Space War and the Regressive Development of the Principle of Common Heritage of Humankind: Legal vs. Technological Weapons

Deep under the waters, HMS Challenger discovered the polymetallic nodules during its scientific expeditions in the Kara Sea part of the Arctic Ocean in 1868. Whilst in the vastness of the skies above, the Clementine and Lunar Prospector indicated the existence of water ice at the lunar poles during the period of 1994 to 1999. In 2003, the SMART-1 lunar orbiter of the European Space Agency discovered the key chemical elements of the Moon. Going even further back, in 1988, NASA published a work on Helium-3 blown away by the solar wind onto the Moon, and the possibilities of harvesting it as an alternative energy source for the continuation and advancement of human race. The deep seabed and the outer space, along with their resources, are both internationally governed under the same underlying principle: the Common Heritage of Humankind. Yet, while the former has begun to take shape, the latter still has very little progress. Various factors ranging from laws to politics to economics and undeniably the advances in science and technology have hindered the development of the principle of Common Heritage of Humankind in the outer space regime. Hence, this paper is to argue on how best to reform the principle, and consequently, determining which of its elements that might be spared in order for it to eventually work in balancing the contrasting interests from diverse stake-holders: the developed and the developing countries; the sovereign and the corporations – with their respective weapons of laws or of technology.


Introduction
HMS Challenger discovered the polymetallic nodules in 1868 during its scientific expeditions in the Kara Sea part of the Arctic Ocean. 1 During the period of 1994 to 1999, the Clementine and Lunar Prospector indicated the existence of water ice at the lunar poles. 2 In 2003, the SMART-1 lunar orbiter of the European Space Agency discovered key chemical elements of the moon. 3Going even further back, in 1988, NASA published a work on Helium-3 blown away by the solar wind on to the moon and the possibilities of harvesting it. 4Those are all the richness of resources that the deepness of our seas and the vastness of our skies have to offer -or to tempt us with.They belong to no one and to everyone.Thus, in telling the tale of international resources management, particularly exploitation of those that are yet to be within the grasp of humankind, the outer space 5 and the deep seabed6 are often paired next to each other.
The two regimes are abundantly rich of unspoilt natural resources to support not only the life, but also the advancement of human race.Hence, the two of them share the same underlying principle: Common Heritage of Humankind. 7ich above all else, the two regimes face the same deliberate rejection from the United States and other powerful nations on that very principle. 8Common Heritage of Humankind generally comprises of five key elements: nonappropriation, international management, equitably shared benefit, peaceful purposes and to some extent, environmental protection.In international law of the sea on deep seabed mining, the implementation of the principle has begun to take shape for quite some times.At the very least, deep seabed mining is monitored by the International Seabed Authority whose mandates are, amongst others, the arrangement of fair distribution of the shared benefit and the promotion of the developing countries participation in the exploitation activities through the regime's Reserved Areas and the Enterprise. 9Even then, Common Heritage of Humankind in the law of the sea is still in needs of further development.Yet, in comparison with its sibling, the implementation of such principle in outer space regime is much less developed.Some of the factors that hinder the development of the Common Heritage of Humankind principle under the outer space law are first, the fact that up to this day there is only one piece of legal instrument that explicitly governs the Common Heritage of Humankind, the 1979 Moon Agreement, which desolately only managed to gather no more than eighteen State parties; 10 second, on a more political point of view, the handicaps of developing nations in terms of funding, technologies, or in some cases, experts, have more or less caused the lingering unwillingness of the developed nations to join on board the Agreement due to the equitably shared benefit and the international management elements in the principle; third, economically, the contrasting legal status between the natural resources of, say, the Moon while they are still contained within and once they have been extracted then removed has led to a balance point that is almost impossible to strike between the public nature of the benefit from the resources and the communal ownership of the outer space that would grant tremendous control to the government while creating a friendly environment for private parties' activities and commercialisation of the resources.

Problems Formulation
This paper is to argue on two points: one, in order for the principle of Common Heritage of Humankind to cease its chasing-tail development under the outer space law, at least one of its elements has to be sacrificed, this writing hence identifies which element is it that needs to be casted; two, the certainty of the equitable sharing benefit of the space resources element must be clearly defined and re-arranged between the monetary benefit and non-monetary benefit. 9United Nations Convention on the Law of the Seas, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) art 148, 156 & 170 ['UNCLOS']  10 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, signed 18 December 1979,  1363 UNTS 3 (entered into force 11 July 1984)  ['1979 Moon Agreement']

Research Objectives
Derived from the aforementioned problems, this paper aims: to rationalise why the element of international management of resources must be the one to be sacrificed, that it may fire up the flares to call for the developed nations to come: and to redefine the equitable benefit sharing of space resources in a way that somehow would balance the needs of all parties involved.

