Mars 2020 with sample tubes (artist’s concept). Image credit: NASA/JPL-Caltech.

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Sorry, Elon: Mars is not a legal vacuum – and it’s not yours, either

05.11.2020

On October 28th, Elon Musk’s company SpaceX published its Terms of Service for the beta test of its Starlink broadband megaconstellation. If successful, the project purports to offer internet connection to the entire globe – an admirable, albeit aspirational, mission. I must confess: Starlink’s terrestrial impact is a pet issue of mine. But this time, something else caught my attention. Buried in said Terms of Service, under a section called “Governing Law”, I discovered this curious paragraph:

“Services provided to, on, or in orbit around the planet Earth or the Moon… will be governed by and construed in accordance with the laws of the State of California in the United States. For Services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith, at the time of Martian settlement.”

CAN HE DO THAT? In short, the answer is a resounding “no”. Outer space is already subject to a system of international law, and even Elon Musk cannot colombus a new one.

Who’s responsible for Elon Musk?

Two provisions of the Outer Space Treaty (OST), both also customary, are particularly relevant here.

OST article II: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

OST article III: “States… shall carry on activities in the exploration and use of outer space, including (…) celestial bodies, in accordance with international law”.

SpaceX is a private entity, and is not bound by the Outer Space Treaty – but that does not mean it can opt out. Its actions in space could have consequences for the United States in three ways. First, the US, as SpaceX’s launch state, bears fault-based liability for injury or damage SpaceX’s space objects cause to other states’ persons or property (OST article VII, Liability Convention articles I, III). Second, the US, as SpaceX’s state of registry, is the sole state that retains jurisdiction and control over SpaceX objects (OST article VIII, Registration Convention article II). Both refer to objects in space and are irrelevant.

According to article VI OST, States “bear international responsibility for national activities in outer space”, including Mars, including those by “non-governmental entities”. The US, as SpaceX’s state of incorporation, must authorise and continuously supervise SpaceX’s actions in space to ensure compliance with the OST (OST article VI) and international law (OST article III). In practice, this task is done by the US Federal Communications Commission, which licenses and regulates SpaceX.

Article VI OST sets a specific rule of attribution, supplementing the customary rules of state responsibility (Stubbe 2017, pp. 85-104). SpaceX acts with US authorisation, and its conduct in space within and beyond that authorisation is attributable to the US (ARSIWA articles 5, 7). In the absence of circumstances precluding wrongfulness, the result is straightforward. If SpaceX breaches a US obligation under international law, the US bears responsibility for an internationally wrongful act.

The principle of non-appropriation

SpaceX risks breaching OST article II, the “cardinal rule” of space law (Tronchetti, 2007). This principle is a jus cogens norm (Hobe et al. 2009, pp. 255-6) establishing Mars as res communis, rather than terra nullius. I must acknowledge, with tongue firmly in cheek, that SpaceX is partly correct – states have no sovereignty on Mars. But that does not leave Mars a “free planet” up for grabs – SpaceX has no sovereignty either.

On plain reading, article II OST lacks clarity on two key points: i) whose claims are prohibited, and ii) what exactly constitutes a ‘claim of sovereignty’. The first has been answered; per the then-customary interpretative rules and travaux préparatoires, there is quite broad academic consensus (Hobe, et al. 2017; Tronchetti, 2007; Pershing, 2019; Cheney, 2009) that sovereign claims include those by private entities. This is consistent with OST article VI; private entities act in space with state authorisation, and thus state authority. It also accords with the law of state responsibility, wherein conduct of entities exercising state authority is attributable to the state, even if ultra vires (ARSIWA articles 5, 7).

The second issue is more complex. Much has been written on whether claims to space resources or space property (Nemitz v United States) are sovereign. In this case, the territorial claim is less clear; is establishing a jurisdiction a sovereign claim “by other means”? SpaceX purports not to create law horizontally via contract, but to establish the only law on Mars – a vertical structure endemic to sovereign legal orders. International caselaw on territorial acquisition agrees; sovereign acts include “legislative, administrative and quasi-judicial acts” (Case concerning sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), para 148; Decision regarding delimitation of the border between Eritrea and Ethiopia, para. 3.29) with the exercise of jurisdiction and local administration having “particular, probative value” (Minquiers and Ecrehos (France v. UK), p. 22). Also relevant are attempts to exclude other states’ jurisdiction (Island of Palmas (USA v. Netherlands), pp. 838-9). An attempt by SpaceX to prescribe its own jurisdiction on Mars would constitute a sovereign claim in breach of OST article II, and entail US responsibility for an internationally wrongful act.

