The private space industry is booming with companies like SpaceX, Blue Origin, and Virgin Galactic all designing spacecraft to transport people into the cosmos. Elon Musk is the closest to launching a space faring program, with near-term plans to send humans to the Moon and Mars. In October 2020, Musk, a genius billionaire, quietly declared the independence of a new country on Mars. Musk claimed he will have humans on Mars to start building the new “free” “city-state” by 2026. He also declared the new “country” will not “recognize the laws of Earth.”
All three tech billionaires currently face few obstacles to implement their plans. However, one obstacle for all of them will be navigating international law. Musk already appears to be exploiting many soft spots in international politics, which are no competitor to a ruthless tech titan. Musk’s plans are an urgent international problem that requires a new multi-national solution.
Musk’s Declarations About Mars
For decades, Musk has spoken about his desire for humans to become “interplanetary.” Musk founded SpaceX in 2001 with his PayPal fortune and the goal to put humans on Mars. After Russia rejected his offer of $20 million to buy several intercontinental ballistic missiles, Musk began manufacturing and launching his own rockets. Musk plans to start sending humans to Mars by 2026 and then shuttling thousands of people between Earth and Mars before 2030. Muskplans to create a city on Mars by 2050 and then a completely self-sufficient city of a million people on Mars by the end of the century.
Musk is an eccentric guy and not everything he says should be taken seriously. However, it is clear Musk is serious about bringing humans to Mars. In 2017 and 2018, he published detailed plans for settling Mars. In October 2020, Musk published a terms of service agreement for beta customers of his new Starlink wireless internet service. The agreement included a very specific note about the governance of Mars. In Starlink’s “Pre-Order Agreement,” under “Governing Law,” the contract states,
“For Services provided on Mars, or in transit to Mars via Starship or other 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.”
Further, in December 2020Musk began selling off all of his possessions to help fund the city on Mars. A SpaceX attorney even stated he is actively drafting a Martian constitution. There is every reason to think Musk will follow through.
Common Heritage of Mankind
Ultimately, a city on Mars would simply be an extension of Earth, though separated by a different kind of sea. National jurisdiction and sovereignty are always limited in several areas: outer space, international airspace, international waters, international sea beds. All these areas are considered the “common heritage of mankind” (CHM). These are areas where activities are expected to be carried out in the collective interests of all states and benefits are expected to be shared equitably. Space exploration is a priority for many nations, as well as for the scientific community. There is zealous global interest in space travel, studying celestial objects, and even operating scientific laboratories in space and on planets.
The 1967 Outer Space Treaty (OST) explained in Article II that outer space is not “subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This provision is referred to as the non-appropriation principle. The policy rationale is to dis-incentivize states from “reenacting terrestrial land rushes” and taking boundary disputes into space. Scholars argue that the outer space non-appropriation principle has passed into customary international law.
In this sense, Mars is equivalent to the high seas. According to the United Nations Law of the Sea Convention, “international waters” belong to everyone and no one. There is a history of rogue actors declaring “new nations” in domestic and international waters; a phenomenon often referred to as “seasteading.” None of these “nations” have ever been recognized as legitimate. The U.K. rejected a British man’s declaration that a WWII platform was now the “Principality of Sealand.” Italy rejected the “Republic of Rose Island” off its coast and eventually destroyed the “nation” with dynamite. U.S. courts have rejected seasteading as well, deciding that artificial islands on the coast of Florida were under U.S. jurisdiction.
Private Property Rights in Space
International law is clear about private property rights in space – there are none. Private property rights can only be created by a state on the property over which the state has sovereignty. The 110 countries that have ratified the OST are not allowed to create private property rights. The OST is ratified by all states with space programs and reflects the consensus of resolutions of the U.N. General Assembly on the topic.
Under the OST, states are also liable for the activities of non-state actors, whether they are private corporations or international organizations. States must ensure private activities conform to the obligations of the OST. It is up to each party state to create their own domestic legislation to effectuate this. The U.S. created the ability of private citizens to go into space with proper government authorization and supervision through several pieces of domestic legislation. However, while the OST requires “continuing supervision” by nations of private actors while in space, U.S. laws omit regulating activities in space, instead focusing on launches and reentry.
