There is Water on Mars, Now What?

On September 28, 2015, a huge announcement was made by the National Aeronautics and Space Administration (NASA): there is evidence of water on Mars. And not just standing water, but flowing, salty water; water that could possibly support life. This announcement could launch a completely new set of theories in the search for extraterrestrial life. But this search has many legal implications, including who can go there, what they can bring, and whether a country has any claim to what they discover.

Before Neil Armstrong and Buzz Aldrin became the first astronauts to set foot on the Moon, the United Nations was already discussing what the basic framework on international space law would be. In October of 1967, the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” (“the Outer Space Treaty”) was entered into force. The Outer Space Treaty laid out that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.” This theme of shared use with no personal ownership pervades the Outer Space Treaty.

The “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” (“the Moon Agreement”) was later entered into force in 1984. The Moon Agreement reaffirmed the use of celestial bodies for peaceful purposes laid out in the Outer Space Treaty. It further stated that an international regime should be established if and when the natural resources of the Moon were to be exploited by mankind. However, very few countries became party to the Moon Agreement, and even fewer became signatories. Further, the majority of the parties did not, and still does not, possess the ability to even reach space, let alone land on the Moon. The United States, the Russian Federation, and the United Kingdom, the three depository Governments of the Outer Space Treaty, still are glaringly absent as members to the Moon Agreement.

Whether a country is party to the Outer Space Treaty, the Moon Agreement, or both, the terms only really apply to nations and their governments. So can a private mining company head up to Mars, the Moon, or even an asteroid and start extracting natural resources? Now before you start conjuring up images of the movie Armageddon, miners in space, working for a private company, may be able to do just that. Frans von der Dunk, a space law professor at the University of Nebraska, says that “there is no clear-cut answer as to whether [private mining in space] is legal or not. It depends on your interpretation of certain rather broad statements in the Outer Space Treaty….” Further, a new bill now awaits the U.S. Senate’s decision, the “Space Act of 2015,” that would give future asteroid mining companies the property rights to any minerals that they extract in space.

The US flag was planted on the Moon in 1969, two years after the Outer Space Treaty was created. BBC News. Associated Press.

But what about Mars? Now that we have a possible proof of life via the recent discovery of flowing water, how could NASA, or any other governmental organization, continue to test this? According to research, sending humans to Mars with bacteria from Earth would be the next logical step. However, the Outer Space Treaty forbids the “harmful contamination” of other worlds with Earth’s biology; a serious hurdle if the above theory turns out to be true. Luckily, an international organization named the Committee on Space Research (“COSPAR”) has been working since 2002 to designate restricted “Special Regions” where this testing can occur. These Special Regions may give the signatories to the Outer Space Treaty an avenue to legally access Mars, with the help of some adventurous new frontiersmen.

Lorne Hiller is a 3L at University of Denver Sturm College of Law and Executive Editor on the Denver Journal of International Law and Policy.