Let us have a look for this new space law article at the conquest of Mars. Protagonists have changed, but motivations remain the same. The conquest of space will always remain the supreme aspiration of countries wanting to assert themselves as a great power in the eyes of humans, through technology. Only a question of cultural soft power? Not so sure.
Since the Cold War, space law has evolved a lot. In the 20th Century, the battlefield shifted towards the conquest of raw materials… or even towards the search for a famous “Planet B”: Mars is increasingly seen as a new colony to be conquered. Among these modern times conquistadors, the United States of America, China and the United Arab Emirates were in the space spotlight this summer.
SUMMER 2020: A FULLY USED LAUNCH WINDOW
Surely, experts didn’t miss that this summer opened one of the rare launch windows for spacecraft wishing to reach the planet Mars. Indeed, every twenty-six months only, our planets are aligned on the same side of the Sun, and the distance to travel is only fifty-five million kilometers, compared to seventy-six on average. A short 6-month trip, for which the launch window closed on August 5.
The United Arab Emirates (UAE) got the ball rolling on July 19. This outsider of the space conquest has successfully launched the Al-Ahmal probe (Hope in English) from the Tanegashima base in southwestern Japan. The UAE thus asserts itself as the first Arab country to carry out an interplanetary mission. The probe, built in partnership with American universities, mobilised one hundred and fifty UAE engineers and two hundred American experts. It will be placed in orbit around Mars to observe the dynamics behind the slow disappearance of the Red Planet’s atmosphere. For this, it is equipped with three on-board instruments, two spectrometers and one high resolution camera.
More experienced, the Chinese launched their Tianwen-1 (Questions to heaven in English) probe on July 23. The Chinese Long March-5 rocket was scheduled to be launched from the Wenchang base on Hainan Island in the far south of the country. The Tianwen-1 probe addresses many technical challenges: the total mass of the instruments that must operate on Martian soil reaches a record four and a half tons, one of the heaviest loads ever shipped to Mars. An orbiter, a lander and a mobile robot will allow the thirteen on-board instruments to analyze the Martian soil and atmosphere. With their European partners (ASE, CNES, CONAE and the Austrian FGG), the Chinese are investing in five areas of research, linked to the analysis of Martian soil.
Don’t forget that the Americans are still on the agenda. To date, they are the only ones to have managed to land intact robots on Mars. Launched on July 30 from Cape Canaveral in Florida, the Perseverance rover, a one ton state-of-the-art technological gem equipped with seven scientific instruments, will ensure the continuity of the MSL mission operated by Curiosity since August 2012. Perseverance will search for chemical markers and evidence of a passed life around the Jezero crater. More importantly, it will collect more than forty samples of Martian soil. These will wait, in small cylinders sown on the ground, for the Earth Return Orbiter spacecraft. This future mission will be responsible for bringing back to Earth its precious cargo of a few hundred grams in 2031… This somewhat crazy project, of indisputable scientific interest, will have to address many spectacular challenges, such as launching a rocket from the planet Mars. The US mission will also attempt to fly the lightweight Ingenuity drone up to five meters high to analyze the Martian atmosphere. It will also experiment with the possibility of producing oxygen from carbon dioxide… with a view to preparing for a future landing of humans on Mars?
A VERY HIGH RETURN ON INVESTMENT: INNOVATION AND BASIC RESOURCES
The renewed interest in the conquest of Mars may well result from the fact that most people think it is too late to save the Earth: it would be difficult to generate economic growth that is truly uncorrelated with the use of resources. In that case, the power that will be able to exploit the raw materials of the Moon, the asteroids or even the accessible planets will experience a new golden age, like the Spanish and Portuguese in their time. However, while waiting for this direct exploitation of resources, several authors believe that going to Mars represents a major interest for innovation.
