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Universal Stakes, Who Owns The Rights For Space Exploitation

Tiny Luxembourg is taking a leading role in devising the laws necessary to regulate the business of space exploration.

Who owns it?
Who owns it?
Vasudevan Mukunth

Of the 195 countries in the world, only 27 are smaller than Luxembourg. The landlocked country in western Europe has the world's second highest GDP per capita (more than $104,000). Its lands are rich in iron ore and, since the 1970s, Luxembourg has been promoting itself as a hub of financial services in Europe. The country has had a stable government and is generally welcoming of foreigners. But in the near future — or even today — knowing this much about Luxembourg will not be enough.

What sets Luxembourg apart, in Europe and around the world, is the choice of its political leadership to use the opportunities afforded by space exploration and associated technologies to develop the country. On July 13, Luxembourg's Chamber of Deputies, its unicameral legislative body, passed a law that recognizes the legal ownership of resources mined in outer space by private companies. The law is reportedly compliant with the Outer Space Treaty (OST) 1967, ratified by 107 countries, including Luxembourg.

As one of the financial capitals of the European Union, it has already been easy to get money in and out of Luxembourg. The new law will further lubricate existing mechanisms and make the landlocked nation a desirable HQ for space prospecting and mining cos, who will also be able to enjoy the associated legal clarity not available in most other states on the planet. A draft version of the law had been adopted by the Luxembourgish government in November 2016, a few months after its economics minister instituted a $227-million fund to be used to seed new startups, as capital for bigger companies and to help set up the country's first space agency (outside of its participation with the European Space Agency).

To boldly go ...

As a result, two American companies, Deep Space Industries (DSI) and Planetary Resources, already have plans to move. The government is also working with a Japanese company named ispace and a German one named Blue Horizon.

A new law signals Luxembourg's intention to persist with its bold pro-space strategy after reaping immense rewards from the first time it tried it. In 1985, its government played a major role in the founding of SES, the company that would launch Astra, Europe's first private satellite, three years later. Today, SES operates a fleet of 42 satellites and rakes in $2 billion in annual revenues, with the Luxembourg government as a major shareholder. In a press conference in June 2016, the country's prime minister Xavier Bettel said, "We should never forget that and be proud of the courage the politicians had at that time."

Our natural satellite, the thousands of near-Earth objects (i.e. objects within 200 million kilometer from the Sun) and the belt of asteroids between the orbits of Mars and Jupiter contain water, metals, minerals and gases worth a fortune, either for their rarity or their relevance to sustaining life.

The problem lay with recognizing ownership.

Both Planetary Resources and DSI had announced around 2013 that they would mine some of these resources before the decade's close, although their plans have since rapidly evolved. David Gump, the founding CEO of DSI, had told me in 2013 that they would mine compounds that could be used as fuel for communication satellites already in orbit around Earth and mine metals to expand their functionality. Planetary, on the other hand, is set to focus on mining the platinum group metals and bringing them home for trade. To these ends, Luxembourg has agreed to help build experimental spacecraft as a testbed for prospecting and mining technologies for DSI and invested $28 million in Planetary to help realize its prospecting mission by 2020.

But a bigger problem lay with recognizing ownership. The 1967 Outer Space Treaty had been drafted and ratified with governments in mind. Today, there is a privately funded competition requiring its participants to land and operate a rover on the Moon. Additionally, until around 2015, it wasn't clear if a private organization could plant its flag on an off-Earth object and claim ownership. Even if it did, there was no legal framework within which a government could be called upon to defend the organization's claim on a multilateral forum. Third, the Outer Space Treaty was also concerned about preventing off-Earth bodies from becoming contaminated by substances from Earth that could in any way alter or destabilize the local environment. Fourth, and most importantly, OST had envisioned the utilization of space as the "common heritage of mankind."

Overall, as Dale Broucher, of NORCAT, a nonprofit innovation center in Ontario, told Space in 2012: "I don't think a big mining industry is really going to get involved unless that have some surety that they can make a profit. They can't make a profit from it unless there is some regulatory regime in place that allows them do that … whether that's tax incentives or whether it's a mining claim concept."

The Luxembourg legislation goes partway in fixing this. Its government's deputy prime minister, and economy minister, Étienne Schneider had said in 2016, "The Luxembourg government will provide funding for relevant R&D in this field, namely to build and operate a risk-reduction technology demonstration mission for small spacecraft asteroid exploration for DSI.

Photo: Alan Dyer/ZUMA

Another piece of legislation that addressed some of these issues was drawn up by the U.S. A year before Bettel's government had adopted their draft law, Barack Obama's government had passed the Commercial Space Launch Competitiveness Act, a.k.a. the Space Act. It declared that while no private player could plant a flag on the Moon and claim it for itself, it could be said to own the resources mined therefrom. This was good news for DSI and Planetary because the Space Act would help protect investments – but it was bad news for the international regime as such.

In sum, as Gbenga Oduntan, an expert on international law at the University of Kent, had written at the time, "that American companies could on the basis of domestic laws alone systematically exploit mineral resources in space … really amounts to the audacity of greed."

Private property and celestial bodies

The Luxembourg law has been patterned on the Space Act. In fact, in one place, it even goes further and states that a company need only have an office address registered within the country's borders to enjoy its government's protection. Is this then another face of the "audacity of greed"? It doesn't seem so. The international community has certainly been less vehement in its opposition now than when the Space Act was passed. Why?

A digital magazine named Delano reported in April that the Council of State, a group of citizens who work with the Chamber of Deputies in the drafting of legislation, had voiced concerns that "private property claims are illegal or at least not legally binding in most of the international treaties and agreements relating to space and celestial bodies'. Following this, Space News had reported in June that, according to Mario Grotz, the chief of research for the new initiative, "language has been included in order to comply with those treaty obligations'. Schneider clarified, in a different statement, that their law did not "suggest to either establish or imply in any way sovereignty over a territory or over a celestial body. Only the appropriation of space resources is addressed in the legal framework."

It seems disagreeing with the Outer Space Treaty in spirit is fine so long as it follows the letter, if only because it is dawning on us all that there is no way to hold the private exploitation of space resources back.

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With the end of the Hollywood writers and actors strikes, the creator economy is the next frontier for organized labor.

​photograph of a smartphone on a selfie stick

Smartphone on a selfie stick

Steve Gale/Unsplash
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