(This entry is cross-posted from IntLawGrrls: http://ilg2.org/2016/01/12/international-space-law-in-the-martian/)
So it took me a while to catch up, but I finally watched the film “The Martian”, in which the main character, Mark Watney, is left behind on Mars when the rest of his crew makes an emergency departure, assuming he is dead at the time. I expected yet another drama-filled sci-fi film, complete with intense music and an apocalyptic scenario, and instead I was treated to a story about problem solving and co-operation, accompanied by a fun disco soundtrack, since this is the only music left behind for Watney to listen to. It struck me that the book by Andy Weir, and the film based upon it, were written to inspire a new generation of space scientists and policy makers, about what’s possible if we set our minds to it. (And that even a woman might be the scientist who makes an important discovery, in the depiction of satellite operator Annie Montrose.)
As an international space lawyer I am also excited to see some elements of space law come to the surface. Without wanting to spoil the film for anyone who has not seen it, I want to comment on a few such issues which arose in the film.
The most obvious were the references made by Watney himself. As he prepares to leave the US NASA-owned “Hab”, or the habitation pod, and cover a large distance in search of a small US-owned rocket stationed there for a future mission, he comments in a video log that he is leaving US territory to enter what is essentially international waters. As he states, there is a treaty which says that nobody can own any natural object in space, including a planet. This treaty is the 1967 Outer Space Treaty, and Article II says that outer space, including any celestial body (all planets, moons and asteroids) is “not subject to national appropriation, by means of claims of sovereignty or by any other means.”
Watney says this means that space falls under maritime law, which is not entirely correct, but it’s an easy way to translate to a non-law audience what it means that no State may claim sovereignty over any natural object in space. Many people have a basic understanding that the high seas belong to no-one.
He then says that because he will cross from the US owned Hab to essentially commandeer a rocket which he has not been given permission to enter and use, while in “international waters”, this makes him the world’s first space pirate. A bit of sci-fi fun, to be sure, and if he were in fact commandeering a space vehicle without permission, he could be considered a space pirate. But in fact he boards the US-owned rocket with the full consent and cooperation of NASA, thus moving from one location which falls under US jurisdiction to another, without breaching any international law.
Watney is correct in stating that when he is in the NASA Hab, and once he is inside the NASA rocket, he falls under US law. According to Article VIII of the Outer Space Treaty, the State which registers the launch of an object under its jurisdiction maintains jurisdiction over that object, and also over any personnel on that object at all times.
As well, under Article I of the Outer Space Treaty, everyone has freedom of access to outer space and all areas of celestial bodies, without prejudice; thus his movement across the Martian terrain from one object to the next is entirely permissible, as long as it is peaceful: Article IV of the Outer Space Treaty states that “the Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.”
One important missing piece in the film is the international space law that obligates all States who are able to do so, to assist an astronaut in distress. Article V of the Outer Space Treaty denotes astronauts as “envoys of humankind”, and creates an obligation to assist the astronauts of another State which crash on one’s own territory or on the high seas; or if a State has astronauts of its own in space who can help the astronauts of another State in space, they must do so. The 1968 Astronaut Agreement took this a step further; Article I says that if the distress occurs in an area that is beyond the territory of any nation, then any state party that is in a position to do so shall, if necessary, extend assistance in the search and rescue operation. The Astronaut Agreement almost didn’t come into being, since it includes clauses that obligate States not only to aid astronauts in distress, but also to return all objects that might land on one’s territory as the result of an accident. Given that there was much secrecy as to space capabilities during the Cold War, and the USSR and the USA were the only two space-faring nations, there was some reluctance to agree to the obligation to hand over bits of an adversary’s technology which might otherwise be useful to study and learn from. However in 1967 in two separate incidents, both the US and the USSR suffered the loss of astronauts in tragic accidents, and as a result the Astronaut Agreement came into being.
In the film (spoiler alert!), the Chinese National Space Administration offers help to NASA of its own volition, since it has a secret technology of which the US is unaware. It offers a small pod which can act as a rendez-vous with the larger space ship that is set on course to Mars to rescue Watney, and in doing so gives away its secret technology. The decision to do so is a political one: as the president of the Chinese National Space Administration says, if the world were to come to know after the fact that China could have helped and did not, this would be disastrous. Perhaps this was a nod to the Astronaut Agreement, but it would have been nice to have it named explicitly, especially since China is a party.
So a new cooperation is born – however it is done so carefully between the space agencies and between the scientists, rather than between the heads of State or through diplomatic channels. This is in fact quite a likely depiction. During the Cold War, as US presidents and USSR Chairmen changed, and policies on space changed too, it was decided among the scientists on both sides to share information for mutual benefit, and to co-operate at a peaceful and neutral level on advancing human space flight.
In this respect it was a shame that the scenario depicted in “The Martian” is an exclusively US NASA mission to Mars. As the international cooperation on the International Space Station demonstrates, even in times of political tensions, Canada, the EU, Japan, Russia and the US continue to work together, since the mission depends entirely upon cooperation. Similarly, the European Space Agency conducted the successful Rosetta project, and in 2015 landed it’s smaller probe Philae on an asteroid to study it, due to the cooperation of multiple European States. Surely it has become clear that as space exploration becomes more complex, multinational projects are the most likely way forward, sharing the financial burdens and risks, but also benefiting in exactly the way the Outer Space Treaty intended: Article I states “the exploration and use of outer space shall be carried out for the benefit of and in the interests all countries…”
That said, kudos to author Andy Weir for including Chinese-US cooperation in his story of collaboration and collective problem solving. In the final scenes (another small spoiler alert), approximately a year after Watney’s adventures have come to a close, the next Mars mission is being launched and it includes one Chinese astronaut. The President of the Chinese National Space Administration and his advisor are in the room shaking hands with the NASA team. This was truly a story of optimism, scientific creativity, cooperation and collaboration, and (mostly!) in line with existing international space law.