13 minutes read, Mars photo from ESA
Is Mars better off as an independent colony from the first human settlement there? Or is it better to wait until millions are there?
Is it just a cosmetic choice, with tech challenges being the biggest issue? Or a make or break choice with impact on all of future human space endeavours?
You're about to find out.
That pro-dependence view figures in Antonino Salmeri’s op-ed on spacenews.com, in response to the documents of Starlink.
Starlink ToS = the crux of the issue
Starlink , Elon Musk’s ambition to be a global ISP via satellites, has in its ToS, section Governing Law (bold font by me):
“For Services provided to, on, or in orbit around the planet Earth or the Moon, these Terms and any disputes between us arising out of or related to these Terms, including disputes regarding arbitrability (“Disputes”) will be governed by and construed in accordance with the laws of the State of California in the United States. 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.”
This makes all the users of industry transforming service obliged to support Mars sovereignty. Salmari takes this as a point of entry, and after comparing with the current space law, he states:
“Accordingly, Mars cannot be considered a “free planet” left to “self-governing principles” of dubious nature and origin, because it is rather fully subjected to the rule of law.”
Yet later Salmeri admits that the community should at some point be independent:
“If and when SpaceX’s vision of a million people living on Mars becomes a reality, there is no doubt that this community would be entitled to political independence and self-regulation.”
So the debate is not ‘if’, but ‘when’ Mars should be independent. Let's backtrack from the city of million, and at which point it should be legally independent.
Current space law
Regulations
Let’s check out the Articles of the Outer Space Treaty (mentioned as OST later) that Salimeri mentions. (Bold font, as well as new lines, added by me).
Article VI
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
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.
When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.Article VIII
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.
Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.
Mars landing spacecraft and colonies will most likely launch on USG registry (Article 8). They will be under state juristdiction as ‘national’. They won't be responsible for their activities to the international legal proceedings, USG will be.
Salmeri sees the extraterrestrial jurisdiction of Terran states, as “to prevent the rule of the strongest”. That is a pointer to some good beyond what is legal, remember that for later.
Now let’s see some more:
Article II
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.
Note that the Article II does not preclude an occurence of non-national appropriation of a celestial body.
Unilateral declaration of independence
SpaceX could launch a Mars colony ship under USG ‘jurisdiction and control’, only to appropriate a given region of the Red Planet as a business / colony. Then just a unilateral declaration of independence and statehood is achieved.
Contemporary countries which shook off the imperialist yoke at some point in the past via this route include:
United States of America
Greece
Irish Republic
Croatia
Slovenia
Kosovo
Yes, these cases can be controversial, yet they matter. The Montevideo Convention, the most prominent document on the topic of statehood in the Americas, states as requirements:
a defined territory
a permanent population
a government
a capacity to enter into relations with other states.
And that statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force.
How does a Martian, even a small colony fare in these circumstances?
territory - it has plenty, no problem with defining
permanent population - seems the hardest, but doable
a government - also viable
4th point - it already has representatives on Earth!
You must admit it looks quite promising.
Why is OST the way it is?
Laws are not in a vacuum. They express some needs of the whole body political, be it the governors or the more organic laws, bottom up and traditional. They stem from both pragmatic and philosophical considerations of the decision makers and the people.
What are the reasons for the OST articles in question:?
pragmatic - conditions have changed considerably
philosophical considerations - values
OST is be motivated by the ‘common heritage of mankind’ concept, which is not without opponents.
Kemal Başlar (1997). in his “1997 The Concept of the Common Heritage of Mankind in International Law. Developments in International Law. “ states that Common Heritage of Mankind principle:
"is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. In other words, the application and enforcement of the common heritage of mankind require a critical reexamination of many well-established principles and doctrines of classical international law, such as acquisition of territory, consent-based sources of international law, sovereignty, equality, resource allocation and international personality."
More on that later.
What should be?
There’s a certain law which seeks to protect some values.
That law was made with technology and values different from ours.
So it does not follow that the best optimization for these values will be the status quo laws.
(We could say that that law was too much focused on private interests, etc, but then you’d need to argue that now the conditions miraculously changed in the way that same laws better fit these values - an improbable scenario.)
But even though the current legal configuration might not be optimal, it’s all about opportunity cost.
It’s measured against our ability to make efficient new laws de novo.
That is the lost / endangered status of the value that we put it into if we are not switching to some other law set. Under the condition, of course that that better set of laws exists.
We now have in view another value in respect to the regulated field, space entrepreneurship. It is thrown under the bus under the current regulations.
