Thursday 14 May 2015

[UPDATED] Why the Emergency Asteroid Defense Project (EADP) will not fly, imho

[editted and expanded May 15, 2015, to reflect on the content of the legal report commissioned by EADP. Edits and expansions are in italics between square parenthesis, to differentiate them from the original first version published]

The danger of an Asteroid impact is a real threat. To that, everybody agrees. It is however also (and I am not alone in stating this) a threat that has been, and is, overhyped by some.

Lately, a number of publicly very vocal groups have jumped on the bandwagon of  'asteroid defense'. Within the community of asteroid researchers (of which I am very modestly a member -  I search for and have actually discovered Near Earth Asteroids), some of these groups raise eyebrows and generate a somewhat uneasy feeling. Several people in our small community feel that some of these groups, often consisting of people considered outsiders, hijack the issue and overhype a threat in a way that is detrimental to the real issues and complexities involved.

One of the newest initiatives in this game is the Emergency Asteroid Defense Project (EADP). EADP wants to rescue us from a potential asteroid on a collision course with Earth. Note: there isn't such an asteroid in the picture yet.

On their website, EADP presents itself as a Denmark-based NGO that wants to develop and build an asteroid defense system for this purpose. The defense system EADP wants to build consists of two parts:

(1) a kinetic impactor, that will create an impact crater on the target asteroid;

(2) a small nuclear bomb that will next be steered into this crater and detonated, shattering the asteroid into smaller pieces.

Sounds feasible right?

EADP has just created a lot of publicity by starting a crowd funding initiative on Indie-gogo to jump-start their plans. They aim to raise money for a feasibility study and then launch their first test mission as early as 2017.

Mind you: to succinctly make clear what they propose, they propose to launch a nuclear bomb and detonate it on another celestial body. Or at least: develop the technology for it.

Now, IANASL (I Am Not A Space Lawyer). But apart from the worry that it is a private enterprise rather than a (consortium of) Nation States or the UN undertaking this: in my humble opinion, this plan runs foul of at least two international treaties, in a way that will not be easy to resolve and should not be glossed over.

EADP so far appears to do however . You should realize this before you toss your money to EADP.

[note added 15 May 2015: there is actual a legal report on their website - not their Indiegogo page - which is a bit buried, addressing these issues. From the contents of this report and its major recommendations - especially the first one -, it is clear that the issues raised should not be neglected. This is important for a crowd funding campaign, as this is information about the feasibility of the project and attached problems that potential backers need to know in order to decide whether to back the initiative. This report should have been a primary part of their Indiegogo appeal page]

For the plans of EADP to become reality, they need to:

(1) have c.q. develop a nuclear explosion device (i.e. a nuclear weapon);

(2) develop a kinetic impact weapon;

(3) find someone willing to launch these.

With regard to point (3), on their website EADP mentions the US commercial launch corporation SpaceX as an option. I have my doubts about their time-plan however: 2017 seems very soon to commission a launch. Building and launching rockets takes time [let alone tackling the political and licensing issues]. There are moreover other problems to employing SpaceX, discussed below.

Kinetic impact missions are not new. The technology for this already exists. Witness for example NASA's Deep Impact mission and LCROSS mission.

The problematic aspect is the nuclear payload that is employed next. And again, the technology is not what is most problematic here. The real problems are geopolitical.

EADP is Denmark-based, and they are an NGO (Non-Governmental Organization, i.e. a private enterprise of citizens). Denmark as a country itself has no nuclear weapon capability - and it is very doubtful that a sane government would put that capability at the hands of an NGO anyway, would they have it. Denmark also currently doesn't have their own space launch capability (but they do take part in ESA, which has). So they would be dependent on foreign countries for a launch capability (e.g. the US SpaceX, or ESA as a European organization, or Roskosmos in Russia, JAXA in Japan or perhaps the Chinese), and EADP would either have to develop/build the nuclear device themselves (but: see below), or obtain it from a country that does have a nuclear capability.

Here, they face their first problem: the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The nuclear powers US, UK, France, Russia and China all signed this treaty. They would violate this treaty would they help EADP to a nuclear explosive device. They would also violate it by simply providing the technological aid for it (i.e. helping to develop it).

