An international treaty with more than 50 years has so far laid the foundations on space law and any celestial body. But what if the first humans had to get there to stay?
We are in what can be called the 'Martian week'. Three space missions from three different countries have recently arrived in the orbit of the Red Planet for different exploration purposes.
The first was the United Arab Emirates. The Hope mission probe is already orbiting Mars to study its climate for the next two years in what is framed as the first space mission of the Arab country, which has formed its own agency in its attempts to escape due to dependence on oil.
Forming what is possibly the first Martian jam, the Chinese probe Taianwen-1 later arrived, which will remain in orbit too, in May, deposit its own rover that touches the red earth.
And finally, the United States and its Perseverance rover, the most important exploration mission to date and which could collect samples of whether any kind of life ever existed and pave a possible manned mission in the future.
Mars, in short, is in fashion. NASA has been working for years on the Artemis Mission, which seeks to take the first human to Mars with the Moon as an intermediate base. Meanwhile, Elon Musk's SpaceX has spent years thinking about a possible arrival date that, however, each time it seems that if it happens it will be more in the mid-30s than before.
Now, like Neil Armstrong and Buzz Aldrin they left us that image with the flag of the United States on the Moon. Will we see something like this in a hypothetical future? And going further, who will have control and government of Mars to settle there?
The saga of novels and series The Expanse set 200 years in the future, conjures up an independent Mars after years of Earth colonization. Would something like this be possible?
A treaty to keep Mars neutral. Except for humanity
Fortunately, that image of the straight flag on the lunar surface had only a symbolic purpose. Nothing small in the middle of the space race against the Soviet Union, but only that.
Since 1967 there is the so-called Treaty on outer space, whose full name is Treaty on the principles that should govern the activities of States in the exploration and use of outer space, including the Moon and other celestial bodies. Under this very long name is a text protected by international law and the UN on the limits of the use of space.
Although it was originally only signed by the US, the Soviet Union, and the United Kingdom, currently 110 countries have signed and ratified it.
The agreement is outdated and responds to the concerns of the time. Among other things, the use of satellites, space, and celestial bodies for the location of atomic weapons was prohibited. And a consensus was reached that Space belongs to all Humanity. Of course, no one asked non-earthlings.
The treaty is full of taglines in which it is stated that its norms affect including "the Moon and other celestial bodies." That is, by extension, also to Mars.
This is what the Treaty on outer space says
The first two articles make clear the cooperative nature of space exploration, and emphasize that no celestial body can be appropriated by any of the party countries:
Article I: The exploration and use of outer space, including the Moon and other celestial bodies, must be done for the benefit and in the interest of all countries, regardless of their degree of economic and scientific development, and are incumbent on all humanity. The outer space. Even the Moon and other celestial bodies will be open for their exploration and use to all States without any discrimination in conditions of equality and in accordance with international law, and there will be freedom of access to all regions of the celestial bodies. Outer space, including the Moon and other celestial bodies, will be open to scientific research, and States will facilitate and promote international cooperation in such research.
Article II: Outer space, including the Moon and other celestial bodies, may not be subject to national appropriation by claiming sovereignty, use or occupation, or in any other way.
The treaty includes some more important points such as that all states must cooperate in the rescue of astronauts if required. In addition, it allows the use of the military for exploration purposes as long as they are peaceful.
An old treatise but with implications for today on Mars
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This international text has already had some important implications. For example, in 2015 the Curiosity rover could not take samples of what could be remnants of saltwater on Mars because the treaty prevents any contamination from Earth elements to the outside and vice versa.
It is rather something like, 'keep your microbes with you, rather than a concern about space junk, which is not covered in the treaty beyond the responsibility of each state for the elements that it sends into space.
This last aspect about the 'nationality' of ships, satellites, and possible bases can be seen quite well in the novel and the film by The Martian where the protagonist must make the decision to leave his jurisdiction (his North American base) without receiving the seen well, turning him into a kind of 'space pirate'.