Research Method
This paper is of normative nature which was born of a complex study with both statutory and conceptual approaches.It was done so by utilising the primary legal materials that comprise of both international law sources such as international agreements and general principles of international law; as for the secondary legal materials, library study was conducted on a good number of books, journal articles, reports, documents, other researches of similar nature and other articles.Everything is eventually deduced in qualitative analysis and presented in a descriptive manner.

Elements of the Principle of Common Heritage of Humankind
The principle of Common Heritage of Humankind was historically derived from the concern of its founding father, former Ambassador Arvid Pardo of Malta, for the equal welfare of the developing nations in the enjoyment of the world's natural resources.The principle was initially established under the regime of international law of the seas, and is widely recognised and applied to govern the matters on deep seabed mining.11Hence, it is important to note the development of Common Heritage of Humankind principle and its elements under the law of the seas before assessing its progress under the law governing the use of outer space.Common Heritage of Humankind is included under Part XI of the 1982 United Nations Convention on the Law of the Sea ('UNCLOS'). 12To begin with, UNCLOS labels the deep seabed -or, referring to its own specific terminology, 'The Area' 13 -as well as its in situ resources 14 and its extracted minerals 15 as Common Heritage of Humankind. 16 this regime, particularly, the principle of Common Heritage of Humankind that is attached to the deep seabed is understood to have four key elements.
First, that all States are prohibited from claiming jurisdiction and exercising sovereignty over the deep seabed (non-appropriation). 17 Second, that the deep seabed shall be used exclusively for peaceful purposes. 18Third, that the resources from the deep seabed shall be managed internationally. 19Fourth, the benefit of the resources shall be shared equitably. 20out two points coming out as the consequence of the deep seabed being the Common Heritage of Humankind: first, based on the nonappropriation nature of the deep seabed, it shall then be used for the sole benefit of the whole mankind, regardless the geographical condition of being land-locked or coastal States; 21 and second, in the light of the international management and equitable sharing of benefit of the resources from the deep seabed, the promotion and encouragement for the participation of developing countries in deep seabed mining activities are to be undertaken. 22To ensure these two striving points will carry out accordingly, the International Seabed Authority (ISA) was established, 23 which true to its name, is mandated with the powers and functions over activities on the deep seabed. 24Whilst the actual technical matters on the promotion and encouragement for the participation of the developing countries are mostly vested upon the Enterprise, 25 and its particular scheme called "Reserved Area." 26  26 In the mining of polymetallic nodules in the deep seabed, if a private entity of a developed nation is to submit an application of mining activities to be conducted in a certain area of the deep seabed to the ISA, it shall UNCLOS has somehow implied that the defined, thus promoted, activities on the deep seabed to be the marine scientific research -which also includes provisions on peaceful purposes 27 and international cooperation 28 in benefitting the mankind as a whole -rather than exploration and exploitation of the resources.Although the the matters concerning the latters have also been detailed further -including how much is the share that the ISA or the Enterprise should get from the benefit of the mined resources. 29omoting and encouraging the participation of developing countries on the other hand, brings further, rather ambitious implications.On the part of benefit of all mankind alone, it is stipulated that the financial and other economic benefits derived from the activities on the deep seabed shall be distributed equitably. 30And above all, UNCLOS requires transfer of technology and scientific knowledge regarding the activities on the deep seabed to the ISA, 31 the Enterprise, 32 and most importantly, the developing countries. 33space.It is also in this very Resolution that the notion of 'sovereign equality' 34 in the outer space regime was first explicitly introduced.Sovereign equality is deemed to be the basis on which the exploration and the use of the outer space must be meant to accommodate the benefit and interests of all mankind.And from thereon, the remaining elements of non-appropriation of the outer space, reserving the outer space exclusively for peaceful purposes, and additionally, international cooperation and mutual assistance are developed within the the scope of the UNGA Resolution 1962.

