‘The Martian’ : Space Law Hits and Misses

The Martian opened at theaters this weekend with high expectations and promising reviews.  My intent was to go and be entertained, but more importantly I wanted to see the movie firsthand because it has the probability of being spun up into a policy tool by the media much in the same way Gravity was used as a rallying call for orbital space debris.  Thus, I stepped into a movie theater for the first time in two years with a open mind but guarded optimism.

Admittedly, I did not know there was a book that the movie was based on, and I probably wouldn’t have read it even if I did.  What I found is the latest space-related movie has a decent story-line, good special effects and decent acting, especially if you’re a fan of sarcasm.  However, there was one scene in particular that was unexpected and caught my attention and simultaneously drew my ire as it dealt with a less than accurate application of space law.  After making my ire known in a Tweet, I thought it prudent to address the space law represented and correct the movies misconceptions.

The scene in question consisted of this narrative by the stranded Mark Watney:

LOG ENTRY: SOL 381

I’ve been thinking about laws on Mars. Yeah, I know, it’s a stupid thing to think about, but I have a lot of free time. There’s an international treaty saying no country can lay claim to anything that’s not on Earth. And by another treaty, if you’re not in any country’s territory, maritime law applies. So Mars is “international waters.” NASA is an American nonmilitary organization, and it owns the Hab. So while I’m in the Hab, American law applies. As soon as I step outside, I’m in international waters. Then when I get in the rover, I’m back to American law. Here’s the cool part: I will eventually go to Schiaparelli and commandeer the Ares 4 lander. Nobody explicitly gave me permission to do this, and they can’t until I’m aboard Ares 4 and operating the comm system. After I board Ares 4, before talking to NASA, I will take control of a craft in international waters without permission. That makes me a pirate! A space pirate!

With that, a parsing of the scene’s space law hits and misses follows:

Watney:

There’s an international treaty saying no country can lay claim to anything that’s not on Earth.

CORRECT:

Article II of the Outer Space Treaty of 1967 states:

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.

Watney is essentially correct.  Under the Outer Space Treaty, no nation can make a sovereign territorial claim to a celestial body.  Beyond the significance for The Martian, this is a real issue with the Apollo landing sites on the Moon because the sites contain footprints of Apollo astronauts that hold archaeological and historic significance.  Because of Article II, the United States cannot forbid other nations or even private entities from venturing into and disturbing the sites.

Watney:

And by another treaty, if you’re not in any country’s territory, maritime law applies. So Mars is “international waters.

INCORRECT:

First, there is no “other treaty” that expresses the principle “if you’re not in any country’s territory, maritime law applies.”  The principle Watney incorrectly expressed is the customary rule of free access and passage through outer space.  Significantly, this international norm was not created by a formal treaty like the Outer Space Treaty or its progeny but through customary international law.  The 11th Circuit Court of Appeals defines customary international law in United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012)…

….as international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties. It consists of two components. First, there must be a general and consistent practice of states. This does not mean that the practice must be universally followed; rather, it should reflect wide acceptance among the states particularly involved in the relevant activity. Second, there must be a sense of legal obligation, or opinio juris sive necessitatis. In other words, a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law; instead, there must be a sense of legal obligation to the international community. States must follow the practice because they believe it is required by international law, not merely because that they think it is a good idea, or politically useful, or otherwise desirable.

Interestingly, the event that helped create this customary norm is the launch of Sputnik 1, which  celebrates its 58th anniversary two days after The Martian opened in theaters.  The launch of Sputnik 1 is a significant event in that it put to rest the controversy of whether nations owned the area above their territory to include outer space.  This was a frequent claim by countries, including the Soviet Union, before the launch of Sputnik, but after the launch the Soviet Union and others relented on this claim.  Notably, Ecuador and some other countries located along the equator still hold on to the premise they own the space above their territory, including the space that comprises geosynchronous space and the valuable geosynchronous satellite slots.

Second, maritime law is not a gap-filler for space law.  Admittedly, some principles of maritime law are similar to space law, but aside from any similarities they are two distinct areas of law, which have their own legal rights, duties and prohibitions.  If there is any other terrestrial segment of international law that could be considered a gap-filler for space law, it would be the Antarctic Treaty of 1959.  Admittedly, the declaration ‘maritime law applies‘ was irritating, and it should have been easy to let it go because Watney was only a botanist (even though he was the best botanist on Mars); he was not a space law expert.  However, the “maritime law” mistake was repeated by the Mars Mission Director a few scenes later.

Watney:

NASA is an American nonmilitary organization, and it owns the Hab.

