inter alia, political dialogue, mutual understanding and cooperation, in order
to build sustainable peace, solidarity and harmony”.41 In the process of preparation and
celebration of this Year ASEAN Member States could make a legal effort to further define
trust as a value binding them in their mutual relations, having in mind that trust is a central
part of all human relationships, including partnerships, business operations, politics and
diplomatic practices. The concept of confidence-building measures which is already
familiar in multilateral diplomacy practiced under the UN auspices might provide some
useful guidance in defining trust. Such an initiative by ASEAN would be in full harmony
with the invitation addressed by the UNGA to all Member States, organizations of the
UN system, other relevant international and regional organizations and civil society,
including non-governmental organizations, individuals and other relevant stakeholders, to
facilitate the observance of the International Year of Peace and Trust, in an appropriate
manner and to disseminate the advantages of peace and trust, including through
educational and public awareness-raising activities. State and private universities
worldwide could have a valuable contribution in this noble, humanistic process.

41 For the full text of the resolution adopted on September 12, 2019 see https://
undocs.org/en/A/RES/73/338

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หลกั นติ ิธรรมในโลกสมยั ใหม่
The Rule of Law in the New Worlds

Received: 25 พฤษภาคม 2563
Revised: 15 กันยายน 2563

Accepted: 15 กนั ยายน 2563

ดร. วัลโนรา่ ไลสเตอร์
Dr. Valnora Leister*

บทคัดยอ่
หลายประเทศได้ประกาศความตั้งใจของตนเองที่จะริเริ่มทำเหมืองบนดาวเคราะห์และบนดวง
จันทร์ ตลอดจนการไปตั้งถิ่นฐานของมนุษยชาติบนดวงจันทร์และดาวอังคาร นักลงทุนและ
ผปู้ ระกอบการคาดหมายว่าการทำเหมืองอวกาศจะมีมลู คา่ หลายพันล้านดอลลารส์ หรัฐ ดงั นนั้ การแสวงหา
ผลประโยชน์จากอวกาศจึงมีการขยายขนาดเพิ่มขึ้นเรื่อยๆ คำถามก็คือทรัพยากรที่มีค่าเหล่านี้จะเป็น
ประโยชน์ต่อบางประเทศหรือบางบริษัทเป็นการเฉพาะตัวหรือเป็นไปเพื่อประโยชน์ของประชากรทั้ง
ปวงบนโลก ประเทศหรือบริษัทต่าง ๆ ซึ่งมีความสนใจในการใช้ทรัพยากรเหมืองภายใต้กรอบการเมือง
กฎหมาย และหลักการทางเศรษฐกจิ ท่ีแตกต่างกัน ทำให้มีแนวความคิดทีแ่ ตกต่างกันในการใช้ทรัพยากร
จากอวกาศ
บทความนี้ได้วิเคราะห์ถึงการแปลความที่หลากหลายในปัจจุบันเกี่ยวกับกฎหมายอวกาศสากล
แนวทางต่าง ๆ ในเรื่องการริเริ่มและจุดประสงค์ในการสำรวจอวกาศ ความท้าทายในการสำรวจ และ
โอกาสเพื่อให้สอดคล้องกับผลประโยชน์ของนานาชาติด้วยสนธิสัญญาเกี่ยวกับอวกาศ ซึ่งมีผลผูกพันทุก
ประเทศ ซึ่งพยายามแสวงหาและจัดตั้งพรมแดนของมนุษยชาติแหล่งใหม่ เราจะได้มีการทบทวนแบบ
ค้นพบหลักการเกี่ยวกับกฎหมายอวกาศ ซึ่งเกิดจากการขยายตัวของเทคโนโลยีและกฎระเบียบของ

* Valnora Leister holds a Master of Laws (LLM) and Doctor of Civil Law (DCL)
degrees from the McGill University Institute of Air and Space Law, as well as a Bachelor,
Master and Doctoral degrees in Law from University of Sao Paulo, Brazil. A former
Guggenheim Fellow of the Smithsonian Institution and Project Attorney with the Inter-
American Development Bank (IDB). At present Dr. Leister is adjunct faculty at James
Madison University, VA, USA. [email protected]

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บรรดาชาติต่างๆ ที่เกี่ยวข้อง ในบทความนี้จะได้พูดถึงความจำเป็นที่จะต้องทำให้กรอบความร่วมมือใน
เรื่องของอวกาศและมีความทันสมัยอยู่เสมอในช่วงเวลาแห่งความตึงเครียดที่เกิดขึ้นทั่วทั้งโลกและความ
ไม่แน่นอนของสถานการณ์ของโรคระบาดที่เกิดขึ้น คือจะมีความร่วมมือเกิดขึ้นได้จากผู้มีส่วนได้เสีย
หลายๆ ฝ่ายในเรอื่ งของอวกาศทีจ่ ะพยายามรว่ มกนั ทำใหเ้ กิดระบบการควบคมุ ท่ีดมี ีความยัง่ ยืน ไม่ทง้ิ ใคร
ไว้เบื้องหลัง และมีความปลอดภัยเพื่อที่จะนำมาซึ่งประโยชน์ต่อมวลมนุษยชาติ ซึ่งในเรื่องนี้ MSO
สามารถทีจ่ ะหาข้อสรุปรว่ มกันประกอบการในการพัฒนาไปสู่โลกใหม่

คำสำคัญ: กฎหมายอวกาศนานาชาติ, หลักนิติธรรม, คณะกรรมการการใชห้ ้วงอวกาศอย่าง
สันติหง่ องค์การสหประชาชติ (the United Nations Committee on the Peaceful Uses of Outer
Space) (COPUOS)

Abstract

Several countries have announced their intentions to mine the riches of
asteroids and the Moon, and to start human settlements on the Moon and Mars.
Investors and entrepreneurs anticipate that space mining will be worth trillions of
dollars. Thus, the interest is growing on harvesting these riches in outer space. The
question is: Will these valuable resources benefit individual countries and companies,
or all peoples on Earth? Countries and firms interested in the mining adhere to different
ideologies regarding the use of space resources, and are guided by diverse political,
legal, and economic principles applied to the use of space resources on Earth. This
article analyzes the varying interpretations of current international outer space law, the
differing goals of national space initiatives, and their diverging trends on regulations.
Among the challenges of pending exploration and settlement projects in outer space is
the compatibility of national interests with outer space treaties, which are legally binding
on all nations and peoples exploring or settling in Humanity’s new frontier. After
reviewing the founding principles of Outer Space Law vis, a vis, the spread of new
technologies and relating national legislations, this paper notes a pressing need for the
international community to update frameworks of cooperation in outer space. In a time
of rising global tensions and the uncertainties of the pandemic crisis, it is up to the space
multi-stakeholders to join efforts to create a more sustainable, inclusive, safe and

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resilient governance system for the new worlds, bringing benefits to humanity. Toward
this end, a trusted global Multi Stakeholders Organization (MSO) can find common
ground for entrepreneurial development of the New World.