The Birth of Common Heritage of Humankind in the Law
In short, with its sovereign equality, international cooperation and mutual assistance elements, the Celestial Bodies ('1979 Moon Agreement').Instead, the two space treaties are referring to the specific terminology of 'province of all mankind'.Province of all mankind strives a more limited scope as compared to Common Heritage of Humankind.At best, province of all mankind can be generally understood as a variety to res communis, 36 thus, communal ownership of the 34 Historically, the term 'sovereign equality' was first proclaimed in the 1943 Declaration of Moscow by four developed nations: the United States, United Kingdom, Soviet Union and China.It is then defined that "no state can be legally bound under international law against its will," and that it is solely international law that can bind the states, not any national law of other state.Hans Kelsen, 'The Principle of Sovereign Equality of States as A Basis of International Organisation ' (1944) 53 Yale Law Journal 207, 209 35 The principle under international law that is strongly related to the environmental protection issues that are affecting the common areas (res communis) or the planet as a whole that requires the international cooperation of all states that the burden could be shared amongst the states. 36As opposed to terra nullius, the res communis or the land that belongs to no one, is the place that cannot be occupied in any manner that would establish the sovereign rights of states.While terra nullius is yet to be subject to sovereignty of any states, therefore, it is capable of occupation.In Bin Cheng, 'International Law and High Altitude Flights, Balloons, Rockets and Man-made Satellites ' [1959] International and Comparative Law Quarterly, 494 outer space as a shared 'place', and that the activities shall be limited to mere exploration and use of such place.Nevertheless, the principle of province of all mankind still demonstrates some similar values to Common Heritage of Humankind.Hence, the 1967 Outer Space Treaty might still serve as a considerable piece of international legal instrument on this very principle in The 1967 Outer Space Treaty has managed to gather 107 State parties and 23 signatories, making it quite a reliable multilateral space treaty.It defines activities of States in the outer space as both 'exploration' and 'use ', 40 while promoting the freedom of scientific investigation. 41Freedom of use of the outer space, equality and reciprocity have therefore become the three key principles brought forward by the 1967 Outer Space Treaty within its scope of province of all mankind.This is where its similarities with the Common Heritage of Humankind stand out: exploration and use of outer space shall be carried out for the benefit and interests of all countries, 42 which consequently, such activities must be transparent, in which the United  '1967 Outer Space Treaty']  41 Ibid 42 Ibid, while UNCLOS (above n 18) defines the sovereign equality to be irrespective of the States' geographical condition of whether being land-locked or coastal States, the present treaty defines equality as irrespective the degree of States' economic or scientific development.
Nations (UN) Secretary General, the international community and public as a whole are entitled to be informed; 43 the outer space shall not be subject to appropriation or occupation by any States; 44 and the that of the outer space is to be used exclusively for peaceful purposes. 45ditionally, the Treaty governs that States shall authorise the activities of their nationals or private entities in the outer space, 46 which leads to the States assuming international responsibility over such nationals or private entities. 47If they have reasons to believe that the activities planned by its natural or juridical person are potent to cause harmful interference with the activities of other States, international consultation shall be undertaken before proceeding with the activities. 48sed on the principles of equality and reciprocity, not only that the Treaty obliges the States to promote international cooperation and mutual assistant, it has also binds the international responsibility of States on environmental protection. 49Both international cooperation and environmental protection of

