A New Home in Space?: The Legal Difficulties of Colonies on the Red Planet
I. Introduction
You step outside your home. But wait, there’s no lawn here – no city streets, no flashing lights, not even any neighbors on their patios in rocking chairs. It’s just red dirt for miles and miles on end. Welcome to Mars.
But how feasible is this shocking reality? More than just in terms of technology, colonizing Mars requires vast efforts and improvements in the political, climatological, biological, and financial realms. But there is one arena among those innumerable affected ones often not discussed: the legal domain. After all, colonizing Mars does not just involve physically getting there; it means creating a viable society that can live there indefinitely – or at least until more planets and other celestial entities can be colonized. With that goal comes all the problems of managing society on Earth, but without a legal basis, none of these issues can be tackled.
After all, if a society on Earth had no laws, it would not be able to function for an extended period of time, so how could a colony of humans (picked from some sample on Earth) in space, a much less forgiving environment, survive? One often-proposed solution is to just institute the “laws from Earth” in a human colony on Mars. But this overgeneralized theory ignores important subtleties that make such a simplified solution impossible, such as whose laws would be implemented, how private companies would engage with legislation, and how Earthly and Martian geopolitical matters would be handled. Another idea is to take the precedent from current space law, which is, at its core, composed of five separate international treaties. However, none of these documents stipulate rules for colonization, as they were not written when such a possibility was even remotely possible, meaning that there is no legal precedent [1]. This instance mimics the overall pattern of technological policy not keeping up with innovation and also demonstrates that there is no “default” version of space law to fall back on. As such, the Mars colonization effort truly requires a novel and functional international law system that would hold both private and governmental entities accountable while ensuring colonization success. The future of the endeavor, therefore, hinges upon the effectiveness of its legal basis, though whether lawmakers can come together to create this foundation is another question altogether (and one that will be explored in the following sections). Overall, the success of Mars colonization is highly dependent on the soundness of its laws. However, barring the technological and monetary considerations of such a vast undertaking, I predict that, based on the ineffectiveness of the current international law scheme, the lack of a legal framework from which to build upon, and the accompanying political and ethical challenges, forming a colony on Mars will not be possible unless severe climate change or another mass impetus spurs action to move toward space as a home for humanity.
II. The International Law System
For international laws to work in space, they must work on Earth, for at least on this planet we have the luxuries of trial-and-error and relatively more forgiving consequences. However, such rules, often administered or created through organizations such as the United Nations (UN) or International Court for Justice, are guidelines more than laws, offering little in the way of holding culprits accountable for unlawful actions. As such, the future is bleak for a law framework on Mars because the system on Earth, presumably the groundwork for international law on Mars, is weak in three main aspects: enforcement, scope, and accountability. In the following paragraphs, I will take three examples and demonstrate their inefficacy to emphasize that dysfunctional international laws on Earth do not provide a sound legal basis for Martian law nor indicate that an extension of them can govern a colony in space.
From an administrative point of view, international waters provide the perfect example of international law’s inability to enforce. Much of modern maritime legislation comes from the 1982 U.N. Convention on the Law of the Sea and is carried out through the International Maritime Organization (IMO) in partnership with national coast guard agencies [2]. This ruling method is broken, with the threat of naval warfare ever-present near areas such as Yemen and the South China Sea and breaches largely unpunished. For instance, in Russia’s invasion of Ukraine, itself proof of how trivial international law is, Russia immediately annexed Ukraine’s river and seaports outright, and still nothing other than mere sanctions has been imposed on the invaders [3]. From small crimes such as weapon or drug exchange to full-scale war, maritime law offers almost no solution to enforcing rules over a vast landscape, especially when considering that national coast guard agencies do not even have any true obligation to work with the IMO. Hence, expecting enforcement of law on Mars, a bleaker, more expansive, and harder-to-monitor domain than the sea, is likely more a dream than a reality.