Of course, as Thom Cheney points out, this is all just words until it isn’t – but there is cause for concern. The Federal Communications Commission (FCC) has been consistently accommodating to commercial space actors, and to SpaceX in particular, preferring to leave regulation up to markets rather than regulatory bodies. As Commissioner O’Rielly said upon granting SpaceX market access: “our job at the Commission is to approve the qualified applications [by SpaceX et al.] and then let the market work its will.” It is not unforeseeable that the FCC would prioritise corporate objectives over principle, and under an administration increasingly dismissiveof the international rule of law, might fail to regulate SpaceX in case of breach. Both SpaceX’s actions or FCC inaction risk breaching OST article II, and could leave the US facing reparations claims from injured state(s).

Mars nullius: A thought experiment

But this problem extends beyond the legal. As previously mentioned, the OST, especially article II, designates Mars as res communis. This precludes territorial acquisition by occupation, which can only legitimately occur on terra nullius.

But indulge me for a moment in a half-serious thought experiment. No provision of outer space law explicitly designates Mars res communis. The exploration and use of Mars is the “province of mankind” per OST article I (emphasis added), but that language was specifically diluted in negotiations from the originally-proposed “common heritage of mankind”. The Moon is the “common heritage of mankind” (Moon Agreement, article 5), but only for 18 states. The United States has recently and repeatedly attempted to erode the status of space as res communis, including by treaty and by Executive Order, and it is not alone. If current trends continue, Mars nullius may come sooner than we think.

That line between res communis and terra nullius is the principal legal obstacle to acquiring extra-terrestrial land by the legal process of occupation. In territorial acquisition cases, international law distinguishes between the act of attempting to exercise jurisdiction or sovereignty (called an ‘effectivité‘), and the legal right to do so (sovereign title). The former is a question of fact; the latter is a question of law. Absent other sovereign claims, an effectivité compliant with international law is “as good as title” (Island of Palmas (USA v. Netherlands), p. 839; Frontier Dispute (Burkina Faso v. Mali), para 63). Such an effectivité would contravene international law now, but that law is in flux. What if the current rule proves less-than-robust? As shown above, the elements of successful effectivité, state attribution and a sovereign act with sovereign intention, are satisfied. Slipping this provision on the future Martian legal order into satellite broadband Terms of Service serves little purpose – except as basis for a claim prior to some future critical date.

Crucially, SpaceX is not an international actor. It is an American company subject to US law and continuing US supervision. In both Island of Palmas and the Pedra Branca Dispute, corporations acting under national authorisation and regulation established sovereign titles for their respective states. A future attempt by SpaceX to act on its Terms could be received by other states, either legally or politically, as an American colonisation of Mars.

Concerns and conclusions

Three primary concerns emerge from this picture. First, non-appropriation is cardinal for a reason – if breached, international peace and security in space hangs in the balance. Second, even signalling the implementation of a provision so contrary to US obligations without censure risks the international rule of law. Finally, and most pragmatically, American vulnerability to future claims by other states should concern American citizens; it is their money, their national reputation on the line.

Commercial actors in space present great innovative and developmental potential for all mankind (Aganaba-Jeanty, 2015), but their so-called ‘self-regulatory’ or administrative role should be taken with a healthy scepticism. We already know how that story ends. As Bleddyn Bowen put it, “[t]he continuation of the term ‘colonies’ in describing the potential human future in space should raise political and moral alarm bells immediately given the last 500 years of international relations. Will billionaires run their ‘colonies’ the way they run their factory floors, and treat their citizens like they treat their lowest paid employees?”

As humanity expands into space, we will need new legal rules and understandings of sovereignty to govern the process (Leib, 2015). The current legal order is a critical framework that, without supplement, will someday prove incomplete. The legal governance of Mars is an excellent example. However, those new laws must fit into that framework; they cannot hang suspended in a vacuum. We have seen previously the dangers of rashly governing the global commons based on aspiration and resource hunger (Ranganathan, 2016 and 2019). Martian soil cannot become the manganese nodules of this century. If anything, it is imperative on us to recognise and correct the inequities the current rules have created (Craven, 2019) before proposing new ones.

Space law is an established rulebook likely to undergo some high-octane developments in coming decades. While Elon is welcome to the table, he can’t keep sucking the air from the room. It leaves us space lawyers just shouting into the void.

Autor/in
Cristian van Eijk

Cristian van Eijk is in his final year of a senior status BA in Law at the University of Cambridge. He holds a BA in International Justice and an LLM in Public International Law from Leiden University.

