COMMENTARY Antonino Salmeri A SpaceX Starship lifts off from a Mars base in this artist’s concept. No, Mars is not a free planet, no matter what SpaceX says paceX makes no secret of its driv- recognize Mars as a free planet and that prospective customers there yet, either. But ing goal to make humans a mul- no Earth-based government has authority international law is no laughing matter. tiplanetary species. Given SpaceX or sovereignty over Martian activities. Ac- Taken literally, Starlink users must Sfounder Elon Musk’s fixation on cordingly, Disputes will be settled through agree with SpaceX that Mars is a “free Mars and fondness for Tesla ‘Easter eggs’ self-governing principles, established planet” and that disputes concerning and other gags, it’s hardly surprising to in good faith at the time of the Martian Starlink services provided on Mars or see Mars mentioned in the terms of ser- settlement.” while en route to the red planet via a vice (ToS) agreement for beta users of its SpaceX Starship — will be settled through Starlink satellite broadband service. How- To be sure, SpaceX might have in- self-regulation. But is this clause valid? ever, as a space lawyer, I certainly didn’t serted Clause 9 as another one of Musk’s What are the political implications of a expect Starlink’s beta ToS to include the jokes that aren’t really jokes, like the transportation company proclaiming following provision: time he invoked South Park’s infamous the legal status of a celestial body? Does underwear gnomes in explaining how such an attempt make strategic sense? “For services provided on Mars, or he intended to fund his ambitious Mars in transit to Mars via Starship or other colonization plans. After all, there are no LEGAL ASPECTS SPACEX ILLUSTRATION colonization spacecraft, the parties Starlink satellites orbiting Mars, and no From a legal viewpoint, Clause 9 of SPACENEWS.COM | 25 COMMENTARY Antonino Salmeri Starlink’s terms of service should be regarded as void. Simply put, declaring POLITICALLY SPEAKING, Mars as a “free planet” and refusing any Earth-based authority over Martian ac- DECLARING MARS A “FREE tivities conflicts with the international obligations of the United States under PLANET” WOULD CONDEMN ITS the Outer Space Treaty, which naturally FIRST INHABITANTS TO THE take precedence over contractual terms of services. INDISPUTABLE WILL OF A PRIVATE First, under Articles I and III of the CORPORATION — A DANGEROUS treaty, international law applies in outer space, including the moon and other ce- SITUATION THREATENING THE lestial bodies, and influences all activities FUNDAMENTAL RIGHTS OF ANY conducted thereby. Accordingly, Mars cannot be considered a “free planet” left HUMAN TRAVELING WITH SPACEX. to “self-governing principles’’ of dubious nature and origin, because it is rather fully subjected to the rule of law. Further, Starlink’s refusal of Earth- based governmental authority on Mars is in clear violation of Article VIII of the treaty. According to this provision, states “retain jurisdiction and control”over any registered space objects and “any person- nel thereof, while in outer space or on a celestial body.” This principle is known as “quasi-terri- torial” jurisdiction and serves the purpose of ensuring the applicability of relevant national laws, preventing space from being abandoned to the rule of the strongest. As an American company, SpaceX is obliged under U.S. law to respect these rules in order to get licenses from the U.S. government to conduct commercial launches and provide satellite services. This is mandated by Article VI of the treaty, according to which nongovern- mental activities in space require the “authorization and continuing supervi- sion of the appropriate State,” which is internationally responsible for assuring that these activities “are carried out in conformity with the provisions set forth in the present Treaty.” A passenger-laden Starship enters Mars’ As such, any attempt to declare “Mars atmosphere in this artist’s concept. as a free planet” and reject the authority of SPACEX ILLUSTRATION 26 | SPACENEWS 11.16.20 “Earth-based government” over Martian long way from home. Finally, another reason why SpaceX’s activities is in violation of international How could SpaceX seriously refer to declaration may become counterproductive space law and would consequently bear principles established in “good faith” given can be identified by looking at the company’s no legal effect on third parties. such a massive imbalance of power? Po- core business: launching spacecraft for a litically speaking, declaring Mars a “free government-heavy customer base. Openly POLITICAL IMPLICATIONS planet” would condemn its first