According to the Outer Space Treaty, it's clear who is responsible.
This is enforced by the governments involved. It is a responsibility they have of overseeing their citizens. Not unlike e.g. laws on quarantine, or passport control.
If it's an international organization, then all the governments of the citizens involved in the organization are responsible for overseeing its activities in space to make sure they comply with the OST.
The relevant article is article VI
For Mars One, then the Netherlands government is similarly responsible for authorizing and supervising all their actions in space.
For more about this see Michael Listner in his Space Law Review for 2013 on the Space Show. He took Mars One as an example, and explained that the Netherlands government is responsible for their actions in space, no matter how they get into space. Michael LIstner is a lawyer specialist in space law, and founder and principal of Space Law and Policy Solutions, a firm that counsels governmental and private organizations on matters relating to space law and policy.
So, the Netherlands government in case of Mars One, and the US government in case of SpaceX are responsible for what happens there.
In the case of Mars the main issue is contamination by Earth life. The relevant article of the treaty is
So, in short, if Mars gets contaminated as a result, then the US government, or the Netherlands government are fully responsible for this, in international law.
Other countries can request that the US and Netherlands consult with them before proceeding with a mission that they believe will contaminate Mars.
The treaty doesn't say what counts as "harmful contamination". But it's been generally understood since then as including "harmful to the scientific interests of other parties to the treaty". So for instance adding Earth life to Mars will greatly confuse searches for present and past life on Mars by other parties to the treaty. Most imminently, would impact on the ESA planning to explore it with ExoMars and follow up rovers. But long term - it would impact on any of the parties of the treaty who later want to explore Mars in its current biologically pristine state.
Several thousand scientists get together every couple of years to discuss the provisions of the OST - and turn them into working guidelines, under COSPAR.
In practice, when you launch a mission into space from the US, you will work with the Planetary Protection office to make sure you comply with these guidelines.
NASA Office of Planetary Protection
And the guidelines you use were set out by a series of planetary protection workshops under COSPAR. Planetary protection
There are no detailed guidelines yet for human exploration of Mars. Several workshops but they all ended saying more research is needed.
I'm not sure what that means in terms of liability - whether they'd also be liable for compensation for the harmful effect on other countries of their actions contaminating Mars, or what would happen legally and financially if a country didn't keep to its responsibilities in the OST.
But it's an academic question, hopefully. SpaceX and Mars One, as far as I know, fully intend to keep to their responsibilities under the OST.
And in any case it's the responsibility of their governments and neither US nor Netherlands are at all likely to withdraw from the OST or to act in ways harmful to the on going scientific research of other nations. The Netherlands in fact is one of the very few countries to ratify the more restrictive Moon treaty.
They haven't however said how they plan to colonize Mars within the provisions of the treaty.
That's where the big question is - how can they hope to colonize Mars without contaminating it?
Or how can they hope to show that contaminating Mars with Earth life is not harmful to the interests of other parties to the treaty at this early stage in exploration of Mars?
Ten years ago, you could make quite a strong case that it is possible - because then, all except a tiny minority of a few scientists thought that all life on Mars had to be deep underground and not easily contaminated by humans on the surface - and that there was nowhere on the surface that Earth life could colonize.
Nowadays though the pendulum has swung the other way and many scientists are of the opinion, from new results and experiments - that some Earth microbes could survive on present day Mars in places on Mars with favourable conditions there - probably very low populations as in Antarctic dry valleys or the Atacama desert - but that still counts as contamination of course and is just as confusing for scientific research. And contamination wouldn't necessarily be localized to a human habitat because of the global dust storms.
Also, that there is a reasonable, even quite a strong chance that there are habitats there that may well have present day Mars life also (if it exists).
If they can't do one or other of those things - show they can colonize Mars without contaminating it with Earth microbes - or show that contamination is no longer harmful to the scientific experiments of other parties to the treaty -,then they are in breach of the OST. But how could you do either of those at this stage of knowledge of Mars?
So if they plan to continue to comply with the treaty - as Mars One has said they will do and SpaceX surely will also - I don't see how it can go ahead.
I'm not a lawyer, and this is not legal advice. If you want to hear about it from a space lawyer, start with
Michael Listner in his Space Law Review for 2013 on the Space Show.
This is enforced by the governments involved. It is a responsibility they have of overseeing their citizens. Not unlike e.g. laws on quarantine, or passport control.
If it's an international organization, then all the governments of the citizens involved in the organization are responsible for overseeing its activities in space to make sure they comply with the OST.