First of all, according to Timothée Girod, Head of Consulting at the Bpifrance Support Department, the conquest of Mars induces finding technical solutions for logistics. These are advances that can be reused immediately for satellite constellation projects (military, communications, scientific, etc.) in low orbit. French and European companies are making a major contribution to this. Logistics is a promising field. To meet the needs of manned flights, it will be necessary “to transport loads between several logistics nodes, as can be seen today in land or air transport networks with hubs, and to provide services in space”, says Nicolas Berdou, an investor in Bpifrance’s DefiInvest fund. Private players thus benefit from part of the financial envelope of the major space agencies that subcontract programs to them.
In the health sector, SMEs and start-ups are developing tools for self-diagnosis and treatment, encouraging the development of remote medicine. These innovations make possible to generalize techniques already in use today, such as tele-consultation, or those to come, such as remote surgical operations. For example, Bodycap develops miniaturized electronic sensors communicating wirelessly and global solutions for embedded monitoring. Astronaut Thomas Pesquet has already used them during his stay in the ISS, the International Space Station. In 2020, China experimented for the first time a surgical operation at a distance of 50 kilometers on an animal, thanks to 5G. Surgical operations could be imagined at a distance of about seventy-six million kilometers… Then, it will be possible to transpose the technological advances developed on the soil of Mars itself.
On this planet, robots control energy in an innovative way, manage scarce resources efficiently (recycling of air, water, waste), progress in robotics. Given its position close to the asteroid belt, the planet Mars can be an outpost for studying and preventing the cosmic threat posed by celestial objects. In the more futuristic hypothesis of a true colonization, the asteroids could constitute a precious reserve of raw materials, exploitable from the Red Planet by the Humans who would have settled there. According to Richard Heidmann, founder of the association Planète Mars, “The installation of scientists on the Red Planet will allow us to do comparative planetology, and to better understand the geological and climatic phenomena that govern the Earth. Researchers will be able to improve their models to deduce fundamental laws. If they discover that there was life on Mars, it will transform our vision of the cosmos. But the stakes are also economic. It has become financially possible to go to Mars. As a sign of the times, private companies such as SpaceX or Blue Origin have unveiled plans to do so. In the long term, I believe in an offer of residence on Mars, intended for scientists and wealthy tourists. Incidentally, this colonization, because it poses many technological challenges, will lead to innovations that will benefit the general public. GPS and the satellite were invented through space exploration. Finally, such an adventure constitutes an opportunity for international cooperation, as in the case of global programs to fight hunger or epidemics. The perfect opportunity to strengthen dialogue between countries”. In 2019, SpaceX boss Elon Musk said he hopes to offer tourist trips to Mars for less than half a million American dollars.
Finally, to go to Mars you need astronauts, this facet of the Martian adventure is also to be taken into account: it creates jobs. NASA recruits widely. This recruitment will allow to send Humans on the Moon, then maybe on Mars…
A DIPLOMATIC AND GEOPOLITICAL STAKE
The Hope probe launch allows the UAE to move away from its conservative image and show that it is now a “player in the knowledge society” (Isabelle Sourbès-Verger). It aims to get out of its dependence on oil and to establish itself as a real power. If China succeeds in this feat, it will have done in one go what the United States of America has accomplished in five missions since 1960. This is Beijing’s first completely independent mission and demonstrates that China now has the technology and infrastructure to become a major space power. This will enable China to curb the brain drain from the country to the United States of America and continue to compete with the superpower. Furthermore, Wu Yanhua, the deputy chief of China’s National Space Administration said, “our overall goal is that by around 2030, China will be among the major space powers of the world”.
Though, the United States of America remains the leader in the conquest of space and particularly of Mars. However, the USA does not wish to be surpassed by its biggest competitor, China, and continues its commercial and technological war. Lastly, this year Russia had a joint mission with the European Union called ExoMars which was unfortunately postponed to 2022 due to technical delays and the pandemic. Since World War II, Russia has played an important role in the conquest of space during an ideological war with the United States of America and is still here. It seems that we are witnessing a real space race to find out which State will be the first to send a man to Mars and earned a reputation as a spatial, technological and economic superpower.
