AALL 2019 Recap: Locating Latin American Legal Sources

By David Isom

Moderated by Sarah Jaramillo, Reference Librarian for International and Foreign Law at NYU Law School, the “Locating Latin American Legal Sources” session on July 15, 2019 consisted of presentations from Jade Madrid, Latin American Studies & Iberian Languages Liaison & Reference Librarian at Georgetown University; Shana Wagger, Program Lead for Digital Projects and Repositories at the World Bank; and Francisco Macías, Head of the Iberia/Rio Office Section at the Law Library of Congress. Each discussed unique aspects of the Latin American materials available at their respective institutions.

Locating Latin American Legal Sources panel.JPG

From left to right: Sarah Jaramillo, Jade Madrid, Shana Wagger, Francisco Macías.

Madrid began by noting various research guides on Latin American legal materials available at Georgetown and elsewhere. She also discussed the challenges that a researcher can encounter when attempting to locate sources of Latin American law: non-hispanophone/non-lusophone researchers may encounter difficulties when seeking primary sources, of course, but there can also be country-specific challenges. For example, while the Library of the National Congress of Chile includes coverage of Chilean law beginning in 1965, it has no coverage for the 17 years (1973–1990) under the dictatorship of General Augusto Pinochet. Madrid also mentioned several special collections related to Latin American law available at Georgetown: the papers of Colombian diplomat Tomás Herrán (many relating to the Hay–Herrán Treaty of 1903, which was ratified by the United States Senate but not by the Senate of Colombia); the papers of James Theberge, director of the Latin American and Hispanic Studies Center at Georgetown and United States Ambassador to Nicaragua and Chile; the papers of Panamanian educator, feminist leader, and diplomat Esther Neira de Calvo; and the Alliance for Progress Cartoon Book Program collection, which includes digital copies of comic books produced by the American anti-communist development program in Latin America established by President John F. Kennedy.

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Escuela de Traidores (School for Traitors), date unknown, from Georgetown’s Alliance for Progress Cartoon Book Program collection.

Wagger said that the World Bank’s open access program that publishes 90–110 books a year, primarily digitally. The program is intended to make information available to the decision-makers involved in development programs in order to support the World Bank’s broad mission of ending extreme poverty and promoting shared prosperity. Wagger explained that the World Bank produces four major types of resources: focused publications (such as the Doing Business series of national and regional economic profiles, the Latin American Development Forum series covering economic and social issues, and the World Bank Legal Review); electronic repositories (the Documents & Reports platform which includes more than 330,000 World Bank documents from 1946 to the present, the Open Knowledge Repository of almost 29,000 publications from roughly 2000 to the present, and the subscription World Bank eLibrary); the World Bank Open Data platform, which provides free access to various types of development-related information, including demographic, environmental, financial, and industry data; and other specialized resources such as the Projects & Operations website, the World Bank Group Archives, and the Access to Information portal.

Macías started his presentation by discussing the history of the Law Library of Congress’ collection of foreign law materials, which began in 1848 (in the aftermath of the Mexican-American War) when President James K. Polk ordered the Library to begin collecting materials concerning the law of Mexico. Since then, the Law Library of Congress has grown substantially, collecting the laws of more than 270 jurisdictions in more than 200 languages. Five foreign law specialists work in the unit which covers the laws of Spain, Portugal, Latin America, the Caribbean, and the Philippines. Electronic materials include country-specific research guides available in the Library’s Guide to Law Online and the In Custodia Legis blog—see, for example, this post on “Cinco de Mayo and the History of Mexican Codification.” One highlight of the Library’s Latin American materials is the Mexican Revolution and the United States exhibition, which includes historical newspaper articles, maps, photographs, and film footage.

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José Guadalupe Posada, Asalto de Zapatistas (Assault of the Zapatistas), 1910, from the Library of Congress’ Mexican Revolution and the United States exhibition.

AALL 2019 Recap: FCIL-SIS Schaffer Grant Presentation – African Law for Everyone: AfricanLII and Laws.Africa

By: Loren Turner

Mariya

On Monday, July 15, 2019, the 2019 FCIL-SIS Schaffer Grant recipient, Mariya Badeva-Bright, who leads the AfricanLII project at the University of Cape Town, South Africa (and recently co-founded Laws.Africa, a legislative commons), delivered a fantastic presentation titled “African Law for Everyone: AfricanLII and Laws.Africa.” Mariya’s presentation was a summary of her motivations and processes for gathering and digitizing African law as well as a “call to action” to law librarians worldwide for help in making African law accessible to all.

