ASTEROID MINING AND THE LAW
The current interest and investment in asteroid mining made me curious about the laws which might apply to extraterrestrial mining operations. Not surprisingly, there isn’t a huge body of law in the area — yet. After doing some research, I became particularly interested in a hypothetical scenario: what happens if an asteroid mining company launches a spacecraft and it is destroyed in space, either by accident or intentionally, by another spacecraft (belonging, for example, to a foreign country)? What recourse does the asteroid mining company have? The following is a fictionalized account of such an incident which explores the related legal issues. Call this my second entry in a series of legal science fiction pieces.
SPACE ROCKS
Editor’s Note: This is an excerpt from the unpublished journal of Thaddeus “Thad” Stokes, an early space entrepreneur who left his personal papers to the University of Pennsylvania. It is included in this anthology on the history of space exploration to give the reader a sense of the legal and competitive issues that concerned participants in space markets during the 21st Century.
The first time I met the gentleman I came to call the “Space Lawyer” was in one of those conference rooms that you find in Class A office buildings in almost every city on the planet. Every surface is either plate glass or dark wood, polished to a high sheen and giving the impression that it must belong to a firm which leaves no detail unattended and has zero tolerance for imperfection. Although I was impressionable then, I was not so impressionable as to think that the gloss meant anything other than the firm had enough money to be in a high-rent building with a very good cleaning staff.
For all I knew, hell itself could be breaking loose elsewhere on the floor. But here, in this room, I was waiting for my then-boss to come back from the restroom, while the Space Lawyer stood with his back to me and peered out on what happened to be Manhattan. We had already shaken hands. Once that formality was out of the way and my boss had wandered off to do his business, the Space Lawyer had apparently decided that looking at the city was more interesting than examining me. I couldn’t blame him.
He spoke to the window.
“What’s your background?”
“I’m a business analyst,” I replied.
“Right. MBA?”
I thought I detected a faint note of disgust in his voice.
“JD/MBA.”
“Ah,” the Space Lawyer brightened. His close-shaved head shined even in the muted light of the conference room. “Then some of the legal nuances of our discussion may not be lost on you.”
A backhanded compliment if ever there was one. My boss chose this opportune moment to return, ending any further uncomfortable conversation.
The Space Lawyer took a seat across the table from us and opened his hands in a welcoming gesture.
“Give me the summary, John,” he said.
My boss opened a folder and took out a thin sheaf of papers, interspersed with staples. He handed packets to me and the Space Lawyer, keeping the last for himself.
“You can flip through those, Evan,” my boss began, “but the short is that we launched a mining spacecraft, christened ‘Dragonfly,’ which was intended to rake and bring back the metallic rubble from the surface of a near-earth asteroid called Didymos. You can see an image of Dragonfly on the second page there. Unfortunately, Dragonfly never reached Didymos. About 2 minutes before we lost contact, one of Dragonfly’s cameras recorded the image on page 3. It’s a satellite and awfully close, maybe a half mile.”
The Space Lawyer studied the image. “Not branded with any flag?”
“No,” I responded, feeling pressure to justify my presence. “And we checked the satellite registry,” I added. “There was nothing listed that should have been remotely close to Dragonfly.”
“And yet…” the Space Lawyer smiled, his implication obvious. Then he looked upward, tilting his head and signaling an apparent shift in the direction of his thinking. “But why does it matter?” He asked. “U.S. law requires a commercial spacecraft to be insured, so I assume you carried insurance for Dragonfly. I also assume your insurer paid?”
“Yes.” My boss was about to continue but the Space Lawyer cut him off.
“So, it’s the insurer’s worry now.”
My boss shook his head. “We want to recover for the lost opportunity. The money we would have made from mining Didymos. The insurer isn’t going to go after anyone for that. We can’t get another spacecraft up there for six months at least. Losing Dragonfly has cost us a lot of money.”
