Article from: OGEL 1 (2020), in Editorial
The concept of social licence to operate (SLO, simply 'social license' or 'social licensing') originated in the mining industry and its use has also been extended over large infrastructure, energy, and industrial projects. In simple terms, the SLO refers to: 1) "the ongoing acceptance of a company or industry's standard business practices and operating procedures by its employees, stakeholders and the general public" (Investopedia 2018), and 2) "the level of acceptance or approval by local communities and stakeholders of mining companies and their operations." (Fraser Institute 2012). Specifically in the mining sector, the SLO can be summarised as attempts to "to secure the acceptance of mining activities by local communities and stakeholders, in order to build public trust in their activities and prevent social conflict" (IRP UNEP 2017) whereas such attempts "are premised on engagement between mining companies, governments and civil society to ensure that mineral resource extraction contributes to nation-al and local development, and that damaging impacts on host communities and the environment are mitigated or otherwise managed" (ibid.).
The need of the developers/investors to obtain the SLO stems from the "the demands on and expectations for a business enterprise that emerge from neighbourhoods, environmental groups, community members, and other elements of the surrounding civil society" (Gunningham, Kagan, Thornton 2014). In turn, from the perspective of developers/investors, the SLO is "a pragmatic calculation of what is required to minimise business risk and win the degree of community support required to avoid delay or disruption to company operations" (Owen, Kemp 2013). The SLO is based on some agreement between developers/investors and stakeholders/the community and can take a form of 1) "an informal agreement that infers ongoing acceptance of an industrial or energy project by a local community and the stakeholders affected by it" (Gallois, Ashworth, Leach, Moffat 2017) or 2) "a form of unwritten social contract that exists between companies and communities" (Lacey, Lamont 2014)
The lawmakers can assist with the development of agreements for SLO through procedural empowerment of various stakeholders such as by securing 1) access to environmental information, 2) public participation in environmental law making, strategic impact assessment (SEA) or project-specific environmental impact assessment (EIA), and 3) related administrative and judicial review procedures. Moreover, within the framework of sector-specific corporate-social-responsibility (CSR) / Triple Bottom Line (TBL) activities, developers/investors also seek to secure wider SLO going beyond pure compliance for a number of reasons such as a desire to avoid boycott, or a belief that downplaying such expectations would eventually lead to the adoption of stricter regulation (Gunningham, Kagan, Thornton 2014). Indeed, to quote Curran, "[i]n an age of CSR, social licence thus acts as a form of strategic risk management for most major companies. Its objective is to protect companies' financial and reputational assets by proactively anticipating and managing contestation rather than simply reacting to it." (2017).
Obtaining SLO in relation to the extraction of hydrocarbons and electricity generation is more relevant than ever. On a global scale, the public awareness concerning the impact of new investments and ongoing operations in those sectors on the environment, climate and quality of life of affected communities is constantly increasing, whereas we remain as far as ever from phasing out conventional fuels: about 1160 new coal power plants (CPP) and about 50 nuclear power (NPP) are currently planned or being constructed (Global Coal Plant Tracker 2020; World Nuclear Association 2020). At the same time, the push towards the electrification of the automotive industry predicts massive expansion of mining projects in response to a growing demand for elements used in the production of batteries.
The angles, from which the controversies surrounding the SLO can be looked at, are numerous. Foremost, specific sectors can be analyzed in terms of SLO, including 1) prospection, exploration and extraction (upstream) of hydrocarbons, 2) electricity and heat generation, 3) linear investment such as such oil and gas pipelines (midstream) or high voltage electricity transmission grid with emphasis on cross-border interconnectors, and 4) underground storage of gas, oil and CO2. Secondly, SLO can be looked at in terms of the involvement of public authorities in the social licensing process, including 1) the legislative works with regard to laws affecting above-listed sectors, 2) the preparation of various plans, programs and/or strategic environmental assessment (SEA) which cover the above-listed sectors, and 3) Environment Impact Assessment (EIA) of specific projects in the above-listed sectors.