African Law for Everyone: AfricanLII and Laws.Africa

Mariya began her presentation by stating that there is no reliable, consistent, and up-to-date access to the law in many African countries – free or not.  Mariya provided several reasons for the lack of access to legal information: indifference of commercial publishers; lack of funds and skills on the local levels; poor record keeping; and low level corruption. She argued that there can be no justice without access to legal information.  When the law is not available freely and easily, judges cannot determine precedent; rich litigants have an unfair advantage.  As support, Mariya shared visual images of legislative texts in which pages were literally cut out, edited by hand, and then reinserted.  The reality, Mariya said, is that lots of African law is in such condition and this format frustrates access to justice.

Mariya explained that the AfricanLII and the Laws.Africa projects are about building an open infrastructure of African legal information with opportunity for sophisticated searches. They have to be open to anyone and offer speed, efficiency, services, growth and development.

AfricanLII was founded in 2010 to promote the role of LIIs in Africa. It now offers a federated search of over 250k documents of African legal information. Additionally, in response to user demand, it has begun to create case indices, including the Human Rights Law Index and the Commercial Law Index. It also provides a current awareness newsletter that started out as a service for judges but has expanded to anyone interested in following legal developments in African law (subscribe at the bottom of this page). Most recently, AfricanLII launched a citator service, available in beta format. It is the first visual citator in the access to law movement, but what is more remarkable is that it creates a citator service for cases that were never published in law reports and, therefore, don’t have citations!  The AfricanLII database sees about 400,000 unique users per month, 90% of which are within Africa.  Users are primarily from the justice sector (lawyers, judges, paralegals, magistrates, law students, government workers, etc.) but there is an increase in “average joes” accessing the database.

When the AfricanLII project began, there was a conscious choice to focus on gathering and digitizing cases rather than legislation.  Cases have their own value, but outdated legislation has little value.  The creators of AfricanLII had concerns about the future credibility of their project if they uploaded outdated legislation.  Plus, the reality is that in most African countries, there is no free source of consolidated, up-to-date legislation.

The Laws.Africa project developed to address the lack of freely available access to African legislation. The creators of the Laws.Africa project surveyed other country’s attempts at making legislation current and freely accessible.  They decided that the UK’s legislation.gov.uk was the model “golden” standard outside of Africa because of its rich interface and up-to-date, authoritative corpus.  Within Africa, the “golden” standards were Kenya law, an authoritative source of Kenyan legislation, and OpenBylaws.org.za, which focuses on improving access to South African by-laws.

Laws.Africa is an open source, cloud platform for efficient cost-effective consolidation and publication of African legislation.  It aims to crowdsource an open digital archive of African gazettes and use technology (in particular, Akoma Ntoso, a non-proprietary, XML markup standard for legislative documents) to consolidate legislation. In terms of processes: once a gazette is uploaded onto the Laws.Africa platform, a group of contributors (law students and law library students) extract individual Acts and identify changes to the Act over time.  A small group of reviewers check the work of the contributors (there is a two-step review process). After review, the consolidated legislation becomes available in a variety of formats.

The Laws.Africa project has already acquired and uploaded over 13,000 national gazettes.  These gazettes are available in .pdf versions through a linked sister site called Gazettes.Africa.  But, it takes a village to make a complete collection!  Unfortunately, Mariya explained, the law of Africa is not in Africa.  Instead, many African gazettes, especially historical ones, are located in libraries outside of Africa.  To continue building the collection of African gazettes and legislation on the Laws.Africa portal, Mariya and her colleagues need law librarians and digitizers in the U.S. and U.K. to donate their African gazettes to the project.  Mariya believes that crowdsourcing these gazettes is the best way to reach the goal of a complete collection.

Mariya concluded her presentation with an appeal: Join our community! Donate your gazettes!  Spread the word about the AfricanLII and Laws.Africa projects!  She received a great round of applause.

For a video of Mariya’s FCIL-SIS Schaffer Grant presentation, as given at Yale Law Library subsequent to the 2019 AALL Annual Meeting, follow this link.

