The Beresheet lunar lander being prepared for launch. Unbeknownst to SpaceIL, the “Lunar Library” payload on the lander provided by the Arch Mission Foundation included tardigrades, setting off a space law controversy when their presence was ultimately disclosed. (credit: IAI)

The curious case of the transgressing tardigrades (part 1)

The Curious Case of the Transgressing Tardigrades is still developing, but this essay (the first of two parts) attempts to collect in one place various perspectives on the issues involved. These perspectives include an international legal context of the situation, domestic regulatory and business perspectives, geopolitical and diplomatic implications, as well as a basic discussion of the astrobiological norms and social considerations which shape and inform the previous topics.

This incident is important because it is a glimpse of things to come, a near future where space actors will be more autonomous and independent of governmental oversight and intrusion, where scientific concerns like planetary protection sit uneasily with commercial interests, where national and international norms appear increasingly outdated, and where the visions and actions of space “pioneers” and space “colonizers” are frankly not the only voices that matter.

Background of the Beresheet mission

The Beresheet mission to the Moon was launched on February 22, 2019, and was envisioned as a landmark achievement and national triumph for Israel. Despite the mission stumbling right before touchdown on the lunar surface (see “If at first you don’t succeed…”, The Space Review, April 15, 2019), it is certainly a technological accomplishment that Israel (the self-styled “start-up nation”) can be proud of. The Beresheet lunar lander mission ought to be remembered as a great first attempt by Israel to reach and explore the Moon, something only a handful of nations has achieved. However, it’s now coming to light that this mission may be remembered for something more unsettling.

Unfortunately, this is not the first time someone seems to have launched unauthorized cargo into space.

The Arch Mission Foundation, a non-profit organization concerned with “backing up” humanity by sending DNA and cultural artifacts to space, secured a spot on the Beresheet lander as the payload creator of a Lunar Library for Israel, a kind of half-scientific, half-sentimental artifact for installation on the lunar surface. The Lunar Library, a small DVD-sized archive, was housed on the platform in the fuel tanks, below the engines of the Beresheet lander. Launch partners were aware of the Lunar Library payload, but apparently not apprised of an intentional last-minute inclusion.

After the lander crashed into the Moon on April 11, the Beresheet story seemed to be at a close. Then in August, Nova Spivak, the Founder and Executive Director of Arch Mission Foundation, revealed in a Wired article that the Lunar Library contained tardigrades: tiny microscopic life forms that are ferociously resilient and unconcerned with the vacuum of outer space and the deadly background radiation of space. In a Mashable interview, he called himself a pirate and revealed that he did not even tell SpaceIL, the Beresheet mission planners and operators; or Israel Aerospace Industries, the builder of the spacecraft. “We didn't tell them we were putting life in this thing,” he said in that interview. “Space agencies don't like last-minute changes. So we just decided to take the risk.” Spivak allegedly included tardigrades into the lunar archive in epoxy and into the Kapton tape sealing the archive.

Why this matters

Unfortunately, this is not the first time someone seems to have launched unauthorized cargo into space. In 2018, Swarm Technologies, a Silicon Valley startup, launched four of its “SpaceBees” smallsats into orbit on an Indian rocket. The US Federal Communications Commission (FCC) initially denied Swarm a license because it feared the objects would be too small to track.

This action raised the question about whether commercial space actors should be regulated more closely, and whether the US was not putting too much trust in companies to police themselves. In the end, the FCC issued Swarm a fine of $900,000, which might be considered relatively small when compared with the scope of most commercial space operations. Swarm paid this $900,000 fine while successfully raising $25,000,000 in Series A funding just a few weeks later, a funding round which relied on the SpaceBees being launched. Economically, Swarm Technologies were incentivized to go against the FCC, and a cynic might even say that the company was financially rewarded for it.

In this atmosphere with a slackening respect for the rule of law, it now seems necessary to outline and make explicit those norms applicable to multiparty, international, mixed private and governmental space activities like Beresheet.

Planetary protection

Planetary protection is the notion that space exploration missions, whether robotic or crewed, run the risk of biological contamination of celestial bodies which may spoil or prejudice scientific investigations of possible extraterrestrial life forms, precursors of life, and remnants of past life. COSPAR, the Committee on Space Research, is an interdisciplinary scientific committee of national scientific organizations and international scientific unions, and is focused on promoting the scientific research of outer space. COSPAR has been concerned with the protection of celestial bodies and of avoiding their organic and biological contamination since the late 1950s.

The COSPAR policy is not legally binding on any States. States can implement it voluntarily through domestic laws or regulations. Some States have chosen to do so because they see value in all actors conducting themselves responsibly.

The latest iteration of their Planetary Protection Policy from December 2017 updates its classification of planetary protection requirements according to combinations of the proposed mission’s target planet and mission type. These categories range from Category I, with no degree of concern, all the way to Category V, with quite specific and stringent protection requirements.

Category I includes any mission to a target body which is not of direct interest for understanding the process of chemical evolution or the origin of life. No protection of such bodies is warranted, and no planetary protection requirements are imposed. Category I missions include flybys, orbiters, and landers of any undifferentiated, metamorphosed asteroids, Io (the innermost moon of Jupiter), and other destinations (to be defined by COSPAR).

COSPAR planetary protection policy for the Moon

Missions to the Moon comprised of flybys, orbiters, and landing missions, where no return to the Earth is planned, fall into Category II:

Category II missions comprise all types of missions to those target bodies where there is significant interest relative to the process of chemical evolution and the origin of life, but where there is only a remote[1] chance that contamination carried by a spacecraft could compromise future investigations. The requirements are for simple documentation only. Preparation of a short planetary protection plan is required for these flight projects primarily to outline intended or potential impact targets, brief Pre- and Post-launch analyses detailing impact strategies, and a Postencounter and End-of-Mission Report which will provide the location of impact if such an event occurs.

For the Moon, the COSPAR rules require a Planetary Protection plan, including a series of reports both pre-launch report, post-launch report, post-encounter report, and an end-of-mission report.[2]

Legal status of the COSPAR planetary protection rules

The Planetary Protection Policy is a reference document promulgated by COSPAR, an international scientific organization rather than a legislative body. The Policy is not binding law, but is followed by space agencies. The preamble to the Policy notes:

therefore, COSPAR maintains and promulgates this planetary protection policy for the reference of spacefaring nations, both as an international standard on procedures to avoid organic-constituent and biological contamination in space exploration, and to provide accepted guidelines in this area to guide compliance with the wording of this UN Space Treaty and other relevant international agreements.

The COSPAR policy is not legally binding on any States. States can implement it voluntarily through domestic laws or regulations. Some States have chosen to do so because they see value in all actors conducting themselves responsibly. On the domestic level in the US, these planetary protection rules are made mandatory for NASA missions by a NASA Policy Directive,[3] and are currently reflected in the NASA Planetary Protection Provisions for Robotic Extraterrestrial Missions document.[4] NASA takes planetary protection seriously at its Office for Planetary Protection, and its office of Safety and Mission Assurance implements planetary protection on NASA missions. Previous NASA robotic lunar landers and orbiters conformed with planetary protection policies, and have documented such conformity.[5]

Liability is a requirement to pay compensation. A related but broader legal concept is “responsibility,” which is a requirement to govern your actions and to be held accountable for your actions and the actions of others imputed to you.

For commercial space activities, the FAA imposes these provisions as well, and includes them by reference in its launch and payload review process of any non-US governmental space missions that it reviews and authorizes. For the SpaceIL lunar lander, owned by SpaceIL and operated out of the Israeli Aerospace Industries (IAI) mission operation center, COSPAR’s Planetary Protection Guidelines themselves were not binding. However, they became binding by inclusion into the FAA Review Process, and SpaceIL sought to comply with them by applying for a Payload Review and Determination in February of 2018. The FAA’s response details as such in its Determination to SpaceIL of July of 2018.

Does the Lunar Library comply with the planetary protection rules? That would have been a question for the FAA, in consultation with NASA, to answer as part of its payload review before the launch. The Arch Mission appears to have taken that decision out of the hands of the government, and interpreted and applied the laws by themselves, unconnected with the payload review between SpaceIL and the FAA. While the actions of the Arch Mission Foundation are undeniably a planetary protection issue, they are also a government oversight and responsibility issue.

International space law applicable to Beresheet

As the mission launched from US soil, the United States is de facto the “Launching State” according to international space law. The relevant treaties include the 1967 Outer Space Treaty, the 1972 Liability Convention, and the 1975 Registration Convention. The Launching State is a legal determination of which State would be held liable to other States for any physical damage the launched space object causes. In addition to the US, both Indonesia and Israel were also involved with the launch, and might also be considered Launching States if it can be said that they “procured” the launch, under the terms of the Liability Convention and Registration Convention, which define the term.[6] However, it doesn’t appear that any liability for damage will be associated with this mission. The remnants of the Beresheet lander are embedded into the Moon’s Sea of Serenity, and unlikely to cause damage.

Liability is a requirement to pay compensation. A related but broader legal concept is “responsibility,” which is a requirement to govern your actions and to be held accountable for your actions and the actions of others imputed to you. Here, responsibility for compliance with international law is still an issue. Between nations, governed by international law, an internationally wrongful act is an act which is not in compliance with the obligations of international law, and which can be attributed to the State. While not normally the case, in space activities, the actions of private entities is the responsibility of the State. In space law, the attribution to the State is direct and automatic. Article VI of the Outer Space Treaty makes States directly internationally responsible for the actions of nongovernmental entities (i.e. private actors, such as corporations, non-profit foundations, or others not acting in a governmental capacity).

This is the point that is almost always missed in discussing commercial space: Because of Article VI, whatever a private actor does, at least one government is “on the hook.” This is reflected in the first sentence of Article VI of the Outer Space Treaty:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

In addition to being internationally responsible for the space activities of nongovernmental entities, States have a positive obligation to oversee these nongovernmental activities. The second sentence of Article VI creates this obligation:

The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

Looking again to the first sentence above, there is also the positive obligation, near the end of the sentence, placed on States “for assuring that national activities are carried out in conformity” with the strictures of the treaty. Consequently, States have quite a burden placed upon them in regards to their tasks in governing national activities, especially when that activity is by a nongovernmental entity such as a private company or foundation.

Beresheet’s actions were the national activities of the US and Israel

International responsibility for the Beresheet mission falls to the United States, and these activities are the national activities of the United States. The US was the Launching State, and the State which authorized the mission. The mission was launched on a SpaceX rocket, which is an American company, and the FAA reviewed the launch. For the launching of the rocket as well as inflight and orbital activity, the US was the regulator. The US governmental payload for the launch was a secondary payload, a Space Situational Awareness (SSA) spacecraft headed to GEO, named S5. To date, it has not been registered with the United Nations. Such involvement and partnership in this launch, from US soil, with US regulatory approval, points towards this mission being the national activities of the US, and the international responsibility of the US.

It is also true that compliance with the law is a determination done by the regulator, not by the regulated. As one noted space law scholar has put it, rather tartly: “The butcher does not license himself.”

However, other States were involved as well. The primary payload was an Indonesian telecom satellite.[7] Regarding Beresheet, an Israeli company, the Israeli Aerospace Industry (IAI) built it, and an Israeli nonprofit (SpaceIL) were the operators of the Beresheet mission. There was considerable Israeli governmental involvement, and likely some bilateral arrangements between the US and Israeli governments. Consequently, while the US government reviewed the activities of the Beresheet mission, this mission was also a national activity of Israel, at least to the same extent (if not more so) than they were US national activities.

On June 24, 2019, the Permanent Mission of Israel to the United Nations in Vienna notified the United Nations Office for Outer Space Affairs (UNOOSA), which is tasked with the keeping of registry of space objects launched into outer space, with a notification letter to list the Beresheet lander under Israel on its registry.[8] This furthers the argument that Israel is internationally responsible for this mission, and that this mission was part of its national space activities under Article VI—with its attendant obligations, discussed above. The accompanying information on the UN website also states: “Lunar probe landing unsuccessful.”

Conclusion

Consequently, the actions of Beresheet constitute both US national space activity and Israeli national space activity, to which both States are internationally responsible for. In this context, they are responsible (answerable) for the actions of Beresheet.

Likewise, according to Article VI of the Outer Space Treaty, they had obligations to fulfil regarding Beresheet. They had to authorize, supervise, and assure compliance with the Outer Space Treaty, and (via Article III’s inclusion of international law) with all other valid and applicable sources of international law.

The US and Israel are internationally answerable for any violations (or non-observances) of international space law obligations, such as a non-observance of Article IX of the Outer Space Treaty’s prohibition of harmful contamination, and its obligation to pay due regard to the corresponding interests of other States.[9]

Regarding the planetary protection rules, the FAA incorporated them into their payload review of the Beresheet, and SpaceIL sought to comply. However, it appears that the compliance of the tardigrades with the planetary protection rules was not able to be assessed before launch. It can be argued, admittedly, that this action does comply with the planetary protection rules. It is also true that compliance with the law is a determination done by the regulator, not by the regulated. As one noted space law scholar has put it, rather tartly: “The butcher does not license himself.”

Endnotes

The footnote to “remote” states: “‘Remote’ here implies the absence of environments where terrestrial organisms could survive and replicate, or a very low likelihood of transfer to environments where terrestrial organisms could survive and replicate.” COSPAR Planetary Protection Policy, pg. 24. NASA Policy Directive 8020.7 G, Biological Contamination Control for Outbound and Inbound Planetary Spacecraft. NASA Policy Directive 8020.12 D, Planetary Protection Provisions for Robotic Extraterrestrial Missions. NASA Office of Safety and Mission Assurance, mentioning and linking to Clementine, Grail, LADEE, Lunar Prospector, Lunar Reconnaissance Orbiter, Ranger(s) 1 through 9, and Surveyor missions. Article I(c) of the 1972 Liability Convention, as well as Article I(a) of the 1975 Registration Convention, reads:

The term “launching State” means:

(i) A State which launches or procures the launching of a space object;

(ii) A State from whose territory or facility a space object is launched; The Nusantara Satu satellite, with International COSPAR designator 2019-009A and currently in GSO, has not yet been registered with the United Nations. Information Furnished in Conformity with General Assembly Resolution 1721 B (XVI) by States Launching Objects into Orbit or Beyond, Note verbale dated 24 June 2019 from the Permanent Mission of Israel to the United Nations (Vienna) addressed to the Secretary-General (A/AC.105/INF/436). Israel is not a party to the 1975 Registration Convention (making registration with the UN mandatory), so Israel is following the practice of registering pursuant to UNGA Res. 1721 B. UNOOSA actually maintains two registries: one for parties to the Registration Convention, and a separate and older one, for objects registered pursuant to 1721 B. Article IX of the Outer Space Treaty deserves to be read in full, and considered in light of the Beresheet mission, including the USA and Israel’s duties pursuant to this treaty article:

In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer Space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.

Note: we are temporarily moderating all comments subcommitted to deal with a surge in spam.