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)  ICJ 1