AALL 2019 Recap: The Age of AI: Emerging Regulatory Landscape Around the World

By Taryn Marks

The Age of AI: Emerging Regulatory Landscape Around the World (E1)
Presenters: Laney Zhang, Jenny Gesley, Tariq Ahmad & Nicolas Boring
Coordinator: Tariq Ahmed
Moderator: Nicolas Boring
Monday, July 15, 11:00 AM–12:00 PM

In “The Age of AI: Emerging Regulatory Landscape Around the World,” speakers Laney Zhang, Jenny Gesley, Tariq Ahmad, and Nicolas Boring (all Foreign Law Specialists at the Law Library of Congress) discuss a variety of AI topics and the regulations, policies, and ethics that various governments around the world have started to implement and develop. The program is based on a report that the Library of Congress issued earlier in the year, Regulation of Artificial Intelligence in Selected Jurisdictions. After briefly reviewing the process that they used to research and compile the report, the presenters dove straight into an hour jam-packed with information about artificial intelligence regulation.

First, the panelists reviewed national strategies related to AI regulation in four countries: Canada, Germany, France, and China. Interestingly, Canada was the first country to develop an AI national strategy. For each country, the panelists provided a short overview of the strategy, then discussed some of the concerns and criticisms related to each country’s strategy.

Next came a discussion of data protection and transparency, with the obvious first candidate the European Union’s General Data Protection Regulation. The heavy focus was on automated decision-making within that context. The panelists then discussed two data protection and transparency regimes that had been heavily influenced by the EU’s GDPR, Canada and China. Laney pointed out that China presents an interesting case study in this context because it has simultaneously developed a recommended national standard of data protection while rather flagrantly violating its citizens’ data privacy.

Next, the presenters turned to the laws regarding autonomous vehicles in several countries (Germany, Belgium, France, Canada, and China). Most of these laws focus on either liability for accidents involving autonomous vehicles or regulation of autonomous vehicle tests. The speakers pointed out that most countries use the Society of Automotive Engineers’ five levels of automation, and that most countries’ regulations right now focus on vehicles that fall in levels three and four (conditional automation and high automation).

Last, the speakers reviewed several jurisdiction-specific hot topics. The EU recently developed ethical rules on AI that are currently in draft form and are being tested by the industry; Canada is conducting an algorithmic impact assessment after piloting programs that used AI to review various immigration applications. In France, the government has been using AI to conduct audits, for zoning issues, and in French courts. This latter policy caused a backlash that resulted in the French legislature banning the use of AI for predictive justice. Last, the EU has been reviewing the ethical and legal ramifications behind giving robots the status of legal personhood, creating a big debate within that system about those issues.

Overall, this was an excellent panel that provided detailed substantive information about a variety of laws related to AI, although I wish they had gone into a bit more detail about the process and research methodology used to prepare the report per their third learning objective. As far as reading the report versus watching the panel, I suspect that reading the full report would likely give you the same information as watching the panel; watching the panel would clearly demonstrate the depth of the speakers’ knowledge about these issues. Whichever you choose to do, you will learn a lot.

AALL 2019 Recap: FCIL Advanced Bootcamp

By Meredith Capps

Whilst the morning sessions of the 2019 AALL FCIL “bootcamp” covered broad, general categories of law (foreign, treaty, European Union), with a focus on research in these areas, the afternoon sessions examined several substantive areas of law: international trade, international taxation, and international anti-bribery/corruption law.

PreConferenceWorkshop

All the speakers of the morning and afternoon sessions of the FCIL Bootcamp Pre-Conference Workshop at AALL 2019. From left to right: Heather Casey, Georgetown University Law Library; Prof. Heidi Frostestad Kuehl, Northern Illinois University School of Law; Prof. Jennifer Hillman, Georgetown University Law Center; Mabel Shaw, Georgetown University Law Library; Prof. Lilian Faulhaber, Georgetown University Law Center; and Charles Bjork, Georgetown University Law Library.

In “The International Trade Law System Under Fire,” Jennifer Hillman, a professor of practice at Georgetown Law Center and former WTO appellate body member, described the three major areas of international trade:  1) trade in goods, 2) trade in services, and 3) foreign direct investment.  In the area of goods, manufacturing dominates, and trade in goods is traditionally governed by common tariff schedules, organized around type and origin of good.  Trade in services, Hillman explained, is more complicated, as there are no tariffs, and data is difficult to gather. Services cross borders in a number of ways, including individuals crossing borders to utilize or provide a service, or service providers establishing a commercial presence in another jurisdiction.  Foreign direct investment often follows the movement of goods and services.

Both domestic and international law, including a few key conventions, govern international trade:

  1. Convention on the International Sale of Goods.
  2. Bilateral Investment Treaties (BITs)
  3. GATT/WTO frameworks
  4. Intellectual property treaties
  5. Hundreds of regional and bilateral trade agreements

Hillman described the GATT/WTO system in some detail, including key legal principles such as national treatment and most favored nation, and its active dispute resolution system.  She noted that the WTO often coordinates efforts with other international standard-setting organizations, such as the IMF and WIPO.

