Corporations in space

Elon Musk has created a buzz (so what else is new) with SpaceX supposedly claiming that it will follow “self-governing principles” on Mars – which are to be defined at the time of Martian settlement. To be clear, this is one of the terms in the “terms of service” for Starlink (SpaceX’s internet connectivity constellation).

One news story mentions the relevant term of service:

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.”

Interestingly, the terms of service are less drastic for services provides around the earth or the moon. For these services, SpaceX will follow the law as governed by the state of California in the United States.

Why does the story change for Mars? The same article suggests that it is a publicity stunt. This is always a possibility when Mr. Musk is involved of course. As the article says:

It’s difficult to imagine Starlink’s terms trumping international laws and treaties, but if the clause was designed to draw attention to the service it worked — how many other satellite broadband providers do you know that have people sharing their terms of service on Twitter?

It should hopefully also draw attention to the need for space law puzzles to be answered sooner rather than later. Corporate activity in the space sector is booming and while issues of what law is applicable in space are likely to be answered with the help of both international law and private international law, specific laws relating to space activities may be useful. Orbital pollution is one issue that has already become significant. The accumulation of space debris has been one issue; reflected light and radio waves from satellites threatening to ruin observations by their sensitive telescopes is another issue. Companies like SpaceX have begun to voluntarily address the latter issue by giving satellites a less reflective coating. Rather than relying on such voluntary measures by companies, nation states would do well to start thinking about national laws or even broad policy principles in this regard. For their part, corporations engaging in the space sector would do well to anticipate regulations in this regard and act responsibly (à la Professor John Armour’s “forward compliance” model). As Professor Armour explains:

… a firm that engages seriously in forward compliance will stand a far better chance of weathering any subsequent reputational storm, as the internal communications that emerge will show the firm grappling proactively with the problem rather than seeking to bury it.

Government policy papers on these new areas ( as precursors to formal laws) will help corporations engage in such forward compliance.

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