Planetary Protection Obligations of States Pursuant to the Space Treaties and with Special Emphasis on National Legislations Provisions
Gustavo Boccardo is a lawyer who received his J.D. from Universidad Católica Andrés Bello, in Caracas, Venezuela (2007). He is currently an LL.M. Candidate in Air & Space Law at Leiden University (2015).
NOTE: This article analyzes planetary protection obligations of states pursuant to international space law. Additionally, the paper analyzes planetary protection provisions in national space legislations enacted in connection with Article VI of the Treaty on Principles Governing the Activities of states in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.
Published November/December 2014
Werner Heisenberg’s quote “…in observing the world, we inevitably disturb it” is particularly relevant in space exploration as a probe or human being will inevitable exert a change in the environment of the celestial body that is exploring. The most evident of these changes is the introduction of the object or human being itself into the alien environment; but there are other less evident changes such as the introduction of life forms into the alien environment. It may seem that the survival of a terrestrial life form in the harshness of space to be farfetched but the ruggedness of some life forms prove otherwise.
Some terrestrial life forms are known to withstand conditions of very high or very low temperature, pressure, pH and salt concentrations. [i] These life forms survive and thrive in extreme environments on Earth such as deep-sea hydrothermal vents, Antarctic lakes and in the Atacama Desert. The sturdiness of some terrestrial life forms was underlined when in 1967 NASA landed the Surveyor 3 unmanned probe to explore the Moon and some of its components were returned to Earth during the Apollo missions. [ii]
Moreover, scientists have recently putted together a theory on the origin of life on planets based on the fact that rocky material containing organisms ejected into space following an impact by an asteroid or comet on an Earth-like planet may travel through interstellar space before entering another planetary system, where the organisms survive high levels of ultraviolet radiation and are deposited on a new world, thus “seeding” the celestial body of life. [iii]
The process of introducing terrestrial life forms by space exploration missions is referred to as “forward contamination”. On the other hand, samples taken in the exploration of celestial bodies that return to Earth for scientific analysis might contain unknown organisms potentially dangerous to life on Earth, resulting in “backward contamination”.
Scientists have had concerns on both forward and backward contamination ever since the beginning of space activities, as the risk of such an occurrence would potentially put in jeopardy invaluable scientific information as well as life on Earth. Moreover, the introduction of terrestrial life forms or substances could cause mutations and destroy indigenous life forms or otherwise alter the natural development of potential life on the celestial body. [iv]
To address these concerns, planetary protection provisions have been established in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies [v] (the “Outer Space Treaty”) as well as in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies [vi] (the “Moon Agreement”). Additionally, non-governmental scientific organizations have contributed in establishing policies and guidelines with the hope of reducing the amount of terrestrial material that is sent to outer space as well as for the handling of extraterrestrial material on Earth. It is a scientific impossibility to explore without interference but planetary protection policies are aimed so that such interference is so small that it will not substantially affect the environment of a celestial body.
The drafters of Resolutions 1721 A and B (XVI) of 20 December 1961 of the United Nations General Assembly and of the Declaration of Principles Governing the Activities of States in the Exploration and Use of Outer Space also adopted by the United Nations General Assembly [vii] did not address the matter of planetary protection in the text of these documents. The scope of the Declaration of Principles Governing the Activities of States in the Exploration and Use of Outer Space was limited to potential harmful interference to space activities of other states by activities or experiments carried out by another state.