Hillman went on to review the Trump administration’s major initiatives with respect to trade, why they represent significant departures from prior policy, and their likely illegality under international law.  She discussed the current system’s failures, but emphasized that the world economy is now too interconnected to depart from a rules-based system of trade.

Next, Lilian V. Faulhaber, also of Georgetown, discussed digital taxation, i.e. efforts to tax the “digital economy.”  Traditionally, the nation where an entity is headquartered or maintains a physical presence taxed corporate income/revenue, and “transfer pricing” accounted for the value of tangible assets.  Intangible assets such as data are difficult to value, and the existing tax system does not well account for the realities of this current economy.  Some see efforts to tax the digital economy as targeting profitable U.S. corporations, and indeed, some such taxes are named after the likes of Amazon, Google, and Facebook.

Faulhaber described initial international efforts to address the digital economy, the Base Erosion and Profit Sharing (BEPS) Project (2013-2015), and Tax Force on the Digital Economy (TDFE).  Feeling that these efforts have not gone far enough, nations including the UK, Australia, India, and France have enacted domestic legislation designed to tax entities that may not have a physical presence in their borders, but derive income from sales or services in the country.  The U.S. has also responded to concerns that intangibles are being inappropriately valued with the “GILTI” a worldwide minimum tax of about 15%, applied to global intangible low tax income, and the “BEAT” tax on related party payments.  These provide a disincentive for U.S. corporations to move offshore to low tax jurisdictions such as Ireland.

The OECD digital tax work program is currently examining coordinated solutions including a user contribution tax, marketing intangible tax, and “significant economic presence” test, and is targeting consensus in 2020.  The most effective OECD measures, Faulhaber says, are those that reward nations who opt in to the system.  Faulhaber predicts that we will not return to the traditional model of taxation, but is unsure whether cooperation or unilateral measures will predominate.

Finally, Heidi-Frostestad Kuehl of NIU College of Law discussed international anti-corruption and anti-bribery frameworks and resources.  She noted that corruption and bribery implicate several other areas of law, including labor, ethics, environment, torts, contracts, human rights and criminal law.  Several persistent issues underlie corrupt practices including poverty, slavery, and global supply chain forces.  Major domestic laws governing corruption include the U.S.’s Foreign Corrupt Practices Act, which has established the U.S. as a leader in anti-bribery enforcement, and the more recent UK Bribery Act.  Challenges in developing national enforcement frameworks include investigative scope, language, cultural differences, whistleblower protection, privacy and data protection laws, labor protections, ethical rules, non-disclosure agreement standards, undeveloped case law, mens rea standards, the role of judiciary, and the regulatory environment.  OECD and UN conventions provide international frameworks, but these do not have the same hard law effects as domestic legislation.

Kuehl then described several useful research tools, beginning with the Global Compliance website, which organizes content by jurisdiction, Transparency International, and the Stanford University FCPA siteOECD country reports on implementation of the OECD anti-bribery convention are another useful tool.  Domestically, researchers may turn to the Department of Justice and Securities and Exchange Commission sites listing enforcement actions.  Kuehl recommends researchers begin by searching for relevant treaties, then implementing national legislation, national regulations and judicial decisions, and relevant cultural norms.

Webinar Recap: Working with Non-English Materials for the English Speaker

By Jessica Pierucci

On June 6, 2019, the FCIL-SIS Continuing Education Committee hosted its inaugural webinar, Working with Non-English Materials for the English Speaker. This engaging and information-packed session featured three panelists who discussed the best resources and provided research tips for finding the most helpful English translations of laws in European, Asian, and African countries.

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This post briefly discusses some key takeaways from the webinar, but for a complete list of resources, please check out a helpful handout and set of slides from the presentation both freely available through the Continuing Education page on the FCIL-SIS section of the AALL website. A webinar recording is also available to AALL members at this site.

Europe

Erin Gow, Online Services Librarian at University of Louisville Law Library, started the panel with European languages. She suggested starting with EUR-Lex and N-Lex when looking for documents from EU member states. In EUR-Lex, she pointed out annotations noting the source of translation (official, machine translation, etc.). In N-Lex, Gow demonstrated how the search boxes helpfully translate English language searches to other languages.