Likewise, given that Denmark - although not possessing a nuclear capability on its own -  is a signatory to the treaty as well, the Danish government can not allow EADP to develop a nuclear explosive device themselves, as that again would breach the treaty they signed. 

[note added 15 May 2015: while the legal report commissioned by EADP discusses the Partial Nuclear Test Ban Treaty (NTB), not a word is being said about the NPT).

Israel, Pakistan, India and North Korea also possess The Bomb and did not sign the treaty. Yet, it is highly doubtful they will openly share their technology with EADP. And if they would, they would get in severe trouble with the other nuclear powers. Handing your nuclear technology to private organizations in another country is the kind of thing that starts a war, as it might lead to nuclear technology falling into the wrong hands. The USA has invaded and bombed countries for less.

Moreover, EADP would still get in trouble with the fact that Denmark, the country in which they are based, has signed the treaty. Note that EADP need not actually build the actual device, for this to be problematic.

So there you have one problem with the plans of EADP.

But as if that is not enough, there is a second problem: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of the United Nations (also known as the 'Outer Space Treaty').

This treaty has been signed by many countries, including Denmark and the United States. It regulates what can and can't be done in Outer Space and on celestial bodies other than Earth.You can find the full text of this treaty here. Important to realize, given that Denmark signed the treaty and EADP is a Danish-based NGO, is that the treaty unequivocally states that:

"States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities"

In other words: EADP, as a Denmark-based NGO, cannot do as they wish: they are bound by the treaty signed by the Danish government. Even if EADP would outsource the nuclear device and/or the launch to another country, Denmark (plus the other countries involved in the launch) is responsible. Basically, this means that under the Outer Space Treaty, they can't allow it (just like they can't allow it under the Nuclear Non-Proliferation Treaty).

Of relevance are also provisions 2 and 3 of article III of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies that is part of the Outer Space Treaty. These state that (and note that while the texts below talks about the Moon, the preamble to these clauses makes clear it concerns not only the Moon but all other celestial bodies other than Earth, i.e. including asteroids):

States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon.
The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden

In other words: launching, let alone detonating, a nuclear explosive device to and on another celestial body (like an asteroid) is simply forbidden. In fact, I think Space Lawyers could get into a real heated argument whether testing with a dummy payload already breaches this clause of the Outer Space Treaty, as a test with a dummy load is still a test, i.e. it relates to the 'testing of any type of weapon' in the clause above. [Von der Dunk, legal advisor to EADP, thinks it is not].

These are questions that, in an international diplomatic environment, therefore should not be taken lightly (and on which different countries and different lawyers might take different viewpoints).

[Von der Dunk basically says the same in his report: at various points in the report it is stressed that "in view of the geopolitical sensitivities" the EADP initiative requires a firm open discussion on these points from a  very early stage onwards. i.e.: that these geopolitical sensitivities should not be underestimated (which is exactly the main point which I argue here!). This is also the first of the main conclusions at the end of the report (p. 32): "It would be recommended for the EADP to:  * Address from an early stage onwards and in a continuing fashion the risk of ‘political fall-out’ outside the United States which EADP missions might give rise to"]

Point is: while it would be possible that countries united in the United Nations would, in the context of the United Nations Assembly, perhaps lift these provisions in the case of a real, imminent asteroid impact danger (but: don't put up your hopes high, folks!), there is imho no way a private enterprise like EADP would get this off without such a real, imminent danger. [again, Von der Dunk appears to actually  agree on this in his report: lifting of certain treaties is seen as feasible by him in case of an "emergency situation", i.e. a real imminent threath]. It is highly, highly unlikely that they would get any country to cooperate with a test mission for this purpose (which is what they are fundraising for) as, even with a dummy load, this basically still is a weapons test in Space (or at least could be seen as this by third parties) and hence diplomatically a very sensitive issue.

Now, if you pose this case to space lawyers, they will tell you that the wording of the Outer Space Treaty is ambiguous. There is also the question, whether a nuclear explosive device to blow up an asteroid should be regarded as a weapon. There is discussion possible about that [e.g. Von der Dunk thinks it isn't necessarily so. ]. But that is not the point. Or rather: it is.