Thirdly, SLO can be examined through the prism of procedural empowerment of stakeholders, including 1) access to information such as on the progress of the SLO-related legislative process and/or project-specific environment-related information, 2) public participation in the legislative process, preparation of environment-related plans and programmes, the SEA, the EIA, 3) related administrative and judicial review procedures, 4) the duty to obtain free, prior and informed consent (FPIC) from indigenous communities, and 5) consultation with indigenous communities in relation to law and plan making. The procedural empowerment of stakeholders also ties to how property rights and taxation revenue are allocated among investors and affected stakeholders, including 1) separation of right to deposits between treasuries and land holders, 2) distribution of royalties between treasuries and landholders, 3) contractual arrangements between developers/investors and landholders, 4) expropriations and compensation, and 5) specific tort regimes in the mining and nuclear sectors. Finally, SLO can also be looked at from the perspective of who imposes SLO-related requirement, including 1) major multilateral developments banks (MDBs), 2) sub-regional MDBs, 3) national development banks/agencies of major donors, or 4) domestic laws in specific jurisdictions.
In the course of this project running throughout 2019, we have gathered the following contributions partially addressing the above-mentioned phenomena, and we have grouped these into sections of this special issue related to 1) conceptualization of the SLO, 2) intersections between SLO and protection of investment, 3) regional perspectives, 4) case and sector studies, 5) outer space, and 6) one book review.
Conceptualization of SLO
In the article titled 'Getting a Social License, or: How to Catch the Elusive Ghost in Town?' Fritz Brugger argues that natural resource extraction is a disruptive and inherently conflictual business. For the communities surrounding extractive operations, everything from livelihood opportunities to the visual landscape changes. For the mining company costly business interruptions can occur when local populations take to the street over disagreement with extractive outcomes. To mitigate the risk of conflict and ensure operational stability, an increasing number of extractive companies seek SLO from local communities. SLO theory posits that the quality of relations between the mining company and the surrounding communities are a reliable predictor whether there will be peaceful cohabitation that allows smooth operations or whether there is the risk of an imminent violent confrontation with deleterious consequences for resource extraction. Although the SLO started off as a risk management approach of mining practitioners it has evolved into a theory on its own right in the CSR scholarship. Also, it finds increasing use in case analysis. To assess the key tenets of the SLO theory and framework against a broader development theory background, the author analyses both the conceptualization and use of "relations" and of "conflict" in the SLO theory from a sociological political economy perspective. The author finds a reductionist understanding of relational dynamics and of conflict which constrains the explanatory power of the SLO theory and renders it more a rope of sand (pseudo-security) rather than a guide towards meaningful engagement with local realities. The functionalist perspective on the community-company relationship severely limits the ability to properly understand complex local dynamics.
In the article titled 'The Moral Case Against Social License to Operate' Jaana Woiceshyn argues that companies' need to gain and maintain "social license to operate" (SLO) is widely taken for granted, particularly in the extractive industries such as mining and oil and gas. The concept of SLO is not clearly defined, but in general it's understood as approval of a corporation's operations by local communities and various constituent groups. Such approval is believed to be contingent on the corporation achieving various social goals (such as contributing to charity, reducing income inequality, and fighting climate change), in addition to producing and trading material values to create wealth for its shareholders. After briefly describing the moral arguments for SLO, the author makes a moral case against it on the grounds that it undermines human survival and flourishing. The author also provides an argument for an alternative to SLO. The alternative is based on the moral code of rational egoism that advocates the pursuit of long-term self-interest, which entails the recognition of individual rights and voluntary, mutually beneficial trade. Companies enhance human survival and flourishing by maximizing in one objective function: profits, and should be left free to do so. Implications of abandoning SLO for profit maximization for companies, government, other members of society, and lawyers are discussed.