Gow also recommended places to find guides for this type of research. GlobaLex is often her first stop. She also checks for research guides from European law libraries, because those guides are generally developed by librarians who regularly work with European resources. Gow specifically mentioned guides from the Bodleian Law Library at Oxford and Middle Temple Library, including Middle Temple Library’s National Information Links for Lawyers PDF chart (PDF on the right).

Gow provided global tips as well. She explained that government websites, websites for relevant multinational organizations, and the International Encyclopaedia of Laws can also be potential sources of translated laws. She also recommended checking Lexis, Westlaw, HeinOnline, treatises, encyclopedias, and law review articles for any translations contained therein. For performing machine translations, Gow noted that she prefers the translation application Linguee. She also discussed the general helpfulness of Google Translate, but she cautioned to always be aware of the limits of machine translation.

Asia

Alex Zhang, Assistant Dean for Legal Information Services at Washington & Lee School of Law, focused on Asian languages. Zhang explained that for countries in which English is an official language, such as Singapore and Hong Kong, the researcher’s focus should be on finding the most authoritative source. Singapore Statutes Online is a helpful government resource for finding Singapore’s laws online, but it only contains unofficial versions of legislation. The official text is published in the print Gazette. On the other hand, electronic Hong Kong e-Legislation documents with “verified copy” marks are the official text.

For countries in which English is not an official language, the best bet is often finding a translation produced by a governmental entity (e.g. Japanese Law Translation), but it’s crucial to remember translations won’t have official status. Zhang emphasized considering the translation’s origin, focusing on the translation source, date, version history, and format. She also encouraged comparing multiple translations where possible.

Zhang also shared some broadly applicable tips. Great research guides may come from academic libraries in a relevant country, such as the Chinese University of Hong Kong Library. The Foreign Law Guide, GlobaLex, and Law Library of Congress Guide to Law Online: Nations are all great resources for locating information about the availability of translations. Further, Lyonette Louis-Jacques’ “How to Find Cases in Translation, Revisited” in Slaw is a valuable tool for case research ideas.

Zhang Slide Screenshot.PNG

Africa

Yemisi Dina, Acting Chief Law Librarian at Osgoode Hall Law School Library capped off the panel by discussing African languages. Dina focused on the presence of many indigenous languages across the continent, which can lead to loss of the true meaning during translation from language to language. One manner in which meaning can be lost occurs when customary court judges, who often do not produce written decisions, elect to have their decisions written in a language other than the indigenous language spoken during the proceedings. Meaning can also be lost during international tribunal hearings, when interpreters translate from an indigenous language to the official language of the tribunal.

Although true that many African countries have English, French, Arabic, and/or Portuguese as official languages, the text in those languages may not fully capture the meaning originally intended by law originated in an indigenous language.

Dina suggested using AfricanLII as the go-to resource, but noted that it, like LLMC and other collections, is incomplete and still has a way to go toward becoming a complete resource for African legal information.

Want more information?

Don’t forget to check out the webinar resources posted on the Continuing Education page on the FCIL-SIS section of the AALL website. They’re super helpful including citations and links to a wide array of translation-related resources.

Book Review: Charting the Legal Systems of the Western Pacific Islands, by Victoria J. Szymczak

chartingthelegalsystemsofthewesternpacificisland
By Susan Gualtier

In a recent blog post, Shay Elbaum recapped a 2018 WestPac conference program in which Victoria Szymczak, Director of the Law Library and Associate Professor of Law at the University of Hawai’i William S. Richardson School of Law, discussed the creation of her new legal research guide, Charting the Legal Systems of the Western Pacific Islands, which was recently published by Hein.  Although I was not personally able to attend WestPac or hear Ms. Szymczak speak on this topic, I had already received Hein’s announcement regarding the new guide and was anxious to see it in person.

Charting the Legal Systems of the Western Pacific Islands is unique for a research guide in that it contains quite a bit of context.  It covers history, defines important British colonial legal terms, and lays out clearly the challenges specific to legal research in the Western Pacific Islands.  At only 60 pages long, the book offers enough background information for the researcher to feel confident in beginning to look at primary sources.  Szymczak also recommends several treatises on both the British colonial system and the Western Pacific that can provide the researcher with more in-depth information.

The book is also unique in that it is very much focused on historical resources, specifically those created during British colonization in the Western Pacific.  Szymczak explains the different types of colonial documents that researchers may need to locate and identifies sources where those documents might be published.  She also describes how legislation and the judiciary operated in the Western Pacific Islands under British rule, and the ways in which native or customary law were applied during that period.  Szymczak discusses various instruments of customary law, including native courts and island and local councils, which were established during the colonial period, and even mentions a few ways in which the researcher might approach finding evidence of customary law from that era.  An entire chapter is devoted to archival research and secondary sources, such as historical newspapers, that can help to “fill in the gaps” in the historical record created by primary legal documentation.

