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26 Austl. Int'l L.J. 69 (2019)
The Territorial Scope of Investment Treaties: Applicability of International Investment Law to Space Mining Activities

handle is hein.journals/austintlj26 and id is 75 raw text is: 69 THE TERRITORIAL SCOPE OF INVESTMENT TREATIES:APPLICABILITY OF INTERNATIONAL INVESTMENT LAW'TO SPACE MINING ACTIVITIES SARAH WARING* Abstract The space mining industry is undergoing a wave of commercialisation which entails a tremendous amount of unpredictable risk. Whilst the legal framework governing the use of outer space lays down the main principles for space activities, it does not address whether or how the investments of private actors in space ventures are protected. Despite the growing attention and investment that has been afforded to space mining ventures due to the economic and social benefits of such ventures as discussed below, there has been little attention paid to the protections that might be afforded to private investors in such activities The unique nature of space mining poses a variety of unique challenges in applying international investment law ('III) principles originally designed for terrestrial activities to operations that use resources in areas that under international space law are not subject to national appropriation or sovereignty. This article therefore endeavours to examine whether the scope of a typical international investment agreement ('IIA') is applicable to protect foreign investments in commercial mining activities in outer space. This is done by first providing an overview of the relevance of investment law to space mining, then examining the inadequacy of the law on the use of outer space and celestial bodies, including an overview of the general international law framework relevant for space mining activities. Thirdly, the article examines the general applicability of investment law primarily comprised from a large body of IIAs. Finally, the article briefly examines the application of some of the main IIL protections available when States do not honour their obligations. This article demonstrates that investment law can and should be applied to space activities and thus that investors may be able to avail themselves of the favourable protection standards in IIAs. INTRODUCTION The space mining industry is undergoing awave of commercialisation that entails a'tremendous amount of unpredictable risk' including the possible loss of invested capital or that expected Juris Doctor, The University of Melbourne. Bachelor of Environments from The University of Melbourne. The author has served as Editor of the Melbourne Journal of International Law and as a legal intern at the International Criminal Tribunal for the former Yugoslavia. Peter Malanczuk, 'Investment Protection of Commercial Activities in Space' (2018) 19 Journal ofWrldInvestment Trade 951, 953. For more information on the diverse risks inherent in investing in the commercial space industry see Near Earth LLC, Supporting Commercial Space Development Part 1: SupportAlternatives Versus Investor Risk Perceptions & Tolerances (Report, 2010 33-61; Michael Laisn , 'Space Entrepreneurs: Business Strategy, Risk, Law, and Policy in the Final Frontier' (2013) 46(4)John Marshall Law Review 1039.

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