Life on Mars in The Next Century: Some Unanswered Questions

 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 precludes a State from appropriating a celestial body inter alia by use.


by Dr. Ruwantissa Abeyratne

You praise the firm restraint with which they write
I’m with you there, of course
They use the snaffle and the curb all right,
But where’s the bloody horse? ~ Roy Campbell      

( November 27, 2016, Montreal, Sri Lanka Guardian) On 24 November I had the pleasure of attending a luncheon presentation entitled The Next 100 Years of Aviation convened by The International Aviation Club of Montreal and McGill University.  It was an event well attended by the aviation intelligentsia of Montreal.  The presentation was well thought through and eloquently delivered.  One of the prognostications presented for the next century was that Mars would be colonized and we would be growing vegetables and other produce for our consumption on the planet.  This is not difficult to imagine since  at present the Mars One project has developed plans to send humans to Mars, although much has to be accomplished in the nature of making the planet habitable for human existence. It is said though, that “establishing a permanent settlement is very complex, but it is far less complex and requires much less infrastructure that is sent to Mars than on return missions”. Already, Mars One – a not-for-profit foundation that works at establishing permanent human life on Mars –  has commenced discussions with established aerospace companies with a view to developing the systems needed for sustaining human life and establishing human colonies. Although such systems require complex designing, construction, and testing, it is said that no scientific breakthroughs are required to sustain human life on Mars  as existing technology is sophisticated enough to ensure living conditions on the planet.  Perhaps the most encouraging statement issued by Mars One is that there will already be a habitable environment waiting for the first human crew to land on the Planet.

Doubtless, this news is music to the years of the next generation of aviation professionals who occupied two tables at the luncheon – youngsters from both the International Civil Aviation Organization and McGill University.  How exciting for them to be at the cusp of outer space travel, let alone be faced with the long term prospect of being able to have an extra terrestrial abode for their children and grand children!

However, there seem to be a couple of snags here:  At the presentation, it was forecast that by 2116, there could be at least one flight a day from Earth to Mars presumably carrying tourists and settlers.  But before then, well, way before then, humans would have landed on Mars and in fact settled there permanently.  Sarah Knapton, Science Editor for The Telegraph in her article entitled   Nasa planning ‘Earth Independent’ Mars colony by 2030s   quotes NASA as having claimed that humans will be living and working on Mars in colonies entirely independent of Earth by the 2030s. In fact, NASA is purported to have released a plan for establishing permanent settlements on Mars on the basis of creating ‘deep-space habitation facilities’ which will act as stepping stones to Mars.

If humans were to settle on Mars in just 15 to 20 years’ time, how is this conceivable when we still do not have a global understanding or agreement on at what altitude air space ends and at what point outer space begins?  What are the laws that would govern travel from airspace to outer space?  Air law and space law are closely inter-related in some areas and  both these disciplines have to be viewed in the 21st Century within the changing face of international law and politics.  Both air law and space law are disciplines that are grounded on principles of public international law, which is increasingly becoming different from what it was a few decades ago.  We no longer think of this area of the law as a set of fixed rules, even if such rules have always been a snapshot of the law as it stands at a given period of time. The issue of air space and outer space is looming over the aerospace community, particularly with the prospect of space travel on a commercial basis which is already a reality.  Currently, the aerospace community is considering such issues as sub-orbital flights and space tourism, both of which could further blur the boundaries between air space and outer space, while raising issues of topical interest.  So far, there has not been a universally accepted definition distinguishing air space and outer space.  Some years ago, when the legalities of an aerospace plane, which is a hypersonic single stage to orbit reusable vehicle that horizontally takes off and lands on a conventional runway were considered, it was thought that the transit through near space which is involved is incidental to the main transit which takes place within the airspace.  Generally, the aerospace plane, which will be constructed with the use of aeronautical and space technologies and would be capable, and, indeed, required to fly both in airspace and outer space, would bring to bear the need to consider the applicability of and appropriateness of  laws relating to the space plane’s activities.  It will be subject to the sovereignty of the State whose airspace it is in. This is an incontrovertible fact which need not be stated since any object within the airspace of a territorial State would indeed be subject to that State’s sovereignty.

