The Council of State expressed formal doubts that this bill would provide the legal security it promised, as no one can raise claims to space.
Schneider, the deputy prime minister and minister for economy, presented a bill whose objective was to set a legal framework and give legal security to the property of minerals and other valuable resources in space, in particular on asteroids, and to regulate the authorisation and surveillance of both exploration and mining missions.
In a formal opinion published on 7 April, the council noted 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.
Neither the UN treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies of 1967, nor the agreement governing the activities of states on the moon and other celestial bodies of 1979 (which was not ratified by Luxembourg) answer the question of private property of space resources. The outer space treaty does not clearly prohibit the taking and use of resources. Article 2 of the outer space treaty states that:
“Outer 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.”
Space law experts have said that space resources are common goods for everyone.
The US has, nevertheless, adopted a space act in 2015 which allows residents to exploit outer space and its resources to commercial ends, including:
“to possess, own, transport, use and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States”.
Luxembourg wants to do the same. However, the Council of State asked how the state can legally determine the competent jurisdictions and the recognition of judicial decisions in other states.
It also questioned the fact that environmental concerns have not been addressed, that the minimum capital base has not been defined, and would prefer it if only one minister, instead of two, were responsible for authorisations.
Schneider has confirmed his objective is to ask for a revision of the question of property in the Outer Space Treaty. He wants the UN to create a legal framework which would allow companies worldwide to act in this domain. Schneider is now meant to revise his bill in order to address the council’s concerns.