4. The Interplay Between Space Law and International Investment Law: Local Equity Requirements as a Model for Standards of Global Action in the Uses of Outer Space

Space Angels, “Space Investment Quarterly: Q1 2018 Report” (10 April 2018), online: Space Angels https://​www.​spaceangels.​com/​post/​space-investment-quarterly-q1-2018.

See, for example, “Incredible Technology – Space Travel and Exploration,” online: https://​www.​space.​com/​topics/​incredible-space-tech.

See US Commercial Space Launch Competitiveness Act, Pub L 114–90 (2015), and Luxembourg Draft Law on the Exploration and Use of Celestial Bodies, Le Gouvernement du Grand-Duché de Luxembourg, Ministère de l’Économie (2015), online, Government of Luxembourg: http://​www.​gouvernement.​lu/​6481974/​Draft-law-space_​press.​pdf.

Ibid.

See, for example, the proposed space mining plans of private companies such as: Moon Express, more information herein, online, Moon Express http://​www.​moonexpress.​com/​expeditions/​; Shackleton Energy, more information herein, online, Shackleton Energy http://​www.​shackletonenergy​.​com/​; Planetary Resources, more information herein, online, Planetary Resources http://​www.​planetaryresourc​es.​com/​asteroids/​#asteroids-intro; Deep Space Industries, more information herein, online, http://​deepspaceindustr​ies.​com/​mining/​.

Jeff Desjardins, “The Value of Asteroid Mining” (3 November 2016), online: Business Insider https://​www.​businessinsider.​com/​the-value-of-asteroid-mining-2016-11.

See US Commercial Space Launch Competitiveness Act and Luxembourg Draft Law on the Exploration and Use of Celestial Bodies, supra note 3.

See, for instance, B Cheng, Studies in International Space Law (Oxford: Clarendon Press, 1997); F Lyall, P B Larsen, Space Law – A Treatise (UK: Ashgate, 2009); G Gal, Space law (Leiden: Sijthoff, 1969); I H P Diederiks-Verschoor, Vladimír Kopal, An introduction to space law (Alphen a/d Rijn: Kluwer Law International, 2008); I A Vlasic, Ed, Explorations in aerospace law: selected essays by John Cobb Cooper, (Montreal: McGill University, 1968); Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (The Netherlands: Martinus Nijhoff Publishers, 2010); Marietta Benko, Kai-Uwe Schrogl, Eds, Space Law: Current Problems and Perspectives for Future Regulation, Essential Air and Space Law (The Netherlands: Eleven, 2005); Nandasiri Jasentuliyana, Roy S K Lee, Eds., Manual on space law. Volume I, (Dobbs Ferry: Oceana, 1979).

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, of 27 January 1967 (610 UNTS 206) [“Outer Space Treaty”]; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space, 22 April 1968, 672 UNTS 119, 19 UST 7570, TIAS No 6599, 7 ILM 151 (entered into force 3 December 1968) [“Rescue Agreement”]; Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, 24 UST 2389, 10 ILM 965 (1971) (entered into force 1 September 1972) [“Liability Convention”]; Convention on Registration of Objects Launched into Outer Space, 6 June 1975, 28 UST 695, 1023 UNTS 15 (entered into force 15 September 1976) [“Registration Convention”]; and Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) [“Moon Agreement”].

UNCTAD, World Investment Report 2018: Investment and New Industrial Policies (UNCTAD, 2018), at 88 [footnote omitted]:

In 2017, countries concluded 18 new IIAs: 9 bilateral investment treaties (BITs) and 9 treaties with investment provisions (TIPs). This brought the size of the IIA universe to 3322 agreements (2946 BITs and 376 TIPs), of which 2638 were in force at year-end.

Surya P Subedi, International Investment Law (Sussex: Hart Publishing, 2008), at 8. In addition, it was submitted that if the local law was considered inferior, not well developed or failed to meet the standards of justice and equity, the international minimum standard rather than national law would apply to foreign investors (Ibid, at 9).