The topic of human rights is also a wide-sweeping issue supposedly “governed” handily by current international organizations that is codified in almost every anti-war agreement or ceasefire in the modern era. Yet human rights violations, from modern-day slavery to breaches of international humanitarian law (rules of war), are broken everyday with little to no consequence. One cause for this failure is the complicated, vast scope, meaning maintaining human rights on another planet would be even more difficult. One only need look at modern-day conflicts such as the Israel-Palestine war or the Azerbaijani offensive in the Nagorno-Karabakh region for clear examples of this deficiency in international law to protect universal human rights [4]. But, to use less controversial instances, take for example the failure of the Kellogg-Briand Pact, which declared war illegal in the aftermath of World War I [5]. Unfortunately, the fact that we even have a numbering system for world wars points to the failure of the Pact, as militarism in the decade after World War I was not effectively stopped, resulting in World War II. As an acknowledgement, similar pieces of international legislation following World War I did indeed force the perpetrators to pay reparations, presumably demonstrating their effectiveness and potential to evoke real consequences, but one must point out that it is their execution in that exact task that contributed to German/Weimar discontent, an often-cited precursor to Hitler’s rise [6]. Therefore, the counter-argument that international law has forced culprits to face consequences fails when analyzing its execution; in reality, violators of human rights are often hit with no more than a slap on the wrist, as demonstrated by Russia after invading Ukraine [7]. One must wonder, then, if an international law system that has historically failed to stop human rights violations and fairly punish violators can truly hold society together in a far-away environment such as Mars.
The field of climate change is one other great instance of international law not being enough in terms of accountability because, despite climate change’s destructive consequences, international law is unable to bring together countries to meaningfully disrupt its progress. In fact, the most sweeping international agreement on climate change, the Paris Climate Accords, is essentially a collection of non-binding suggestions to reduce carbon output (that most advanced nations do not follow) [8]! For example, in the introduction to the document, signers must just dictate that they merely “[recognize] the importance of conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases [9].” Recognition of the problem, though, is a task with no tangible outcome that results in no action, as a suggestion to recognize the problem is very different from a mandate to solve it. Even more egregious, though the Paris Climate Accords stipulate that countries must collect and submit data on carbon emissions and other climate-related statistics, countries serially underreport their greenhouse gas production with no consequence, indicating that the international law system has no way to validly monitor nor punish [10]. If countries cannot even work together to prevent humanity’s climate-induced doom through international law, is there really any hope for a novel application of it (space law) to hold entities accountable for violation of treaties on a far-away Mars colony?
Therefore, even with potential for easier enforcement and adjustment on Earth, international law still functions merely as loose expectation instead of strictly followed regulation, a perception that undermines its efficacy in space, a domain inherently difficult to monitor, and that generally weakens the prospect of a Mars colony being able to thrive.
III. Space Treaties and Their Applicability
Space exploration has been a much-debated topic since the age of Laika and Neil Armstrong, but while space technology has moved forward into modern times, space policy has unfortunately remained in the Cold War era. Five United Nations treaties agreed upon between 1967 and 1979 govern the fundamentals of space law: the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement [11]. Since then, related space law agreements and discussions have been agreed upon, such as the accord to not test nuclear weapons in the atmosphere or to reduce the possibility of military conflict in space (the McGill Manual), but none have truly added onto these fundamentals meaningfully [12]. In a way, this fact inspires hope, as it signals that, despite our ability to advance into space for military or territorial advantages, we have not done so. However, a notable consequence of such inaction in adding to space laws is that the weak legal background in this field is not sufficient to regulate space colonization.
The Outer Space Treaty, as the most significant of those five pieces, only demarcates space as a place for uses that “benefit and [are] in the interests of all countries,” but its vague wording leaves it susceptible to loopholes, meaning the treaty does not constitute an effective legal footing with which to govern space. For example, while the text does apply non-governmental entities operating in space to their home countries (and extends its rules to private actors too), it does not account for the repercussions of private companies being in space [13]. For one, these individuals did not sign the Treaty nor agree to its stipulations, so how can they be bound to the agreement in anything other than name? Furthermore, if such a company were to operate from a country that did not sign the Outer Space Treaty, is it then allowed to pursue its activities freely (thus limiting the ambition of countries that signed)? While these questions just serve as examples of the kinds of concerns that might arise in the deliberation of such cases, they poke holes in the soundness of current international space law and undermine its ability to withstand the rigors of space colonization. The inadequacy of this document supporting space law’s foundation to account for the simplest exceptions is a sign that much more legislation is needed to deal with the critical edge cases and for a colony to exist.
