IALL 2019 Recap: George Williams AO, Australia’s Constitutional Quirks

By Jessica Pierucci

The International Association of Law Libraries hosts annual courses in different locations around the world each year. I was lucky enough to attend the 38th Annual Course, Law Down Under: Australia’s Legal Landscape, held October 27-30, 2019 in Sydney, Australia. The course [The 38th Annual Course of the International Association of Law Libraries in Sydney, Australia] included fascinating presentations from Australian lawyers, scholars, judges, and more. Among them were George Williams AO, Dean of the Law School, Anthony Mason Professor, and Scientia Professor at the University of New South Wales. An expert on Australian constitutional law, Williams engaged the audience with an eye-opening presentation titled Australia’s Constitutional Quirks.

George Williams speaking at a podium

George Williams AO

Misunderstandings

Williams opened with some alarming statistics about misunderstandings of the Australian Constitution. On a survey a number of years ago, 47% of respondents said Australia does not have a constitution. This is incorrect. In another survey, 61% believed Australia has a national Bill of Rights. This is also incorrect. According to Williams, Australia is the only democracy without a Bill of Rights in its federal constitution.

When working on Victoria’s Charter of Human Rights and Responsibilities, Williams frequently came across people who believed they could “plead the 5th” in court, a concept they likely learned from U.S. television that does not exist in the Australian Constitution. These conversations furthered Williams’ concern about the apparent lack of understanding of the Australian Constitution by many Australians.

Aboriginal Discrimination

One major issue with the Australian Constitution is its treatment of Aboriginal people. Current and former articles of the Constitution illustrate the discrimination ingrained in this document, created without the input of Aboriginal people.

Shockingly, Article 25 allows people to be disqualified from voting based on their race. While not currently in use, the fact that this article is still in the Constitution is deeply concerning. Williams does not know of another country with a similar constitutional rule. Aboriginal people only gained the universal right to vote at the federal level in 1962, less than 60 years ago.

In addition, former Article 127, repealed in 1967, excluded Aboriginal people from the population count. This former exclusion is emblematic of the view that Aboriginal people were not part of the country.

An active debate at the federal government right now focuses on Aboriginal people, responding to the 2017 Uluru Statement from the Heart requesting voice, treaty, and truth. But only time will tell if Aboriginal people will be appropriately incorporated into the Constitution, among other proposed reforms.

Challenges for Reform

Constitutional change is slow and difficult. The federal Parliament must initiate constitutional changes and Williams has seen a frequent disparity between the will of the people and Parliament’s actions. Further, constitutional amendments require referendum and only eight constitutional referendums have passed, most recently in the 1970s. Many more have not passed and the most recent attempt at a referendum was two decades ago.

Compulsory voting requirements mean that uninformed voters may vote against a referendum even if they agree with the idea proposed due to lack of understanding. Williams writes a regular newspaper column in The Australian with the hope of increasing awareness of the government and the Australian Constitution among the public, but he wonders how effective this is as he is not sure how many people are still reading the newspaper.

Encouragingly, many state constitutions throughout Australia have undergone changes to include a Bill of Rights and acknowledge Aboriginal people, among other reforms. But it’s a completely different story at the federal level.

Conclusion

Ultimately, Williams’ presentation showed the Australian Constitution has a disturbing history and substantial changes may still be quite a ways off. Remedy Australia collects United Nations cases finding Australia in violation of human rights. The data shows Australia has failed to remedy the vast majority of these violations. This falls in line with Williams’ understanding of Australia’s constitutional history and the resistance to change at the federal level.

IALL 2019 Recap: International Environmental Law in Australia

By Julienne E. Grant

Professor Tim Stephens spoke to attendees on the final day of the IALL conference, October 30, 2019. He is Professor of International Law at the University of Sydney; an Australian Research Council Future Fellow; and Deputy Director of the University of Sydney’s Marine Studies Institute. The topic of Professor Stephens’s excellent presentation was “International Environmental Law in Australia: Old Problems, New Challenges.”

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Professor Tim Stephens, Professor of International Law at the University of Sydney.

The professor began his talk by defining International Environmental Law (IEL). He said that it is a type of public international law that “seeks to conserve/manage natural and cultural/built environments.” He added that IEL is becoming increasingly important around the world and that it operates somewhat like the concept of equity.

