From exploration to exploitation – the future of space with Professor Mahulena Hofmann

Notes from a CEPMLP Talk on 18/1/19

Space, the final frontier. An endless land filled with wonder and discoveries that mankind is exploring. For Luxembourg however, space holds another possibility: profit. In 2016 Luxembourg announced its newest venture in the space. A start to mining. Finding resources to bring back to help build space stations and refuel satellites. There are countless materials, like energy rich helium, water and precious metals, sitting on asteroids waiting to be claimed, and Luxembourg is ready for a goldrush. One might question why Luxembourg is heading up this new space race, but since the launch of their first Astra satellite in 1988 Luxembourg has launched over 60 geostationary satellites. Professor Mahulena Hofmann from the University of Luxembourg took us through the legal framework which may allow Luxembourg to exploit space resources.

The talk started with an overview of current global treaties that govern the use of outer space and how these dealt with the exploitation of space resources. The Outer Space Treaty of 1967 has three main articles that would pose a problem to Luxembourg: Article 1 makes space a province for all mankind, requiring the use of outer space to be of benefit to all countries; Article 2 says that no state may appropriate a celestial body in whole; and, Article 9 ensures that states will be environmentally conscious of both outer space and earth in their use of outer space. Luxembourg, however, is ready to address these legal barriers. The UN has passed General Assembly Resolution 51/122 to state that benefit sharing of space did not necessarily mean the sharing of profits. Instead Luxembourg could share the technology created, or create funds for researchers in less developed countries, so that they too may be able to benefit from outer space as well. As for environmental impact, many states have developed their own robust legal framework to ensure that there is no cross contamination between outer space and the earth. The non-appropriation article has proved a bit trickier for Luxembourg to dismiss. However, Article 2 only refers to appropriation of the whole celestial body by claiming it: appropriating part of the celestial body through mining does not breach this article of the treaty. The Moon Treaty of 1979 has more robust non-appropriation articles, however, Luxembourg is not a signatory and is not bound by it. With only 19 signatories, of which most are non-space-faring nations, the Moon Treaty has not created customary international law to restrict Luxembourg’s activities.

After the rebuttal of the legal framework set up by the UN on outer space, Professor Hoffman then went through the national legislation of the US and Luxembourg that regulates space travel. The two reflected each other with one small difference: the US has a national space agency, whereas Luxembourg has created framework to allow private companies to conduct space travel. The legislation in Luxembourg concerning the use of outer space reaches back to 1991. This legislation was designed to control the activities of satellite launches, not deep space mining operations, so new legislation was needed. In 2017 new legislation was created to regulate private firms conducting space programmes. The scope of this legislation was to explore space and exploit its resources. It put an onus on private entities to pay for things like environmental damage arising from their activities. Currently, under the Outer Space Treaty, the state which authorises a space programme is liable for any environmental damages the programme causes. The new legislation made companies pay back the government in full or required that they have insurance for any damage incurred. It also created potential criminal liability for staff, with fines and imprisonment as punitive measures. Luxembourg has created a robust set of regulations to allow it to start the new age of space travel and exploit outer space for its riches.

This has not gone unopposed however. Many states, most notably the signatories of the Moon Treaty, have raised objections to Luxembourg’s activities. The moon treaty was adopted by consensus in the UN General Assembly and so cannot be ignored by non-party states. However, this only forms soft law and Professor Hofmann was confident that it would not be enforced as hard law in the International Court of Justice. Nevertheless, Luxembourg has entered discussions with its opponents and convinced Belgium to rescind most of its complaints. When inviting the Dutch King to visit their facilities he mentioned that perhaps the Netherlands should withdraw from the Moon Treaty. Other states, such as Russia, have also stopped their opposition to Luxembourg’s programme as they begin to start their own space exploitation missions.

Luxembourg has great plans for its space programmes and already has memorandums of understanding with four companies and six countries on its plans for future exploitation of outer space. Having bypassed the international restrictions, established its own legal framework, and dealt with opposition to its plans, Luxembourg is ready to start this new adventure. This may not be the Star Trek that we were promised, but it certainly looks like the next stage of space travel has started its countdown for launch.