No, Mars is not a free planet, no matter what SpaceX says

SpaceX makes no secret of its driving goal to make humans a multiplanetary species. Given SpaceX founder Elon Musk’s fixation on Mars and fondness for Tesla ‘Easter eggs’ and other gags, it’s hardly surprising to see Mars mentioned in the terms of service (ToS) agreement for beta users of its Starlink satellite broadband service. However, as a space lawyer, I certainly didn’t expect Starlink’s beta ToS to include the following provision:

“For services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith at the time of the Martian settlement.”

To be sure, SpaceX might have inserted Clause 9 as another one of Musk’s jokes that aren’t really jokes, like the time he invoked South Park’s infamous underwear gnomes in explaining how he intended to fund his ambitious Mars colonization plans. After all, there are no Starlink satellites orbiting Mars, and no prospective customers there yet, either. But international law is no laughing matter.

Taken literally, Starlink users must agree with SpaceX that Mars is a “free planet” and that disputes concerning Starlink services provided on Mars or while en route to the red planet via a SpaceX Starship — will be settled through self-regulation. But is this clause valid? What are the political implications of a transportation company proclaiming the legal status of a celestial body? Does such an attempt make strategic sense?