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.
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,
Cristian van Eijk[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?
Good overview of the legal aspects of Elon Musk’s latest stunt. Practical implications are fortunately far removed; despite Musk’s grandiose claims, Mars is not going to be colonized for decades at least. While legally a corporation cannot declare Mars outside the jurisdiction of Earth laws, Elon Musk has a history of discarding rules when he feels they do not apply to him, of marching on with projects despite opposition and without considering the consequences – Starlink itself makes a good example. The US government has put little effort into curbing the power of its home-grown corporations, and abides by international law only when it sees fit, so I wouldn’t expect proper enforcement of the Outer Space Treaty on their part.
On some level it is exciting to hope for an established Moon or Mars base in my lifetime, to think about the implications as some science-fictions authors have done. Unilateral actions by a private corporation can be kept in check by economic sanctions like freezing assets and fines, which would cripple their operations back on Earth – even a permanent base on Mars would require regular supplies from back home for quite some time in the future.
The legal status of people traveling to Mars presents an interesting conundrum as well: it they accept SpaceX’ terms of service outlined above and join this hypothetical self-governing entity in breach of international treaties, do they continue to be US citizens? Maybe Elon will register SpaceX in another country with more permissive regulations – like Luxembourg. I personally would not trust rules set up by Elon Musk or his company on a foreign hostile planet – terms of service are notoriously fluid and subject to rapid changes – and where are people going to appeal those changes if they are not in their favor, when a private company is the sole authority of the land? For now this will remain only speculation; I am sure the international framework will change substantially before we will see the first human land on Mars.
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