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57 Kommentare
  1. Sorry, but I still don’t understand why land on Mars or any planet can’t be its own ‘country’ following whatever laws its owners want, as long as they don’t unjustly harm others, of course? Why can’t ‘we’ let Musk do whatever he wants on Mars? It’s not like today’s governments are any more ethical than corporations.

  2. A bit late to the party, but I congratulate you for this highly interesting article ! Thank you for sharing your thoughts with fellow space law nerds and others.

    Just one comment : The act of Elon Musk that you consider as a potential breach of the US obligation of non appropriation would be how he asserts that disputes will be solved by self-governing principles, established at the time of Martian settlement, correct ? But do those self-governing principles necessarily have to contradict the main rule of State responsability ? As in, the actor whose liability could be incurred is definitely the State, but the extent of the liability could be defined by the self-governing principles. Elon Musk’s Terms would then not be contradict the OST but expand on it a way ? I may be wrong but I don’t think the OST (or case law, can’t imagine why) deals with the form of liability that could be incurred by a State (best-efforts obligation vs performance obligation, the role of force majeure, possibility of a liability waiver or limitation, any consequence of the victim’s own fault).

    I understand that it is still problematic regarding the question of appropriation, because a US actor would be in the position to define the principles regarding liability that would go on to be applied on Mars. I’m just wondering if Elon Musk could not offer this answer to the accusation that he is violating the rule regarding State liability for outer space activities, and what response could then be made to him.

    Again, I really enjoyed this article, thank you very much Cristian !

    • Hi Jihane!

      Sorry for my delayed response! The silver lining is that it gave me time to think about your very thoughtful comment.

      Right away, you narrow in on a very very interesting point that I wish I’d had space (no pun intended) to discuss – namely, when exactly would a potential breach occur? My intuition is that the answer must be if the US should fail to regulate an actual attempt to establish or exercise jurisdiction on Mars, to the exclusion of other jurisdictions.

      That last part, to me, is especially relevant – again, nothing forbids SpaceX from drafting contracts based in states to resolve disputes. But an attempt to declare Mars ‘free’ and ‘self-govern’ it, even paying lipservice to the OST, would still breach OST article VI. Moreover, the corpus of outer space law is fairly broader than the OST, especially if you believe the ‘instant custom’ notion that enabled states to form lots of rules which aren’t written.

      Also, would you mind perhaps explaining what you mean a bit further? I worry I’ve misunderstood your question, and particularly your point on liability. (Space lawyers tend to get jumpy around the words ‘liability’, ‘responsibility’, and ‘jurisdiction and control’, only because they have quite specific and distinct uses in space law, and because we like complicating things unnecessarily.)

      If I understand your point, the law of state responsibility doesn’t distinguish ‘kinds’ or ‘categories’ of breach (see the ICJ’s Bosnian Genocide Case, para 401); the fact of the breach would serve trigger the wrongful act. While claims of force majeure can serve as ‘defences’ (or better, ‘circumstances precluding wrongfulness’), because the obligation in question is just to regulate SpaceX, a company incorporated, headquartered, and launching from the US, it’s hard to argue impossibility.

      A less-serious breach could lessen US ‘liability’ under the law of state responsibility in the sense of minimising reparations, perhaps? But here I must pull a cowardly ripcord and say I have utterly no idea what reparations for this kind of breach would look like, and thus thoroughly avoided the subject!

      Please let me know if I’ve misread you, or if I can be of any further help!

  3. I think I’ve misunderstood the spirit then of this section of the terms. We received invitation to Starlink just a day or two ago, and I became teary-eye’d at the reading of article 9, and I said to my partner “Elon Musk has cast his vote for a free Mars”

    I didn’t think it meant a free-for-all, I thought it meant just what it says, but then I’m not familiar with the delicate and gorgeous dance that is written law

    • Hey Brian! I’m not saying Starlink itself is bad or wrong to use. I do have some concerns with their potential for space debris, but I also firmly believe in the developmental value of bridging the digital divide and connecting the world to Internet! So I definitely don’t blame you for joining in on the beta. My blog article’s point was more concerned with a potential (and still hypothetical!) issue down the line. I meant to say two things, mainly.

      First, the general tenor of that clause is concerning – we should move away from language of ‘space colonies’ and ‘free planets’. Viewing space as the Wild West 2.0 will end up disadvantaging people in quite brutal ways. We want space to be a domain focused on development for ALL people (as projects like Starlink purport to accomplish) – rather than a strip mine.

