The Legal Regulation of Natural Resource Exploitation in Outer Space: Common Heritage or Common Law? Symposium: ‘Global Space Issues: an Indian Perspective’ Delhi, 2 March 2016 Steven Freeland Professor of International Law, Western Sydney University Permanent Visiting Professor, University of Copenhagen Visiting Professor, University of Vienna

The International Legal Framework: not a ‘lawless regime’ UNGA Resolutions 1960s => a series of United Nations Treaties Treaties Outer Space Treaty (1967) Rescue Agreement (1968) Liability Convention (1972) Registration Convention (1975) ‘Cold War’ context => before off Earth mining considered a possibility Moon Agreement (1979) coexisting with negotiations for UNCLOS (1984) both treaties ‘rejected’ by major industrialised powers 1980s => UNGA Principles ‘hard’ and ‘soft’ law guidelines emergence of national law (approximately 30 States and counting …) Professor Steven Freeland Western Sydney University, Australia

Legal ‘Basis’ of Outer Space Sputnik (1957) – need for regulation => fundamental principles include: legal ‘status’ of outer space different legal basis from air law freedom principle non-appropriation principle not based on territoriality / sovereignty => national law does not apply State responsibility for national activities international liability ‘peaceful purposes’ Professor Steven Freeland Western Sydney University, Australia

Exploiting Natural Resources of Outer Space Non-appropriation – OST article II important ‘non-colonization’ principle proactive rule to minimise risk of conflict not introduced with exploitation in mind but still … appears to limit / prevent ‘property rights’ Pragmatic application - Geostationary Orbit a ‘limited natural resource’ allocation of usage rights of spectrum from ‘orbital slots’ Professor Steven Freeland, Western Sydney University, Australia

Reconciling non-appropriation with the Moon Agreement ‘common heritage of mankind’ – Moon Agreement article x1(1) but … MA contemplates exploitation MA contemplates removal from moon and celestial bodies MA makes reference to ‘property’ rights for non-governmental entities / natural persons MA proposes international (administrative) regime to be established ‘as such exploitation is about to become feasible’ (cf International Seabed Authority) => ‘extra-terrestrial exploitative rights’ – analogous with terrestrial mining rights? Professor Steven Freeland Western Sydney University, Australia

… will industry be able to wait? => USA laws pressure from US industry / entrepreneurs for national law to: facilitate commercial exploration and utilization of space resources to meet national needs discourage government barriers to developing economically viable, safe and stable space resource exploitation industries promote right of commercial entities to explore / utilize space resources and transfer such resources ‘any asteroid resources obtained in outer space are the property of entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations’ (SPACE Act of 2015) Professor Steven Freeland Western Sydney University, Australia

Follow the Leader: Luxembourg Initiatives Plans to pioneer the business of mining asteroids in space for gold, platinum and tungsten Seeking and supporting relevant private investment/other States First European country to stake out rights for the mining of near-Earth objects A ‘Space Industrial Revolution’ Professor Steven Freeland, Western Sydney University, Australia

The Future? how will other States react to any national regulation in absence of international agreement? will States ultimately agree on a framework based on (an amended) Moon Agreement? what would an ‘International Celestial Bodies Authority’ look like? form / structure what conditions would be stipulated for any ‘licence’? environmental ‘royalties’? – to whom and how distributed? transfer of rights? technology transfer? others? ultimately, international cooperation will be the key Professor Steven Freeland Western Sydney University, Australia