Keywords: International Outer Space law, Rule of Law, the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS)

1. International Outer Space Law

The need for international space law was first recognized when the two then
spacefaring powers, the USSR and USA, decided it was in their common interest to find
a common ground despite their different political regimes (communism and capitalism,
respectively). They managed in the 1960s to agree on the main principles that should
regulate outer space.

The first document to be drafted was The Declaration of Legal Principles
Governing the Activities of States in the Exploration and Uses of Outer Space in 1963.1
It states that:

1. The exploration and use of outer space shall be carried on for the benefit
and in the interests of all mankind.

1 The Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space, RES 1962 (XVIII), General Assembly 18th session,
December 13, 1963, is the second important text concerning Space Law. It is a resolution
that was adopted by the General Assembly in 1963. The first important decision
concerning Space Law dates from December 20, 1961. It is the General Assembly
Resolution 1721 (XVI) on the International Co-operation in the Peaceful Uses of Outer
Space. The latter Declaration reaffirms and expands the scope of the earlier one. The
principles contained in it represent the consensus and maximum agreement attainable
by the Committee on Peaceful Uses of Outer-Space established by the Assembly to
deal with technical co-operation of states and the legal regulation of outer space.
https://www.spacelegalissues.com/space-law-declaration-of-legal-principles-governing-
the-activities-of-states-in-the-exploration-and-use-of-outer-space/

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2. Outer space and celestial bodies are free for exploration and use by all States
on a basis of equality and in accordance with international law.

3. Outer space and celestial bodies are not subject to national appropriation
by claim of sovereignty, by means of use or occupation, or by any other means.

4. The activities of States in the exploration and use of outer space shall be
carried on in accordance with international law, including the Charter of the United
Nations, in the interest of maintaining international peace and security and promoting
international co-operation and understanding.

Based on these principles, the Outer Space Treaty (formally the Treaty on
Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies) was opened for signature in the United
States, the United Kingdom, and the Soviet Union on 27 January 1967, and entered into
force on 10 October 1967. As of June 2019, 109 countries are parties to this Treaty, while
another 23 have signed the treaty but have not completed ratification.

The Outer Space Treaty established the principles for activities in the realm of
outer space, stating that:

• the exploration and use of outer space shall be carried out for the benefit
and in the interests of all countries and shall be the province of all mankind.

• outer space shall be free for exploration and use by all States.
• outer space is not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.
• States shall not place nuclear weapons or other weapons of mass
destruction in orbit or on celestial bodies or station them in outer space in any other
manner.
• the Moon and other celestial bodies shall be used exclusively for peaceful
purposes.
• astronauts shall be regarded as the envoys of mankind.
• States shall be responsible for national space activities whether carried out
by governmental or non-governmental entities.
• States shall be liable for damage caused by their space objects; and

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• States shall avoid harmful contamination of space and celestial bodies.2
The treaty was drafted in the early years of space activities, it does not offer
clear policies regarding newer space activities such mining in the asteroids and in the
moon, as well as human settlements in Mars, the Moon and other celestial bodies.
Three other treaties – including the Rescue Agreement (1968), the Space Liability
Convention (1972), and the Registration Convention (1976)– have been adopted since
1967. The Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies, known as the Moon Treaty, was adopted by the General Assembly in 1979
in resolution 34/68. It was not until June 1984, however, that the fifth country, Austria,
ratified the Agreement, allowing it to enter into force in July 1984. The Moon Treaty is
not considered binding international law since the United States, the Russian Federation,
and the People’s Republic of China (PRC), considered the major space powers have
neither signed, acceded to, nor ratified the Moon Treaty. The only countries with space
programs to sign the agreement are France and India.3
The Moon Treaty closes a loophole in the Outer Space Treaty by banning any
ownership of any extraterrestrial property by any organization or private person unless
that organization is international and governmental. 4The Agreement reaffirms and
elaborates on many of the provisions of the Outer Space Treaty as applied to the Moon
and other celestial bodies, providing that those bodies should be used exclusively for
peaceful purposes, that their environments should not be disrupted, that the United
Nations should be informed of the location and purpose of any station established on
those bodies. In addition, the Agreement provides that the Moon and its natural
resources are the common heritage of mankind and that an international regime should

2 https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.
html

3 Michael Listner, The Moon Treaty: failed international law or waiting in the
shadows? October 24, 2011, https://www.thespacereview.com/article/1954/1.

4 Ibid, 4

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be established to govern the exploitation of such resources when such exploitation is
about to become feasible.5

2. Global Commons

Even if the Moon Treaty is not recognized by the current space powers, it is
relevant to indicate that under international law, outer space is considered one of the
four global commons, that is, resource domains or areas that lie outside of political
reach of any nation state. The four global commons are: The High Seas, the
Atmosphere, Antarctica, and Outer Space.

The regime proposed for the Moon is similar to the regime in existence for the
High Seas, which established the Seabed Authority and has enacted a Seabed Mining
Code to regulate the exploration of the seabed area. The United Nations Convention on
the Law of the Sea (UNCLOS) came in force in 1984. The convention has been ratified
by 168 parties, which includes 167 states (164 United Nations member states plus the
UN Observer state Palestine, as well as the Cook Islands and Niue) and the European
Union. An additional 14 UN member states have signed, but not ratified the convention.
It defines the rights and responsibilities of nations with respect to their use of the world’s
oceans, establishing guidelines for the use of marine natural resources.6 The United
States of America (USA) did not ratify the convention and it is not a member of the
Seabed Authority. Even if the USA proposed the Convention during the Nixon Presidency,
and later an Agreement to modify the deep seabed provisions and accepted the
provisions of the Convention relating to traditional uses of the ocean, such as navigation
and overflight, the US Senate up to today did not vote to join the Convention.7 It is
speculated that the US did not want to accept this Convention, as technology for mining
the seabed had not been developed at the time of the proposal. However, companies

5 https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-
agreement.html

6 www.ISA.org.jm
7 https://www.state.gov/law-of-the-sea-convention/

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from Japan, Russia, China, and other member countries have already been granted
concessions to explore minerals in the Clarion Clipperton Zone (CCZ) about 5,000
meters beneath the Pacific Ocean.8

Antarctica is another global common, and the Antarctic Treaty9 was a result of
efforts to provide some sort of international regime during the Cold War period. The
treaty was signed in 1959, when the USA and the Soviet Union agreed to put their
differences aside for a common cause. The Treaty had 12 original signatories - Argentina,
Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the United
Kingdom, the United States of America, and the Soviet Union. It entered into force in
1961 and has since been acceded to by many other nations. The total number of Parties
to the Treaty is now 54. Antarctica is open to any member of the United Nations with
substantial research programs. Current protocols to the treaty aim to: Protect the
Environment, the Fauna and Flora, the Antarctic Seals and the Marine Living Resources.
The Madrid Protocol signed by members in Madrid in 1991 places an indefinite ban on
mining or mineral resource activity in Antarctica,10 designating Antarctic as a natural
reserve devoted to peace and science – it establishes environmental principles for the
conduct of all activities and provides guidelines for the conservation of Antarctic flora
and fauna, managing and disposing of waste and preventing marine pollution.