Professor Stephens explained that IEL is predominately treaty-based; there are currently hundreds of such documents in force, with Australia being a party to more than forty multilaterals. The speaker explained, however, that treaties to which Australia is a party are not self-executing; that is, there is no automatic implementation, and only the Parliament of Australia can implement treaties. The professor indicated that the division between federal and state responsibilities is extremely complex in Australia, a fact that other conference speakers emphasized. Here, Professor Stephens cited the Tasmanian Dam Case” [1983] HCA 21, which radically expanded the power of the Australian parliament in external affairs. Overall, he said, the federal system has complicated Australia’s IEL commitments.

The speaker also indicated that the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC), although designed for the purpose of environmental protection, is not working; the federal government has not taken the lead on environmental management, leaving this to the individual states. He said that the Great Barrier Reef, a UNESCO World Heritage Site, is under significant environmental pressure; there is, for example, a coral “bleaching” problem, most markedly in the north part of the site. UNESCO, however, has not placed the Great Barrier Reef on its “In Danger” list yet.

The professor pointed out, though, that Australia has been a strong supporter of IEL overall, noting the country’s interest in protecting its unique species and biodiversity (he believes Australia is experiencing an extinction crisis with regard to both). He also noted that Australia brought a case to the International Court of Justice (ICJ) in 2010, accusing Japan of breaching several of its obligations under the 1946 International Convention for the Regulation of Whaling, as well as other international commitments to preserve marine mammals. Australia won the case (Australia v. Japan, decided March 31, 2014).

But the Australian government, Professor Stephens said, has taken an ambivalent stance on climate change because the country is a big user and exporter of fossil fuels. According to the speaker, there are weak emission targets in Australia, and the Clean Energy Future Act 2011 was repealed by the current government. He said that there are presently dozens of lawsuits in Australia related to climate change, and there is actually a separate Land and Environment Court in New South Wales (NSW). The current NSW government wants to override the federal “coal-friendly” administration. Gloucester Resources Limited (GRL) v Minister for Planning [2019] NSWLEC 7 has, however, changed the situation somewhat as dicta in that case suggests that climate change was a good reason to deny a construction permit for an open-cut coal mine. Professor Stephens called the language in that case “revolutionary,” as previously Australian courts did not look at anything related to IEL.

Professor Stephens concluded his lecture with the following thoughts:

  • IEL is being challenged significantly in the current geological era (Anthropocene), and we can expect to see a new round of IEL mechanisms;
  • Australian governments have generally been supportive of IEL treaties (but not always!);
  • Australia’s current federalist system has complicated its commitments to IEL;
  • The EPBC Act of 1999 has not been effective;
  • a new generation of environmental laws is needed in Australia, including a federal environmental act, monitored by independent institutions.

Overall, with regard to environmental protection, Professor Stephens believes that decision-making should be taken away from politicians and placed into the hands of scientists and other experts.

Professor Stephens’s PowerPoint slides for the presentation are posted on the IALL website.

IALL 2019 Recap: Australian Indigenous Peoples and the Law

By Meredith Capps

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The panel at the Australian Indigenous Peoples and the Law program at IALL 2019.

On Monday, October 28th at 11:00 a.m., Thalia Anthony of the University of Technology, Sydney began the panel with her presentation titled Colonial Legal Histories and Indigenous Sovereignty.  Anthony described the concept of legal hybridity, and the historic tension between colonial jurisdiction and indigenous sovereignty.  She discussed the notion of ngurra-kurla embraced by the Warlpiri people, a philosophy embodying core elements of law land, law, language, skin, and ceremony, and how the Warlpiri utilize both compensation and shaming as punishment.  Recent policing of Warlpiri sacred sites in violation of its indigenous law provides an example of typical modern-day intracultural and intralegal conflicts.

Anthony discussed several significant Australian cases dealing with indigenous sovereignty, including:

  • R v Murrell (1836)–the Supreme Court of New South Wales (NSW) ruled that indigenous people are not “law-bearing people,” indigenous inhabitants subject to universal Anglo-Australian law;
  • Milirrpum v Nabalco & Cth (1971)–Supreme Court of the Northern Territories rejected a claim of native title;
  • Mabo v Queensland (No 2) (1992)–landmark decision of the High Court of Australia overturning Milirrpum, for the first time recognizing native title;
  • Walker v NSW (1994)–the High Court of Australia found that the legislature may pass general criminal statutes applicable to all persons;
  • Binge v Bennett (1988) & R v Buzzacott (2004)–NSW Supreme Court and Australian Capital Territory Supreme Courts dismissed concerns of racial bias in jury selection.

