’Starman’ sitting in SpaceX CEO Elon Musk’s Tesla roadster after the Falcon Heavy rocket delivered it into orbit around the Earth on 2 February 2018. Photo: SpaceX via AFP
’Starman’ sitting in SpaceX CEO Elon Musk’s Tesla roadster after the Falcon Heavy rocket delivered it into orbit around the Earth on 2 February 2018. Photo: SpaceX via AFP

Elon Musk wants to colonise Mars but Earth needs to write its constitution first

While it seems hardly likely that SpaceX's Elon Musk will actually proclaim himself the god-emperor of Mars, the world should redraw the regulatory framework of space exploration to incorporate private companies

When SpaceX, Elon Musk’s other business venture, successfully launched its largest rocket yet, all everyone could talk about was its payload. There is something delightfully rakish about hurling your own, personal red Tesla Roadster into space with the words “Don’t Panic" emblazoned in big bold letters on the dashboard, while the stereo blasts David Bowie’s Space Oddity. But this is the new face of the modern space race—bold, in-your-face and ambitious.

The Falcon Heavy is by far the most powerful rocket ever successfully launched by man. It has enough thrust to put 140,000 pounds of cargo into low Earth orbit—twice as much as any other rocket on the planet. With its final burn, the rocket was supposed to put the Roadster into a heliocentric orbit that would have taken the car within kissing distance of Mars, but due to a slightly excessive burn of its third engine, the Roadster is now going to travel much further, into the asteroid belt beyond Mars before it loops back.

What is truly amazing is that this is just a small part of a much larger and grander plan.

As big as Falcon Heavy is, SpaceX is working on an even larger rocket—the BFR—designed to carry an eight-storey payload bay all the way to Mars. It is the first step towards making humanity a multi-planetary species—something many believe is necessary to mitigate the risk of a planetary-scale disaster destroying the species. The BFR will have enough space on board to accommodate 100 passengers in 40 cabins with a galley, storage and entertainment areas as well as a place to shelter from solar storms.

SpaceX plans to launch two unmanned BFRs to Mars by 2022, following that up within two years with four more flights. Two of these will be unmanned cargo flights and the others will be for the astronauts who will set up a permanent base on Mars and eventually colonize the red planet.

As much as all of this sounds like science fiction, SpaceX has a record of delivering on ambitious plans. It is one of a growing number of private enterprises that are doing more active space exploration than national governments—most of which seem disinclined to continue to fund these endeavours. As a result, it is fast becoming impossible to disregard these claims as fiction.

But all this excitement carries with it a soupçon of uncertainty. Given the enormous cost of space travel, we had never imagined that it would be within the ability of a private corporation or a single individual to put a rocket into space. Which is why, when the Outer Space Treaty was ratified, it made no mention of how space exploration by private corporations would be regulated.

The implications of this oversight can be significant.

For instance, though the Outer Space Treaty prohibits any nation from exercising sovereignty over the moon, or any other extra-planetary object, nothing currently prevents a private corporation from doing so. While it seems hardly likely that Musk will actually proclaim himself the god-emperor of Mars, it is possible, likely even, that private space companies will actively look to establish lunar stations as the jumping-off point for inter-planetary missions. They could also look to appropriate promising asteroids from which they could mine raw materials for manufacturing.

As much as it seems like both the moon and the asteroid belt offer near infinite opportunities for multiple companies to coexist harmoniously, we would be remiss in not establishing at least a minimal governance framework to deal with territorial disputes in outer space.

As private corporations inch closer to viable and sustained interplanetary travel, we need to ask ourselves questions like this to pre-empt issues that will inevitably arise. For instance, once mankind finally settles on another planet—an outcome that seems increasingly inevitable—what laws will apply to those extra-terrestrial colonies and how do we ensure that we will not repeat the mistakes of our colonial past? It is becoming increasingly important for us to establish clear rules that will govern extra-planetary societies and the settlement of new worlds.

Musk seems to favour the establishment of a direct democracy on his Martian colony so that settlers can vote on all issues in person rather than through elected representatives. He has suggested the creation of short, simple laws that everyone can understand, which are easier to repeal than to install so that they can be refreshed without effort, once circumstances change.

While all this seems sensible, there is something about leaving the formulation of the constitution of Mars in the hands of a single individual that gives me the shivers. No one person, no matter how entitled, should have the power to determine how mankind’s habitation of a new world should be governed.

It is time that the nations of the world begin to engage with this issue so that they can establish a new regulatory framework which recognizes that it is private corporations, and not national governments, which will lead this next phase of space exploration. Just as we have done in other sectors of industry, this framework will need to encourage and allow multiple private corporations to participate in the space industry, but appropriately regulate their activities once they leave the protection of earth’s atmosphere.

The last thing we need right now is for outer space to become the new Wild West.

Rahul Matthan is a partner at Trilegal. Ex Machina is a column on technology, law and everything in between. His Twitter handle is @matthan.

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