Between Asgardia[1] and Elon Musk inspired talk of Mars colonies, there has been quite a bit of discussion of colonization of space and celestial bodies and the possibility of setting up a space nation recently. Some of these groups have addressed, even if inadequately, some of the legal concerns surrounding creating a space colony, settlement or nation, but there are still quite a lot of questions and concerns. In this post, I will examine some of these. I will start with discussing the question of state creation in international law, though there’s far more to it than I can cover in this simple post.[2] I will then discuss some of the relevant provisions of the Outer Space Treaty before ‘wrapping up’. There’s far more to it than discussed here and it’d certainly make for a great PhD topic.
Public International Law
As per Article III of the Outer Space Treaty, all of international law applies in outer space, therefore it is important to understand how state creation works terrestrially, in public international law. There isn’t a set process for the creation of state in international law. Scholars have identified a few common features, but this isn’t a checklist. The common features are, a defined territory (this doesn’t have to be fixed or unchanging but there does need to be a ‘core’ permanent territory, take Poland as an example, a state whose exact borders have changed a great deal since regaining its independence at the end of the First World War), a permanent population (again, immigration and emigration are permitted but there shouldn’t be wholesale change of the population on a regular basis like there is on oil rigs or Antarctic research stations), the right to conduct independent international relations (ie not a colony or dependency, so the Isle of Man or the Faroe Islands aren’t states even with their high degree of autonomy because they’re subject to the UK and Denmark respectively), and finally recognition as a state by other states. The last one is often the key criteria, Taiwan is a perfect example, it ticks the first three boxes, it conducts international relations with other states (admittedly on an ‘informal’ basis with most) yet only a handful of states recognize it as a state itself. There are a number of other examples, Palestine being one of the most famous, but Somaliland, Northern Cyprus and Western Sahara being just a few others.
Space Law
As I have said before, and will undoubtedly say many, many times again, the Outer Space Treaty is the foundation stone of international space law. It codifies many of the fundamental principles of space law and enjoys near universal recognition and legitimacy. Therefore it makes sense to focus on it. In the interest of brevity I will examine three articles that are particularly important, but this is by no means an exhaustive list, other articles and other treaties also raise questions (such as what does the prohibition on ‘harmful contamination’ mean for a colony… can you bury people on Mars?).
Article II of the Outer Space Treaty bans national appropriation of space, the moon and celestial bodies by means of use, occupation or any other means. This means that states cannot extend their territory or jurisdiction into outer space (though they retain jurisdiction over their nationals and any relevant human made space object launched into outer space.) This principle, the non-appropriation principle, has come to be regarded as a feature of customary international law which essentially means that it applies to all states regardless of whether or not they have signed up to the Outer Space Treaty.
It doesn’t particularly matter whether this endeavour is state or privately run. Article VI of the Outer Space Treaty makes states responsible for the actions of their nationals in outer space. So the United States has to ‘authorise and supervise’ the actions of its nationals in space, even if it is a private company like SpaceX operating entirely out of private funds. This also helps reduce the potential for ‘flag of convenience states’ as they can be held responsible by other states.
One common argument about the legal situation of outposts/stations/colonies/villages on the Moon or other celestial bodies is that while you can’t own the territory your habitat actually sits on (see Article II) you can and do own the physical habitat itself. The law of the ‘launching state’ applies to the ‘space object’ and the people in it. This is because Article VIII of the Outer Space Treaty states that:
“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body…”
Launched into outer space is potentially a key phrase here and there is already starting to be discussion about what it means for ‘space objects’ that are made in outer space rather than ‘launched into outer space’ especially if those objects are made from material also not ‘launched into outer space’ such as material obtained from an asteroid. So the initial habitat launched by SpaceX from Florida is under US jurisdiction (although the bit of Mars it sits on isn’t) but whether subsequent habitats, especially if they’re made from Martian material, are under US jurisdiction is a harder one to answer.
In Conclusion…
Legally building a colony or village in outer space is permitted under the existing space law regime or at least capable of being compatible with existing space law. There are restrictions, such as the prohibition on the appropriation of territory but these are not insurmountable. However, creating a ‘space nation’ will be a trickier deal. This is not just because there isn’t exactly a formal process for the creation of a state but states, by definition, require territory.[3] It may be possible to have the volume of the ‘space object’ constitute the territory of the ‘state’ but there will almost certainly be objections on the basis of Article II of the Outer Space Treaty. Additionally, there will almost certainly be a need to update the space governance regime itself, which is based upon a terrestrial state taking ‘responsibility’ for activities in outer space, obviously that wouldn’t work for a nation based entirely in outer space. You can’t claim to be independent it you are, what essentially amounts to, a ‘protectorate’ of a terrestrial state.
