Luxembourg Minister of Economy Etienne Schneider emphasized the space resources law during a speech in New York in June. (credit: Luxembourg Ministry of the Economy) Luxembourg’s law on space resources rests on a contentious relationship with international framework

On August 1, 2017, the Luxembourg Law on the exploration and use of space resources (hereinafter “the Law” or “the Luxembourg Law”) entered into force, declaring these resources “capable of being appropriated.” 1 The final version of the Law came about after suffering a brief delay 2 when a previous draft had to be amended following a negative advice of the Conseil d’État (Luxembourg Council of State.) 3 Fundamentally, that advice (hereafter “the Advice”) questioned the effectiveness of the draft law in realizing its objective of creating legal certainty for private space mining companies and investors in light of the persisting ambiguity surrounding the application of the existing international space law framework to space resources. 4 In so doing, the Advice also cast doubt on the validity of national approaches to the regulation of commercial space mining in the absence of an international framework. The present article aims to shed light on this broader debate by looking at the legislative history of the relevant provisions in the Luxembourg law and the corresponding sections of the Advice of the Conseil d’État. Draft law and explanatory statement Eager to replicate the success of the diminutive European state in the area of commercial satellite operations, the Luxembourg Minister of Economy, Etienne Schneider, in February 2016 formally launched an initiative that should make his country the European hub for commercial space resource exploitation. To underscore its ambitions, Luxembourg quickly proceeded to propose a Draft law on the exploration and use of space resources (hereinafter ‘the Draft Law’) with the aim of “ensuring that private operators working in space can be confident about their rights to the resources they extract in outer space.” 5 Following this proposal, Luxembourg signed memoranda of understanding with Deep Space Industries, Planetary Resources, and iSpace for the establishment of European subsidiaries of these aspiring space mining companies. Fundamentally, that advice questioned the effectiveness of the draft law in realizing its objective of creating legal certainty for private space mining companies and investors in light of the persisting ambiguity surrounding the application of the existing international space law framework to space resources. Inspired by the 2015 US Commercial Space Launch Competitiveness Act’s Title on Space Resource Exploration and Utilization (hereinafter “the US Act of 2015” or “the US Act”) 6 , the Luxembourg Draft Law considered property rights over extracted resources to be the appropriate means through which to boost the legal confidence of private commercial operators. The Explanatory Statement accompanying the proposal (hereinafter ‘the Explanatory Statement’ or ‘the Statement’) identifies the first objective of the draft legislation as aiming to “provid[e] for legal certainty as to the ownership of minerals and other valuable space resources identified in particular on asteroids.” 7 Pursuant to the overarching objective of legal certainty supposedly pursued by the legislator, Article 1 of the Draft Law declared that “[s]pace resources are capable of being appropriated in accordance with international law” (“Les ressources de l’espace sont susceptibles d’appropriation en conformité avec le droit international”). The provision’s succinct phrasing seems diametrically opposed to the level of controversy surrounding the topic it so laconically claims to settle. Correcting for this abrupt formulation, however, is the Explanatory Statement accompanying the Draft Law, which offers some more insight into the reasoning behind the provision of its Article 1. If the effort of the Luxembourg government to explain its reasoning is commendable, however, it also serves as an indirect acknowledgement of the contentious nature of the issue it is dealing with. Any national law resting on the presumption that it is lawful for private actors to appropriate natural resources from celestial bodies for commercial reasons is likely to raise questions concerning its compatibility with Articles I and II of the Outer Space Treaty (OST), which require outer space to be used for the benefit and in the interests of all states, while banning its national appropriation by any means whatsoever. The typical approach to circumventing these concerns has been to interpret the concept “celestial bodies” in Article II OST as encompassing only the territorial aspect of these bodies, leaving their natural resources fit for appropriation. This approach is rather cumbersome, for it requires distinguishing between celestial bodies and other phenomena in outer space, between natural resources and areas in space, and between the “celestial body” concept in Article II OST and basically any other reference to the notion in international space law. 8 Moreover, it has to do so without setting aside the close connection between Article I, para. 2 OST and Article II, both of which apply, indiscriminately and inclusively, to “outer space, including the Moon and other celestial