Luxembourg has long been a proud member of space faring states. The country launched its first satellite in 1988 under the Astra Geostationary Satellite Programme. However, unlike the United States or Russian Federation, the Luxembourg Space Programme has always been facilitated by private entities rather than a public authority.

In 2016 Luxembourg announced a new programme, the aptly named Space Resources, to explore new avenues to resource exploration and exploitation in space. The programme hopes to use the resources of asteroids and other celestial bodies to aid in off-planet based ship building and refuelling. Luxembourg has created a large legal framework to allow private companies to operate and mine in space under le Luxembourg flag. These companies may make space travel both cheaper and more environmentally sustainable as spacecraft could be launched from outside the earth’s atmosphere.

This new programme is not without its critics and legal challenges however. The two international treaties governing space, the Outer Space Treaty 1967 and the Moon Treaty 1984, both pose issues with their constituent articles.^[i] These treaties have never been used to block commercial space mining before however, so it is unclear how both treaties will be applied and whether they would be effective or not.

The Outer Space Treaty 1967

The Outer Space Treaty is the most widely adopted treaty that concerns space. 108 countries have ratified the convention with another 23 signatories still to do so. Luxembourg finished the ratification process by depositing the treaty in 2006.

Article 1 of the Outer Space Treaty enshrines all of outer space as a place for the “common benefit of all mankind.” Article 2 of the Treaty protects celestial bodies, such as the moon and asteroids, from national appropriation. These two clauses codify the law that poses a legal challenge to Luxembourg’s mining programme.

One of the main purposes of the Outer Space Treaty is to ensure that no single state can use outer space for its own benefit. 1967, the year in which the treaty was concluded, was halfway through the Space Race between the USSR and USA. With each of these racers taking greater steps into outer space, other states wanted to curb their power and ensure that non-space faring states were not left behind; the Treaty specifically mentions the rights of developing countries who are nowhere near space travel capabilities. Article 1 of the Treaty creates the obligation to share the benefits of space travel with all nations. This poses a great legal challenge to mining as private companies want to be able to profit off of space resources and not be forced to divide the profits from their sale. Whilst the thought of capitalism reaching space may send quivers down ones spine (especially General Cherdenkov), the success and progress made by private companies such as SpaceX cannot be doubted. The future of mankind exists in the stars and if the way forward includes the private sector then so be it.

As the “common benefit” clause is not defined within the text of the Outer Space Treaty the principles held in Article 31 of the VCLT must be used to find a definition. In 1996 the United Nations created the Space Benefit Declaration.^[ii] This Declaration identified that developing countries could experience indirect benefits from space travel. This included using satellites to map developing nations in order to find rich mineral deposits or aid in disaster relief programmes. It takes a more holistic view of common benefit rather than a direct share of the profits from harvested resources.

Luxembourg is able to satisfy this requirement by choosing to work with companies that aid developing nations. One example of their partners is iSpace, a Japanese private company that allows other states to buy storage on their missions. Small states can choose to deliver payloads such as rovers to celestial bodies. This grants states that otherwise would not be able to fund space travel access to an affordable alternative.

Article 2 of the Outer Space Treaty appears to pose a larger barrier to the concept of mining in space. If a state is unable to appropriate any celestial body then how is it able to claim the resources that are found within them?

One attempt by states to appropriate an area of space has already been tried by a group of nations. The Bogota Declaration 1976 was used by several equatorial states to claim sovereignty over the area of outer space used by geostationary satellites. This attempt to appropriate outer space was not successful. The equatorial states were unable to assert their sovereignty over outer space despite long discussions. The definition of appropriation in the Outer Space Treaty is determined by claims of sovereignty; use or occupation; or by any other means. The international law definition of occupation, found in the Island of Palmas Case, is acquiring sovereignty over unclaimed territory. ^[iii]

Gorove’s interpretation of the Outer Space Treaty holds appropriation to constitute the intent to permanently and exclusively use.^[iv] This would mean a permanent base which prevented other states from access to that celestial body would be in breach of the Treaty. As Luxembourg only intends to mine asteroids and celestial bodies, they can operate in a way that does not appropriate them. By not excluding other states from celestial bodies and dismantling mining bases after the mining operations are finished, Luxembourg will not have appropriated any celestial bodies. Therefore, they would not be in breach of Article 2 of the Outer Space Treaty.  Gorove’s definition is both inline with the rejection of the Bogota Declaration for the permanent exercise of sovereignty and allows Luxembourg to exercise specific mining operations.