AN ENVIRONMENTAL CHALLENGE?
Another issue surrounding the conquest of Mars is undoubtedly the exploitation of its resources. The environmental situation and the climate emergency are in fact pushing us to extend our research field in order to meet our needs. In fact, the overshoot-day meaning the date on which humanity has consumed all the resources that the planet can renew in one-year advances further each year: in 2019 it fell on 1 October and this year, it was 8 August.
Because of its proximity to Earth, Mars can now be used to test the most important extraterrestrial infrastructure ever built for the exploitation and transformation of its natural resources. Much larger than the Moon, the Red Planet will be able to host a large-scale international Martian base that would prefigure the development of planets that are not directly habitable but are interesting for their resources. Many resources could be used, such as water, oxygen, carbon dioxide and certain types of rock. These resources are all the more vital as our use of nuclear and solar energy is changing the role of storage. Thus, we can see that water or carbon dioxide, which can be vectors of energy, will be just as vital because of their role in the methods of extraction of these materials for the storage of energy. It is also worth noting that Mars has a gravity of about a third of that of the Earth, so by deduction it should be possible to extract resources at greater depths without the risk of mines settling or collapsing.
Ultimately, the exploitable volume on Mars is much greater than on our planet. At first glance, the prospects for the conquest of Mars therefore seem very attractive. Some would even go so far as to say that the exploitation and transformation of Mars’ natural resources are the key to the evolution of our autonomy from Earth. Informed readers might wonder about the coherence of exploiting a planet other than ours to the tune of billions, whereas the French economist Dominique Plihon warned in one of his lectures that, faced with the environmental objectives it had set out, Europe currently has a climate investment deficit of more than one hundred and eighty billion euros.
NEW LEGAL ISSUES ARISE: WHO’S THE OWNER? WHO EXPLOITS RESSOURCES?
Legal issues are already very numerous and could be even more so in the future, if a form of life was indeed discovered on Mars. In fact, in this configuration, space agencies would certainly consider a perennial installation on the Red Planet. The question of the resources available on Mars and their exploitation becomes very concrete. Knowing that sending a liter of water to the Moon exceeds one million dollars, Man will absolutely have to find solutions to his own subsistence on Martian soil to settle there. From this point of view, what could the Martian economy look like? The conquest of Mars raises two mains legal issues:
- Can a state (or a private company) claim a proprietary right on Mars?
- Is it possible to exploit Martian resources? Under what conditions?
In the field of space law, one text is unavoidable: the treaty of January 27, 1967, known as “Space Treaty”. Concluded and drafted in the context of the Cold War, before Human’s first steps on the Moon, this treaty could seem to be dated in the contemporary spatial context. Aspirations of the treaty are obvious: making the space being a “Res Communis” common good, without the possibility of appropriation by any State. Indeed, the treaty stipulates in its article 2 a principle of non-appropriation of celestial bodies: “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”.
At that time of tension between two antagonistic blocs, concerns were more focused on the militarization of space, rather than the exploitation of its resources, it is why the treaty does not make this subject a keyword.
U.S. SPACE ACT: BREAKING THE RULES?
This deficiency is all more noticeable since the U.S. Space Act of 2015, which reforms the American space law to promote the development of private space flight and the space mining industry. In particular, the Space Act charges the President, acting through appropriate federal agencies, to “promote the right of U.S citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with such obligations and subject to authorization and continuing supervision by the federal government”.
The question that arises is the compatibility of American law with article 2 of the 1967 treaty. While Americans wouldn’t recognise it, many believe that it is in total rupture with the prohibition of national appropriation. But is the answer so obvious? Does the exploitation of resources mean appropriating the land that contains them? Whether or not this law breaks with the initial treaty, it is a fundamental step in the privatization of space and the exploitation of Mars. On the other hand, it could compromise the effectiveness of the space treaty, which rests, like all the others, on the reciprocal respect of the adherent States. However, if a signatory like the United States of America decides to no longer respect it, it is highly likely that the other States will also renounce it.