bodies.” Given these obstacles and in light of the objective of legal certainty, one would expect national legislation on space mining to rest on a robust argumentation that justifies the above interpretation of the non-appropriation principle and its relationship with Article I as the most fundamental principles of international space law. It is unclear whether the Law on the exploration and use of space resources can scale this threshold. While the Luxembourg Government explicitly recognises that Article I, para. 2 OST “is to be read in conjunction with the aforementioned Article II of the same Treaty,” 9 its argumentation only focuses on the distinction between the legal status of the natural resources of a celestial body and that body’s surface or other “territorial” aspects, while failing to account for the impact of its interpretation on Article I of the OST. Moreover, the actual argumentation concerning the non-appropriation principle fails to address the clear phrasing of Article II, as it trades a focused analysis of the applicable international space law principles for an uninspired reading of national mining and international fisheries legislation. As a first measure, the Explanatory Statement refers to a description in legal doctrine of French-inspired early 19th century national mining laws to argue that “the ownership of a mine does indeed constitute an ownership, but (an) independent (one) from that of the surface, and not necessarily belonging to the owner of such surface.” 10 Second, the Luxembourg Government argues that “[t]here is an even closer analogy in legal terms between space and the sea” that supports its reading of the non-appropriation principle in space law. 11 The Government explains its views on the law of the sea by calling to mind an account of the theorist François Laurent who, writing in 1878, described shellfish, fish, and other “wild animals” with reference to Roman civil law as “masterless things” (res nullius) that are therefore “capable of being appropriated.” 12 It is argued that “Article 1 of the draft law relies on this same vision for space by employing the same terms as Laurent, namely that space resources are ‘capable of being appropriated’. Space resources are appropriable, in the same way as fish and shellfish are, but celestial bodies and asteroids are not, just like the high sea is not.” 13 For these reasons, the Luxembourg Government concludes “the analogy with the high sea and mining advocates in favour of the appropriation of resources, and Article 1 is furthermore perfectly in line with the principle of the non-appropriation of outer space and celestial bodies as set out in Article II of the Treaty.” 14 This assured declaration is remarkable, given that the Explanatory Statement does not provide for any argument that takes into account the actual phrasing and meaning of Articles I and II of the Outer Space Treaty, nor, for that matter, any legal or practical developments since the 19th century. Moreover, it stands in stark contrast with the acknowledgement elsewhere in the Statement that “legal scholars have been debating the question whether non-appropriation also applies to resources”; it even cites, in its defence, a number of authors who would consider Article 1 of the Draft Law problematic in light of the basic principles of international space law, but does nothing to counter the arguments underlying these objections. 15 If the Explanatory Statement does not enter into a detailed analysis of Articles I and II of the OST, it does give the reader an indication of the interpretation of the non-appropriation principle that underlies its formulation of the proposed Article 1. It does so by noting, in an explicit if somewhat overstated manner, that “[t]he draft law does not either propose to establish or imply in any way whatsoever the beginning of a commencement of a component of sovereignty over a territory over a celestial body or any part whatsoever of outer space and the other celestial bodies.” 16 This statement calls to mind the disclaimer attached to the aforementioned US Commercial Space Launch Competitveness Act, where a “sense of Congress provision” was added to dispel any claims of extraterritorial sovereignty over celestial bodies as a whole. 17 In a blow to the Government of Luxembourg, the Conseil concluded after a balanced analysis of the Draft Law that Article 1 of the proposal, declaring space resources capable of being appropriated under international law, should be rescinded. The parallels between the Draft law on the exploration and use of space resources and the US Act of 2015 are not limited to the apparent similarities in interpretation of Article II of the OST or the paucity in legal argumentation underpinning this reading. For the Government of Luxembourg is also eager to point out that, “[l]ike the text of the US law, the text of Article 1 of this draft law contains an express reference to international law in that it provides that such appropriation has to take place in accordance with international law.” 18 Despite these proclaimed similarities, however, there are crucial differences between the legal and factual situation surrounding the Luxembourg Draft Law and the US Act of 2015, which were only superficially harmonized in the final text of the Law (see