The Beresheet lunar lander being prepared for launch. Unbeknownst to SpaceIL, the “Lunar Library” payload on the lander provided by the Arch Mission Foundation included tardigrades, setting off a space law controversy when their presence was ultimately disclosed. (credit: IAI)

The curious case of the transgressing tardigrades (part 3)

by Christopher D. Johnson, Daniel Porras, Christopher M. Hearsey, Sinead O’Sullivan, and Monica Vidaurri
Monday, September 16, 2019

The Curious Case of the Transgressing Tardigrades is still developing, but this week’s essay (the third and hopefully final part) attempts to collect various perspectives on the issues involved. In Part 1, after a recitation of the facts (as we know them, based on what is publicly available), we discussed the international legal context, some business perspectives, and some basic tenets of astrobiology and planetary protection. In Part 2 we delved deeper into domestic US regulation via the FAA’s payload review process and how it might have operated in the Beresheet mission. Part 2 also includes a discussion of US policy issues and choices in the regulation of commercial space.

In this part, we step back and reflect on the international implications of maverick private space actors on geopolitical discussions. We then step back even further to consider some sociological and cultural perspectives on who explores space and why, and whether the spread of terrestrial life is intrinsically valuable. In too many space discussions, crucial geopolitical and sociological perspectives are often overlooked or minimized. But incorporating these perspectives is absolutely necessary for any equitable, functional, and implementable governance system for space activities.

International context and consequences

The Arch Mission Foundation’s actions will be discussed around the world. There is already ample skepticism in the international community about letting private companies conduct deep space activities. Two lessons from space law bear repeating. As discussed previously in the Space Review, during the negotiations of the Outer Space Treaty, the Soviet Union did not want to permit private activities in outer space (see “The Outer Space Treaty at 50”, The Space Review, January 23, 2019). The compromise struck between the US and the USSR was that private actors were to be permitted, but that States are directly responsible for what they do. This rule remains a pillar of space law. Seen from the perspective of international law’s rights and responsibilities, all activities in outer space are national activities.

Another element of space law is also relevant to private actions in space. Article VI of the Outer Space Treaty requires States to authorize and continuously supervise the space activities of nonstate actors, and to assure their compliance with space law. This duty is a positive obligation, requiring State action. Both of these facts of international law apply to the Arch Mission Foundations actions, and affect how this situation will be perceived and responded to on the international level in the relationships between States.

Is greater international governance needed?

During the 2019 meeting of the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS), a number of Member States stressed the need for a multilateral agreement for the exploitation of space resources.[1] One of their biggest concerns was the prevention of multiple new risks to both the terrestrial and space environments, including contamination of other celestial bodies. Some States took the position that there should be a set of legally binding standards that addresses the concerns of all, not just those of a national regulator authorizing a private activity. These States, including both major and middle space powers, subsequently proposed a UN working group on how to advance international governance over space resources.[2]

The background to many of these views were fears that a few States and their national entrepreneurs will quickly and unilaterally seize locations and assets in space that many feel should be beyond individual seizure and profit-taking. Even though it is uncomfortable to say, the historical specter of colonialism is evident in many of these perspectives.

Meanwhile, national discussions in the United States on how to develop regulatory frameworks for the exploitation of resources continue. Logically and programmatically, any next-generation long-term crewed presence in space, or the development of any deep space economy, is fundamentally contingent upon the access, harnessing, and use of space resources. A future in space with expanding human presence seems contingent on using the resources of space, rather than bringing them from home. The issues underpinning celestial resource use are many of the same issues implicated with national regulation of private actors in space. Which should come first: national or international coordination? It is in the national interest to pioneer new technologies and economies. So, can individual States forge ahead? Or (and especially because of Article VI, and the fact that outer space is beyond a State’s territory) isn’t some basic level of international coordination and norm-setting necessary?

Where next, Columbus?

Underneath the issues of planetary protection and compliance with FAA payload review regulations is a broader concern that is more difficult to express, but no less important. It is tied to anxiety over historical issues such as imperialism and colonialism. Space exploration often features as part of a historical narrative for States undertaking exploration and “conquering” new places for their own national pride and glory. After the closure of the western frontier, where did America’s pioneer spirit turn? While Alaska is regarded as the “last frontier,” outer space is commonly regarded as “the final frontier.” Early popularizations of space exploration used phrases such as “the Conquest of Space”, and many today still use this aggressive phraseology, with linkages to Manifest Destiny and American exceptionalism. Should we really still be trying to “seize” space, or to fight for “control” and “dominance” of space? These nationalistic aspirations don’t sit well with international trends of broadening access to space, or sentiments in the global community that space is for all.

Other attitudes towards space are especially dangerous to adopt. These include the beliefs that any and all space exploration is implicitly for the good of all humanity, or for the good of science, or that living worlds are intrinsically better than dead worlds. These statements, without general international consensus or even basic alignment of priorities, or without contemplating even the local or public science level implications, may become a vehicle for pernicious dynamics like land grabs, a “winner takes all” mentality, and colonialism. More basically, shall those who are the most powerful always decide what is universally right and just?