The book wraps up with several chapters on post-independence sources of law.  Again, significant context is provided in order to help the researcher understand the history and legal structure post-independence.  Szymczak discusses open access online sources, as well as print sources specific to the jurisdictions covered in the book.

It is rare that a research guide is also such an interesting read, but I very much enjoyed this guide and learning about the legal history of the Western Pacific Islands.  I would recommend this book to anyone interested in colonialism, the Western Pacific, or customary and indigenous law.

The Luxembourg Space Resources Act and International Law

By Charles Bjork

Asteroid Mining_NASA Public Domain Image.png

Image courtesy of Wikipedia commons.

Among the most intriguing and eagerly anticipated presentations at the 2018 Annual Course of the International Association of Law Libraries was a lecture by Professor Lorenzo Gradoni, a Senior Research Fellow at the Max Planck Institute for Procedural Law, on Luxembourg’s recently enacted Space Resources Act and whether or not it is in conflict with international law governing the use of outer space.  Sadly, Professor Gradoni had to cancel at the last minute, and there was not enough time to locate a replacement speaker.  Paul Mousel, a founding partner of the law firm Arendt & Medernach, who spoke about the practice of law in Luxembourg, was kind enough to provide the conference delegates with some background information that helped to explain how Luxembourg improbably became a pioneer in the field of space law.  Time constraints precluded Mr. Mousel from discussing the new Space Resources Act in detail.  Since the topic is of interest to me, I decided to do some research on my own.  What follows is a summary of the context provided by Mr. Mousel, along with my own findings about the origins of Luxembourg’s Space Resources Act and whether it is compatible or in conflict with the multilateral treaties that govern the use outer space.

Although few people today think of Luxembourg as an industrial powerhouse, it was one of Europe’s largest steel producers from the middle of the 19th century until the last quarter of the twentieth century.  The energy crisis of the 1970s accelerated the decline of Luxembourg’s steel industry.  As it became apparent that most steel production eventually would shift to lower-cost jurisdictions, Luxembourg began looking for ways to diversify its economy.   Banking and financial services offered one path.  The emerging field of satellite-based communications and broadcasting offered another.  The Cold War between the United States and the Soviet Union provided the impetus for the development of artificial satellites.  As with other technologies originally developed for military purposes, it wasn’t long before civilian applications began to emerge.

To better understand how Luxembourg managed to establish itself as a center for the satellite communications industry, some background information on satellite operations will be helpful.  Most communications satellites operate in a geostationary orbit, directly above the Earth’s equator, following in the direction of the Earth’s rotation.  From the ground, a satellite in such an orbit appears to be motionless, occupying a fixed position in the sky.  A ground-based antenna can communicate with the satellite simply by pointing to that fixed position without having to rotate back and forth to track the satellite’s movement.  There are two main limitations on the use of geostationary orbits by communications satellites.  First, only a finite number of satellites can safely operate within the relatively narrow band above the Earth’s equator.  Second, the number of radio frequencies that can be used to communicate with satellites operating within a geostationary orbit also is limited.  These frequencies must be allocated for use on an exclusive basis in order to prevent one satellite operator’s transmissions from interfering with another operator’s transmissions.

The entity responsible for allocating the limited number of orbital positions and radio frequencies available for satellite broadcasting is the International Telecommunications Union (ITU), a specialized agency of the United Nations.  For each of its member states, the ITU set aside a fixed number of geostationary orbital positions, as well as a fixed number of uplink and downlink frequencies for communicating with satellites operating in geostationary orbit.  National telecommunications regulators, such as the Federal Communications Commission in the U.S., may assign these orbital positions and frequencies to public or private entities operating within their respective jurisdictions.  If there are no entities capable of using the orbital positions and frequencies allocated to a particular ITU member state, those positions and frequencies remain available for the use of entities based outside the jurisdiction on a “first come, first served” basis, subject to the oversight of the ITU.

Just as its steel industry was contracting, Luxembourg suddenly found itself in possession of two potentially lucrative assets:  geostationary orbital positions for satellites to occupy and radio frequencies for communicating with the satellites occupying those orbital positions.  As Mr. Mousel explained, Luxembourg’s location on the border between France and Germany makes it ideally situated to transmit satellite broadcasts to most of Europe’s largest television markets.  The only thing Luxembourg needed to take advantage of this opportunity was a domestic satellite operator.  If no domestic satellite operator emerged, Luxembourg risked losing its ITU-allocated orbital positions and radio frequencies to foreign entities willing to claim them.