However, the Committee on Space Research [viii] (“COSPAR”) of the International Council of Scientific Union had been considering the matter of backward contamination as a result of space activities since 1958. To such extent, the consultations of COSPAR with the United Nations Committee on the Peaceful Use of Outer Space [ix] (“COPUOS”) resulted in the inclusion of biological contamination concerns in the COPUOS’s 1959 Report on the issue of contamination. [x]
Then in 1964, COSPAR gave a number of recommendations on the sterilization of space vehicles and probes that were adopted by the Scientific and Technical Sub-Committee of COPUOS recommending member states to address these issues during the period when the Outer Space Treaty was being drafted. As a result, both the drafts made by the USSR and the United States included provisions concerning the harmful contamination of celestial bodies that eventually were incorporated in Article IX of the Outer Space Treaty. [xi]
To such extent, Article IX of the Outer Space Treaty contains the general guidelines on planetary protection stating that “… State Parties to the Treaty shall pursue studies on outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter, and where necessary, shall adopt appropriate measures for this purpose …” Interestingly, the article only provides for an active obligation to adopt appropriate measures in cases of backward contamination and not for forward contamination, as it may have been perceived to be the greater risk at the time.
Planetary protection provisions were also incorporated in Article 7(1) of the Moon Agreement: “ In exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise. ”
The article provides an active obligation under which states must take measures to prevent environmental harm that seem to go further than those provided in Article IX of the Outer Space Treaty, but no clarification is made as to the form of such measures. [xii] However, this treaty has only been ratified by a small number of states that do not include the space powers so its application is very limited.
Since the 1960s there has been a continuing development of international environmental law that has resulted in the adoption of environmental principles that include responsibility over harmful activities, due diligence and polluter-pays principles. [xiii] It is argued that these principles have now become a source of law in accordance with Article 38.1 of the Statute of the International Court of Justice [xiv] and has led to the widespread international acceptance that states are required to protect global commons, including outer space. [xv] Under these principles, it could be argued that states are required to adopt planetary protection policies or guidelines as well as to carry out measures to actively reduce the amount of life forms that contaminate a space object conducting space explorations under the “due diligence” to avoid harmful contamination of an alien or terrestrial environment. States have an obligation to comply with international customary environmental law by enforcing these obligations to entities or individuals under their jurisdictions and in all global commons, such as the case of outer space or the high seas.
Some scholars have pointed out that the obligations provided in both Article IX of the Outer Space Treaty and in Article 7(1) of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies are very broad and that they may suggest that any introduction of extra-environmental matter into the environment of a celestial body will be deemed as harmful, however this is not the case, as the introduction of some extra-environmental matter is necessary to carry out exploration or exploitation activities, e.g. the probe itself or its propellants. [xvi] This is the same for the introduction of the extra-terrestrial matter into Earth. In light of this, scientists have devised decontamination and isolation measures that seek to reduce the risk of introduction of foreign material to what they agree are tolerable levels.
It is necessary to analyze the application of planetary protection obligations in space activities carried out by governmental agencies or non-governmental entities. Article VI of the Outer Space Treaty provides that states shall bear international responsibility for national activities in outer space whether these are carried out by government agencies or non-governmental entities. Also, space activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate State party. Therefore, states must ensure that their national space activities are consistent with the provisions of the international space treaties that they are party to, including the provisions on planetary protection. States have no obligation to enact national space laws, as they are free to comply with their obligations under the international space law system. However, the enactment of national space legislation is the most appropriate instrument to ensure the compliance of international space law obligations by non-governmental entities under their jurisdiction, including those in connection with planetary protection.
The International Council of Scientific Union [xvii] created COSPAR in 1958 as a non-governmental organization to promote international level scientific research in outer space. COSPAR liaises constantly with COPOUS in matters related to space exploration technical aspects, including planetary protection. [xviii] It has over 50 members that include the United States’ National Academy of Sciences, [xix] the Centre National d’Études Spatiales (CNES) [xx] and the Russian Academy of Sciences. [xxi] COSPAR seeks to maintain and promulgate a planetary protection policy to guide compliance with the wording of the Outer Space Treaty and other relevant international agreements. [xxii]
COSPAR enacted in 2002 (and most recently amended in 2011) its Planetary Protection Policy under which for certain space mission/target body combinations, controls on contamination shall be imposed in accordance with a specified range of requirements. [xxiii] The policy identifies five mission/target body categories that have varying ranges requirements to conduct the mission. These ranges from the least stringent requirements or Category I, for missions aimed to celestial bodies were there is almost certainty that life is not present or cannot replicate; to the most stringent or Category V applicable to missions where samples will be returned to Earth. Categories I through IV establish requirements to mitigate forward contamination whereas Category V is aimed to mitigate backward contamination.
