Matthew Smith (1L)
This piece contains mild spoilers for The Martian.
Matt Damon: rogue CIA asset, good Will, heist-man, and now…space pirate?
Earthlings not living under rocks will have heard of Hollywood’s latest addition to the “A-list actor vs. outer space” genre: The Martian. Stunning visuals, suspense, and its own brand of smart, irony-laden comedy are the hallmarks of this film, with the latter largely thanks to Matt Damon’s portrayal of NASA astronaut Mark Wattney. During one monologue, Wattney proudly declares that his current plan of action made him “technically, a pirate. A space pirate!”
Okay Wattney: how so?
Wattney’s claim to extra-terrestrial piracy is simple. In his NASA craft and habitation module, American law applies. However, on the surface of Mars, he is outside sovereign territory, and maritime law applies. He plans to commandeer a second NASA craft—absent permission, he will have taken control of a craft in “international waters” without permission of the owner: piracy!
But how does this claim hold up against the law of outer space?
As it turns out, Wattney is a fantastic astronaut, botanist, and extraterrestrial survivalist, but not an authority on space law. Unfortunately, the “space pirate” characterisation falters on two counts. First, maritime law is not the leading legal regime on Mars. Second, under current international space law, Wattney was within his rights to make use of another craft, with or without permission.
First, the suggestion that maritime law applies on Mars seems predicated on the idea that law in space is derivative from terrestrial international law concerned with non-sovereign regions. There is no space law, so maritime law will do. There is, however, a body of international space law entrenched within the United Nations’ Treaties and Principles on Outer Space. This consists of five UN treaties and five principles adopted by the General Assembly.
The seminal treaty regarding space law is creatively titled: the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.” (Mercifully known as the “Outer Space Treaty.”) Surprisingly, this 1967 treaty predates the 1982 codification of the international law of the sea in the “Third United Nations Convention on the Law of the Sea,” or UNCLOS III.
Once humanity’s use of outer space was in full-swing, two independent legal regimes were in place, with each having sole jurisdiction over their respective regions. Barring some collapse of the UN’s Outer Space Treaties between the present day and the year 2035—when The Martian is set—there is a source of space law one could turn to, and would turn to before applying maritime law.
Second, Wattney’s claim to space piracy is undermined by Article V of the Outer Space Treaty, which takes the wind out of Wattney’s (solar) sails. It states that 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.” Further, Article XII states that “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.”
If any of the 129 parties to the treaty, from Afghanistan to Zambia, owned the craft in question, they would be hard-pressed to summon a legal rationale for denying Wattney access. Under the Treaty, astronauts “shall give reasonable advance notice of a projected visit”, but when left for dead on an inhospitable world, a knock on the door seems timely enough notice. I doubt even the most callous of bureaucrats would turn away an unexpected traveller on a cold (negative 73 degrees Celsius) Martian night.
All in all, our apologies to Matt Damon for scrapping his dreams of becoming an extraterrestrial Captain Jack Sparrow. Perhaps next film, Matt. “Pirates of the Etherium: Curse of the Black Hole” anyone?
