Written by Juan Pablo Hernández Páez
The Treaty Examiner, vol. 2, issue 1
10 January 2021
As space exploration becomes a reality, including by private parties, questions of applicable law and national sovereignty are starting to arise. Indeed, there is a debate as to whether national laws should have extraterrestrial application in light of the relevant rules of international law, both public and private. The best example of this new debate is found in section 9 of the SpaceX Starlink user agreement, which states that:
“For Services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith, at the time of Martian settlement.”
Section 9 of the Starlink agreement raises some grave concerns for public and private international law, which are important to address as the corpus of space law continues to develop. A closer examination of these implications is the purpose of this piece.
Introduction: international law in space
There is wide consensus that the relations between States beyond Earth are governed by public international law. The corpus of cosmic law is mainly found in the five United Nations-based space treaties, namely the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1976 Registration Convention and the 1984 Moon Agreement. These five treaties are now in force and are the basis for current space law. However, given the recency and sporadicity of exploration efforts in other celestial bodies, the application of these treaties, as well as the practice of States concerning activities in outer space, is lacking. The current content of customary international space law is, it appears, in a state of flux and uncertainty.
The exploration of space gives rise to many problems concerning the enforcement of laws, both national and international. Many of the United Nations space treaties focus on the regime governing jurisdiction over spacecraft and astronauts and the allocation of State responsibility for damages caused by space objects launched from Earth. Moreover, these treaties attempt to establish some basic principles governing space activities, including the principles that celestial bodies are not subject to national appropriation; that astronauts are “envoys of mankind” entitled to rescue and repatriation when in distress; and that the scientific exploration of space is to be undertaken for the benefit of all humankind. However, the law applicable to private activities in space, as well as salient issues concerning State extraterrestrial jurisdiction, continue to be shrouded in mystery.
Can SpaceX claim Mars?
The central issue raised by the Starlink user agreement is that it purports to establish an autonomous legal regime for Mars. This is nothing if not a claim of sovereignty over that celestial body. The problem is that claims of sovereignty are prohibited by Article II of the 1967 Outer Space Treaty, which states as follows:
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 basic principle, which is part of jus cogens, would then prohibit a State from claiming a part of Mars as its own. Is SpaceX, as a private company, subject to Article II of the 1967 Outer Space Treaty? In principle, no. However, this does not mean that SpaceX operates in a legal vacuum that authorizes occupation. Instead, this is where the law of State responsibility for internationally wrongful acts comes into play.
Any act in violation of international law by SpaceX would bind the United States of America. As the State of incorporation, the United States is obligated to supervise SpaceX’s space activities, “assuring that [they] are carried out in conformity with the provisions” of the Outer Space Treaty (Article VI, emphasis added). Moreover, as the State of launching and of registration of SpaceX’s activities, the United States of America bears liability for the damage that such activities may cause (Articles VII, VIII of the 1967 Outer Space Treaty, Articles I, III of the 1972 Liability Convention and Article II of the 1976 Registration Convention). As SpaceX’s conduct is attributable to the United States of America under international space law, the claim of sovereignty in section 9 of the user agreement, if it materializes, could translate to a violation of Article II of the Outer Space Treaty for the United States, potentially opening it up to State responsibility.
The principle of non-appropriation of space exists for a reason: it is intended to prevent territorial disputes concerning space objects. The conquest of space would pose a grave threat to international peace and security. This is confirmed by the context of the treaty, as Articles III and IV of the Outer Space Treaty are intended to extend the application of the Charter of the United Nations to outer space and prevent the mounting of weapons of mass destruction in terrestrial orbit. Article I of the Outer Space Treaty declares celestial bodies, including Mars, res communis, which means that they are not for States (much less a private entity like SpaceX) to take. Contrary to what is claimed in section 9 of the Starlink user agreement, Mars is not a “free planet”.
