As astute readers would expect, Luxembourg has become the first European state to follow America’s lead and codify a legal framework to bypass the Outer Space Treaty of 1967 and the Moon Treaty of 1979 and allow the commercialization of the resources in outer space.  On July 13, 2017, Luxembourg’s Parliament adopted the Draft Law on the Exploration and Use of Space Resources.  With it, the Grand Duchy of Luxembourg says it “aims to be at the forefront of the next stage of [space industry] development.  Space is becoming big business.  

Until just a couple of years ago, space law was fairly simplified.  It was governed by the aforementioned treaties and could be summarized as disallowing ownership of space resources and the non-peaceful use of outer space.  In November 2015, the US enacted the monumental Commercial Space Launch Competitiveness Act, allowing American companies for the first time the legal authority to claim private ownership of space resources.  For several years now, American-based companies have been working hard to research, develop, plan, test, and re-test technologies allowing the extraction and use of the rich resources available in outer space.

While the Grand Duchy and the US claim the commercialization of space is consistent with the Outer Space Treaty of 1967, it is plainly not.  Private ownership claims are only enforceable by nation-states.  The spirit of the Outer Space Treaty was that space was a “commons” for all of humankind.  The treaty established the framework that no nation, and by logical extension no citizens or legal entities of that nation, could take ownership of the resources of outer space.  For a useful analogy, the reader may wish to consider the regime of intellectual property rights and treaties that govern international enforcement, or non-enforcement. Simply put, all legal claims of the magnitude of space resources will require enforcement by a nation state.

The purpose here is not to criticize the changes in the legal framework governing space.  In fact, the changes were necessary in order to incentivize further private investment in the research and development of the technologies to effectively exploit the vast resources available to all humankind in outer space.  Instead, the goal is to draw the reader’s attention to the radical changes of law taking place right before the reader’s eyes, and the rapidly developing legal framework for the private exploitation of space resources

Asteroids orbiting our Sun are believed to contain vast resources, dwarfing what we can find or extract here on Earth.  As we have reported, companies such as Deep Space Industries are spending billions of dollars to pursue asteroid mining, recognizing that “C-group and related classes of asteroids contain high abundances of water and important elements — including organic carbon, sulfur, nitrogen, and phosphorus — as well as ferrous metals.  “The companies intend to rely heavily on robots and artificial intelligence to target, capture, and process Near Earth Asteroids within the next decade.

The Grand Duchy of Luxembourg’s Draft Law on the Exploration and Use of Space Resources will take effect on August 1, 2017, and represents the primary European effort to allow European firms to compete with American businesses with confidence in their rights to resources extracted in space. 

Scientists from the Massachusetts Institute of Technology (MIT) have estimated that the riches of certain asteroids may be hard to fathom.  For instance, a single platinum rich asteroid that is half-a-kilometer wide would be estimated to contain nearly 175 times the annual global platinum output, which exceeds by half the total estimated resources of Platinum group metals on Earth.  At current Platinum prices, the value of the extraction could come close to one trillion dollars.  Pairing that knowledge with a CalTech study that estimated the cost of such a project in the range of several billion dollars, the margins involved in space mining become apparent.  Though the cap-ex estimate is likely to be proven optimistic, if history is any guide, the anticipated margins of space mining will still dwarf those of Earth-based mining.

Space is becoming big business.In the next decade, the reader should expect to see actual attempts at capturing and exploiting small near-Earth asteroids.  There will be many, many legal issues arising from these operations, and it is important for lawyers who want a thriving practice to be prepared for the space economy.  Our goal at the Intergalactic Bar Association is to help you do just that.