Thus, even if the Moon Treaty is not in force, there seems to be international
consensus that outer space is a global common and its exploration must take into
consideration the interests of humanity and not just individual countries or enterprises.
Both the Seabed and Antarctica are examples of how nations can work together and
explore the commons accounting for interests of humanity and future generations.

8 https://www.economist.com/technology-quarterly/2018/03/19/race-to-the-
bottom

9 https://www.ats.aq/e/antarctictreaty.html
10 http://www.antarctica.gov.au/law-and-treaty/history

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3. International Cooperation in Outer Space

Since the signing of the Space Treaty many developments have taken place in
the frontier, including satellite communications, remote sensing, and landings on the
Moon.
Here is a chronological summary11 of the highlights in the exploration of the Moon:
1957: Soviet Sputnik, first artificial Earth satellite
1966: Soviet Luna 9
1968: Soviet Zond 5
1968: USA Apollo 8, first to orbit the Moon with humans
1969: USA Apollo 11, first human landing on the Moon
1970: Soviet Luna 17 and 17 (robotic mission)
1976: Soviet, Luna 24, last mission to the Moon during Cold War
1990: Japan reach the Moon with Hiten that orbited the Moon
1994: USA, Clementine, partnership with NASA and Pentagon
2003: European Space Agency (ESA), launched the Moon explorer
2007: Japan, Selene, orbiter the Moon
2007: China, Chang’e entered lunar orbit
2008: India, Chandrayaan-1, placed into a mission specific polar orbit
2013: China, Chang’e 3, first Chinese robotic landing on the Moon
2018: China, Chang’e 4, first landing in the dark side of the Moon
2019: Israel private enterprise failed to land in the Moon
2019: India’s Chandrayaan2, launched successfully, reached the Moon orbit, but lost
contact with Earth.

Many international and regional organizations were established to explore outer
space under the principles of the Space Treaty. Highlights of examples of nations working
together to explore and develop outer space include:

11 Salvador Nogueira, Exploração Lunar evoluiu e ficou mais sofisticada, acessivel
e cientifica, Folha de São Paulo, July17,2019.

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• ESA, the European Space Agency, traces its origins on March 20, 1964, by an
agreement signed on June 14, 1962. The ESA convention was entered in 1975 with ten
founding members: Belgium, Germany, Denmark, France, United Kingdom, Italy, the
Netherlands, Sweden, Switzerland, and Spain. Ireland joined later in the year. Nowadays,
ESA has 22 members: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway,
Poland, Portugal, Romania, Spain, Sweden, Switzerland and the United Kingdom.
Slovenia is an Associate Member. Canada takes part in some projects under a
cooperation agreement. Bulgaria, Croatia, Cyprus, Malta, Latvia, Lithuania, and Slovakia
have cooperation agreements with ESA.12

• China and India members of BRICS have plans to include Brazil and South
Africa in its Space Programs, to build space science cooperation as the bloc seeks a
bigger share of the $300 billion global space industry. Both China and India have
ambitious space programs in place, while Russia continues to run the world’s only
reliable “space taxi” after the US retired its space shuttle in 2011.13

• The International Space Station -ISS- is a multi-nation construction, being the
largest single structure in space. It was completed between 1998 and 2011 and has been
occupied since November 2000. It is a partnership of national space agencies. The ISS is
a modular space station in low Earth orbit: it flies around the world every 90 minutes.
As of January 2018, 230 individuals from 18 countries have visited the ISS. Major partners
are NASA (USA), Roscosmos (Russia) and the European Space Agency (ESA), the Japanese
Exploration Agency and the Canadian Space Agency. The ISS astronauts conduct
scientific experiments to find more about life in space. The ISS should return to Earth in
2028.14

12 http://www.esa.int/About_Us/Corporate_news/ESA_facts
13 https://spacewatch.global/2017/04/brics-space-science-cooperation/ Brics to
further space science cooperation
14 https://www.space.com/16748-international-space-station.html International
Space Station: Facts, History and Tracking, by Elizabeth Howell, February 08, 2018.

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• The International Telecommunications Union - ITU is an organization based
on public-private partnership since its inception. Headquartered in Geneva, Switzerland,
it currently consists of 193 member countries and 700 private sector entities and
academic institutions and has 12 regional and area offices around the world. ITU was
established in 1865 to regulate trans-national communications. It has moved from
telegraphy and analog telephony to the digital world of satellites, mobile phones and
the internet issues. The ITU’s Forum in 2013 considered internet related public policy
matters. 15Since ITU has been successful for over a century in coordinating deployment
and interconnection of technologies that have a global reach.

• INTELSAT, International Telecommunications Satellite Organization, operator
of the world’s largest satellite fleet and connectivity infrastructure. Its origin dates from
a speech of John Kennedy at the United Nations in September 1961. He signed the
Communications Satellite Act of 1962. From August 1964 it operated as an
intergovernmental consortium owning and managing a constellation of communication
satellites16. In 2001the satellite market was fully commercialized and privatized, Intelsat
opened a subsidiary corporation in Luxembourg17. As of 2018, Intelsat provides service
to over 600 Earth stations in more than 149 countries, territories, and dependencies18

• ARIANESPACE S.A. is another example of an existing public-private
partnership, operating Europe’s spaceport in French Guiana. Arianespace is a for profit
launch company, with twenty-four private and public sector shareholders from ten
European countries. Since its creation in 1980, Arianespace has launched nearly two-
thirds of the satellites in orbit today.19

15 http:itu.intl/go/OverviewITUHistoryArticle,
16 Leive, David M (1981). "Essential Features of INTEL SAT: Applications for the
Future". Journal of Space Law. 9 (45): 45–52. Archived from the original on 2012-06-01.
17 http://www.intelsat.com/about-us/history/
18 http://www.intelsat.com/global-network/satellites/fleet/
19 https://www.arianespace.com/

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All these organizations are examples of existing cooperation for the exploration,
use and development of outer space. Lessons from their experience inform the new
frameworks to apply technological innovations for mining and for new settlements in
outer space, which will need a legal structure to operate in accord with the Outer Space
Law principles.