A Martian declaration of independence: extraterrestrial self-determination
As Mars cannot be claimed by SpaceX (or by the United States through SpaceX), the question remains whether a part of Martian territory can self-determine and become an independent State separate from the United States or any other country. This is not to say that section 9 of the Starlink user agreement is a valid or definite “Martian declaration of independence” for international law. Rather, this question is addressed in the abstract.
The right to self-determination is codified in Article 1(1) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Article 1(1) the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) which state that:
“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
This rule of human rights law changed the landscape of international law in the 18th, 19th and 20th centuries. Colonial powers retreated and new, independent nations were formed. The purpose of the international right to self-determination is to liberate “peoples” from colonial subjugation and allow them to determine their own political and economic structures, unincumbered by the oppression of an external power. As recognized by the Declaration on Principles of International Law concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of The United Nations, the creation of a new sovereign State is a mechanism to implement the right to self-determination.
However, as the International Court recognized in its 2010 Kosovo Advisory Opinion (para. 81), the right to self-determination is not without limitation. Indeed, self-determination and the creation of a new State are only recognized to the extent that they do not violate cardinal rules of international law. As analyzed above, claiming sovereignty over Mars is prohibited by Article II of the Outer Space Treaty and, most crucially, jus cogens. A peremptory norm of international law of this kind would prevent the formation of a new State in Mars.
Even if self-determination could, in principle, lead to the formation of a State in Mars, it is questionable whether SpaceX activities suffice to trigger self-determination. According to the Canadian Supreme Court in 1998, a distinction should be drawn between external and internal self-determination. Internal self-determination refers to the power of definable “peoples” to access relevant national mechanisms freely to pursue their economic, social and cultural development, as mandated by Article 1 of the ICCPR and ICESCR. To protect the territorial sovereignty of States, external self-determination (i.e., secession and creation of a new State or incorporation into a pre-existing State) can only be exercised to the extent that an oppressed “people” is unable to enjoy internal self-determination in its country. This right to external self-determination was recognized in principle in the Aaland Islands case in 1921. Otherwise, there is no right under international law to secede from pre-existing States.
Are Martians entitled to claim self-determination and create independent nations with independent (“self-governing”) laws? Presently, space voyagers traveling to Mars in private activities are not under a system of external subjugation, exploitation and domination that could bring about the right to secede. They are not a “people” for Articles 1(1) of the ICCPR and the ICESCR. Even if they were, they fully enjoy internal self-determination, and are crusading to Mars for reasons unrelated from a desire to liberate themselves from alleged subjugation.
Yet, this question will have to be re-explored once populations settle in Mars. This is not a question that can be answered in abstracto and with binding effect, since the right to self-determination, as pertains to a definable people, depends on the specific circumstances of that people and the context of the oppression against them. Additionally, it remains to be seen whether the status of Mars as res communis legally fluctuates in the (near or far) future, thus permitting occupation. Until humans settle in Mars, no meaningful customary international law relating to the settlement in celestial bodies can be formed. All that can be said is that, at present, the sovereign occupation of Mars “by any (…) means” constitutes a violation of international law (Article II of the Outer Space Treaty).
Private international law in space
Another aspect of the Starlink user agreement that needs to be addressed is the status of private transactions in outer space vis-à-vis international and national law in Earth.
First, the application of international law cannot be excluded by way of private contract, except where the treaty itself provides it so. For instance, Article 6 of the 1980 United Nations Convention on Contracts for the International Sale of Goods states that the parties can exclude the application of that Convention or modify its provisions or vary their effects by mutual agreement. This is sensible since international treaties and customary international law, currently and with some exceptions (for a brief discussion, see here), do not impose obligations on individuals but on States. It would make no sense to allow private individuals to exclude the application of global treaties, established by sovereign States and operating in the international sphere, to which they are not obligated, through a private instrument governed by national law. Indeed, this would run contrary to Article 27 of the 1969 Vienna Convention on the Law of Treaties, which provides that States cannot justify their breaches of international law by invoking municipal norms. A deviation of treaty or customary law can only be achieved through subsequent treaty or custom, except in the case of jus cogens prohibitions, like the principle of non-appropriation, from which no derogation is permitted.