Countries tend to be suspicious of each other's intentions when doing outlandish things like this. Some countries might see it as a covert military space weapons test. Remember, for example, how the shootdown of the USA 193 satellite (an imminent [artificial] impact threath from earth orbit according to the US government) was and is widely regarded and criticized as a covert ASAT test by other countries. The USA itself has expressed significant worries about recent Chinese activities in both near and deep space (including experiments the Chinese themselves present as being purely "scientific") which it considers as covert Space Weapon tests. The same is true for US and other countries' concerns about the true intentions behind the North Korean and Iranian space programs.

This gives you an idea about how sensitive this all is. Strapping a nuclear load (even if it is a dummy) onto a rocket capable of reaching and leaving Earth orbit, basically makes it an ICBM test. EADP is therefore seeking to develop technology that by all means could be considered ICBM technology by some countries. It is clear, that international arms treaties and the NPT get relevant here. Thinking they do not, is irrealistic.

EADP mentions SpaceX. Note that SpaceX, as a US company, is bound by the treaties the USA signed. They cannot launch a nuclear device (or even a dummy test load of such a device) for EADP without the US Government's approval, and the US Government in principle cannot do this without approval of the international community (represented by the United Nations) as they would otherwise breach the Outer Space Treaty. I also doubt that the US government would be okay with a private US company launching a technology test that ultimately includes a nuclear explosive device developed by a private entity in another country. This is stuff where ITAR (the International Traffic in Arms Regulations) is potentially relevant, and the US Government has been a pain in the neck with respect to ITAR issues even to organizations like NASA.

These are things that, in the face of international geopolitic realities, should not be glossed over lightly. You should not think you can just happily build and test technology for a kinetic and nuclear impact device, expect another country to launch it for you, and think other countries will be okay with that and believe Denmark is out to Save the World. It just doesn't work that way. Not even for Denmark, as much as I love that country myself.

Note that the point also isn't whether you actually build and design the nuclear device. EADP is now (on twitter, after critical questions) stressing that they don't want to test the nuclear device but leave that to "specialists"They emphasize that they "must stress that handling nukes is not our job but the government's" (they don't say which government, by the way). They also said that "we will not be the decision makers but merely the providers and the fundraisers for the technology".

But, besides that it is odd to simply waive away testing the most crucial part of the proposed mission and technology, it is besides the point that they say they only develop, not actually build a nuclear device. Developing the technology meant to bring a nuclear explosive device into space, already is something that is (or should be) reason for concern.

This brings us to the real issue at hand. This issue is not whether some treaties are outdated and are at odds with reality and a hindrance to legitimate activities in space (they are). This is not about whether we should or should not try to do something in case we detect an asteroid on a collision course, either.

The real issue is that EADP is fundraising for a project, without having done the necessary diplomatic groundwork.

And that is where the real issue is. This is not an issue of technology. It is not an issue of money. It is a diplomatic issue, and the EADP initiative currently does not solve this. Even though it is the first thing they have to overcome for their plans to become reality.

[added 15 May 2015: Indeed, this also seems to be the explicit view of Von der Dunk in his legal report for EADP. The very first point of his final recommendations (p 32) reads:

"Address from an early stage onwards and in a continuing fashion the risk of ‘political fall-out’ outside the United States which EADP missions might give riseto, in particular as regards the use of NEDs in actual threat mitigation missions, byway of information of and appropriate consultation with the other states of the world, the United Nations and the global scientific community and by stressing the clear benefits for and interests of all mankind and all states in the EADP mission"
He also clearly warns (top of page 32) that not everybody might share his assessment that the EADP plans are not necessarily running counter to treaties like the NTB and OST:

"This is not to say, however, that in the present geo-political reality such a legal analysis would be globally shared, and efforts should be undertaken at the international level to minimise the potential for any ‘political fall-out’ that might result from the intended use of NEDs in outer space in such emergency scenarios, preferably by way of open and transparent information of, and as necessary consultation with, the other states of the world, the United Nations and the global scientific community"

i.e., on these points, the EADP commissioned Von der Dunk report actually confirms what I argue here: that geopolitically, this is a very sensitive issue. He also specifically mentions that circumnavigating these sensitivities takes a lot of time and diplomatic effort. I observe that this in turn is something which is nowhere reflected in the time-line put forward by EADP in their Indie-gogo appeal]

Their crowd-funding initiative hence seems extremely premature, and their timeplan is overtly ambitious given the realities of the diplomatic (apart from the technological and logistic) trouble they'll have to face.

