Outlaws in space: Are Mars colonies illegal?

Dutch nonprofit organisation MarsOne is selecting candidates for a colony there. Elon Musk’s SpaceX is talking about doing the same, with Musk telling Aeon magazine a Mars colony would need about a million people to be self-sustaining.

“Even at a million, you’re really assuming an incredible amount of productivity per person because you would need to recreate the entire industrial base on Mars. You would need to mine and refine all of these different materials, in a much more difficult environment than Earth,” says Musk.

But there is a slight hitch in these plans because – aside from the difficulties in surviving on the arid and cold planet – as things stand, colonising Mars may very well be illegal.

The Outer Space Treaty of 1967, which has been ratified by 104 countries, including South Africa, forms the basis of extra-terrestrial law. According to it, space is the “province of all mankind” and “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”. This makes it difficult for a country or company to set up a colony or enterprise on another planet.

Read: Why on earth would I go to Mars?
Read: 10 things you didn’t know about Mars


In a paper submitted to the journal Space Policy, researchers from the Blue Marble Space Institute of Science offer a model for setting up Mars colonies.

“History has shown humans have quickly explored and exploited nearly all available land; perhaps similar momentum will carry forward to Mars,” they write.

The treaty suggests “a common property approach … This may discourage investment and productive use of planetary resources, which ultimately could be harmful or restrictive to the future of humanity,” the authors write in the paper, A Pragmatic Approach to Sovereignty on Mars.

Mars: the ‘province of all mankind’
But how do you stop a scenario in which states and companies with money and power monopolise the resources of other planets? “The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind,” according to the treaty.

The authors offer a “bounded first possession” model. It starts with “protected parks”, areas preserved for scientific, cultural or aesthetic reasons, to be determined by international scientists.

Aside from those protected areas, colonising countries or companies would be able to occupy “limited plots of Martian land”. In these economic zones, parties would be able to claim exclusive economic rights.

But although colonisers will be between 55-million and 401-million kilometres from their Earth countries, they would be bound by the laws of their home territory.

A South African colony would be governed by our Constitution; other countries would be governed by theirs. Similar to travelling to another country, if a person were to travel into another colonising party’s economic zone, they would be bound by their laws.

It would seem, however, that the authors of the paper are somewhat optimistic about human relations and human nature: “Parties are encouraged to resolve disputes peacefully themselves using diplomacy. If this fails, a temporary tribunal will be formed composed of representatives from each Mars colony that is not involved in the case … We aim to avoid involving the Earth International Court of Justice System, while still involving the Earth-based origin of the colony in the resolution process.”

But, if the history of colonisation has taught humankind anything, it is that it seldom works out as planned.

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