Mars Sample Return Legal Issues and International Public Debate

This article concerns legal issues and requirements for public debate for return of a sample to a Mars Sample Return Receiving Facility.

The NRC and ESF findings on risks of environmental disruption are accepted by most participants in this debate (with the notable exception of Robert Zubrin ). As a result, it is agreed by most researchers that a full and open public debate of the back contamination issues is needed at an international level. This is also a legal requirement.

This low probability risk of environmental disruption makes the legal situation complex and likely to take many years to resolve. The Apollo era quarantine laws have been rescinded. New quarantine laws for handling the samples would need to be created, a process likely to take longer than it did for Apollo 11. There are laws to do with environment which did not exist in the Apollo era, and laws to do with human health to be considered, both domestic for the nation launches the mission, and international. Other nations could raise legitimate concerns under these laws, and their own domestic laws, which would need to be addressed.

In this page I summarize the findings of the European Space Foundation, of Margaret Race, a senior research scientist for  SETI (who also used to work for the Office of Planetary Protection ) and Richard Randolph , a theologian who has co-authored several papers with Margaret Race.

By the Precautionary principle, as described in the Wingspread conference., a key principle in political decision making, and law:

Precautionary principle in the context of Mars Sample Return
The ESF-ESSC Study Group on MSR Planetary Protection Requirements studied various versions of the Precautionary Principle in the context of Mars Sample Return. This study found that the ones that were most relevant are:

They continue:

They therefore argue that the Best Available Technology Precautionary Principle should be used instead.

In this context a required level of risk needs to be determined to assess the technology used. They recommend a one in a million chance of release of a particle from Mars as an acceptable level of risk. Their reasoning is that the chance that the particle is hazardous is already low, and then by making the chance of release as low as one in a million, the combined risk is low enough to be acceptable.

They consider it important to educate the public on the nature of the risk and to monitor and react to public perception of risk of MSR.

Legal liability in case of damages
The ESF report considered this and came to the conclusion that in the event of a release of the contents of the MSR capsule during return to Earth then the state responsible has unlimited liability in respect to any damages caused.

They also examined the case where the damages occur as a result of release after the capsule has returned to an Earth laboratory. They concluded that in this case the situation is less clear. The unlimited damage clause may still apply, or they might instead be responsible for an illegal act under general international law in violation of Article IX of the Outer Space Treaty, which doesn't have the same provisions of unlimited liability.

Legal process of approval for Mars sample return
Margaret Race has examined in detail the legal process of approval for a MSR. She found that under the National Environmental Policy Act (NEPA) (which did not exist in the Apollo era) a formal environment impact statement is likely to be required, and public hearings during which all the issues would be aired openly. This process is likely to take up to several years to complete.

During this process, she found, the full range of worst accident scenarios, impact, and project alternatives would be played out in the public arena. Other agencies such as the Environment Protection Agency, Occupational Health and Safety Administration, etc, may also get involved in the decision making process.

The laws on quarantine will also need to be clarified as the regulations for the Apollo program were rescinded. In the Apollo era, NASA delayed announcement of its quarantine regulations until the day Apollo was launched, so bypassing the requirement for public debate - something that would be unlikely to be tolerated today.

It is also probable that the presidential directive NSC-25 will apply which requires a review of large scale alleged effects on the environment and is carried out subsequent to the other domestic reviews and through a long process, leads eventually to presidential approval of the launch.

Then apart from those domestic legal hurdles, there are numerous international regulations and treaties to be negotiated in the case of a Mars Sample Return, especially those relating to environmental protection and health. She concluded that the public of necessity has a significant role to play in the development of the policies governing Mars Sample Return.

Requirement for public debate
In addition to the legal requirement, it's been argued that there is a moral requirement for full and open public debate of the issues.

The ESF study recommended:

The theologan Richard Randolph (in 2009) examined this in detail from a Christian perspective and came up with some recommendations, which are of general interest.

The last case of "Humans could also be threatened with death or a significant decrease in life prospects" brings this into the region of existential risks.

He argued that this makes it not a technical problem for scientists to study but an ethical problem requiring extensive public debate at the international level.

He puts forward four criteria to ensure a full and open public debate.


 * 1) Follow best practises of planetary protection (already being done).
 * 2) Opportunities should be avaliable for open comment from those concerned about back contamination. These should be taken seriously and NASA should publicly respond to them.
 * 3) A committee should review the measures, including experts in ecology, biology, chemistry, risk analysis and ethics. Ethicists should represent a diversity of philosophical and religious perspectives.
 * 4) The entire process must be transparent to the interested public.