The Moon Agreement provides the most accurate representation of what a non-colonization agreement might look like in practice since it states that the Moon should only be used for peaceful and neutral purposes [14]. If the Moon Agreement were to successfully outline what activities are and are not allowed on a celestial body, perhaps it could support the weight of international space legislation being built upon it. But, again, the looseness of the document serves as its greatest hindrance, as its gray areas can easily be exploited, especially if commercial interests were relevant. For instance, from a property rights perspective, the Moon Agreement demands that space belongs to no one, but private citizens are allowed to recover resources from space according to 2015’s U.S. Commercial Space Launch Competitiveness Act [15]. The law, for instance, could then be stretched to interpret that resources or other space objects could be within a private citizen’s right to pursue, whether on the Moon or on Mars. The generalized wording in this case allows overlap between the Agreement and this Bill that citizens could potentially exploit. Moreover, would voting UN members abide by the Agreement if raw valuables were found? If a needed resource were discovered underneath the Moon or Mars’s crusts, those same UN members who perhaps even voted and signed the agreement would surely attempt to circumvent its stipulations. Thus, it stands to reason that the bases for colonization and outer space laws do not pass the standard for the legal basis upon which a Martian colony should rest.
Advocates for life in outer space might point to the International Space Station (ISS) as a counterexample, a beacon of hope for colonization. It is, after all, a multilateral, neutral research facility where scientists from multiple countries live peacefully together in space. The natural question then becomes whether the ISS really demonstrates that living in space as a society is possible in the short-term future. And while the ISS is a success both in terms of international relations and living in space, it is only loosely applicable to a Mars colony because the astronauts are only temporarily located there with no plans to indefinitely live in space and because few conflicts of interest exist in a space station (that might otherwise apply to a permanent colony). Without drawing out the discussion of this concession unnecessarily, laws governing the ISS have no need to account for future generations, societal well-being, or other long-term issues, lessening its relevance to the discussion of a permanent space colony. The ISS, then, is a valuable collaboration that is not representative of a space society because it does not run into the same obstacles that may be present when creating a permanent society on another planet.
With little legal backing to stand firm on, the case for a reliable law system on a Martial colony remains weak, indicating that this endeavor to build another home in space will likely not come to fruition in current circumstances.
IV. Political and Ethical Tensions
A firm understanding of Mars colonization efforts up to date is also necessary to understand from political and ethical perspectives why a space colony’s prospects to launch are bleak. To begin, the major political roadblock to space colonization comes in the form of priorities. To many people and politicians alike, sending money down the tube for private companies to travel to and settle down in space seems like a fruitless endeavor that could have its money diverted elsewhere for more relevant needs. In fact, only 21% of Americans have the opinion that Elon Musk’s SpaceX, the leading player in the Mars colonization race, is doing “a good job,” as they worry about its impacts on NASA’s declining role in perpetuating American dominance and private companies’ tendencies to leave behind space debris [16]. Further, despite NASA, which admittedly is not a huge player yet in the space colonization domain, receiving only 0.5% of the U.S. federal budget, citizens consistently feel it receives too much money overall, even if they themselves are in favor of space exploration. Such dissatisfaction is showcased by the fact that 76% of Americans see increased utility from diverting money devoted to space exploration toward education, 59% if directed toward public health, and 59% if used in alternative energy development [17]. A valid counter, though, might be that this complaint of a federal agency receiving too much money is just a symptom of overall frustration with government wastefulness, meaning that perhaps citizens themselves are not against space exploration. Whether this rationale behind citizens’ voting behavior is true or not, though, is irrelevant because they still hold the same conclusion and influence elected officials to carry out policies. If the discontent with space exploration starts at the voting level, then elected officials, who are somewhat bound to representing their constituents, must mirror their priorities, resulting in space exploration – and colonization – being left for a future generation.
From an ethical standpoint, a similar argument holds against space colonization: Should we really be spending money on fancy technology to colonize Mars when we cannot even house the homeless or feed the hungry? Especially since the effort is funded by eccentric billionaires (Musk, Bezos, Branson, etc.) whose services would likely cater toward the wealthy when officially launched, such an effort might preserve a stratified society in which the rich hold immeasurable luxuries while the poor remain in their squalid condition. It is not hard to imagine that, if Earth becomes uninhabitable, only the wealthy would be able to escape to a Mars haven while the rest suffer on Earth. As such, there is a point to be made that resources are best spent elsewhere besides space colonization efforts, which might contribute to a less equitable society anyways once viable.
