Is Mars a “Free Planet,” and May No Country Authorize Martian Activities?

By now everyone has heard about the terms of service in SpaceX’s Starlink satellite-internet service contract.  They’re posted on Reddit:

9. Governing Law.

…. 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 Martian settlement.

I bolded the two parts I want to discuss.

First, is Mars a free planet?  It probably is.  Article II of the Outer Space Treaty says that the countries that sign the treaty agree 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.

If no Earth nation may appropriate Mars, then, yes, Mars is likely “free” –whatever that means.  Some of us think of the United States as a free country, and since the United States has agreed not to annex Mars, Mars is likely more free than the United States.

Is it wrong to say no Earth nation has sovereignty or authority over Martian activities?  The lack of sovereignty is the easy one.  Under Article II, no nation should claim sovereignty over Mars to appropriate it.

How about authority?  For U.S. entities, that is probably correct, but not necessarily for citizens of other countries.

In addressing whether the Starlink terms of service violate international law, Economics Professor Alexander Salter points out that the treaty’s Article VI needs to be addressed.  It says:

“The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”

“In other words,” Salter says, “it’s up to states to make sure their nationals behave well in space.”  Thus, the question arises of whether states require their private citizens and other entities to obtain an authorization such as a license, permit, certificate, or other form of approval.  Countries, such as the United Kingdom and France, have passed legislation requiring the regulation of all space activities.  The United States, however, has not.  Professor Salter puts it succinctly:

The U.S. does not have an obligation as part of its monitoring and enforcement duties to prevent Musk from spearheading a Martian settlement. As space lawyer Laura Montgomery notes, Article VI is not self-executing. It doesn’t become “enforceable federal law unless Congress enacts domestic implementing legislation.” If Congress wants to restrict U.S. nationals from settlement efforts, for whatever reasons, it can do so. But there’s no reason it must do so, because it’s ultimately up to national governments how far the “authorization and continuing supervision” requirement from Article VI extends.

Congress has not enacted a law requiring federal authorization and continuing supervision of private U.S. activities on Mars.  Congress would have a lot of policy decisions to make before doing so, of course.  What activities are so hazardous they require federal approval and supervision?  Which agencies have the relevant expertise?  Would Congress assign habitat oversight to the Department of Housing and Urban Development?  Might Congress place Martian farming under the jurisdiction of the Department of Agriculture?  Mining under the Department of the Interior?  The name alone should disqualify it, but it does have some expertise in terrestrial mining.  Congress has not yet made up its mind on these and other pertinent questions.  Until it does, private U.S. actors require no license or other U.S. authorization for their activities on Mars.

Thus, although the United States does not require authorizations for Martian activities by its private citizens, other countries do, so the provision doesn’t look to be entirely accurate.