By Jeffrey Phaup

 

Customers who signed up for a beta test of SpaceX’s Starlink satellite internet service have had to agree, under section nine of the services terms and conditions, that Mars is a “free planet”.[1] The provision 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 the Martian settlement.”[2]

 

If this language is taken literally Starlink users are agree that Mars is a “free planet” and that any disputes concerning Starlink services provided on Mars, or while travelling to Mars on a SpaceX Starship will be settled through self regulation.[3] This adherence to a set of “self governing principles” attempts to sidestep international law.[4]

 

Elon Must has plans to create a self-sustaining city on Mars that is entirely self-sufficient and not dependent on links to Earth for its survival.[5] Any future colony on Mars created by SpaceX would use constellations of Starlink satellites orbiting the planet to provide internet connectivity to the colonists and machinery on the planet’s surface.[6]

 

While states have no sovereignty on Mars, this does not leave Mars a “free planet” up for grabs by SpaceX, as it also has no sovereignty.[7] International law deals with this issue through Articles II, VI, and VIII of the 1967 Outer Space Treaty (OST).[8]

 

Article II states that 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.[9] Article VI states that nation states bear international responsibility for national activities in outer space, which includes Mars, and includes activities conducted by “non-governmental entities”.[10] Article VIII states that all parties 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.[11]

 

Essentially, each country is responsible for all objects and people they send into space and each country also retains jurisdiction over those objects and people when they go into space.[12] The Unites States thus bears the fault-based liability for any injury or damage that SpaceX’s space bound objects cause to other states’ persons or property as they are SpaceX’s launch state.[13] Additionally, the United States is the sole state that retains jurisdiction and control over SpaceX objects as it is SpaceX’s state of registry.[14]

 

From a legal viewpoint, Clause 9 of Starlink’s terms of service should be regarded as void.[15] Declaring that Mars is a “free planet” and refusing any Earth-based authority over SpaceX’s activities on Mars conflicts with the international obligations of the United States under the Outer Space Treaty, which takes precedence over any contractual terms of services presented by Starlink to its customers.[16] As a company SpaceX can declare anything that it wants; what remains to be seen is how the nations of the world will react to its declarations as it moves forward with its goal to colonize Mars.[17]

 

[1] Mike Brown, SPACEX MARS CITY: LEGAL EXPERTS RESPOND TO ‘GIBBERISH’ FREE PLANET CLAIM, Inverse (Nov. 3, 2020 2:00 PM), https://www.inverse.com/innovation/spacex-mars-city-legal.

[2] Id.

[3] Antonio Salmeri, No, Mars is not a free planet, no matter what SpaceX says, space news (Dec. 5, 2020), https://spacenews.com/op-ed-no-mars-is-not-a-free-planet-no-matter-what-spacex-says/.

[4] See Anthony Cuthbertson, ELON MUSK’S SPACEX WILL ‘MAKE ITS OWN LAWS ON MARS’, INDEPENDENT (Oct. 28, 2020), https://www.independent.co.uk/life-style/gadgets-and-tech/elon-musk-spacex-mars-laws-starlink-b1396023.html.

[5] Id.

[6] Id.

[7] Brown, supra note 1.

[8] Id.

[9] See Cristian van Eijk, Sorry, Elon: Mars is not a legal vacuum – and it’s not yours either, Völkerrechtsblog (Nov. 5, 2020), https://voelkerrechtsblog.org/sorry-elon-mars-is-not-a-legal-vacuum-and-its-not-yours-either/.

[10] Id.

[11] Brown, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Salmeri, supra note 2

[16] See id.

[17] See Brown, supra note 1.

Image Source: “Mars” by Kevin M. Gill is licensed under CC BY 2.0.

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