The Space Lawyer smiled, no doubt knowing that this was our real purpose in seeking him out.
“So your operative assumption is that this anonymous satellite took Dragonfly out, either by collision or by some other offensive action.”
We nodded.
“Reasonable, but not certain,” the Space Lawyer said. “Have you checked with NASA to see if they tracked anything, even unregistered, near Dragonfly?”
“Neither NASA nor the Department of Defense was tracking the area at the time.” My boss shrugged, as he relayed this unfortunate bit of news.
“Have they tracked any debris in that area, since you lost Dragonfly?”
“We’ve asked but haven’t gotten a response yet from NASA or DOD.”
The Space Lawyer gave a slight nod. “I don’t recognize the design,” he muttered.
“Nor do we,” I jumped in again. “As far as we know it’s not one of our competitors’ models.”
“Hmmph, this is too old to be in development now,” our host observed. “Probably repurposed or hijacked. But by whom?”
The question was rhetorical and we waited for the Space Lawyer to continue. He soon did.
“We’ve got some experts who should be able to identify this,” he began. “Send me the original image file from Dragonfly.”
“Sure,” my boss agreed.
“Once we’ve identified the origin, we’ll at least have a starting point. It would also help to know what you planned to mine on Didymos.”
This was my area. “Spectral analysis of the asteroid indicates the presence of significant quantities of nickel, iron, and cobalt, a large percentage of which is cobalt. If Didymos could be brought back in its entirety to earth, which it can’t because of legal and technological hurdles, it would have an estimated value of $62 billion, based on the current market prices of the metals I just mentioned. If the depressing effect of dumping Didymos’ metals on the markets at once is accounted for, then total estimated value in today’s dollars is still $50 billion.”
The Space Lawyer didn’t seem impressed. No doubt he was used to large numbers being tossed around by companies like ours, well aware that we would be lucky to realize a fraction of the potential profit stored in Didymos. He was probably more concerned with whether we’d be able to pay his bill, which might in itself become astronomical. “Thanks,” he said, “I always like to understand the financial angle.”
With that, the meeting ended. There was nothing more we could do.
***
A few weeks later we got a call from the Space Lawyer, which soon led to us resuming our positions around the same conference table.
Once seated and with a minimum of preamble, the Space Lawyer delivered his piece. “We’ve identified the satellite which Dragonfly imaged. It’s BDR-made,[1] one of a possible three of the same design launched close together in the early 2000’s.”
“Ancient,” my boss interrupted.
“Relatively,” the Space Lawyer continued. “I say one of three because BDR put up and registered three essentially identical units. They were communications satellites. All of them decommissioned around 2015. We’re still not sure which one of the three this one is.”
“So we go after BDR,” my boss said, adopting his normally bloodthirsty manner.
The Space Lawyer held up his hand in a “stop” gesture.
“We’re not there yet,” he said quietly. “First of all, your evidence that this satellite took out Dragonfly is not compelling.”
“Come on,” my boss pleaded.
“A picture taken of a nearby satellite minutes before Dragonfly disappears? The inference being that this strange satellite destroyed your property? That requires something of a leap of the imagination. Not a large leap, but still a leap. And cases which require judges and juries to make leaps aren’t good.”
My boss sat with his arms crossed.
After deftly lowering client expectations, the Space Lawyer was now ready to toss us a bone. “But let’s get away from the merits for a minute,” he said. “Who would want to destroy Dragonfly?”
“It doesn’t seem like that long a list,” I said.
“Does it include BDR?”
I thought about this. “Always possible from the standpoint of wanting to cripple a foreign company but not likely from a purely economic perspective.”
“I agree.” The Space Lawyer smiled. “The primary market-moving material you expected to find on Didymos was cobalt. BDR doesn’t appear to mine cobalt. Cobalt is, however, a primary revenue source for another country: SPQ.[2] SPQ, in fact, produces roughly 50% of the world’s cobalt. So, if Dragonfly was to bring back a substantial amount of cobalt, it could have a substantial negative effect on SPQ’s economy.”