      And second, this is an excellent case study to look at current US policy towards space and how it impacts that aim. If the US continues to erode the status of space as ‘ours’ – if it succeeds in making space ‘no man’s land’ or terra nullius – we could end up in a neo-colonial land-grab with catastrophic ramifications. That doesn’t mean things like space mining etc. aren’t legally possible, by the way. But we need to examine and adapt the current law thoughtfully, in gradual ways, so that we ensure the use and exploration of space does indeed remain the province of all mankind, instead of a privilege limited to those who can get to Mars first.

  4. Ya the last thing your gonna see on mars is a court house. So good luck with that. lol

  5. As a law student looking at Space Law, I enjoyed reading this a lot! That said I do want to ask; With regards to the Executive Order from April 2020, wouldn’t this protect SpaceX from facing international backlash? The Order does explicitly state that the US does not view Outer Space as a global common and makes reference to not having signed the Moon Treaty. Given that the Order makes no mention of the provision of commercial rights as declaring sovereignty over a celestial body, couldn’t SpaceX use this to their advantage? Reading Article VI of the OST into this, the US could intervene to argue that SpaceX is doing nothing wrong couldn’t they?

    • Hi Roshan! So you rather insightfully touch on a pressing issue in space law I carefully tried to avoid – the question of whether space really IS a global commons or not. That’s actually why I used the Latin phrase ‘res communis’ as much as possible – it can be translated into English in a few different ways, each with slightly differing meanings that are hotly contested. I sadly didn’t have room to discuss this in depth in my article, but a lot of ink is being spilled on just that topic as we speak! It’s actually the topic of my dissertation at the moment, in fact.

      In general, the US Executive Order does not trump international law (pardon the pun). Under the Vienna Convention on the Law of Treaties article 27, domestic law cannot justify noncompliance with an international obligation. The US is still bound to authorise and continuously supervise SpaceX, and if SpaceX tries to declare its own jurisdiction on Mars, which I argue is a breach of the OST article II, an injured state could have a claim.

      So in my opinion, for this issue, the Executive Order (and the Artemis Accords and other more general US space policy trends) are relevant as indicators of change. They suggest the US is determined to erode the status of space as any kind of res communis, and that in turn makes a land-grab in space that much more possible.

      Do note, by the way – there are ways of making space mining (for example) legal and possible without leaving space terra nullius. Technically, per OST article I, the “use and exploration” of outer space is the “province of mankind” – not space itself. Just how we use and explore it. Extracting resources from asteroids, for instance, is not necessarily precluded. The Hague Space Resources Working Group is in fact engaged with this at present.

  6. You know how I would answer this if I was Elon musk? I’d say, “well you better get over there and plant your flag because I’m heading over there to plant mine…”

  7. This is all hog wash elon can just move his hq to mars under his own laws or buy a large island and start his own country with the same laws he plans to impose on mars..the moon and mars per nasa are basically open land whomsoever gets there and stakes out a claim can after time without dispute take ownership. This is true even today in California, if you find abandoned land or property live in/on it for more then a set time you can take legal action to claim ownership of said land

    • So the law of adverse possession does allow this under specific circumstances – under US law. So it doesn’t work the same way elsewhere, and definitely does not work in space. There was a rather hilarious case in Nevada – Nemitz v US – where a man tried to send NASA a parking ticket for landing a probe on an asteroid he’d ‘registered’ as his. It did not work out for him.

      It’s worth mentioning that SpaceX is licensed in the US, incorporated in the US, and launches from the US. They chose to base themselves there for reasons – US law is favourable to them. They are better able to access US markets, better able to interact with US companies, and I assume there are tax benefits (though that definitely isn’t my legal forte!). There’s no reason to think they would try to change that any time soon.

      And even if they did, the law as it exists now is clear; no country can claim land on other celestial bodies. Even if Elon found an island to create a state (and that itself is a complex and legally unlikely task), he would still be unable to claim extraterrestrial land.

  8. Everything will be decided by (astronauts) boots on the ground. BTW, how many people (and their pets) are needed in order to establish a new country? When Americans did it, they were hundreds of thousands but no number is mandatory, right?
    I bet, all the spaceX employees wanting to establish a country on Mars, would need to cease to be employed by any Earth entity.

  9. He can do whatever he wants if he gets a bunch of ships and people there who’s going to stop them. It’s not like the natives could stand up to Columbus and all their weapons.

  10. So we cannot even avoid the highly corrupted governments in Mars? Give us a break… If they want lets go and find Martians with their F-16. Regarding the ‘International law’ its an absolute joke. When America is bombing Libya, Egypt, Syria, Iraq then the international law is not applicable because everything was done for ‘democracy’. By the way democracy does not even exist anymore. Current politicians are a such a small pool of ‘elite’ that is being sourced from the same families and families again and again. Also, when all politicians in US and indirectly in Europe are founded by Wall Street then you understand why most of their promises are never fulfilled. Am I supposed to get upset that Elon Musk will self-declare himself a monarch of Mars? LoL. We already have oligarchs. Musk seems better at least.

