Musk wants to occupy Mars. Will he succeed under Trump?

Space belongs to everyone by law, but what if no one can stop the new colonizers from converting outer space into the new Wild West?

Elon Musk has been obsessed with Mars for a while. SpaceX has been working on getting humans to Mars for more than two decades. While the primary goal is getting there, there is more on the agenda.

In 2016, Elon Musk estimated it would take 40 to 100 years to establish a self-sustaining civilization on Mars. However, according to The New York Times, citing sources close to the matter, Elon Musk told SpaceX employees in April this year that he expected one million people to be living on Mars within about 20 years.

The colony is imagined to occupy a self-sufficient city where no Earth-imposed laws have power over Martian activities. Though Musk is passionate about the idea, even once saying he plans to die on Mars, the plan still seems unlikely.

No human has ever set foot on Mars, and NASA doesn’t expect to send astronauts to the red planet until the 2040s. But what happens when we actually land on Mars?

With our thirst for conquest, we as a species do not have a good record with uncharted territories. As space becomes increasingly reachable, the question arises: What are we going to do with all this territory that belongs to anyone?

Space law experts and science enthusiasts do not agree on whether space exploration will embody the greed of the colonialism era or whether the international space law from the 1960s, known as the Outer Space Treaty, can stop the new-age colonialists from taking over space.

I sat down with Kai-Uwe Schrogl, President of the International Institute of Space Law (IISL), to discuss space laws and what prevents us from messing everything up once again in human history.

You can’t claim space, as it belongs to everyone

When asked about the colonization of space, Schrogl is strict. “Of course, we will return to the Moon and go to Mars, but we should do that in a different spirit than colonization. Those who use the term ‘colonize Mars’ are, in my view, people, who have not learned any lesson and do not have good intentions. We should go there in the spirit of peaceful, scientific investigation.“

He points to the colossal legal document that regulates activities in space – the Outer Space Treaty. “Read it. It is just seven pages, and it contains more of a manifesto for the ethical use of outer space. I would never advise you to read a legal text from the beginning to the end if I wasn't sincere,” Schrogl laughs.

Since the 1960s, 115 countries have signed and ratified the treaty, which clearly states that no nation can appropriate space or celestial bodies, as outer space must serve the common good and stay the province of all mankind.

“This treaty must not be touched. Do not try to replace it to benefit a few and not the common interest. We should not allow first-come, first-served principle and monopolization of space. We need freedom for commercial activities, but also provide public benefits.”

While the treaty's ideas are noble, they might come across as overly optimistic or unrealistic. With growing interest in space and increasing private sector involvement in exploration, there may be a stronger push to bypass certain international obligations.

Now, national governments are responsible for authorizing and overseeing their citizens' activities in space, ensuring they comply with international law. “We already see that national space legislation is used to establish “flags of convenience” also in space as we know it from maritime activities.”

As with any international law, enforcing it in case of violations is complicated, relying mainly on the UN Security Council, the International Court of Justice, or the International Criminal Court.

The US has to authorize Musk to colonize Mars

Schrogl makes clear that the treaty only contains principles as cornerstones of space law. Concrete implementation has to be done with additional legislation. However, the core message is clear – you cannot privatize Mars without authorization by the state.

“Elon Musk is a private citizen. Everything he is doing in outer space has to be authorized by the US government, and the US government is bound by the international treaties to supervise his actions.”

If Musk were to attempt to colonize Mars and claim property there, and if the US government does not stop that or impose sanctions – such as revoking his Starlink licenses or halting SpaceX launches – it would imply that the government is permitting these actions in violation of international obligations. Schrogl sees it as a test of international law.

“Now the question is, what will the US government do if Trump is elected, and he says, my friend Elon is allowed to do whatever he wants? This is certainly a breach of international law, but who will then take them to the International Court of Justice? Who dares to do that?”

Who can profit from mining an asteroid?

Another space cowboy billionaire, Amazon owner Jeff Bezos, has painted a different space conquest scenario – instead of colonizing Mars, preserve Earth by moving all heavy industrial activity to space.

Currently, there is no technology capable of mining resource-rich celestial bodies, such as the Psyche asteroid, which is estimated to be worth $100,000 quadrillion. However, if such technology is developed, the question of how to regulate mining and who will profit remains unanswered.

The Moon Agreement, adopted in 1979, allows space mining provided an international regulatory framework is established, similar to the UN Convention on the Law of the Sea. However, the Moon Agreement has only been ratified by a few countries. If it were more widely adopted, it would be the sole legitimate law for space mining.

Schrogl stays firm on the question, highlighting the non-appropriation of outer space. “Nobody owns this asteroid. It also means that you cannot go there and mine it, sell or use it. It's absolutely clear.”

“Unfortunately, the non-appropriation principle is often twisted to favor commercial interests in an opportunistic way. [The Moon Agreement] sets out that Bezos, Musk, or the US government cannot come and grab everything.”

While he admits that the Moon Agreement is only a starting point, with further steps needed to ensure fair use of space and its resources, there is some hope. Similar frameworks have successfully governed activities in Antarctica and are currently regulating deep seabed mining.

“Honestly, the energy that is currently needed to go and do mining in space will not equal the money that can be made. It is better to be sustainable on Earth. It's so typical of us – we destroy and then say, okay, next,” says Schrogl.

“The world community has to come up with a good scheme of how to handle and share the benefits. This is the idea of space as a global commons – nobody owns it, but everybody owns it,” he concludes.