4. Asteroid and Moon mining: National and International Laws

In recent decades, the potential revenues from mining the asteroids and the
moon received increasing interest from state agencies and private entrepreneurs, 20 and
a need to regulate the proposed operations arose. In the past, multiple blanket claims
to celestial bodies have been attempted, but have not been recognized by law. In 2012,
James Dunstan and Berin Szoka wrote:

“The only court case we have in this respect arose when Greg Nemitz, a space
activist, filed a claim for the asteroid Eros with an online database known as the
Archimedes Institute, and then sent NASA a bill for parking fees when NASA landed the
NEAR-Shoemaker probe on Eros in 2001. The U.S. 9th Circuit Court of Appeals dismissed
the suit because Nemitz was unable to prove actual ownership rights for Eros.”21

Thus, the need to enact national regulations on mining the asteroids and the
moon resources has emerged in recent years.

a) National plans and regulations for mining outer space resources
National legislations are evolving to encourage commercial resource

extraction from asteroids22. The United States, Luxembourg, and the United Arab

20 https://www.cnbc.com/2018/05/15/mining-asteroids-could-be-worth-trillions-
of-dollars.html, May 15, 2018

21 Berin Szoka and James Dunstan, Space Law: Is Asteroid Mining Legal? O5.01.12
https://www.wired.com/2012/05/opinion-asteroid-mining/

22 https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1103&context=
spacelaw Frans G. von der Dunk, Asteroid Mining: International and National Legal
Aspects, University of Nebraska, Lincoln, 2018.

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Emirates (UAE), for example, have adopted policies to encourage economic activities in
space and accelerate space exploration

Luxembourg, a small country, is a gateway to the European Union and the
headquarters of Europe’s first privately-owned satellite operator, the Société
Europeéenne des Satellites (SES). Luxemburg enacted the Space Resources Act in
2017, 23 to position itself in the center of the next Section in the commercial
development of outer space mining. Luxembourg hopes to attract start-up companies
that want to be space mining companies by establishing a 200 million Space Fund.24

The United Arab Emirates (UAE) have equally planned to develop a
regulatory regime conducive to such activities, provided that those activities are duly
authorized and supervised. The Saudi Space Agency was established by Royal Decree
on December 27, 2018. On March 27, 2019, the Saudi Arabia joined 10 other countries:
Morocco, Algeria, Egypt, Sudan, Oman, UAE, Bahrain, Kuwait, Jordan, and Lebanon, to
sign the first regional Pan-Arab agreement on coordinating space exploration. The
regional Agency will be led by UAE, hoping to organize and energize the regional space
sector – to share knowledge and expertise to further contribute to Humanity’s quest to
understand the Universe we live in.25

In the USA, the Asteroids Act was introduced by Representatives Bill Posey (R-
FL) and Derek Kilmer (D-WA) in July 2014. That act was supported by lobbying efforts
by Planetary Resources, by Deep Space Industries and Bigelow Resources, companies
with commercial interests in space. The Asteroids Act was later rolled into legislation
signed by President Obama. The law was approved on 25 November 2015, the US
Commercial Space Launch Competitiveness Act of 2015 -Space Act of 2015. 26 Title IV

23 htps://fcilsis.wordpress.com/2018/12/12/the-luxembourg-space-resources-
act-and-international-law/

24 https://spacenews.com/luxembourg-expands-its-space-resources-vision
25 https://www.arabnews.com/node/1473116/saudi-arabia; Saudi Arabia Joins
Arab partners to collaborate on space exploration, Arab News, May 13, 2020.
26 US Space Launch Competitiveness Act, PL 114-90, 129 Stat.704

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of the Space Act addresses asteroid mining in a domestic United States context.27 The
Act declares that any resource obtained in outer space is the property of the entity
obtaining the resource and grants U. S. companies “all property rights” to resources
extracted from celestial bodies.28 Additionally, the United States granted a license to
Moon Express to undertake a mission to the Moon for the mining and removal of
materials from the Moon’s surface, opening up new space regulatory and governance
issues.

In December 2017, President Trump signed Space Policy Directive-1, which laid
the groundwork for the Artemis program29, to explore and land astronauts in the Moon
by 2024.

The Space Policy Directive-4, was signed in February 2019, calling for the creation
of the Space Force, the first new U.S. military branch since the Air Force was stood up
in 194730. The Space Force will focus on preserving the satellite and vehicles that are
dedicated to international communications and observation. Following this Directive-4
the Pentagon decided to create a space development agency to test new capabilities
in space, a space operations task force to select space experts and the US Space
Command.

The Executive order “Encouraging International Support for the Recovery and
Use of Space Resources” 31 was signed on April 6, 2020. The policy views to support

27 Title IV is entitled “Space Resource Exploration and Utilization.” Id. §§ 401–
02 (codified at 51 U.S.C §§ 51301–03).

28 Section 51303 of the SREUA
29 The Artemis program is a crewed spaceflight program carried out
predominantly by NASA, U.S. commercial spaceflight companies contracted by NASA,
and international partners s
30 https://www.space.com/42089-space-force.html, Jeremy Rehm, October 10, 2018
31 https://www.whitehouse.gov/presidential-actions/executive-order-
encouraging-international-support-recovery-use-space-resources; By the authority
vested in the President by the Constitution and the laws of the United States of

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moon mining and tap asteroid resources, establishing U.S. policy on the exploitation of
off-Earth resources. This Executive order stresses that the current international regulatory
regime based on the 1967 Outer Space Treaty allows the use of such resources and
seeks international support for these activities.

The main provisions of Executive Order of April 6, 202032 are:
Section 1. Americans should have the right to engage in commercial exploration,
recovery, and use of resources in outer space, consistent with applicable law. Outer
space is a legally and physically unique domain of human activity, and the United
States does not view it as a global common. Accordingly, 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.33
Sec. 2. The Moon Agreement. The United States is not a party to the Moon
Agreement. Further, the United States does not consider the Moon Agreement to be an
effective or necessary instrument to guide nation states regarding the promotion of
commercial participation in the long-term exploration, scientific discovery, and use of
the Moon, Mars, or other celestial bodies. Accordingly, the Secretary of State shall
object to any attempt by any other state or international organization to treat the
Moon Agreement as reflecting or otherwise expressing customary international law.
Sec. 3. Encouraging International Support for the Recovery and Use of Space
Resources. The Secretary of State, in consultation with the Secretary of Commerce, the
Secretary of Transportation, the Administrator of the National Aeronautics and Space
Administration, and the head of any other executive department or agency the

America, including title IV of the U.S. Commercial Space Launch Competitiveness Act
(Public Law 114-90).

32 https://www.whitehouse.gov/presidential-actions/executive-order-encoura
ging-international-support-recovery-use-space-resources/

33 https://www.space.com/trump-moon-mining-space-resources-executive-order.html
- Mike Wall, April6, 2020, Trump signs executive order to support moon mining, tap
asteroid resources.

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Secretary of State determines to be appropriate, shall take all appropriate actions to
encourage international support for the public and private recovery and use of
resources in outer space, consistent with the policy set forth in section 1 of this order.
In carrying out this section, the Secretary of State shall 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.

