Luxembourg has become the second nation, the first in Europe, to provide a legal framework for space resource utilization activities (i.e. space mining). Their law comes into force a little over a week from now, on 1 August 2017, and an English translation can be found here (note only the French version is official). They first published a draft version of this law in November 2016[1].
Luxembourg’s law on the exploration and use of space resources goes into quite a bit more detail than the US law[2], but hasn’t changed all that much from the draft version in 2016 (it’s been rearranged quite a bit, but the substance is largely the same.) There are several interesting features.
Article I boldly declares that “space resources are capable of being appropriated.” Although it is notable that unlike the US law it does not provide a definition of space resources, however the explanatory document published with the initial draft of the law took the definition found in the US law as to be the ‘common definition.’ This definition is that a space resource is an abiotic resource that can be found in situ in outer space including water and minerals. The US law also provides the term asteroid resource, but the definition of that, as yet, is no different from space resource except for the fact that an asteroid resource is found in an asteroid.
The licence itself can only be granted to legal persons (ie companies) having its registered office in Luxembourg. A licence is non-transferable and needs to be used within 36 months of being granted (presumable this just means operations need to have started within 36 months). Furthermore, in order to obtain a licence, the applicant must demonstrate, among other things, a “robust scheme of financial, technical and statutory procedures…” and plans for the exploration, utilization and commercialization phases of operations. Key sections of the Luxembourg law are backed up by penalties, which range from fines of €1250 to €1,000,000 per day of infringement and can include a prison term of between eight days and five years depending on which sections of the law have been infringed.
When the US law was enacted in November 2015 it caused quite a stir. There were a number who declared it to be incompatible with the US’ international obligations, arising primarily from the Outer Space Treaty, Article II specifically.[3] At the Legal Subcommittee of COPUOS in 2016 and again in 2017 a number of states expressed their concern about the unilateral nature of the US law.[4] There hasn’t been the same degree of reaction to Luxembourg’s space mining law. There are presumably two reasons for this, one it isn’t unprecedented any more, and, of course, Luxembourg naturally attracts less notice than the United States. Nevertheless, it is worth discussing what this means in terms of international space law.
The case for the legality of the US and Luxembourg laws is multifaceted. Article II of the Outer Space Treaty does declares that “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” However, Article I declares that “outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States…”
Use is not defined by the Outer Space Treaty, and the standard rules of treaty interpretation state that when a treaty term isn’t defined, the ordinary meaning of that term should be used.[5] The Oxford English Dictionary defines use as “1. take, hold or deploy as a means of achieving something 2. take or consume (an amount) from a limited supply”. Additionally, it is generally accepted that as international law is a system based upon the consent of states, they are free to do that which is not specifically prohibited[6], and there is no specific prohibition on space resource extraction activities in international law. Therefore, it is not unreasonable to argue that the taking and consuming of resources falls under the freedoms of Article I of the Outer Space Treaty, provided you do not lay claim to the celestial body the resource comes from.[7]
As for the need for the Luxembourg and US space mining laws specifically, Article VI of the Outer Space Treaty requires that states ‘authorize and supervise’ the activities of their nationals in space and states therefore need mechanisms to do this. It also useful for industry for there to be a legal framework in place. This was an argument made by several states, including Luxembourg and the United States at this year’s session of the COPUOS Legal Subcommittee.
That a second state has joined the United States in enacting legislation regulating space mining certainly strengthens the case that it is a valid interpretation of the Outer Space Treaty, yet the international legal situation is still developing. Later this year the Hague Space Resources Governance Working Group should publish their findings and next year’s COPUOS Legal Subcommittee should see more discussion of this topic. Additionally, there are reportedly other states considering space mining legislation. Though for now, if you want to start a space mining company look to Luxembourg and/or the United States.
You can learn more about Luxembourg’s space mining initiative on their website and you can follow them on Twitter @spaceRESlux the Hague Space Resources Governance Working Group also have a website and a Twitter account @SpaceResourceWG
[3]https://theconversation.com/who-owns-space-us-asteroid-mining-act-is-dangerous-and-potentially-illegal-51073; http://www.cbc.ca/news/technology/space-mining-us-treaty-1.3339104
[5]Vienna Convention on the Law of Treaties, Article 31; Malcolm N. Shaw International Law (7th edn. Cambridge University Press 2014), 676-678; Malgosia Fitzmaurice, ‘The Practical Working of the Law of Treaties’ (166-197) in Malcolm D. Evans eds., International Law (4th edn. Oxford University Press 2014); James Crawford, Brownlie’s Principles of Public International Law (8th edn. Oxford University Press 2012), 379-383
[6]Lotus Case et al; Malcolm N. Shaw International Law (7th edn. Cambridge University Press 2014), 4-8,153-155; Jan Klabbers International Law (1st edn., Cambridge University Press, 2013), 21-66
[7]I would also recommend reading the International Institute of Space Law’s Position Paper on Space Resource Mining and the Space Generation Advisory Council’s Statement on Resource Utilization in Space.