At that time, in the early to mid 1980s, the only satellite operators in Europe were state-owned broadcasters.  Lacking the resources and technical expertise to develop a state-owned champion of its own, the government of Luxembourg decided to offer seed money to subsidize the establishment of a privately-owned satellite company.  It was approached by Clay T. Whitehead, an American who had worked in the Nixon administration as the first director of the Office of Telecommunications Policy, and who later helped Hughes Aircraft to launch its satellite subsidiary.  In exchange for the seed money, the assignment of the requisite orbital positions and radio frequencies, and the right to broadcast television directly into viewers’ homes, Whitehead agreed to base his new company in the Grand Duchy and allow its government to take a minority stake in the business.  Thus was born Société Européenne des Satellites (SES), Europe’s first privately-owned satellite operator.

Luxembourg’s gamble on SES soon paid off.  In 1988, just three years after it was founded, SES launched its first satellite, the Astra 1A, into geostationary orbit, which enabled it to enlist as clients many of the key players in Europe’s emerging satellite television industry, including the German broadcaster RTL and Rupert Murdoch’s Sky TV.  Thirty years later, SES operates more than 50 geostationary satellites and is among the world’s leading providers of satellite-based video and data connectivity services.  The government of Luxembourg has retained its minority stake in the company.

With the enactment of its Space Resources Act in 2017, Luxembourg hopes to build on its success in the field of satellite communications and establish itself as a center for what many observers anticipate will be the next chapter in the commercial development of outer space: mining.  Long before scientists confirmed that the Moon, certain types of asteroids, and other celestial bodies contain rich deposits of precious metals and minerals, Hollywood screenwriters had envisioned a future in which humans would turn to space to replenish the Earth’s depleted resources.  As private enterprises continue to play a larger role in space exploration, it is only a matter of time before the commercial extraction of resources from outer space moves from the realm of science fiction to reality.

The most valuable space commodity – at least during the initial stages of commercial development – may not be platinum or other precious metals, but ice.  In addition to being melted to provide drinking water for astronauts, ice can be broken down into its component parts, hydrogen and oxygen.  The former can be converted into fuel, while the latter is essential for human respiration.  If ice mined in space can provide a reliable source of drinkable water, breathable air, and fuel, it would no longer be necessary to transport those essential resources from the Earth, making space exploration and long-term human habitation in space more viable and less costly than they are now.  Moreover, if communications satellites can be refueled in mid-orbit with fuel derived from hydrogen locked in space ice, it would dramatically extend their useful lifespans and significantly reduce the amount of hazardous space debris.

Even as technological advances bring space mining closer to reality, investors in companies seeking to extract resources from outer space will be reluctant to move forward without legal clarity on the ownership of such resources.  It was the United States, not Luxembourg, that took the first step in creating a legal framework for the recognition of property rights in space resources.  On November 25, 2015, Congress enacted the Space Resource Exploration and Utilization Act (SREUA) as part of the larger Space Launch Competitiveness Act.  The SREUA defines a “space resource” as any abiotic resource, including water and minerals, in situ in outer space.  It also defines an “asteroid resource” as a space resource found on or within a single asteroid.

Section 51303 of the SREUA states that any U.S. citizen engaged in the commercial recovery of an asteroid resource or a space resource is entitled “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.”  The term “U.S. citizen” is defined to include 1) an individual who is a citizen of the U.S.; 2) a business entity organized under the laws of the U.S., or the laws of any U.S. state; or 3) a business entity organized under the laws of a foreign jurisdiction, provided that a controlling interest in the business is held by an individual or entity described in 1) or 2) above.  In other words, the SREUA’s recognition of property rights in resources extracted from outer space applies only to individual American citizens, American-based business entities, and the foreign subsidiaries thereof.

Luxembourg became the second country, and the first in Europe, to establish a legal framework for the ownership of resources extracted from outer space with the passage of its Space Resources Act, which entered into force on August 1, 2017.  Like its American counterpart, the Luxembourg statute explicitly recognizes a property interest in resources extracted from outer space.  However, there are two critical difference that set Luxembourg’s Space Resources Act apart.   First, the Luxembourg statute establishes an accreditation and licensing regime for entities seeking to engage in space mining.  Only entities that have applied for and received a license for their space mining activities may assert an ownership interest in the resources extracted.  Second, the Luxembourg statute does not include a nationality clause.  Any corporation, limited partnership or limited liability company established under Luxembourg law, or any European company with a registered office in Luxembourg, may submit an application for accreditation and licensing.  It doesn’t matter who owns or controls the entity submitting the application.  As long as the entity is established under Luxembourg law, or is a European company with a registered office in Luxembourg, it may submit an application.