inhabi- refusing governmental authority while still SpaceX’s declaration on the legal status of tants to the indisputable will of a private depending on governmental contracts is Mars is not without political implications. corporation — a dangerous situation not exactly a smart move; it undermines Interestingly enough, a thorough look at threatening the fundamental rights of the credibility of SpaceX as a reliable partner the first part of Starlink’s terms of service any human traveling with SpaceX. and advantages its competitors. Clause 9 shows that SpaceX doesn’t seem If a government had to choose between to have problems with “Earth-based au- STRATEGIC CONSIDERATIONS an expensive service from a company thority” regulating lunar activities: Truth to be told, any attempt to escape in- pledging allegiance to the rule of law and ternational law on Mars may actually turn a cheap one from an enterprise trying to “For Services provided to, on or in or- out to be strategically counterproductive. impose “self-governing principles estab- bit around the planet Earth or the Moon, First, as any international lawyer knows, lished in good faith,” there is little doubt these Terms and any disputes [...] will be the only support for declaring Mars a “free which one will be awarded a contract. governed by and construed in accordance planet” can only come from the applicability Actually, with such terms of service, with the laws of the State of California in of international law, not its denial. SpaceX would not even be authorized the United States.” Under Article I (2) of the UN Charter, to launch its Starships toward Mars in any independent community of humans the first place. Nevertheless, under international enjoys the right to self-determination. If and There can be no doubts that applying space law there are no grounds to dis- when SpaceX’s vision of a million people international law on other celestial bodies tinguish between the moon and Mars; living on Mars becomes a reality, there is is the best way to preserve the exploration the same rules apply to “the Moon and no doubt that this community would be and use of outer space as the province of other celestial bodies.” Assuming SpaceX entitled to political independence and all humankind. Space activities, no matter knows this, it appears that the company self-regulation. However, this outcome where in the solar system, shall always is sending a political message to subvert can neither be imposed in advance nor be conducted under the safeguards of the status quo and establish a separate accomplished against international law. the rule of law. No company should be regime for Mars. Rather, it can only develop from the natural allowed to question this essential principle Now, if SpaceX was merely an inter- evolution of the circumstances, under the in the attempt to turn outer space into a net service provider, the issue would be safeguards of the rule of law. modern Wild West. purely theoretical with no reason for any In the early stages, any Martian settle- SpaceX’s defiance of international law further concern. However, SpaceX fully ment will have to rely on Earth’s supplies, should be taken very seriously and stopped intends to send the first humans to Mars. technologies, personnel and overall logis- now, before the company is able to push As such, the company’s refusal to respect tical support. Conversely, this dependence it to the point of establishing its private international law once its en route could will also imply the legitimate exercise of domain on Mars. The future of space as a put SpaceX’s passengers in real peril. These Earth-based authority in order to protect peaceful, fair and inclusive domain may early passengers would fully depend on the settlement from degenerating into very well depend on this. SN SpaceX for their survival en route to Mars violence and Wild West types of behaviors. and while on the surface, not to mention Later, when the settlement has de- ANTONINO SALMERI (@ANTONINOSALMERI) their prospects for returning to Earth. One veloped an autonomous structure and IS AN ATTORNEY AND DOCTORAL RESEARCHER the one hand, you have a company that a balanced division of powers, then in- IN SPACE LAW AT THE UNIVERSITY OF controls the means to survival; on the dependence and self-regulation would LUXEMBOURG, WHERE HE IS PURSUING A PH.D. other hand, you have a group of fragile naturally follow — but not a minute before ON SPACE MINING ENFORCEMENT CHALLENGES individuals potentially stranded in an the conditions for protecting fundamental WITH SUPPORT FROM THE LUXEMBOURG incredibly hostile environment a long, rights are established. NATIONAL RESEARCH FUND. SPACENEWS.COM | 27.