Human Settlement on Mars – Is It Legally Feasible?

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

Headshot_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.

 

International Trade Laws: Inception and its significance ever since

In ancient period, the International Law was governed by ‘inter-racial’ relationships in all communities. Different communities governed by different religions decided to abide by certain general principles of law which would be acceptable by all on the grounds of humanity and which would lead the society into good code of conduct for the treatment of diplomatic envoys, declaration and termination of war, regulation of welfare within and outside of one’s nationality, the conclusion of treaties, and related matters connected with international relations.

The term ‘International Law’ was first coined by Jeremy Bentham in 1780. It means ‘law of nations’ which corresponds to French and German equivalents ‘Droit International’ or ‘Droit des genes‘; ‘Internationales Recht’ or ‘volkerecht’ respectively. As defined by Sir Cecil Hurst, “International Law is the aggregate of rules which determines the rights which one State is entitled to claim on behalf of itself, or its nationals against another State.”

In the period of globalization and modernization, no country can imagine to operate or survive on their own. Every country has to depend on other countries for the import or export of raw materials and other essential goods for the proper development of its economy. In the primitive times, it was the barter system which helped people of different trades to survive. Now, in the modern times, it has been upgraded with more sophisticated, dignified, and reliable method of the binding written conventional rules aided by different countries for the sole aim of a good code of conduct.

The developing countries generally export raw materials to the developed countries and are dependent on them for their finished goods. International trade is vital for the economic development of the country, raising the living standards of the people and strengthening the position of the country in the international sphere. International trade laws have mainly three objectives:

  • Attainment of foreign policy objectives
  • To increase country’s capabilities
  • To create spheres of influence.

The two controlling holder of international trade laws are:

  • The GATT, 1947 (The General Agreement on Tariff and Trade, 1947)
  • The World Trade Organisation

The GATT – The convention of GATT requires that any proposed change in the tariff or any other policy, of a member country, should not be undertaken without the consent of other member parties to the agreement and all the member countries should have a common goal to reduce the tariffs and other barriers of the international trade, which should be negotiated within the framework of GATT. The Preamble of the GATT mentions four following objectives:

1) raising the standard of living

2) utilization of the resources of the world

3) ensuring full employment and steady growing full volume of real income and effective demand

4) expansion of production and international trade

The World Trade Organisation – The WTO shall facilitate the implementation, administration of the objectives of the Multilateral Trade Agreements and it shall also provide the forum for negotiations among its members concerning their multilateral trade relations in matters dealt with under the agreement of GATT. It shall also administer the Trade Policy Review Mechanism (TPRM). It also administers the rules and procedures regarding the rules and procedures of settling disputes between the member countries. Some of the agreements are mentioned below:

US – India Strategic Partnership

1) A historic agreement on Civil Nuclear Cooperation – it addresses India’s surging energy needs for its growing economy.

2) Economy – US – India cooperation to enhance job creation and economic growth, support economic reform and liberalization, develop a bilateral business climate supportive of trade and investment and improve market access for goods and services.

India – EU Relationship

1) Develop and preserve a dynamic agricultural sector

2) High-Level Trade Group to study their bilateral trade and investment relationship.

3) Exchange information and initiate a dialogue on regulatory policy including Mutual Recognition Agreements (MRAs) and domestic regulations and market access issues related to services.

4) Joint Working Group on Sanitary and Phytosanitary (SPS) and Technical Barriers to Trade (TBTs).

The developments that international trade law has gained over years of coming into action are:

  • Cooperation among countries – Countries now cooperate with each other through bilateral agreements, treaties and international organisations. It encourages to take a mutual decision for the benefit of not only one country, but also of various other countries.
  • Growth in emerging markets – Developing countries like India, South America and other parts of Asia have increased their trade potential globally. With such developments, international trade holds a significant position nowadays.
  • Dynamic approach – Developments in science and information technology has upgraded the way international trades or business has been carried out over the years.
  • Liberty to transport goods and services internationally – Producers have become more efficient by competing against foreign companies. Though governments have imposed various restrictions on such cross-border movements, it is for the advantage and benefit of such companies.
  • Importing scarce resources – International trade can help a country to import any such scarce resources which are abundant in other countries.

