Interview: Mars and the law

Professor Christopher Newman on the legal ramifications of a permanent human presence on the Red Planet

Welcome to the first in a new series of articles, in which scientists, engineers, scholars, and other individuals connected with the exploration of Mars are canvassed for their opinions in the Hellas Daily Herald interview!

As the day when humans set foot on Mars draws closer, questions that have for many decades remained the province of science fiction authors and futurists are suddenly being thrust to the forefront of the debate about what form a permanent human presence on the Red Planet will take. One such question is that of the law. What legal system will suffice for a Mars base, and how will it operate? Will there ever be such a thing as Martian citizenship, and how will it relate to the citizenship rights of inhabitants from Earth? How will the question of property law be resolved?

Christopher J. Newman, BA(Hons), PhD is Professor of Space Law and Policy at Northumbria University at Newcastle in England, United Kingdom. A member of the International Institute of Space Law and of the British Interplanetary Society, he is a regular contributor to programming on the BBC and Sky on matters concerning space law. In an exclusive interview with the Hellas Daily Herald, Professor Newman discusses land ownership on Mars, Martian fender benders, and the future of space law…

Christopher Newman, Professor of Space Law at Northumbria University’s Law School. Image credit: Northumbria University

HDH: Many readers will be familiar with the Outer Space Treaty of 1967, but it was drawn up at a time when a permanent human presence beyond low Earth orbit was a long way off. To what extent is it useful in the context of a Mars base?

CN: The Outer Space Treaty (OST) 1967 remains the cornerstone of international regulation of human space activity. Although in recent times some have questioned its applicability to contemporary space activity, there is little doubt that the principles articulated within the OST will remain fundamental to the way in which human activity on any celestial body will be governed. The recent promulgation of the Artemis Accords by the United States (although talking about exploration and development in a lunar context) emphasised the desire of the US to undertake space activities within the framework of the OST.

In addition, the 1967 Treaty sees articulation of some fundamental freedoms in respect of human space activity that may well be now regarded as being binding on all states. This includes the freedom to use and explore space, the freedom for all states to conduct scientific investigations. These freedoms are then subject to certain limitations to prevent the unfettered exploitation of space, such as the prevention of appropriation of celestial bodies and also the requirement that all space activities be conducted in accordance with international law. It is highly likely that these principles – at least initially - will be carried forward to a potential human settlement on Mars.

HDH: If Elon Musk's vision of a Mars base with a population numbering in the hundreds of thousands in the next couple of decades comes to pass, how quickly do you envisage an 'indigenous' legal system coming into effect?

CN: It is very difficult to speculate as to what form a legal system might take - the exact composition of the settlement and the actual mechanics of the relationship between the settlers and Earth are yet to be determined. That relationship, between terrestrial institutions and Martian settlements, will be a fundamental aspect of any constitutional and legal order.

Currently under the Outer Space Treaty, nation states are internationally responsible for the activities of both their nationals and non-governmental entities. Similarly, States who register any space object gain jurisdiction and control over that object and any personnel within the object. The settlement architecture would, in all likelihood, be regarded as a space object for the purpose of the Treaty. Under the current arrangements therefore, with Musk being a U.S. citizen, it is difficult to see how any legal arrangement would not be inherently linked to the jurisdiction of a State on Earth (and most likely, the United States).

More broadly, there are a number of questions that will need addressing, such as the way in which crime and punishment are to be dealt with, the economic and trading relationship between the Martian settlement inhabitants and their ‘home’ nations on Earth. Whilst it is always dangerous to underestimate the ambition and capability of Elon Musk, the reality is that any settlement will need a little time to develop. Any interim arrangements that are put in place for the governance of the settlement will, in all likelihood, form the bedrock of a future binding legal order. So rather than witnessing a ‘Big Bang’, it is more likely that we will see current arrangements transposed to Mars followed by incremental change in the legal order as the settlement develops.  

HDH: Article II of the Outer Space Treaty has been interpreted as meaning that land ownership on other celestial bodies is illegal. Would that apply to Mars? And if it did, what would be stopping private entities (or non-signatory nations) from simply ignoring the treaty, and staking claims to tracts of land? After all, there would be no-one around to stop them...

