Elon Musk’s ambitious plans to plant a colony on Mars raise an important question: who owns the Red Planet?

This question needs to be answered because both Musk’s Space X and its competitor; the United Launch Alliance (ULA), plan to test rockets capable carrying large cargoes to Mars in 2018. The United Launch Alliance is a consortium of the American aerospace giants; Boeing (NYSE: BA) and Lockheed Martin (NYSE: LMT) that is developing a giant new rocket for NASA.

Boeing CEO Dennis Muilenburg has vowed that his company will beat Musk to Mars. Boeing has no plans for Mars, but Musk claims Space X’s Interplanetary Transportation System will be capable of carrying 100 people to Mars. The ULA’s Space Launch System would be capable of hauling 20 tons to the Red Planet.

Musk’s ultimate goal is to plant a colony of up to one million on Mars by the end of the century. That might be technically feasible but it might not be legal because nobody knows who owns the Red Planet.

Who Owns the Red Planet?

The existing international law on the subject; The Outer Space Treaty says nothing about colonization or property rights. Instead it contains this vague phrase: “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.”

Perhaps because it was written back in 1966; when two of the world’s three most powerful nations China and the Soviet Union, did not recognize the concept of property rights. They were after all Communist regimes with an official dogma that regarded private property as a sin.

Today, the situation is vastly different; both China and Russia are ruled by plutocrats obsessed with the accumulation of wealth. It is hard to imagine either Vladimir Putin or the Chinese Communist Party sitting by and letting one man take control of an entire planet and its resources.

Most likely Putin will soon announce a Russian equivalent of the Interplanetary Transportation System designed to take his country’s miners to Mars. The Chinese and other nations such as Saudi Arabia will not be far behind the Kremlin. Also likely to get involved is the European aerospace giant Airbus, which is Boeing’s biggest competitor in the airliner business.

Property Rights on Mars

To make matters the Outer Space Treaty says nothing about private companies like Boeing or Space X. What legal rights will they have on Mars? Will they be able to claim property there or organize a government?

That means there will have to be law and possibly courts to cover the Red Planet. Such legal infrastructure will be necessary because Space X is a for-profit company. Musk has not said it but his company will need some means of financing the Mars venture, I imagine that means mining.

Mining would require property rights and if profits are generated from it governments will probably demand their cut in the form of taxes. Which government will collect the taxes, will it be the United States or the United Nations.

Musk himself is raising this question because conceptual animation shows a large American flag painted on the side of his Interplanetary Transporter. The billionaire plans to launch is rockets from the Kennedy Space Center at Cape Canaveral, Florida, a U.S. government installation.

That will certainly lead to complaints from other nations, particularly if their leaders think there is money to be made on Mars. Simply the thought of the stars and stripes flying on Mars, might ignite a new for profit space race.

Raising the flag on Mars would be illegal under the Outer Space Treaty which states:

“Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Is Mars for Sale?

Musk himself has admitted that his colony is actually a real estate development scheme. The billionaire has frequently compared Space X to the Union Pacific; one of the companies that built the first transcontinental railroad in North America, in his public statements.

The United States government financed the Union Pacific (UP) by giving it land grants. The railroad was given the right to sell or develop land to raise capital. The UP also had mineral rights, which meant it had the ability to mine or sell the right to mine.

Space X might create a major controversy by selling rights or property on Mars to governments like that of China. Such a sale would be in violation of the Outer Space Treaty.

Musk has not said it but sure sounds as if he plans to sell Mars or at least rights to it. Such sales will require property rights and some sort of government and legal system to enforce them. That raises ethical and philosophical questions for I imagine that some people will believe humanity lacks the right to sell another planet.

Capitalism in Space

Others will point out that his plans are in direct violation of the Outer Space Treaty. One has to wonder if the UN’s Office for Outer Space Affairs will try to stop Space X’s plans. My guess is that Russia and China; which want to get their hands on Mars’ resources, will object to that.

Another potential problem will be the world’s socialists who will probably object to capitalism in space which is what Musk is planning. One has to wonder if they have enough political clout to stop Musk. An interesting development might be the People’s Republic of China; which is theoretically Communist, taking Musk’s side against socialist or Marxist intellectuals.

The question of who owns Mars will lead to an even greater problem: “Who Governs Mars?” That question needs to be answered because we might soon see Elon trying to sell Mars or at least property there.