    Last, just like US got separated from British Empire the same will happen and SHOULD happen in a ‘space colony’. No legislative body in Earth could understand the needs of humans living in Mars. So it is absolutely laughable saying that international law or any other state law should apply in space colonies.

  11. As many have pointed out, it’s ridiculous to assume that Earth laws will be enforced on a foreign planet. It might work for a little while – but definitely not for long. Are Martian settlers paying taxes on Earth? We know how that ends.

    And even legally, even on Earth, these claims wouldn’t last long once the planet is colonized. Colonies are not really seen favorably by the law anymore, and would be hard to defend legally, no matter the previous treaties.

    SpaceX doesn’t claim sovereignity on Mars. They merely state the obvious – terms and conditions for users on Mars will not be regulated by Earth’s laws. And that is simply what will logically happen. Or will the FCC regulate the bandwidth on Mars, too?

    Also, any treaty where Earth asserts dominance and jurisdiction over the entire Universe is….laughable.

    • Just think if suddenly China lands on Mars an claim it as a China’s colony. What do you think would the US do?

      • Trade wars! 😂

    • Just to be clear, my point was not to say “noooooo Elon, you can’t do that, we’re gonna send over an astronaut with a furious letter to complain!!”. It was to say that other countries could have legal claims against the *United States*, as SpaceX’s state of incorporation. That this could have impacts on terrestrial international peace and security.

      So I’ll join you and chuckle at the image of lawyers trying to find a mailing address for Olympus Mons, but the point is that it could lead to problems back home – and we should maybe concerned about that. That’s all!

      And as I’ve said above, the OST and space law doesn’t necessarily seek to regulate the entire universe – it regulates *human activity* in the universe, to the extent we’re active in it.

      • Wouldn’t the lawyers just go after SpaceX on Earth. Idk maybe Musk will be foresighted enough to send everything needed to establish a self-sustaining colony in one trip. But good luck getting provisions from Earth to Mars a second time once the sanctions and restraining orders start coming down. Then again we are talking about governments that have lost every game of chicken they have played with the tech industry since the Microsoft antitrust case 2 decades ago – maybe they’ll just conveniently forget to apply the laws… again.

      • That is literally what you said: CAN HE DO THAT? In short, the answer is a resounding “no”.

  12. If the mars colony is self sustaining there’s no way to enforce international laws on it so good luck with that

    • Hi Todd! So my point was this (and I’m simplifying the law a bit because it’s a bit convoluted). Let’s say a country on Earth (‘Country A’), somewhere in the future, wished to go establish a Martian base. But problem: SpaceX is already there, and they’ve claimed that they decide the law on Mars (or near their base, either way). Country A’s mission lands and a dispute arises. Country A would then, under international law, potentially have a claim against *the United States*, as SpaceX’s country of incorporation.

      • What if spacex was incorporated on mars with nothing to link it to earth in some future? Then what?

  13. Honestly the sheer hubris of the nations of the past to try and legislate over territory which only a single one of them has managed to reach and only a couple of times, is just staggering.
    Having a setup de iure so far in advance of anything de facto that you can’t even begin to try and predict the actual de facto situation is nonsensical.
    The victors write the history. Was it *legal* of the US to bomb dresden, nuke hiroshima, and napalm vietnam, when the primary death toll there was amongst civilians? Of course not. But they investigated themselves and found that they did nothing wrong.
    It’s going to be the exact same thing here.

    Also, the audacity of trying to say that there is no more terra nullius in the universe *because we said so* is just breathtaking.

    In short, there are three main things to consider:
    a) Times change, treaties can be resigned from. It’s easy to say that you’re going to leave something untouched when you have no means of getting to it and it seems worthless. Once you realize that that something holds resources your society desperately needs and you suddenly can get to it as well, your opinion will shift.
    b) Everyone wants in on this, at least everyone that matters. The UN is useless and a bunch of ever more self serving people with delusions of grandeur who are doing less and less good and more and more harm. If the US, Japan, India, Russia, and China(however they turn out) want to make exclusive claims on asteroids, they will do so. What are you going to do? Put sanctions on all of the g8?
    c) Finally and most importantly for the future, these agreements are just that: agreements between some states. There can be a very real technical challenge to them on the basis that the parties to the accords have no jurisdiction in a place neither of them has reached.
    To mitigate the impact of legislating about something sight unseen, as the pope did once about the americas, the treaty attempts to weasel out of sounding so preposterous, by phrasing things with “humanity” in mind. This however contains the tacit implication that the signatories speak for all of mankind. Which they abjectly do not.
    It’s two dozen landlocked countries getting together and legislating about the high seas, without ports, without navies, without ever having personally been to international waters. International maritime law applies to people outside of signatory states because the seas are regularly patrolled.
    It’s “might makes right”.
    Since there is no might in space yet, and humanity is not united on the issue, there is no one with the authority of jurisdiction for space.