Luxembourg has a long history of enacting tax loopholes and less burdensome regulatory regimes to entice multinational enterprises to establish foreign subsidiaries within its borders.  Critics refer to these foreign subsidiaries, created solely for the purpose of tax and regulatory arbitrage, as “letterbox companies.”  The Space Resources Act is meant to lure start-ups, not established multinationals.  It draws its inspiration from the seed money the Grand Duchy provided to launch SES, Europe’s first privately-owned satellite operator.  In fact, even before the Space Resources Act entered into force, the government of Luxembourg established a €200 million Space Fund for making strategic investments in fledgling companies that aspire to be space mining pioneers.  To date, the Space Fund has invested in half a dozen mostly American start-ups, including Seattle-based Planetary Resources and San Jose-based Deep Space Industries.  Once they establish subsidiaries in Luxembourg, these start-ups will be able to apply for space mining licenses under the Space Resources Act.

Are Luxembourg’s Space Resources Act and its American counterpart compatible with the multilateral conventions that govern outer space?  No treaty provision directly addresses the private ownership of space resources.  The most relevant provision is article II of the Outer Space Treaty, which states that “[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.”  Some scholars have interpreted this provision to preclude the private ownership of resources extracted from outer space.  The more widely accepted view is that article II only prohibits nation states from asserting their sovereignty over celestial bodies and does not prevent private parties from claiming ownership of extracted resources.  Supporters of space mining often make an analogy to deep seabed mining, which is permitted under the Law of the Sea Convention, or to fishing boats operating in international waters, which claim ownership of the fish they catch without asserting a property interest in the ocean.

The ownership of extracted resources is by no means the only legal issue that must be resolved for space mining to become a reality.  Private enterprises will be reluctant to begin prospecting in space unless they are reasonably certain that they will have an exclusive right to extract the resources that they discover.  How will companies assert their right to extract resources from a particular celestial body?  Will there be a space mining registry?  If so, who will administer it?  Will companies need to establish a physical presence on a celestial body before they can assert a mining claim?  How will the scope and duration of such claims be determined if nation states cannot assert sovereignty over celestial bodies?  How will companies prevent competitors from interfering with their mining claims?  Neither the Luxembourg Space Resources Act nor its American counterpart address any of these thorny questions, and it is highly unlikely that such matters can be satisfactorily resolved through domestic legislation.

Recognizing the need for international cooperation, the Hague Institute for Global Justice, an independent think tank, established the Hague Working Group on Space Resources in 2014.   The Working Group consists of a geographically diverse collection of stakeholders, including government agencies, non-governmental organizations, academic institutions, and industry representatives.  Its goal is to identify the building blocks for developing an international framework to govern the use of space resources.  This framework will provide a basis for negotiating a new international legal agreement on space resources or, if that is not feasible, for the development of soft law instruments that will serve the same purpose.  The Working Group completed its initial round of meetings on December 18, 2017, and issued this progress report.  The second round of meetings began in January.  The most recent meeting was held at the end of November.  Appropriately enough, it took place in Luxembourg.

 

Suggestions for further reading:

Atossa Araxia Abrahamian, How a Tax Haven Is Leading the Race to Privatize Space, The Guardian (July 15, 2017), https://www.theguardian.com/news/2017/sep/15/luxembourg-tax-haven-privatise-space.

Chelsey Davis & Mark J. Sundahl, The Hague Working Group on Space Resources:  Creating the Legal Building Blocks for a New Industry, 30 Air & Space L 7 (2017).

Rachel Mitchell, Note, Into the Final Frontier:  The Expanse of Space Commercialization, 83 Mo. L. Rev. 429 (2018).

Jinyuan Su, Legality of Unilateral Exploitation of Space Resources Under International Law, 66 Int’l & Comp. L. Q. 991 (2017).

Space Resources Luxembourg (official government website).

Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace, 674 Journal Officiel du Grand-Duché de Luxembourg, July 28, 2017, p. 1.

U.S. Space Resource Exploration and Utilization Act, 51 U.S.C. §§51301 et seq.
U.S. Space Launch Competitiveness Act, P.L. 114-90, 129 Stat. 704.