The International Regulation of Transnational Commons: Regime Formation, Institutional Design and Implications for Near-Earth Asteroid Mining

Transnational commons are shared natural resources for which no effective access regimes exist. Such resources include Antarctica, the atmosphere or international waters. Without international access regulation, transnational commons are prone to overuse. As the technological and economic capacities for access are distributed highly unevenly, a lack of regulation also raises questions of fairness and equity regarding the distribution of benefits resulting from the use of transnational commons. We presently witness intensifying commercial interest in Near-Earth Asteroids (NEAs), known to contain deposits of precious- and other metals of significant market value. While international law (broadly) treats NEAs as the common heritage of humanity, no operational rules currently exist regarding their use as "the province of all mankind" (as stipulated by the Outer Space Treaty). This paper elaborates a) the conditions under which international regimes for transnational commons emerge, and b) the relevant institutional design elements for combining access with a fair and equitable distribution of the resulting benefits. To do so, we analyze two historical cases: The international regime for deep-sea mining under the United Nations Convention on the Law of the Sea, as well as the system for the multilateral sharing of plant germplasm under the International Treaty on Plant Genetic Resources for Food and Agriculture. Our findings suggest a) that the successful formation of a comprehensive international regime for NEA mining is highly unlikely in the absence of broader multilateral package deals, the scope for which is extremely narrow; and b) that onerous obligations regarding compliance and the sharing of commercial and other benefits are likely to deter potential users, leading to underutilization and limiting the scope for benefit-sharing. Instead, our analysis suggests that a phased approach, which would combine an initial soft-law instrument with a ratchet mechanism, would have greater political feasibility and larger aggregate effectiveness than the conventional approach to the international regulation of transnational commons based on binding international law with stringent monitoring- and compliance procedures.