Regulatory Policy

Elon Musk’s Martian Way (Empire not Included)

The base of Mount Sharp on Mars, photographed by the Curiosity Rover, August 23, 2012. (NASA/Handout via Reuters)
Musk's plans for Mars do not violate international law.

2020 has been a blue-ribbon year for SpaceX, the space transportation and telecommunications company headed by Elon Musk. Although best-known for its rockets, SpaceX is also pioneering a new satellite-Internet network. Its Starlink program plans to use more than 10,000 satellites in low-earth orbit to provide Internet access, first to underserved areas such as rural parts of the developing world, and eventually to compete in places already covered by traditional providers. Starlink recently entered its beta testing phase. So far, users have enjoyed internet speeds in the range of 130-150 megabits per second, with latencies in the range of 20-40 milliseconds, significantly better than other satellite Internet providers.

Starlink is not without its problems, however. Musk himself recognizes that lowering the costs of the program will be a challenge. Getting set up with Starlink currently costs about $600: $500 for the router, tripod, and terminal to connect to the satellites, and $100 per month for the subscription. The brightness of the satellites has bothered astronomers, who worry the increasing constellation size will disrupt scientific observations. And those concerned about increasingly crowded orbits, especially low-earth orbit, warn that the additional hardware makes the risk of a cascading series of space collisions intolerably high.

But a much more exotic charge against Starlink, and Elon Musk himself, has recently come to light. A curious clause in Starlink’s terms and conditions suggests SpaceX’s future plans for a Martian settlement will result in SpaceX becoming a law unto itself. As the service agreement reads:

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.

Nefarious! Or is it? We need some context.

Clearly, the clause doesn’t pose any immediate legal concerns. This is a long-term issue. One of Musk’s ambitions is to create a settlement on Mars. In Musk’s vision, much of the infrastructure for the settlement, including Internet via Starlink, will be supplied by SpaceX itself. That includes governance: the rules dictating how the intrepid Martian explorers will live together. In fact, SpaceX’s legal team is currently working on a Martian constitution.

This science-fiction-esque plan predictably led observers to decry the prospect of corporate domination of space. “Elon Musk plans to get to Mars first, and that means he can quickly establish a fiefdom where he makes his own rules by a first-come, first-serve system,” complains Caroline Delbert at Popular Mechanics. Legal experts weighed in soon after, claiming that this language violates international law. The smart set seems more than happy to cast Musk in the role of Hugo Drax, the tech-savvy Bond villain who sought space power to control humanity.

However, the situation is much more complicated than it seems. There are genuine ambiguities in international space law that create interpretive wiggle room for Musk and other would-be Martian settlers.

The 1967 Outer Space Treaty is the foundational document of international space law. Often called the “Magna Carta of Space,” it specifies the accepted rights and duties of states in orbit and beyond. Much of the clamor about the Starlink clause concerns Articles II, VI, and VIII of this treaty.

Article II reads, in its entirety, “Outer 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.” This clause clearly prevents states from extending their territorial jurisdiction into space. States cannot annex the moon, or Mars, or any celestial object. Article II has important implications for celestial governance. Since the United States, for example, cannot declare a portion of the Martian surface U.S. territory, it cannot compel the acceptance of U.S. law.

Next is Article VI. The relevant portion reads as follows: “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.” In other words, it’s up to states to make sure their nationals behave well in space.

Finally, Article VIII. When a state puts an object into space, it “shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.”  If it’s the U.S.’s stuff before launch, it’s the U.S.’s stuff after launch, wherever it may go. Furthermore, governments can’t wash their hands of space assets in the event of an accident. While this provision isn’t completely irrelevant to Musk’s activities, neither is it paramount.

None of these provisions clearly prohibit what Musk is proposing. The Outer Space Treaty is primarily concerned with the rights and duties of nation-states. It was drafted and ratified at the height of the Cold War, when the primary goal was keeping the arms race between the U.S. and the USSR from escalating into orbit. How the treaty’s provisions apply to private individuals and groups is largely a matter for the parties to the treaty to decide for themselves. For example, nobody would object if NASA, wishing to establish a small lunar settlement for exploratory and scientific purposes, implemented a governing code for the duration of astronauts’ stay on the moon. Using lunar land is clearly not the same thing as appropriating it, and providing a legal framework is clearly not the same thing as forcibly imposing U.S. law. It’s hard to see how the example changes in any meaningful way if we replace NASA with SpaceX. Furthermore, the portion of the Starlink terms and conditions asserting “no Earth-based government has authority or sovereignty over Martian activities” makes sense, provided it isn’t intended to mean the U.S. government has no continuing authority over U.S. nationals.

A deeper dive into Article VI reinforces this point. The U.S. does not have an obligation as part of its monitoring and enforcement duties to prevent Musk from spearheading a Martian settlement. As space lawyer Laura Montgomery notes, Article VI is not self-executing. It doesn’t become “enforceable federal law unless Congress enacts domestic implementing legislation.” If Congress wants to restrict U.S. nationals from settlement efforts, for whatever reasons, it can do so. But there’s no reason it must do so, because it’s ultimately up to national governments how far the “authorization and continuing supervision” requirement from Article VI extends.

Lastly, while the jurisdictional duties specified by Article VIII prevent interference in one state’s space activities by another state, there’s no reason to interpret it as forbidding any kind of private-settlement effort. U.S. personnel and materials remain the U.S.’s concern and responsibility. But as we just saw, how the government interprets that responsibility matters greatly.

The bottom line is, for every plausible interpretation that Musk’s proposal is illegitimate, there is an equally plausible interpretation that it’s legitimate. International space law was devised to address very different problems from the ones looming large in the upcoming space age. That’s why continuing international agreements, such as the Artemis Accords, are so important. Policy at the international and national level will continue to clarify what kinds of activities are acceptable in space. The role of the private sector, a distant second to the public sector in the age of the Outer Space Treaty, is now among the most important issues to be determined.

Viewed in this light, it’s clear Musk isn’t initiating some plot to dominate the solar system. Instead, he’s taking the very prudent step of recognizing that international space law is largely undeveloped and anticipating the kinds of governance arrangements that can help mankind become an interplanetary species. Obviously, any extraterrestrial settlement will require a much thicker set of rules governing natural and juridical persons than the narrow “shalts” and “shalt nots” in the Outer Space Treaty. Private entities — yes, even for-profit businesses — will necessarily be important constitutional entrepreneurs in space.

Recent years have seen a number of exciting developments with respect to private activity in outer space. There are serious discussions at the national and international levels about the feasibility of space-property rights, and recent congressional legislation and executive orders have had a decidedly pro-celestial commerce bent. We’re finally getting serious about space debris. And NASA set an important commercial precedent by offering to pay private companies for an on-site transfer of lunar regolith (moon rocks). We should view Musk’s plans for Mars as complementary to these efforts. The prospects for markets in space are bright, provided we successfully navigate the various legal challenges and secure buy-in from respected international partners. It’s entirely appropriate to consider corporate-led exploration and development as part of this discussion. Kudos to Musk for raising the issue, and for taking meaningful steps toward innovative space governance.

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