Sec. 4. Report on Efforts to Encourage International Support for the Recovery
and Use of Space Resources. No later than 180 days after the date of this order, the
Secretary of State shall report to the President, through the Chair of the National Space
Council and the Assistant to the President for National Security Affairs, regarding
activities carried out under section 3 of this order.

In carrying out this section, (International Support for the Recovery and Use of
Space Resources) the Secretary of State shall 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.
Some provisions of this Executive Order have received comments and criticisms from
experts in space law and policies:

• On the general goals of the Executive Order, Ian A. Christensen and
Christopher D. Johnson understand that: “ The United States clearly views space
resources utilization as both a key part of achieving the long-term goals of the Artemis
program and future human space exploration, and as a foundational element of a
robust future commercial space economy… The order’s support for commercial space
resources utilization is consistent with US law under the Commercial Space Launch
Competitiveness Act of 2015, which passed the Congress with bipartisan support and
was signed into law by President Obama.” 34

34 https://www.thespacereview.com/article/3932/1
34 http://outerspaceinstitute.ca/documents.html

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• Experts from Canada in space policy and law have urged the Canadian
Government not to endorse the U.S. approach in this Executive Order. The opinion
supported by seven Canadian international space policy and law experts was that
Canada should back instead the development of a multilateral treaty among as many
countries as possible to set uniform rules. The Canadian experts recommend that:”
space must be regulated internationally – similarly to Antarctica or the world’s seabed
– and all countries, include non-space-faring ones, get a say in decision-making. The
alternative, they warn, could be a splintered approach where companies conduct flag-
of-convenience resource extraction in space under whichever country has the least
onerous rules.”35

• According to Professor Dr. Kai-Uwe Schrogl: “In the past decades,
international law of the “global commons” has maintained the understanding that a
“first-come-first served” should be avoided in view of a responsible and sustainable
use open for all, including the late comers. Space exploration and use has so far been
governed by these principles and the rule of law in general. This should be conserved
for the benefit of all, today and in the future.” 36

• Russia’s space agency Roscosmos has also condemned U.S. President Donald
Trump’s order saying that it allows US citizens to mine the moon and other celestial
bodies linking it to colonialism. 37 Deputy Director of Roscosmos, Sergey Saveliev,

35 Open Letter to the Canadian Government Concerning Space Resources http://
outerspaceinstitute.ca/documents.html

36 https://spacewatch.global/2020/04/spacewatchgl-perspective-john-sheldon-
on-the-us-executive-order-1-2-2-2-2 SpaceWatch GL Perspective on US Space Resources
Executive Order: Kai-Uwe Schrogl, On the Clarity Of Existing Space Law

37 https://www.mining.com/russia-slams-trumps-order-to-spur-mining-the-moon-
asteroid Cecilia Jasmine, April 9, 2020

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declared that “There have already been examples in history when one country decided
to start seizing territories in its interest — everyone remembers what came of it.”38

Again, the need of international regulation is apparent, and the Executive Order
encourages international support for the public and private recovery and use of
resources in outer space, consistent with applicable law.”

The applicable law referred in the Order would be the International Space Law
and its principles. Article II of the Outer Space Treaty states that: Outer Space, including
the moon and other celestial bodies, is not subject to national appropriation by claim
of sovereignty, by means of use or occupation, or by any other means. This provision
applies to citizens and corporations, and equally prevents nations from asserting
sovereign claims to property on celestial bodies.

Regarding asteroid mining, the treaty makes clear that both the exploration and
use of outer space shall be free of restraint and discrimination, and that there will be
free access to all parts of space. It also allows private use of equipment and facilities as
needed for peaceful activities. Dwellings or vehicles launched into (or built in) space
may legitimately be the private property of its owner. Not even the term commercial
exploitation can be found in the treaty, although most experts would agree that the
reference to the freedom of use in Article 1 would include commercial exploitation.39

Customary law in the English-speaking world differs from European-based
systems of Civil Law. Customary law considers that the mining should start first and later
be regulated. Since mining operations on the Moon have not started yet, it could make
sense, in the view of Customary Law, that once the technology is available and the
mining in asteroids and moon have taken place, it would be feasible then to find a
model of international cooperation that included the interests of all mankind. Several
international organizations exploring outer space resources have also included
commercial activities, such as ITU, Intelsat, and Arianespace - as analyzed in the previous

38 https://www.mining.com/russia-slams-trumps-order-to-spur-mining-the-moon-
asteroid Cecilia Jasmine, April 9, 2020

39 Frans G. von der Dunk, Asteroid Mining: International and National legal
Aspects, University of Nebraska, 2018,

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Section 3. Such examples could be considered when studying the best model for
international cooperation in mining resources of asteroids and the moon. It is true that
none of the major space powers, USA, Russia and China are signatories of the Moon
Treaty. The Moon Treaty establishes regulations to mine the lunar resources, similar to
the provisions established by the International Seabed Authority as we have explained
in our section 2. Although the regime is not based on the Moon Treaty, in line with the
wishes of the U.S.A., it should take into consideration mankind, that is, mining resources
in outer space should include the interests of all peoples of the Earth.

Professor Scott Schackelford, in a recent article on “US seeks to change the rules
for mining the Moon” states that: “For the immediate future, other countries may or
may not follow the U.S. lead, and its influence, toward privatizing space. Japan seems
interested, as does Luxembourg, but China and Russia are concerned about their
national security, and the European Space Agency is more inclined toward working
collectively. Without better coordination, it seems likely that eventually peaceful,
sustainable development of off-world resources will give way to competing claims,
despite readily available examples of how to avoid conflict.”40

Broad international discussions on these recent US policies are top priority
among the now 95 member states of the United Nations Committee on the Peaceful
Uses of Outer Space- COPUOS. These discussions were due to continue in the Summer
2020 but were postponed because of the COVID-19 pandemic. 41

COPUOS is the international body in charge of proposing international
multilateral arrangements for outer space activities. It was established 1959 by the
United Nations General Assembly and is presently one of the largest standing
Committees in the United Nations. In addition to States, its membership includes several

40 https://theconversation.com/us-seeks-to-change-the-rules-for-mining-the-
moon-136665

41 https://theconversation.com/giant-leap-for-corporations-the-trump-admini
stration-wants-to-mine-resources-in-space-but-is-it-legal-136395 Article by Steven
Freeland and Annie Handmer, April 20, 2020.

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international bodies. Both intergovernmental and non-governmental organizations hold
observer status with COPUOS and its Subcommittees. 42

Open questions that COPUOS is considering regarding the mining of asteroids and
the moon include:

1- How the ownership of extracted resources will be defined?
2- How companies decide on which asteroid to mine?
3- Should a registry of space mining be created?
4- How to determine the scope of claims on asteroids or the moon?
5- How will companies prevent competition?

COPUOS has been the official channel for the multilateral agreements applying
to outer space. Many experts of different nationalities have been engaged in studying
the appropriate rules for the exploration of resources in asteroids and in the Moon. The
Hague Space Resources Governance Working Group43 has been preparing a study on the
building blocks for the development of an International Framework on Space Resources.

