North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

Report: Luxembourg Drafting Legislation to Regulate Appropriation of Space Resources

By: Demi Davis

In November 2016, Luxembourg announced to the global community its decision to regulate space resources through legislation.[1]  Although the legislation is not yet accessible to the public for viewing, it reportedly contains approximately seventeen articles detailing commercial use of space resources.[2]  Minister Schneider, along with Professor Schiltz, revealed this “future law…regarding utilization of space resources” in a press conference shortly after the draft bill was announced.[3]  During the conference, Minister Schneider emphasized that the purpose of the new legislation is to provide “private companies and investors with a secure legal environment” regarding ownership of space resources.[4]  Luxembourg holds that its proposed legislation does not conflict with existing international law concerning space activity including the Outer Space Treaty of 1967 (“Treaty”).[5]

An artist’s impression of an asteroid mine, created by Deep Space Industries, a company based in California and Luxembourg.

The Treaty became the first international legislation regarding space law.[6] The Treaty is formally known as the Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.[7] Ratified by hundreds of states, including Luxembourg, the Treaty provides the legal framework regarding ownership of celestial bodies themselves.[8] The terms of the Treaty define celestial bodies as those objects naturally found in outer space including planets and the Moon.[9] These celestial bodies are specifically mentioned in Article I of the Treaty.[10] This Article states that “the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”[11] It is under this particular article that countries like Luxembourg are expressly granted the authority to conduct activity in outer space.

Specifically, Article IV of the Treaty specifically limits the ability of states to partake in exploration and use of outer space for peaceful purposes only.[12]  Consequently, the Treaty forbids states from establishing “military bases, installations and fortifications, [and] the testing of any type of weapons and the conduct of military maneuvers on celestial bodies….”[13] The language of this provision allows states to engage in peaceful activities like exploring and researching the resources found in outer space without the risk of being susceptible to military weapons or maneuvers.[14]

Another restriction found in the Treaty concerns each signatory party’s obligation outside of the Treaty itself.[15] The enforcement provisions found in Article III dictate that the activities of state parties “in the exploration and use of outer space” are to be conducted “in accordance with international law, including the Charter of the United Nations.”[16] Members involved with the drafting of the Treaty thought it necessary to include such a provision so that international peace may be maintained and “international cooperation and understanding” may be promoted.[17]

The most relevant provision to Luxembourg under the Treaty is Article II because it concerns ownership of the celestial bodies found in outer space.[18] According to this provision, “[o]uter 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.”[19] States are thus prohibited from declaring that they own any celestial body in outer space, especially to the exclusion of all others. Luxembourg finds that its legislation is in accordance with Article II’s prohibition of the appropriation of celestial bodies.[20] The draft law “does not purport to give sovereignty over a territory or celestial body,” and the country has expressed that it does not have any desire to provide such sovereignty to operators.[21]

The draft legislation itself is designed to provide legal certainty regarding space resources while keeping in accordance with both the national civil code and international law.[22] According to Professor Schiltz, the legal framework follows French doctrine which states: “Although the high sea can’t be appropriated, shellfish and fish are capable of being appropriated.”[23] For Luxembourg, outer space is the high sea while space resources are the shellfish and fish.[24]

Luxembourg’s draft legislation and the Treaty differ in that each body of law addresses different issues.[25] While the Treaty addresses appropriation of celestial bodies themselves, the draft legislation addresses appropriation of space resources coming from celestial bodies.[26] An example of such space resources are asteroids. Asteroids are one of the resources within the scope of the draft legislation according to Luxembourg’s initiative known as[27] According to Luxembourg, asteroids are not celestial bodies and are thus not specifically prohibited by the Treaty since it does not specifically address space resources.[28]

The draft legislation not only provides for the appropriation of space resources; it also proposes the regulatory regime that will be used to enforce the law.[29] The text addresses the specific requirements that are needed in the use of space resources. An initial requirement is that all resource utilization missions must be authorized.[30] Both the Treaty and the draft legislation require this authorization.[31] Operators must receive authorization form the Minister in charge of the economy and the Minister in charge of space activities.[32]  Authorization is, however,  limited. It is not a general authorization for any type of mission for an operator; the authorization is limited for a specific mission.[33] Furthermore, the mission itself must be for commercial use and comply with peaceful use of outer space.[34] The specific requirements of commercial and peaceful use marks another sign of accordance with the Treaty.

A distinct requirement under the legislation is that shareholders of the companies seeking authorization must “justify their good professional reputation” in order to get authorization.[35] It is not yet clear what standards, if any, will be outlined in the actual legislation. Additional information beyond reputation is also required.[36] For example, operators are required to give a program of their mission to the Luxembourg government as well as any other information that the government “considers relevant in the authorization process.”[37] It is possible that this final requirement promotes accordance with the Treaty’s interest in international cooperation in Article III.[38] By Luxembourg retrieving more information from operators, it can fulfill its obligations under the Treaty.

Lastly, the country hopes to promote legal certainty in the legislation by detailing a “book of obligation.”[39] Operators will receive this book – along with their authorization – which contains “conditions of the [draft] law so that operators effectively comply with all obligations of national and international law.”[40] The book will contain provisions that prohibit several activities including the contamination of celestial bodies and harmful interference.[41] It will also explain liability of the operator with regards to space resources.[42]

The legislation is currently under consideration in the Parliament of Luxembourg and has not been finalized.[43] As presented, the proposed language regarding the appropriation of space resources does not appear to violate international law. The Treaty prohibits appropriation of celestial bodies, but it is silent on space resources. It is unclear if this silence equates to implied authorization for the appropriation of space resources as Luxembourg posits.

[1] Luxembourg takes first steps to ‘asteroid mining’ law, (June 3, 2016), [].

[2] Press Release, Deputy Prime Minister and Minister of the Economy Etienne Schneider and Professor Jean-Louis Schiltz, Luxembourg Press Conference on new Space Law on Space Resource Utilization (Nov. 12, 2016), [](hereinafter “Press Release”); see also Luxembourg’s New Space Law Guarantees Private Companies the Right to Resources Harvested in Outer Space in Accordance with International Law, Luxembourg Ministry of the Economy (Nov. 11, 2016, 2:00 PM), [].

[3] Id.

[4] Id.

[5] Id.

[6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 8843 (hereinafter “Treaty”).

[7] Id.

[8] Id.

[9] Id.

[10] Id. at art. I.

[11] Id.

[12] Id. at art. IV.

[13] Id.

[14] Id.

[15] Id. at art. III.

[16] Id.

[17] Id.

[18] Id. at art. II.

[19] Id.

[20] See Press Release, supra note 2.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Did you know?, Le Gouvernement Du Grand-Duché de Luxembourg (March 25, 2016), [].

[28] Id.

[29] See Press Release, supra note 2.

[30] Id.

[31] See Treaty, supra note 6; see also Press release, supra note 2.

[32] See Press Release, supra note 2.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] See Treaty, supra note 6 at art. III.

[39] See Press Release, supra note 2.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

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