PLANETARY PANDEMONIUM: LEGAL COMPARISONS AND CONCERNS REGARDING SPACEX'S MARS COLONIZATION CLAIMS.

• Author: Caldwell, Jacob

Table of Contents I. INTRODUCTION 47 II. BACKGROUND OF HUMAN EXPLORATION AND GOVERNING LAWS 49 A. LATIN AMERICA 49 B. ANTARCTICA 52 C. THE MOON 55 III. CURRENT LEGAL POSTURE 57 A. INTERNATIONAL INSTITUTE OF SPACE LAW 57 B. OUTER SPACE TREATY OF 1967 58 IV. LEGAL ANALYSIS: COMPARISON OF MARS EXPLORATION TO OTHER PROBES 63 V. CONCLUSION 63 I. INTRODUCTION

Imagine this: you are a conquistador, sailing across a seemingly endless ocean, in search of land rumored to bear inhuman fortune and the secrets to eternal life. As you board your ship, and the sails unfurl above, you struggle with the mortality of those you love, and even yourself, knowing that this voyage will take years. You travel thousands of miles over nothing but blue water in the hopes of discovering wonders beyond your wildest dreams. Eventually, you see the lands of America expand on the horizon before you. Your eyes behold this foreign continent, teeming with untapped mysteries. What will life on those shores look like? Will civilization exist, and how will it govern you? How will you survive?

Now picture yourself in a million wintry layers, the wind ripping into what little exposed skin might be showing. You are now in the coldest and most barren place on Earth -- Antarctica. The white expanse of its surface, never yet touched, never before seen. Your ship's icebreaker is in constant battle with the ice, and the crew stands like sentinels around it, never ceasing their attempts to keep your barquentine (1) moving closer towards the South Pole. As you and your company push through the tundra on a quest of scientific and geographic intrigue, you grapple with the worth of this apparent wasteland. What is your purpose here? What will you find in this place? For whom will you claim it?

Finally, launch yourself into the near future. Your spacesuit seems weightless as you float toward an object so massive, yet so far away that it feels as though you could touch it through the shuttle's airframe. The seven-month journey, which initially seemed like decades now, feels so short, so insignificant. (2) As the red planet--Mars--finally drifts closer, and you land and step foot onto this unsullied world, the same questions humanity has pondered for thousands of years sear across your mind like shooting stars: What is this place? To whom does it belong? What can we possibly do here?

In recent years, movies and television shows have brought the concept of space exploration and colonization to every family's living room, especially films like Interstellar or Gravity, as well as projects like "Asgardia". (3) This romanticizing of the final frontier may have contributed to humanity's blooming interest in what lies beyond this planet.

In November 2020, Elon Musk's company, SpaceX, offered consumers the chance to take part in a beta test of an internet system that proposed to give participants access to SpaceX's growing fleet of satellites for internet connectivity, called "Better Than Nothing,". (4) The beta test's contract, along with the standard clauses and terms, also contains a provision that has puzzled the space law community:

"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." (5) The boldness of this statement came as no surprise, as Musk has stated his desire to colonize Mars for years. However, legal precedent for colonization on this planet has inspired a series of treaties governing space colonization.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, otherwise known as the Outer Space Treaty of 1967, was established under the principle of allowing exploration and use of outer space to "be carried out for the benefit and in the interests of all countries and shall be the province of all mankind." (6) The provisions of the Outer Space Treaty -- outlined in Article II--provide that "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." (7) This treaty makes it impossible for a nation to claim any territory on a planet or other landmass in space under any circumstances. (8) Mars is considered, like any other space objects or celestial bodies, to be essential to exploration and discovery, and the Outer Space Treaty contemplates "co-operation among States in the exploration and use of the moon and other celestial bodies...." (9) Further, Article VI of the treaty "[s]tates 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." (10) Therefore, even though SpaceX is not a "State Part[y] to the Treaty," the United Staes will still be held responsible for any activities it conducts on Mars or other celestial bodies since SpaceX is an American "non-governmental entit[y]" incorporated in Delaware. (11) Taking Articles II and VI into consideration, SpaceX appears to be acting in direct contradiction of international law concerning the Starlink beta contract's governance clause.