The Working group proposed a draft international framework consistent with
international law, giving due regard for interests of all countries and humankind, with
the following objectives:

The international framework should create an enabling environment for space
resource activities that takes into account all interests and benefits all countries and

42 Leister, Valnora, “The Committee on Peaceful Uses of Outer Space (COPUOS) of
the Organization of the United Nations” (original title in Portuguese: ‘Comite para os Usos
Pacificos do Espaco Exterior da Organizacao das Nacoes Unidas [ONU]’) – Section in
Reflections on 60 years of the United Nations (Reflexoes sobre os 60 anos da ONU),
Mercadante, Araminta and Magalhaes, Jose Carlos, Editora, Unijui-Ijui, São Paulo, Brazil, 2005.

43 Final report, Leiden, 18 December 2017, reference number HSRGWG/FR/1
/15122017

https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/institu
ut-voor-publiekrecht/lucht--en-ruimterecht/space-resources/final-report_the-hague-space-
resources-governance-working-group-7-6-18.pdf

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humankind. To achieve this objective, the international framework should: a) Identify
and define the relationship of space resource activities with existing international space
law, including the provisions of the United Nations treaties on outer space; b) Propose
recommendations for the consideration of States for the application or development
of domestic frameworks; c) Propose recommendations for the consideration of
intergovernmental organizations for the application or development of internal
frameworks; d) Promote the identification of best practices by States,
intergovernmental organizations and non-governmental entities such as: registration
and sharing of information; registering priority rights of an operator to search and
recover space resources in situ; avoidance of harmful impacts resulting from space
resource activities and follow the rules to register space objects (article XI of the Space
Treaty). Furthermore, it stresses that the proposed international framework should
ensure that the utilization of space resources does not contravene the principle of non-
appropriation under Article II of the Space Treaty. It also reinforces the need for technical
standards for, prior review of, and safety zones around space resource activities, liability
in case of damage, peaceful settlement of disputes, monitoring and review.44

5. Human Settlements in Outer Space

Many countries have plans for humans’ settlements in Outer Space. Since the
2010’s, space agencies in the US, Europe (ESA) and Asia, (China, India, Japan) as well as
public and private entities, have begun to explore options for space settlement. In the
realm of state-sponsored space programs, China recently announced its plans to send
“taikonauts” or human space navigators, to the Moon and create a settlement there in
the early 2030s. In Europe, 2003 Mars Express orbiter and its lander, Beagle 2,

44 A statement on the Working Group was delivered by the Dutch representative
at the 55th session of the UNCOPUOS Legal Subcommittee, held in Vienna from 4-15
April 2016. A Progress Report was delivered on 27

September 2017 during the session on the Legal Perspectives on Space
Resources and Off-Earth Mining.

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represented the first fully European mission to any planet, and it is a key component of
the European international exploration program planned for the next two decades. In
2005 the ESA Huygens probe lands on the surface of Titan, Saturn’s largest moon - the
first ever to land on a world in the outer Solar System.45NASA is currently developing
the Artemis mission to return American astronauts to the Moon which had been planned
for 2024 but halted its work on its Moon and Mars spacecraft due to coronavirus
pandemic.46 The Artemis program is carried out by NASA, U.S. commercial spaceflight
companies, and international partners such as ESA, the Japan Aerospace Agency,
Canadian Space Agency and the Australian space Agency. NASA sees Artemis as the next
step towards long term presence on the Moon, laying the foundation for private
companies to build a lunar economy and eventually sending human to Mars.47

The USA also has plans to send to astronauts to Mars in the 2030s and, although
its budget sways in accordance with the will of the U.S. Congress, it seems to be on
track to reaching its goal. US legislative moves relating to space settlements go back to
1988, with the Space Settlement Act.48 Its language declared that the extension of
human life into space leading to space settlement fulfills the purpose of science,
exploration and commercial development, and will enhance the general welfare.
President Trump’s administration enacted the America First national Space Strategy on
March 23, 2018 to ensure US leadership in Space in close partnership with the private
sector.49 Bezos and Musk that have plans for settlements in the Moon and Mars stated
that: “Clear goals in legislative policy are vital, but they must be accompanied by specific

45 https://www.esa.int/About_Us/ESA_history/History_of_Europe_in_space
46 https://techcrunch.com/2020/03/20/nasa-suspends-work-on-its-moon-and-
mars-spacecraft-due-to-coronavirus-pandemic/
47 https://www.space.com/nasa-plans-artemis-moon-base-beyond-2024.html
48 P.L. 100-685 Sec. 217
49 https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-
unveiling-america-first-national-space-strategy/

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enforceable actions or they will have little effect.” 50 Space Exploration Technologies
Corp. (Space X), headed by entrepreneur Elon Musk, has entered into a $135 million
contract with NASA, part of an estimated $1 billion program to return astronauts to the
Moon by 2024.51 Elon Musk, owner of SpaceX, has projected that a viable Mars
settlement would perhaps need at least one million inhabitants to have a fully
sustainable society. To this end, his firm has been developing its next-generation engines
and rockets as well as its crew capsules to send humans on one-way journeys to Mars.52
Blue Origin is another private spaceflight company, owned by Amazon Inc. Jeff Bezos,
founder of the company, wants to build the infrastructure for humans to live in space.53
Both endeavors demonstrate the intentions to move off Earth and establish permanent
settlements in outer space.

a) Future Human Settlements in Space and International Space Law
There is an open question as to whether international space law is flexible

enough to permit an entity, or consortium of entities, to construct a space settlement
at will. An evaluation of any barriers that might exist or arise, and consideration of
policy solutions must be explored and crafted.54 Since the inception of the space age,
the former USSR, now Russia and the USA, managed to cooperate and have been
working together in the International Space Station, with the European Space Agency,
another player in the new realm. Recently major players from emergent economies,

50 Achieving Bezos’ bold vision of space settlement requires bold policy
direction by Wolfe, May 20, 2019

https://spacenews.com/achieving-bezos-bold-vision-of-space-settlement-
requires-bold-policy-direction/

51 Coco Huang, Los Angeles Times, May 4, 2020.
52 https://www.space.com/37200-read-elon-musk-spacex-mars-colony-plan.html
53 https://www.businessinsider.com/jeff-bezos-reveals-blue-origin-future-space-
plans-2019-5
54 Ibid, note 45, https://spacenews.com/achieving-bezos-bold-vision-of-space-
settlement-requires-bold-policy-direction/

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China and India, are joining the “Space Club.” The early spacefaring powers – the USA,
ESA and Russia – are facing a growing challenge of fostering international cooperation.