    I personally cannot wait until the first colonies declare themselves independent jurisdictions.

    • It’ll be.

    • One could argue that a tech company attempting to claim a planet is rather more hubristic than a country trying to keep the peace in space! But I see your point. I definitely think that space law will need to change as we expand into space. In fact, it already has been changing, and is fairly good at making that adaptation!

      The purpose of the international rule of law is to make sure that, while ‘victors write history’, there is still a baseline of rules and principle to how states interact and engage with each other. Might may have made right a century ago, but the aspiration of the international community ever since has been to ensure that changes. There have been some glaring errors, as you point out. But there are far more quiet successes. Every time you make an international phone call, send a letter, or take a flight over international territory, a network of treaties and customary international law helps to make sure that’s possible.

      Countries didn’t say space was not terra nullius just because – they said it to prevent a land grab that would disadvantage some countries, de-stablilise the world order, and potentially lead to conflict. The potential for those issued to arise has not vanished since then.

      As for your points – a) actually, while some treaties can be withdrawn from, international law is not always an opt-out system. Customary international law – the laws that emerge over consistent practice by countries over time – generally *cannot* be renounced. That’s why countries can’t wake up one day and decide to withdraw from the Torture Convention for example. The prohibition on torture is a ‘jus cogens’ norm – one of the mandatory core rules of customary international law that every state is bound to enforce. The principle of non-appropriation is such a ‘jus cogens’ norm, and cannot be backed out of quite so easily. Other states, at least, would have some issues with that. This ties in to your point on the law of the sea, which actually DOES apply to all countries to some extent, because many parts are by now customary.

      b) Your views on the UN are yours, but I’d like to point out that the UN, though the International Telecommunications Union, is the body making Starlink possible. It coordinates the various radio frequencies necessary to allow it to operate, and not conflict with (for example) OneWeb or Project Kuiper.

      c) My point is that this could potentially cause disputes between states *on earth* for not enforcing these rules. This is not a Wild West no one can regulate; SpaceX will continue to have a HQ in California, under US law, and other countries would feasibly make claims against the US should they arise.

      d) On your point – interesting! Treaties that say something like the deep sea is the ‘common heritage of mankind’ were in theory approved by countries that represent mankind. But you have a point! That was mankind THEN, not mankind forever. (And caveat – space isn’t the ‘common heritage’ of mankind, just the ‘province of’, which speaks to their aim to discourage territorial claims).

      But I think we have to see that sentence as preventative. One way of putting this is that it keeps things ‘all of ours’ so that it isn’t spoiled before we understand its value to us. Another way of phrasing it is that it ensures we ALL can reap the benefits of space resources, not just the countries with the most capital and the least concern for the space environment. There’s a reason you don’t find a lot of gold in California these days; it’s been Gold Rushed away entirely.

      • One web and quiper doesn’t exist even in the near future. You have no comparison ready. Your arguments are feeble, sir. Those projects mention is only used trying to slow down the StarLink’s implementation and this is partially successfull because they are supported by powerful interests. Again, facts change the laws in the end and you know it. The most powerful space countries and companies will never accept to share their hard gain advantage – with other countries – just because some law says so.

  14. The quote you posted said, “Services provided to, on, or in orbit around the planet Earth or the Moon… will be governed by and construed in accordance with the laws of the State of California in the United States.” The first word is services… It’s stating that services his company provides will be governed as if they were being provided in California. This is also how companies trade an interact with other countries, typically they govern their services provided as if they were being provided in the state of their headquarters. Every international company in the world does this…. It doesn’t mean they are claiming land or another planet. They have a right to govern services that they themselves provide.

    • Well, there’s actually two points being made here. One is that some services (on Earth, on orbit, or on the Moon) will be run under California law. The other is that services on Mars will be run under some other, new law, because “no Earth-based government has authority”. You are correct – many multinational corporations rely on contracts based in a certain country to ensure legal predictability and enforcement.

      But there are some problems with the second point. That point isn’t saying “you agree that we will be applying the law of [COUNTRY A] to our services in case of dispute”; it’s saying “no country’s laws apply to this, we’ll be deciding our own down the line.” That isn’t contract, a horizontal relationship between two parties. That’s a vertical one – one party declaring ‘the only’ law that the other must abide by. That’s something unusual, and I think qualitatively different.