The effectiveness with which international trade can be used as an instrument at an international level solely depends upon a country’s economic development and political scenario. It increases real incomes and consumption which eventually leads to curtail unemployment and foster economic growth.

International trade law has made a fair contribution to the south in the 19th and 20th centuries and in the 21st century it is an integral part of the globalized world and has contributed tremendously over the years, and has given its own share of prosperity.


ABOUT THE AUTHOR

07

SOMANKA GHOSH

Somanka is a fifth-year law student pursuing BA LLB in Calcutta University. She’s also pursuing a diploma course in Entrepreneurship and Business Laws. After interning in various law firms in Calcutta High Court and gaining experiences about the practicalities of legal practice, she’s now keen to test her theories. An enthusiast and diligent worker, she’s also a good researcher and writer.

International Law according to Positivists

This article has been written by Ritika Bhasin. Ritika is currently a fourth-year student in National Law University, Delhi.

The Positivist theory holds that the power to lay down the law vested only with the state or the political superior. In the absence of any political superior or sovereign above the states, it became difficult for them to accept ‘international law’ as ‘law’.[1] According to them, “international law flows from the express or the tacit consent of states”.[2]

John Austin defined law as “the command of a sovereign over his subjects which creates an obligation on their part to obey the command”.[3] Applying the command theory, he concluded that both constitutional law and international law did not constitute ‘law’ in the strict sense of the term, but were merely ‘positive morality’.[4] In the absence of sovereign coercion, the duties imposed by international law could be enforced only by moral sanctions like the fear of invoking general hostility, public opinion of other nations and societal conventions.[5]

Austin focussed on only one element of law and failed to look beyond its ‘author’ and ‘form’.[6] He excluded all other elements of law which are equally important to be included within the definition of law[7]. Law needs to be understood as a system of both rights and duties that regulates the behaviour of not just the subjects but also the one formulating them.[8] His theory on law comes out to be narrow and arbitrary as he neglected the significance of ethical sanctions (customs) in the enforcement of law.[9] In order to be effective, sanctions need to be certain and serious irrespective of whether they form part of a top-down model or not.[10]

Jeremy Bentham believed that moral sanctions might be sufficient to ensure obedience to a law, although they did not possess similar efficacy as political sanctions.[11] He recognised it as a “primitive system of law”.[12] He defined international law as the law which related to “the mutual transactions between sovereigns as such“.[13]

Like Austin, Bentham too did not look beyond the elements of ‘command’ and ‘sanctions’ in law. It was only when he moulded his command theory to suit the international conditions that he was able to see international law as more than mere morality. However, the deficiency of his theory is brought about by the fact that he perceived international law as only a collection of rules that govern states and their correspondence. He left other elements like the processes and structures for the enforcement of such rules out of the ambit of law.

H.L.A. Hart too recognised international law as “a primitive form of law”.[14] He had a much broader understanding of law, which consisted of ‘primary rules’ that impose duties and ‘secondary rules’ that allocate power.[15] According to him, international law was a union of only primary rules.[16] It lacked all the three secondary rules.[17]

There have been some major changes in the international sphere since the time Hart propounded his theory. The United Nations was established in 1945 with the objective of maintaining international peace and security[18] and sought to initiate the process of codification of international law.[19] An adjudicatory authority in the form of the International Court of Justice has been established.[20] The sources of international law have been listed under Article 38.1 of the Statute of the International Court of Justice as “treaties, international customs and general principles, giving globally accepted standards of behaviour, judicial decisions and scholarly writings[21]. This would very well constitute the rule of recognition as required by Hart. A couple of other adjudicatory bodies (tribunals) like the European Court of Justice and the European Court of Human Rights have also been established.[22] Hart’s understanding of international law in the present times might have been quite different. He might have given international law the status of law in the presence of a potential rule of recognition and rules of adjudication.

