Luxembourg is the first European country to have authorised exploitation and use of natural resources in or coming from space this year, the US had been the first to implement such a legislation in 2015 through the so-called Space Act.
According to the text, resources, such as hydrocarbons, water or metal, present in the space can be appropriated by private companies that can further exploit them. It sets the legal framework according to which the private companies would be able to obtain authorisations for « space mining ».
According to the law project of November 2016, companies would be able to either bring the resources back to Earth or use them to construct spatial bases that would enable further exploration for example. Thus, Luxembourg would like to develop the “new space” industry to stimulate its economic health and offer new developments in spatial exploration. The former is a long-term project – the Luxembourg government recognises that it can be very rentable to bring back certain minerals on Earth at the long-term but recognises also that at middle-term, much more technical development is needed [1].
But what does international law says about exploration and use of natural resources coming from space? There are two international treaties dealing with the issue: the Treaty of Space of 1967 and the Moon Treaty of 1979.
The Treaty of Space has been ratified by important “spatial powers” such as the United States, Russia and Japan. In fact, this treaty was adopted during the Cold War and enabled to set fundamental principles regarding exploration of the space in order to avoid conflict between the US and Russia, that were leading devising at this moment exploration to space and the Moon. The main principle of this Convention is free to access to space and non-appropriation of it by any means, even by private parties (articles 1-2).
The Moon Treaty. which is an extension of the Treaty of Space, covers the case of all the celestial bodies, other than Earth, and more particularly the Moon. According to the treaty, the Moon should only be used for pacific purposes and the benefit of all States, moreover, all the resources coming from it, constitutes a mankind common patrimony and cannot be appropriated by any State or person. Accordingly, the Moon has the same statute as the Antartic or high seas: it does not belong to anyone. The immediate issue here is that this treaty has only been ratified by 14 countries, and none of the principal « spatial powers », such as the US or Russia ratified it nor signed it. There is thus an important issue of international consensus on the particular matter of exploration and exploitation of the Moon’s resources.
In sum, there is an evident lack of regulation regarding space resources, thus, as the Luxembourg government claims, and this is the understanding of many other states, everything that is not prohibited is allowed.
However, one could argue that international law, even if it does not offer a proper and sophisticated regulation, imposes that spaces’ resources belong to everyone. Accordingly, should we allow such national and individualistic legislations knowing that they will only benefit a number of parties?
The European Conseil d’Etat responded no to the question. It has shown some scepticism regarding the mentioned bill and declared its position to follow the majority view that has recognised the illegality of private property on celestial bodies.
The Conseil d’Etat has then urged the Minister of Economy to amend the contentious law, most specifically, the clauses allowing private appropriation and put them in conformity with international law and principles.
For now on, nothing really forces Luxembourg to do enforce this notification – it just takes the risk to confront many other European states that do not approve the project. In fact, Luxembourg wishes to be able to launch the first asteroid mining exploitation mission in 20 to 30 years. In the meantime, many developments can still occur.
[1] Interview with the Minister of Economy: http://www.science.lu/fr/content/space-mining-r%C3%A9aliste-un-peu-fou-ou-une-grande-opportunit%C3%A9-pour-le-luxembourg
