Transcript A workable exploitation of ‘celestial bodies’: key principles for avoiding conflicts

A WORKABLE EXPLOITATION OF ‘CELESTIAL BODIES’:
KEY PRINCIPLES FOR AVOIDING CONFLICTS
Dr. Philip De Man
Prof. Dr. Jan Wouters
KEY TENSIONS
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Regulation of exploitation of celestial bodies complicated by absence of
definition of celestial bodies and natural resources
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How to distinguish between celestial bodies and their natural resources?
– Relevant for application of basic principles of space law to exploitation activity
– Specific issues re: legality of exploitation of material resources of celestial bodies
– Mainly application of non-appropriation principle and implementation of sharing of
benefits/interests
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Possible conflicts (Fasan)
– Concern re: appropriation of celestial bodies
– Concern re: exclusivity of exploitation activity
PROPOSED SOLUTIONS
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Excluding certain celestial bodies from legal definition
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Astronomical taxonomy
Functional criteria
In toto transportation
Excluding natural resources from scope of non-appropriation principle
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Adoption of OST: inclusive scope of NA principle
CB arguments reiterated mutatis mutandis to their resources
Compare ‘in place’ criterion Article 11 (3) MA
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Fundamental assumption: physical possession removes celestial bodies and/or resources
from application of non-appropriation principle
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Issues
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Before extraction NR cannot be distinguished from CB in absence of definitions
Extraction as defining criterion confuses physical and legal appropriability
SUGGESTED GUIDELINES (I)
PROPERTY RIGHTS?
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Main argument for property rights: legal certainty
 Key element for reducing potential of conflict
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Two perspectives
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Required for allowing act of exploitation
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Required for securing investments
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At international level: confuses exploitation with appropriation
At national level: recognition of property rights cannot reduce uncertainty
Assumes that exploitation is lawful
Recognition of property rights over extracted resources does not address key issues/periods of uncertainty
Main elements of uncertainty
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Between initial plans/exploration and actual exploitation
Exclusivity during extraction?
SUGGESTED GUIDELINES (II)
AVOIDING CONFLICT IN THE ABSENCE OF PROPERTY
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Conflicts between users
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Conflicts between prospective users
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Key concern: exclusivity if first in time, reasonable limits to exploitation if not
Guideline: exclusion based on non-interference on condition and for duration of actual exploitation
Key concern: freedom of exploration should give way to exclusive exploitation
Guideline: tentative exploration exclusivity for fixed duration based on sufficiently advanced plans
on identified celestial body
Conflicts between users and non-users
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Key concern: ensure benefits for and safeguard freedoms of actors without sufficiently advanced
plans, while rewarding efforts of exploiting entities
Guidelines
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Functional limitation to size of area and amount of resources recovered
Recognize legality of transfer of processed resources for use by others
Financial due diligence fees as taxation for distribution among non-users
CONTACT
[email protected]
[email protected]