The rationale behind each of the categories lies on the probability of finding indigenous life forms in some celestial bodies or that terrestrial life could survive and replicate in them. Under the COSPAR planetary protection policy any flyby or lander to Europa, Enceladus or Mars has to comply with the strictest “bioburden” rules. This is because both Europa and Enceladus may harbor liquid water oceans beneath their crust that could sustain life much like the deep-sea volcanic vents of Earth. Also, conditions in Mars although in general might be considered to be too hostile for terrestrial life forms because of the lack of liquid water and frigid temperatures, it is believed that there may be conditions a few meters beneath the soil that could prove to be more suitable for the survival of terrestrial life forms. That is why orbiters or landers for missions to those bodies must have an extremely small number of terrestrial life forms so that the risk of forward contamination is mitigated to tolerable levels.
The COSPAR policy also differentiates two types of sample returns missions, one deemed “unrestricted” and the other as “restricted”. “Unrestricted” missions are aimed to bring samples from celestial bodies that have the least chance of having indigenous life forms. On the other hand, “restricted” missions are to bring samples from celestial bodies that scientists believe have the best chance of having indigenous life forms.
The COSPAR planetary protection policy has been amended from time to time as new discoveries in space are made. Also, scientist have in some opportunities raised concerns that the policy may perhaps be too strict and it may pose a major obstacle to space exploration and that the policies need to accurately reflect discoveries in the target bodies. [xxiv] [xxv] However, even such scientists agree that the preservation of alien environments from terrestrial contamination is essential.
The COSPAR planetary policy is not by itself binding and only provides for guidelines and recommendations to carry out space exploration in a manner that averts the possibility of space exploration. Some scholars state that the COSPAR planetary policy is in essence the National Aeronautics and Space Administration’s [xxvi] (“NASA”) planetary protection policy and that NASA, in principle, only participates in international missions if the COSPAR policy is followed. [xxvii]
To such extent, NASA has an office of planetary protection and claims that its planetary protection policy is consistent with Article IX of the Outer Space Treaty, and is aligned with the requirements defined by COSPAR. [xxviii] Also, the European Space Agency [xxix] (“ESA”) Planetary Protection Officer oversees its planetary protection efforts that also follow COSPAR’s planetary protection policy and guidelines. [xxx] NASA claims that ESA’s policy differs to NASA’s but is still consistent with COSPAR’s and that they are currently working so that both planetary protection policies are identical. [xxxi]
On the other hand and underlining the lack of binding nature of the COSPAR planetary protection policy, it is claimed that USSR adopted in the past less stringent planetary protection measures in its missions Venus and Mars and that this may have led to the transfer of viable terrestrial life forms to those planets. [xxxii] More recently, according to information disclosed by NASA, RosCosmos [xxxiii] and the Japan Aerospace Exploration Agency (JAXA) [xxxiv] have implemented planetary protection measures in a number of recent probes however it is not possible to independently determine whether they followed COSPAR’s planetary protection policy. [xxxv]
In the past, the United States, European countries and Russia had almost exclusively carried out landers and orbiters missions into the Moon, Venus, Mars, Titan, and beyond the solar system. However, recently there has been a renewed drive to conduct space exploration activities in the Moon, Mars and other celestial bodies. China successfully landed its “Jade Rabbit” lander in the Moon and launched its “Yinghuo-1” orbiter to Mars in 2011. Also, India launched in 2013 its “Mars Orbiter Mission” as its first interplanetary mission. It is not clear which planetary protection measures were adopted by both countries in their missions, if any. But under international space and environmental law India and China are required to have adopted planetary protection measures for their space exploration missions.
