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SpaceX Mars
SpaceX’s proposal for sending humans to Mars to create a colony there faces a number of legal issues at least as significant as its technical hurdles. (credit: SpaceX)

A legal look at Elon Musk’s plans to colonize Mars


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Several experts have weighed in on the technical, business, and economic aspects of his plans, but there has been little or no discussion of the legal and policy hurdles of his plan.

Elon Musk’s plans to colonize Mars has been in and out of the headlines since he revealed them at the International Astronautical Congress (IAC) in Guadalajara, Mexico, on September 27. As expected, the announcement and presentation for his planned architecture and timeline is ambitious, and was met with the enthusiasm characteristic of his revelations. Several experts have weighed in on the technical, business, and economic aspects of his plans, but there has been little or no discussion of the legal and policy hurdles of his plan. This essay will attempt to fill in the blanks.

Two fundamental legal questions overshadow Musk’s plans:

  • Does the current domestic licensing archetype allow such an activity to be licensed; and
  • Even with an appropriate licensing structure, would the United States government authorize the venture?

The current licensing structure

The current licensing structure for private space activities implicates US rights and obligations under Article VI of the Outer Space Treaty, specifically with regards to “non-governmental entities” or private/commercial operators. Consider the relevant part of Article VI:

“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.”

This creates a right in the case of the United States government to establish a private interest in outer space activities for its citizens, and a legal duty to authorize and continually supervise those activities. The United States created the private interest in non-governmental spaceflight via the National Space Policy and supporting legislation that facilitates the current regulatory scheme under Title 51, Chapter 509 and 14 C.F.R. Ch. III, parts 415, 420, 431 and 435.

Central to the grant of a launch license for a private space activity is “payload review” per 51 USC § 50904 and 14 CFR § 415, Subpart D. However, the current licensing authority granted to the FAA under 51 USC § 50904 is insufficient to grant a favorable payload review and a subsequent license for a private mission to Mars entailing activities proposed by Musk. Unless the colonization effort is organized as a government mission, which would take it out the licensing process under Title 51, Chapter 509, it cannot be approved.1

The question remains whether a private effort to settle another planet would be sanctioned by the United States government.

Related and subordinate to the question of Musk’s Mars colonization efforts is whether the current licensing scheme would have authorized the proposed Red Dragon mission, which was initially slated to fly in 2018 but remains in question. If the Moon Express favorable payload review determination is any indication, the proposed Red Dragon mission could pass muster. The FAA concluded its current authority from Congress is sufficient to grant Moon Express the favorable payload review as the mission is principally technology demonstration. In the same manner, it appears the proposed Red Dragon is likewise a technology demonstration mission, which suggests the FAA would determine it has the authority to review and grant a favorable payload review subject to Space X demonstrating it meets the requirements of 14 CFR § 415, Subpart D.2

The colonization question

Presuming Congress grants the FAA the necessary regulatory and licensing authority, or a newly endowed Office of Commercial Space takes on the responsibility for permitting such a venture, the question remains whether a private effort to settle another planet would be sanctioned by the United States government. This question turns on the legal definition of “colonization”.3

A colony is defined as:

“[a] dependent political community, consisting of a number of citizens of the same country who have emigrated there from to people another, and remain subject to the mother country. It is a settlement in a foreign country possessed and cultivated, either wholly or partially, by immigrants and their descendants, who have a political connection with and subordination to the mother country, whence they emigrated. In other words, it is a place peopled from some more ancient city or country.”4

The terrestrial definition of “colony” is not identical to the activity of settling a celestial body, including Mars. This may lead to many in the space advocacy and settlement community to suggest the terrestrial definition of “colony” is inapplicable. Yet, given the nature of international space law, the fundamental legal nature of a terrestrial colony is germane to the private creation of settlements on celestial bodies.5

Consider for example this excerpt from the definition of “colony”:

“[a] dependent political community, consisting of a number of citizens of the same country who have emigrated there from to people another, and remain subject to the mother country.”

The legal underpinning of what constitutes a “colony” is its nature as a dependent political community that remains subject to the mother country. Such a relationship is created by the Outer Space Treaty. Article VI of the Outer Space Treaty creates a legal duty to “authorize” and “supervise” private space activities, and Article VIII takes it a step further and provides the necessary legal mechanism to create the political dependence between a future private Mars settlement and the “mother country”. The relevant portion of Article VIII reads as follows:

“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.”