  15. I understand your viewpoint – Musk can’t singlehandedly dictate the law on Mars. Of course, he’s not trying to do that, he’s merely saying that the people who live on a world, like those who live in a country, can. When the US decided not to be a part of England they also claimed – and used – the right to make their own laws. This is no different. It’s tempting to assume that the outer space treaty, which effectively claims the entire universe, gives Earth governments the right, and the moral and physical authority, to impose laws outside their reach. History doesn’t record any cases of this lasting very long, or of anyone considering it right.

    • Hi Augustus! So you’re talking about the law of self-determination, which is a separate issue from territorial acquisition – and that’s kept separate on purpose. This case isn’t one of a population under oppression trying to govern themselves; it’s one of a corporation attempting to become a country, with potential ramifications for international peace and security back on Earth. (And actually, for now it’s just a troll-y line in a Terms of Service, but we’re talking potentialities here).

      Outer space law doesn’t necessarily attempt to govern the whole universe – it attempts to govern *human action* in the whole universe. By declaring space the province of mankind, the OST isn’t saying ‘this is ALL OURS’ – it’s saying ‘none of us have more right to this than any other’. The idea is to foster international cooperation in space, for human development, rather than kickstarting an extraterrestrial landgrab. It’s interesting that you jump right to the colonial example – the whole point of modern international law is that we hope to have moved beyond that era.

  16. Sooo… who owns Mars? And the moon?

    • You do! And I do! And no one does! Kumbaya! No, just kidding. The point is that (for now) it is the ‘province of mankind’ – a space without sovereign claims to ownership in the way we think about it on Earth. Similar (in fact, stronger) regimes exist for the high seas, deep seabed, and Antarctica (until the Antarctic Treaty expires in 2048, anyway…).

      NB: That isn’t to say that a country can’t, say, mind an asteroid – that’s a hot issue, but my understanding of the theory is that the state is just claiming resources, which isn’t the same thing as territorial acquisition.

  17. Amazing article Cristian! Nice work.

    • Thank you so much, Hugh! I’m glad it’s spawned so much discussion about space and sovereignty!

  18. Isn’t this all irrelevant if they launch as a pirate company from one of their ships?

    Then there is no country and none of this applies.

    • Interesting thought! So let me use your example to break down those three types of accountability – liability, jurisdiction and control, and responsibility.

      Liability: Let’s say SpaceX launches from California without telling anyone (I assume that’s what you’re getting at with ‘pirate company’, but correct me if I’m wrong!). But let’s say that, while on orbit around Earth, waiting to go to Mars, they recklessly let their payload collide with a British satellite, destroying it. Under the OST and Liability Convention, the US is still SpaceX’s “launch state”, so it would be liable for fault-based damage in space like above.

      Jurisdiction and control: Let’s say that collision doesn’t happen, and a crew of SpaceX space pirates are happily on their way to Mars. But let’s say halfway there, rum rations run low, and Space Pirate A kills Space Pirate B in the struggle over the last bottle. Under the OST and Registration Convention, the law that would apply to resolve the situation would be American law, as the US is SpaceX’s state of registration.

      Responsibility: Here’s the kicker, because this third kind of accountability isn’t about OBJECTS in space – it’s about national appropriation [of land] by sovereign claim. The US, as the “appropriate state” (usually read as ‘state of incorporation’), bears international responsibility for SpaceX’s actions – even if SpaceX goes rogue. It’s the US that must authorise and continuously supervise SpaceX, and the US that’s on the hook if it goes Jack Space-row on them.

  19. Colonists on a moon or planet or space city, after several generations, would be unable to return to the Earth due to genetic mutations and adaptations… And therefore would have no affinity or allegiance to Earth… And would become self-governing, independent of Earth law. Only Contract Law would apply as negotiated.

    • Season five of The Expanse could be a wonderful courtroom drama! Its audience might drop to just us space law nerds, but I’m willing to take that risk if you are.

      I just wanted to point out two things.

      1) The law on self-determination of peoples is consciously kept quite separate from the law on territorial acquisition. Without getting into specifics, I was working on the assumption that there were no populations on Mars. If/when that changes, the legal issue will change too!

      And 2) On that note, I very much agree that space law, and law in general, will need to change if/when we expand to other planets. My only point is that the process will need to be gradual, over time, and will need to play nicely with the laws we’ve already established, to ensure the system is fair, coherent, and predictable for all parties.