According to space entrepreneur Bezos: “establishing guidelines and a
permitting criterion would spur consideration and interest among prospective space
settlement stakeholders. Serious investors and colonists will, at a minimum,
appreciate and more likely insist that a government sanctioning regime be in place
to add a high-level of confidence to any proposed settlement initiative.”55

Many authors and experts in Space law have explored the concept of
governance of human space settlements in outer space. George Robinson who was
awarded the first doctorate in space law at McGill University, co-authored a book about
the governance of space societies. The book written in 1986, talks about the conflicting
instincts for combat and cooperation. With the two world wars in the 20th century and
the dangers of nuclear confrontation the need to guard against hostile nations has been
transferred to the 21st. century, as well as the need for cooperation, on many fronts.56

Authors Ram Jakhu and Pelton 57 explore the parallel situation of the
International Space Station (ISS) to the Human settlements. In the ISS there are largely
systems engineers and ground control personnel who are responsible for the operation
of the ISS. The authors consider that settlements would have a different structure, as
they should be more independent, autonomous, and sustainable. Life on Mars would
require a different structure than the one established by the ISS.

55 Ibid, https://spacenews.com/achieving-bezos-bold-vision-of-space-
settlement-requires-bold-policy-direction/

56 Robinson G and White, Harond, Envoys of Mankinf A Declaration of First
Principles for the Governnce of Space Societies, Washington, DC Smithsonian Institution
Press, 1986.

57 Global Space Governance: An International Study, Editors: Jakhu,
Ram, Pelton, Joseph (Eds.) 2017, by Springer International Publishing AG

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Mark Frazier in his article “Emergence of a New Hanseatic League” states58 In the
five decades since the Outer Space Treaty was adopted, however, little headway has
been made in opening space for the benefit of all of humanity. The 107 ratifying nation
states have deadlocked over ways to commercially develop common pool resources
of outer space in accord with the treaty provisions. Frazier proposes a system based on
new contractual agreements for non-governmental user associations and a “non-
dominium” legal framework based on Elinor Ostrom’s insights59. These agreements are
for stewardship rather than ownership of commercially valued resources, respecting the
Treaty’s ban on land ownership claims. Space startup entrepreneurs could establish a
fund for success- sharing innovations for the benefit of all human beings based on the
theory of Trent McConaghy. 60 McConaghy envisages an innovative way to benefit
communities from entrepreneurships endeavors, via crypto currency “tokens”. Tokens
may be in a form of company’s equity shares or vouchers to access its products or
services. Either form could be used by a multi stake-holders organization (MSO) to
ensure that everyone on the planet receives an escrowed share of the benefits of
entrepreneurially developed assets from humanity’s common heritage in space. In
return for ensuring an entrepreneur friendly legal environment, the MSO would oversee
a trust for all individuals on Earth to share in the asset gains.

58 Frazier, Mark, Emergence of a New Hanseatic League: How Special Economic
Zones Will Reshape Global Governance, Chapman Law Review, volume 21, issue 2,
article 4, 2018.

59 Ostrom, Elinor, Governing the Commons: The Evolution of Institutions for
Collective Action. Cambridge, UK: Cambridge University Press, 1990.

60 Trent McConaghy, Tokenize the Enterprise . . . And Melt It into the Community.
Rinse, Repeat., BIGCHAIN DB (June 6, 2017), https://blog.bigchaindb.com/tokenize-
theenterprise-23d51bafb536 [http://perma.cc/4DJX-7BPJ].

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In my article published at the Indian Journal on International Economic Law, I
have explored the application of Ostrom’s principles of common pool resources (CPR)
to outer space.61

These principles are:
1. Clearly defined boundaries of CPR must be defined for the use of the
resources otherwise “any benefits they produce by their efforts will be reaped by others
who have not contributed to these efforts.”
2. Sensitivity of rules governing the use of the commons to local needs and
conditions of the users.
3. Collective-choice arrangements, which will require making provisions at the
start of these arrangements.
4. Monitoring by means of neutral means which could be external monitors to
bring transparency.
5. Graduated sanctions for holding parties responsible for damages.
6. Conflict resolution mechanisms, by means of arbitration, such as the
proposed outer space advisory group at the Permanent Court of Arbitration62;
7. Minimal recognition of rights to organize, that means the right of resources
users to devise their own institutions, and
8. Establishment of Networks of local associations, or “Nested enterprises”,
which delegate to solution providers the responsibilities of agreed services.
It seems that these principles could be easily applicable to space entrepreneurs
developing mining operations and future settlements in outer space, which could grow
into a revenue sharing for all human beings.

61 Valnora Leister, Economic Governance and Space Law: Emerging Foundations
for Development of “Common Pool Resources” in Outer Space, 3 INDIAN J. INT’L ECON.
L., 64, 66–67 (2010)

62 Gabrynowicz appointed to Space Law Arbitration Advisory Group for the Hague,
http://rescommunis.wordpress.com/2010/01/06

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Felix Dodds in his book 63 explains how to re-engage the peoples from different
regions of the world, moving from representative to participatory democracy, reaching
a “Stakeholder Democracy.” This concept of multi stakeholder governance was adopted
by the United Nations in 1992 with the UN Conference on Environment and
Development (Rio Conference). Over the following 17 years, the governments at the UN
continued to evolve their understanding of multi stakeholder governance. 64 This
multilateral system can be effective with or without the UN umbrella and varies
depending on its goals. For example, we have policy-oriented governance multi stake
groups such as:

• the Global Partnership for Oceans, whose goal is to restore ocean heath. This
group has 150 partners representing governments, international organizations, civil
society groups and representatives from the private sector.

• a product oriented multi stakeholder groups such as the Marina Stewardship
Council (MSC), which is a non-profit setting a standard for sustainable fishing;

• a process-oriented group such as ICANN, a community of stakeholders that
has coordinated the Internet's domain name and addressing systems since their
inception, and

• a finance-oriented group such as GAVI, the Vaccine alliance, an international
organization created in 2000 to improve access to new and underused vaccines for
children living in the world's poorest countries.65

A multi stakeholder partnership with governments, non-governmental
organizations, civil society, and academia, applying Ostrom’s principles and an inclusive
cryptocurrency “tokens” systems for the participation of the MSOs and human beings

63 Dodds, F. Stakeholder Democracy: Represented Democracy in a Time of Fear,
London, Routledge, 2019.

64 United Nations. (2019). Towards global partnerships: a principle-based
approach to enhanced cooperation between the United Nations and all relevant
partners. General Assembly

65 https://www.gavi.org

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in general, would be a viable model for space entrepreneurs looking for an international
framework to work in outer space, while preserving the interests of humankind.

Observing past activities in outer space, one may conclude that the viability of
proposed space mining operations and future settlements based on the above indicated
principles should be based on widespread global support. The question is: Which
international platform would be ideal for these discussions and to agree on a framework
for governance in these new areas?

