Addressing Media Missteps About The Outer Space Treaty and Water Sources on Mars

On September 28th, NASA made an exciting announcement about evidence from orbiting and surface spacecraft, which suggests the existence of flowing water on Mars. The announcement was met with enthusiasm by the scientific and advocacy community; however, some in the media allege even if it is ultimately proven flowing water exists on Mars, international law would prohibit NASA or any other space agency to physically investigate it. For instance, a recent article in Quartz asserts:

…even if NASA was 100% certain that there is liquid water on Mars, it could not do anything about it.

The world’s space powers are bound by rules agreed to under the 1967 Outer Space Treaty that forbid anyone from sending a mission, robot or human, close to a water source in the fear of contaminating it with life from Earth.

The article does not cite any specific provision in the Outer Space Treaty that creates this prohibition and in truth represents a fundamental misunderstanding of the Outer Space Treaty.  The Outer Space Treaty is a comprehensive accord that sets forth general principals, legal obligations, legal rights and prohibitions. The most prominent prohibition in the Outer Space Treaty is found in Article II:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

This means national claims to outer space, the Moon, the planets, asteroids, etc. are forbidden and could by extension encompass private appropriation.

Another prohibition is found in Article IV whereby:

States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

Beyond these specific prohibitions, there are no proscriptions in the Outer Space Treaty as asserted in the Quartz article forbidding a nation from investigating an extraterrestrial water source for fear of contamination.  Indeed, Article I of the Outer Space Treaty confers the legal right for exploration in that:

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.

Supplementing the right of investigation, State Parties to the Treaty are required to protect the environment through a legal duty within Article IX.  Article IX states:

In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of 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. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

It is from this provision of the Outer Space Treaty that the Quartz article appears to make the assumption  NASA would be prohibited from physically investigating water on Mars.  If so, it is an incorrect assumption of the purpose and effect of Article IX.

Article IX has three specific legal obligations, but for purposes of the Quartz article, the second legal obligation of Article IX would appear to be relevant as it is the only mention of environment in the Outer Space Treaty. Significantly, this portion of Article IX deals with contamination of extraterrestrial environments and preventing the contamination of Earth’s biosphere by extraterrestrial material introduced via the space activities of a State Party. This is seen by carving out and focusing on the second duty under Article IX:

States Parties to the Treaty shall pursue studies of 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.

On its face, this part of Article IX appears to support the Quartz article in that it indeed does require States to prevent contamination of extraterrestrial environments, but that duty does not exclude States, and by extension NASA, from scientific investigation per Article I.  However, this duty within Article IX does require States, and their respective agencies, to perform their investigations in a manner that prevents contamination of extraterrestrial environments, and also to perform their activities to prevent the contamination of Earth from extraterrestrial matter introduced into the Earth’s biosphere.  Consistent with this legal duty, NASA’s Office of Planetary Protection has in place protocols to prevent contamination of extraterrestrial environments, including potential water sources on Mars, as well as to protect Earth’s biosphere.

Accordingly, it can be concluded the Outer Space Treaty does not exclude scientific investigation of water on Mars or any other celestial body by NASA or any other State entity, but the Outer Space Treaty does require it be done in a manner so any water sources and thus the environment of Mars do not become contaminated.

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3 thoughts on “Addressing Media Missteps About The Outer Space Treaty and Water Sources on Mars

  1. An excellent review of the topic!

    There is the possibility, of course, of the tactic opponents would use of demanding *zero* risk of contamination. Nuclear Power opponents frequently demand this about radiation in private gatherings, and even a few times in public. If confronted with this demand on space probes, there *is* a step to take.

    That is, additive manufacturing *in*orbital *vacuum*while exposed to hard UV and X-rays from the Sun, of all equipment touching the water on another solar system body. That would cover the possibilities found in the real world of transporting Earth organisms. Of course, opponents can ask “what if”, forever, but eventually this will get people bored with them.

    This has the added benefit of establishing a manufacturing capability in either Low Earth Orbit or at the Earth/Moon Libration Point #1, or both. Once this is done, making far lower mass space probes that do more, than probes launched from the surface at 3-6 Earth gravities acceleration, for less total money, will be a natural result. Once we are making space probes as a whole there, the next step will be to build reusable ion-engined transports there. This will open up spaceflight nicely, though I would not hold my breath about Congress funding these steps. Not enough graft involved. It will have to be done privately.

    Like

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