Policies and guidelines that have been adopted by international organizations connected to space activities, such as COSPAR, influence the actions of states in carrying space activities but they do not in and of themselves have the legal force of binding treaties. [xxxvi] This is mainly due to the lack of clear provisions on the space treaties in many key aspects and to the constant evolving nature of space activities that outpace the capacity of states to adopt new treaties. However, it is argued that “soft law” agreements resulting from international cooperation may form a basis for the development of new customary law [xxxvii] . Moreover, during fifty-sixth session of COPUOS held in 2013, it was agreed to include “General exchange of information on non-legally binding United Nations instruments on outer space”, in the agenda of the COPUOS Legal Subcommittee for review in its 2014 session; evidencing the increased relevance of the “soft law” provisions.
This leads to the issue as to whether the COSPAR guidelines on planetary protection are binding or not to states while conducting space activities. To answer this question it is necessary to review the criteria that the International Court of Justice and authors have devised in order to determine whether customary state practice has been established. A customary practice becomes a source of international law when (i) there is a uniform, extensive and consistent practice of states of such custom and (ii) states share their conviction that they are accomplishing an international duty by performing their activities in conformity with their rules that they have jointly formulated. [xxxviii]
The COSPAR policy and guidelines are indeed adopted by its members that comprise all space faring states, however, as explained before, states do not all follow the COSPAR policy and guidelines for planetary protection. Therefore it does not seem that these have a binding nature and therefore states may choose to adopt different planetary protection standards. However, the COSPAR policy and guidelines may serve as the guide for other states’ planetary protection policies and guidelines.
In recent years, space activities carried out by private entities have become commonplace. Although private space activities have been mostly oriented towards telecommunication, remote sensing, and space tourism and launch services, there are a number of private initiatives to conduct space exploration in the Moon and in other celestial bodies. Perhaps the most famous of these initiatives is the “Mars One” mission [xxxix] that seeks to place a human colony on Mars preceded by the launching of rovers that will explore the Martian surface. There are also other private initiatives such as the “Google’s Lunar X-Prize”, [xl] a competition to place a lander in the Moon that has team participants from around the world. This raises the question of whether these private missions need to adopt planetary protection measures.
Under Article VI of the Outer Space Treaty state parties shall bear international responsibility for national activities in space carried out by non-governmental entities and their activities shall require prior authorization and supervision from the appropriate state. Therefore, states party to the Outer Space Treaty must ensure that their nationals under their jurisdictions adopt planetary protection measures while conducting space activities. Otherwise, the party states would be in breach of the planetary obligations provided in the Outer Space Treaty and in the Moon Agreement.
A number of states have enacted national space legislation that regulate private space activities and below is a review of national space laws that have been submitted by member states to the United Nations Office for Outer Space Affairs in connection with planetary protection provisions. [xli]
Argentina’s National Decree No. 995/91, Creation of the National Commission on Space Activities of May 28, 1991 and National Decree No. 125/95, Establishment of the National Registry of Objects Launched into Outer Space of July 25, 1995 regulate the national space agency and the registration of space objects. There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment in the law.
Under division 2(18)(b) of the Space Activities Act of December 21, 1998, a space license may be granted provided that the authorities are satisfied that all necessary environmental approvals under Australian law have been obtained and that an adequate environmental plan has been made for the construction and operation of the launch facility. From a review of the law and of the Space Activities Regulations 2001 it seems that the law is concerned on possible environmental damages in the territory of Australia as opposed to outer space. There is no specific mention to the protection of the outer space environment.
Under article 4(5) the Austrian Federal Law on the Authorization of Space Activities and the Establishment of a National Space Registry of December 6, 2011, a national space activity shall be authorized provided that such activity does not cause harmful contamination of outer space or celestial bodies or adverse changes in the environment. The law replicates the wording of Article IX of the Outer Space Treaty.
Under article 8(2) and (4) of the Law on the Activities of Launching, Flight Operations or Guidance of Space Objects of September 17, 2005, an environmental impact study assessing the consequences on the environment on Earth or in outer space is required to obtain the authorization to carry out space activities. There is no specific mention to harmful contamination of the celestial body nor there reference to specific measures that need to be adopted.