infra). Moreover, it is clear that a mere declaration of intent to emulate another national law, including its formal reference to international law, does little to address fundamental concerns that may arise regarding the compatibility with such international law. It should therefore not surprise us that it was this issue of consistency with international space law that most attracted the attention of the Conseil d’État. Advice of the Conseil d’État The Luxembourg Conseil d’État is tasked with revising draft legislation proposed by the Government before it can be presented to the legislative chamber, the Chamber of Deputies. Among other things, the Council of State is required to flag any inconsistencies arising between the proposed legislation and the Constitution of Luxembourg, as well as any conventions or international treaties by which the state is bound. On April 7, 2017, the Conseil delivered its Advice on the Draft law concerning the exploration and use of space resources. In a blow to the Government of Luxembourg, the Conseil concluded after a balanced analysis of the Draft Law that Article 1 of the proposal, declaring space resources capable of being appropriated under international law, should be rescinded. The reasoning behind this conclusion notes that the provision of Article 1 misses the clarity apparently attributed to it by the Government of Luxembourg (“pour le Conseil d’État, le texte de l’article 1er est loin de satisfaire aux exigences de clarté qui lui sont attribuées”), and that the proposal would therefore fail to provide the legal certainty it claims to provide. The absence of an international framework on the exploitation of space resources is given special consideration in this respect. Unlike the Explanatory Statement, the Conseil d’État gives a detailed, if incomplete and at times contradictory, account of the current state of international space law concerning the regulation of space resource exploitation in a number of general considerations prefacing the article-by-article analysis of the Draft Law. In that regard, the Conseil focuses mainly on the Outer Space Treaty and broadly sets aside the Moon Agreement—not so much because it has not been ratified by Luxembourg, but because it “is considered a failed treaty” since it has not been ratified by any state “particularly active in space.” 19 The international legal framework on outer space is then “completed” 20 with brief references to the Rescue and Return Agreement, the Liability Convention, and the Registration Convention, leaving out any convention that is not one of the five core United Nations space treaties. The Conseil d’État starts off its analysis of international space law with reference to the non-appropriation principle as codified in Article II of the OST. Additionally, it refers to the similarly worded provision of Article 11 of the Moon Agreeement (MA), thereby according a certain legal value to the Moon Agreement despite its apparent “failure.” The Conseil then concludes that, on the basis of these principles, “a State cannot obtain and exercise sovereignty in outer space.” 21 To be sure, this conclusion unfortunately perpetuates the oft-made misreading of Article II of the OST as banning sovereignty rather than appropriation, thereby going against the actual phrasing of the provision. However, the Conseil subsequently determines that private property rights over land on celestial bodies are banned as well, since such rights depend on state endorsement, which is clearly outlawed by Article II. Interestingly, the Conseil cites Article 11, para. 3 of the MA in support of this finding (which unambiguously extends the non-appropriation principle to any “national organization or non- governmental entity [and] any natural person”), even though it recognises that the Agreement has not been ratified by Luxembourg. The discussion then turns to the commercial exploitation of natural resources from celestial bodies. The Conseil first notes that international space law is unclear in its regulation of space resources, followed by an unsupported claim that this ambiguity has contributed to the slow development of a space resource exploitation industry. Citing the International Institute of Space Law’s Position Paper on the subject as its only source, the Conseil then states that the Outer Space Treaty does not expressis verbis prohibit the appropriation of space resources by private persons for commercial purposes, since the Treaty “does not take a position” (“ne prend pas position”) on this issue. 