The relevant article is article VI
Article VI
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.
So, for instance, however SpaceX gets into space, the United States government is responsible for authorizing and supervising their activties in space to make sure that they comply with the OST.
For Mars One, then the Netherlands government is similarly responsible for authorizing and supervising all their actions in space.
For more about this see Michael Listner in his Space Law Review for 2013 on the Space Show. He took Mars One as an example, and explained that the Netherlands government is responsible for their actions in space, no matter how they get into space. Michael LIstner is a lawyer specialist in space law, and founder and principal of Space Law and Policy Solutions, a firm that counsels governmental and private organizations on matters relating to space law and policy.
So, the Netherlands government in case of Mars One, and the US government in case of SpaceX are responsible for what happens there.
HARMFUL CONTAMINATION
In the case of Mars the main issue is contamination by Earth life. The relevant article of the treaty is
Article IX
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.
Outer Space Treaty
So, in short, if Mars gets contaminated as a result, then the US government, or the Netherlands government are fully responsible for this, in international law.
Other countries can request that the US and Netherlands consult with them before proceeding with a mission that they believe will contaminate Mars.
The treaty doesn't say what counts as "harmful contamination". But it's been generally understood since then as including "harmful to the scientific interests of other parties to the treaty". So for instance adding Earth life to Mars will greatly confuse searches for present and past life on Mars by other parties to the treaty. Most imminently, would impact on the ESA planning to explore it with ExoMars and follow up rovers. But long term - it would impact on any of the parties of the treaty who later want to explore Mars in its current biologically pristine state.
Several thousand scientists get together every couple of years to discuss the provisions of the OST - and turn them into working guidelines, under COSPAR.
In practice, when you launch a mission into space from the US, you will work with the Planetary Protection office to make sure you comply with these guidelines.
NASA Office of Planetary Protection
And the guidelines you use were set out by a series of planetary protection workshops under COSPAR. Planetary protection
There are no detailed guidelines yet for human exploration of Mars. Several workshops but they all ended saying more research is needed.
I'm not sure what that means in terms of liability - whether they'd also be liable for compensation for the harmful effect on other countries of their actions contaminating Mars, or what would happen legally and financially if a country didn't keep to its responsibilities in the OST.
But it's an academic question, hopefully. SpaceX and Mars One, as far as I know, fully intend to keep to their responsibilities under the OST.
And in any case it's the responsibility of their governments and neither US nor Netherlands are at all likely to withdraw from the OST or to act in ways harmful to the on going scientific research of other nations. The Netherlands in fact is one of the very few countries to ratify the more restrictive Moon treaty.
They haven't however said how they plan to colonize Mars within the provisions of the treaty.
That's where the big question is - how can they hope to colonize Mars without contaminating it?
Or how can they hope to show that contaminating Mars with Earth life is not harmful to the interests of other parties to the treaty at this early stage in exploration of Mars?
Ten years ago, you could make quite a strong case that it is possible - because then, all except a tiny minority of a few scientists thought that all life on Mars had to be deep underground and not easily contaminated by humans on the surface - and that there was nowhere on the surface that Earth life could colonize.
Nowadays though the pendulum has swung the other way and many scientists are of the opinion, from new results and experiments - that some Earth microbes could survive on present day Mars in places on Mars with favourable conditions there - probably very low populations as in Antarctic dry valleys or the Atacama desert - but that still counts as contamination of course and is just as confusing for scientific research. And contamination wouldn't necessarily be localized to a human habitat because of the global dust storms.
Also, that there is a reasonable, even quite a strong chance that there are habitats there that may well have present day Mars life also (if it exists).
If they can't do one or other of those things - show they can colonize Mars without contaminating it with Earth microbes - or show that contamination is no longer harmful to the scientific experiments of other parties to the treaty -,then they are in breach of the OST. But how could you do either of those at this stage of knowledge of Mars?
So if they plan to continue to comply with the treaty - as Mars One has said they will do and SpaceX surely will also - I don't see how it can go ahead.
DISCLAIMER - THIS IS NOT LEGAL ADVICE
I'm not a lawyer, and this is not legal advice. If you want to hear about it from a space lawyer, start with
Michael Listner in his Space Law Review for 2013 on the Space Show.
About the Author
Robert Walker
Writer of articles on Mars and Space issues - Software Developer of Tune Smithy, Bounce Metronome etc.Studied at Wolfson College, Oxford
Lives in Isle of Mull
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