Accordingly, any of the proposed activities authorized by the United States per Article VI will remain under the supervision of the United States.6 Article VIII takes this a step further and extends continuing jurisdiction over any spacecraft launched to Mars, facilities created on Mars and the “colonists” themselves, which means they will be subject to “the mother country,” in this case the United States.

The second half of the legal definition of a terrestrial colony is more problematic in terms of a one-to-one comparison of a terrestrial colony and a “colony” established on a celestial body.

“It is a settlement in a foreign country possessed and cultivated, either wholly or partially, by immigrants and their descendants, who have a political connection with and subordination to the mother country, whence they emigrated. In other words, it is a place peopled from some more ancient city or country.”

The first half of the first sentence in this excerpt is knotty in that Mars is not a foreign country but rather a celestial body, nor can the settlement be “possessed” either wholly or partially by the people who arrive there. Article I and Article II of the Outer Space Treaty declare the res communis doctrine or the “province of all mankind” where outer space, the Moon and other celestial bodies cannot be claimed by a sovereign government, including Mars. In other words, they belong to no one government or person but to everyone.7 While the settlers will “possess” the equipment and supplies they bring with them as well as the structures they build, they are not exclusive to their possession. Article XII of the Outer Space Treaty states:

“All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.”

This requires the projected settlers on Mars to open their habitats, vehicles, equipment, and so on to representatives of other nations, which means in essence other nations could insist as part of Musk’s efforts their representatives be allowed access the “colony” whether physically or remotely.8 Furthermore, the customary norm of free access and transit of outer space means those occupying the settlement cannot physically bar anyone from traversing on any portion of the Martian surface nor can they cordon off any section of the Martian surface for their exclusive use. As problematic as the first half of the first sentence is to apply the legal term of “colony” to Musk’s plans, the second half of the first sentence reinforces the stipulation the settlers are subject to the “mother country,” which, as outlined by Article VI and Article VIII of the Outer Space Treaty, is the United States.

Whether the United States would authorize a private colonization effort rests in both legal and policy considerations.

The result of this analysis is the proposed effort by Musk would be subject to the rights and duties of the United States under the Outer Space Treaty, including the legal duty to authorize and supervise and the legal right of continuing jurisdiction, which would create:

“[a] dependent political community, consisting of a number of citizens of the same country who have emigrated there from to people another, and remain subject to the mother country…”

In other words, the end result of the activity proposed by Musk would likely be considered a colony.

With it established Musk’s Mars proposal would indeed meet the definition of a colony or a quasi-colony, and the activity to facilitate his proposal would be colonization, the next question is whether the United States government would approve the undertaking. It is likely a licensing scheme that would consider such a venture would still include the review factors in 14 CFR 415.55.9 Accordingly, SpaceX would have to demonstrate to the FAA the proposed activity of colonization and the creation of a colony on Mars would not jeopardize public health and safety, safety of property, US national security or foreign policy interests, or international obligations of the United States.10

Whether the United States would authorize a private colonization effort rests in both legal and policy considerations. If it turns out Musk intends to allow settlers to occupy and exclusively possesses portions of the Martian surface, the United States government might determine his proposed activity would violate international legal obligations, including the Outer Space Treaty, as well as affect other legal obligations both domestically and internationally.

Aside from the legal consequences, the United States would consider the political ramifications of Musk’s proposal. The United States’ past experience with colonization or nation-building has not been favorable, and the stigma of permitting a non-terrestrial form of a colony to be created by private individuals may not be received well politically on the domestic front or internationally.

A decision to allow the establishment of a private, non-terrestrial colony would impute substantial responsibility on the United States government. If the United States issued a launch license for Musk’s colonization plans, the license would have to potentially cover decades of launch activities to not only start the colony but also to sustain and grow it. In other words, to the extent the commitment of those who journey to Mars will be all in, the government of the United States would have to similarly commit.11

This puts tremendous responsibility on the government of the United States for the welfare of the colony, as a license could not be morally revoked and would only expire in the event the colony failed, which insinuates a license granted for a private colonization effort must be irrevocable and last in perpetuity. This fact alone would cause hesitation, as the United States’ ability to revoke a launch license would be diluted, if not non-existent, and encumber the United States with the responsibility of its potential failure. The political, public, and media response to the failure of a colony or colonization attempt, and/or the death of the colonists as a result of a denial or revocation of a license, would be significant and potentially reach the level of a crime against its own citizens and humanity.

The political, public, and media response to the failure of a colony or colonization attempt, and/or the death of the colonists as a result of a denial or revocation of a license, would be significant and potentially reach the level of a crime against its own citizens and humanity.