My boss slapped his hands down on the table. “SPQ used a BDR satellite to take out Dragonfly? Do they even have the technology?”
“Maybe, maybe not,” the Space Lawyer said. “They could have the technology to hijack a satellite. They could have hired someone, a country or perhaps freelancers, to hack and hijack the satellite. Who knows, maybe BDR even agreed to do it for reasons of their own, economic or otherwise. Or maybe, it was none of the above. It was just a competitor.”
“Now how are we going to figure out which one of those possibilities is the right one?”
The Space Lawyer smiled. “We go after BDR.”
My boss threw up his hands. “Isn’t that what I said?”
“I think it’s important we work through the process,” the Space Lawyer said, as if talking to an impatient child. “The Outer Space Treaty of 1967, ratified by both the U.S. and BDR said that celestial bodies such as Didymos were free for exploration and use by all mankind. That treaty, of course, is the basis for your company’s right to mine Didymos, as the U.S. government subsequently determined that the word “use” in the treaty includes the right to extract and possess resources obtained in space. In 1972, various countries, again including the U.S. and BDR, entered into a liability treaty governing damage caused in space. The short version of that treaty is that countries are liable for damage they cause in outer space if they were negligent.”
“I’d say that intentionally killing Dragonfly is more than negligent,” my boss interrupted.
“Indeed,” the Space Lawyer said. “The only problem is that the treaties I just mentioned only apply to countries, not citizens of countries or private companies like yours.”
“Huh?” my boss grunted.
“That means you can’t directly make a claim under these treaties. You either have get the U.S. government to make the claim for you or sue BDR in U.S. court.”
I groaned inwardly, having a sudden vague recollection from law school of how difficult it was to sue foreign governments. My boss wasn’t burdened with this knowledge, however, and thought we’d arrived at a solution. We hadn’t, as the Space Lawyer then explained.
“Both paths present some difficulties. We might not be able to get the U.S. government to make a claim for you through diplomatic channels against BDR. And, even if we could, the process is going to take a very long time. You might not be in business when it all gets resolved, if it ever does.
“Unfortunately, filing a lawsuit isn’t too attractive either. BDR has foreign sovereign immunity in U.S. courts. Meaning that it can’t be sued, unless an exception applies which would strip its immunity. I frankly don’t see any such exception here.”
“So we’re up the creek,” my boss summed up, looking glum. “What do you suggest?”
The Space lawyer was quiet for a moment. “I think we draft the complaint against BDR, for filing in federal court. Before we file, I’ll share the complaint with a contact I have at the State Department. I’ll tell her that we are prepared to file the complaint and push a lawsuit forward, but would prefer the dispute gets resolved through diplomatic channels. I suspect that, even if the federal government won’t submit your claim under the 1972 liability treaty, it will communicate with BDR. That could be valuable for us.”
“How so?” I asked.
“Well, BDR might admit it was their satellite that destroyed Dragonfly but say it was your fault. Or it could deny involvement but point the finger at someone else, maybe even help us to point the finger at someone else. Or BDR might say drop dead, which could be a sign that its involvement is something other than accidental. Best case, BDR offers some sort of settlement. Whatever happens, we learn a bit more.”
I nodded.
The Space Lawyer smiled. “I’ll need a $100,000 retainer. Once I have it, we’ll start drafting the complaint.”
Editor’s Note: The remainder of this journal entry has been omitted, as it contains a brief discussion of budgeting for the legal dispute discussed in the excerpt and not likely to be of interest to the general reader.
[1] Editor’s Note: Out of apparent caution, Stokes used a code-name, BDR, for the country at issue. We can infer from the remainder of the excerpt, however, that BDR was a signatory to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967), also known as the Outer Space Treaty of 1967.
[2] Editor’s Note: Again, Stokes used a code-name, SPQ, to refer to this second country.