SLO and Investment
In the article titled 'Sustainability Provisions in Canadian Investment Agreements with African LDCs: A Social Licence to Operate?' Anna Aseeva and Tatiana Beketova provide a critical comparative overview of sustainability disciplines in selected international investment agreements (IIAs), including bilateral investment treaties (BITs), with a particular focus on model IIAs and actual BITs concluded between Canada and several African countries. The authors demonstrate two general tendencies. First, an overwhelming number of BITs between capital-exporting states and African countries contain no express reference to the public and further societal interest of the host state. The same goes for BITs between a developing state and an African country. Second, to date only six BITs between a developed country and an African state (all Sub-Saharan least-developed countries) do refer to the public interest and sustainable development of the host state, and all of them are concluded by Canada. The authors noticed, however, a major pitfall in all those BITs. Namely, they are signed in accordance with Canada's model IIA rather than various African investment codes, which clearly shows the power balance in treaty negotiations. More specifically, neither Canada's model IIA nor its actual investment agreements with African LDCs contain substantive provisions with concrete reference to labour standards-either national or international. Additionally, Canada's model includes neither societal impact assessment provisions nor those referring to the precautionary principle. Contrast, for example, Canada's model with the ECOWAS investment code. The latter stipulates a clear investors' duty to protect human rights, including labour rights in compliance with the ILO Declaration on Fundamental Principles and Rights of Work 1998. An overall character of the ECOWAS code is attributable to the sheer needs in improving standards of living of the region. On its side, the Canadian model strives to sign IIAs with African countries, particularly with LDCs, to protect Canadian foreign investments and define the strictest host state obligations possible, whilst the obligations of foreign investors are quite lax or simply non-existent. Substantively, this means that Canadian ratio of 'development funding-FDI' for Africa seems to be providing just enough foreign aid to get a social licence to operate for its investors' involvement in African mining, while maximally facilitating and protecting such involvement.
In the article titled 'Assessing Legal and Regulatory Risks Through the Energy Investment Risk Assessment Report' Ishita Pant observes that today national governments face substantial challenges as new priorities are gaining prominence. Governments must design and implement effective policies that exploit synergies and manage trade-offs. Scaling up investments in sustainable energy resources and new technologies is critical. At the same time, the existing infrastructure and conventional energy resources must be maintained and developed to avoid stranded investments. To help governments reconcile these diverging- and at time competing- priorities, in 2018, the Energy Charter Secretariat launched its flagship publication, the Energy Investment Risk Assessment (EIRA). 30 countries participated in this pilot version, and the number rose to 34 in the 2019 edition. The geographical reach of EIRA is extensive and spans countries in Africa, Asia, the Americas, and Europe.
EIRA evaluates specific risks affecting energy investment that can be mitigated through adjustments to policy, legal and regulatory frameworks. The objective is for the report to be a timely and useful analytical tool that will assist policymakers in navigating through different energy objectives and the inevitable energy transition. EIRA uses four cross-cutting indicators to evaluate the following risk areas: 1) unpredictable policy and regulatory change, 2) discrimination between domestic and foreign investors, and 3) breach of State obligations. It provides countries with feedback on how they can mitigate these risks and prevent potential disputes with investors. The author intends to give the reader an overview of EIRA. The first part provides a background on the development and purpose of the report. It is followed by a brief explanation of the scope and methodology. Finally, the author summarises the performance of the participating countries in the context of the report and presents the main conclusions.
In the article titled, 'Canadian Experience with Social Licence to Operate' Rowland J. Harrison discusses that in just a few years, the concept of 'social licence to operate' has emerged as the dominant consideration in the review of proposed resource development projects in Canada. 'No social licence' has become an effective rallying cry of project opponents in blocking individual developments. Surprisingly, the concept has also been adopted to some extent by industry and governments. Notwithstanding its pervasive role in public discourse on resource development, however, the concept has no agreed meaning and, more seriously, threatens the rule of law by insisting that the outcomes of structured, duly-authorized legal processes have no validity unless they have also acquired social licence. Adherents insist that regulators themselves, in addition to being duly authorized, must acquire social licence to regulate. The author notes that the concept of social licence to operate originated (coincidentally, with a Canadian connection) in very different circumstances from those in which it is now being embraced in Canada.
