SpaceX Mars city: Legal experts respond to 'gibberish' free planet claim

SpaceX wants Starlink customers to recognize Mars as a "free planet," but some legal experts aren't convinced, to say the least.

The space-faring firm has grand ambitions to send the first humans to Mars by the mid-2020s, culminating in a city on the planet by 2050.

That city, according to CEO Elon Musk, should be self-sufficient and not depend on Earth for supplies. And the planet itself? It seems it should be free of all Earthly laws and powers, too.

In an unexpected move, customers who signed up to beta test Starlink, SpaceX's under-development satellite internet service, found themselves having to agree that Mars is a "free planet." In section nine of the nascent service's terms and conditions, the America-based company states that any disputes regarding services provided around the Earth or Moon will follow the law as set out in California.

For Mars however, the story is a bit different:

"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."

Long-term Musk watchers are familiar with how his project allude to one another, or come laden with tongue-in-cheek references to pop culture and sci-fi jokes. Users signing up to the beta Starlink service can rest assured that, legally, the conditions also appear to be more of a joke than anything else.

"It made me laugh," Bleddyn Bowen, a lecturer in international relations and expert on space policy at the University of Leicester, tells Inverse. "The language in that clause violates the 1967 Outer Space Treaty, and especially Articles VI and VIII."

The 1967 Outer Space Treaty is an international treaty that counts 110 states as parties, including the United States, China, Russia, and every member of the European Space Agency.

Article VI states all parties "shall bear international responsibility for national activities in outer space [...] whether such activities are carried on by governmental agencies or by non-governmental entities." Article VIII states all parties "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."

In other words, your country is responsible for what you send into space — and your country retains jurisdiction over the stuff that goes into space.

"I have no idea what they might mean by 'free planet' or 'self-governing principles' — from the standpoint of international law, that's just gibberish," David Koplow, a professor at Georgetown University Law Center, tells Inverse.

Koplow also pointed to Article II of the treaty, which establishes that countries are not allowed to assert sovereignty over celestial bodies, and Article III, which confirms that international law applies in outer space. It's unlikely that Starlink's terms of service could trump these commitments, particularly as Article VI says the country sending anything to space would be held responsible as on Earth.

"Anybody can declare anything they want," Koplow says. "The question is whether other people will respect that declaration or ignore it."

Regardless of what SpaceX declares, the company is expected to follow the laws of the state it's incorporated in, plus relevant federal and international laws. Bowen explains that the United States can withdraw licenses and enforce its laws, and neither the U.S. government nor others "will not take kindly to blatant violation of the Outer Space Treaty."

Ram Jakhu, associate professor at McGill University and a researcher on international space law, tells Inverse that the concept behind seasteading — an old practice of establishing settlements located at sea outside the bounds of governmental control — would also not apply to space, as the laws are quite different today.

"Today’s legal situation is significantly dissimilar from that of the time of the British East India Company of 1600," Jakhu says.

But that doesn't mean SpaceX won't try do it anyway. Musk said in a March 2018 interview he believes Mars would operate on a direct democracy system where everyone votes directly on each issue — a necessity with such a small population living close together. This would function instead of the representative democracy that emerged in the early United States, where people lived so far apart it made sense to send representatives to a hub.

That could mean SpaceX trying to make its city independent of Earth governance. In an interview with Law360 last month, SpaceX general counsel David Anderman revealed that he is working on a constitution for Mars.

He thinks "SpaceX will move to impose our own legal regime":

"I'm actually working on a constitution for Mars. No country can claim sovereignty over heavenly bodies. At the same time, the U.S. government has clarified that commercial space is real. I don't think it's crystal clear."

The company could find itself on a collision course with international law, Frans von der Dunk, a space law expert at Nebraska College of Law, told Business Insider following the Law360 interview. It could mean pressing for a change to Article II and requesting international recognition of the new state, changes that von der Dunk "can't completely exclude."

But where the United States has a much-revered declaration of independence, it doesn't seem likely the Starlink terms of service will spark the needed changes any time soon.

"The language on self-government is extremely politically naïve, too," Bowen says. "Perhaps deliberately so for marketing purposes. Though, as far as marketing strategies go, saying you’re breaking international law on the peaceful and shared uses of outer space is a bold strategy."