Recently, the official launch of space tourism, where paying customers travelled beyond Earth’s atmosphere, gave rise to an entirely different dimension, where the different issue of sub-orbital flights has emerged as requiring some consideration, particularly on the question as to whether such flights travel to outer space or whether they are deemed to be considered as not leaving the Earth’s atmosphere.  Unlike the aerospace plane which would leave the territory of one State as an aircraft, enter outer space and travel in outer space until it descends to a destination State, sub-orbital flights would not usually travel between two States but would ascend to an altitude sufficient for the persons on board to view the Earth as a whole globe, a phenomenon not available to aircraft passengers.  The vehicle would descent to the State from which it took off.  This activity is called “sub-orbital flying” and is gaining increasing popularity in the realm of space tourism. One of the issues that sub orbital flights raise is whether, at the height the flights are conducted, the vehicle is deemed to be in air space or outer space.  Therefore, sub orbital flights inevitably call for a determination as to what might be air space, as against outer space This question is particularly relevant when one considers liability arising from death or injury to passengers  while travelling in outer space. Although there are established treaty provisions regarding air travel under the Montreal Convention of 1999 there is no such treaty governing travel in a spacecraft in outer space.

Once the travel issue is settled, the other question that would emerge would be what laws would govern human conduct in outer space.  Who would be the governing authority?     Article 1 of the Outer Space Treaty provides that the exploration and use of outer space, including the moon and other celestial bodies, shall 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, shall 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.

Finally, Article 1 provides that there shall 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 precludes a State from appropriating a celestial body inter alia by use.

Garold Larson, Alternate Representative to the First Committee of the 64th Session of the United Nations Assembly held on 19 October 2009, succinctly outlined the policy of the United States on space exploration.  The foremost principle outlined by Larson was that the United States will continue to uphold the principles of the 1967 Outer Space Treaty, which the United States recognized as providing fundamental guidelines required for the free access to and use of outer space by all nations for peaceful purposes.  He went on to say that the United States will continue to take an active role in identifying and implementing cooperative efforts with established and emerging members of the international spacefaring community to ensure the safety of the space assets of all nations and also expand cooperation with other like-minded spacefaring nations and with the private sector to identify and protect against intentional and unintentional threats to its space capabilities.

 The European Union, in 2008, published a draft Code of Conduct for Outer Space Activities, which it later revised in September 2010. The fundamental postulate of this code is that member states should establish policies and procedures to minimize the possibility of accidents … or any form of harmful interference with other States’ right to the peaceful exploration and use of outer space. The Code applies three basic principles in pursuance of its overall objective:  freedom of access to space for peaceful purposes; preservation of the security and integrity of space objects in orbit; and due consideration for the legitimate defence interests of states. The code is not a legislative instrument and therefore has no legally binding effect on member States. It remains a voluntary agreement among states with no formal enforcement mechanisms.  On 4 April 2011 the European Commission published a space strategy for Europe whereby the European Union seeks to identify and support the development of essential technologies for exploration, in particular in the fields of energy, health and recycling (support for life in isolated environments). These matters are not necessarily dealt with in the space sector itself and cross-fertilisation should be promoted with other sectors in order to benefit the citizens directly.

Answers can always be found but the key principle is that technology and space exploration must go on for the benefit of humanity.  In the ultimate analysis, a joint space programme between key players of North America, Europe and Asia could greatly stabilize international space exploration. Growing spinach on Mars is one thing, but getting the laws in place within the next 15 years is an entirely different prospect.


ruwantissa_abeyThe author is former Senior Legal Officer at the International Civil Aviation Organization.  Having published over 30 books and 400 journal articles on aerospace law during his aviation career which spans 35 years, he now runs his own consultancy firm in Montreal.  His book Regulation of Commercial Space Transport : The Astrocizing of ICAO published by Springer in 2014 discusses in depth the issues raised in this article and the role of ICAO in commercial space transport.  


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s