In the article titled, 'The Social License to Operate in the OHADA Zone: Mapping an Emerging and Fragmented Concept in an Integrated Legal Space' John P. Belinga and Etienne Marque observe that the African continent is going through a profound period of change. For much of its recent history, its natural resources have been exploited with little consideration accorded to local communities and their environment. This situation has become intensively criticized as preventing the continent's development and its population from benefiting fully from their natural resources. The concept of SLO, however, has emerged, notably in the extractive sector, to bridge the dire insufficiencies of the current African extractive governance regime. Thus far, the SLO concept remains multi-sourced and englobes uncoordinated and multi-layered social, environmental, and human rights concerns. The authors aim to lay the groundwork for giving more legal substance to this still fuzzy concept. To assess better the procedural and substantive components underpinning the SLO, the authors examines the SLO's articulation in the OHADA zone, a legally homogenous space with vast natural resources. This task is of critical relevance as the SLO may define whether the trajectory of African extractive governance will evolve to integrate the considerations of local communities better or perpetuate the inadequacies of the status quo.
In the article titled 'Social Licence to Operate in East Africa's Extractives Industries' Wairimu Karanja and Nduta Njenga observe that in East Africa, like many developing regions, there has been a shift from purely economic-driven development, and the social licence to operate has become a major factor for governments, communities and extractives companies. There are numerous examples of extractives operations that have been set-back in East Africa because of in-adequate consideration of SLO issues. For instance, in Kenya, a USD 3.5 Billion coal project has not commenced 6 years after licensing in 2013, due to community resistance. Also in Kenya, Tullow Oil, a UK based oil company, faced SLO issues in 2018 after the official launch of the Early Oil Pilot Scheme by the Kenyan Government. In Uganda, the Karamoja region, which is rich in gold and marble deposits, has seen investors face challenges with communities. In Tanzania, which has an extensive mining sector, community development and SLO issues in mining were among the issues considered in sweeping reforms that started in 2017. In early 2019, the Tanzanian government amended the mining law to specifically legislate for SLO and corporate social responsibility (CSR). The main challenge with legislative provisions in SLO in East Africa is that generally, the legislation is fairly recent and regulations are still being formulated. Further there is insufficient enforcement caused by insufficient financial resources, and governance issues. As such, companies in the private sector are increasingly implementing corporate social responsibility (CSR) programs to achieve SLO. There is also increasing SLO pressure on companies and governments from non-governmental organisations (NGOs) international organisations and private sector membership organisations. The authors provide a study of SLO in the extractives sectors (mining and oil & gas) in Kenya, Tanzania and Uganda. It analyses the current state of SLO in the sectors, developments in the extractives legislation and policy, corporate initiatives by international resource companies, and the initiatives by communities and the public to ensure greater consideration of SLO. The authors offer a conclusion on whether SLO issues are adequately addressed in the extractives sectors in East Africa, and whether any further steps that need to be taken.
In the article titled 'Tracing Social Licence to Operate in the Mining Sector of Mongolia, Kazakhstan and Uzbekistan' Gökçe Mete, Gulzhan Kozhabayeva and Marina Yamamoto discuss that in recent years, there have been improvements in companies' awareness and limitation of social and environmental impacts. There are examples of better engagement between companies, governments and civil society to ensure extractives activity contributes to national and local development objectives. There are ample studies covering Africa and Latin America but little has been written on SLO in Central Asia. As SLO goes beyond the strictly legal requirements of a license, it is not easy to trace its implementation in practice. In this article, the authors make an attempt to trace SLO in Central Asia using mining sector in Kazakhstan, Uzbekistan and Mongolia as a case study.