Another political consideration for the government when evaluating a launch license is the potential the colonization effort would fail. The act of colonizing a world months away from Earth with current propulsion technology is a high-risk endeavor given the multitude of factors, most of which have the potential to be lethal to the colonists. The ensuing firestorm of negative media coverage, the public condemnation, the subsequent political backlash, and the inevitable geopolitical soft-power exploitation of a colony’s demise, would be significant and may very well sour the appetite for future government and/or private settlement or exploration efforts. The crux of this reasoning is even if the United States can legally justify the colonization effort proposed by Musk, the policy considerations of the enormous responsibility both in terms of the financial and political expense for the lives of the colonists and the potential for political catastrophe would argue in favor of not permitting Musk’s adventure.

Conclusion

Elon Musk’s initial announcement was met with zeal and optimism, which will continue. However, the devil is in the details, and in this case the legal and political details are considerable. Unless there is a radical shift in international space law and the political and public perceptions about the potential for failure and death related to colonization activities, initial Mars exploration and colonization is more likely to begin under the auspices of the government, perhaps with the partnership of private industry. These initial efforts could lead to private missions and an independent nation-state on another planet in the coming century. Regardless of these realities, Musk’s vision will continue to inspire his fans, provide ample source material for the media, and fuel the enthusiasm of space settlement advocates.

Endnnotes

  1. Representative Jim Bridenstine had proposed draft legislation that would provide for “enhanced payload review”, which purportedly would streamline the payload review process. This legislation never made it to the Subcommittee on Space. The proposed Office of Space Commerce as offered by HR 2809 would create a similar solution as the Office would be granted “mission authorization” to approve or reject non-traditional private missions such as the mission proposed by Musk.
  2. One of the requirements SpaceX would have to meet is to demonstrate the Red Dragon mission will not adversely impact US international legal obligations. Specifically, one of those conditions is NASA’s planetary protection requirements, which are designed to comply with the US obligations in Article IX of the Outer Space Treaty. Ironically, Musk’s proposed Mars architecture would directly implicate and potentially run afoul of Article IX.
  3. New space and space settlement advocates are quick to use semantics by applying the label “settlement” as opposed to colonization. This is misleading as a settlement is a direct outcome of colonization.
  4. U. S. v. The Nancy, 3 Wash. C. C. 287, Fed. Cas. No. 15,854.
  5. The same legal analysis can be applied to the venture proposed by Mars One with variations to take into account the potential multi-national makeup of the “colony”.
  6. A common strawman argument from private space advocates is jurisdiction under Article VI could be avoided if the private entity (in this case SpaceX) expatriates itself to a non-OST country such as Tonga and originates its activities from there. This approach is fundamentally flawed because even if the organization expatriates itself, Article VI could still reach to the individuals of the organization and follow them to the non-OST country. Beyond that, expatriation of a private entity to a non-OST country would also cut off resources vital to not only launch the precursor missions but also the high-rate of supply and support needed not to mention further missions to grow the colony.
  7. Article I “use” would apply to the settlers. “Use” grants a property interest that allows a private person to use resources belonging to the land of another to support their occupancy on the land and in the case of celestial bodies that “use” would be of the in situ Martian resources. This is not to be confused with a “usufruct” under international law, which would allow the settlers to harvest the fruits of the occupied land and convert it to their own use, i.e. possess, own, transport, use, and sell, which is articulated in 51 U.S.C. § 51303. The international version of usufruct should not be confused with the domestic version, which creates a real property interest in the form of a mineral servitude similar to that found in the Mineral Code of Louisiana.
  8. Arguably, Article V would also require the settlers to render assistance to foreign astronauts, which would include opening their equipment and facilities. There is an argument private settlers are not “astronauts”, but there is argument there would be a duty under Article V not only to private actors in distress but a duty by private actors to government astronauts in distress. See The Interaction of the Definition of Astronaut and International Law.
  9. This presumes the Department of Transportation retains responsibility for non-governmental space activities and not the Department of Commerce.
  10. See 14 CFR 415.55
  11. It’s plausible a launch license or a mission authorization could be revoked; however, it would obligate the United States to assume responsibility for the colony’s survival. On the other hand, resupply launches would have to be coordinated and paid for by the government if SpaceX did not meet the needs to support the colony. Consequently, SpaceX would have to be under constant oversight and heavily scrutinized to ensure it does not fail to meet its obligations to support the colony. This level of oversight will draw the ire of the purist approach to private space activities and settlement, but it is unavoidable.

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