Whilst celestial bodies as a whole are subject to the national appropriation clause, the status of natural resources in those bodies is unclear. An International Institute of Space Law paper confirms that the omission of resources from the Outer Space Treats is an acceptance of the legality of space mining.^[v] Evidence of this can be found in further state practice, an interpretation method in Article 31(3)(b) of the VCLT.^[vi]  Article 11 of the Moon Treaty 1984 has provisions on the creation of a space mining regime. Therefore, the interpretation of the Outer Space treaty cannot include a blanket prohibition of space mining.

The Moon Treaty 1984

The Moon Treaty 1984 was designed to create further protections for outer space and celestial bodies. It currently has 18 party states. This does not include Luxembourg. Therefore the Moon Treaty would need to reflect customary international law in order to apply to Luxembourg. The requirements for customary international law are found in the North Sea Continental Shelf Cases: state practice and opinio juris.^[vii] As only 18 states are party to the Treaty and none of them are space faring states the Treaty cannot constitute a consistent state practice and therefore is not reflective of customary international law.

The Next Generation

The future of space mining is unclear. The technology to land mining equipment on asteroids and launching the profits back to earth are still only pipe dreams at the moment. However, once this technical ceiling has been broken, there is a clear legal pathway to facilitate these machines.

^[i]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967, UN; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979

^[ii] Vienna Convention on the Law of Treaties, 1969, Article 31

^[iii] Island of Palmas (or Miangas) (United States v. The Netherlands) 1928,Hague Court Reports 2d 83 (1932)

^[iv] Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 Fordham Law Review 349 – 354 (1969)

^[v] ISIL, Position Paper on Space Resource Mining, 2015

^[vi] Vienna Convention on the Law of Treaties, 1969, Article 31(3)(b)

^[vii] North Sea Continental Shelf (Federal Republic of Germany/Netherlands) [1969] ICJ 1

Not since the venerable Lord McCluskey in 1986 had a judge been considered such a “leading figure” in British intellectual and cultural life as to have been invited to deliver the Reith Lectures on BBC Radio—these being the criteria for selection.^[i] In 2019, Jonathan Sumption, Lord Sumption, former Supreme Court Justice (2012-2018), was selected for the honour. This is one indication perhaps, of the prominence of judges in our time. Sumption is not as well known as previous Reith Lecturers, e.g. 2017’s Hilary Mantel or 2016’s Stephen Hawking; however, he, alongside his former colleagues on the Supreme Court, achieved some degree of fame by presiding over, in particular, the Miller^[ii] case in the early stages of the process by which Britain would withdraw from the European Union.

Sumption’s repertoire extends beyond the law. He is a Wolfson Prize-winning historian with a penchant for the Hundred Years War. Indeed, it is with a keen sense of history that he frames the arguments he lays out over his five lectures. This short post will focus on the third of these lectures, entitled “Human Rights and Wrongs”^[iii] in which he argues that the British courts have usurped power via human rights law — power traditionally retained by the political process.

1. Law and Politics, Fact and Opinion

Questions of opinion which affect the nation generally are traditionally political—decided by Parliament representing the views of the public. Questions of law, such as the interpretation of a clause or the strict application of a crime, are traditionally confined to the judiciary. Consequently, we have come to expect judges not to answer political questions, and politicians not to answer legal questions. In sum, political questions should have political answers, and legal questions, legal answers. The use, or misuse, of legal answers to political questions is a trend that Lord Sumption claims to have identified.^[iv]

But what does Sumption mean by a political question and a political answer? Beside these, what does he mean by their legal equivalents? To illustrate his point, Sumption focuses on human rights law,^[v] as codified in the European Convention on Human Rights (ECHR), and its interaction with the British political process.

1. A Healthy Suspicion of Human Rights

The ECHR, applied by the European Court of Human Rights (ECtHR), allows for certain rights to be restricted for legitimate purposes or when necessary in a democratic society. What constitutes a legitimate purpose or a necessity, Sumption argues, are classically political questions reclassified as legal questions by the ECHR. Political questions, as matters of opinion, should be answered by politicians in Parliament, elected as representatives of the people, through whom the people rule. The judges of the ECtHR, when ruling on the scope of the Convention rights, are thus giving legal answers to political questions. There are two apparent problems with this. First, judges exist to apply the law, not to apply their values to the law. Second, and consequently, this law-based decision-making entrenches the opinions of judges as constitutional foundations of the state—with the impotent political organs shriveled and spluttering, too cowed to assert their legitimate power.

