{"id":5643,"date":"2020-11-05T00:00:00","date_gmt":"2020-11-05T14:28:03","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?post_type=articles&p=5643"},"modified":"2021-01-08T17:51:52","modified_gmt":"2021-01-08T16:51:52","slug":"sorry-elon-mars-is-not-a-legal-vacuum-and-its-not-yours-either","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/sorry-elon-mars-is-not-a-legal-vacuum-and-its-not-yours-either\/","title":{"rendered":"Sorry, Elon: Mars is not a legal vacuum \u2013 and it\u2019s not yours, either"},"content":{"rendered":"

On October 28th<\/sup>, Elon Musk\u2019s company SpaceX<\/a> published its Terms of Service<\/a> for the beta test of its Starlink broadband megaconstellation. If successful, the project purports to offer internet connection to the entire globe \u2013 an admirable, albeit aspirational,<\/a> mission. I must confess: Starlink\u2019s terrestrial impact is a pet issue of mine<\/a>. But this time, something else caught my attention. Buried in said Terms of Service, under a section called \u201cGoverning Law\u201d, I discovered this curious paragraph:<\/p>\n

\u201cServices provided to, on, or in orbit around the planet Earth or the Moon\u2026 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.\u201d<\/p>\n

CAN HE DO THAT? In short, the answer is a resounding \u201cno\u201d. Outer space is already subject to a system of international law, and even Elon Musk cannot colombus<\/a> a new one.<\/p>\n

Who\u2019s responsible for Elon Musk?<\/strong><\/p>\n

Two provisions of the Outer Space Treaty<\/a> (OST), both also customary, are particularly relevant here.<\/p>\n

OST article II: \u201cOuter 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.\u201d<\/p>\n

OST article III: \u201cStates\u2026 shall carry on activities in the exploration and use of outer space, including (\u2026) celestial bodies, in accordance with international law\u201d.<\/p>\n

SpaceX is a private entity, and is not bound by the Outer Space Treaty \u2013 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\u2019s launch state, bears fault-based liability for injury or damage SpaceX\u2019s space objects cause to other states\u2019 persons or property (OST article VII, Liability Convention<\/a> articles I, III). Second, the US, as SpaceX\u2019s state of registry, is the sole state that retains jurisdiction and control over SpaceX objects (OST article VIII, Registration Convention<\/a> article II). Both refer to objects<\/em> in space and are irrelevant.<\/p>\n

According to article VI OST, States \u201cbear international responsibility for national activities in outer space\u201d, including Mars, including those by \u201cnon-governmental entities\u201d. The US, as SpaceX\u2019s state of incorporation, must authorise and continuously supervise SpaceX\u2019s 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.<\/p>\n

Article VI OST sets a specific rule of attribution, supplementing the customary rules of state responsibility (Stubbe 2017, pp. 85-104).<\/a> SpaceX acts with US authorisation, and its conduct in space within and beyond that authorisation is attributable to the US (ARSIWA<\/a> 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.<\/p>\n

The principle of non-appropriation<\/strong><\/p>\n

SpaceX risks breaching OST article II, the \u201ccardinal rule\u201d of space law (Tronchetti, 2007<\/a>). This principle is a jus cogens<\/em> norm (Hobe et al. 2009, pp. 255-6)<\/a> establishing Mars as res communis<\/em>, rather than terra nullius<\/em>. I must acknowledge, with tongue firmly in cheek, that SpaceX is partly correct \u2013 states have no sovereignty on Mars. But that does not leave Mars a \u201cfree planet\u201d up for grabs \u2013 SpaceX has no sovereignty either.<\/p>\n

On plain reading, article II OST lacks clarity on two key points: i) whose claims are prohibited, and ii) what exactly constitutes a \u2018claim of sovereignty\u2019. The first has been answered; per the then-customary interpretative rules and travaux pr\u00e9paratoires<\/em>, there is quite broad academic consensus (Hobe, et al. 2017<\/a>; Tronchetti, 2007<\/a>; Pershing, 2019<\/a>; Cheney, 2009<\/a>) 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<\/em> (ARSIWA<\/a> articles 5, 7).<\/p>\n

The second issue is more complex. Much has been written on whether claims to space resources<\/a> or space property (Nemitz v United States<\/a>) are sovereign. In this case, the territorial claim is less clear; is establishing a jurisdiction a sovereign claim \u201cby other means\u201d? SpaceX purports not to create law horizontally via contract, but to establish the only<\/em> law on Mars \u2013 a vertical structure endemic to sovereign legal orders. International caselaw on territorial acquisition agrees; sovereign acts include \u201clegislative, administrative and quasi-judicial acts\u201d (Case concerning sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia)<\/em>, para 148<\/a>; Decision regarding delimitation of the border between Eritrea and Ethiopia<\/em>, para. 3.29<\/a>) with the exercise of jurisdiction and local administration having \u201cparticular, probative value\u201d (Minquiers and Ecrehos<\/em> (France v. UK), p. 22<\/a>). Also relevant are attempts to exclude other states\u2019 jurisdiction (Island of Palmas (USA v. Netherlands), pp. 838-9<\/a>). 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.<\/p>\n