c. To the Sole International Space Treaty for Common Heritage of Humankind
While revisiting and providing some additional key points on province of all mankind, the 1979 Moon Agreement has eventually introduced the principle of Common Heritage of Humankind to the outer space regime, making it the only current space treaty that governs about the said principle in the international space law.The present agreement has taken a bit of a leap of faith, by explicitly stating that the Moon and its resources are 53 The wording of 'within our solar system' might sound rather ordinary.But while the most feasible space exploration and exploitation, being the Moon, is yet to be actually undertaken, there are other solar systems out there that the future technology might reach effortlessly, hence it is quite important to note these solar systems are excluded from the 1979 Moon Agreement, and therefore, are not part of Common Heritage of Humankind.Generally, see Deborah Schrerrer, Our Solar System -Ancient Worlds, New Discoveries (Stanford University Press, 2013) 43-44 54 1979 Moon Agreement art 1 (2) 55 Ibid art 1 (3) 56 the reference to the word "Moon" in the present agreement are meant for the general, swept-up purpose since the Moon is currently the only feasible and closer celestial body to Earth for exploration, use and exploitation activities.By expressing "the Moon", the present agreement also simply refers to the other celestial bodies within our solar system -that would be equally feasible as the Moon. of province of all mankind, as contained both in itself and in its sister treaty -the benefit of all countries and the peaceful purposes. 63Additionally, with the two key space treaties repeatedly highlights the international obligation on environmentally sound activities of States in the outer space, it has then been widely recognised that environmental protection is the fifth element of Common Heritage of Humankind in this regime.
As for the international management and equitable sharing of benefit derived from exploiting the resources of the Moon, the present agreement still leaves a rather spacious empty room for the much-needed development.
For one, in the absence of its own authority in the outer space law equivalent to ISA in the law of the seas, the 1979 Moon Agreement highlights the need to establish an international legal regime and procedure to govern about the exploitation activities, 64 including the rational management of the Moon's First is the very apparent legal issue of the 1979 Moon Agreement having only been legally binding to no more than 18 State parties, it is shrinking in size as compared to other, far more superior multilateral treaties from other regimes.It is simply not a ground solid enough to provide a firm legally binding effect, thus applicability, of the Common Heritage of Humankind -not even through customary international law. 66With only a handful of UN Treaties that were negotiated during the critical period of 1960's to the 1970'ssome of them does not even manage to gather enough sympathisers -and most States caught themselves in space disputes would rather solve them through diplomatic means than actually willing to go through the court litigation system, both nationally or internationally, 67 there is still very small number of case laws that might be directly applicable to space disputes. 68Although, but some supporting analogies can still be drawn from similar circumstances, such as those of the law of the seas.
Second, economically speaking, the prospectus business actors of space mining seem to have failed to distinguish that non-appropriation does not necessarily mean "capturing", "extraction" and "removal" of natural resources in the outer space.Hence, by being told that claiming ownership of the Moon and its in situ resources is prohibited, the automatic response still remain so is claiming ownership over the mined resources of the Moon.Also, there is no recognition on "first come, first serve" principle as found in the law of property ownership 69 in the enjoyment of all mined resources of the Moon, which consequently, it has yet to provide a friendly environment for privatisation and 66 For the law to be recognised as customary international law, it requires two elements: state practise and opinio juris.The latter is further understood as the believe of the society, in this case the international community, that a general practise is accepted and recognised as the law (see Christian Dahlman, 'The Function of Opinio Juris in Customary International Law' (2012) 81 Nordic Journal of International Law 327).In the outer space regime, the principle of Common Heritage of Humankind is yet to fulfil at least one of those elements. 67 commercialisation in the outer space, alongside the still tremendous control power vested on the governments through the schemes of granting authorisation and assuming international liability to and over their nationals and private entities.To address this issue, the Joint Statement on the Benefits of Adherence to the Moon Agreement in 2008 highlights that the 1979 Moon Agreement does not preclude exploitation by public or private entities, nor does it prohibit commercialisation, it is simply obliging the stake-holders who are to conduct the space exploitation and commercialisation in accordance with the principle of Common Heritage of Humankind.Additionally, it sets up some sort of a middle way of joint development mechanism through joint venture arrangement.
Last but certainly nowhere near being the least, the political tensions from the well-developed space-faring nations have become the ultra-significant factor that has hindered the development of the principle in the law governing the use of outer space.The 1979 Moon Agreement has initially been the product of political bargains amongst these space-faring nations to glean legality on the ownership of space resources as a further step after settling with the communal ownership of the Moon under the 1967 Outer Space Treaty.But by observing the fact that the leading states were backing off even further and further away from signing the Agreement, it is safe to draw a presumable conclusion that those leading nations have yet to reach their initial political and economic interests upon the conclusion of the negotiation for the 1979 Moon Agreement.Instead, the Agreement still values the international management and equitable benefit sharing of the space resources, that somehow, contradict to the values upheld by these space-faring nations.

