A WORKABLE EXPLOITATION OF ‘ CELESTIAL BODIES ’: KEY PRINCIPLES FOR AVOIDING CONFLICTS Dr. Philip De Man Prof. Dr. Jan Wouters

K EY TENSIONS Regulation of exploitation of celestial bodies complicated by absence of definition of celestial bodies and natural resources 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 Possible conflicts (Fasan) –Concern re: appropriation of celestial bodies –Concern re: exclusivity of exploitation activity

P ROPOSED SOLUTIONS Excluding certain celestial bodies from legal definition –Astronomical taxonomy –Functional criteria –In toto transportation Excluding natural resources from scope of non-appropriation principle –Adoption of OST: inclusive scope of NA principle –CB arguments reiterated mutatis mutandis to their resources –Compare ‘in place’ criterion Article 11 (3) MA Fundamental assumption: physical possession removes celestial bodies and/or resources from application of non-appropriation principle Issues –Before extraction NR cannot be distinguished from CB in absence of definitions –Extraction as defining criterion confuses physical and legal appropriability

S UGGESTED GUIDELINES (I) P ROPERTY RIGHTS ? Main argument for property rights: legal certainty  Key element for reducing potential of conflict Two perspectives –Required for allowing act of exploitation At international level: confuses exploitation with appropriation At national level: recognition of property rights cannot reduce uncertainty –Required for securing investments Assumes that exploitation is lawful Recognition of property rights over extracted resources does not address key issues/periods of uncertainty Main elements of uncertainty –Between initial plans/exploration and actual exploitation –Exclusivity during extraction?

S UGGESTED GUIDELINES (II) A VOIDING CONFLICT IN THE ABSENCE OF PROPERTY Conflicts between users –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 Conflicts between prospective users –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 –Key concern: ensure benefits for and safeguard freedoms of actors without sufficiently advanced plans, while rewarding efforts of exploiting entities –Guidelines 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

C ONTACT