Legal Challenges of the New Space Race to Mars: Proposal for the Use of a Three-Tier Legal Framework
The beginning of the space race, which took place during the 1950s, led to the establishment of the foundations for the regulatory framework for space activities, i.e. the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. Today, however, space missions significantly differ from the achievements of the 1950s as humanity is close to deploying manned missions to Mars. Yet, the relevant legal framework remains the same as 40 years ago, which raises doubts on its current relevance.
The present space race to Mars – mainly led by the private sector – already reincited discussions on appropriation, use of resources and possible settlement. To support their projects, private companies are interpreting the treaties loosely. According to them, the legal term “celestial bodies” does not include Mars, while the non-appropriation principle allegedly only applies to states, not to possible private owners.
Even though private actors constitute the driving force in future space activities, states are still responsible for their national activities. Therefore, the existing legal shortcomings of the OST need to be revisited. However, amending the OST or creating a new space treaty is unlikely to occur due to world politics; hence, the need for a novel solution to incorporate and reinforce the fundamental philosophies behind the OST.
Therefore, this paper proposes the use of three-tier legal frameworks, crafted after the legal model adopted for the so far most complex space mission, the ISS. More specifically, this paper suggests that Mars missions be regulated explicitly and individually among participating entities, which would facilitate enforceability. Thereby, missions to Mars would still be guided by the principles of the OST, yet protected through specific obligations.