It seems clear from Salmari’s text what are the values that he wants to protect.
“The future of space as a peaceful, fair and inclusive domain[...]”
social order in the colonies
fundamental rights of the travellers
Values
The next post is an inquiry into how to optimize for these values in the current world.
It seems clear from Salmeri’s text what are the values that he wants to protect.
“The future of space as a peaceful, fair and inclusive domain[...]”
social order in the colonies
fundamental rights of the travellers
I argue that independence of Mars is not a free variable, that actually its independence is better for:
SpaceX and any other companies which do such endeavours
USG and other bodies
human on Earth
travellers to Mars
future generations of Martians
Disclaimer: the following text is not linear or tree like, much more rhizomatic.
Changing laws
The question is:
Are the current space laws workable for the next 100 years?
If at some point they need to be changed. What would be the trigger event? And why not now?
You need to answer that question. Because Terran law mutates and updates, including international law.
Law is for humans, not humans for the law - idea of Hugo Grotius and Jesus (Mark 2:23-28).
Salmeri accuses SpaceX of subversion of the status quo:
Nevertheless, under international space law there are no grounds to distinguish between the moon and Mars; the same rules apply to “the Moon and other celestial bodies.” Assuming SpaceX knows this, it appears that the company is sending a political message to subvert the status quo and establish a separate regime for Mars.
Yes. That is probably the intention. The Terra - Luna system might require a different setup as it’s a closely tied system. And as shown later, it does not mean that SpaceX itself would govern Mars.
UN Charter
The Article I (2) says:
“To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;”
In this passage the case for independence of a people isn't built on their prior independence de facto. It is based on presence of political will. That is the declarative model of statehood, described in the beforementioned Montevideo Convention.
Governance and skin in the game
Salmeri writes:
“These early passengers would fully depend on SpaceX for their survival en route to Mars and while on the surface, not to mention their prospects for returning to Earth. One the one hand, you have a company that controls the means to survival; on the other hand, you have a group of fragile individuals potentially stranded in an incredibly hostile environment a long, long way from home.
How could SpaceX seriously refer to principles established in “good faith” given such a massive imbalance of power? Politically speaking, declaring Mars a “free planet” would condemn its first inhabitants to the indisputable will of a private corporation — a dangerous situation threatening the fundamental rights of any human traveling with SpaceX.“
But what is the alternative? Direct government intervention.
SpaceX would serve as a de facto government for these people during transit.
Yes, there would be an imbalance of power, but SpaceX controllers on Earth have a lot of skin in the game in the wellbeing of these people.
Tesla sales on Earth which would crumble if a gross abuse of power happened. Elon Musk puts the fate of Earth assets in the hands of the people executing the Mars program. That’s the opposite of diversification. That’s putting all the eggs in one basket. That is courage.
That might be the most Neo-Reactionary social attempt to date. Imagine if your local politician’s salary depended on median income in their jurisdiction. In that way they have more ‘skin in the game’.
Social order question
Salmeri also says:
“Conversely, this dependence will also imply the legitimate exercise of Earth-based authority in order to protect the settlement from degenerating into violence and Wild West types of behaviors.”
Isn’t SpaceX board of directors an Earth-based authority? And how would the government protect the people better there? SpaceX would nevertheless be the go-to contact for the people there on most issues.
At first against corporate authority, now scaring us with Bioshock style anarchy. That’s two opposite dangers, centralization and decentralization of power.
Salmeri expects not to arise any Martian native laws, be it made by the company or the Colony itself:
Space activities, no matter where in the solar system, shall always be conducted under the safeguards of the rule of law. No company should be allowed to question this essential principle in the attempt to turn outer space into a modern Wild West.
The Colony will copy and tweak existing legal systems to Martian conditions. No one will reinvent the wheel. In fact it might be among the places safest from anarcho-tyranny. Minor things (like marjihuana) will be more independent, and the atrocity - prevention part would be tied to its de facto dependence on Earth.
Peace question
From the article again:
“SpaceX’s defiance of international law should be taken very seriously and stopped now, before the company is able to push it to the point of establishing its private domain on Mars. The future of space as a peaceful, fair and inclusive domain may very well depend on this.”
So far the space is most lethal there, not other humans. A shift happened to humans somewhen the tribal warfare and homicide took over animal attacks as leading causes of death. The lethal in space is space, so far. For the nearest future Earth proximity is full of energy and space, plentiful of resources. So the competition would be to extract and process the most, not compete over specific asteroid. It’s a blue ocean.
