A bit belatedly, after getting a number of ‘Does Matt Damon know what he’s talking about?’ emails, I finally got to see The Martian last night. Since it’s not fair that Klaus Dodds and Rachael Squire get to have all the fun analysing this month’s movies, I thought I’d take a stab at parsing the international law beneath The Martian.
The United Nations meets The Martian
The first thing to note is that I’m not the first person to take on this project. In particular, Ultra Vires, the independent newspaper run by law students at the University of Toronto, has put together a very nice post on The Martian and outer space law and there’s also an excellent story released by the University of Nebraska media office wherein several professors there comment on the legal and scientific assumptions embedded in the film. Elements of the blogpost that follows compile and expand upon points raised in these two stories, with a number of original additions as well.
Let’s start with the quote that’s gotten the most attention (at least among international law and extraterritoriality geeks). Matt Damon’s character, Mark Watney, who is stranded on Mars, states:
There’s an international treaty saying no country can lay claim to anything that’s not 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 [the space station presently occupied by 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. Here’s the cool part: I will eventually … 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!
Not so fast, Matt. Let’s look at this sentence by sentence, starting at the beginning. Watney states:
There’s an international treaty saying no country can lay claim to anything that’s not Earth.
That’s right. It’s called the Outer Space Treaty and was introduced at the United Nations in 1967. Significantly (for Watney), the United States has signed and ratified the treaty and thus has agreed to be bound by it. It does indeed say that ‘no country can lay claim to anything that’s not Earth’ (although not exactly in those words). It also says lots of other things. Three articles, in particular, are relevant to the rest of Damon’s monologue:
- Article V: “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas….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….”
- Article VIII: “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….”
- Article XII: “All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity….”
Let’s keep these three articles on hold for a bit while we move on to the next two sentences of Damon’s monologue.
And by another treaty, if you’re not in any country’s territory, maritime law applies. So Mars is “international waters.”
Wrong. The United Nations Convention on the Law of the Sea (UNCLOS, which presumably is the ‘other treaty’ referred to by Damon) says nothing about non-oceanic spaces beyond the limits of land. And if there were a generic ‘beyond any country’s territory’ treaty it presumably would be superseded by the Outer Space Treaty which specifically governs activities in outer space and on celestial bodies. But Damon’s implication — that there are certain parallels between the status of the High Seas in UNCLOS and that of outer space and celestial bodies in the Outer Space Treaty — is indeed correct.
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.
Aside from the ‘international waters’ bit, this statement is correct. However this isn’t due to UNCLOS. It’s because of Article VIII of the Outer Space Treaty (see above).
OK….back to Damon now:
Here’s the cool part:
Actually, here comes the part where Damon really messes things up….
I will eventually … 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!
There are (at least) four things wrong with this bit:
- Actually, in the film Mark Watney is given permission to occupy the Ares 4 lander before he ever gets there. Indeed, NASA officials in Houston and their colleagues at the Jet Propulsion Laboratory in Pasadena assist him in getting the Ares 4 lander ready for launching and in making the appropriate calculations so that he can reunite with the Hermes.
- Even if NASA hadn’t given him permission, though, Articles V and XII of the Outer Space Treaty clearly set out a norm of hospitality for celestial bodies. Article V notes, “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” and Article XII notes, “All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty.” Perhaps one could argue that since Watney and the Ares 4 lander are both affiliated with the United States the ‘other State Parties’ aspects of these two articles don’t apply. But in that case, the only possible crime is one of Watney misbehaving as a NASA employee and, perhaps, utilising NASA property without obtaining proper authorisation. That could get Watney fired when he gets back to Earth and it might even lead to federal prosecution, but it wouldn’t get him thrown in the brig as a pirate.
- Even if NASA isn’t deemed to have given Watney permission AND even if Articles V and XII of the Outer Space Treaty are deemed not to apply to this situation (contra points 1 and 2 above), that still doesn’t make Watney a pirate, at least under the definition of piracy that most likely is applicable in this case.
Piracy isn’t mentioned in the Outer Space Treaty, but it is defined in UNCLOS as:
Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State (Article 101)
Article 102 goes on to note that private individuals who have seized a public vessel to engage in their acts of ‘violence, detention, or depredation’ should also be considered pirates. Assuming that seizing the Ares 4 lander is considered an act of depradation (which is highly contestable, especially given the countervailing norm of hospitality in Articles V and XII of the Outer Space Treaty that mitigates against absolutist interpretations of the right to property in emergency situations), then arguably Watney might be a space pirate.
It seems to me, though, that the only way to get around the Outer Space Treaty’s hospitality clauses is to treat the episode as occurring wholly within the United States’ sovereign domain (even if not on U.S. territory). But in that case one should turn not to UNCLOS’ definition of piracy but rather to the definition that prevails in United States law. Congress, in its Act of 3 March 1819, defines piracy as “robbery, or forcible depradation” (Ch. 77, at page 510). Force is a key component of this definition: ‘robbery’ is theft involving force or the threat of force, and ‘forcible depradation’ also requires the use of force. Since Watney, at worst, is intending to steal the Ares 4 lander without force, it seems clear that from the perspective of U.S. law Watney would not be a pirate. That’s bad news for Johnny Depp: as a ‘real’ pirate (i.e. a violent one) he can be made to suffer the consequences. But it’s also bad news for the pacifist ‘pirate’ Matt Damon, who really has no business calling himself Captain Blondbeard. Nice guys can’t be swashbucklers.
A fourth point, which is perhaps of less significance legally, is that the Outer Space Treaty’s designation of astronauts as ‘envoys of mankind’ (Article 5) would seem to be the precise opposite of the phrase ‘enemy of mankind’, which is the historic designation for the pirate in international law.
Finally, Matt Damon contradicts his entire line of reasoning when, at an earlier point in the film, he celebrates the reestablishment of communication with Earth by stating:
I’ve gotten e-mail from rock stars, athletes, actors and actresses, and even the President. One of them was from my alma mater, the University of Chicago. They say once you grow crops somewhere, you have officially “colonized” it. So technically, I colonized Mars.
Of course, this is precisely what the Outer Space Treaty (and UNCLOS) were written to prevent: the colonisation of extraterritorial spaces. If Mars truly is extraterritorial space — whether covered by UNCLOS, the Outer Space Treaty, or any other Act of International Law — then it can’t be colonised through settlement. Conversely, if Mars is not beyond the limits of potential state sovereignty, then one can’t be a ‘pirate’ since piracy requires an extraterritorial context. Sorry, Matt, but you can’t have it both ways.