The battle for Mars: How Elon Musk, Blue Origin, and the US could set up the first extraterrestrial government

The moment when the first human sets foot on Mars is becoming ever-closer. The 140 million mile distance between Earth and the Red Planet is set to be breached within the next two decades, Nasa predicts.

Just recently, the space agency announced its plans for its Artemis moon missions – aiming to take place in 2024 – which could establish a lunar base on the Moon as a stepping-stone before the first planetary spacewalk.

For some, however, simply taking the first step on an alien planet is not looking far enough into the future. Once a community is set up on Mars, discussions will need to be had about exactly how it is governed and functions. Elon Musk, CEO of SpaceX, is one of those people planning for such a future, and seems to already be setting the groundwork in the terms of service of the company’s current products.

In the user agreement for the company’s satellite internet service Starlink, one particular paragraph stands out:

“For services provided on Mars, or in transit to Mars via Starship or other colonisation spacecraft, the parties recognise Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities,” the governing law section states.

“Accordingly, disputes will be settled through self-governing principles, established in good faith, at the time of Martian settlement.”

SpaceX did not respond to multiple attempts for more information from The Independent, but experts suggest that the addition of this segment could actually have two purposes: the first is that it is a joke; the second is that it is laying groundwork for a Mars constitution – based on how permissive the existing legislation for space exploration actually is.

The section Musk has added is “a bit of tongue in cheek with his contracts… referring to this Martian constitution he’s going to be drafting,” according to Randy Segal, of the law firm Hogan Lovells. “He’s trying to include in his commercial terms… how you’re going to comply with applicable law."

The applicable law here are the 2020 Artemis accords and the 1957 Outer Space Treaty (by which signatories of the Artemis Accords say they will abide). Amongst that legislation includes the line: “Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” As a result, these treaties stop space exploration becoming a “land grab”, as Segal describes it.

However, the regulations are, in general, “motherhood and apple pie” Segal says – an American phrase to mean something that no reasonable person could disagree with, such as the provisions of transparency, interoperability, and emergency assistance with regards to space exploration.

“The whole of space law contemplates that those of us on this planet share the rights and responsibility to make space something we can all share together,” Segal says.

“Generally, if a clause is unlawful you would read the rest of the contract to be enforceable and standing alone. He has added a section relating to Mars services (which is not being provided today, so has no effect),” but in five or 10 years “he can revise his contract.

“I don’t know that a provision like this other than being humorous and anecdotally noteworthy is something that does anything to the rest of the contract at all. He could be trying to lay some groundwork for offering up an independent constitution... just like he did for electric cars and reusable launch vehicles. Does it have any precedent or enforceability? The answer I’d say is clearly no; but if you say something enough, people might come around.”

While Musk’s contracts might not be legally potent (or“gibberish”, as one professor deemed them), they are likely to start a conversation about how legislators should go about planning for a Mars constitution. This is something that SpaceX’s General council, David Anderman, is seemingly already looking into.

"Our goal is to be able to send 1,000 starships with 100 people in them every two years," Anderman said, according to Business Insider.

"We'll start with 100, then a couple hundred, then 100,000, then a million until we have a truly sustainable colony. It will happen in my lifetime. Faster than you think."

He also said he expected SpaceX to “impose our own legal regime,” but that it would be “interesting to see how it plays out with terrestrial governments exerting control." Anderman did not respond to multiple requests for comment from The Independent before publication.

While colonisation may be the way that SpaceX and other companies think about extraterrestrial exploration, legally Musk has more of a chance of creating a community rather than a colony, as he would still be under the governance of the US.

“A community is a group of persons with common interests and characteristics. Colony is a legal term applied to territory subject to the sovereignty and jurisdiction of the colonising State,” Professor Sa'id Mosteshar, Director of London Institute of Space Policy and Law, told The Independent.

Musk’s intentions for Martian development are, however, far more ambitious than Nasa’s. The space agency plans land the first woman on the moon by 2024, and have a manned mission to Mars by 2033. 