These favourable, peaceful conditions will last much longer than it will take for a million humans to live on Mars.
Reminder that international law is BS
4th generation warfare has fuzzy non state agents, IL is inadequate to deal with that
Superpowers step over it whenever they feel like it. In vast majority of cases without repercussions
China is on the UN Human Rights council, duh.
OST as a relic
OST is a relic from the ‘land is full’ era in human history. No more free area to claim. Now new lands open before us. The popular in Age of Exploration Terra nullius will make a comeback. Now there’s no natives there, so why not return to tradition?
Any social organization arising in space will have a foundational debt to the entity creating it. Taxes, even contracts similar to indentured servitude could be a form of settling it. Some tax might even exist in perpetuity. Also from Catholic perspective, direct local governance by the company representatives or a confederation of colonists confirms to the rule of subsidiarity.
Economical argument
We can see Musk’s space exploration efforts as the birth of a new industry. What do we do with emerging industries? We protect them, make their life easier!
Monopoly rights incentivize exploration and upscaling of new industrial niches - that's what the patent system is for.
Overregulation in first steps can slow down emerging industries, or even halt them.
The creative flows of capitalism must be admitted free into the outerspace.
It’s about providing a blue ocean for SpaceX to swim in among the stars.
ToS as a discursive move
We might see the ToS of Starlink not as a final word by the companies, just testing the waters.
Salmeri states:
“If a government had to choose between an expensive service from a company pledging allegiance to the rule of law and a cheap one from an enterprise trying to impose “self-governing principles established in good faith,” there is little doubt which one will be awarded a contract. Actually, with such terms of service, SpaceX would not even be authorized to launch its Starships toward Mars in the first place.“
They’re not launching anything yet, so that’s just a warning for the USG to get accustomed to the idea and adapt the law to the economic necessities.
Would lying be better? Because there is certainly a better incentive for the companies to hold monopoly long term. It would be better if it’s told plainly straightaway.
How to practically approach the law?
Hard to find a political solution right now
The OST was made by the US, UK, the Soviet Union in 1967.
Now the space race also features China and India as contenders. More parties, with different economic models, it would be harder to come to an agreement on changes to the document.
The Outer Space Treaty was designed in a different era. Back then space wasn’t imagined as a commercial outlet, place to make profit, but to spend taxpayer money on prestige projects. It was modern palace economy.
Cincinnatus-ish path
Cincinnatus was a Roman dictator with absolute power to repel foreign invasion. And after threat was gone, he returned to his private affairs. The Roman Republic continued. After the first wave of settlers, nothing prevents the colonists to declare independence from SpaceX as well!
That is what Starlink ToS says:
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.”
Self governanceimplies self-organization as a community, not as an arm of the Terran company.
Diversification is something risky for companies. Colonists governing themselves allows SpaceX to focus on the transport contracts - what they're best at.
If that happened on its own?
Let’s say the company establishes a USG dependent colony, then suddenly a coup happens and an independent state is established.
Then we judge it to be a state based on de facto having power monopoly over the area, in the Weberian / Nozickian framework.
What can anyone do? Turning hostile does not seem an option, on the face of it, it's too valuable.
There is a couple of options
isolation of the colony and its slow decline, new settlements being made with much more governmental control
seizure of SpaceX assets and cessation of supply missions - bad PR to be honest for USG
living with the new status quo with the Colony as an independent agent
Space Force sent to deal with the insurreciton
The ethics of governance 101 = law does not say what is moral. The colonists might choose to choose their own destiny and step over the law.
Recap
Protected values
“The future of space as a peaceful, fair and inclusive domain[...]”
social order in the colonies
fundamental rights of the travellers
To be fair, it’s 5 of them
Peace = addressed in its section
Fairness = cannot be guaranteed by the nature of capitalism, yet you need innovative power and profit motive to start. Think about reditribution of space spoils once you get them.
Inclusivity = The mission will replicate existing societal conditions. Possibly even exacerbate them, with the colonists being the top Homo Sapiens speciments, leading to high IQ founder effect.
social order & fundamental rights = SpaceX has an incentive to optimize for that because of their skin in the game - assets on Earth.
Summary
Legal conditions are different from physical limitations. The latter are non-negotiable. To push for legal change we need more social and philosophical vision and voices for the space industry. To hopefully avoid some Terran mistakes…
Share on Twitter with hashtag #FreeMars
Mars cover photo from ESA.