The top-down approach as adopted by the Positivists ensues to be a major hindrance in recognising international law as law. There need not necessarily be a vertical relationship between the author of rules and those governed by them. The merit of laws has to be judged in terms of their characteristics and the effect that they have on governing the behaviour of individuals in society.[23]

Another factor that prevents them from seeing international law as law is their belief that morality does not form part of law. The significance of normative values in ensuring conformity to international norms cannot be undermined.[24] They failed to see value judgments as part of law irrespective of the fact that even judges engaged in law-making while dealing with the ideological and ethical content of the disputes that they sought to resolve.[25]

Also, customs were not a source of law according to Positivists.[26] In the international sphere, customs form a major source of law. Rules and norms are an outcome of long usage and thus, states are forced to abide by them out of necessity in their own interests.[27]

Another deficiency in the Positivist theory on international law is that they consider only states as subjects of international law and not individuals. They neglected that international law also includes individual rights and obligations.[28]

There have been numerous developments after the Positivist theories on international law were advocated.[29] It is possible that Positivists would have had quite a different understanding of international law in the present day and age.

[1] John H. Crabb, ‘An Introduction to some International Law Concepts’ (1961) 37 N.D. L. Rev.

[2] P.E. Corbett, ‘The Consent of States and the Sources of the Law of Nations’ (1925) 6 Brit. Y.B. Int’l L.

[3] J Austin, The Province of Jurisprudence Determined (John Murray 1861).

[4] L. OPPENHEIM, ‘The Future Of International Law’ (1918) 6 Cal. L. Rev.

[5] Harold Hongju Koh and others, ‘Why Do Nations Obey International Law?’ (1997) 106 The Yale Law Journal.

[6] John Murray, ‘Austin on Jurisprudence’ (1861) 8 The Crayon.

[7] T. J. Lawrence, ‘The Nature of International Law’ (1895) 10 The Principles of International Law.

[8] E. C. Clark, ‘Practical Jurisprudence, A Comment On Austin’ (1883) 1 Cambridge University Press.

[9] Ibid.

[10] Ibid.

[11] Cheryl Toner, ‘Bentham’s Completion of International Law’ [1994] UCL Jurisprudence Rev.

[12] Jeremy Bentham ‘A General View Of A Complete Code Of Laws’in ‘The Works Of Jeremy Bentham’, ed. John Bowring, (1843) vol. iii, p 187

[13] Richard Ashcraft and Jeremy Bentham, ‘An Introduction to the Principles of Morals and Legislation’ (1971) 65 The American Political Science Review.

[14] H. L. A Hart, The Concept Of Law (Clarendon Press 1961).

[15] Ibid.

[16] Ibid.

[17] Emily Kadens and Ernest A. Young, ‘How Customary is Customary International Law?’ (2012) 54 Wm. & Mary L. Rev.

[18] Charter of the United Nations 1945, Chapter I, Article 1

[19]Charter of the United Nations 1945, Chapter IV, Article 13

[20] Charter of the United Nations 1945, Chapter XIV

[21]The Statue of the International Court of Justice, Article 38.1

[22] Gary Born, ‘A New Generation of International Adjudication’ (2012) 61 Duke Law Journal.

[23]Dennis Lloyd Lloyd of Hampstead, The Idea of Law (Penguin Books 1976).

[24] Supra note 5

[25] F. S. C. Northrop, ‘Contemporary Jurisprudence and International Law’ (1952) 61 The Yale Law Journal.

[26] Anthony D Amato, ‘Is International Law Really “Law”?’ [1985] Nw. U. L. Rev.

[27] W. R. Bisschop, ‘Sources of International Law’ (1940) 26 Transactions Grotius Soc’y.

[28] Mark Weston Janis, ‘Individuals as Subjects of International Law’ SSRN Electronic Journal.

[29] H. Lauterpacht, ‘Codification and Development of International Law’ (1955) 49 The American Journal of International Law.