Anthony then discussed Australia’s incarceration of indigenous people, the most incarcerated group in the world.  Indigenous women currently represent Australia’s fastest-growing prison demographic.  Anthony characterized efforts to forcibly displace indigenous persons during the 18th century as “palliative carceralism” while in the 19th century, Australian authorities engaged in “protective carceralism,” asserting control over indigenous populations through missions and settlement.  Such efforts evolved into what Anthony characterizes as “welfare carceralism” and “penal carceralism.”  Indigenous communities are subject to a high level of policing on the streets, and greater levels of criminalization at each stage of the justice system (arrest, prosecution, and bail).  Indigenous young people are more likely to experience abuses such as torture while in police detention.  Despite efforts by the 1991 Royal Commission into Aboriginal Deaths in Custody, indigenous persons die at increasing rates while in police custody.  Anthony reemphasized that indigenous communities do not utilize prison as punishment, and highlighted the need for a hybrid domain embracing initiatives such as community courts and community justice reports.

In Protecting Indigenous Cultural Property, attorney Terri Janke described intellectual property protections for indigenous land, documentation, arts, and language.  She discussed international protocols such as the Negoya Protocol, WIPO provisions regarding traditional cultural expressions, and the UN Declaration on the Rights of Indigenous People, which assert rights, but these rights do not automatically translate into domestic statutory law in Australia. Janke highlighted challenges common to protecting cultural history in different spheres.  Copyright, for example, does not protect content such as oral history, which does not exist in a fixed format.  In the patent realm, co-sharing agreements can provide a mechanism for protecting indigenous knowledge in medicinal use of plants.  Janke discussed a few notable cases dealing with indigenous cultural property, including Milpurrurru v Indofurn, in which indigenous artists prevailed in a copyright suit involving use of their art in woven carpets, Bulu v R&T Textiles, rejecting the idea of communal ownership of copyright but finding that the artist owed a duty to the indigenous group whose work he represented, and ACCC v Birubi Art Pty Ltd, penalizing Birubi for sale of fake indigenous art in souvenirs.

Finally, Magistrate Sue Duncombe presented NSW Circle Sentencing and the NSW Youth Koori Court.  59% of the juvenile detention population is indigenous, and the Youth Koori Court, awarded a $2.7 million, three-year government grant, hopes to address this imbalance.  Its goal is not necessarily to reduce recidivism, but to reduce risk factors for offending, and though some participants have reoffended, many participants now live independently, obtain employment, and maintain custody of children. Juvenile offenders accepted in the program will engage in a suitability exercise where they learn program expectations, including developing of their own action and support plans, and compliance with monitoring and reporting procedures.  At sentencing, punishments may not exceed those the youth would receive in the criminal justice system, and staff acknowledge and incentivize progress.

IALL 2019 Recap: Pre-Conference Workshop–An Introduction to the Australian Legal System and Legal Research

By David Isom

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Larissa Reid and Fiona MacDowall present at the IALL Pre-Conference Workshop

This year’s IALL Annual Course Pre-Conference Workshop was titled “An Introduction to the Australian Legal System and Legal Research.” Held at the Parliament House of New South Wales on Sunday, October 27, the workshop was presented by Larissa Reid, Reader Services Manager at the New South Wales Law Courts Library of Sydney, and Fiona MacDowall, co-editor of the Australian Law Librarian. The workshop was as an excellent introduction to the law of Australia and a very helpful preparation for the sessions that followed. While I can’t do justice to the breadth and depth of their presentation in a summary of this kind, I have chosen to highlight those topics which I—as a non-Australian with little familiarity with the country’s history and legal system—found particularly valuable.

Reid and MacDowall began the workshop with an introduction to the Australian system of government and legal system. Australia remains a constitutional monarchy whose head of state is Queen Elizabeth II, represented locally by the Governor-General (currently David Hurley). It is a federal parliamentary democracy with a written constitution which took effect in 1901. Vast in area (just under three million square miles) but relatively small in population (slightly more than 25 million residents as of 2019), it consists of six states and two self-governing territories (as well as seven external territories and the Jervis Bay Territory).