Case and Sector Studies
In the article titled 'Looking at Environmental Impact Assessment from a Transnational Petroleum Company's Perspective' Mona Agha Seyed Jafar Kashfi observes that any petroleum project is likely to have environmental impacts which need to be assessed by experts before being implemented so that proper strategies for prevention, control and mitigation of those impacts are adopted. It is acknowledged that the right to a healthy environment is a human right in itself. Moreover, the right to access to information concerning environmental impacts is one of the main overlaps between environmental impact assessment and human rights. The duty to carry out environmental impact assessment is mainly imposed on a transnational company through national legislation of the host country in which the company is operating. Such national legislation is formulated under the influence of international environmental and human rights agreements and judicial decisions. The right of host countries to upgrade national environmental laws is supported by the provisions of international investment agreements and the proceedings of international investor-state arbitral tribunals. Furthermore, some international human rights guidelines require a transnational company to protect human rights beyond the national laws of the country in which it is operating. The need to follow such human rights guidelines is reinforced by the transnational company's contractual commitments to financial institutions, corporate social responsibility, monitoring of some home countries over the operations of their companies overseas, and judicial decisions.
In the report titled, 'Oil and Gas Companies and the Management of Social and Environmental Impacts and Issues' Kathryn Tomlinson provides an overview of social and environmental management practices in the oil and gas industry. The author outlines the evolution of international oil companies' approaches over the last 20 years, reviews what social and environmental management amongst such companies means in practice, and highlights some of the unresolved issues emerging today. While most companies now model their approach to social and environmental management on international norms, they face a variety of drivers of their practices. These range from complying with international standards in order to gain access to finance, to complying with new host country legislation and regulation, and gaining and maintaining a good reputation and a 'social licence to operate'. The author argues that the complexity of these drivers problematizes the portrayal of the industry's social and environmental management as 'voluntary' corporate social responsibility, and somewhat renders the latter term misleading.
In the article titled 'Relationships Between Mining Companies and Local Communities under the 2011 Guinean Mining Code: An Analysis of the Legal Framework Governing LDAs and LEDFs' Hamidou Diogo Drame discusses that the 2011 Guinean Mining Code (2011 MC) sets out the legal framework governing the relationships between mining companies and local communities. The negotiation of a local development agreement (LDA) and the payment of a financial contribution to a local economic development fund (LEDF) are new requirements for holders of mining titles. The 2011 Mining Code is viewed as part of the 'fourth generation' of African mining codes which include provisions on local development, environment protection, transparency and accountability in order to achieve sustainable development. The purpose of this study is to review the recent literature on the 'contractual turn' in the relationship between mining companies and local communities. And to analyse the legal and institutional framework established by the 2011 Mining Code for LDAs and LEDFs in order to identify the challenges associated with its application. The study shows that if Guinea is one of the few African countries that has imposed the negotiation of LDAs, the new provisions are not applied to all mining agreements signed before its entry into effect given stabilizations clauses included in those agreements. Therefore, this situation creates a dual framework for local communities affected by mining operations. Furthermore, community effective representation and its capacity to negotiate LDAs, and LEDFs governance remain challenges for achieving the goals fixed by the 2011 Mining Code for local development.
In the report titled 'Groningen Gas: The Loss of a Social License to Operate' Jilles van den Beukel and Lucia van Geuns discuss that in March 2018, the Dutch government decided to stop natural gas production from the Groningen field as soon as the demand for Groningen gas allows. This implies that gas production will stop in 2030 at the latest and that about 500 BcM of gas will be left in the ground. Since the first registered induced earthquake in the Groningen field in 1991 the amount of seismic energy released per unit of produced gas has gradually increased. Up until 2012 this did not receive the attention it should have received from the operator (NAM) and from the Dutch state. In the years following the 2012 Huizinge earthquake (the largest earthquake so far) a number of legal and regulatory measures were taken that made a long-term continuation of gas production increasingly difficult. From late 2015 onwards, production has been set at the minimum level that meets domestic demand and existing export contracts for Groningen gas. A reversal of the burden of proof for damage to houses, in combination with a large rise in the number of associated damage claims, has greatly increased the non-technical cost of gas production. Many of the more recent claims, especially those on the outer fringes of the field, were not, or were only to a very small extent, related to damage caused by earthquakes but this could usually not be proven. The application of a relatively strict norm for safety related to earthquakes implied that a long-term continuation of significant gas production would require a major house strengthening program. Home owners are currently entitled to compensation for any related reduction in the value of their houses. People have the right to claim compensation for psychological duress.
