Elon Musk’s recent announcement about colonising of Mars raises the crucial questions on the appropriation of outer space by private companies.[1] With the turn of the century, many countries have authorised private companies to invest in space programme most prominent of them being the United States.[2]

SpaceX was founded by Elon Musk in 2002 with the ambitious aim to revolutionise space technology and an ultimate goal of taking humans to live on other planets. Recently, Musk publicly revealed his proposed plan to humanize Mars[3]. He has further stated in interviews that by creating life-sustaining modules, which when placed on Mars, humans could actually exist in the otherwise naturally hostile environment of Mars. The proposal may seem to come straight out of a science fiction movie but the tremendous leap in technology and widespread acceptance artificial intelligence brings the possibility closer to becoming a reality.

However, the suggested proposal is in violation of a cardinal principle of international law solidified in Article II of the Outer Space Treaty. Outer Space Treaty[4], entered into force in 1967, is the most seminal legal treatise in international space law describing the rights and duties of the spacefaring states. Article II reads as:

            “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 mean”

This clearly states that space resource is a common resource of the humankind and state cannot stake its claim over such resource. This principle of non-appropriation is the very fundamental of law governing state activities over the common heritage of mankind.[5] Proposals claiming to colonize Mars go directly against the concept.

Appropriation signifies setting apart of property for to the exclusion of others. The claim by one state to use space property would de facto exclude other states from using the same property. Moreover deriving benefits from such exclusive use will also exert jurisdiction and authority over such property. Thereby such setup resembles territorial national boundaries as they exist on Earth.

Further analysis of Musk’s plan brings out another facet of space law incorporated in article IX of the Outer Space Treaty. Article IX prohibits any state party to conduct space activities that result in harmful contamination of outer space and other celestial bodies.[6] As proposed, colonisation of Mars would require heating up of the Martian atmosphere by an increase in CO₂ and changes in the atmospheric pressure.

Such adverse altering of the environment would causing damage to Mars and also injure the interests of the entire world as Mars has an abundant repository of resources otherwise crucial for human existence[7]. Such activities cannot be precluded on the grounds that a private party outside the ambit of state is conducting such activity.[8]

Therefore, it is highly improbable that as when such a proposal is materialised by the SpaceX, it would fair through easily without any international opposition.

[1] https://www.wired.com/story/musks-new-mars-plan/.

[2] https://www.theverge.com/2016/8/3/12361256/moon-express-private-mission-spaceflight-us-government-approved.

[3] https://www.liebertpub.com/doi/pdf/10.1089/space.2017.29009.emu.

[4] 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 UNTS 205 (1967).

[5] Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, A/RES/25/2749., Article 2; Report Of The United Nations Conference On The Human Environment .A/CONF/ 11 4/Rev 1; Chapter VIII (41).

[6] Article IX “… States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose…”.

[7] https://www.space.com/16895-what-is-mars-made-of.html.

[8] Article VII Outer Space Treaty.

ABOUT THE AUTHOR

Rashi Sharma

Rashi Sharma is a first-year student at the National Law Institute University, Bhopal. Having developed a strong proclivity towards commercial and business laws from very early on, she engages in extensive research in the field. Additionally, she is a keen reader on international politics. She has an immense love for sports particularly basketball.