PARTIALLY CORRECT:

Watney’s statement appears to give emphasis to the distinction between a military organization and a “non-military” organization.  This is inaccurate because the real distinction in the Outer Space Treaty is between government and non-government.  Take for instance the first sentence of Article VI of the Outer Space Treaty:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

Consequently, a more accurate statement would have been “NASA is a government agency…”  This would reflect the stance of the Outer Space Treaty with regards to NASA’s role, i.e. a government agency and not a non-military organization.  Furthermore, the classification of NASA as a non-military organization by Watney appears to suggest military activities are prohibited by international space law.  This is incorrect.  Article IV, Paragraph 2 of the Outer Space Treaty deals with this issue.  Specifically, the first sentence states:

The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.

This demonstrates the focus of the Outer Space Treaty is not to exclude military and its personnel from outer space but to exclude non-peaceful activities.  This is exemplified in the second sentence of Article IV, Paragraph 2 whereby:

The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.

This is borne out by the movie itself because the commander of the mission is military as is the pilot of the Hermes spacecraft.  Whether the distinction between military and non-military was a faux pas or an intentional pronouncement is unclear, but regardless, Watney’s statement misrepresents the current body of international space law.

Beyond the issue of the military, Watney continues in this sentence to assert NASA owns the Hab.  This is fundamentally correct.

Article VIII of the Outer Space Treaty states:

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 or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

Specifically, the first sentence of Article VIII bears out Watney’s claim that NASA, and by extension the United States, owns the Hab.  The Ares III mission appears to be a multi-nation mission, which means there are multiple launching states, e.g. the nation or nations that launched or procured the launch of the Hab.  Despite this, the Registration Convention of 1975, which is an extension of Article VIII of the Outer Space Treaty, allows for one nation in a multi-national situation to register the Hab, which validates Watney’s statement.

Article II(1) of the Registration Convention states:

When a space object is launched into earth orbit beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.

Article II(2) elaborates on when there are multiple nations involved in launching a space object:

Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of Article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.

We can presume the Ares III mission is multi-national, and it was jointly agreed the United States and by implication NASA would register the Hab.  Furthermore, we can presume that per Article II(2), it was agreed that NASA would have control of the Hab, the rover and any other space object launched as part of the Ares III mission.  Therefore, Watney’s statement NASA “owns” the Hab is an accurate assessment under international space law.

Watney:

So while I’m in the Hab, American law applies. As soon as I step outside, I’m in international waters. Then when I get in the rover, I’m back to American law.

PARTIALLY CORRECT

With regard to “international waters”, as previously mentioned, maritime law does not supplement the Outer Space Treaty or any other portion of international space law whether it be based on treaty or custom.  Conversely, the customary principle of free access and transit of outer space applies to Watney’s excursions across the Martian surface.  Aside from this, the closest terrestrial analogy to the legal effect of Watney’s transit of the surface of Mars can be found in the first sentence of Article IV(2) of the Antarctic Treaty of 1959:

No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting or supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica.

Thus, when Watney transits between the Hab and the rover and vice versa he is exercising his right of free passage under customary international law without creating any claims to territorial sovereignty of the surface he has traversed.  In other words, Watney exercises the customary right of free passage when he transits across the Martian surface in the rover, which is presumably registered to and subject to the jurisdiction and control of the United States under Article VIII, without creating or asserting territorial sovereignty for the United States.

More to the point, Watney’s statement American law applies to him when he is in the Hab and in the rover is only partially correct.  His statement suggests Article VIII of the Outer Space Treaty and Article II of the Registration are controlling when he is within either of these registered space objects.  This is correct, but contrary to Watney’s assertion, American law controls all his activities regardless of whether he is in the Hab, in the rover or on the surface.  While registration of the Hab and rover are part of the controlling law equation, the overarching legal principle is found in Article VIII of the Outer Space Treaty whereby:

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..

This sentence imposes a legal right and duty for a nation to exercise authority and control of its personnel while in outer space or on a celestial body such as Mars whether those activities are performed by a government agency or a private entity.  This means the United States has continuing international legal responsibility under Article VI for Watney’s activities on Mars and continuing jurisdiction over Watney, who is a government employee of NASA, per Article VIII.  By implication this means Watney is subject to American law for any activity he performs on Mars whether he performs those activities in the Hab, in the Rover or while on the Martian surface.  Additionally, all the members of the Ares III mission could be subject to the jurisdiction of the United States because the mission appears to be a NASA mission and not a multi-agency mission.  Consider the third sentence of Article VI:

When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

The key here is Article VI considers “international organizations” and not individuals of differing nationalities.  Therefore, since it’s been established the Hab and the Rover have been registered by NASA, which is a domestic space agency, and it appears NASA is running the mission, the international members of the Ares III mission could be the responsibility of the United States and by extension subject to the continuing jurisdiction of United States Under Article VIII, including its laws.  This presumes no other agreement regarding jurisdiction was made prior to the mission that would delineate the application of differing national laws to the multi-national team. Notably, the issue of jurisdiction has been addressed with the International Space Station via a treaty among the participating nations.