Of course, as Thom Cheney points out<\/a>, this is all just words until it isn\u2019t \u2013 but there is cause for concern. The Federal Communications Commission (FCC) has been consistently accommodating to commercial space actors, and to SpaceX in particular<\/a>, preferring to leave regulation up to markets rather than regulatory bodies. As Commissioner O\u2019Rielly said<\/a> upon granting SpaceX market access: \u201cour job at the Commission is to approve the qualified applications [by SpaceX et al.] and then let the market work its will.\u201d It is not unforeseeable that the FCC would prioritise<\/a> corporate objectives over principle, and under an administration increasingly dismissive <\/a>of the international rule of law, might fail to regulate SpaceX in case of breach. Both SpaceX\u2019s actions or FCC inaction risk breaching OST article II, and could leave the US facing reparations claims from injured state(s).<\/p>\n

Mars nullius: A thought experiment<\/strong><\/p>\n

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

But indulge me for a moment in a half-serious thought experiment. No provision of outer space law explicitly designates Mars res communis<\/em>. The exploration and use of Mars is the \u201cprovince <\/em>of mankind\u201d per OST article I (emphasis added), but that language was specifically diluted in negotiations from the originally-proposed \u201ccommon heritage of mankind\u201d. The Moon is<\/em> the \u201ccommon heritage of mankind\u201d (Moon Agreement<\/a>, article 5), but only for 18 states<\/a>. The United States has recently and repeatedly attempted to erode the status of space as res communis<\/em>, including by treaty <\/a>and by Executive Order<\/a>, and it is not alone. If current trends continue, Mars nullius<\/em> may come sooner than we think.<\/p>\n

That line between res communis<\/em> and terra nullius<\/em> 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 <\/em>of attempting to exercise jurisdiction or sovereignty (called an \u2018effectivit\u00e9<\/em>\u2018), and the legal right<\/em> to do so (sovereign title). The former is a question of fact; the latter is a question of law. Absent other sovereign claims, an effectivit\u00e9<\/em> compliant with international law is \u201cas good as title\u201d (Island of Palmas (USA v. Netherlands)<\/em>, p. 839<\/a>; Frontier Dispute (Burkina Faso v. Mali)<\/em>, para 63<\/a>). Such an effectivit\u00e9<\/em> would contravene international law now<\/em>, but that law is in flux. What if the current rule proves less-than-robust? As shown above, the elements of successful effectivit\u00e9<\/em>, 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 \u2013 except as basis for a claim prior to some future critical date.<\/p>\n

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<\/em><\/a> and the Pedra Branca<\/em> Dispute<\/a>, 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.<\/p>\n

Concerns and conclusions<\/strong><\/p>\n

Three primary concerns emerge from this picture. First, non-appropriation is cardinal for a reason \u2013 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.<\/p>\n

Commercial actors in space present great innovative and developmental potential for all mankind (Aganaba-Jeanty, 2015<\/a>), but their so-called \u2018self-regulatory\u2019 or administrative role should be taken with a healthy scepticism. We already know how that story ends. As Bleddyn Bowen put<\/a> it, \u201c[t]he continuation of the term \u2018colonies\u2019 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 \u2018colonies\u2019 the way they run their factory floors, and treat their citizens like they treat their lowest paid employees?\u201d<\/p>\n

As humanity expands into space, we will need new legal rules and understandings of sovereignty to govern the process (Leib, 2015<\/a>). 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<\/a> and 2019<\/a>). Martian soil cannot become the manganese nodules<\/a> of this century. If anything, it is imperative on us to recognise and correct the inequities the current rules have created (Craven, 2019<\/a>) before proposing new ones.<\/p>\n

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\u2019t keep sucking the air from the room. It leaves us space lawyers just shouting into the void.<\/p>\n","protected":false},"excerpt":{"rendered":"

On October 28th, Elon Musk\u2019s 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 \u2013 an admirable, albeit aspirational, mission. I must confess: Starlink\u2019s terrestrial impact is a pet issue of mine. But this time, […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6046],"article-categories":[6000],"doi":[],"class_list":["post-5643","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-cristian-van-eijk","article-categories-article"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20210107-183703-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/5643","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=5643"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/5643\/revisions"}],"predecessor-version":[{"id":11494,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/5643\/revisions\/11494"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=5643"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=5643"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=5643"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=5643"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=5643"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=5643"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}