The Views of the Space-faring Nations on Space Resources: Sharpening Their Technological Weapon
The 1979 Moon Agreement holds the membership of 18 State parties.
Meaning, there are over a hundred of states out there that, frankly speaking, refuse to believe in the applicability of the principle of Common Heritage of Humankind in the space exploration and exploitation activities.Or, at the very least, refusing to uphold one or two of its elements, if not all five of it.The done by its citizen. 72At the first, slightest glance, distinguishing between general space resources and asteroid resources might have rendered no further implications other serving for the certainty of law.But, as it has been discussed earlier, the 1979 Moon Agreement has only been governing that the coverage of communal ownership over celestial bodies and their resources is merely to the extent of those that are within our solar system.It is exceedingly possible that for an interstellar asteroid to have come from other solar system while passing through ours.For instance, an asteroid called Oumuamua that was caught by the Pan-STARRS1 telescope of the University of Hawaii. 73That is to highlight that, on one side, there is yet another legal loophole in the 1979 Moon Agreement, and on the other side, most of all, that it is simply how the United States dances around the loopholes.That being said, some celestial bodies and their resources -both in situ or extractedare no longer incapable of being appropriated.
Aside of that, while the international space treaties are still struggling with developing the methods for the international management of the space resources and the equitable sharing of benefit derived such extracted resources, let alone to actually address the ownership rights of space resources mined by individuals or private entities of a State, the United States has gone even further by truly granting the ownership rights to its citizens over any space or asteroid resources that they have mined. 74though the law has stated that by doing so, the United States is not claiming its jurisdiction or exercising its sovereignty over any part of the outer space. 75Yet, by being entitled to the rights of ownership over the mined space resources, citizens of the United States are free to possess, hence to transfer the right to possess to other party by selling or by any other possible means, to transport or to use it in anyway they like. 76e US Space Act has somehow shrunk the special and extraordinary nature of space resources into a mere ordinary property subjected to 73 NASA, Oumuamua (19 October 2017) NASA Science Solar System Exploration < https://solarsystem.nasa.gov/asteroids-comets-and-meteors/comets/oumuamua/in-depth/> 74 Ibid § 51303 75 Ibid § 51403 76 Ibid § 51303 common property law. 77If anything, it has regressed the international community's attempts to settle the matters on the equitable sharing of benefit derived from space resources.As if to ensure that, the Act provides that the discouragement of government barriers on space resources recovery and granting ownership rights over such resources remain to be done in accordance with the international obligations of the United States.Without saying much, so long as the United States remains to be non-party to the only Common Heritage of Humankind agreement in the international space law, it is free to do as it pleases.

b. Luxembourg Domestic Law on Space Mining Activities
On the exact same page as the United States, Luxembourg has developed its own Draft Law on the Exploration and Use of Space Resources ('Luxembourg Draft Space Law') only within two years after the enactment of the US Space Act, and the law opens with its very first article stating that the "space resources are capable of being appropriated". 78In that one single short sentence, the Luxembourg Draft Space Law has thrown its rock even further than that of the United States.Under the Draft Law, commercial exploration and use of space resources are to be done upon authorisation granted by the relevant minister in Luxembourg. 79Although, such authorisation may only be given to public limited liability company, private limited liability company, limited corporate partnership, all established under the law of Luxembourg, or to European company registered in Luxembourg. 80That being said, the Luxembourg Draft Space Law has yet to regulate space commercialisation done by natural persons.
The issue is, since authorisation to conduct the commercialised exploration and use of space resources can be given to not only public entities of Luxembourg but also the private ones, the specific chosen word of 'appropriation' for space resources in the Draft Law is simply just too strong to use when addressing the space mining activities done by private corporations.
Not to mention the fact that the Luxembourg Draft Space Law has failed to distinguish between the space resources in situ and the extracted space resources.Appropriating the space resources that are still contained within the celestial body might as well amount to appropriating that celestial body on itself, immensely needless to say, violating the international law -and international belief that the Moon and its resources in situ are supposed to be communal ownership.
The Way Forward