What worries me, is that in their crowd-funding pitch to the public, they nowhere mention these fundamental issues. There for example isn't any statement that the Danish government is positively supporting all this (I have put out this question to EADP by twitter but received no answer yet). Nor on how they see their plans in the context of the various international treaties. [a legal report is included on their company webpage, but nothing of this is raised in their Indie-gogo appeal]

One of the EADP partners, Remco Timmermans, in answer to my question, simply claims on twitter that "This is a private enterprise. No government approval needed to do a technical design study".

Again, IANAL, but I highly doubt this is true. Private enterprises are not exempt of complying to the international treaties which their Governments sign, and the ramifications of such treaties are usually signed into the law of the signing country.

[Von der Dunk in his report does not discuss how this pertains to a technical design study, but makes very clear that government oversight indeed pertains to an actual space mission: "First, states are going to be held internationally responsible for any potential violation of international law resulting from space activities also if conducted by private entities. Further to such international responsibility, the ‘appropriate state’ would then be actually required to ensure “authorisation and continuing supervision" of such activities"].

So yes: government approval will be needed, given that Denmark signed treaties that (a) stipulate that Denmark does not acquire nuclear weapons technology on its own, nor acquires it from other countries; and (b) stipulate not to test weapons in space.

As pointed out,  the Outer Space Treaty explicitly states that Governments are responsible for what non-governmental organisations based in their country do in Space. I also doubt the Nuclear Non Proliferation Treaty would allow loopholes of the kind expressed by Timmermans. Just have your nuclear weapons developed by a private enterprise rather than the State and all is okay? That Kim never thought of this!

So I would expect the Danish government to take a keen interest in this. Here is a group of private citizens developing technology for a nuclear space mission, and indicating they will hand this technology to a third, foreign party for the operational part. That should raise alarm bells.

In another twitter answer to me EADP does say that the "legal raport [sic] and groundwork has been done" but here is the point:

To their audience of potential crowdfunders they do not say a thing about all these international legal and diplomatic issues involved.

And with whatever they may say on Twitter, I see no indication that these issues have been solved yet [added May 15, 2015: also not after reading Von der Dunk's commissioned report, which makes very clear that these geopolitical sensitivities should not be underestimated and demand action and openness from a very early stage onwards].

Again: IANASL (and I would like to see some independent Space Lawyers chime in here!). But you don't have to be a Space Lawyer to see the trouble ahead.

The whole crazy idea has elements in common with the much discussed Mars One project: a bold, even downright crazy plan that however speaks to the imagination (the project had immediate staunch supporters), and which National governments so far didn't dare to tackle yet. Ad to this a lot of publicity, an easy glossing over very real political problems involved, and presenting an unlikely timetable. And of course, having it all in the end primarily revolve around solliciting money from the public.

If EADP doesn't want to become the next Mars One and wants to be taken serious, they will have to explicitly and honestly address these issues first: their plans in the context of national and international agreements, laws, and geopolitical reality.

And yes, it sucks that the survival of humanity is held in suspension by such geopolitical realities. But what is new under the sun here? Look at how we (not) handle global warming.

[final notes added May 15, 2015: 

- EADP on twitter berates me for focussing on the nuclear part of the project. That is their good right of course: but I find it disingenious how they try to separate the issues around a nuclear explosive device (NED) from the rest of their project, given that a NED is an integral part of the eventual deflection technology they want to develop and test. In my opinion, you can't seperate the issue of launching a NED from the current discussion.

- I want to stress again that my main point is the apparent easy way with which EADP, in their Indie-gogo appeal towards potential financial backers, glosses over the geopolitical realities pertinent to their plan. It is my firm position that this is not correct: in order to make a fair judgement on whether this plan is backable, potential donors need to be honestly provided with information on the potential difficulties to be encountered as part of the endeavour.]

(I thank Brian Weeden for some comments on a draft of this post. All opinions expressed are however solely mine)

No comments: