I've been to the Humans to Mars Summit, an annual conference thrown by Explore Mars about speeding up human colonization of the Red Planet, a few times. It's always fun, but it's highly theoretical: Mars enthusiasts yell at NASA for not moving fast enough, NASA says it's working on it, a scientist or startup proposes a wildly optimistic mission involving crowdfunding robotic probes or something.
This year appears to be different.
Last month, SpaceX announced that it plans on trying to send its Dragon spacecraft to Mars in 2018. An official with the Federal Aviation Administration, which gives launch clearance to commercial space companies in the US, said at the summit that the agency is already working with SpaceX to make sure its international mission complies with international law.
"That'll be an FAA licensed launch as well," George Nield, associate administrator for commercial space transportation at the FAA told the conference. "We're already working with SpaceX on that mission. There are some interesting policy questions with that have to do with the Outer Space Treaty."
Nield was referring to a document signed in 1967 that governs things such as human settlements on the moon, Mars, and other celestial bodies. The treaty gives wide latitude for government exploration of space, but is much less clear when it comes to exploiting other planets or setting up human settlements there.
Nield said the administration is specifically looking into how Article VI of the Outer Space Treaty would affect SpaceX's mission to Mars.
Article VI states that countries that signed 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."
"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," the treaty states.
The agency will grant authorization for a mission "if it were consistent with international obligations, foreign policy, and national security interests of the US and US government uses of outer space."
This means that the United States will be responsible for SpaceX's mission to Mars and must make sure that it complies with other aspects of the Outer Space Treaty, which makes it illegal to "appropriate" outer space "by means of use or occupation."
"A government needs to oversee these nongovernmental activities," Nield said.
As I wrote in an article two years ago, the legality of space colonies is very much up in the air right now. Though SpaceX's first Red Dragon mission will not set up a human settlement, it'll likely carry some infrastructure that Elon Musk hopes to use for a human settlement in the future.
"[Countries] weren't thinking about commercial companies when the treaty was passed, but it's very clear that they have responsibility for the people and companies who come from their countries," Rosanna Sattler, a space lawyer who has studied the legality of settlements told me at the time. "It governs private and public endeavors."
Sattler says that, most likely, countries that are party to the treaty will sign a "Memorandum of Understanding" with each other that will allow for the eventual colonization of space.
It seems unlikely that the treaty will prevent any future SpaceX mission to Mars. The United States has shown in the past that it doesn't particularly care about the treaty; last year Congress passed a law making it legal for companies to mine asteroids, which seems to be in strict defiance of the treaty.
Nield said that SpaceX's authority will be looked at under a new framework the government is working on for "nontraditional" commercial activities. This new framework will fall under the Department of Transportation (which the FAA is a part of). He said the agency will grant authorization for a mission "if it were consistent with international obligations, foreign policy, and national security interests of the US and US government uses of outer space."
If SpaceX and the US want to comply with the treaty, it looks like it's possibly one more logistical hurdle that makes going to Mars politically more difficult than going to low Earth orbit. At least the FAA and SpaceX are getting started on the problem early.