Lessons From Earth to Outer Space: Space Law, Elon Musk, and the Future of Mars

Interplanetary Space Station Orbiting Mars

The history of space law can be traced to competition among developed countries that demanded new ground for growing political pretensions. Thus, shortly after the Cold War, and almost without looking back, humankind left the Earth and stepped into outer space, taking its problems with it.

In 1957, a time when the U.S. perceived the skies above as its property, the Soviet satellite Sputnik flew over the country, but there was no widespread protest from below. For some, it meant the emergence of a new international custom; for others, a violation of international law.

The first formal space law custom emerged with a U.N. General Assembly (UNGA) resolution which, due to the balance of powers and the arms race, immediately proclaimed “The peaceful exploration of outer space.”

Before the adoption of conventional sources of law, other significant resolutions proclaimed the extension of international law and the U.N. Charter to outer space, prohibition of national appropriation of outer space and its resources, international cooperation in the peaceful use of space, refraining from placing nuclear weapons and any other type of weapons of mass destruction in orbit around the Earth or installing such weapons on celestial bodies and placing them in space in any other way.

Space law developed rapidly between the early ’60s through late’70s, serving as the basis for the Outer Space Treaty (OST). Across these two decades, the U.N. saw agreements on such topics as the principles governing space exploration activities, rescuing stranded astronauts and objects in space, liability for damage caused by space objects, and the so-called “Moon Agreement.” Additonially, Strategic Arms Limitation Talks (SALT) between the U.S. and USSR produced interim agreements to limit strategic offensive weapons, which were later extended to apply to outer space.

Despite the principles and rules, the politics of the few space-faring nations influenced the further development of the space industry. In 1983, President Ronald Reagan’s Strategic Defense Initiative, better known as “Star Wars,” initiated investments in space-bound war equipment and missile defense systems, to serve exclusively against potential nuclear attacks from ballistic strategic nuclear weapons from the USSR.

In 1985, the Committee for the Prevention of Arms Race in Outer Space (PAROS) was founded with the intention of being an obstacle to unilateral decision-making on armaments; however, recent events raise new challenges that mirror those from the history of space law.

Policies similar to Regan’s scuttled Star Wars have reappeared, such as President Donald Trump’s recent signing of Space Policy Directive-4 to establish the Space Force in the U.S. military. Based on the recent development of private space entrepreneurship, such actions seem to have further inspired others.

There are currently 3,000 visible and active satellites in orbit; however, Elon Musk’s SpaceX is now launching sets of 60 satellites every couple of weeks, and has received approval to launch 12,000 Starlink satellites with plans to launch 30,000 more. At least one consequence of this, as Samantha Lawler recently described, could be light pollution from the satellites threatening the discoveries of hazardous near-earth asteroids.

Although such space endeavors of private entrepreneurs represent glorious scientific and technological progress, Musk’s plans beyond Earth’s orbit raise even larger questions over their legitimacy and legality.

Musk has announced plans to terraform Mars to make it more habitable, which would involve pumping greenhouse gases into the atmosphere by, according to Musk’s plan, dropping nuclear bombs on the planet. Musk has also said he will not recognize Earth-based laws on Mars, but instead plans to declare Mars a “free planet.”

The OST, however, already elaborates basic principles of space law on such issues. The OST entirely forbids any kind of sovereign claims by any means, forbids the use of nuclear and any other weapons of mass destruction, and foresees the exploration and usage of space only in peaceful means.

One popular argument that has been raised is that space law doesn’t apply to private entrepreneurs. This argument becomes irrelevant if we keep in mind that the OST explicitly expands the application of international law and U.N Charter to outer space in the interest of maintaining international peace and security. This means that private entrepreneurs, just as much as international organizations, are obliged to abide by the laws of their state and by international law, which includes space law, and vice versa.

Additionally, the OST provides for the responsibility of states for national space activities, including the Moon and other celestial bodies—whether such activities are carried out by governmental agencies or non-governmental organizations (NGOs)—and for guaranteeing that national activities will be conducted according to treaty provisions. Again, since this provision extends to include NGOs, there is no reason to exclude other organizational structures or other types of legal entities. At the time these treaties were adopted, only states endeavored in space activities, but there is insufficient proof that states intended to exclude private entrepreneurs or agencies from them. Further, states’ ownership of space objects and staff in outer space indicates a need to maintain effective control over them.

Space law has long occupied the challenging area between rapid tehnological change and international cooperation and safety. As these new challenges present themselves, we should draw on the past as we move toward the future.