In the early 2000s, the U.S. adjudicated one case of private property rights. In 2003, Gregory Nemitz registered a claim of real property rights for the entirety of an asteroid. After NASA landed a spacecraft on the asteroid, Nemitz submitted an invoice to NASA for parking and storage fees. NASA’s general counsel denied Nemitz’ claim and Nemitz appealed in court. The court found there are no private property rights in space; thus, there was no basis for compensation.
However, the U.S. pivoted its non-appropriation policy in 2015 with the SPACE Act, where U.S. Congress “created” private property rights for resources in space. Backers of the SPACE Act compared it to the Homestead Act of 1862 (which the idea of “seasteading” is based on). In 2017, the U.S. National Space Council proclaimed that outer space is not the common heritage of mankind. Then in 2020, NASA announced the Artemis Accords: new principles for the use of outer space including further solidifying private property rights in space. Nine other countries have signed on. Finally, in 2020 President Trump discussed space settlements during the State of the Union, saying, “now we must embrace the next frontier: America’s Manifest Destiny in the stars.”Following this trajectory (homesteading, Manifest Destiny, etc.), it seems possible the U.S. might actually support some of Musk’s plans for Mars if his actions bring more imperialistic value to the U.S. government than logistical headache. However, it seems unlikely the U.S. would support Musk creating a separate nation.
Some commenters have pondered why Musk provided the Starlink/Mars clause so early (well before any of his employees or customers have traveled to Mars). The prohibition of private property ownership in space appears to have already become customary international law – or is at least on the cusp of crystallizing. Musk will want to say that from his country’s original declaration of independence, he has always been a persistent objector to the prohibition of private property rights on Mars. This strategy would make financial sense, as Martian private property rights would reassure Earth-based investors.
Deconstructing Musk’s Plans for Mars
Musk elaborated in 2020 that he plans for his government to be a direct democracy. Commentators have questioned why Musk would choose that form of government, which may be terribly ineffective in response to resource scarcity and constant danger. Further, Musk has become well known as a CEO who will happily violate labor laws, health codes, and pollution regulations back on Earth in furtherance of his company’s financial bottom line. That does not sound like someone who will actually enact or uphold direct democracy.
So, what exactly is Musk up to? It is not occupation because Mars is not populated and Musk is not a state. It is not discovery because Mars is not terra nullius (available land that no one has claimed yet)and again Musk is a private actor. It is not filibustering (a private individual waging private wars against existing countries, i.e., William Walker: another deranged San Francisco Bay Area-based entrepreneur) because even though Musk is a private actor, he is not conquering. Musk’s actions are similar to seasteading (the concept of establishing new countries in international waters); however, as discussed, seasteading has never resulted in a recognized claim to a new country. The closest comparison to what he is doing is probably secession.
It is possible for new states to be created through secession from existing states. Today, the international community disfavors unilateral secession. Under international law, secession is more likely to be accepted if it is in pursuance of self-determination, democratic governance, and has the support of the people of the would-be state.
Musk could argue he is pursuing democratic goals and has the consent of his people (his Starlink customers: over 700,000 of whom already agreed to the contract). Musk can say he should be allowed to secede from the United States because his state will be even more democratic (direct democracy instead of representative democracy). He may even be able to posture himself as escaping human rights violations in the U.S., citing the recent international outcry about systemic racial injustices in the U.S.
However, Musk will have a harder time navigating domestic law as a citizen of the United States. The U.S. is a “perpetual union” that not allow unilateral secession. Musk will not be allowed to secede per domestic laws. When a secession attempt fails, there are other options. Musk, like other actors with the capacity to go into space, will be bound by the laws of the state to which he is a citizen. This means there is a risk that international commercial enterprises like SpaceX will engage in “jurisdiction shopping” for countries with lenient outer space regulations and perhaps even states who never signed the OST. These companies will search for administrations whose licensing and supervisory requirements may be deficient, defective, or intentionally inadequate.
As a final contingency, Musk is saddling up with a U.S. state with its own notorious rebellious streak. Musk is building a rocket production plant and the first fully commercial launch facility capable of launching spacecraft for long-term space travel in Boca Chica, Texas. It is obvious why Musk chose Texas. First, it is close to the equator for launch logistics. Second, it is still in the U.S. for the purposes of trades and permits. Finally, Texas has an adversarial relationship with the federal government and already attempted to secede from the U.S. (and secession is still a popular talking point). If any state would support a U.S.-state based secession attempt to support Musk, it is Texas.
