The National Geographic Channel debuted its second season of the series “Mars” on November 12, 2018. The series picks in the second season with the International Mars Science Foundation settlement, Olympus Town, firmly established and attempts to introduce space law to weave into the plot. Unfortunately, like the last attempt to articulate space law in a Mars setting with “The Martian”, which this author had some mixed opinions, “Mars” falls flat both in reciting space law and its real world application.
The antagonist of Season 1 was Mars itself, but Season 2 introduces rather spectacularly a new rival in the form of a mining company called Lukrum, which as would have it is not based in a country that has become a party to the Outer Space Treaty. The chief articulator of the space law pronouncements is the leader of the Lukrum expedition who makes two space law pronouncements to the Commander of Olympus Town: one shortly after Lukrum’s messy arrival and the second in the closing scene. Now to fully appreciate the space law missteps it’s the second pronouncement that is the most significant as it frames the misdirection in the first.
During their conversation about respecting boundaries on Mars, Lukrum’s leader make the following statement to the IMSF Commander:
“But you have to know there are no real boundaries here not for Lukrum anyway. We’re a company not a country. We didn’t sign the Outer Space Treaty or even based in a country that did sign it. So, those laws…they only apply to you guys.”
Lukrum and its leadership take the view the rules don’t apply to Lukrum nor the country under whose jurisdiction it operates because neither are a party the Outer Space Treaty. The country itself is not identified, but surely the writers latched on to the mythos of some in the space advocacy community who consistently brandish the idea of launching from a country that hasn’t become party to the Outer Space Treaty as a means to side-step it and international law in general (many point to the island nation of Tonga as such a country, but Tonga acceded to the Outer Space Treaty in 1971.) Now the detail of Lukrum launching from a country that is not a party to the Outer Space Treaty is not troubling because the customary norm of free access to outer space still exists in spite of the Outer Space Treaty, which means Lukrum and its sponsor nation are free to access outer space and the celestial bodies, including Mars.
Despite the freedom custom allows, the realpolitik offers a differing viewpoint, which means Lukrum and its sponsor nation not being required to become a Party to the Outer Space Treaty would be a non-starter. Consider the IMSF is composed of the major space-faring nations, including the People’s Republic of China. The IMSF is an international organization that has no sovereign authority in of itself. However, the individual members of the IMSF still retain their sovereign authority and geopolitical muscle, which would surely disfavor a private company launching a mission to Mars without being under the framework of the Outer Space Treaty. As such, the individual members of the IMSF could apply diplomatic pressure in combination with lawfare techniques to include denial of export licenses for key technologies, preventing use of their ports to transport materials and other indirect methods to cajole this mysterious nation into becoming at least a signatory to the Outer Space Treaty and at best accede to it. That is to say, in the real world, a phantom nation and off-the-books expedition like Lukrum’s would not be tolerated, especially if it could detriment the IMSF mission and its personnel.
Yet, National Geographic decided to exploit the rascal nation idea to further create an antagonism between a private venture and the IMSF with little regard for realpolitik. This allows Lukrum to run roughshod over IMSF and its personnel and make another space law misstep, which is seen in the first exchange between Lukrum’s leader and the IMSF commander where the former attempts to recite international law to extort resources from IMSF in the form of power and water.
“Well, it’s my understanding that as astronauts, uh, if we require your help, you’re supposed to give it to us…part of the Outer Space Treaty each one of your member [IMSF]nations signed.”
Lukrum’s leader is paraphrasing the second paragraph of Article V of the Outer Space Treaty:
“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.”
A true read of what really is going on is Lukrum is shaking IMSF down and using international law as a façade and to gain additional leverage. Notwithstanding the question of whether the personnel of Lukrum’s expedition qualify as astronauts, the glaring issue revolves around the declaration made by Lukrum’s commander at the end of the first episode:
“We didn’t sign the Outer Space Treaty or even based in a country that did sign it. So, those laws…they only apply to you guys.”
Lukrum is asserting it is not bound by international law yet expects to receive the benefits of international law without subjecting itself to international law. This is puzzling as Lukrum appears to be implying the duty in Article V makes Lukrum a third-party beneficiary, yet there is nothing is the ordinary meaning nor the intent of Article V that creates such a right. As mentioned before, Lukrum appears to be reciting international law to cloak its shakedown of IMFS’ commander. However, IMFS’ eventual and predictable submission to Lukrum’s demands portends another potential issue: If Lukrum’s interpretation of Article V and by extension that of its host nation is not taken exception to by IMFS or more importantly the individual members in the most stringent manner, it could create a state practice that could become legally-binding and exploited by future private expeditions, which could unravel any attempts to create an orderly co-existence among competing interests on Mars, any other celestial body or in outer space in general.
All this begs the question: Where are the space lawyers? Like it or not space law and international law in particular share the characteristic of other legal fields of being adversarial. While most space law is couched in the environment of cooperation and getting along, space law as a member of the family of law is by nature confrontational and must be recognized as such. Certainly, in the case of Lukrum’s activities and its blatant use of the law to extort the IMSF group and their resources would call for the services of lawyers who would raise legal arguments that would find themselves paired with political machinations to prevent the outright exploitation and eventual fracas that will occur from that exploitation. Yet, this important element is at least so far glaringly missing either by oversight on National Geographic’s part or intentional omission. Indeed, it appears from the space law missteps that have occurred so far National Geographic hasn’t really done its homework or consulted with an authority in the field.
All of this is to say that when it comes to “Mars” National Geographic has painted a picture of the realities of what an expedition to Mars might entail in terms of survival, the science and the human side. All these aspects are important, but the law is equally important and more so if it is going to be brandished as a prop.