I was going to title this “Does Planetary Protection Apply to the Private Sector?” However, various corners of the internet mock the use of questions in headlines, so I was too chicken. But, at the end of the day—or perhaps of the century—that is the question; and in the United States the answer must come from Congress.
Background Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “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.” As a science agency that is part of the U.S. Government, NASA has interpreted this to mean that its missions must not only avoid what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.
These measures are expensive. ESA describes the creation of clean rooms. NASA bakes its spacecraft. The space agencies spend money on preparing protocols, training technicians, sampling, testing, and devising new and more stringent requirements. Although it is difficult to find information about the costs of planetary protection, one expedition cost somewhere between $80 to $100 million in 2003 dollars.
People are full of microorganisms. I’m no biologist, but I think there are far more than 300,000 bacterial spores on the surface of the human body, never mind what’s inside us. Are we planning to prohibit people on Mars? Probably not. I hope not.
The question does, however, highlight the existence of competing interests. Science agencies want to do science. They have interpreted the directive against “harmful contamination” to mean no harmful contamination to science. The space agencies have now had decades to perform their scientific studies and exploration, and others, including commercial actors, are interested in going to Mars as well. This means that other human interests aside from science will take the stage. Those interests may range from space settlement, with its attendant needs for air, agriculture (albeit in high-tech greenhouses), and manufacturing, to tourism, leisure, art, and mining.
These interests are not obviously less important than the question of whether there is life on Mars. That’s an important issue, even if the life found is less complex than Edgar Rice Burroughs’ Tars Tarkas. The question is, who decides?
Congress decides. The Constitution charges Congress with weighing policy questions such as this, and deciding whether science is so important that humans may not go to Mars and engage in the myriad complexity of human activity. Although NASA follows strict guidelines and protocols to preserve the accuracy of its findings, those guidelines should only apply to government missions.
There is confusion on this front, as mentioned in a previous post, with many believing that Article VI’s requirement that States Parties to the treaty assure “that national activities are carried out in conformity with the provisions set forth in the present Treaty” means that commercial actors must abide now by each provision in the treaty, even if the treaty says it applies only to governmental actors.
Provision applies to state actors. The first reason to question the applicability of the “planetary protection” provision is that the treaty itself limits this requirement to “States Parties.” States Parties are governments. Much like when they interpret laws passed by Congress, the courts do not add or change treaty language. See, for example, the 2014 case of Lozano v Montoya Alvarez or the 1989 case of Chan v Korean Airlines. Finding that planetary protection concerns apply to commercial actors would require a change in the language of the treaty. When the drafters of the treaty intended a particular provision to apply to non-governmental entities they said so. For example, in contrast to the harmful contamination provision, Article IX contains a provision that does apply to non-governmental entities, namely, the requirement for a State Party to consult if “it or its nationals” might interfere with others in outer space. This language shows that when the treaty drafters meant a provision to apply to non-governmental entities, they were able to say so.
Article IX is not self-executing. The second reason that the stricture against harmful contamination does not apply to commercial actors is that neither Articles VI nor IX are self-executing. As the Supreme Court explained in Medellin v Texas in 2008, if a treaty is not self-executing it does not give rise to domestically enforceable federal law unless Congress passes implementing legislation. As the Medellin Court said,
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that-while they constitute international law commitments-do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, overruled on other grounds, United States v. Percheman, which held that a treaty is equivalent to an act of the legislature, and hence self-executing, when it operates of itself without the aid of any legislative provision. When, in contrast, treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect. In sum, while treaties may comprise international commitments … they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.
(Citations and internal quotation marks omitted from quotation). Congress has not yet applied the harmful contamination restrictions of the treaty to U.S. operators, and, as Justice Goldberg’s testimony to the Senate during the ratification hearings for the treaty made clear, not all the provisions of the treaty are self-executing.
In short, Article IX does not state (even when read with Article VI) that the United States agreed to apply this provision to commercial operators, and, even if it did, until Congress acts, the U.S. Government should not treat the provision as binding federal law for non-governmental entities. Accordingly, until Congress addresses the question of harmful contamination between Earth and outer space, this provision should not serve as the basis for restrictions on commercial operators.
Note: The FAA’s payload review may arguably prevent contamination to Earth–if not from Earth–because the FAA may prevent a reentry if the reentry would jeopardize, among other things, public health and safety.