Differentiating Between the Monetary and Non-Monetary Benefit
Before discussing further about the equitable sharing of benefit derived from the space mining activities, it is important to differentiate between monetary benefit and non-monetary benefit 'derived from the space resources' -or directly 'of the space resources'.The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization ('The Nagoya Protocol') has provided some illustrations for both monetary and non-monetary benefit to be shared equitably that might be applicable in the outer space regime.The monetary benefit under The Nagoya Protocol may include access fees for every sample of resources that has been collected, upfront payments, milestone payments, payment of royalties, licence fees in commercialisation of the resources, special fees paid to the trust funds in support of the conservation and sustainable use of biodiversity, mutually agreed salaries and preferential terms, research funding, joint ventures, or joint ownership of relevant intellectual property rights. 81 for the non-monetary benefit on the other hand, The Nagoya Protocol also offers a huge number of possible arrangements that, by and large, is strengthening the human resources and institutional capacities, access to information, and above all, transfer of technology. 82Similarly, UNCLOS has obliged the transfer of technology scientific knowledge regarding the activities on the deep seabed to be made to the ISA 83 as well as the Enterprise, 84 and on top of it all, the developing countries. 85 Governance Working Group has also come up with a more promising enabling clause approach for the equitable sharing of benefit to be enjoyed by the developing countries. 86 the spirit of promoting the participation of developing countries, the enabling clause under the Draft Building Block has firmly stated that the international framework for the development of enjoyment of space resources should not entail the mandatory monetary benefit sharing. 87Instead, it promotes the establishment of an international funding institution for encouraging and assisting the involvement of developing countries in the space mining activities. 88That way, the Draft Building Block has still combined both nonmonetary benefit and some variety of monetary benefit in a well-designed way.
The rest of the benefit sharing developed by the Draft Building Block shall include, but not exclusively limited to: facilitating and fostering the development of space technology and knowledge in these countries and the development of relevant and appropriate skills amongst their productive citizens; 89 promoting the international cooperation and contribution in educating and training the space knowledge, technology, and relevant skills; 90 widely opening up access to and exchange of information regarding the exploration and exploitation of space States in a reciprocal manner. 92From these aforementioned points, it is almost crystal clear that the Draft Building Block extends the coverage of the benefits to be shared equitably is as simple as that of the 'space resources', instead of limiting them to be that of 'derived from the space resources' -the seemingly small change that makes a world of differences.
That being said, however, non-monetary benefits would certainly serve better as the much-desired portion of benefits that can be enjoyed by the developing nations for their advancement in the exploration and exploitation of international resources, as it offers something that is more beneficial than mere financial or other economical benefits derived from those resources.
Hence, it is then up to the matter of arranging the fair distribution of such benefit.

Arranging the Fair Distribution of Benefit of the Space Resources
Fair is a very subjective word.Is non-monetary benefit fairer than monetary benefit, or vice versa?Does 'benefit of the space resources' really have more to offer rather than 'benefit derived from the space resources'?What is fair for the developed countries might not -or perhaps even would never be -fair for the developing and least developing ones.It is of a very utopic view to believe that there can actually be an equilibrium point to balance between benefit for the developing nations and benefit for the developed ones.But the international community, be it through a bigger possibility, a bigger pool to fish an expertise -or to train an expertisefrom.The basic method in doing so can be copied from the typical Bilateral Investment Treaties (BITs) arrangements in the international investment regime: that is to have an agreement between two contrasting interests of a developed state and a developing one, while the former has money to build an infrastructure, the latter has many other possible things to offer such as the land on which the infrastructure is to be built, the manpower, or perhaps the natural resources. 94Yet, tricky would be a simple way to put it.BITs might have worked properly -if not perfectly -because one party, being the developed capital-exporter nation, subject itself under the jurisdiction of the other party, being the developing capital-importer nation.While the latter is somewhat on a weaker bargaining position, it is still its land and its own resources that the relevant investment of the former is evolved around, thus, the developed state should have no other option than to lower its ego and play along with the developing state on a levelled playing field. 95The same circumstances cannot be applied to the outer space regime: not a single portion of outer space -safe for the way the United States regulates about the asteroid resources -is under the jurisdiction of one country; a developed nation would not feel necessary to consider the interests of the developing nation simply because it is mining a celestial body which at the time being is situated above the territorial boundaries of that developing nation.Here is where the common sense is expected to appear, that is to return back to the initial commitment to encourage the active participation of the developing nations.Additionally, training of expertise and education of space knowledge can be offered by the developing space miners as a form of non-monetary benefit sharing of space resources, that one day, these citizens of the developing nations may develop their own technology without the United States or Luxembourg necessarily being forced to transfer theirs.The technology that the advanced space miners might be interested in, that perhaps, one day, they would give in to the notion of transfer of technology.

The Element of International Management of Space Resources: the Sacrificial Lamb
As mentioned in the beginning of this paper, that in order for the Common Heritage of Humankind principle to progress with its development in the international space law, one of its elements, being the international management of resources, must be sacrificed.The truth is, with or without an international legal framework that is developing the principle in the way that its international management element is casted away, the developed nation has actually begun to shape the principle this way.By granting ownership rights over mined space resources to its citizens, or by declaring that the space resources are available for appropriation, the United States, Luxembourg, and other states following their footsteps closely behind, is already firing out bright flares that they intend to manage the space resources that they have mined by themselves, thus, no more international management for these resources.
That being said, we are left with almost no other choice but to flow along the stream of the law development, as law would not be a governing law if its society would not believe its virtue as the law.The international management of space resources element may only be thrown away from the Common Heritage of Humankind principle if it fulfils these two requirements: first, that the space resources to be managed individually by States instead of collectively by the international community shall be limited to only those of the mined resources, the resources in situ shall still be subject to communal ownership; second, that the equitable sharing of monetary benefit derived from the space resources and non-monetary benefit of space resources in the way that is prioritising the interests of the developing countries must be upheld to compensate the soon-to-be absence of international management of space resources element.