Watney:

Here’s the cool part: I will eventually go to Schiaparelli and commandeer the Ares 4 lander. Nobody explicitly gave me permission to do this, and they can’t until I’m aboard Ares 4 and operating the comm system. After I board Ares 4, before talking to NASA, I will take control of a craft in international waters without permission. That makes me a pirate! A space pirate!

INCORRECT:

There are three strikes against Watney’s pirate aspirations:

First, since it is established Watney is subject to the jurisdiction of the United States and its laws per Article VIII of the Outer Space Treaty, federal law and specifically the United States Code applies to his claim as a pirate.  In particular, 18 U.S.C. § 1652 states:

Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life.

Watney is clearly a citizen of the United States, but the key condition in 18 U.S.C. § 1652 that defeats Watney’s claim to coolness is the requirement for the offending acts to be committed “on the high seas“.  Watney is without question not on the high seas, and as previously shown, maritime law does not supplement or substitute space law.  Beyond this, there is no legal definition in the U.S. Code or international law for a “space pirate” that would fulfill Watney’s desire.  Strike 1.

Next, Watney claims he lacks authorization to travel to the Ares IV landing site.  This holds some merit from a strict interpretation of Article VIII of the Outer Space Treaty; however, at this point Watney has no communications with NASA and implicit in that lack of communication is the continuing authority to do whatever he decides is necessary to survive, including traveling to the Ares IV landing site.  Furthermore, the responsibility of the United States under Article VI and jurisdiction of the United States over Watney’s activities under Article VIII is not abrogated while NASA thought him dead or when incommunicado.  Thus, Watney’s plan to travel to the Ares IV landing site without express authorization does not put him in legal limbo and support his claim to fame as a “space pirate”.  Strike 2.

The third-strike against Watney’s space piracy ambitions comes in two parts.  First, Watney’s pirate-plan to enter and “commandeer” the Ares IV return-vehicle without NASA’s permission falls flat.  It has been established Watney is not in the legal equivalent of “international waters” but more importantly he is not on “the high seas” as required under 18 U.S.C. § 1652.

Second, even if Watney’s situation on Mars made him the legal rogue he purported to be, the Outer Space Treaty would defeat his piracy aspiration.  First, the Ares IV module is registered to the United States via NASA under Article VIII of the Outer Space Treaty and Article II(2) of the Registration Convention.  Therefore, Watney’s entering into and use of the Ares IV module would have the same legal effect of entering into the rover or the Hab. Moreover, Watney is still under the jurisdiction of the United States via NASA under Article VIII of the Outer Space Treaty and implicitly has the right to enter the Ares IV return-vehicle, which means he cannot commandeer or otherwise acquire the Ares IV return-vehicle by other means of skulduggery.

On the other hand, there is the possibility the Ares IV mission is registered to another of the participating nations, but that would not help Watney’s case to be a space pirate.  Article V, Paragraph 2 of the Outer Space Treaty creates an international legal duty, whereby:

In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties.

Obviously, the Ares IV contains no astronauts from another nation to assist Watney, but the presence of a foreign registered return-vehicle could be interpreted as a fulfillment of the legal duty under Article V if not literally then in spirit to render all possible assistance to a stranded American astronaut on Mars.  Thus, it can be argued the availability of the unmanned Ares IV return-vehicle  implicates a legal duty under Article V to the marooned Watney, which dashes his swashbuckling ambitions.  Strike 3.

All-in all, The Martian was entertaining and one would wonder whether taking the time and effort to analyze one scene related to space law reflects Watney’s opening thought in this scene:

Yeah, I know, it’s a stupid thing to think about, but I have a lot of free time.”

Apart from the amount of free time (I’m listening to the Broncos game in the background), it is not a stupid thing to take the time to parse out this scene and identify, discuss and correct the space law the movie attempted to use.  As admonished by a follower on Twitter, I should have just enjoyed the movie, but what constitutes enjoying the movie is a subjective exercise. To take the time to identify and address the space law missteps is not only about addressing a pet peeve; it is about correcting misconceptions about space law so they will not be accepted as fact.

The Martian will make substantial money at the box-office, but more importantly for better or for worse it will be touted to build interest in the space program and generate enthusiasm for a mission to Mars and manned space flight in general.  In that respect, it is critical the realities of The Martian are highlighted and where those highlights are wrong they be corrected.  Ensuring the proper principles of the growing but important field of space law are not misrepresented is not only worthwhile but necessary as space law comes out of obscurity and is thrust onto theater screens for public consumption.

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