22 The Advice merely notes that the exploitation of space resources could not have been envisaged by the drafters of the Outer Space Treaty since the required level of technology had not been reached at that time. The fact that the OST contains provisions concerning, for example, the operation of military stations and installations on the Moon (Art. IV (2) OST), despite that technology not existing at the time either, apparently does not vitiate this finding. The Conseil does concede that the Moon Agreement can be interpreted as banning the appropriation by private persons of natural resources found on celestial bodies, for it extends the scope of the non-appropriation principle to “natural resources in place” in Article 11 (3) of the MA. The Conseil naturally refers in this context to the authentic French text of this provision, which talks about natural resources “found on celestial bodies” (“les ressources naturelles qui s’y trouvent”) rather than “natural resources in place.” However, the Conseil brushes aside its own observation by noting that the Moon Agreement has not been ratified by Luxembourg. Though the conclusion reached by the Conseil is, of course, correct, the abrupt dismissal of Article 11 of the MA in this context is notably for its contrast with the two earlier occasions where the Conseil seemed willing to accord legal value to this provision. The Conseil recognizes that the initiative of the Government of Luxembourg to propose a draft law on the exploration and use of space resources was inspired by its American counterpart, though it is not swayed by this legal pedigree. More notable, even, is the follow-up argumentation of the Conseil. Immediately following the dismissal of the textual implications of Article 11 (3) of the MA, the Advice discusses the concept of “common heritage of mankind”—though it only appears in the Moon Agreement—in a remarkable obiter that should reverberate strongly with the international community. After painting the “common heritage of mankind” term as having uncertain contours and a rather declaratory content, the Conseil notes that the concept finds clarification through the reference to the objective in Article 11 (7) MA, which requires “[a]n equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration.” In the end, the Conseil understandably ignores this provision, too, since it does not appear in the Outer Space Treaty. However, it does so only after explicitly noting that an appropriation of outer space cannot be envisaged if such equitable distribution as enshrined in Article 11 (7) MA is the objective: “Si donc il faut une répartition équitable entre tous les États, une appropriation des ressources de l’espace extra-atmosphérique n’est pas envisageable.” 23 . If the analysis of the common heritage of mankind concept in space law appears out of place in light of the non-ratification of the Moon Agreement by Luxembourg, it serves as a nexus with the next segment of the Advice, where the Conseil turns its commentary to the law of the sea. In so doing, the Conseil rightly identifies the status of the deep seabed as the more appropriate source of comparison with celestial bodies, instead of the law of fisheries as invoked by the authors of the Draft Law—even if, in this author’s view, both analogies fail to take into account the specificities of the legal provisions of the law of outer space. Whatever the relevance of the analogy with the deep seabed regime, the main reason for the Conseil’s evocation of the law of the sea is to apparently demonstrate that the common heritage of mankind concept no longer comprises an equitable distribution of benefits aspect in international law, in light of the renegotiation of Part XI of the UN Convention on the Law of the Sea. 24 This rather odd conclusion not only fully ignores the provisions of the Moon Agreement and the fact that this treaty has entered into force for 17 states parties and counting. It is also at variance with the actual system adopted in the Agreement of 1994 and the specific language of the treaty, which establishes, inter alia, a Finance Committee tasked with “[r]ules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the Area and the decisions to be made thereon.” 25 Regardless, if the objection to an appropriation of space resources is that it renders impossible the equitable distribution of benefits, it is difficult to see how such appropriation could still be deemed consistent with Article I OST, and the requirement contained therein that space be used for the benefit and in the interest of all states, regardless of their state of scientific and economic development. The Conseil does not address this fundamental concern. Following its consideration of the law of the sea, the Conseil turns to the second analogy referred to in the Explanatory Statement to justify Article 1 of the Draft Law, which noted that the property of mining sites is possible without claiming the land in which they are located. Quite rightly, the Council can be very brief in dismissing this analogy, for the simple reason that the territory on which mining sites are exploited is part of the territorial sphere over which a state can exercise sovereignty. This would emphatically not be the case for exploitation sites on celestial bodies, for “these bodies are not subject to sovereignty and hence may not be appropriated by private persons either, even if this is not explicitly prohibited by the Outer Space Treaty. As a result, the question of appropriation of natural resources in outer space cannot be considered to be definitely settled and can therefore not benefit from the legal certainty that the drafters of the proposed law wish to attribute to it.” 26 The Conseil recognizes that the initiative of the Government of Luxembourg to propose a draft law on the exploration and use of space resources was inspired by its American counterpart, though it is not swayed by this legal pedigree. For, “even if the Council would share the view of those authors that think it possible for private persons to appropriate space resources, some