This comment seeks to answer some of those ageless, yet constant questions of what--or, more importantly, who--has the right to govern eventual colonies on foreign objects in our universe. In doing so, it will attempt to answer a singular yet elusive question: is SpaceX legally allowed to claim and colonize Mars, and if so, what legal precedent allows Musk to do so?

2. BACKGROUND OF HUMAN EXPLORATION AND GOVERNING LAWS

   To analyze the laws that govern space travel and exploration, the laws of humanity's other expeditions on our planet must be examined. This foundation demonstrates the evolution of states' goals in exploration, the origin of their power to sanction exploration, and the issues that an exploratory group may face when settling a new territory. Three events in human history can be used to encapsulate our experience as colonizers and scientists over the last six centuries: the conquest of Latin America, explorations into the Antarctic, and the world's more recent lunar landings and space treaties.

   1. LATIN AMERICA

      The golden age of human exploration began in Europe in the late 14th century with exploration beyond the Mediterranean. (12) Eventually, technology and inspiration to discover other lands reached its pinnacle, and by the 15th century, world powers like Spain, Italy, and Portugal were authorizing and funding naval expeditions to the west and into the Atlantic. (13) The Castilian government of Spain agreed to fund Italian-born explorer Christopher Columbus on a trans-Atlantic voyage in 1492; (14) although the voyage was initially planned to sail west to come upon the islands of Indonesia from a new western route, Columbus landed in present-day Haiti. (15) Twenty-five years later, the Spanish would begin their conquest of Mexico. (16)

      Oversight for the expansion of the Spanish empire rested with the Crown and its subsidiary courts, otherwise known as chancillerias and audiencias. (17) These courts would advise the Crown on the terms that guided expeditions, known as entradas (18) . The courts within the empire acted in an advisory capacity, but the Royal Council had significant power in that it was the highest judicial court of appeal in Castilian Spain at the time. (19) The Catholic Monarchs relied upon this Royal Council heavily. (20) Between these courts and the Crown itself, all sovereign power to authorize explorations sat with the monarchs and their advisory courts.

      Petitions for expeditions were brought to the Crown and the courts by adelantados--"men of substance" who petitioned the Crown for an expeditionary leadership position. (21) These men usually invested heavily in equipment for the expedition and contracted ships for exploration since coastal probes were the main form of exploration during that time. (22) After hearing the adelantados' proposition and approving it, the monarchs would grant immense power to the leader of the expedition and dictate the region the expedition would conquer and what rewards would be divvied out amongst the crew if the expedition was a success. (23) The Crown always reserved the quinto, or one-fifth, of the proceeds of the expedition, and usually, the adelantado who led the expedition ruled the newly-claimed territory in the name of Spain. (24) Therefore, it seems that The Crown's main purpose in approving and sponsoring expeditions was for monetary and geographical profit, expanding both the royal fund and the empire at the same time.

      Notably, the Catholic Church also played a secondary role in the authorization of expeditions as a means for the conversion of non-Christians. After a period of papal and royal frailty before the Catholic Monarchs, the King, and Queen were given the power of patronage, which allowed them to have complete authority over the majority of ecclesiastical decisions. (25) Because of this, there seems to have existed a level of Crown influence in the Church's decision-making of the period, meaning that any motives of the Church itself often lay in shadow behind the influence of the Crown. However, the Church's goal of evangelization provided ample justification for the Crown to authorize the conquest of foreign lands. (26) Pope Alexander VI's Inter caetera of 1493 divided land rights of the New World between Spain and Portugal on the proviso that the two states spread the teachings of Catholicism to the indigenous peoples of the Americas. (27)

      The Treaty of Tordesillas...