Ibid, at 11 et seq.

Outer Space Treaty, supra note 10, art III:

States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.

Outer Space Treaty, supra note 10, Preamble.

Outer Space Treaty, supra note 10, Preamble, arts I, II, and III

Outer Space Treaty, supra note 10, art VI.

République de Guinée, Assemblée Nationale, Loi L/2015/N°008/AN Portant Code des Investissements de la République de Guinée.

Catalogue of Industries for Guiding Foreign Investment (No. 4 Decree of the National Development and Reform Commission and the Ministry of Commerce of the People’s Republic of China), online: http://​www.​fdi.​gov.​cn/​1800000121_​39_​4851_​0_​7.​html.

International Bank for Reconstruction and Development, World Development Report 1997 – The State in a Changing World (Oxford: Oxford University Press, 1997), at 1–2. See also, Salacuse, supra note 35, at 60.

See, for example, art 166 (al. 1) of the 1982 Constitution of Turkey (Constitution of the Republic of Turkey, 7 November 1982):

The planning of economic, social and cultural development, in particular the speedy, balanced, and harmonious development of industry and agriculture throughout the country, and the efficient use of national resources on the basis of detailed analysis and assessment and the establishment of the necessary organisation for this purpose are the duty of the State.

Edward S Mason, Economic Planning in Underdeveloped Areas: Government and Business (New York: Fordham University Press, 1958), at x (“The plain fact is that throughout the underdeveloped world, the pressures for economic development are all but irresistible. A government that fails to seize the levers of economic development, or at least make the attempt, is probably not long for this world”). See also International Bank for Reconstruction and Development, supra note 41, at 1–2.

Besides Marxist theories which do not recognize the concept of property that is key with respect to international investment law, a wide spectrum of opinions exist in this regard; while some believe in the benefits of FDI, others emphasize the need to avoid relying on such investments. Some approaches are also situated in between these extremes.

See, for example, R S Milne, “The Politics of Malaysia’s New Economic Policy” (1976) 49(2) Pacific Affairs 235 and R. Thillainathan and Kee-Cheok Cheong, “Malaysia’s New Economic Policy, Growth and Distribution: Revisiting the Debate” (2016) 53(1) Malaysian Journal of Economic Studies 51.

Magnus Blomström, Ari Kokko, and Mario Zejan, “Why do Multinationals Seek Out Joint Ventures?” in Magnus Blomström, Ari Kokko and Mario Zejan, Eds, Foreign Direct Investment: Firm and Host Country Strategies (Basingstoke: Palgrave Macmillan, 2000), at 30:

A number of measures intended to encourage multinational firms to transfer more technology have been introduced over the years, including requirements for a certain degree of local participation in the ownership of the MNCs’ affiliates. By forcing the multinationals to ‘unbundle the package’ of inputs they bring to the host country, it is believed that a host country can enable local firms to obtain access to these inputs without the traditional direct investment.

Outer Space Treaty, supra note 10, art VI.

See, for example, US Commercial Space Launch Competitiveness Act and Luxembourg Draft Law on the Exploration and Use of Celestial Bodies, supra note 3.

Geoffrey Kransdorf, supra note 51, at 279. See also Michael Blakeney, “Transfer of Technology and Developing Nations,” 11:4 Fordham Int’l L. J. 689 (1988), at 693.

Geoffrey Kransdorf, supra note 51, at 280. See also President Reagan, “International Meeting on Cooperation and Development – Statement at the First Plenary Session of the Meeting in Cancun, Mexico. October 22, 1981,” 17 Weekly Comp. Pres. Docs. 1185 (1981), at 1185–1186:

[g]overnment has an important role in helping develop a country’s economic foundation. But the critical test is whether government is genuinely working to liberate individuals by creating incentives to work, save, invest, and succeed. … Because whenever they are allowed to create and build, wherever they are given a personal stake in deciding economic policies and benefiting from their success, then societies become more dynamic, prosperous, progressive, and free.