The first thing we do, let’s kill all the lawyers*

The legal status and ownership of resources harvested from space are unclear. How does such uncertainty affect our plans to exploit them?

The near-Earth asteroid, Eros.

There’s quite a buzz in space policy circles over the recent announcement of the creation of a new company that intends to survey, study and mine near Earth asteroids (NEAs).  Given my previous advocacy regarding the desirability of learning how to extract and use off-planet resources, many people have asked me to weigh in with my opinion of their proposed business plan.  I’d like to frame my remarks around Michael Listner’s recent piece on the possible legal issues involved in the plan as he has illuminated an interesting angle on the project.

The roll-out of the business plan of Planetary Resources Inc. made a big media splash, as is typical for many of these “New Space” private operations.  Close examination reveals the outline of a plan, but the technical details are rather fuzzy.  Given that no business should reveal too much detail about their plans lest they lose their competitive advantage, the company’s reticence is not too surprising.  To summarize it in broad terms, the plan is to launch a space-based telescope, dedicated to identifying candidate NEAs; at least initially, the main interest seems to be metal asteroids (presumably those rich in metallic elements of economic value, including gold and platinum) and water-bearing asteroids.  The former would have significant economic value in terrestrial markets, providing the possibility of high, near-term payback for investors.  The latter would have value for future in-space operations and could be sold to both national governments and to the private sector, presuming that such markets develop.

The next step involves sending robotic prospectors to the best candidate bodies to survey them, determine their physical, chemical and mineralogical make up, and identify the best targets for resource extraction.  The last step involves snagging a small asteroid (possibly several tons in total mass) and tow it back to cislunar space where Earth-based, teleoperated robotic machines can process and refine the material for sale.  This last step contains the most open questions.  Although such a mission can be envisioned in principle, it is technically out of reach at the present time.  However, I envision no particular show stoppers here – practical details of the material processing and handling these materials in microgravity are the biggest unknowns, but even these issues can be addressed and mitigated before any NEA is retrieved through the execution of some carefully designed experiments in low Earth orbit.

But then what?  This – as always is the case when human endeavors begin in earnest – is where the lawyers come in.

Listner’s article suggests that the proposed activity of capturing and processing an asteroid falls outside the current bounds of any outer space legal regime.  He recalls that the terms of the 1967 Outer Space Treaty (to which the United States is a signatory) prohibits claims of national sovereignty over extraterrestrial objects.  Space mining companies will be subject to the laws of the nation in which they are incorporated and thus, bound to the terms of any international treaty that nation has ratified.  While national ownership of outer space assets is prohibited by the 1967 treaty, the treaty is silent on private ownership.  Thus, the treaty is open to interpretation and subject to the philosophical and economic predilections of the parties involved.  One thing is certain however – if anyone ever does this, they are guaranteed to face protracted litigation that will no doubt take years (and many billable hours) to wind its way through the courts.

Listner goes on to describe issues with liability, mostly in relation to possible damages caused by future space operations or to existing space-based assets.  However, other more alarming scenarios are possible (e.g., suppose a retrieved NEA collides with the Earth during its arrival in cislunar space?)  Although no specific conclusions are drawn, the foreshadowing is a prerequisite for private companies to post a surety bond, one potentially of enormous scale.  If nothing else, such a requirement would certainly put a crimp in many new commercialization plans.

The infamous (at least in space circles) Moon Treaty is the last legal issue discussed by Listner.  In brief, this treaty prohibits private ownership of space bodies and demands that any profits from resource extraction from these bodies be “distributed” amongst the nations of the world.  This document was submitted to the United States Senate in 1980 for ratification and was defeated, thanks to a vigorous educational campaign by the L-5 Society.  Thus, thirty-two years ago, the United States (and also other major space faring nations, including Russia and China) rejected the Moon Treaty.  However, from the standpoint of most lawyers, the treaty has been ratified by 17 nations, giving it the full force of international law.  Considering the multinational make-up of many companies and that their corporate assets can be frozen or in some extreme cases seized (sometimes for entirely specious or arbitrary reasons), the legal status of the use and ownership of extracted space resources must be considered seriously.

Where does this legal confusion leave the prospects for the economic development of the Solar System?  That is unclear at the moment.  In broad terms, business does not like legal uncertainty to a degree usually in direct proportion to the amount of money involved.  For both technical and legal reasons, it is highly unlikely that there will be a “gold rush in space.” The technical issues are substantial (particularly for the Planetary Resources Inc. plan) but the legal ones are no less so.  In part, this is why I favor making the determination of how to extract and use off-planet resources a central goal of the American civil space program.  Note well: I do not say that we should turn NASA into a space mining company.  Rather, the role of government is to undertake technically risky ventures with the aim of determining how difficult they might be and to settle any thorny legal issues that may arise.  Questions of international law can only be addressed and settled by national governments – through agreements, treaties, new law and if need be, by stronger actions.  No private sector corporation has this inherent ability – only national governments can resolve these issues.  If such issues are resolved, the private sector can then successfully proceed and grow their businesses and governments will profit too.

I applaud both the vision and the chutzpah of Planetary Resources Inc.  For now, their plan to launch and operate a space-based telescope to map asteroids and locate promising prospects is a good start.  They may even manage to eventually send a probe of two for a close-up examination of a couple of NEAs.  As for the last piece of their plan, at this writing, color me skeptical.

* Henry VI Part 2, Act 4, Scene 2.  Yes, I am aware that lawyers claim that this phrase is taken out of context (i.e., it is actually an ironic assertion that if one wants a poorly run, bad society, eliminate the rule of law), but it is simply too good not to use here.

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