There are no specific planetary protection or environmental provisions in the Regulation on procedures and on definition of necessary requirements for the request, evaluation, issuance, follow-up and supervision of licenses for carrying out launching space activities on Brazilian territory of June 20, 2001. The instrument does state that the issuance of licenses to conduct space activities requires that the applicant comply with the requirements set by the Brazilian space agency. Such requirements are not publicly available.
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Canadian Space Agency Act S.C. 1990. The law exclusively regulates the Canadian Space Agency.
g. Chile :
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Establishment of a Presidential Advisory Committee known as the Chilean Space Agency of July 17, 2001. The law exclusively regulates the Chilean Space Agency.
h. China :
Pursuant to publicly available sources, China does not appear to have a national space law. However, the Chinese government issued in 2003 a “white paper” under which it believes in the principle that necessary measures should be adopted to protect the space environment and space resources in the course of international space cooperation. It is not specified as to which measures are to be adopted.
Under article 4 of the Law Concerning Space Operations of June 3, 2008, space activities may be authorized provided that the activity is in compliance with environmental protection regulations. These regulations seem to be French national environmental regulations. Also, under article 5 the authorizations may include requirements for the protection for the environment. There is no specific mention to harmful contamination of the celestial body nor there reference to specific requirements that may be imposed.
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Act to give Protection against the Security Risk to the Federal Republic of Germany by the Dissemination of High-Grade Earth Remote Sensing Data as it only regulates the dissemination of remote sensing data.
k. Japan :
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Law Concerning the National Space Development Agency of Japan. The law exclusively regulates the Japanese Space Development Agency (now Japan Aerospace Exploration Agency).
Under chapter 2(1) section 3, of the Rules Concerning Space Activities and the Establishment of a Registry of Space Objects of January 24, 2007, the Dutch government may issue licenses to conduct space activities establishing restrictions for the protection of the environment in outer space. Also, pursuant to chapter 2(2) section 7 a license may be revoked if there is good reason to fear that the maintenance of such license will jeopardize the environmental protection in outer space and the Dutch government may instruct that measures should be taken for the protection of the environment in outer space before the license is revoked. Finally, under chapter 2(3), if an incident occurs that jeopardizes the environmental protection of outer space the license holder shall take reasonable measures to prevent the consequences of the incident. There is no reference in the law in connection with specific requirements that may be imposed to safeguard the environment of outer space.
There are no specific planetary protection or environmental provisions in the Act on launching objects from Norwegian territory etc. into outer space of June 13, 1969. The law however does state that the Norwegian government may enact regulations in connection with the issuance of authorizations to conduct space activities; no specific mention to environmental protection of outer space is made.
Under Article 4(2) of the Law of the Russian Federation about Space Activities adopted by the Decree No. 5663-1 of the President of the Russian Federation of August 20, 1993, it is prohibited in Russia to create harmful contamination of outer space that leads to unfavorable changes of the environment. The law establishes the licensing of Russian space activities and that regulations will be enacted to such extent. Under article 5(h) of the Resolution 104 of the Government of the Russian Federation on Statute on Licensing Space Operation of February 2, 1996, applicants of a license to conduct space activities must confirm the safety of their space operation, including complying with environmental safety. There is no specific mention to environmental protection of outer space.
o. South Africa :
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Space Affairs Act of June 23, 1993. Licenses to conduct space activities shall be issued taking into account South Africa’s obligations under the applicable international treaties.
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Law No. 8852 Space Liability Act of December 21, 2007. The law regulates exclusively liability of space activities.
q. Spain :
There are no planetary protection provisions nor there a specific reference to adopting measures to protect the environment while conducting space activities in the Royal Decree 278/1995, dated 24th February 1995, establishing in the Kingdom of Spain of the Registry foreseen in the Convention adopted by the United Nations General Assembly on 2nd November 1974. The law regulates exclusively the registration of space objects.
