Mars Needs Lawyers | FiveThirtyEight
The Liberian flag is easy to mistake for the U.S. flag. There’s the red, white and blue. There’s the stripes. The only difference is that the Liberian flag features one star in the upper left corner, instead of 50 — a legacy of the coastal West African country’s origins as a U.S. colony.
Someday, maybe 10 years from now — or more likely hundreds — this could be the flag that flies above a geodesic dome, fluttering in the dusty red breeze of a Martian afternoon.
The treaties that govern space allow private individuals and corporations to travel the stars, but only with the licensure and legal backing of an earthbound government. It’s similar that way to the laws of the sea. And today, on Earth’s oceans, more than 11 percent of all the tons of freight shipped is carried on boats that fly the Liberian flag.1 In exchange for lower taxes and looser regulations, both the shipping companies of the present and the Martian explorers of tomorrow could pay to register their vessel with a small country they have no other connection to2 and carry its flag (and laws) with them, wherever they go.
We may slip the surly bonds of Earth, but we will not escape the knots tied by Earth law and politics.
Nobody knows what the geopolitics of Mars might someday be like. The experts I spoke with took pains to point out that SpaceX founder Elon Musk’s dream of humans on the Martian surface by the 2020s is a tiny bit of a stretch goal, so guessing about the laws they’ll live under is even more tenuous. But the governance of space has always been affected by the governance of Earth. The Cold War between the United States and the Soviet Union, for instance, was the political driver behind the race for the moon and set the stage for the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies — which is still our primary legal document outlining the rules for space.
But recent history suggests that the future could upend a lot of our expectations. The history of space politics and space law was about superpowers and how they might interact in the heavens. The future of space politics, in contrast, could involve more global coalitions, more small countries wielding surprising levels of influence, and more of a presence for countries outside Europe and the U.S.
The path to this possible future began, as most things in space do, with the U.S. and Russia. “By far and away, the most important [moment in space geopolitics] has to do with what happened at the end of the Cold War, when the U.S. brought Russia aboard the space station,” said W. Henry Lambright, professor of public administration, international affairs and political science at Syracuse University and author of “Why Mars: NASA and the Politics of Space Exploration.”
That was an outgrowth of Reagan administration policy that regarded the International Space Station as a new way of flexing American muscle, said John Logsdon, founder of George Washington University’s Space Policy Institute. Think of it like the transition from the grade-school playground sort of power to something more akin to the social cliques of high school. Instead of proving we were important by beating everybody else in a race, the ISS gave the United States the chance to prove it was important because it could create a club that other countries wanted to join.
That multinational tree fort, and the decision to invite the Russians inside, really changed the balance of power in space, Lambright told me — but not necessarily in Americans’ favor. The very creation of the ISS required multinational technology transfer negotiations that allowed the countries involved then-unprecedented access to and sharing of technology and research data. That was useful, and it brought the United States some benefits, Lambright said. But the ISS also created a new paradigm in which the U.S. needed to work with other countries in space, especially Russia, whom we now rely on to get to the ISS to begin with.
Today, other countries are beginning to take the lead in space science and crewed space projects; witness the rise of the European Space Agency. That organization was founded as the European Space Research Organization in 1964, but the frequency of its missions increased after 1990.
The benefit to this, from NASA’s perspective: If you’re not the one in charge of everything, then you don’t have to pay for it all. And human missions to Mars are likely to intensify that trend. Musk estimates that it will cost $10 billion to develop the rocketry needed to get to Mars. Life support, food and logistics are all extra. In 1989, NASA estimated that the cost of a human Mars mission could reach $400 billion — a number that effectively killed that plan. More recent reports suggest a wide range of possible costs, as low as $6 billion for Mars One’s one-way trip plan, or as high as $100 billion, according to a 2014 review by an expert panel. (That $100 billion is much cheaper than the 1989 proposal, which would have been equivalent to more than $700 billion in 2014 dollars.)
It is, Lambright said, “something so expensive that nobody really contemplates doing it by themselves. Including Musk.”
Instead, he said, getting there would require an international coalition of governments, private companies and foundations. Which means it’s unlikely that the first human habitation on Mars will be an American ship, carrying a crew of Americans to plant an American flag in the dust. Those days are over. And a lot of other countries — especially ones that weren’t rich enough to carry out an independent space program in the 20th century — realize this, said Frans von der Dunk, professor of space law at the University of Nebraska-Lincoln. Nigeria’s space program is involved in crafting international law, has launched several satellites and plans to put a human into space by 2030. India is launching satellites at a furious pace — 20 on a single rocket in June — and selling its launch services to other countries, including the United States. That country sent an orbiter to Mars in 2014 for 11 percent of what NASA spent to do roughly the same thing.