From this perspective, the race to Mars would be governed primarily by unilateral states decisions, which would authorize the exploitation of resources, rather than cooperation built on international law. The celestial bodies and their resources would no longer be res communis, but terra nullius: land without owners, on which a State could base its sovereignty.
A Luxembourg law of July 20, 2017 seems to confirm the new direction that space law is following. In fact, it is quite similar to the American law, since it has in its first article that “The resources of space are susceptible to appropriation” before adding in its second article that “no person may explore or use the resources of the space without be in possession of a written mission approval from the ministry having in their attributions the economy and the activities of space”. Another specificity is that this approval can only be granted to a private company, with its head office at Luxembourg. A new evidence on the trend that space law is following, that should be linked to the exploitation of Mars. What’s next?
Research projects on Mars have barely materialised when other Red Planet projects are already underway, so legal and economic issues are of hot topic. Several national and international space companies and agencies plan to exploit the research data and develop their technical capacities to colonise Mars.
MARS ONE, A FRAGILE CONQUEST PROJECT
A first project, entitled Mars One, was proposed in 2012 by a Dutch entrepreneur. This project was to send the first humans in the 2020s on the planet. The goal was to create a base made up of people selected for their skills. A space reality television show was to be organized as a media follow-up from the base.
Two entities, the Mars One Foundation and the Mars One Ventures, are involved in the project. The difficulty with these entities is that they are not specialized in aerospace. The credibility of the project is called into question by this element. Investors find it difficult to buy into this project. Mars One Ventures was put into receivership in February 2019. Without it, the Mars One Foundation cannot do anything. This event highlighted the difficulties of the project, it may not lead to anything concrete.
AN AMERICAN ADVANCE IN THE CONQUEST OF MARS
The United States of America keep a significant lead in the conquest of Mars. American projects are pharaonic. Organizations are already trying to overcome the technical difficulties in order to conquer the Red Planet as quickly as possible. Elon Musk presented, on September 27, 2016, the project of the company SpaceX to create a human colony on Mars. The goal of the project is to begin the conquest of Mars in 2024. The project seems quite promising on several points, in particular technical and financial. Several rocket prototypes were tested in preparation for the trip. The goal is to reduce costs but also to increase the power and speed of its space shuttles. The technical means envisaged by SpaceX could make it possible to make the trip between Earth and Mars in three months instead of the six months initially planned.
The National Aeronautics and Space Administration (NASA) also plans to conquer planet Mars. Its first objective is to send humans back to the Moon. The Moon is the test which makes it possible to know if we can live and work in a new world. A base on the Moon would then be the first step before reaching Mars. The window that would be the most viable to reach Mars with the lowest possible energy consumption occurs only every fifteen years. Thus, the launch of a human base on Mars would be considered as early as 2033. Given the difficulties, notably budgetary and technical, NASA may not be able to achieve the objective of creating a human base on Mars until the end of the 2030s.
IS A FRENCH OR EUROPEAN PRESENCE TO BE HOPED IN THE CONQUEST OF MARS?
The European Space Agency (ESA) is considering building a human base on the Moon by 2025, before considering conquering Mars. The goal, on the Moon, would be to establish a small village with its houses, church and administrative buildings. This village would be a center of research and exploration based on international cooperation. ArianeGroup is preparing an Ariane 6 rocket that would be able to send up to eight and a half tons of payloads to the Moon. The European objective is then appreciably close to that of NASA: the two projects face a risk of competition. There are still many legal questions to be raised… Will the spirit of cooperation of Article I of the 1967 Outer Space Treaty survive? This is what can be said concerning the conquest of Mars.
This article was written by Corinne BAUDOIN, Laetitia PIETRI, Pierre-Yves VILLARD, Guillaume BRESSON, Bianca-Laetitia TOMASI, Élise DRILHON and Esther SENG GARCIA (Paris-Saclay).