In March 2021, Musk announced he is “creating the city of Starbase, Texas” on currently unincorporated land in Boca Chica, located in southern Texas near the Mexican border. The top county official protested Musk’s declaration, saying, “Sending a Tweet doesn’t make it so… If SpaceX and Elon Musk would like to pursue down this path, they must abide by all state incorporation statutes. The county is also already anticipating litigation against SpaceX for violating agreements with the county around permits and security.
Many commentors are asking why Musk so desperately wants this specific village. Musk’s new “city” is not simply “near the Mexican Border,” it is on it. Boca Chica borders the Gulf of Mexico to the east, Brownsville Ship Channel to the north, and the Rio Grande River and Mexico to the south. If Musk felt he needed a “free city-state” on Earth, to support his “free city-state” on Mars, it seems within the realm of possibilities he could attempt to secede “Starbase” from the U.S. and create his own country (which barely shares a land boundary with the U.S.). He already unilaterally and illegally declared a new city there.
Musk is already in violation of federal laws. SpaceX was denied a safety waiver by the Federal Aviation Administration (FAA) in December 2020 due to Boca Chica-based launch plans that exceeded maximum public safety risk, but following the permit denial, Musk proceeded anyway and the launch ended in a “fireball” explosion. The FAA delayed the next test planned for January 2021 until an investigation could be completed. A former FAA official noted the lack of FAA enforcement against Musk was “puzzling.” Even after mysteriously avoiding any penalties, Musk, upset about the delay, claimed the FAA was “a fundamentally broken regulatory structure.”
Musk already bought out most Boca Chica residents and has allegedly been bullying the remaining few with property damage, trespassing, offers of over triple the value of their property, and threats of vague “other measures” if they do not accept. Once the last residents are forced out, a secession attempt then would only involve resistance by the local and federal governments. Is Musk capable of violent measures? Apparently, Musk and SpaceX employees have been spending time at a nearby shooting range. Further, neighbors have grown accustom to sirens warning them when Musk and company are about to do something that could (and sometimes does) cause imminent physical harm, and then evacuating or taking cover. Not to mention the “fireball” incident. Violence seems within the realm of possibilities.
Musk will likely offer financial incentives for Texas to tolerate his activities. He has already promised$30 million to local governments. Musk has also entwined himself with the federal government to the point of mutually assured destruction. SpaceX secured a $2.9 billion contract with NASA for the upcoming Moon missions (though currently contested by Jeff Bezos) and is already heavily involved with other NASA projects. NASA has become very dependent on SpaceX and Musk.
With all of this in play and no intervention, the compromise will likely be Texas and the U.S. tolerating Musk’s “Starbase” as a semi-autonomous region. Then, Musk’s Starbase “succeeds” as a semi-autonomous region and extends its territory to Mars as a non-member of the OST. This results in the politics of Musk’s presence on Mars having no precedent, no established legal standards, and no established political principles for analysis.
Soon, the largest obstacle to reign in Musk will be the distance to Mars. Will it really be worth launching a billion-dollar interplanetary mission to make an arrest? Mars is several months away at its closest. It will be prohibitively expensive to reign Musk in after the fact. In 2019, a space law conference discussed governance of commercial activities in outer space and found the world is at an “inflection point” and needs to establish global standards of accountability for private actors. The keynote speaker stressed the importance of governance, not simply governments. She looked to the success of the International Space Station as inspiration.
Considering this, a multi-national consortium should be created to regulate all activities on Mars. The consortium should be established in such a way that even the resources required for long-term interstellar travel are regulated in order to prevent rogue actors from working outside the system to control space access and resources, which are instead intended to be shared with all of humanity. At this point, a security council resolution on the topic may also be prudent.
Musk’s plans are just the beginning. There are two other ultra-wealthy titans of industry behind him and plenty more to come. Musk is just the first and most reckless. The international community must act now. The future of space may be speculative, but the issues are urgent. Space is for everyone. We all must partner together to ensure it remains that way.