Elon Musk and his vision of Mars. What about companies
But how does this apply in a world like today where private companies may have the capacity to reach Mars, or at least aspire to do so?
This was the subject of controversy a few months ago when (we don't know if in the formula of a usual Musk joke) the Starlink conditions appealed to the use of Mars as a "Free Planet."
Given this, the treaty states in article 6 that governmental and non-governmental organizations (companies) will be liable for their acts on the space before the State in which they are based.
Article VI: The States Parties to the Treaty shall be internationally responsible for the national activities that they carry out in outer space, including the Moon and other celestial bodies, government agencies, or non-governmental entities, and shall ensure that such activities are carried out in accordance with the provisions of this Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, must be constantly authorized and supervised by the relevant State Party to the Treaty. In the case of activities carried out in outer space, including the Moon and other celestial bodies, an international organization,
Following Starlink's assessment, Antonino Salmeri, lawyer and doctoral researcher in space law at the University of Luxembourg, said that "there is no legal option to consider Mars a free planet." In other words, Mars would become today and under our conception a kind of province of Earth, in a very vague way.
What about mining?
This has also come into question about possible space mining. In 2015, still under the Obama administration, the United States launched the so-called Space Act.
The legislation gave US space companies the right to own and sell the natural resources they extract from bodies in space, including asteroids.
As Gbenga Oduntan, a specialist in International Trade at the University of Kent explained then, that idea went "against a series of treaties and international customary law that already apply to the entire universe."
“The new law is nothing more than a classic interpretation of the Wild West 'dare wins' philosophy. The law will also allow the private sector to conduct space innovations without regulatory oversight for a period of eight years and will protect participants in spaceflight from financial ruin. This will surely make private companies start incorporating asteroid extraction into their investment plans, ”he wrote.
Ah, important, this legislation left aside the possible extraterrestrial life, with which it could not be traded.
But what if a future colony became independent?
In a much more distant future and with a much longer-range elucubration, it would be left to wonder what would happen if a possible Martian colony decided to become independent at a given moment.
There are opinions such as that of Jacob Haqq-Misra, a researcher at the Blue Marble Institute for Space Science, and the author of an essay entitled The transformative value of the liberation of Mars in which he argues that Mars should be totally independent of the beginning. "With Mars, it seems there is the potential to do something different with civilization than we have already done," he opined.
The idea is simple. Instead of humans landing and living on Mars responding to companies and institutions on their home planet, they should be given complete independence. To guarantee this independence, Haqq-Misra outlines five release provisions.
The first, that humans who land on Mars renounce their terrestrial citizenship, becoming Martians. Second, Earth's governments, businesses, and people cannot interfere with the politics or economy of Mars. That means there is no coercive trade, no economic meddling. Third, scientific exploration of Mars can continue as long as it does not interfere with any independently developing civilizations. Fourth, Martians must determine land use on Mars. And fifth, everything that was brought from Earth to Mars is now Martian, and Earthlings cannot ask for it back.
Of nationality, Marciano
The ideas of Haqq-Misra drink from idealism but also from the possibility that humans who reach Mars do so without a return ticket, so they should be given independence in their lives and their decisions.
In this regard, Salmeri also alluded to Article I (2) of the UN Charter, which provides for "the self-determination of peoples."
“If and when SpaceX's vision of one million people living on Mars becomes a reality, there is no question that this community would have the right to political independence and self-regulation. However, this result cannot be imposed in advance or achieved against international law. Rather, it can only develop from the natural evolution of circumstances, under the safeguards of the rule of law, ”he wrote.
In the early stages, any Martian settlement will have to rely on supplies, technologies, personnel, and general logistical support from Earth. Conversely, this dependency will also involve the legitimate exercise of Earth-based authority to protect the settlement from degenerating into Wild West behavior and violence.
Later, when the agreement has developed an autonomous structure and a balanced division of powers, independence and self-regulation would come naturally, but not a minute before the conditions to protect fundamental rights are in place.
This seems to be the only position in which Mars would not belong to Earth, but to the first Martian humans.
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