COPUOS has been an established platform to invite members and non-members
and new private sector organizations into discussions of frameworks for future
settlements. COPUOS is working on the revised draft “Space2030” agenda and its
implementation plan to be submitted to be later considered by the General Assembly
at its 75th session, to start on September 15, 2020.66

The agenda addresses long-term sustainable development concerns of
humankind, including the future contribution of the Committee to the global
governance of outer space activities, consistent with international law. 67 In its paragraph
13, the Agenda commits to address : “changes in the undertaking of outer space
activities at a time when new technologies have emerged and when an increasing
number of participants, representing both governmental agencies and non-
governmental entities, including industry and the private sector, are becoming involved
in ventures to explore and use space and carry out space activities. In that regard, we
commit to ensuring that the Committee, and its subcommittees, supported by the
Office for Outer Space Affairs, continue, as appropriate, to respond to such changes, in
their role as unique platforms for international cooperation in the peaceful uses of
outer space.”

66 https://www.uhc2030.org/news-events/uhc2030-events/multi-stakeholder-
hearing-in-preparation-for-the-united-nations-general-assembly-high-level-meeting-on-
uhc-542996/

67 A/AC.105/C.2/L.316 The “Space2030” Agenda: space as a driver of sustainable
development

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On a different note, Chris Johnson, space law adviser at the Secure World
Foundation, argues that the White House Executive Order of April 6, 2020 indicates that
the USA wants to set unilateral precedents on use of space resources, instead of
embarking on a long and uncertain process with COPUOS, now with 93 member states,
attempting to develop rules.68

6. Final Considerations

In the words of Stephen Heintz: “The nation state, while still an essential locus
of governance, is inadequate for managing trans-national challenges like global
warming, pandemic disease, or mass migration…... And, increasingly, representative
democracy across the globe is neither truly representative nor very democratic. We
must jettison anachronistic assumptions, reform obsolete organizational structures,
invent new institutions, and systems, and promote a new global ethos of equity and
inclusion that accurately reflects both current realities and future needs. The urgent
tasks before us require rapid and continuous innovation in the private, public, and
nonprofit sectors and much broader and deeper cooperation among them. In fact, this
is the only way these goals can be achieved.”69

The pandemic crisis now confronting the world reveals how fragile the
governance structures on Earth are, and how international cooperation is relevant in
overcoming this challenge. As pointed out by Bremmer, “when walls are built by
governments to protect insiders from outsiders and the state from its people, new forms
of inclusive governance should be considered.” 70 If a Multilateral Stakeholder
Organization agreement could be implemented in the New Worlds, it could inspire Earth
to move from a representative to a more inclusive and participatory democracy.

68 https://breakingdefense.com/?s=WH+Woos+Potential+allies, by Theresa
Hitchens, Abril 2020.

69 Stephen Heintz, Reflections on Philanthropy, Council on Foundations, January
8, 2019, https://www.cof.org/blogs/amplify/2019-01-08/reflections-philanthropy

70 Ian Bremmer, Us vs. Them: The Failure of Globalism, Portfolio, 2018.

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In summary:
1- Outer space law was born out of the confrontation of the USA and the USSR
in the 1960’s and resulted in the international law and principles regulating this realm
today.
2- Outer space, along with Antarctica, the High Seas and the Atmosphere, is
defined by international law as the common heritage of mankind.
3- Over the years many developments such as communications satellites and
remote sensing of the earth have promoted the creation of international organizations,
such as International Telecommunications Union (ITU), Intelsat, Inmarsat.
4- Recent developments in space technologies allowing for mining of asteroids,
the Moon and human settlements in outer space, with greater involvement of the
private sector, are demanding new international regulations, so that outer space is
developed taking into consideration the interests of mankind.
5- At present, the initial major space players, USA and Russia, and its allies, need
to recognize the new outer space players from the emergent economies: China and
India.
6- A new MSO framework can encourage entrepreneurs’ developments in outer
space on a basis that benefits all people on Earth.
7- An international platform to discuss establishing of a new MSO should be
agreed upon and consider all interests of mankind.
It is our view that the new uses of outer space resources represent an
opportunity to gain stakeholders’ trust in developing a new multilateral governance
regime which would consider the interests of all space stakeholders and of mankind.71

71 According to Garret Hardin’s article “The Tragedy of the Commons”71, the
reliance on national governments to use and dispose of the common property of
humanity would have detrimental results. In his view, “they would manage natural
resources to satisfy their electors, without being accountable to future generations.”
Science, 13 Dec 1968: Vol. 162, Issue 3859, pp. 1243-1248DOI: 10.1126/science.162.
3859.1243, 13 December 1968.

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As we have seen in Section 5, Elinor Ostrom introduced a theory that rules can
emerge from the bottom up, to ensure efficient and sustainable shared management of
common pool resources. She stresses the importance of clarity of rules based on a
democratic decision making, involving the developers and users of the resources. Her
Nobel Prize lecture’s title: “Beyond Markets and States: Polycentric Governance of
Complex Economic Systems”72 gives a clear definition of her theory of shared management
of common areas and could be applied to outer space mining and settlements.

In discussing the Multilateral Stakeholder Organization partnership for mining the
asteroids and the moon, it is instructive to consider the structure, and experiences of
ITU, the oldest public-private partnership applied to outer space resources. ITU allocates
satellite orbits, which are not “owned” by the assignee, but can be renewed on a regular
basis, and can be leased to other parties. ITU currently consists of 193 member countries
and 700 private sector entities and academic institutions and has 12 regional and area
offices around the world.73

Regarding the future settlements in the Moon, Mars and other celestial bodies,
existing UN Programs may also be relevant. Goal 11 of the United Nations 2030 Agenda
calls for action by public and private sector organizations to make cities and human
settlements “inclusive, safe, resilient and sustainable.”74 The UN “Space30 Agenda”
defines space as a driver of sustainable development on Earth75. Thus, goal 11 of the
UN Agenda can be achieved on cities on Earth, with the use of new technologies in
outer space such as communications, remote sensing satellites, and the new resources
to be explored in space, as indicated in the Space30 agenda. The same model for
“inclusive, safe, resilient and sustainable” cities on Earth could be mirrored in the New
Worlds as well.

72 Ostrom, Elinor. 2010. "Beyond Markets and States: Polycentric Governance of
Complex Economic Systems." American Economic Review, 100 (3): 641-72.

73 http:itu.intl/go/OverviewITUHistoryArticle
74 https://www.un.org/sustainabledevelopment/cities/- Goal 11: Make cities
inclusive, safe, resilient and sustainable.
75 A/AC.105/C.2/L.316. The “Space2030 Agenda”.

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Global focus, commitment, innovation, and resolve – combined with backing
from private and public spacefaring partners aligned with this vision– can ensure that
these Sustainable Development Goals are reached by 2030 on Earth and in the New
Worlds settlements. The world will soon enter a decade that will be decisive for both
current and future generations and for all Human life on this planet and in other celestial
bodies. It is in our hands to make it a decade of action and delivery for sustainable
development for the Old and New Worlds alike.

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