It is my belief that an actual attempt a colonization (ie a permanent habitat not just a research station, pleasure resort or industrial park) will require a new treaty. However, I don’t think it will require a substantial change in the space law regime but it will be a paradigm shift and therefore require a change in thinking and understanding and the letter, if not the spirit, of the law. The basic principles of space law are sound and even the non-appropriation principle can be preserved in its initial intention while allowing for those who actually live on the Moon and other celestial bodies control over the territory they occupy. That said, despite the optimistic talk I am sceptical, to say the least, of the timescales being offered for space colonies becoming a reality, but that might make now the best time to discuss the issue, there are no ‘vested interests’. What we most certainly want to avoid is the abandonment of the existing space law regime in order to facilitate space settlement. Anarchy in space will only lead to conflict, and not only will that not be good but surely, we’ve got enough conflict already, we don’t need to generate more unnecessarily.
[2]James Crawford The Creation of States in International Law (Oxford University Press, 2007) is if not the leading text then certainly one of the leading texts on the subject and is certainly an excellent candidate for ‘if you only read one book on the subject make sure it’s this one’, failing that he’s responsible for the 8th edition of Brownlie’s Principles of Public International Law (Oxford University Press, 2012) which also covers the topic, albeit in much less detail
[3]James Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 216
Thomas' Blog 
Re para. 2: This is nit-picking, but pursuant to 1933 Montevideo Convention, Art. 1, the state as a person of international law should also possess a government. On the other hand, then there is Somalia….
Re para. 4: Has the non-appropriation principle “come to be regarded as a feature of customary international law,” or as ius cogens?
Re para. 8: Ownership applies not only to objects launched into outer space, but also to natural resources removed from their place. This is customary law as evidenced by the treatment of the returned Apollo and Luna samples in international law. This principle was also codified in 1979 Moon Agreement, Art. 11, para. 2, although the agreement has few states parties. Since resources can be appropriated once removed, whatever is processed or constructed from them can also be property under the jurisdiction and control of the cognizant state.
Re para. 9: Pursuant to Montevideo Convention, Art. 1, although the state as a person of international law “should possess” a defined territory, this phrasing does not make it a precondition; there are numerous historical examples of undefined or disputed borders. In any case, the freedom from harmful interference principle in 1967 Outer Space Treaty, Art. IX was made stronger in Moon Agreement, Art, 8, para. 3; additionally, it may be inferred from the Art 9, para. 1 provision that “a station shall use only that area which is required for the needs of the station,” that other states may not interfere in the said area. Although it is not settled law, some jurists find herefrom a right to a territorial zone of exclusive use of reasonable extent for the duration of the activity. As Max Huber, the arbitrator in the Island of Palmas case, wrote in 1928, “the continuous and peaceful display of sovereignty… is as good as title.” However, in outer space, such “title” would not be in perpetuity, but only for the duration of the activity using the area. Although there is no specified mechanism in international law for the cession of sovereignty, such transactions have been conducted throughout history via acts of recognition, first by the ceding state, followed by others. Statehood is a matter of recognition; it need not be, and sometimes is not, universal, as you point out in para. 2. Presumably, a terrestrial state would have the right in international law to cede sovereignty, and thereby transfer ownership, jurisdiction, and international responsibility, to it extraterrestrial colony.
Re para. 10: It is not clear why colonization would require a new treaty. Pursuant to Moon Agreement Art. 9, para. 1, “States Parties may establish manned and unmanned stations;” This right is not contingent on whether such stations are periodically manned, permanently manned by crew rotation, or have substantial core populations which are permanently resident. It should also be pointed out that the Holy See has no native population, yet it is a sovereign entity. Like you, “despite the optimistic talk, I am sceptical, to say the least, of the timescales being offered for space colonies becoming a reality.” The epitome of such hyperbole was probably achieved by Wernher von Braun, who stated in 1960, “It is entirely conceivable that within our lifetimes rocketships will be transporting people to vacations in space, and that some of the famous European spas will be competing with new spas on Venus.” Not in his lifetime… nor am I holding my breath.
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First, thanks for reading and leaving a comment. Re your first point, that is a valid point, I hope I did convey the sense that this is not exactly a cut and dry thing and there is quite a bit of ‘grey area’. As for your second, I think the case for it being a customary principle of international law is fairly well made, I personally don’t accept it as an ius cogens but no less than Freeland and Jakhu in the Cologne Commentary have said that it is (page 55, para 45). Re para 8. that’s certainly a fair point, and one I need to give more thought to. Re para 9, again interesting point, will have to give that some more thought too. Re para 10. You are not the first person to make a comment in that vein, so I should probably have been more clear on what I actually meant. I agree that legally speaking there is no need for a new treaty in order to establish a colony, however I think that colonization will ‘force’/bring about the requirement for a new treaty as it will represent something of a paradigm shift in space activities. But that’s a lesson in the importance of clarity in language, especially when your audience is comprised of lawyers. Finally, as I said at the start, thank you for reading and leaving a comment, and i hope you have a pleasant weekend.
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