By Conor L. McSweeney


Elon Musk recently gave a keynote speech on September 27, 2016, at the International Astronautical Conference in Guadalajara, Mexico, outlining his ambitious plan to establish a permanent, self-sustainable colony of humans on Mars. Musk is the CEO and Chief Designer of SpaceX, which is currently developing reusable rocket and spaceship technology crucial to making the transportation and settlement of humans on Mars a reality. According to Musk’s proposed timeline, the first one hundred people could begin the journey to Mars by 2026 on an eighty-day journey and at the cost of around $500,000 per person. His goal is to send up to one million people to permanently settle Mars over the next one hundred years, eventually reducing the travel time down to thirty days and the cost per-person to between $100,000- $200,000. This permanent settlement on Mars would essentially turn humans into a multi-planetary species, with civilizations existing concurrently on multiple celestial bodies of our Solar System. Naturally, there are many legal issues to consider in this uncharted venture of a private enterprise transporting citizens through space and settling an outpost on another planet.


The first issue is the liability SpaceX would be exposed to in ensuring its travelers arrive at their destination safely. Today, international air carrier liability for personal injury or death of passengers is limited through the Warsaw Convention to $75,000 per person, and this limitation applies regardless of the fault or negligence of the carrier. It is unclear if this framework should apply to space carrier liability when taking into account the increased level of danger associated with traveling to Mars. One of the biggest barriers to traveling to Mars, to-date, has been the exposure to potentially deadly amounts of radiation levels while traveling through space along the journey. Musk even admitted in his speech that he would not be one of the first travelers to Mars because of the high probability of death on the first trip that no human being has ever made before.


As a private enterprise, SpaceX would probably seek to circumvent private tort rights for personal injury or death by requiring each traveler to sign a waiver of liability form, just like the kind we sign before skydiving out of an airplane. The failed NASA Challenger mission exposed the need to have participants sign waivers of liability in space travel, as Christa McAuliffe was a civilian crewmember and did not sign a waiver. McAuliffe’s estate eventually obtained a settlement with the United States government following the fatal launch and NASA learned an important lesson going forward on its liability in the dangerous field of space exploration. It may not have occurred to them to obtain a waiver because the rest of the crew were either members of the military, whose families were not entitled to recovery because death occurred in the line of duty, or government employees, whose claims would have been limited to those authorized under the Federal Employee Compensation Act. See R. Thomas Rankin, Note, Space Tourism: Fanny Packs, Ugly T-Shirts, and the Law in Outer Space, 36 Suffolk U. L. Rev. 695, 700-01 (2003). Ultimately, application of the Warsaw Convention to space travel is probably not the ideal extension of the law and overreaches the original intent to govern claims of passengers across the international skies of Earth. Private contract agreements through waivers of liability are likely going to be standard operating procedure for SpaceX to limit its liability transporting passengers to Mars.


Musk also spoke of his desire to form public-private partnerships to make his dream of colonizing Mars a reality, and close collaboration with the United States government will likely give SpaceX the best opportunity to achieve its aims. One particular legal issue that SpaceX will need to initially defer to the US government’s guidance is in the area of immigration and passport control. The current plan calls for SpaceX to launch Mars missions from the Kennedy Space Center in Cape Canaveral, Florida. This would put the United States in the driver’s seat for establishing immigration protocols and procedures for travelers between Earth and Mars, as they would all be departing from United States territory. Musk also indicated that if people wanted to return to Earth after traveling to Mars, they could hop on the next space ship returning to Earth for free. This means the United States would have to establish a visa process to distinguish between those traveling for scientific and research purposes, and those traveling as part of the permanent settlement. The United States government will probably need to establish a permanent presence on Mars at some point through the United States Immigration and Customs Enforcement Agency to monitor those individuals heading back to Earth. Of course, settlement on Mars will lead to additional long-term immigration issues, like the citizenship of children born on Mars. Would the Martian children be citizens of Mars, or would they be citizens of the Earth country of their parents? There are certainly complex immigration problems that will evolve over time and need to be addressed by SpaceX, and the United States government as the departure point, to ensure the flow of people between planets is administered efficiently.


Next to consider would be the law that applies to individuals living on the Mars settlement. The most-closely related agreement today is the International Space Station (ISS) Agreement of 1998 that governs conduct between European Union, Canada, Russia, Japan, and United States citizens at the International Space Station. The ISS Agreement allows each partner state to exercise the laws of its own jurisdiction in criminal matters involving their respective nationals. Therefore, if an American perpetrated a crime against another American at the International Space Station, then the United States would have jurisdiction to prosecute the crime. However, if an American citizen perpetrated a crime against a Russian citizen, then the American could be prosecuted under Russian jurisdiction and law. This type of criminal law arrangement works in the narrow scope of the International Space Station, where the likelihood of crime is minimal and its temporary residents are extremely well-vetted. But when considering the prospect of one million colonists residing on Mars, criminal matters will almost certainly arise that will need to be adjudicated. A framework where crimes perpetrated on Mars are subject to the laws of the home nation of the victim would simply be unworkable, particularly as Mars hypothetically evolves from a space frontier into a sovereign, permanent outpost. SpaceX will have to consider its own criminal statutes governing illegal conduct among the Mars population, and will probably use United States law and Customary International Law as the basis.


At it appears more likely that a colony in Mars will have to develop its own set of laws as an independent entity, it merits analysis as to whether there are any treaties already in existence that refer to the sovereignty of Mars. The 1967 Outer Space Treaty bound the United States, the Soviet Union, and a few other nations that signed the treaty, to a commitment that space exploration would only be conducted for peaceful purposes. The signatories also agreed that no nation would be able to claim sovereignty over the moon, planets, or any celestial body in outer space. It is interesting that the parties only envisioned nation states as having the capacity to put together an expedition into outer space, while SpaceX is a private enterprise and may be in a legal gray area regarding whether the treaty would apply to a potential SpaceX claim of sovereignty on Mars. In 1979, the UN-sponsored Moon Treaty was ratified to grant each nation the right to land space vehicles on the Moon, conduct research, takes samples of minerals, explore the Moon’s surface, and set up permanent stations thereon. The Moon Treaty almost exclusively focuses on activities taking place on the Moon by different nation states and again does not consider space exploration by private enterprises. While the Moon Treaty could easily be amended to apply all of its provisions to Mars, it should also address space exploration activity by private entities that may no longer consider themselves associated with any sovereign government on Earth. The question is, if the United Nations were able to ratify a new treaty that expressly governed SpaceX’s conduct on Mars, would Elon Musk and SpaceX abide by the treaty once they arrive on Mars?


My estimation is that SpaceX would adhere to United States and international laws and treaties through much of its infancy. But like United States colonists eventually rejected British rule because of their heavy-handed tactics from across the Atlantic Ocean, the Mars settlement appears bound to eventually break away from the clutches of Earth’s governance 225 Million KM away. Musk and SpaceX would be wise to prepare civil and criminal codes of law to govern Mars colonists in preparation of one million people settling the red planet. The prospect of a private enterprise planning a long-term settlement on Mars adds a new wrinkle to space law that was unthinkable just in the last decade. If Elon Musk is able to meet his aggressive schedule, we may need legal solutions in place to deal with a multi-planetary existence sooner than ever imagined.


Student Bio: Conor is a staff member on the Journal of High Technology Law.  He is a third-year evening student at Suffolk University Law School, and currently works in the legal department of a global cloud technology company headquartered in Cambridge, MA.  He possesses a B.A. in Political Science from Siena College with a minor in English.


Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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