CN: Under Article II of the 1967 treaty, the appropriation of any celestial body or any part of a celestial body is prohibited by any means, so this absolutely would apply to Mars. This provision is binding upon states, but private entities are also bound by the Outer Space Treaty via Article VI. Any attempt by a private entity to seek to claim ownership of a part of a celestial body would fall back to the State where the space activity was first authorised.

So should a private entity such as a company or an individual seek to claim ownership of a celestial body, it is their authorising state who will be internationally liable for this claim. The first and most obvious sanction would be a refusal of other states to recognise the sovereign claim upon the celestial body. This would have undoubted ramifications for any legal relationship between Earth and the settlement. Additionally, it may be that the state would pursue sanctions on Earth against the company or individual concerned. Whilst it might be superficially attractive for a private entity to claim sovereignty over a celestial body and possibly independence from Earth, the reality - for the foreseeable future - is that any settlement would depend heavily on resources and materials from Earth and so would not be able to simply ignore the existing legal order.

HDH: Let's assume a scenario in which there are (as in Antarctica presently) many separate Mars bases, each established by different sovereign nations from Earth. If the legal systems of each country were in operation in their respective bases, which laws would apply in the vast open spaces outside? To take a frivolous example: if an American and a Chinese Mars rover collided with one another, which set of laws would come into effect?

CN: Once the composition of these diverse habitats became apparent on Mars, it is likely that some local arrangement would be made regarding liability, insurance and the relations in such ‘common areas’. At the moment, any real concrete discussion of legal frameworks and subsequent treaties is necessarily limited by the lack of context and specific details. Legal systems and governance frameworks cannot be drawn up in abstract. They are inherently contingent on the circumstances, people and activities that are to be governed.

HDH: Let's talk about a particularly thorny issue - how Mars is to be 'used' by humankind. The ability to transform Mars' climate to resemble that of Earth is still some way away, but there are nevertheless some who advocate beginning that process early - by pumping greenhouse gases such as carbon dioxide into the atmosphere, for example - while others advocate mining on Mars. Still others think both course of action would be unethical, and support leaving Mars as it is, and maintaining a human presence within geodesic domes and the like. Wouldn't this last option require something like an 'Antarctic Treaty' for Mars? Are you surprised at the longevity and success of the Antarctic Treaty, and could you envisage a similar arrangement working for Mars?

CN: This is one of those hypothetical discussions where the law of outer space and science fiction tend to merge. Should human settlements on Mars begin to emerge, then some form of broad ranging and binding statement of principles governing the activities of settlers on celestial bodies would be highly desirable. Unfettered activity in outer space may well lead to irrevocable environmental damage and the loss of a unique opportunity for scientific investigation.

This is not advocating the absolute preservation of these bodies, as there is a definite argument for using the resources of the solar system. If, however, humanity is to exploit the resources of another celestial body, then there are clearly wider discussions that need to be had involving a broad range of stakeholders on Earth and these discussions need to include as broad a range as possible of nation states and cultures. The Outer Space Treaty was primarily intended to be a security treaty, designed to stop space being turned into another front of the Cold War. It was also intended to prevent those nations that did have access to space from carving up celestial bodies along Imperial or colonial lines. It seems unlikely that the broader international community on Earth will want to allow private companies to similarly carve up celestial bodies either for profit or to promote the ideology of their founder.

HDH: You teach space governance at Northumbria University. Where do you see space law as an academic discipline in, say, ten years' time?

CN: It is a tremendously exciting time to be studying space law. The way in which human space activity is developing means that space law as an academic discipline will continue, much in the same way that cyber law and the law regulating artificial intelligence has done. The development of technology will continue to challenge existing governance arrangements and provide novel legal conundrums. It would therefore seem inevitable that the governance framework of outer space well evolve as human activity in outer space evolves and increases.

Over the next decade it is possible to imagine the establishment of a permanently crewed lunar base, and a space station in lunar orbit together with large constellations of satellites providing global Internet access. These will all require imaginative and enduring legal solutions. The next ten years will see space law continue to grow and adapt to advances in technology and reflect the different actors becoming involved in space. Space law is integral to creating a stable environment in which to conduct activities in outer space and plays a crucial role in broader discussions as to how humans are to live and work in outer space.

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