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Space activities have taken off in the 21st century, with dozens of new countries and commercial enterprises pursuing space science, tourism, asteroid mining, and maybe even settling on the Moon and Mars. In the next decade, the global space economy is projected to nearly triple to $1.8 trillion, and NASA’s partnerships with companies such as SpaceX and Blue Origin are critical to furthering space exploration and development of a “low Earth orbit economy.”

While living on the Moon or Mars may sound farfetched now, the proliferation of new players and rapid advances in technology call for thinking ahead about the options, risks, and legal frameworks governing space activities, says Jonathan Wiener, a risk expert and professor of law, environmental policy, and public policy at Duke University.

“A reaction I often get is, ‘Isn’t it premature to talk about interplanetary law or regulation when we don’t have settlements or bases on other planets yet?’ Wiener said.

“But there are important issues that we should address in advance, before we set up bases or settlements, and some of these issues are already facing us today.”

As more government and commercial enterprises engage in space activities, managing potentially catastrophic risks, weighing trade-offs, and reducing conflicts become more difficult, says Wiener. Current international law and agreements, like the 1967 Outer Space Treaty (OST) and the newer Artemis Accords, don’t adequately address or regulate existing or unforeseen risks, he says, much less set up a framework for governing relations with future settlements.

“Even the term ‘space law’ needs to be updated. Space law treats the Earth as home in one category, and everything in outer space — our solar system, all the other planets and their moons, and the rest of the universe — as an enormous all-encompassing second category,” Wiener said.

“That's a very geocentric perspective, and as we start to have more activities, perhaps on the Earth’s Moon, on asteroids, and on Mars and other planets, we're going to have to start differentiating our activities and our relationships with those other places — especially if we have human settlements there. We need to think about interplanetary relations in a less homogeneous way than just outer space as a single category.”

In Interplanetary Risk Regulation, Wiener and co-author Chase Hamilton JD ’21 outline a new arena of governance to develop rules and institutions for space activities by governments and commercial entities — activities that offer great opportunities, but also could inadvertently trigger an existential catastrophe. Wiener teaches a class on space law at Duke Law School and co-directs the Duke Center on Risk. Hamilton's practice at Akin includes space law and policy. 

“It’s possible to have an extinction event from a small mistake in space,” Wiener said. “We face significant unknowns out there when we explore the vast universe and all its different environments."

New regulatory institutions needed to fill in gaps

In their paper, the authors address two such risks that face us today and that could cause catastrophic consequences: asteroid collisions and microbial contamination. Each could damage Earth, other planets, and our future settlements and orbiting space stations.

Near-Earth objects (NEOs) such as asteroids, meteors, and comets have already caused a range of damage to Earth. A meteor that struck Chelyabinsk, Russia, in 2013 injured more than 1,600 people and caused damage over 200 square miles. A 1908 explosion over Siberia felled some 80 million trees over more than 800 square miles. And 66 million years ago, a very large asteroid’s impact created the Chicxulub crater off the Yucatan peninsula and led to the extinction of dinosaurs.  

The possibility of future NEO collisions requires planning and coordination for early detection, monitoring, impact assessment, response, and potential deflection.  In 2022, NASA tested the first ever mission – called DART – to deflect an asteroid. 

“We need planetary defense against asteroids to protect the Earth, and if we settle other planets in the future, we'll have to defend them from asteroids too,” Wiener said. “Mars may be even more vulnerable to asteroids than Earth. And we’ll need a more globally inclusive – or interplanetary – governance regime to decide on future NEO deflection missions.”

Microbial contamination is another potentially serious space risk that we already face, Wiener and Hamilton say. Extraterrestrial matter could have adverse effects on the Earth environment, while biological materials from Earth could harm other celestial bodies. These risks are flagged in the 1967 OST, but unmentioned in the Artemis Accords, and only partially addressed by laws today, the authors argue.

NASA quarantined the Apollo 11 astronauts returning from the Moon to be sure they were not carrying pathogens. But these and other missions left wastes on the Moon, and a 2019 Israeli mission that crashed on the Moon spilled a sample of tardigrades, potentially contaminating the lunar surface. And the Russian space station Mir harbored fungi that were resistant to radiation.

The OST calls for avoiding interplanetary contamination risks, and a scientific body called COSPAR promulgates guidelines, but there is no global body to apply rules on interplanetary biosafety to governments and private actors, and national laws are incomplete.

And while the OST addresses two-way contamination between Earth and other celestial bodies, it seems to omit terrestrial materials that are mutated or altered in space and brought back to Earth. The treaty also doesn’t define terms like “harmful” or “adverse.” New cooperative interplanetary institutions are needed to fill these regulatory gaps, Wiener says.

“All of these considerations suggest that planetary defense against asteroids, and planetary protection against contamination — including of Earth and other vulnerable celestial bodies we may settle, such as Mars — may require forms of risk regulation managed by cooperative interplanetary institutions that do not yet exist." 

Regulation should reduce overall risk, he says, accounting for multiple risk-risk trade-offs while not inhibiting activity that could benefit humanity and other living things. Even the radiation-adapted fungi brought back from Mir might have an upside for human applications.

“We know a lot more now than we did 50 years ago at the time of the Apollo missions to the Moon, but we're going to new places where we're discovering new things,” Wiener said. 

“Even if a scenario has a very low probability, if the consequences could be catastrophic, then it’s worth taking sensible precautions — not so stringent that they would stifle all space exploration, but doing it in a smarter, safer way, so we can survive and learn. If we stumble into an existential risk, we don’t get a second chance.”