Second, section 9 of the Starlink user agreement implies that the agreement is a self-standing instrument, not subject to any national laws. This, however, is incorrect. Contracts are governed by and derive their validity from national law. They do not operate in a legal vacuum (see Redfern/Hunter, 2015, at para. 3.03). Otherwise, it would not be possible to enforce them as the jus imperium required to do so does not derive from the intent of the parties, but from the power of the State that recognizes that intent. It is that fact that generates the problems of contract law in the transnational context. The concept of “conflict of laws” that underlies private international law refers to the circumstance wherein a single private relationship is potentially and simultaneously governed by a multitude of municipal laws. It is in this circumstances that the adjudicator (be it a court or an arbitrator) must determine which of those competing laws governs the private relationship. Just because the agreement is potentially to be performed outside Earth does not automatically mean that it is somehow immune from the application of terrestrial laws.
What is more, parties are not free to deviate from applicable mandatory laws. Since it is law that determines the permissible scope of the contract, deviation is only permitted where the laws that apply are dispositive in nature. Mandatory laws, especially in the transboundary context, continue to apply and are subject to an ordinary conflict-of-laws analysis. Just like a private entity cannot simply proclaim that it is exempt from the applicable mandatory laws of its country when it operates internationally, so cannot a private entity simply proclaim that mandatory terrestrial laws do not apply when it operates in an extraterrestrial context. Insofar as States are capable of establishing extraterrestrial jurisdiction, for instance when the person is aboard a registered spacecraft (Article VIII of the 1967 Outer Space Treaty), their laws continue to be enforceable.
Part of the problem of section 9 of the Starlink agreement is that it seeks to be governed by the “self-governing principles” that will purportedly be established at the time of human settlement in Mars. International law does generally recognize the power of private entities to choose the law governing their contracts (e.g., Article 2 of the 2015 Hague Principles on the Choice of Law in International Commercial Contracts). Whether they can choose a law that is yet to be created is questionable and not addressed by current norms. This blurs the line between lex lata and lex ferenda and could be considered invalid under a multitude of national conflict-of-laws norms.
The problems of occupation and the violation of international law above described could be avoided if the “self-governing principles” mentioned in the Starlink user agreement are reinterpreted to mean “rules of law” (as opposed to “laws”), in the way those rules are understood in current private international law (see Article 28(1) of the UNCITRAL Model Law on International Commercial Arbitration). A privately developed instrument like the UNIDROIT Principles of International Commercial Contracts could provide the most sensible solution. As of yet, however, such rules of law exist awkwardly in international law: they are mandatory only insofar as the parties and the State exercising jurisdiction agree to their application (i.e., where the parties chose them to apply and the State recognizes that choice as valid under its private international law rules). Otherwise, they only have academic value, and can only be used to ascertain existing rules of law (e.g., Article 38(1)(d) of the Statute of the International Court).
Some concluding thoughts
All in all, the choice (or exclusion) of law in section 9 of the Starlink user agreement creates some complicated issues that involve both public and private international law. Part of such issues arises because of the current uncertainty about how the law will address space activities. These are questions that can only receive half answers at this moment. In light of current rules of international law, section 9 of the agreement is to be regarded as, at best, invalid and, at worst, an expression of (troubling) political intent regarding future Martian activities. It is for State practice, space exploration and time to prove this preliminary conclusion incorrect.
Whose laws apply in Mars? The answer is that it depends. It depends on which State exercises extraterrestrial jurisdiction and on whether the current state of international law changes. The formation of an “interplanetary law”, the creation of new extraterrestrial nations and the solution of conflicts of jurisdiction in space, are issues that will face the new generation of international lawyers as commercial space exploration becomes a reality.
PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 10 January 2021.
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