  20. What are you going to do of there are people on Mars breaking Earth laws. Send them to prison? Even if there are laws on paper. I want to know how they will enforce it. Or even know if laws are broken on Mars how will they know?

  21. He who has the wherewithal has the means…

    Otherwise, it’s just always going to remain “lawless”, you know, like always a desolate planet with nothing to make a law about!
    If you lawyers proceed to lay law upon that which is obviously NEVER going to be yours, or anybody’s (otherwise), then why bother?
    Better Elon’s laws with actual spaceships than counter laws and NO spaceships.

  22. Go there and enforce earth laws!

  23. I think he’s just trying to separate mars from all the in fighting on earth

  24. If you inhabit Mars first I think you get to make the rules.

  25. The first time a Martian gets told they aren’t properly abiding by the Outer Space Treaty is when Mars secedes from Earth. If Earth wants to dictate terms to Mars, they are going to have a real Boston tea party on their hands.

  26. The only people who actually make it to and survive on Mars will not be worried about claims and ownership. This is not a new America, this isn’t even a new Antarctica, people smart enough to survive and build in an environment like this are not the people who believe in dividing humanity into countries/societies/whatever. It’s all of us smart monkeys together against ignorance and death in a place like that and only the best of us will go. He’s not laying claim to the planet, as well no one should or even really could, laws be damned. You want to talk about something regarding ownership that matters let’s start considering what happens when asteroids start getting “farmed” and sent back here to earth.

  27. The Grand Duché of Luxembourg passed a law on july 20, 2017 concerning space resources property : http://legilux.public.lu/eli/etat/leg/loi/2017/07/20/a674/jo/en
    it’s the only “european” country to follow US 2015 Commercial Space Launch Competitiveness Act
    https://www.congress.gov/bill/114th-congress/house-bill/2262

    • Hi! I just wanted to say – this is a good point that is a really hot issue right now. I was talking about *sovereign claims* to land in space specifically, but there have been legal developments that suggest that claiming resources is not necessarily unlawful! So I’d hoped to separate those two issues for now, and only talk about land claims in space.

  28. I think one may rather think of SpaceX in a context similar to the Dutch East India Company. Not only are both originally transport companies or companies whose core business involves transport, likewise SpaceX intends to give rise to establishment of sovereignty of locations outside both local sovereignty (Mars’) and its origin (Dutch/USA)

    • For those who read French, there’s an interesting story behind the ways in which the Luxembourg legislator dealt with or rather shunned international law. I reported on it some time ago: https://www.forum.lu/article/lasteroide-est-il-un-poisson-de-haute-mer/

    • This comment is very interesting, because the Island of Palmas case that I cite (and one of the biggest cases in the law of territorial acquisition) is in fact exactly about the Dutch East India Company! And it said that the Company had indeed claimed land *on behalf of its home state*.

      One small thing – the Dutch East India Company’s sole business was… not transport. The number of atrocity crimes it perpetrated is a strong indicator of that.

  29. As you say, other states may consider SpaceX’s actions as leading to “an American colonisation of Mars”, but the situation seems quite different. SpaceX / Musk is saying it won’t operate its Mars colony even under United States governance. SpaceX / Musk is laying the ground for a Declaration of Independence for SpaceX’s Mars colonists.

    • This is a really insightful comment! I half agree, except that SpaceX is still headquartered in California, incorporated in the US, and still launching and operating under US authorisation. Legally, their conduct in space is attributable to the US. But even politically or diplomatically, their conduct might be seen by other countries as just another American company extending American influence to space, a place theoretically meant to benefit all mankind. Whether or not that is true isn’t necessarily the point – the point is that it might become a diplomatic issue down the line.

  30. I hope we can keep Mars and the rest of the universes’ planets as libertarian paradises without government bureaucrats messing everything up. Let SpaceX do whatever it wants with whatever Martian land it occupies, as long as it doesn’t hurt anyone. No need to bring the legal convolutions of us silly, warmongering humans to the rest of the galaxy.

    • I want to agree with you! But we’ve seen what happens when we decide to do that, and Elon “We will coup whoever we want” Musk might not be the best trial case for that regime. Which sci-fi future do you want to live in – Star Trek, where we have a space UN at the cost of a little bureaucracy now and then, or Robocop in space, where a company runs their state like a factory floor?

      • Regarding the ‘Neo-feudalism’ fear that people have against anarcho-capitalists, slavery violates the nonaggression principle, so obviously if an ‘evil corporation’ breaches the common ethical contract, action would be taken against it. That said, people would be at the ‘Robocop’ factory because it’s the best option they have, at the moment.

  31. All correct until humans start living there and identify as Martians.

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