consequences need highlighting that cast further doubt over the alleged legal certainty provided by the recognition of such property rights,” especially when granted on the basis of a national law. 27 These “consequences” include, notably, the recognition of private property rights of space resources by other states, in particular taking into consideration the lack of independent launch capabilities of a country such as Luxembourg and the fact that the trade in space resources will likely not take place (in whole or in part) on the territory of Luxembourg. If those issues could possibly be resolved on the basis of bilateral agreements with other countries, the Council also raises a more fundamental problem: how could one protect, on the basis of a national law, mining sites on celestial bodies, taking into account that “such protection could amount to a claim of sovereignty nonetheless prohibited by the Outer Space Treaty, and could violate Article I, para. 2 of the same Treaty”: “Une telle protection pourrait déboucher sur une sorte de revendication de souveraineté pourtant interdite par le Traité sur l’Espace et violer l’article I de ce Traité qui dispose, dans son alinéa 2, que ‘l’espace extra-atmosphérique, y compris la Lune et les autres corps célestes, peut être exploré et utilisé librement par tous les États sans aucune discrimination, dans des conditions d’égalité et conformément au droit international, toutes les régions des corps célestes devant être librement accessibles.’” 28 In light of all of the above considerations concerning the status of international space law, the Conseil was satisfied that it could be rather brief in its actual analysis of the legality of Article 1 of the Draft Law as it was proposed by the legislator. The Conseil recommends that this Article, which recognises the “capacity” of space resources to be “appropriated under international law,” be suppressed, 29 for “the exploitation of space resources does not currently benefit from an international normative framework to regulate them, to the effect that one can doubt that the present Draft Law can really achieve the objective of ‘legal certainty’ that the authors of the proposal hope to establish.” 30 In particular, the text of Article 1 of the Draft Law is far from being as clear as the drafters apparently claim it to be, for it wholly depends for its validity on international law, which trumps the domestic laws of Luxembourg in terms of hierarchy while at the same time failing to have direct effect for the citizens of that State: “Le caractère normatif de l’article 1er pose problème par la limitation attribuée au droit international. En effet, le droit international a par nature une valeur hiérarchiquement supérieure au droit interne sans qu’il soit nécessaire de le préciser. Le fait de réserver la situation du droit international enlève toute valeur au texte proposé de l’article 1er, dans la mesure où ce texte ne se suffit plus à lui-même pour développer ses effets et où les droits et obligations du justiciable n’en découlent pas, ceci d’autant plus que le droit international dont question ici n’a pas d’effet direct pour le citoyen, et ne lie que le Luxembourg.” 31 As rightly noted by the Conseil, the reference to international law in the US Act of 2015 is of a different nature, since it simply requires that American citizens should exercise their rights over space resources they obtained in accordance with the international obligations of the United States. 32 This can be considered an implementation by the US of the requirement in Article VI of the OST to authorize and continuously supervise the activities of their nationals in space, which is dealt with in Article 2 and further of the Luxembourg Draft Law. 33 Article 1 of the Draft Law, on the other hand, does not limit itself to a statement of internal law but directly pronounces itself on the state of international space law. The problems arising, in this respect, are also in terms of legal superiority in the Luxembourg order. These do not affect the US 2015 Act as such, for no comparable hierarchy between the internal laws of the US and its international treaties exists that would restrain the American legislator. The fundamental issue raised by the Conseil remains, however, for both the Luxembourg and US initiative: is it at all possible for a national legislator to realize the proclaimed goal of legal certainty for its citizens with regard to an issue whose underlying legality in international law remains controversial? Possible differing hierarchical relations between internal and international law are incidental to this issue in light of the obligation incumbent on each state party to the Outer Space Treaty to ensure respect for international law governing all activities engaged in by its nationals or from its territory. 