Musk, however, has said that he plans to send the first SpaceX craft to Mars by 2022, with humans following within the next four to six years, with astronauts living “in glass domes at first [before Mars is] terraformed to support life, like Earth”. However, as the billionaire is infamous for missing his own predictions. 

Life in glass domes at first. Eventually, terraformed to support life, like Earth.

— Elon Musk (@elonmusk) November 18, 2020

Currently, should SpaceX or Musk create a community on Mars, his activity would be subject to the governance of the United States. However, it could be that in the future, legislators see the need for a constitution that governs the entirety of Mars, rather than having laws split into geographical jurisdictions as they do now.

Exactly how that would play out remains to be seen.  In 2016, Musk said his intentions for a Martian government would be a direct democracy, where people vote on the issues themselves rather than through politicians under representative democracies as we do now.

"So it would be people voting directly on issues. And I think that's probably better, because the potential for corruption is substantially diminished in a direct versus a representative democracy.

"I think I would recommend some adjustment for the inertia of laws would be wise. It should probably be easier to remove a law than create one," Musk also said. "I think that's probably good, because laws have infinite life unless they're taken away."

The benefits and pitfalls of such a system, much like many governmental systems on Earth, are numerous, and experts suggest that it’s more likely that the most beneficial Martian government will be one that is eventually decided on Mars itself.

As well as SpaceX, other spacefaring competitors, such as Jeff Bezos’ Blue Origin, are also likely to be exploring similar proposals – albeit in a “somewhat more coherent and logical job than SpaceX,” Professor Von der Dunk, a space law expert at Nebraska College of Law, told The Independent.

“It is very appropriate to think about how the certainty that conflicts will arise requiring a legal solution should be addressed. In the end, of course, both SpaceX and all the other companies can only go so far,” he said, adding that while companies may set the agenda it will ultimately be up to governments to decide whether to adopt it.

Blue Origin’s intentions for Martian governance remain an unknown. Its founder, Amazon’s Jeff Bezos, has made a few allusions to his idea of extraplanetary life, predicting an “incredible civilisation” where a trillion people live in bucolic colonies similar to those hypothsised by physicist Gerard O’Neill.

“They’re not what you imagine. I mean, they’ll have farms and rivers and universities; they could have a million people in them. They’re cities. But I’d want to be able to come back and forth to Earth too," Bezos has said, but is taking a purposefully slower approach to space than Musk. With regards to legislation, Blue Origin told The Independent that it was not a topic it had spoken about.

As for what the future of those laws may be, the strange legal cases of the past can provide some guidance. It has already been suggested that a murder in the Arctic, where a lack of legal jurisdiction meant that the murderer was acquitted of all charges, could provide the basis of extraplanetary laws where Earthbound jurisdiction cannot reach.

Another example, says space lawyer Scot Anderson, also of Hogan Lovells, could come from the mining communities – where Congress were happy to sanction local mining laws as long as they did not conflict with those of the United States.  

There is a human impulse to create stability through the law, Anderson told The Independent, and as such would result in a push for a framework that could be applied to the entire planet in a way that could not be done on Earth due to geological and cultural borders.  

Should Musk – or any other spacefaring pioneer – seek favourable arrangements to ensure the legislation they want is what is implemented, there are a number of routes available.

Counties like Luxembourg are already setting their sights on the privatisation of space, while others like New Zealand and the UAE are both attractive to potential space launches due to their geographical positions and tax benefits, respectively. Although neither seems particularly likely as the home of the next SpaceX or Blue Origin launch site – as both companies are deeply sunk in the industrial ecosystem of the US for manufacturing spacecraft – they do present the opportunity for a distinctly un-American hegemony outside of our planet, Anderson hypothesises.

As for when the final, and arguably most important, question of when Mars might become self-sustaining with its own legal system, lawyers are unsure – but it is likely that once the first community was established that it would seek to self-regulate fairly quickly due to the difficulties of interplanetary communication.

“I have to defer to the true scientists here, some of which might claim 10 years, others more like a century or more,” Professor von der Dunk says. “I would probably position myself somewhere safely in the middle.”