The Future

The Future

The legal battle to colonize Mars

International rules to protect outer space may not be enough to stop the United States.

“Very soon we’re going to Mars,” Trump told Marines this week at the Miramar Marine Corps Air Station in San Diego, California. “You wouldn’t be going to Mars if my opponent won, that I can tell you. You wouldn’t even be thinking about it.”

Trump doubled down on the plans he announced last year to establish a branch of the U.S. military that expressly prepares for war in space. Or, as Trump put it, “We have the Air Force, we’ll have the Space Force.”

He’s not the only one to recently express space-faring ambitions. Elon Musk restated his plans to establish a “permanent base on the moon and city on Mars” at SXSW this week. “I think on Mars, most likely it’s going to be people, everyone votes on every issue, and that’s how it goes,” Musk mused.

Legally speaking, settling space isn’t as easy as Trump and Musk suggest. The foundational piece of space legislation is the Outer Space Treaty, which was ratified by the U.S., U.S.S.R., and dozens of other nations in 1967. Per the treaty, nations aren’t allowed to place “nuclear weapons” or “weapons of mass destruction” in outer space, period. And any celestial body — such as an asteroid, the Moon, or Mars — must be used “exclusively for peaceful purposes.” Depending on what Trump had in mind for the “Space Force,” this may put a damper on his plans.

The treaty spells problems for Musk as well. It states that nothing in space can become national territory, meaning that any base or settlement on Mars would have to be free to use by anyone else who can travel there. A person can’t just set up a colony, claim independence, and create rules that restrict access to it.

According to Michael Listner, attorney and founder of the private firm Space Law & Policy Solutions, this aspect of the treaty directly conflicts with Musk’s plans to settle Mars.

“When a private citizen makes a claim to private, real property, basically, that’s saying the United States is making that claim as well, because of that continuing jurisdiction that the U.S. government always has,” Listner said. “But you can’t do that.”

An artist's depiction of a lunar settlement.

An artist's depiction of a lunar settlement.

Nations are also politically and financially responsible for any space-faring activities from their nation, per the Outer Space Treaty. That applies to multi-billion-dollar space companies based in a nation, as well as regular citizens launching rockets from a backyard.

But a company doesn’t just have legal ties to its mother country. According to Michael Dodge, director of the graduate Space Studies department at the University of North Dakota, resource scarcity on Mars would also reinforce any settlement’s relationship with Earth, by necessity.

“Probably for very many decades, [settlers] are going to be highly dependent on what they can get from Earth,” Dodge said. “In terms of resources, in terms of personnel and technology, at least until those sorts of things evolve with time.”

So if Musk were to establish a private Martian settlement, that settlement would be an (illegal) territory of the United States. But to a figure like Trump, who recently established the National Space Council and an agenda to support private space commerce, the prospect of a private Martian settlement may be appealing. And there’s ample precedent for the U.S. ignoring treaties that are inconvenient to its national interests. In fact, according to Dodge, the Cold-War-era Outer Space Treaty was written to be ambiguous and open to interpretation.

“I think that [The Outer Space Treaty] was written that way purposefully to get some disparate factions — especially the U.S.S.R. and U.S.A., who were ideologically, of course, quite opposed at the time — to the same table,” Dodge said.

But today, according to Listner, this ambiguity could give nations like the U.S. wiggle room to manipulate the treaty's meaning.

“When it comes to the Outer Space Treaty, it’s about what we want it to say versus what it really does say,” Listner said. “I think if we really, really wanted [space colonization], we’re going to take a position that the Outer Space Treaty legally justifies it, even if it doesn’t. We’re going to make it say what we want it to say, even if it doesn’t say it.”

An artist's depiction of a Martian astronaut.

An artist's depiction of a Martian astronaut.

However, it’s worth noting that the U.S. would face consequences for anything that went wrong during a mission. John Rummel, a Senior Scientist at the Search for Extraterrestrial Life Institute, said that the biological risks alone to Martian astronauts could be significant.

“You don’t know if there is life on Mars, or literal viruses left over from life on Mars, or ancient viruses that are actually leftover from life on Earth that get transported there by an asteroid impact,” Rummel said.

And according to Listner, every potential risk involves a heavy political calculus when the U.S. considers authorizing a potential SpaceX launch to Mars.

“Mars will kill you very easily, so if that happened under the U.S. government’s watch, the blowback is going to be significant,” Listner said. “If colonists die, which they probably will, regrettably people will use that as a geopolitical tool to beat on the United States and make us look bad in the eyes of the world.”

Let’s say the U.S. authorizes Musk’s launch to Mars, and the astronauts survive. The territory may be open to other astronauts who can make it to Mars, at least at first. That scenario opens up a whole new slew of political problems. After all, Musk has explicitly stated that he intends for his colony to be an independent city-state, complete with direct democracy and his own laws.

According to Dodge, it’s possible that several decades from now, a Martian colony could not be so dependent on Earthly resources, like water and oxygen. “It’s conceivable to think that eventually a new government or a new political entity could be developed on another celestial body,” he said. “It’s not necessarily just the stuff of science fiction.”

But would Musk’s idea of a direct democracy make sense on Mars?

Rhetorically, Musk has characterized a Martian government with a direct democracy as a more pure form of democracy. But according to Daniel Smith, chair and professor of the University of Florida’s political science program who has written about direct democracy, that system of government isn’t necessarily more pure, nor is it easy to implement.

“I suspect that it’s actually easier to make it to Mars and set up critical infrastructure than it is to establish a system of direct democracy on the red planet,” Smith said. “From a practical standpoint, direct democracy is not terribly efficient.”

An artist's depiction of a Martian astronaut.

An artist's depiction of a Martian astronaut.

Smith said it’s unrealistic to think that every single citizen will have the time to properly research and be completely informed about every issue—even if Musk hopes to solve this issue by avoiding “long laws.” Smith also noted that in the U.S., direct democracy typically takes the form of ballot measures, which can easily be manipulated.

For instance, in 2013, Silicon Valley investor Tim Draper paid to try and pass a ballot measure that would have split California into six separate states. That ballot didn’t pass. But in a theoretical Martian settlement founded by SpaceX and supported by commercial space companies hoping to make a profit, it’s difficult to say that money wouldn’t influence the way city-state direct democracy would work.

Representatives for SpaceX did not respond for comment.

Even under existing laws, space is vulnerable to the will of private companies. The Outer Space Treaty states, “The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.” However, “benefit” and “interest” are not specifically defined.

Henry Hertzfeld, a professor of space policy at The George Washington University, said it’s not evident that the term “province of mankind” protects the Martian environment at all. “The bottom line is that there’s nothing in [international] treaties to prohibit private activity in space,” Hertzfeld said.

It’s very possible that Musk never makes it to Mars. But heavily-funded companies such as Lockheed Martin will be more than eager to step in over the next several decades. According to Dodge, this immutable human will to go to Mars means that we need to examine our reasons for wanting to do so.

“Some of the questions we have to ask ourselves are why do we want to do it in the first place?” Dodge said. “Is it just flashiness, or is it because we want to engage in scientific information? Is it for our profitability?”