This is a draft article I wrote for wikipedia. about the legal issues and requirements for public debate for return of a sample to a Mars Sample Return Receiving Facility. It is background material for Need For Caution For An Early Mars Sample Return – Opinion Piece.
I found out that some wikipedian editors have a heart felt belief that this material should not be included in the encyclopedia, and their views currently prevail in the relevant topic areas. So I’ve posted it here instead. This is permitted under the wikipedia CC By SA license. As required, this modified version is also released under CC By SA.
In the low probability worst case scenario, the effects could be felt by parties outside of the state that launches the mision. As a result, most researchers also agree that a full and open public debate of the back contamination issues is needed at an international level. This is a legal requirement., and it’s been argued that it is an ethical requirement as well.
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 The Apollo era quarantine laws have been rescinded.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.
When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.
In this context the proponent of an activity, rather than the public, should bear the burden of proof.
The process of applying the Precautionary Principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action 
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:
- Best Available Technology Precautionary Principle: Activities that present an uncertain potential for significant harm should be subject to best technology available requirements to minimise the risk of harm unless the proponent of the activity shows that they present no appreciable risk of harm.
- Prohibitory Precautionary Principle: Activities that present an uncertain potential for significant harm should be prohibited unless the proponent of the activity shows that it presents no appreciable risk of harm…
…It is not possible to demonstrate that the return of a Mars sample presents no appreciable risk of harm. Therefore, if applied, the Prohibitory Precautionary Principle approach would simply lead to the cancellation of the MSR mission
They therefore argue that the Best Available Technology Precautionary Principle should be used instead.
The definition of Precautionary Principle and the associated conditions presented above align perfectly with the potential risks posed by a Mars sample and the ESF-ESSC Study Group recommends that the Best Available Technology Precautionary Principle is applied when considering the potential release of unsterilised Mars particles.
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.
Under the Liability Convention (United Nations, 1971), the launching State is liable for “damages caused by the space object”. If a sample has detrimental consequences on Earth, it may be considered that the State having launched the spacecraft is liable under this convention (absolute liability without any ceiling either in amount or in time; Liability Convention Article 1 – loss of life, personal injury or impairment; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations).
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 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 problem of risk – even extremely low risk – is exacerbated because the consequences of back contamination could be quite severe …the consequences might well include the extinction of species and the destruction of whole ecosystems. Humans could also be threatened with death or a significant decrease in life prospects”
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.
- Follow best practises of planetary protection (already being done).
- 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.
- 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.
- The entire process must be transparent to the interested public.
- Mars Sample Receiving Facility and sample containment
- Discussion of science value of a Mars sample return – relevant to decisions about whether or not to proceed with the mission
- Dissenting views on Mars sample return back contamination risks – views of the ICAMSR and Zubrin.
- Need For Caution For An Early Mars Sample Return – Opinion Piece
This is material originally written for wikipedia and so is released under the CC By SA license In short, you can use it as you like, including commercially, but must credit me as the main author, and any modifications you make must be released under the same license.
Others contributed only very minor edits such as formatting, spelling, and rephrasing. You are not required to credit them.
I found out that some wikipedian editors have a heart felt belief that this material should not be included in the encyclopedia, and their views currently prevail in the relevant topic areas. So I’ve posted it here instead.
- Robert Zubrin “Contamination From Mars: No Threat”, The Planetary Report July/Aug. 2000, P.4–5
- transcription of a tele-conference interview with ROBERT ZUBRIN conducted on March 30, 2001 by the class members of STS497 I, “Space Colonization”; Instructor: Dr. Chris Churchill
- ?Mars Sample Return backward contamination – strategic advice? (Report). European Science Foundation. 2012. “RECOMMENDATION 10: Considering the global nature of the issue, consequences resulting from an unintended release could be borne by a larger set of countries than those involved in the programme. It is recommended that mechanisms dedicated to ethical and social issues of the risks and benefits raised by an MSR are set up at the international level and are open to representatives of all countries.“
- Mars Sample Return backward contamination – Strategic advice and requirements see 7.2: Responsibility and liability of States
- M. S. Race Planetary Protection, Legal Ambiguity, and the Decision Making Process for Mars Sample Return Adv. Space Res. vol 18 no 1/2 pp (1/2)345-(1/2)350 1996
- Wingspread Conference on the Precautionary Principle Wingspread, headquarters of Johnson Foundation, January 26, 1998
- European Science Foundation – Mars Sample Return backward contamination – strategic advice – (see The Precautionary Principle in the context of MSR) – February 23, 2010
- Exploring the Origin, Extent, and Future of Life: Philosophical, Ethical and Theological Perspectives Chapter 10, A Christian Perspective (Richard Randolph), Cambridge University Press, 3 Sep 2009 Constance M. Bertka (ed)
- Cambridge project | The Cambridge Project for Existential Risk
…The risk of back contamination is not zero. There is always some risk. In this case, the problem of risk – even extremely low risk – is exacerbated because the consequences of back contamination could be quite severe. Without being overly dramatic, the consequences might well include the extinction of species and the destruction of whole ecosystems. Humans could also be threatened with death or a significant decrease in life prospects
In this situation, what is an ethically acceptable level of risk, even if it is quite low? This is not a technical question for scientists and engineers. Rather it is a moral question concerning accepting risk. Currently, the vast majority of the people exposed to this risk do not have a voice or vote in the decision to accept it. Most of the literature on back contamination is framed as a discourse amongst experts in planetary protection. Yet, as I’ve already argued, space exploration is inescapably a social endeavor done on behalf of the human race. Astronauts and all the supporting engineers and scientists work as representatives of all human persons….