V. Conclusion, Concessions, and a Suggestion
The successful colonization of Mars represents a monumental challenge not just in technological or financial terms that were not delved into here but also significantly in the legal dimension. This domain is lacking in three main ways: international law is not strong enough to hold together a society on Mars, the current legal framework is inadequate and provides no base to build space laws upon, and the ethical and political challenges present too great an obstacle for entities focusing on space colonization now to overcome.
However, there are some concessions to these points that must be addressed. Most notably, space colonization only seems to be a low priority right now because Earth’s climate or other properties are not in a dire enough condition to affect us drastically. However, if Earth becomes uninhabitable or another impetus pushes humanity toward action in the way of space colonization, then technological, financial, and legal barriers could dissipate much faster than expected, as we are experts at resolving crises when they pose a danger. During the COVID-19 pandemic, for example, the relevant vaccine was created in less than twelve months, which is the fastest vaccine creation and rollout ever, almost three years quicker than the previous record (the mumps vaccine in the 1960s that took about four years) [18]. In this instance, countries similarly did not originally have the finances to spend on medical trials or legal framework to push through pharmaceuticals at a rapid pace, but they resolved the issue because the situation required them to. Yes, there are some differences between responding to a viral disease and responding to another event that forces us to leave for another planet. But the fact remains that the infrastructure to respond to either of those emergencies was previously not available but instead created on the fly as the scale of the problem dawned on governments and people alike.
Another limitation to this argument comes from its timescale. The legal challenges mentioned above only hold in the short or medium term, as it is almost impossible to predict new societal developments in an age of rapid technological innovation. For instance, in 2016, a time that seems to be just yesterday, many would have predicted that Harvard students in 2024 would still be assiduously studying material for their classes and engaging with readings through a philosophical lens (as they presumably did for the first 380 years of Harvard operations) instead of simply asking ChatGPT to summarize papers. While this example is crafted somewhat in jest, it does prove the point that extreme innovation morphs our societal priorities and outlook in unpredictable ways. We can only predict the future based on our current knowledge and values, which are likely to change with the next great invention (whenever it comes).
Last, while this paper focuses on the law and only mentions the technological and financial elements as pieces to consider when evaluating the future of space colonization, these two fundamentals are imperative to any effort going beyond Earth. On the technological side, in order to colonize Mars, we first must reach it with resources and people capable of supporting a society there. This innocuous statement encompasses so many elements of life that each need to be accounted for through technology – water recycling innovations, radiation protection systems, portable and buildable living areas, and dust storm immunity to name a few. Without finding solutions that adapt our Earthly lives to something suitable for Mars, no space colonization can happen. Such alterations require time and money, though, and a Mars mission must be suitable from a financial standpoint so that investors and others can back it. So any push to create a space colony must be paid for by investments that would only come if Mars colonization efforts were viewed as a bullish entity.
Thus, while the immediate outlook for Mars colonization is hindered by substantial legal obstacles, the dynamic nature of technology and financing, global priorities, and values over time could shift the landscape dramatically. This uncertainty leaves the future of space colonization as an open question dependent on our planet's fate, space colonization’s perceived usefulness, and humanity’s capacity to overcome the formidable legal challenges outlined in this paper.
Based on these findings, one suggestion that might work is to fund (from the UN, other governments, and private sources) a completely privatized mission to Mars that would not have to abide by the Outer Space Treaty for its first decade. By privatizing the mission, innovation would occur at a faster rate due to free market capitalism while investors, noticing government backing, would presumably be bullish on the mission, leading to disposable capital for Mars-colonizing technology. Moreover, by allowing such a mission to ignore the Outer Space Treaty initially, governments who backed it would not be liable for the actions or failures of the astronauts and that no international rule breaking would technically occur. Those on the mission would be motivated to succeed to turn a profit for their investors, a powerful impetus, benefiting from the free market’s fast movement while on Earth and colonizing in space at no liability to governments. Then, after ten years, the Outer Space Treaty would come into effect, which would not matter if the astronauts failed to establish a colony, a depressing outcome. But in the event they succeeded, there would be a thriving Mars colony that would have developed societal organization and its own laws, which could be adopted as the de facto law of the land! While such a measure includes risk, bending of the rules, and ethical dilemmas, it perhaps resolves issues a Mars colonization mission would face at present.
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[14] Ibid.
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