As a result of the rapid increase in non-technical costs, of which a relatively large share had to be paid by the operator, the Groningen gas field had by 2017 become a major liability to Shell and ExxonMobil (the NAM shareholders). For a long-term continuation of gas production these costs would have been of the order of several tens of billion euros. The measures taken in 2018, apart from leading to a planned cessation of gas production also included a more equitable division of costs between NAM and the Dutch state and implied a large reduction in the house-strengthening program. These measures were taken against a setting in which the social license to operate for Groningen gas production was gradually lost. Earthquakes played a major role; those with damaged houses that had trouble receiving compensation received widespread sympathy in the Netherlands. Concerns about climate change and a desire among the population in Groningen (who did not financially benefit from gas production) to have a greater say in what was happening in their region also played an important role. Amongst decision makers there was a greater emphasis on environmental and safety concerns at the expense of financial and economic considerations. Electorally, it had become very difficult to defend a long-term continuation of Groningen gas production. It is the loss of the social license to operate that the authors see as the core reason for the termination of Groningen gas production.
In the article titled 'The Law of the Land. Practices, Policies and Regulations Regarding Access to Lands for Energy Projects in Mexico' Miriam Grunstein and Michelle Michot Foss observe that, while there is a prolific literature on the question of landowners' rights, especially concerning those of the indigenous in Mexico, there is a notable void on the rights of companies and how their lack of enforcement harms not only the companies´ business goals, but also the promises made by the government regarding the benefits of the energy reform. For instance, the lack of completion of a natural gas pipeline, beyond affecting the business plans of a given company, also hinders the promise made by Mexican government of lowering electricity rates using natural gas for power generation, which is now the most economical and clean fuel. From that basis, the authors describe the social costs that arise when barriers to land use stop the development of energy projects. This is a new approach since the relevant literature concerning clashes between land owners and companies usually falls into the Manichean dichotomy of describing them as the struggle between corporate interests and collective rights. Instead, the authors argue here that current legislation does not bring forth a preference towards a so-called "neoliberal paradigm", in which the rich are given right to oppress the poor, but a rather convoluted scheme in which a collision of rights takes place and benefits to no one are clearly visible.
In the article titled 'Wind Energy, Benefit-Sharing and Indigenous Peoples: Lessons from the Isthmus of Tehuantepec, Southern Mexico' Paola Velasco Herrejon and Annalisa Savaresi look at the practice of benefit-sharing in wind energy projects in indigenous peoples' lands in the Isthmus of Tehuantepec, Mexico. The authors aim to gauge how the procedural, distributive and recognition justice associated with the development of renewable energy generation capacity have been addressed, the challenges experienced and the solutions that may be adopted to address these. After an introduction setting out the research questions, context and background of the paper, the authors unpack the justice questions associated with benefit-sharing in the context of renewable energy generation. Subsequently, the authors look at how these questions have been addressed in practice, in the context of renewable energy projects in the Isthmus of Tehuantepec. Finally, the authors reflect on what our case study has revealed about the use of benefit-sharing as a means to engender energy justice.
