Written by Thomas Gurbutt
Ever since Apollo 11 landed on the Moon in 1969, interest in space exploration has increased to the point that mere landings and return voyages to the Moon are no longer the object of scientific endeavour. NASA’s administrator, Charles Bolden, stated this year that NASA is on the right trajectory to get humans to Mars in the 2030’s. Another organisation, MARS ONE, seeks to begin establishing a human settlement on Mars as soon as 2027. If successful, this means that in a mere 11 years time, humans could be living on Mars.
MARS ONE is treating the mission as a type of emigration, whereby the new emigrants will enjoy freedom of religious thought, but will be advised not to reproduce until the settlement is thoroughly tested. In the event of death on Mars, there will be a memorial service and cremation ceremony ‘like customs on Earth dictate’. From this statement, it is apparent and likely that certain Earth customs will be adopted and followed. However, upon arriving on Mars, no particular governmental or legal system will be adopted; rather, the astronauts will ‘organise themselves politically in order to ensure fair and reasonable decision-making processes’, and to do so will be given information on social organisation on Earth, and different cultural management structures.
There are thus many legal questions that arise regarding the MARS ONE mission. If it is treated like a true emigration, then will the migrants be bound by the laws of their previous countries, or by an entirely new set of Martian laws? If MARS ONE recognises the right to freedom of religious thought, does that also mean that it recognises other provisions of the Earth’s international human rights treaties? If, in the event of a death on Mars Earth’s burial and memorial customs were followed, would Earth’s customs be followed if the death on Mars was in fact a murder?
With an eye to explaining these questions, UN resolution 34/68 may be of assistance. The resolution, also known as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies was adopted by the General Assembly in 1979, and came into force in July 1984. It expands on the previous UN Outer Space Treaty. Whilst the Agreement mainly covers actions on the Moon, Article 1 states that the provisions of the Agreement ‘shall also apply to other celestial bodies within the solar system, other than Earth, except in so far as specific legal norms enter into force with respect to any of these celestial bodies’, and the Article goes on to state that this includes orbits around or other trajectories to or around such bodies. Much of the Agreement goes to legal governance of celestial bodies; Article 2 ensures that all activities on celestial bodies shall be carried out in accordance with international law and in particular the UN Charter, and Article 3 ensures that celestial bodies shall be used by all States Parties exclusively for peaceful purposes. Article 4 ensures that the exploration and use of celestial bodies shall be for the province of ‘all mankind’ and Article 11 ensures that any natural resources of celestial bodies are ‘the common heritage of mankind’. Interestingly, Article 12 provides that State Parties shall ‘retain jurisdiction and control over their personnel, space vehicles, equipment, facilities, stations and installations’ on celestial bodies. Article 15 ensures that State Parties to the Agreement must monitor the compliance thereof by other State Parties, and Article 17 provides that any State Parties may propose amendments to this Agreement.
Before further discussion can ensue, it must be noted that the Agreement had merely 16 State Parties, and only 7 of those ratified the Agreement. The State Parties to the Agreement do not include many major world powers such as the USA, the UK, Russia or China. This means that the Agreement is generally unrepresentative of Earth’s international law. However, it is a useful document for contemplating the future of law on Mars. Since it is a UN Agreement, it will at least be in the knowledge of the international legal community, even if many countries chose not to accept it.
At the time of writing, the first crew for MARS ONE has not yet been announced, so there is a chance that there may be representatives on board the initial flight of the countries that are States Parties to the Agreement. If this is the case, it could mean that the Agreement would take legal effect, under the qualifier in Article 1. Further, Article 2 of the Agreement states that unless there are any specific legal norms relating to Martian law, then the law in the Agreement shall take effect. The Agreement would ensure that Mars is governed peacefully and in accordance with Earth’s international law, which would potentially include the provisions of leading human rights treaties such as the European Convention on Human Rights. If a State Party to the agreement was represented on the MARS ONE mission, then under Article 12 of the Agreement, that State would retain jurisdiction and control over its personnel. However, if MARS ONE is treating the mission as a form of emigration, this could potentially mean that Article 12 provisions are waived, as the representative would become a Martian citizen and no longer a citizen of their original State. This would make sense, especially since the mission is one way; the representative is unlikely to ever return to their country, so it would be illogical to be bound by the laws of a country that is separated by thousands of miles of space.
The Agreement is monitored by the United Nations, so it is likely that the UN would try to establish some sort of legal governance for Mars under the Agreement. Currently, the UN Office for Outer Space Affairs works with UN Member States to establish laws and treaties relating to outer space, and instead of international law, a new field of ‘space law’ has been synthesised. This means that even if the Agreement did not take effect on Mars, the UN are still likely to bring Member States together to discuss and create a form of Martian governance and law.
Yet, whilst Earth’s countries are working towards space law, MARS ONE’s statement cannot be forgotten; astronauts will organise themselves politically. This suggests that MARS ONE does not intend to be bound by UN law, or in fact Earth law at all. But this statement assumes that MARS ONE becomes the proprietor and effective controller of Mars and all Martian land. If MARS ONE has effective control over Mars, then it follows that new Martian law could be established; Mars could be treated as a new Earth State or because it is in fact a different planet altogether, a completely new legal system could be instituted. The main problem, however, with that line of thought is that it is not clear who ‘owns’ Mars, and who gave permission for MARS ONE to seize effective control over Mars for its own purposes. This question remains a mystery, and will likely be solved in due course, and in any event by the time a human settlement is effective and sustainable on Mars.
One thing is for certain – MARS ONE has stated that it intends to adopt Earth’s burial and memorial customs and that there will be freedom of religious thought. Direct parallels can be drawn with Article 9 of the European Convention on Human Rights (which provides for the freedom of thought, conscience and religion), which implies that common international human rights will be adopted on Mars, and indeed are forming the first facets of the Martian legal system. Whether or not other human rights will carry over onto Mars remains to be seen.