The British colonizers of Australia applied the doctrine of terra nullius (“land belonging to no one”) to the land they settled—disregarding the Aboriginal peoples and their customary legal traditions—and established English law in Australia, making it a common law jurisdiction. Formal reception of English law began in 1828 in New South Wales (which then included what are now Queensland and Victoria) and Tasmania with the Australian Courts Act 1828 and continued in additional states and territories through 1911. After reception, any subsequent English legislation is inapplicable (though English common law was not fixed at such time). After reception, the Australian colonies had the authority to enact legislation of their own provided that it was not “repugnant” to the laws of England (under the Colonial Laws Validity Act 1865).

The passage of the Commonwealth of Australia Constitution Act 1900 joined the six Australian colonies as “one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland.” Organized into eight parts, the Constitution establishes three branches of government: a Parliament (consisting of a House of Representatives and a Senate), the Judiciary, and the Executive Government. The Constitution gives Parliament the power to legislate in enumerated areas (including but not limited to defense; interstate and international trade; taxation; marriage and divorce; immigration; and bankruptcy); the states have power to make laws in all other areas. While it contains no bill of rights, the Constitution explicitly mentions five individual rights: the right to vote; protection against the Commonwealth’s acquisition of a person’s (or State’s) property on unjust terms; the right to a jury trial; freedom of religion; and a prohibition of discrimination based on a person’s state of residency. Amending the Constitution requires approval from Parliament and a nationwide referendum (which requires a “double majority”—approval of a majority of voters nationwide, as well as a majority of voters in a majority of states).

Australia has both Commonwealth courts and state/territory courts; the court of last resort for both is the High Court of Australia. For Commonwealth courts, the principal intermediate courts are the Federal Court and the Family Court, and the trial courts are the Federal Circuit Courts. States and territories have Supreme Courts; beneath them are the District or County intermediate courts and Local or Magistrates trial courts.

Two major free resources for finding legislation across all Australian jurisdictions are Lawlex and AustLII. Government websites (both for the Commonwealth of Australia and for individual states and territories) are also important free resources; for the Commonwealth, the websites for the Federal Register of Legislation (for texts of legislation and government gazettes) and the Australian Parliament (for bills, explanatory memoranda, texts of parliamentary debates, and committee reports) are particularly useful. For caselaw, AustLII and the partly-free/partly-paid platform Jade both include judgments from courts, tribunals, and commissions, as well as citators. Court websites (both for the Commonwealth and for individual states and territories) are also useful sources of the texts of judgments; for Commonwealth courts, see the websites for the High Court of Australia, the Federal Court, and the Family Court.

Legally significant decisions are published in law reports; the most authoritative are those officially selected as authorized law reports, which exist for both the Commonwealth and individual states and territories. For the High Court, the authorized report series is Commonwealth Law Reports (CLR), available in part on AustLII and Jade and in full on Westlaw AU. The authorized report series for the Federal Court is Federal Court Reports (FCR), available on Westlaw AU. Access to authorized reports for states and territories varies; some are available at no charge via AustLII, while others are only available via Westlaw AU or Lexis Advance Australia.

A wide range of secondary sources specific to Australian law (including encyclopedias, dictionaries, looseleaf services, and textbooks) are available, though many are exclusive to Westlaw AU or Lexis Advance Australia. Useful free secondary sources include Trove (a service of the National Library of Australia, which includes archived government websites and gazettes as well as non-law materials); the Monash University guide to legal abbreviations; the Australian Guide to Legal Citation, available as a free PDF from the University of Melbourne; and the Australian Legal Scholarship Library, available on AustLII.

Second Call for IALL 2019 Bloggers

sydneyAre you heading down under for IALL 2019 in Sydney?  We’re still looking for bloggers to recap some of the program for the blog.  We’re had a few volunteers, but are looking for a few more, particularly for the following sessions, but are happy to have coverage of any session you’re planning on attending:

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Australia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.

Call for Bloggers: IALL 2019

volunteerAre you heading down under for IALL 2019 in Sydney?  We’d love to have some recaps of the program for the blog.  We’re particularly interested in the following sessions, but are happy to have coverage of any session you’re planning on attending:
Sunday, October 27th
1:30-4:30pm:  Pre-Conference Workshop:  An Introduction to the Australian Legal System and Legal Research

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy
11:00–12:30pm:  Australia Indigenous People and the Law

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia
11:30-12:15pm:  Refugee Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Austrlia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.

The Luxembourg Space Resources Act and International Law

By Charles Bjork

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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.