There are no specific planetary protection provisions in the 1982 Act on Space Activities (1982:963). The law however states that the Swedish government may subject to requirements to conduct space activities. No specific mention to environmental protection of outer space is made.
Under article 8 of the Ordinance of the Supreme Soviet of Ukraine on Space Activity Law of Ukraine of November 15, 1996, the Ukrainian government shall issue environmental protection regulations while conducting space activities, however there is no specific reference to planetary protection measures. In addition, similar with the Russian legislation approach, under article 9 causing damage to the environment and the violation of international norms and standards regarding pollution in outer space is prohibited. Moreover, the law provides that private space activities need to be licensed and article 21 provides that the subjects of space activity shall ensure that the necessary measures are taken to prevent environmental damage as a result of a space activity. No specific reference is made as to the measures that need to be adopted.
Under Section 5 of the Outer Space Act of July 18, 1986, a license to conduct space activities may contain conditions to prevent contamination of outer space or adverse changes in the environment of Earth. No specific reference is made as to the conditions that may be imposed.
The United States does not have an all-inclusive space law that regulates all space national activities. Its space activities are regulated in different laws that separate launch services, telecommunication satellites and NASA related activities. NASA was created in 1958 under the National Aeronautics and Space Act and has enacted its Biological Contamination Control for Outbound and Inbound Planetary Spacecraft policy most recently updated in May 2013. Under such policy NASA adopts the COSPAR policy and guidelines for planetary protection and is able to apply the policy to NASA contractors under contractual agreements and thus these contractors need also to comply with the COPSAR policy and guidelines for planetary protection.
However, the application of planetary protection obligations to private space activities under national law is far from clear. Under the Commercial Space Launch Act of 1984 the government licenses commercial launch activities subject to the provision of an environmental impact study made by the applicant. However, this impact is concerned to the launch activity. It is unclear whether the government of the United States will extend the application of the Commercial Space Launch Act to license activities such as the Lunar X Prize and if the environmental impact study will also contain a review of planetary protection measures.
There are only a very small number of states that have adopted space legislations and only few of them include planetary protection provisions, albeit in a very general manner. This is particularly worrisome due to the increase of private space activities that may result in the landing of probes, equipment and in some cases humans in celestial bodies that may do so without adopting planetary protection measures. More specifically, from a review of the participants in Google’s Lunar X Prize, there are teams in many states that do not have national space legislations and no supervision is made increasing the risk of forward contamination.
States should be further encouraged to adopt national space legislation for the authorization and supervision of space activities to comply with their obligations under the space treaties, including those in connection with planetary protection. Planetary protection policies such as the one introduced by NASA are encouraging because they extend the application of the COSPAR policies in parties that would not be necessarily aware of them and would indirectly ensure that the policies are being followed by parties in jurisdictions where there is no planetary protection oversight. Other space agencies or private entities conducting space activities should follow this example.
Also, although the COSPAR planetary protection policy and guidelines do not appear to have a legally binding nature, the members of COSPAR should encourage that their corresponding state space agencies and private parties follow the policy and guidelines while conducting space activities. Only by its uniform application will there be sufficient substance to argue that they have become international customary law and thus held any State not following them would be in breach of international space law.
Finally, due to the increasing entry of new participants in space exploration that may not be adopting measures to mitigate the biological contamination of the space environment the consultation mechanism provided in article IX of the Outer Space Treaty could be put in practice if a State believes that planetary protection obligations are not followed by another State while it or its nationals under its jurisdiction conduct space activities.
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[ii] The Apollo 12 mission retrieved a number of its components to be carried back to Earth for scientific analysis. A microbial analysis carried out in a camera detected a colony of terrestrial bacteria that seemed to have survived the voyage to the moon and two years in the lunar environment. F. J. Mitchell and W.L. Ellis. “Surveyor III: Bacterium isolated from lunar-retrieved TV camera”. Proceedings of the Second Lunar Science Conference, Volume 3; The MIT Press, 1971. This study has been subject to some criticism by the scientific community and its results are inconclusive.
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