Conclusion
In order for the principle of Common Heritage of Humankind to cease its chasing-tail development under the outer space law, the legal certainty for the element of equitable sharing benefit of the space resources must be established in the way that the equitable sharing of the monetary benefit is reserved for the benefit derived from the space resources, while the equitable sharing nonmonetary benefit is specified for the direct benefit of the space resources.
Additionally, we all must be willing to sacrifice the element of international management of extracted space resources.That hopefully in the end, will somehow meet the needs of the developing countries while balancing the interests of the space-faring nations -and the private corporations under their embraces.A rather gigantic, ambitious notion to achieve, but there is no hurt in trying.
the outer space regime, to support that of the 1979 Moon Agreement.Many even argue that, regardless the absence of the actual mentioning on the principle, the 1967 Outer Space Treaty still somehow upholds the values of Common Heritage of Humankind. 37It is just the matter that the version of Common Heritage of Humankind as found in the 1967 Outer Space Treaty is more of the flexible one, since it indicates that the Moon and its resources are opened for all States and available for their enjoyment, 38 without necessarily saying that the outer space is owned by all as found in the 1979 Moon Agreement, making it the probable supposition as to why the USSR is party to the 1967 Outer Space Treaty but not to the 1979 Moon Agreement. 39 and by the States are to be done in the Treaty's concept of 'peer review': if States have reasons to believe that the activities planned by other States might cause harmful interference with the peaceful use of outer space, request for consultation may be made; 50 States may request to observe the flight of space object launched by other State; 51 and on top of it all, stations, installations, equipment and space vehicles of States shall be open for visit by representatives of other States upon notification. 52While the actual definition of province of all mankind is merely implied in the 1967 Outer Space Treaty, the 1979 Moon Agreement provides a better clarity.It limits the province of all mankind into the Moon and other 57  Ibid art 6 (2)58  Ibid art 7 (1)59  Ibid art 8 (1)60  Ibid art 8 (3)Common Heritage of Humankind, 61 hence, legally extending the activities of States in the outer space to include also the 'exploitation' of the Moon's resources.62But the nectar-sweet promise brings its own not-so-desired implication, especially to those of the developed nations, particularly the United States: that Common Heritage of Humankind means international management and equitable benefit sharing of the resources, as found in the law of the seas.This grand and noble idea, is the one that has somehow plunged the 1979 Moon Agreement into mere 18 State parties, with 4 signatories, that its current status quo as the only legal basis for the Common Heritage of Humankind in the outer space regime has become almost meaningless.On a justifiable presumption, that might have been the supposition as to why in listing the elements of Common Heritage of Humankind, the portion of the 1979 Moon Agreement that governs about such principle seems to have only been emphasising on non-appropriation element in accordance with the 1967 Outer Space Treaty, to add up to the aforementioned elements

