Land on Mars, a round-trip ticket – half a million dollars. It can be done.
– Elon Musk
The latest addition to the NASA family on Mars, the Perseverance rover, landed on the 18th of February 2021 at about 9 pm UK time, using a heat-shield – parachute -sky-crane landing system that allowed it to go from 5000 m/s at 160 km altitude to a gentle touchdown on the surface in “seven minutes of terror”. This is the latest in a series of probes to have arrived in recent weeks on the red planet.
The first orbital probe of the United Arab Emirates, HOPE, entered Martian orbit on February, 9th 2021, while the Chinese probe+rover Tianwen-1 entered the Martian orbit on February 10th 2021 and should remain in orbit for few months, before dropping the rover, potentially becoming the second nation to set a robotic foot (or wheel) on Mars. To this busy landing schedule we can add SpaceX’s, whose declared plans are to bring 1 million humans to Mars within the next century. The sky above Mars is getting crowded. Should we rethink our space law treaties?
Previously on “House of Mars”
Started as a low-key, failure-prone business (the first missions to Mars, launched in the 60’s, never reached their target), Mars exploration in 2021 has reached a historical peak, with 10 active missions, including eight probes in orbit and as we write two rovers on the ground. NASA-JPL has landed five Martian rovers, but only Curiosity (landed in August 2011) and Perseverance are currently operational.
The US has always been in pole position for Martian exploration: over the years they have launched 22 missions (of which only 4 have failed) and they currently manage the majority of the public relations on the red planet. The historical rival family, the former Soviet Union now Russia, although having tried almost as many as 19 times as the US to launch a probe to Mars (depending on how you count them), but have had only 6, sometimes partial, successes. In the past decade, the political situation around Mars has expanded to make room for other Montagues and Capulets interested in the game. Of the eight probes in orbit at the moment, two are from the European Space Agency (the Mars Express, landed in 2003, and the ExoMars Trace Gas Orbiter, the result of a collaboration between ESA and Russian Roscosmos), one is Indian (the Mangalyaan) and since the beginning of February there are also the first United Arab Emirates and Chinese probes. On the commercial side, SpaceX’s Starship was designed to carry a cargo and crew to Mars by 2024 (although rumors say that the first voyage was sold to Japanese billionaire Yukazu Maezawa to take him around the Moon in 2023). What’s gonna happen, now that there are so many players in the game?
Lawyers are from Mars, Stakeholders are from Venus
Space law is the embodiment of “final frontier”, in the sense that nobody really knows what’s going on. International space law began with the creation of a United Nations Commission on the Peaceful Use of Outer Space in 1959 and continued with the Outer Space Treaty signed in 1967.
Among other things, the Outer Space Treaty says that it is illegal to put bombs or “weapons of mass destruction” on satellites or probes destined for space (wise), that celestial bodies cannot be explored or used except for peaceful purposes (good), and that no one can claim to be the owner of this or that planet (fair). In practice the Outer Space Treaty is a monument to common sense, which is good, considering the heated, cold war times in which it was written. But the Outer Space Treaty says everything and also nothing. Don’t get me wrong: the Outer Space Treaty represents a game-changing step for international cooperation, because it tried to move ahead of technological developments and attempted to create a secure legal environment for future scientific activities. Today though, there are States, international organizations and private companies competing side by side, and while research organizations focus primarily on scientific discoveries, commercial activities can not help but think about the lucrative use of resources. How can all this be reconciled with the treaties of the 1960s? The United Nations in recent years have pushed every nation with an interest in space exploration to have internal legislation regulating launches, and have written treaties that make States (universities, companies, single citizens) legally liable.
A key concept is the term “Launching State“, i.e. “any State/organization/civil person that procures the launch of an object into space”, and “any State from which the object is launched”. The problem is that, from a legal point of view, there is not yet a clear definition of what is “a space object” or “outer space”, or even “Launching State”. The rules are based on a world where the State that builds a probe is the same State that sends the probe into space. However, today an Australian satellite can be launched by a SpaceX rocket, from a base on US, French or Italian soil. So who should take responsibility if things go wrong, or who profits if they find gold on Mars? According to the law, all three of them.
Space is a business. It’s the perfect combo of tech and ambition. No other sector allows such high-risk, high-gain parallel development to satisfy an appetite for potential exploitable resources and to create new transferable technologies. Throw in the possibility of remote data acquisition from space, and you have the wizardry of space exploration. Plus, investment in space research gives a return in skills and abilities, develops new engineers and new minds that will in turn benefit the economy and society. No wonder Elon Musk founded SpaceX instead of opening a take-away pizza chain in Glendale, California.
So what’s next for space regulation? Who can put their hands on Mars? As far as the law is concerned, nobody. Whilst the ASTEROID ACT (2014) allows private companies to exploit for profit mineral resources on asteroids and comets, the Moon and the solar planets are still protected by the Outer Space Treaty. Anyone wishing to appropriate extraterrestrial land would currently risk breaking Article II of the Treaty, which establishes Mars as a res communis, or land of all (the opposite of no man’s land). This precludes territorial acquisition via occupation, and means that no one (States, research centers, private companies) has a sovereign right on Mars. A future attempt by anyone to appropriate land or resources would be considered, legally or politically, a colonization of Mars, and judged as such.
Nevertheless, as humanity expands into space we will need new laws to govern the process. More powers are beginning to be at play on Mars, and it is now timely to think about international cooperation, defined and underwritten by precise treaties overseen by the United Nations.
Mark Watney: Space Pirate | In a monologue in The Martian, Matt Damon as Mark Watney, the stranded astronaut on Mars, considers his legal position. He concludes maritime law applies to his situation, and as he is heading off to commandeer another spaceship, he must be the first space pirate. Maybe not so legally sound, but enjoy the action.
Aelita – The Queen of Mars | Silent Soviet film of 1924, about Los, a young Earthling who goes to Mars, convinces the locals to rebel against their oppressor leaders and falls in love with Queen Aelita, who knew him already for some time because she spied on him from Mars with a super telescope. A classic of Art Deco/cubist cinema.
Total Recall | Before The Martian there was Total Recall, a 1990s cult movie based on a short story by Philip K. Dick that sees Douglas Quaid (Arnold Schwarzenegger) become a sort of guinea pig for a mysterious memory implant experiment, and ends up on Mars to take down a spy network. We prefer the original over the rather unnecessary 2012 remake.
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