34 In addition, the Conseil raises a number of issues whose problematic nature is not limited to the specific formulation proposed by the Luxembourg legislator, but extends to any national initiative to regulate space resources in the face of persisting international ambiguity. Is it at all possible for a national legislator to realize the proclaimed goal of legal certainty for its citizens with regard to an issue whose underlying legality in international law remains controversial? These issues include, in addition to the possible violation of Article I, para. 2 and Article II of the OST mentioned earlier, the question of competent jurisdiction, the recognition of judicial decisions in other jurisdictions, and the application of the limits that would follow from international space law. In this context, Article IV of the OST and the requirement of free access to all areas of celestial bodies would appear to require that companies cannot deny other parties access to their installations on celestial bodies, which seems scarcely a condition private players will want to agree to. In addition, the current Draft Law is also problematic for its failure to stipulate clear provisions on the protection of the environment of outer space, which could activate the international responsibility of the State of Luxembourg in light of Articles VI and IX of the OST. Other queries arising from Article 1 of the Draft Law relate to more traditional issues that are commonly raised when discussing the applicability of international space law to natural resource exploitation, but are no less fundamental. For example, (how) should one distinguish between scientific and commercial exploitation activities? And what is meant by “use” or “utilization?” 35 Does it include commercialization and sale to third parties? Will such third parties be covered by the proposed national legislation, and can Luxembourg be held responsible internationally for the way in which a third party would put to use the acquired space resources, possibly in violation of the international space law treaties? To address these issues, the Conseil d’État proposed that Article 2, holding that “[n]o person can explore or use space resources without holding a written mission authorisation from the minister or ministers in charge of the economy and space activities” of the Draft Law be amended to clarify its scope of application to either commercial and/or scientific activities, and to clearly indicate whether the commercialisation of space resources should be included in the term “use” (“utilisation”) in that provision. The Law On July 13, 2017, the Luxembourg Parliament adopted a revised version of the Draft law on the exploration and use of space resources, which entered into force on August 1. Though clearly revised in response to the negative advice of the Conseil d’État, the new Law ultimately does little to address the underlying concern about the effectiveness and, indeed, the merit of adopting a national law proclaiming space resources fit for appropriation in spite of persisting ambiguity surrounding the international legal framework in this respect. It is for this very reason that the Conseil d’État, it is recalled, had recommended the suppression of Article 1 of the Draft Law in whole. However, rather than following this advice, the Luxembourg legislator opted to merely delete the reference to international law in this Article, thereby amending the contested provision to simply declare that “[s]pace resources are capable of being appropriated.” The move is accompanied by an amendment of Article 2, though not in the way envisaged by the Conseil. In relevant part, Article 2 of the Law now adds the requirement that “[t]he authorised operator may only carry out the activity referred to in paragraph 1 in accordance with the conditions of the authorisation and the international obligations of Luxembourg.” The above amendments render the similarities between the Luxembourg Law and its American inspiration all the more apparent. Their legislative pedigree also reveals that such isolated references to the compliance of private operators with the “international obligations” of states having adopted legislation on an issue of disputed legality at the international plane, is highly contentious and of dubious effectiveness. Indeed, the objective of legal certainty does not seem to be met but rather actively harmed by deleting the one reference to international law in the provision that addresses the legality of property rights over space resources. Suppressing the reference to international law in this provision while introducing a requirement for operators to respect the international obligations of Luxembourg is tantamount to conceding that the national law has absolutely no effect. The new Law on the exploration and use of space resources emerges as a pro forma implementation of Article VI of the OST that does nothing to further the proclaimed objective of legal certainty for private operators, but rather to shield the state from accusations of violating international rules while shifting the responsibility of respect for international law to private citizens in pursuing an activity that they may well not be entitled to engage in. The amendments to the new Luxembourg law that entered into force on August 1, and the increasing assimilation of this law with the approach taken by the US, only serve to underscore the tenuous nature of national legislation that ignores the fundamental questions of conformity with international law in favor of a formal adherence to Article VI of the OST. The new version of the Luxembourg Law also sheds light on the reference to the proclaimed importance of international cooperation in the Explanatory Statement that accompanied the earlier version of the Draft Law. It has always been unclear what, if anything, this statement revealed about the actual intentions of the Grand Duchy regarding the regulation of space resource exploitation on a multilateral basis. The Statement notes that “[t]he relevant legal framework shall be put in place in strict compliance with the international obligations of Luxembourg and Luxembourg continues to call upon a reinforced and effective collaboration with other countries on this matter.” 36 This general statement of intent is subsequently clarified, not with reference to any of the multilateral forums for development of international space law of which Luxembourg is a member, but by noting that “[a]n example of such collaboration is the way in which the European Space Agency (ESA) currently operates.” 37 Luxembourg’s concern for international cooperation in space resource exploitation hence seems to be operational rather than regulatory, apparently convinced that its unilateral declaration of susceptibility to appropriation of commercially valuable parts of celestial bodies is sufficient to reduce the input of other countries to finding a practicable way of implementing the State’s grand schemes. Even if this were acceptable to other states, which is highly dubious, such an approach to international cooperation would still require scaling the differences in approach to space resource exploitation, and, if one is to follow the mainstream opinion as shared by the Conseil d’État, differences in legal obligations of those ESA member states that have and have not ratified the Moon Agreement. For by virtue of Article 11 (5) of this Agreement, Austria, Belgium, and the Netherlands are bound to “undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible.” In addition, as a signatory, France is “obliged to refrain from acts which would defeat the object and purpose” 38 of the Moon Agreement, which would appear to include attempts to regulate the exploitation of space resources in a manner inconsistent with the provisions of its Article 11. Conclusion Though the Conseil d’État was asked to assess the compatibility of the Luxembourg Draft law on the exploration and use of space resources, its Advice identified a number of legal and practical issues that question the viability of national approaches to the regulation of space resources on the whole. Fundamentally, the Conseil’s analysis is underpinned by the overarching concern that the lawful exploitation of space resources first requires a decisive resolution at the international level, pending which any national legislation that aims to grant property rights to nationals is without effect. Certainly it cannot provide for any legal certainty, if the very basis for the rights purportedly granted by the national law is without solid basis in the existing international legal regime. The amendments to the new Luxembourg Law on the exploration and use of space resources that entered into force on August 1, and the increasing assimilation of this Law with the approach taken by the US Commercial Space Launch Competitiveness Act only serve to underscore the tenuous nature of national legislation that ignores the fundamental questions of conformity with international law in favor of a formal adherence to Article VI of the OST. For it is difficult to see how national citizens would be able to exercise property rights over space resources obtained from a celestial body in accordance with the international obligations of their State if the content of those obligations remains subject to controversy. Domestic legal certainty for nationals, companies, and investors interested in pursuing pioneering activities in an international area would then appear to depend wholly on their states’ willingness to engage in multilateral efforts to clarify their international obligations. It does not bode well for them that this willingness appears lacking in precisely those states that have adopted national space resource laws. Endnotes Art. 1 of the Law. An English translation of the official French text of the latest version of the law is available here, last accessed on 28 July 2017. Initially, the law was expected to enter into effect in ‘early 2017’: see Press release by the Ministry of Economy of Luxembourg, ‘Luxembourg’s New Space Law Guarantees Private Companies the Right to Resources Harvested in Outer Space in Accordance with International Law’, 11 November 2016, p. 2, available here, last accessed on 9 June 2017. Conseil d’État, Advice N° CE 51.987, N° dossier parl. 7093, 7 April 2017, available here, last accessed on 12 July 2017. Projet de loi sur l’exploration et l’utilisation des ressources de l’espace (hereinafter: ‘Draft Law’). The official French text of the Draft Law is available here (last accessed on 12 July 2017), along with an Explanatory Statement containing commentary to the provisions of the proposal. An English translation of both the Draft Law and the Explanatory Statement can be found here. Press release, supra note 3, p. 1. H.R.2262, 114th Congress (2015-2016). Explanatory Statement, supra note 5, p. 1. All citations of the Explanatory Statement are taken from the English translation of the text. Unlike its American counterpart, the Luxembourg Draft Law did not define ‘space resources’. However, the Explanatory