61
Ibid art 11 (1) 62 Ibid art 11 (5) 63 Ibid art 11 (2)-(4) 64 Ibid art 11 (5) resources and the equitable sharing of benefits from such resources with special consideration for the developing countries. 65These open-ended provisions are not there without a cause, they are simply in hopes that, the fact that these elements of Common Heritage of Humankind are yet to be progressed under the present agreement, the space-faring nations would jump into the further negotiation and eventually becoming the State parties to it.The Development of Common Heritage of Humankind in The Outer Space Regime 1.A Legal Weapon Born Out of the Regressive Development The governance of both province of all mankind and Common Heritage of Humankind principles in the 1979 Moon Agreement have contributed in offering a bit of a clarity on the legal status that should be applied to the Moon and its resources: the Moon itself is both Common Heritage of Humankind and communal ownership; samples of the Moon minerals or other substances are also communal ownership; natural resources of the Moon in situ are Common Heritage of Humankind, yet those that have been collected, extracted or removed, are to belong to the miners; while the benefit derived from those extracted resources are Common Heritage of Humankind -but then again, to what extend that such benefit would remain as Common Heritage of Humankind?How should we draw the line between the miners' ownership and the communal ownership?And on top of it all, the simplest, yet grandest question: what kind of benefit?The development of the international law should naturally flow in a progressive current from time to time.But those questions above alone have shown that the development of Common Heritage of Humankind principle in the outer space regime is yet to be deemed as such.The least is to say that the development has been stagnant at the time being.The worst is that it might have been going through a regressive, tail-chasing development.There are three factors that hold back the development of Common Heritage of Humankind principle in the international space law.
reason why the United States refuse to become party to the 1979 Moon Agreement is because Russia is not a party to it.And the reason why Russia refuse to become a party to it is because the United States is not.While it has been everyone's autopilot response to picture the United States and Russia tensely sitting on opposite ends of the table when one is to think about the space race that it has almost become a dull illustration; below is the discussion on how the United States and another, less-anticipated space-faring nation, Luxembourg -that is also, obviously, not a party to the 1979 Moon Agreementset up their domestic space laws that in one way or another, has incapacitated the development of the Common Heritage of Humankind principle.These are only the views from mere two developed states, which from this point, one can only envision what could probably happen in the near future, and how the layout of the international space treaty on Common Heritage of Humankind would look like, if more states are to join their moves -which the preliminary circumstances suggest that they would.a.The United States' Domestic Law on Space Mining ActivitiesStaying true to what it believes in, as it has refused to be a party to the UNCLOS, the United States of America, much unsurprisingly, has a very liberalised view on space mining activities that develops in such a fast-paced tempo.When the international community has walked along this line in a series of tiny baby steps while taking its sweet time to develop from the space treaties that govern the space activities to only be exploration and use before considering the exploitation of space resources, the United States on the other hand, has determined the space exploitation activities from square one.The 2015 US Commercial Space Launch Competitiveness Act ('US Space Act') guarantees to facilitate and to discourage any government barriers on the commercial exploration and recovery activities of, not only the general space resources, 70 but also down to the very detail of asteroid resources 71 centred around the attempts to prioritise the interests of the developing nations, such as research collaboration, participating in product development, 81 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, signed 29 October 2010 (entered into force 12 October2014), annex art 1 ['The Nagoya Protocol'] Along this line, Draft Building Blocks for the Development of an International Framework on Space Resource Activities ('Draft Building Blocks') developed by The Hague Space Resources 13 UNCLOS part XI 14 UNCLOS art 133 (a) defines solid, liquid or gas minerals located in or beneath the seabed as 'resources' 15 Whilst UNCLOS art 133 (b) defines all the mined resources as 'minerals'

b. To the 'Province of All Mankind'
37 Paul Henry Richards, Some Current Problems of International Space Law, (Doctor of Philosophy Theses, The Council for National Academic Awards, 1985), 93-94 38 Referring to 'freedom of use of the outer space'. 39Ibid 40 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) art I [ bodies within our solar system, 53 as well as orbits or trajectories around the Moon (and other celestial bodies).54TheEarthitself,and the extra-terrestrial materials naturally brought to Earth are excluded from this definition.55The1979 Moon Agreement upholds the same values as the 1967 Outer Space Treaty on the province of all mankind, with specific additional stressing points as follow: the rights to collect and remove samples of the Moon 56 for scientific purposes, and that such samples shall be made available for other States; 57 since the 1967 Outer Space Treaty only implies the environmental protection of the Earth, the present treaty regulates environmental protection of both the Earth and the Moon; 58 the activities of exploration and use are extended to be those that are allowed on the surface as well as below the surface of the Moon; celestial59and last but not least, when the 1967 Outer Space Treaty limitedly prohibits harmful interference to the activities of other States, the present agreement simply prohibits any interference.60 UNCLOS, the 1967 Outer Space Treaty or the 1979 Moon Agreement, has sealed their commitment to promote and to encourage the more active partaking of the developing countries in the management and enjoyment of international resources since a very long time when those agreements were first signed.The ink has long gone dried.There is no stepping back from what we have once promised ourselves collectively as the citizens of the Earth.light of the latter scenario and considering the current development of space science and technology undergone by the major developed states players, transfer of technology might have sounded as if we are to ask the United States to paint the moon green -which they probably can.Hence, on that note, some of the more neutral fashions for equitable sharing of benefit offered by the Draft Building Block might be applicable.The best scheme would be to promote the arrangement of exchange of expertise in a mutually agreed, reciprocal government to government basis to replace the transfer of technology requirement.A developing nation may not have the money or the advanced technology, but they still have population, most of them even have a large number of population, and that means a bigger chance, 91 Ibid point 12.1 (d) 92 Ibid point 12.1 (f)