Parliamentary supremacy, in theory, subjugates the decisions of the ECtHR, and decisions of UK courts applying the ECHR, to Acts of Parliament in the hierarchy of British law-making. In practice, however, Parliament does not generally fail to tow the European line, implementing ECtHR judgements which find Britain in violation of their obligations under the Convention. The UK government faces international condemnation if they fail to tow the line, as they have. 17% of the British public trust politicians to tell the truth, while 83% trust judges.^[vi] Both statistics point to the elevation of law above politics in terms of public legitimacy.

1. Old Democracy and New

So, Sumption proposes that questions of opinion came to be treated as questions of law, upon which a panel of unelected officials left to arbitrate. Whether by misclassification or intentional reclassification, it lay in the drafting of the ECHR, these loosely written articles, hiding vast dormant potential which the judges have exploited. E.g., R (on the application of D) v Secretary of State for the Home Department,^[vii] Blood and Tarbuck v Secretary of State for Health,^[viii] and Bellinger v Bellinger.^[ix] Each case identified an Article violation and was subsequently remedied by legislation.

This marks a gentle British shift towards legal constitutionalism, of the kind practiced in the US. Of course, there is no guarantee or presumption that the opinions constituted by the political process will be any wiser than those of the individual judges; substantively, they may be the same. The wisdom of any state policy  depends upon the wisdom of the people who conceived it. Make no mistake, Sumption presses, legitimate law hangs solely on procedure—in a classically liberal democracy at least.

There are two rival conceptions of democracy which Sumption uses to explain the new and old orders. Those who cling to the old order may define democracy as “a constitutional mechanism for arriving at collective decision and accommodating dissent.”^[x]Those who hasten in the new order may define it more in terms of a system of values; this is democracy as “a generalized term of approval for a set of political values.”^[xi] The ECHR is emblematic of this new order; indeed, its purpose is to prevent anything approaching the horrors of the Second World War reoccurring by embedding a set of unquestionable substantive ideas, predominantly what had been called natural rights, at the heart of nascent post-war Europe.

Sumption’s harshest conclusion, to the ear at least, regarding this new democracy is that it is conceptually no different to other value-based forms of statehood: monarchism, communism, fascism, Islamism and “all the great ‘isms’ ” that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right.”^[xii] Over everything else, Sumption stresses that democracy is a “fragile construct, it is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter.”^[xiii]

1. The Rule of Law, or of Lawyers?

If Sumption has correctly identified this threat to democracy’s fragile construct, then it comes from an unexpected source: the legal profession, or more specifically, the high ranks of that profession. The rule of law, common law in tow, has long restrained the power of judges; restraints that they seem to have slipped. We now live not under the rule of law, but under the rule of lawyers. Lawyers, so Sumption might warn, who aren’t reluctant to opine for all.

In their victorious 2019 General Election Manifesto, the Conservative Party stated its intention to:

“look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts…In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”^[xiv]

These intentionally hazy proposals will likely include a review of the Human Rights Act 1998, the mechanism of judicial review, and the selection process for the Supreme Court. With Conservative leader Boris Johnson’s prorogation gambit defeated by the Supreme Court in September 2019, he may seek to fetter the courts’ power through reform. Trust in politics will not be easily won back, whichever way it might be. A stronger “civic culture”,^[xv] for which this trust is a precondition, “based on communication and persuasion, a culture of consensus and diversity, a culture that permitted change but moderated it”^[xvi] is the prize.

[i] BBC Radio 4, ‘The Reith Lectures’ https://www.bbc.co.uk/programmes/articles/4ZTNLKgrG2mSzfgC1ZYlNmV/about-the-reith-lecturesaccessed 19 December.

[ii] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

[iii] Jonathan Sumption, ‘Human Rights and Wrongs’ (The Reith Lectures, BBC Radio 4) https://www.bbc.co.uk/programmes/m0005msd accessed 17 November 2019.

[iv] Jonathan Sumption, ‘The Reith Lectures’ (BBC Radio 4) https://www.bbc.co.uk/programmes/m00057m9/episodes/player accessed 17 November 2019.

[v] Sumption (n 3).

[vi] Ipsos Mori, Veracity Index 2018 (Ipsos Mori, 18 November 2018) https://www.ipsos.com/ipsos-mori/en-uk/advertising-execs-rank-below-politicians-britains-least-trusted-profession accessed 18 November 2019.

[vii] [2002] EWHC 2805.

[viii] Unreported.

[ix] [2003] UKHL 21.

[x] Sumption (n 3).

[xi] ibid.

[xii] ibid.

[xiii] ibid.

[xiv] Conservative Party Manifesto 2019, https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf accessed 19 December 2019.

[xv] Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes and Democracy in Five Nations (Sage 1963) 8.

[xvi] ibid.