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#SpaceWatchGL Opinion: Secret or Shared? The discovery of outer space resources by the private sector – SpaceWatch.Global

#SpaceWatchGL Opinion: Secret or Shared? The discovery of outer space resources by the private sector – SpaceWatch.Global

Written by Dennis O’Brien

Heart of the Moon: Image created by Phil Jergenson

The Moon Village Association was recently established Benefit-sharing project Consider the sharing of benefits from the exploration and use of outer space. After the initial meeting, there was a recommendation that “we must clarify the need to know how to deal with commercial confidentiality.”

Information sharing is a subset of the general topic of how the private sector shares the benefits of outer space, and benefit sharing is a critical topic that must be addressed as humanity expands its presence and activities. It is the first topic addressed by the 1967 Outer Space Treaty:

Article 1: Outer space, including the Moon and other celestial bodies, shall be explored and used for the benefit and interests of all countries. . . “

This obligation extends to citizens of the state, including private entities:

“Article VI. The States Parties to the Treaty bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried out by government agencies or non-governmental entities, and for ensuring that national activities are carried out in accordance with the provisions of this Treaty. Treaty”.

How can we then share the discovery of outer space resources?

Sharing the discovery of outer space resources: an example from the Moon Treaty

In my opinion, subsidizing the private sector is a good public policy. We need private sector resources, talent, creativity, and enthusiasm if we are to have a sustainable human presence in outer space. For a private enterprise to be economically sustainable, it must have some way of generating income. That’s why I support the resources becoming marketable private property once they are removed from the venue (on site). I also support other types of proprietary information, such as technology patents, as they are essential for the private sector to invest in research and development.

However, the policy of supporting the private sector must be balanced with other public policies, for example, the peaceful use of outer space, free access to all, non-appropriation, and everything that the Outer Space Treaty requires. Trade secrecy is a good policy, as noted above, but it is not absolute. We must find a balance. Indeed, it is in the interest of the private sector to help determine what information can be shared that will be of maximum benefit to humanity with minimal harm to private industry. I think Discover Resources fits that description.

Since I began promoting the Moon Treaty in 2017, the most difficult point of contention I’ve faced has been the requirement to share resource discovery, with some considering this information proprietary.

Interestingly, the resource discovery stands out because it was specifically specified in the Treaty on the Moon. Article 11.6. Affirms that “States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the fullest extent possible and practicable, of any natural resources that they may discover on the surface of the Moon.” Like the Outer Space Treaty, the Moon Treaty extends this obligation to the citizens of a state party, including private entities. Article 14.1. It states that “States party to this Agreement bear international responsibility for national activities on the Moon, whether such activities are carried out by government agencies or non-governmental entities, and for ensuring that national activities are carried out in accordance with the provisions set forth in this Agreement.”

The Cleveland Space Law Committee discusses legal issues related to the moon. From left: Dennis O’Brien, Michelle Hanlon (For All Moon), Chris Johnson (Secure World Foundation), Stephen Mermina (NASA), and Jesse-Kate Schingler (Open Moon Foundation). Image credit: Mark Sundal, Cleveland Marshall School of Law.

Some say the biggest problem with the Moon Treaty is the phrase “the common heritage of mankind,” which was used in the Law of the Sea Convention to support the creation of an international governance entity that must agree to all the deep seas. Mining outside national areas. But this definition does not apply to the Moon Treaty. We can define it however we want. Since I began promoting the Moon Treaty in 2017, the most difficult point of contention I’ve faced has been the requirement to share resource discovery, with some considering this information proprietary.

To resolve the aforementioned controversy, the following question becomes: Should the discovery of resources by a private entity be considered a trade secret for private industry to be sustainable in outer space?

If the assignment was allowed under the OST, the answer would be yes. Discovery would be an essential first step to “make a claim” for exclusive use, and keeping the information confidential would allow the entity to establish a physical presence to secure such a claim before others became aware of the supplier. But making a claim, or any other act of exclusion is forbidden by the OST, because exclusion equals assignment. Any resource must be shared in place under the OST’s open access policy:

“Article I . . . outer space, including the Moon and other celestial bodies, shall be free for the exploration and use by all States without distinction of any kind, on an equal basis and in accordance with international law, and there shall be free access to all areas of celestial bodies.” “

Therefore, since exclusive access to a resource cannot be considered a component of economic sustainability, knowledge of that resource cannot be considered essential to the success of any particular endeavor. This tilts the scales significantly in favor of a policy that exempts resource discovery from being considered part of commercial secrecy.

Public Interests vs. Private Endeavors

Another consideration: Does such a policy discourage resource exploration by private entities? The short answer is yes; Exploration of private resources will not be economically sustainable unless it generates income. But from the above analysis, there will be no private market for such information, since no private enterprise can benefit from it (there are no claims for contribution). However, there is a general interest in such information. And therefore, A private entity can generate income from resource exploration if it is undertaken as a contractor to the government.

To date, national governments have carried out all the exploration of outer space, including resource exploration, most relevant to the discovery of water ice, helium and other resources on the Moon. Recently, governments have contracted private industry for all kinds of missions, from launch pads to lunar landers. As an alternative to a specific contract, governments can even offer a reward, something like an “X Prize”, for the discovery of useful resources by private entities. Such a policy would have the effect of supporting/stimulating the exploration of private resources while still respecting the policy of information exchange for the benefit of all countries.

Should the discovery of resources by a private entity be considered a trade secret for private industry to be sustainable in outer space?

To sum up: supporting the private sector is good public policy. Trade secrecy is an important part of private economic sustainability, but not always. Keeping the discovery of outer space resources secret does not support economic sustainability because they cannot be used to claim an exclusive claim. Private entities can still make a profit by removing and selling space resources, but they cannot exclude others from accessing the same resources. Instead of exclusive claims, the exploration of private resources can be economically supported as part of the traditional role of governments in space exploration, either by contract or by economic incentives.

I recommend that groups and policy makers who consider commercial secrecy in outer space exempt private discovery of outer space resources from proprietary information. Keeping this information confidential will not benefit any private entity, while sharing it with everyone will benefit the world.

Mr. O’Brien is the founder and president of the Space Treaty Project and a member of MVA Benefit-sharing Project. The opinions expressed here are his own and do not represent the consensus view of the Benefit Sharing Project, which is still under development.

Dennis O’Brien Image credit: Bronwyn Summer Ford / Dennis O’Brien.

Dennis O’Brien is a retired attorney and former member of the NASA Hastings Research Project. He is the founder and president of the Space Treaty Project, a non-profit scientific/educational organization located in Northern California. He is a member of the International Institute of Space Law, the Planetary Society, the Space Renaissance Institute, the Moon Society, and the Moon Village Society, where he is involved in the Benefit Sharing Project.

Since 2017, Dennis has participated in 14 international conferences on outer space and space law (conference papers, videos, and/or presentations). He has written nine articles published in online journals (The Space Review and Modern Diplomacy) and an article in a peer-reviewed journal (Journal of Advances in Astronautics Science and Technology). In 2018, he published Major Tom: A Story of Hope, a novel about the race to establish a permanent human settlement on the Moon, available online here. His recent article, “Is Outer Space a De jure Shared Resource?”

The mission of the Space Treaty Project is to give people hope and inspiration by helping the nations of Earth build a shared future.


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