Everything will go out of the window the moment the new space race truly begins. Whoever colonises Mars first at a large enough scale (that is self sustaining) has a tremendous first mover advantage. Anything earth can send will not be able to arrive in a timely manner such that it would not be detected. Short of faster than light travel, it is close to impossible to take down a planetary adversary with current technologies (one possibility would be a gravity tractor and slamming a massive asteroid into Mars, but the second and third order effects of doing so is very very dangerous).<p>Agreements like the Outer Space Treaty primarily bind weak nations. If US, China, (and eventually, India) truly believe that space dominance is critical to national security, then the treaty will become similar to the nuclear weapons agreements, an exclusive club for those who has the power to do so and everybody else will be kept out under threat of war and sanctions.<p>Lawyers too sleep well at night because of rough men willing to do violence on their behalf, it is just sometimes they forget that the armed enforcers of international law are sovereign powers who can rewrite the very laws should they win.
Go to Mars. Build a colony that does not need anything from Earth, declare sovereignty. I can see no reason if some group of people were able to do this they could not declare their rights to be free from a planet they do not live on. At that point it would be up to Earth (anyway who is Earth here, who do I call to speak to the president of earth?) to enforce compliance with their sovereignty and at the point that Mars could stand alone, I would think that they would have mastered the art of astroid capture and movement which could make things bloody pretty quickly.
Let's not pretend that any of these outer space treaties crafted in the 20th century and agreed upon by no one will be worth a damn when we are actually at a place where we can colonize planets. We have a hard time enforcing a climate agreement, and people think Mars will be governed by mutual understanding between countries/corporations?
Just imagine when we have First Contact and inform them that we've already declared their planet subject to the laws of Earth. And that furthermore, under those laws, they're not allowed to claim or own any part of their home planet.
I see the current legal status of Mars as similar to the legal status of the New World after 1494 when Pope Alexander VI divided it between Portugal and Spain, and those countries agreed on exactly how to do it.<p>We see how that held up.<p>Or for another example look at the colonization of the USA. There were overlapping legal claims to most land, with the same plot having been given in a grant by the King before the revolution, by the state, by Congress, and some innocent pioneer actually went and lived there knowing none of that. The way we resolved this was consistently in favor of the squatters who lived there. On the same principle, conflicting legal claims to Mars should be resolved in favor of people who actually go to live there.<p>And guess what? We're looking a likely future where in a few years SpaceX is able to get there in volume while nobody else can do better than occasionally land small robotic vehicles at great expense. Who will be establishing the facts on the ground?<p>Doubly so if Elon winds up financing a lot of it by replacing long distance airplanes with reusable suborbital rockets. Despite SpaceX not being a sovereign government, the implied military capabilities here on Earth are quite significant...
Basic human lesson here:<p>We are accountable to those we need stuff from.<p>Every human needs Earth right now.<p>Anyone wanting to establish fresh needs to not need earth, period.<p>They can then approach the earth as a sovereign trading peer.<p>Seems to me no more complex than that.
The real meat of this post is the sentence from this author:<p>>"SpaceX purports not to create law horizontally via contract, but to establish the only law on Mars – a vertical structure endemic to sovereign legal orders."<p>Which doesn't seem supported by SpaceX's ToS:<p>>"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."<p>SpaceX is trying to establish an agreement between itself and all its users, not enforce that agreement against third parties (as far as I can see). There may be a conflict if/when a second provider establishes a colony on Mars, but nobody else seems to be working towards that goal, so it's even more speculative than SpaceX's ambitions.
Who truly owns Mars will be decided by whoever has the power to enforce their claim. (Realistically I think any Mars colony would be too dependant on Earth to ever call themselves independent.)
I see everyone's big on the armed colonisation of Mars, and assuming that this can be done without Earth factions noticing and doing something about it. But I think this radically underestimates how fragile and dependent the colony is likely to be. We've already had "rare earth metals" discourse on Earth; how rare are they when you're not even on Earth? Are there Martian deposits of tantalum, iridium, neodymium, etc?
Whistling in the dark. "Outer Space" refers to all that is not on Earth. To imagine some sovereignty over the entire Universe is hubris at the very least. Imagine what the Arcturan Confederacy would have to say about that!<p>Of course a world is governed by the people on that world. Not some billion-mile remote authority. I.e. an Earth government can say anything it wants, while the folks on Mars go on doing whatever they decide.
England couldn't maintain its military influence over the US because of the big travel time over sea. The US declared independence afterwards.<p>I see very little chance that Earth can maintain a military influence over Mars, especially when the cost/time to travel is magnitudes higher. It's likely that Mars will have its own form of government from the people over there.
Just what we need--start spreading our legal monstrosities across the universe!<p>Jokes aside, this is one thing I don't understand about Elon's viewpoints. He's afraid Earth's insanity will destroy itself, which is why we must spread to other planets. He forgets that as soon as he relocates people to Mars, that same insanity will be relocated with them.
I buy'd some land on mars, please Elon, land there and build your station..we will see us at the International Tribunal for the Law of the Sea or something like that ;)
<i>> Outer space is already subject to a system of international law</i><p>How far does that reach exactly?<p>This topic reminds me The Moon is A Harsh Mistress and A Ticket To Tranai.
Everything's a legal vacuum if you have a big enough gun.<p>Edit: I'm not saying how things should be... I'm just pointing out the obvious
> Space law is an established rulebook likely to undergo some high-octane developments in coming decades. While Elon is welcome to the table, he can’t keep sucking the air from the room. It leaves us space lawyers just shouting into the void.<p>This is quite the post, where space lawyers think the law isn't possession and force projection. Without force behind a law, they are just words. Mars will be independent the moment they no longer need Earth for resources, decided by whomever governs Mars.
The Romans had this concept of "possession". You can own something but if someone else possesses it for a long enough time, it is theirs.<p>They also talked about "De Jure"(In theory) and "De facto"(in practice). You could subvert the law if you do not apply it or apply it selectively.<p>Communist are experts on that. For example, Lenin called elections. When he lost them, he just made a coup d'etat and took power(De facto), then he will name everything as "democratic"(De jure), the government of the people and so on. A similar strategy as Napoleon, that declared himself against monarchy and declared himself Emperor (De facto) later(while being republican in theory).<p>Another example is Venezuela. It is a democracy "De jure", but a dictatorship "de facto".<p>The entities that occupy Mars (or Venus) and take possession of it will own it de facto. Who cares about what lawyers say in another planet?
But it is. International law is basically an illusion. It only works while participants agree - there's no way to enforce it because countries have sovereignty and as such they can do as they please if they really want to. Treaties are glorified pinky promises, and the only real recourse is threat military action, which can't be used against nuclear-capable states. There's only one country able to colonize Mars in the foreseeable future, and within the US there are only two entities possibly capable of such a feat : SpaceX and NASA. So at a minimum, there will be US law there initially, and if colony is viable the US will claim Mars. "International lawyers" will be told to pound sand shortly thereafter. Then I suppose people there will show us here on Earth their long martian middle finger and go their own way, much like the US itself did hundreds of years ago, and we won't be able to do jack shit about it.