Statement clarifies the concept by copying the US definition in noting that “[s]pace resources are nowadays commonly defined as abiotic resources that can be found in situ in outer space and that can be extracted.. [sic] This definition includes for example mineral resources and water, but not the satellite orbits or radio spectrum”. See Explanatory Statement, p. 1. The reference to the radio spectrum has now been included in the text of revised Art. 2 of the Law, which states that “[t]his Law shall not apply to satellite communications, orbital positions or the use of frequency bands”. For more on the legal complications arising from the need to revert to these distinctions, see P. De Man, Exclusive use in an inclusive environment, Berlin: Springer, 2016, Chapters 2 and 3. Explanatory Statement, p. 4. Explanatory Statement, p. 3. Ibid. F. Laurent, Principes de droit civil français, Volume 6, 3rd ed., 1878, as cited in Explanatory Statement, p. 3-4. Explanatory Statement, p. 4. Explanatory Statement, p. 5. Explanatory Statement, p. 4-5. Explanatory Statement, p. 4. Sec. 403 of the US Act: “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” Explanatory Statement, p. 5. Advice, p. 1: “L’Accord sur la Lune est à ce titre considéré comme un échec”, though this statement is made with reference to one author only. Advice, p. 2: “Pour compléter l’énumération du cadre légal international […]”. Ibid.: “Il est donc interdit à un État d’obtenir et d’exercer sa souveraineté dans l’espace extra-atmosphérique”. Advice, p. 3. Advice, p. 4. Ibid. Section 9 of the Annex to the 1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, contained in A/RES/48/263 of 28 July 1994. This is confirmed, according to the Conseil, by the fact that many authors ask for a revision of the OST to settle this issue. See Advice, p. 5: “Cependant, contrairement à la revendication de souveraineté des corps célestes qui est expressément interdite par le Traité sur l’Espace et à l’appropriation de ces corps par des personnes privées et qui, même si elle n’est pas expressément interdite, découle implicitement de l’interdiction de la revendication de souveraineté, la question de l’appropriation des ressources extraites des corps célestes ne peut être considérée comme étant définitivement tranchée et ne peut donc pas bénéficier de la ‘sécurité juridique’ que les auteurs du projet de loi sous examen entendent établir. À ce point que nombre d’auteurs demandent à ce que cette question soit tranchée par voie de modification du Traité sur l’Espace”. Advice, p. 6: “même à partager la position des auteurs du projet de loi quant à la possibilité pour une personne privée de s’approprier et donc de se voir reconnaître un titre juridique sur des ressources extraites de corps célestes à l’instar de ce qu’a fait le législateur états-unien, le Conseil d’État tient à souligner certaines conséquences d’une telle reconnaissance qui risquent d’affaiblir encore la « sécurité juridique » (pour reprendre les termes des auteurs du projet de loi) nécessaire pour les personnes désirant investir dans les activités d’exploitation des ressources de l’espace extra-atmosphérique”. Advice, p. 6-7. Advice, p. 11: “l’article 1er de la loi en projet doit être supprimé”. Advice, p. 8: “Il résulte de ce qui précède que l’exploitation des ressources de l’espace extra-atmosphérique ne bénéficie actuellement pas d’un cadre normatif international qui la réglemente, de sorte qu’on peut douter que le projet de loi sous avis permette d’atteindre l’objectif de la ‘sécurité juridique’ que les auteurs de la loi en projet entendent établir.” Advice, p. 9. The Commercial Space Launch Competitiveness Act states that US citizens shall be entitled to “[…] sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States” (§51303). Issues of authorization and supervision are dealt with in Articles 2 and further of the Luxembourg Law. See further infra. On the issue of national prescriptive jurisdiction to regulate the exploitation of space resources, see S. Hobe and P. De Man, ‘National Appropriation of Outer Space and State Jurisdiction to Regulate the Exploitation, Exploration and Utilization of Space Resources’, forthcoming in ZLW 2017. Although the ultimate aim of the proposal is to grant property rights to private players in space, it should be recalled that the law is entitled Law on the exploration and use of space resources (“Loi sur l’exploration et utilisation des ressources de l’espace”). This nomenclature appears to confirm that the Luxembourg government intends to keep exploitation activities firmly within the scope of the UN space treaties, which consistently characterise all activities in outer space, including on the Moon and other celestial bodies, as either exploration or use. This is confirmed by the Explanatory Statement and press release that accompanied the Draft Law, which are careful to characterise the relevant activities as ‘utilization’ of space resources, which “includes both exploration and use of such resources”: see Explanatory Statement, p. 2-3. This differs from the 2015 US Act, which talks about ‘commercial recovery’ and ‘utilization’. Explanatory Statement, p. 1. Ibid. Art. 18 (a) of the Vienna Convention on the Law of Treaties of 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679. Home









