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The Fifth Eilene M. Galloway Symposium on Critical Issues in Space Law: Planetary Protection

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by P.J. Blount with the blog faculty

The second panel of the symposium focused on planetary protection and was moderated by Tanja Masson-Zwaan, President of the IISL and Director, International Institute of Air & Space Law, Leiden University. Presenters were Dr. Catherine Conely, Planetary Protection Officer, NASA; Jean-François Mayence, Head of the Legal Unit “International Relations,” Belgian Federal Office for Science Policy, Brussels; and George Robinson, Robinson and Robinson, LLC.

Conely presented on “Planetary Protection and Article IX of the Outer Space Treaty.” She stated that planetary protection was a two part policy. The first part was the protection of planetary environments of avoidance of forward contamination, and that the second portion was the protection of the Earth from extraterrestrial material or back contamination. She then discussed the science behind how introduced organisms can have ecological impacts on the environments to which they have been introduced. Next, she noted that this has been a concern for planetary scientists from early days of the field, and then moved to a discussion of the COSPAR policy on planetary protection. She also noted that COSPAR has a standing panel on planetary protection. She also stated that both NASA and ESA have planetary protection policies, and gave an overview of how both work within the their respective frameworks. She then discussed how the COSPAR policy uses mission constraints on a case by case basis. She said that COSPAR adjusts constraints depending on how much scientific interest there is in a particular celestial body and it’s relevance to understanding the origins of life. Next, she moved to a discussion of questions of how commercial enterprises will work in the framework of planetary protection.

Mayence presented “Planetary Protection: Towards a Space Environment Law?”. First he turned to considerations of what constitutes an “environment” and whether space can be considered an environment. He argued that space should be considered a para-environment, in that it is part of the human environment, but not directly an environment of its own. He then moved to legal concerns. He pointed to the non-contamination clause in Article IX of the Outer Space Treaty, the development of orbital congestion, the application of the rule of no-adverse changes to celestial bodies found in the Moon Agreement, space debris and traffic management initiatives, and the COSPAR planetary protection policy. Next, he moved to general environmental law. He said that there were four primary dimensions of environmental law: the health dimension, the social dimension, the economic condition, and ethical dimension. He noted that space is subject to general international law as stated in Article III of the Outer Space Treaty, and then noted that international law has experienced a shift from an emphasis on sovereignty over natural resources to an emphasis on environmental concerns. He also emphasized the precautionary principle found in international environmental law is applicable to outer space. He then stated that there were three domains of space environmental policy: planetary protection, orbital activities management, and protection from near earth objects. He concluded that the space environment issues require political and legal responses.

The final presentation was by George Robinson on “Article IX and Extraterrestrial Contamination: Quarantine, the US Constitution, and National Legislation.” He began by stating that there were very real issues with definitions of terms found within Article IX. He then moved to the issues involved with quarantine and seizure of property in relation to the US law. He stated that under US law lawful contamination can only occur after exposure to a known infectious disease. He noted that this legal requirement might be problematic in relation to unknown organisms that might be found in space. He the moved to a discussion of the 5th Amendment to the US constitution which places limits on the governments ability to take property from citizens, but that health and safety related takings receive more deference when being examined by courts. He discussed how provisions of the various space treaties interact with US law on this matter. He also stated that NASA’s planetary protection office and work done by COSPAR has been important in this field.