Planetary Protection Principles are not Required by Treaty

Science Magazine reported the plans of NASA’s new planetary protection officer, Lisa Pratt. Pratt has suggested that before humans reach Mars NASA could explore the most promising but most protected regions. Under the logic of scientists such as Alberto G. Fairén now is the time.  Science Magazine quotes Pratt to say, “‘No matter what we do, the minute we’ve got humans in the area we’ve got a less pristine, less clean state’ Pratt said at the meeting. ‘Let’s hope we know before the humans get there, one way or the other, if there is an ecosystem at or near the surface.'”  This suggests that she may be open to exploring the special, wetter regions that have a greater chance of housing life.

Science Magazine, however, suggests that planetary protection is mandated by treaty and that Pratt’s hands may be tied.  To the contrary, there are international bodies who provide guidance, not requirements.  The relevant treaty provision, Article IX of the Outer Space Treaty, does not mandate planetary protection.  Instead, it says that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies. As a science agency that is part of the U.S. Government, NASA has applied this  admonition to its missions so that it not only avoids what the ordinary person might consider harmful contamination–toxins, poison, peanuts in the aircraft–but microbial contamination as well.  NASA itself describes its policy only as “consistent with” Article IX, rather than required by it.  After all, others may define “harmful contamination” differently than NASA does.

NASA also describes the international body that makes recommendations on this policy:

Internationally, technical aspects of planetary protection are developed through deliberations by the Committee on Space Research (COSPAR), part of the International Council of Science (ICSU), which consults with the United Nations in this area. The COSPAR Panel on Planetary Protection develops and makes recommendations on planetary protection policy to COSPAR, which may adopt them as part of the official COSPAR Planetary Protection Policy.

COSPAR describes its principles, as well as its official policy, as guidelines, suggestions, or recommendations.  This is a far cry from a treaty.

Under U.S. law, a treaty is an agreement between the United States and another sovereign nation, which agreement enters into force with the advice and consent of two-thirds of the Senate.  The International Council of Science is a non-governmental entity, and its recommendations do not constitute binding treaty obligations for U.S. government missions.  As for commercial activities, Article IX of the Outer Space Treaty applies to “States Parties” to the treaty, not to private actors, and it seeks the avoidance of “harmful contamination,” which may mean different things depending on whether one is protecting science or people.