The legal technicalities of these missions are the same whether these three States explored and “exploited” the resources of the Red Planet or the geophysical assets of a nearby asteroid.
by Dr. Ruwantissa Abeyratne
Writing from Montreal
“The dinosaurs became extinct because they didn't have a space program. And if we become extinct because we don't have a space program, it'll serve us right!”
― Larry Niven
On 30 July 2020, the Perseverance Robotic Mission to Mars blasted off from Cape Canaveral in Florida. The equipment for the takeoff was a United Launch Alliance Atlas 5 rocket carrying NASA's nuclear-powered Perseverance Mars rover. The Robotic portion of the equipment – the rover - is due to land on the surface of the red planet on 18 February next year on a 28-mile-wide crater near the remnants of an ancient river delta amid lakebed deposits where traces of past biological activity might be preserved. It is calculated to carry out its scientific mission of further seeking the potential for life on Mars. The mission will also explore habitable conditions on the planet in millennia gone by including signs of past microbial life itself. The Mars Perseverance R. over will collect core samples of the most promising rocks and soils with a special drill and is viewed by many as a precursor to future explorations and expeditions to Mars that are aimed at establishing human settlements in the years to come. The mission also hopes to collect a repository of knowledge The National Aeronautics and Space Administration (NASA) of the United States which launched the mission states of the various attributes of the mission: “These include testing a method for producing oxygen from the Martian atmosphere, identifying other resources (such as subsurface water), improving landing techniques, and characterizing weather, dust, and other potential environmental conditions that could affect future astronauts living and working on Mars”.
The space race to Mars has been quite prolific in 2020. Earlier this year, The United Arab Emirates launched a space probe with the Al Amal probe, as it is called in Arabic, which is also expected to reach Mars by February 2021. However, unlike Perseverance, the UAE probe will only orbit the Red Planet, marking the first time a UAE spacecraft has orbited Mars. It is expected that it will continue orbiting for a Martian year -- equivalent to 687 days on Earth -- to gather data about Mars' atmosphere.
Also in July this year China launched Tianwen-1, the name of which translates in Mandarin .as “Quest for Heavenly Truth". Similar to the UAE, this is China's first mission to Mars. The probe will first orbit the planet and then land a rover on the surface, again with the design and intent to gather knowledge and important information “about the Martian soil, geological structure, environment, atmosphere, and search for signs of water”.
There are colossal amounts of financial resources that go into these missions prompting many to muse on the seemingly wasteful exercises of these missions when such resources can be deployed toward ameliorating poverty and hunger in the world. The counter argument is that these missions could lead to important discoveries that could help mankind in its development and progress. Some of the inventions spurred on and applied as a result of discoveries in space exploration vary from significant breakthroughs such as camera phones; CAT scans; scotch resistant lenses; land mine removing equipment; water purification systems; and home insulation to smaller but nonetheless important products such as athletic shoes; memory foam and wireless headsets.
One could argue that, on the sidelines of this lofty process of space exploration is the looming specter of national competitiveness. National competitiveness is one of the most critical drivers of successful government and industry in every nation. Yet for all the discussion, debate, and writing on the topic, there is still no persuasive theory to explain national competitiveness. What is more, there is not even an accepted definition of the term “competitiveness” as applied to a nation. While the notion of a competitive company is clear, the notion of a competitive nation is not. When one ties up the trajectory of the global economy and its direction in the coming years along with the market economics of the aerospace industry, it becomes eminently clear that the economic forces that are shaping the global economy will affect the progress of space exploration.
Space exploration has always been, and will be driven by the need for political and technological one-upmanship and, as Neil deGrasse Tyson, Director of the Hayden Planetarium at the American Museum of Natural History says in an issue of Foreign Affairs: “If the United States commits to the goal of reaching Mars, it will almost certainly do so in reaction to the progress of other nations – as was the case with NASA, the Apollo program, and the project that became the International Space Station. For the past decade, I have joked with colleagues that the United States would land astronauts on Mars in a year or two if only the Chinese would leak a memo that revealed plans to build military bases there”. Tyson goes on to say that this joke should not be taken lightly as the Chinese have released an official strategy paper in which they claim that they have a five-year plan to advance their space capabilities which include the launching of space laboratories, manned spaceships and space freighters and other activities of advanced space exploration.
The legal technicalities of these missions are the same whether these three States explored and “exploited” the resources of the Red Planet or the geophysical assets of a nearby asteroid. Article 1 of the Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) of 1967 provides that the exploration and use of outer space, including the moon and other celestial bodies, are required to be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. It goes on to say that outer space, including the moon and other celestial bodies, will be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
Furthermore, Article 1 provides that there will 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.
The more challenging provision in the Treaty is Article 2 which prescribes that 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 effectively precludes a State from appropriating a celestial body inter alia by use.
The Outer Space Treaty provides that States Parties bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried out by governmental agencies or non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the treaty. The Treaty further states that the activities of non-governmental entities in outer space, including the moon and other celestial bodies would in essence inevitably require authorization and continuing supervision by the appropriate State Party.
As for the issue of ownership of property gathered from celestial bodies, The Outer Space Treaty prescribes that outer space is a resource that belongs to all mankind. Therefore, it follows that property which resides in outer space belongs to all. However, as stated by some commentators, economic theory suggests that property rights and claims thereto emerge when it is in someone’s self-interest to claim property, and that claims to such rights are prompted by desires of States, governments or individuals purely based on cost benefit possibilities. In this context, one has to wait and see what will develop in this expensive but valuable exercise – of space exploration - worth trillions of dollars.
Dr Abeyratne is the author of Space Security Law published by Springer (2011) and Frontiers of Aerospace Law published by Ashgate (2002).
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