In the report titled 'Social License to Operate (SLO) in the Shale Sector: A Contextual Study of the European Union' Jędrzej Górski and Christine Trenorden offer a summary of the EU's works on the regulatory environment for the shale gas industry. The analysis is divided into following parts (i) 'Background' (s 2), (ii), 'Legislative Level' (s 3), (iii) 'Plans and Programmes: SEA' (s 4), (iv) 'Project Level: EIA' (s 5), and (v) 'Public Participation in other EU Legislation' (s 6). Section 2 offers a necessary background of this article by discussing (i) the case for the shale gas in the EU (s 2.1), (ii) the spectrum of shale gas related problems (s 2.2), (iii) public views on fracking and the shale gas industry throughout the EU (s 2.3), and (iv) the concept of the SLO (s 2.4). Section 3 discusses problems of public participation, access to information and access to justice in shale gas related lawmaking at the EU-level (s 3.1) and Member States level (s 3.2). Section 4 discusses the same problems in developing environmental plans and programmes (strategic environmental impact assessment process) at the level of EU institutions (s 4.2) and at the level of national authorities responsible for the preparation of such plans and programmes (s 4.3 and s 4.4). Section 5 discusses the same problems in the realisation of specific shale gas related projects (in the course of the environmental impact assessment) including EU legislation (s 5.2) and its implementation in Member States (s 5.3). Finally, section 6 briefly discusses the same problems in a number of more specific environment related acts including (i) Habitats Directive (s 6.2), (ii) Birds Directive (s 6.3), (iii) Water Framework Directive (s 6.4), (iv) Industrial Emissions Directive (s 6.5) and (v) selected other acts (s 6.6).
In the article titled 'Utilization of Natural Resources in Outer Space: Social License to Operate as an Alternative Source of Both Legality and Legitimacy' Martin vec, Petr Boháček and Nikola Schmidt discuss that in recent years, utilization of space resources has become an increasingly important topic. However, insufficient legal framework effectively discourages private investors from making any substantial investments in extraterrestrial mining. Although there are several ongoing initiatives aimed at establishing an international legal framework, either under the auspices of the UN COPUOS or beyond (The Hague International Space Resources Governance Working Group), the slow pace of these international deliberations often encourages private companies to start thinking about alternatives sources of legitimacy. As a response to significant uncertainty surrounding legality and conditions under which space resources can be utilized, some private investors pressed national governments to take some action. Against this backdrop, the US Commercial Space Launch Competitiveness Act and Luxembourg Law on Exploration and Use of Space Resources were enacted. Nonetheless, national legislations can never bypass the lack of an international legal framework applicable to an area beyond national jurisdictions, and compatibility of national legislations granting the property rights in space resources has been explicitly and frequently questioned by various delegations at the UN COPUOS and legal scholars. In this context, the paper explores a theoretical applicability of the Social License to Operate (SLO) concept to the utilization of space resources. The authors discuss whether SLO can serve as an alternative source of legitimacy and may satisfy the vague requirements set forth by the Outer Space Treaty.
In the article titled 'CSR in Space: Corporate Social Responsibility Principles for the Space Industries' Thorbjřrn Waal Lundsgaard observes that laws already exist which govern space, as do CSR guidelines for companies operating on Earth and a growing movement pushing for legal clarity and a license to operate, inter alia concerning property rights in space. Until now, no effort has been made to analyse the mutual implications of these developments and consequently to produce CSR guidelines based on them for space. Terrestrial CSR has evolved to fill gaps in national legal and policy frameworks by formulating principles and guidance, sometimes based on soft law instruments. This function of remedying legal uncertainties makes CSR an ideal tool and approach for defining and addressing responsible corporate behaviour in space. CSR Guidelines for Space ought to help public and private actors alike, eg achieve the sustainable commercial exploitation of space resources. The analysis is based on international space law, international law and existing terrestrial CSR guidelines, in order to understand what basis and direction they may provide, by extrapolation, and with the necessary modifications to the space environment, for a new set of soft CSR Guidelines for space industries. The point of departure is that recent developments in international space law, international law, and CSR seem up until now to have been running on somewhat parallel trajectories, without consideration of the mutual implications of these disciplines, or what should happen when they intersect.
Robert Pritchard reviews a book titled 'Agricultural Land Use and Natural Gas Extraction Conflicts: A Global Socio-Legal Perspective' by Madeline Taylor and Tina Soliman Hunter (Routledge 2019).
[*] MJur (Warsaw), PhD (CUHK), Department of Asian and International Studies (AIS), CityU HK.
The author thanks the co-editors of this OGEL special, Hon. Christine Trenorden and Dr Gökçe Mete for the fruitful collaboration during the course of this project.