Philip De Man

Commercial uses of space and space tourism: setting the scene: Legal and Policy Aspects

Space applications have become indispensable in our modern society, as they account for an ever-expanding number of facilities of a very diverse nature all over the world. Whereas space services used to be, for a long time, primarily scientific or military in nature, commercial applications of spacefaring are rapidly accounting for the most exciting developments in the fields of space sciences, technology and law. Satellite applications facilitate the provision of such diverse services as global communication, remote sensing, climate observation, data collection, resource exploitation, transportation and space tourism. The astonishing scientific and technological progress in this respect has been made possible in large part by the enabling and, some would argue, ambiguous legal framework that has been put in place at the international level to govern space activities. The fundamental principles underpinning this legal regime are the free exploration and use of outer space, including the Moon and other celestial bodies, by all States, including their nationals, and the corollary prohibition of national appropriation of outer space, by any means whatsoever, including sovereignty.1 These principles stand in stark contrast to those of the legal regime governing the airspace above the territory of States, who have complete and exclusive sovereignty over the areas directly superjacent to their land and territorial sea.2

Space Law, Scope and Status

This chapter discusses the key concepts and principles relevant for the exploitation of natural resources in outer space. The chapter notes that international space law is defined as the body of rules that regulates the activities of States in the exploration and use of outer space. This approach is mirrored in the title of the main UN space treaties and their key provisions. In light of this functional approach to space law, the chapter questions the validity of traditional approaches to space resource exploitation, to the extent that they appear primarily concerned with finding physical criteria for distinguishing in the application of the principles of free use and non-appropriation, rather than with a definition of these activities. In particular, the chapter is critical of the possibility, as well as the necessity, of defining the concept of ‘celestial body’ in international space law as a means of excluding only mineral resources of celestial bodies from the application of the non-appropriation principle. The chapter finds that the most consistent way to interpret the celestial body notion in space law is one that defines it as a sphere of activities rather than as a self-standing physical phenomenon. Discussions on the exploitation of celestial bodies should therefore focus on the activity of exploitation rather than the notion of a celestial body. And given that the main principles on space resource exploitation do not distinguish between outer space and celestial bodies, their application should not distinguish between these phenomena either.

Orbits and the ITU

This chapter delves into the technical regulations of the International Telecommunication Union that determine the lawful, exclusive uses of orbits by satellite systems and networks. In keeping with the broad definition of natural resources in outer space, the detailed rules of the ITU constitute a valuable example of an application of the general principles of the UN space treaties to a contested space resource, in particular considering the lack of discrimination between outer space, celestial bodies or natural resources in the formulation of these UN principles. A thorough analysis of the ITU rules on orbital registration of satellites finds that, though these resources are unanimously seen as falling under the ambit of the non-appropriation principle, they can be lawfully registered for exclusive use by one single administration. This exclusive exploitation of a limited natural resource is not limited by any specific time period, but depends solely on the condition of actual and continued use of this resource by the registering administration. The main finding of this chapter is hence that potentially permanent exclusivity in the exploitation of contested natural resources in space is not as such unlawful, but can only be granted on the condition of actual use.

Improving the Framework of Negotiations on International Investment Agreements

The present chapter assesses the possibility of improving the framework of negotiations on international investment agreements, in particular from the viewpoint of developing and least-developed capital-importing countries. The chapter analyses the viability of deliberations on a multilateral investment framework in order to mitigate the perverse effects of the negotiation dynamics at the bilateral level. The chapter duly takes into account the pre-existing situation of an elaborate regime of bilateral investment treaties between developed and developing countries, which mortgages the negotiation options of the latter at the multilateral level. Given this duality of parallel negotiations, the chapter proposes a cautious, incremental approach to complementary multilateral investment rules that focus on technical issues so as to improve the economic attractiveness of developing host countries for foreign investors. If feasible, this negotiation track should be supplemented by discussions on more substantive multilateral measures, in particular dealing with investment incentives.