Mars, grubby hands, and international law

The relentless heat of the sun waned quickly as it slipped below the horizon. All around, ochre, crimson and scarlet rock glowed, the brief burning embers of a dying day. Clouds of red dust rose from the unseen depths of the dry canyon — Mars? I wish! We were hiking in the Grand Canyon, on vacation in that part of our world so like its red sister. It was 5 August 2012. And what was a space lawyer to do while on vacation in the Grand Canyon that day? Why, attend the Grand Canyon NASA Curiosity event, of course!

Wait, what? Space lawyers? Have they got their grubby hands on Mars now?

Well, quite the contrary, and in a manner of speaking, space law has been working to keep any grubby hands off Mars. In the heady aftermath of the Soviet launch of Sputnik-1 in 1957, nations flocked to the United Nations to discuss — and rapidly agree upon — the basic principles relating to outer space. Just a decade later, the 1967 Outer Space Treaty was concluded, declaring outer space a global commons, and establishing that the “exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind”. Today, more than half of the world’s nations are Parties to the Outer Space Treaty, and its principles have achieved that hallowed status of international law — custom — meaning that they are binding on all States, Party or not.

More specifically, the 1967 Outer Space Treaty affirmed that outer space, including the Moon, planets, and other natural objects in outer space (such as Mars!), were not subject to appropriation, forbidding States from claiming any property rights over them. Enterprising companies and individuals have sought to exploit what they saw as a loophole in the Treaty, laying claim to extraterrestrial land on the Moon, Mars and beyond, and selling acres of this extraterrestrial property for a pretty penny.

One company claims to have sold over 300 million acres of the Moon to more than 5 million people in 176 countries since 1980. The price of one Moon acre from this company starts at USD$29.99 (not including a deep 10% discount for the holiday season) — potentially making the owner of said company a very rich man. Other companies have also started a differentiated pricing model: “The Moon on a Budget” – only USD$18.95 per acre if you wouldn’t mind a view of the Sea of Vapours — vs. the “premiere lunar location” of the Sea of Tranquillity for USD$37.50 per acre. The package includes a “beautifully engraved parchment deed, a satellite photograph of the property and an information sheet detailing the geography of your region of the moon.” Land on Mars comes at a premium: starting at USD$26.97 per acre, or a “VIP” deal of USD$151.38 for 10 Mars acres.

Indeed, the USD$18.95 may be a good price for the paper that the “beautifully engraved parchment deed” is printed on. And that is likely all you will get for your money. Although the Treaty does not also explicitly forbid individuals or corporate entities from laying claim to extraterrestrial property, it does make States internationally responsible for space activities carried out by their nationals. Despite these companies’ belief that the Treaty only prohibits States from appropriating extraterrestrial property, it is disingenuous to say that on Mars and any other natural object in outer space, “apart from the laws of the HEAD CHEESE, currently no law exists.”

International law does apply to the use and exploration of outer space and natural extraterrestrial bodies, including Mars. And that international law, including the prohibition on the appropriation of extraterrestrial property, applies equally to individuals and corporate entities through the vehicle of State responsibility in international law, and through domestic enforcement procedures.

Now, that’s not to say that the principle of non-appropriation is popular. It has been questioned by a caucus of concerned publicists, worried that it would stifle commercial interest in the exploration of Mars. Some other publicists — myself included — have come up with proposals for “fair trade/eco”-type uses of outer space that they contend should be an exception to the blanket ban. But the law at the moment stands as it is — Mars cannot be owned. Or bought. Or sold. For many private ventures into outer space, that is a “big legal buzzkill.” These days, it seems, NASA may even land a spacecraft on the asteroid you purport to own and refuse to pay parking charges — and the US federal court will actually dismiss your case as without legal merit. What is the world coming to?

On the bright side, international space law has meant that there has been a lot of international cooperation in outer space. This has mostly kept the peace in outer space (no Star Wars!) and has ensured the freedom of the exploration and use of outer space for the benefit of humanity. International space law has also contributed towards keeping the Martian (and outer space) environment pristine. And in a world where we worry about the future of our own blue planet, maybe having international law keep our grubby hands of her sister Red Planet isn’t such a bad idea after all.

Featured Image Credit: “Mars” created by Moyan Brenn, CC BY 2.0, via flickr.