Is Mars a Free Planet? Elon Musk Seems To Think So.

Kristina Schiavone, JD ’21, GSLC Research Council Member

Elon Musk and his company, SpaceX, are constantly breaking barriers in the space industry. Although a precise time frame has not yet been established, SpaceX plans to create a self-sustaining colony on Mars. What was once science fiction is slowly turning into a reality.

Of course, with the prospect of a future colony on Mars comes the need for a proper internet connection – and SpaceX plans to provide it. To establish a global internet service, SpaceX launched its first set of Starlink satellites into low earth orbit in 2019 and the megaconstellation currently consists of approximately 800 satellites. Once Starlink is fully operational on Earth, SpaceX plans to have its satellites orbit the Moon and Mars as well.

Beta-testing of the Starlink internet service has recently begun and a few customers have given the world a glimpse at its terms of service – which includes some highly provocative language with respect to the choice of law. More specifically, the terms of service explicitly state that, while the laws of the State of California will govern the terms of service for the Earth and Moon, “self-governing principles” will settle any dispute on Mars. Moreover, the governing law section states the following:

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.

Claiming that Mars is a “free planet” and that “no Earth-based government has authority or sovereignty over Martian activities” should raise red flags in the minds of space lawyers. Article III in the 1967 Outer Space Treaty (“OST”) states requires that states conduct their space activity “in accordance with international law.” International law, of course, includes the right of states to regulate the activities of their nationals pursuant to the international customary law of prescriptive jurisdiction. What’s more, Article VIII of the OST explicitly gives the U.S. jurisdiction over space objects that it registers (which will likely include the Starships) as well as the personnel in the spacecraft – including the activity of personnel after they leave the spacecraft:

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.

In short, the U.S. will have the right to regulate SpaceX’s activities on Mars barring a revolution or a change in the fundamentals of international law.

In the long term, self-determination may be the natural course for a growing Martian settlement and we may see a self-governing document like the Mayflower Compact emerge when existing laws no longer suffice for the realities of a Martian community. In the short term, however, seeking self-governance and disavowing international law could be detrimental to the orderly settlement of Mars. For now, we should promote and comply with the international law that promises to ensure the long-term sustainability and peacefulness of space activities.

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