That has implications for the law. The 1967 treaty — known as the Outer Space Treaty, for short — was signed by 104 countries and was the document that helped humans create a space environment that’s more “Star Trek” than “Star Wars” — but it primarily addresses individual, independent governments bumping into one another as they go about their separate business, according to von der Dunk and Joanne Gabrynowicz, a retired professor of space law at the University of Mississippi and the editor-in-chief emerita of the Journal of Space Law. The countries with space programs have all signed it, but the document still leaves ambiguity and unanswered questions when it comes to issues such as corporate spaceflight and multinational coalitions.
For instance, under the Outer Space Treaty, you can’t just go around claiming Martian land for Spain. But a habitation pod built by Spain is Spanish territory, Gabrynowicz said. And in a place where humans have no choice but to live in a pod or die, planting your habitat on a patch of ground might be a way to claim that land in practical terms, even if you can’t do so legally. Meanwhile, crew members retain their Earth citizenships and remain subject to the laws of their home nations, von der Dunk said.
So what happens when you have an American, two Indians, a Russian and a Nigerian living in a pod that’s owned by a private corporation under the authorization of Liberia? By whose laws are they all governed? What happens if the rules set by one country conflict with another’s? Who benefits from the mineral rights? What if India decides it’s OK for its citizens on Mars to secede and form their own Martian government before Liberia decides that’s OK?
These issues are further complicated by the fact that they overlap with stated priorities of the current U.S. president in complex (and probably, at this point, unpredictable) ways. Space exploration is one of the science-related topics that came up most frequently during the president’s campaign speeches, when he spoke highly of NASA and promised not to cut space funding, and he has bemoaned what he sees as the loss of American leadership in space. It’s an easy extrapolation to imagine that sending NASA astronauts to Mars would be seen as making American spaceflight great again.
On the other hand, insiders have reported that the Trump administration has a deep interest in commercializing space, as well. And given that this president has already established a confusing and contentious perspective on other international collaborations, it’s not clear that the administration would feel the same way about a NASA mission to Mars as it would about an international mission to Mars that included NASA. The Trump administration did not respond to a request for comment.
There are legal analogies that show the geopolitical questions of space can be answered — cruise ships sailing in international waters, for instance. But the real problem is political, Gabrynowicz said. There isn’t yet broad international agreement on how ownership of something like extracted space resources should be allotted, so what answers we come up with will have less to do with lawyers, like her, and more to do with politicians, like Trump.
For instance, a limited number of satellites can orbit the Earth simultaneously. Put up too many, and you end up with an expensive game of celestial bumper cars. But some countries — Russia and the United States, in particular — had a big head start on gobbling up those slots. What do you do if you’re Nigeria? Today, Gabrynowicz said, the international community has settled on a regulatory system that attempts to balance the needs of nations that can put an object into geostationary orbit first with the needs of those that aren’t there yet but could be later. And even this compromise is still extremely controversial.
The same basic disagreement behind them will apply to Mars, too. And it’s at issue right now in the U.S., as lawmakers try to figure out how best to implement the U.S. Commercial Space Launch Competitiveness Act — a bill signed by President Obama in November 2015. That law states that U.S. companies can own and sell space resources — including minerals and water. But the details of what this means in practice haven’t been worked out yet, Gabrynowicz said. Legal experts say that those details will make the difference in terms of whether the law puts the U.S. in violation of the Outer Space Treaty.
This question of whether space should be an Old West-style gold rush or an equitably distributed public commons could have been settled decades ago, with the 1979 Moon Agreement (aka the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies), which would have established space as part of the “common heritage of mankind.” What this would have meant in practice is not totally clear. But at the time, opponents saw it as having the potential to ban all private enterprise and effectively turn the heavens into a United Nations dictatorship. It ended up being signed by a handful of countries, most of which have no space program. But it is international law, and if humans go to Mars, though, we’ll likely end up debating this issue again.
“Here’s what I’ve told my students for years,” Gabrynowicz said. “Space is sexy. It’s glitzy. It’s about rocketry and satellites and all sorts of wonderful things. But the truth is, we must understand that leaving Earth will not solve human problems alone. Whatever our issues on Earth are, they’re going with us, and we still have to address them.”