Nonstate space actors

Another concern that arises from the Arch Mission is the role of nonstate actors. With rising tensions in outer space, the idea that space is a contested domain is rising in prominence. There is the idea that nonstate actors may commit unfriendly, escalatory acts in space and trigger state-level responses. What if the small satellite revolution and democratization of space actually undermines the rule of law, and fosters conditions ripe for terrorism? Additionally, since private acts may be difficult to attribute to a responsible State, perhaps acts formally illegal under international law, such as seizures or destructive aggressive attacks, may be perpetrated by States using private actors as their proxy.

Surely this is not what the Arch Mission intended. However, our essay is about how Arch Mission is a warning of things to come, where autonomous and barely supervised private space actors might commit acts that no State would openly perpetrate. The tardigrade incident supports the argument for greater international oversight by calling into question whether existing US regulations leave too many opportunities for risky behavior. With private companies making plans to visit asteroids and even planets, there will be international pressure for greater oversight that addresses the concerns of various States.

Do as I say, not as I do?

The US government has, in many respects, been a driving force for implementing the safe and trusted coordination of activities in space. As some readers will know, there are very few international rules in space. Much of the predictability and transparency that exists in space today is dependent on the voluntary actions of individual actors. This trust in voluntary actions applies to launch practices, de-orbiting, and notification. As one of the actors with the most to lose in space, the US has safeguarded many space investments by convincing other actors to act as responsibly as the US. In this respect, NASA has contributed significantly to America’s reputation by adopting stringent practices, such as its planetary protection policies. Maverick actions by a small number of private individuals that derogate from accepted norms will put the US at risk of no longer being an actor whose behavior other States seek to emulate. New actors in space could simply choose to ignore the best practices that have evolved over the years, or say that they are too costly or difficult to adhere too. And, if these rules are non-binding and loosely observed by others, the normative regime is very thin indeed.

Within the context of the complex trade-off of regulation vs. growth, it is often easy to calculate the upside of a loosening of regulations when looking at the value-add that the NewSpace economy brings. The US wants private sector growth, but at what cost? Who does the growth benefit, and who does it put at risk? Internationally, if other governments feel that their concerns and priorities are disregarded, they may not feel so bound to act responsibly in the eyes of the US. And since the US does not have a monopoly on access to space, America’s ability to convince others to act within reason is essential. It is difficult to put an economic price on the value of the US’ international standing and the relationships it has fostered.

Final conclusion of the Case of Transgressing Tardigrades

It is clear that the international community, not just the United States, is at a crossroads when it comes to dealing with private actors in a historically government-driven industry. While the majority of the commercial space actors within the US have acted responsibly and have built up much needed trust that has allowed the sector to flourish, this private-public relationship is fragile and can be easily damaged with few bad actors.

Private sector space activity affects not just civil space activity, but scientific activity and national security discussions. That is to say, there are multiple and often conflicting uses of outer space that are being considered by both private and government entities. Space activities do not need to be considered as a zero-sum game; there does not need to be a “winner” and a “loser” in space. With careful consideration and adherence to regulatory strategies that ensure an even playing field for international participation, space activities can be undertaken by public and private sector alike.

Space is big, some argue, and there is plenty of room for everyone. Though this may be physically true, realistically the space we are able to access and utilize is finite. Meanwhile, protecting the right for States, companies, and peoples to explore and study space does not necessarily mean all celestial bodies must remain perfectly pristine. Indeed, perfectly pristine planetary protection measures are likely to be both technologically and physically impossible. Instead, policy should ensure that people who can exercise their freedom to explore do not also contaminate, change, or alter the celestial body in ways that will harm, detrimentally exploit, or impact future missions or future interests in space. In other words, for locations of astrobiological interest, science interests might supersede private commercial interests. A balancing between interests is necessary, and a conversation must be had.

Sustainable space exploration should balance the needs and interests of future generations with the desires and interests of the present generation. And while some assert that “those who get their first, make the rules,” this is neither a principle of international law or international relations, nor is it a rational or equitable method of developing norms for emerging behavior. Instead, we think there are other approaches that capture the spirit of adventure and development that is driving a new age of space, while still respecting our common roots on Earth with the rest of humanity. We can also be guided by Article I of the Outer Space Treaty, which requires 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.” We are entrusted to fulfill this vision.

Endnotes

1. See Report of the Legal Subcommittee on its fifty-seventh session, held in Vienna from 9 to 20 April 2018 (A/AC.105/1177), p. 31.
2. See Proposal for the establishment of a working group for the development of an international regime for the utilization and exploitation of space resources: Working paper by Belgium and Greece (A/AC.105/C.2/L.311), published 4 March 2019.

Christopher D. Johnson is the Space Law Advisor at the Secure World Foundation, and Professor of Law (Adjunct) at Georgetown University Law Center, where he co-teaches international space law. Daniel Porras LLM is the Space Security Fellow at the United Nations Institute for Disarmament Research (UNIDIR) in Geneva, Switzerland. Christopher M. Hearsey, JD, MS is CEO of OSA Consulting, LLC in Maryland. Sinead O’Sullivan is a Space Economist and a Sainsbury Management Fellow at the Harvard Business School. Monica Vidaurri is an astrobiologist and policy and ethics specialist, currently consulting for NASA Goddard. The views expressed in this article are those of the authors only; they do not necessarily represent the views of their current institutions or those of their members.

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